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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE TO
(Rule 14d-100)
Tender Offer Statement Under Section 14(d)(1)
or Section 13(e)(1) of the Securities Exchange Act of 1934
(Amendment No. 4)
BARRETT RESOURCES CORPORATION
(Name of Subject Company (Issuer))
RESOURCES ACQUISITION CORP.
a wholly owned subsidiary of
THE WILLIAMS COMPANIES, INC.
(Names of Filing Persons (Offerors))
------------------
Common Stock, Par Value $.01 Per Share
(Including the associated Preferred Stock Purchase Rights)
(Title of Class of Securities)
------------------
068480201
(CUSIP Number of Class of Securities)
William G. von Glahn, Esq.
Senior Vice President and General Counsel
The Williams Companies, Inc.
One Williams Center
Tulsa, Oklahoma 74172
Telephone: (918) 573-2000
(Name, address and telephone number of
person authorized to receive notices
and communications on behalf of filing persons)
With a copy to:
Morris J. Kramer, Esq.
Richard J. Grossman, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, NY 10036
Telephone: 212-735-3000
CALCULATION OF FILING FEE
==============================================================================
Transaction Valuation* Amount of Filing Fee**
$1,221,326,646 $244,265
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* Estimated for purposes of calculating the amount of the filing fee
only. The amount assumes the purchase of a total of 16,730,502 shares
of the outstanding Common Stock, par value $0.01 per share, at a price
per Share of $73.00 in cash. The amount of the filing fee calculated
in accordance with Rule 0-11 of the Securities Exchange Act of 1934,
as amended, equals 1/50 of 1% of the transaction value.
** The filing fee was paid on May 14, 2001.
[_] Check the box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee
was previously paid. Identify the previous filing by registration
statement number or the Form or Schedule and the date of its
filing.
Amount Previously Paid: None Filing party: N/A
Form or Registration No.: N/A Date Filed: N/A
[_] Check the box if the filing relates solely to preliminary
communications made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which
the statement relates:
[X] third-party tender offer subject to Rule 14d-1.
[_] issuer tender offer subject to Rule 13e-4.
[_] going-private transaction subject to Rule 13e-3.
[_] amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment
reporting the results of the tender offer: [_]
This Amendment No. 4 to the Tender Offer Statement on Schedule TO
(the "Schedule TO"), filed initially with the Securities and Exchange
Commission on May 14, 2001, relates to the offer by Resources Acquisition
Corp. ("Purchaser"), a Delaware corporation and a wholly-owned subsidiary
of The Williams Companies, Inc., a Delaware corporation ("Williams"), to
purchase 16,730,502 shares of the common stock, par value $0.01 per share
(including the associated preferred stock purchase rights, the "Shares") of
Barrett Resources Corporation, a Delaware corporation ("Barrett
Resources"), at $73.00 per Share, net to the seller in cash, upon the terms
and subject to the conditions set forth in the Offer to Purchase and the
accompanying Letter of Transmittal, each dated May 14, 2001, of Purchaser
previously filed as exhibits (a)(1) and (a)(2), respectively, to the
Schedule TO.
Item 7. Source and Amount of Funds or Other Consideration.
Item 7 of the Schedule TO, which incorporates by reference certain
information contained in the Offer to Purchase, is hereby amended and
supplemented as follows:
The subsection entitled "Source and Amount of Funds" of the Offer
to Purchase is hereby amended and supplemented with the following
information:
On June 11, 2001, Barrett Resources received the consent of its
lenders to the consummation of the Offer and the Merger without repayment
of the amounts owed thereunder as required by The Revolving Credit
Agreement, dated December 15, 2000, among Barrett Resources, as Borrower,
Bank of America, N.A., as Administrative Agent and Issuing Lender, the
Lenders party thereto, Banc of America Securities L.L.C., as Sole Lead
Arranger and Book Manager, Bank One, NA, as Syndication Agent, and Fleet
National Bank, as Documentation Agent.
The Offer to Purchase previously had disclosed that Williams might
choose to establish a bridge loan facility to fund the capital
contributions to be made to Purchaser by Williams in order for Purchaser to
purchase the Shares sought in the Offer and that Williams was negotiating
the terms of such a bridge loan facility with certain commercial banks and
financial institutions. On June 11, 2001, Williams entered into a Credit
Agreement (the "Credit Agreement") among Williams, as Borrower; Citibank,
N.A. ("Citibank"), Merrill Lynch & Co., and Lehman Commercial Paper Inc.,
as Banks (collectively, the "Banks"); Merrill Lynch & Co., as Syndication
Agent; Lehman Commercial Paper Inc., as Documentation Agent; Salomon Smith
Barney Inc., as Lead Arranger and Book Manager; and Citibank, N.A., as
Administrative Agent (the "Administrative Agent"). The following
description of the Credit Agreement is qualified in its entirety by
reference to the Credit Agreement, a copy of which is filed as exhibit
(b)(1) hereto.
Pursuant to the Credit Agreement and subject to the terms and
conditions therein, the Banks have committed to advance up to $1.5 billion
to Williams in order (i) to finance the acquisition of up to 100% of the
outstanding Shares of Barrett Resources, other than Shares converted into
shares of Williams common stock pursuant to the terms of the Merger
Agreement (the "Acquisition"), (ii) if necessary or if Williams determines
to do so, to enable Barrett Resources to refinance Barrett Resources' 7.55%
senior notes, accrued interest thereon and any applicable make-whole
amounts under such notes, (iii) if necessary or if Williams determines to
do so, to refinance Barrett Resources' corporate revolving credit facility
and (iv) to finance fees and expenses associated with the Acquisition.
Advances made pursuant to the Credit Agreement will be senior unsecured
obligations of Williams.
The initial advance pursuant to the Credit Agreement is subject to
certain conditions precedent, including without limitation, (i) receipt by
the Administrative Agent of the Credit Agreement executed by Williams, (ii)
receipt by the Administrative Agent of certain financial statements of
Williams and Barrett Resources, (iii) receipt by the Administrative Agent
of a certificate of an officer of Williams certifying that (a) on the
effective date of the Credit Agreement, there does not exist any judgment,
order, injunction or other restraint with respect to the making of the
advances or which could reasonably be expected to affect the Acquisition,
(b) the Offer, at the time of mailing thereof, did not contain any untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein contained, in light of the circum
stances under which made, not misleading, (c) Williams has received all
governmental and third party approvals necessary in connection with the
acquisition of Shares, and (d) at least 50% of the outstanding Shares have
been tendered to Williams pursuant to the Offer, and (iv) receipt by all
parties to the Credit Agreement of all fees owed by Williams pursuant
thereto.
The Credit Agreement also contains certain representations,
warranties, covenants, conditions and events of default consistent with
those customarily required for financings of this type and largely
consistent with those contained in Williams' current primary revolving
credit facility. All advances under the Credit Agreement are also subject
to the following conditions: (i) all representations and warranties of
Williams under the Credit Agreement are correct on the date of such
advance, (ii) no Event of Default (as such term is defined in the Credit
Agreement) has occurred and is continuing, and (iii) after giving effect to
such advance the aggregate amount of principal of all advances will not
exceed the aggregate of the commitments.
All advances made pursuant to the Credit Agreement must be repaid
on or before November 27, 2001. Williams may prepay amounts borrowed, plus
accrued interest, subject to certain notice requirements, without penalty
or premium. Subject to certain exceptions, on the first business day
following receipt by Williams of net cash proceeds from a securities
offering after the effective date of the Credit Agreement, the aggregate
commitments shall be permanently reduced by an amount equal to such net
cash proceeds, and, if the aggregate principal amount of outstanding
advances exceeds the aggregate commitments after such reduction, Williams
shall be required to repay such advances in the amount of such excess.
Williams may elect to receive either base rate advances or
eurodollar rate advances. Interest on base rate advances shall accrue at a
rate equal to the higher of (a) Citibank's publicly announced base rate, or
(b) .5% above the Federal Funds Rate in effect from time to time. Interest
on eurodollar rate advances shall accrue at a rate equal to the London
interbank offered rate (LIBOR) plus the "Applicable Margin." The Applicable
Margin is determined based on the Standard & Poor's and Moody's ratings of
the senior unsecured long-term debt of Williams. At Williams' current
credit ratings, the Applicable Margin would be 1.125%.
Item 8. Interest in Securities of the Subject Company
Item 8 of the Schedule TO, which incorporates by reference certain
information contained in the Offer to Purchase, is hereby amended and
supplemented as follows:
The Offer expired at 12:00 midnight, eastern time, on Monday, June
11, 2001, and was not extended. Purchaser has accepted for purchase
16,730,502 Shares, comprising approximately 50% of the approximately 33.5
million Shares outstanding prior to the Offer.
The preliminary count by the Depositary for the Offer indicated
that 21,128,300 Shares were validly tendered and not withdrawn. In
addition, the preliminary count by the Depositary indicated that an
additional 13,672,869 Shares were tendered pursuant to notices of
guaranteed delivery.
As described in the Offer to Purchase, the determination of the
final proration factor for the Shares purchased is subject to confirmation
and the proper delivery of all Shares tendered pursuant to the guaranteed
delivery procedure. Because of the difficulty of determining precisely the
number of Shares validly tendered and not withdrawn, Purchaser does not
expect to be able to (i) announce the final results of proration, (ii) pay
for Shares accepted for payment, and (iii) return Shares tendered but not
accepted for payment as a result of proration until approximately five New
York Stock Exchange trading days after the Expiration Date.
On June 12, 2001, Williams issued a press release announcing the
expiration of the Offer and the preliminary results of the Offer, a copy of
which is filed as Exhibit (a)(12) to this Amendment No. 4 and is
incorporated herein by reference.
Item 11. Additional Information.
Item 11 of the Schedule TO, which incorporates by reference
certain information contained in the Offer to Purchase, is hereby amended
and supplemented as follows:
On June 12, 2001, Williams issued the press release included as
Exhibit (a)(12) hereto. The information set forth in the press release is
incorporated herein by reference.
Item 12. Exhibits.
Item 12 of the Schedule TO is hereby amended and supplemented by
including the following information:
(a)(12) Press Release issued by Williams on June 12, 2001.
(b)(1) Credit Agreement among Williams, as Borrower; Citibank,
N.A., Merrill Lynch & Co., and Lehman Commercial Paper
Inc., as Banks; Merrill Lynch & Co., as Syndication
Agent; Lehman Commercial Paper Inc., as Documen tation
Agent; Salomon Smith Barney Inc., as Lead Arranger and
Book Manager; and Citibank, N.A., as Administrative
Agent.
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete
and correct.
RESOURCES ACQUISITION CORP.
By: /s/ Ralph A. Hill
--------------------------
Name: Ralph A. Hill
Title: Senior Vice President
THE WILLIAMS COMPANIES, INC.
By: /s/ Keith E. Bailey
--------------------------
Name: Keith E. Bailey
Title: Chairman, President and
Chief Executive Officer
Dated: June 12, 2001
EXHIBIT INDEX
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Exhibit
No. Description
(a)(12) Press Release issued by Williams on June 12, 2001.
(b)(1) Credit Agreement among Williams, as Borrower; Citibank, N.A.,
Merrill Lynch & Co., and Lehman Commercial Paper Inc., as
Banks; Merrill Lynch & Co., as Syndication Agent; Lehman
Commercial Paper Inc., as Documentation Agent; Salomon Smith
Barney Inc., as Lead Arranger and Book Manager; and Citibank,
N.A., as Administrative Agent.
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[GRAPHIC OMITTED][GRAPHIC OMITTED]
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News Release
NYSE:WMB
Date: June 12, 2001
Contact: Kathleen Eccleston-Bickell Rick Rodekohr Richard George
Williams (media relations) Williams (investor relations) Williams (investor relations)
(918) 573-1316 (918) 573-2087 (918) 573-3679
kathleen.eccleston- rick.rodekohr@williams.com richard.george@williams.com
bickell@williams.com
Williams Accepts Shares in Tender Offer for Barrett Resources,
Announces Preliminary Results
TULSA, Okla. - Williams (NYSE: WMB) announced today that it has
accepted for purchase 16,730,502 shares of common stock of Barrett
Resources Corporation (NYSE: BRR) tendered in its offer, which expired at
midnight Eastern time on Monday, June 11. The shares accepted represent
approximately 50 percent of the approximately 33.5 million Barrett shares
outstanding prior to the offer.
The preliminary count by the depositary for the tender offer
indicated that 21,128,300 Barrett Resources shares were validly tendered
and not withdrawn. In addition, the preliminary count by the depositary
indicated that an additional 13,672,869 Barrett Resources shares were
tendered pursuant to notices of guaranteed delivery.
As more than 50 percent of the outstanding Barrett shares were
tendered, Williams will purchase shares tendered on a pro rata basis. The
determination of the portion of each Barrett stockholder's shares tendered
to be purchased is subject to confirmation and the proper delivery of all
shares tendered pursuant to the guaranteed delivery procedure and the final
proration factor is expected to be announced later this week. Payment for
shares accepted for purchase and return of all shares tendered but not
accepted for purchase as a result of proration will occur as soon as
practicable.
On May 7, Williams signed a definitive merger agreement with
Barrett. Terms of that agreement included a cash tender offer by Williams
for 16,730,502 shares of Barrett common stock at $73 per share net in cash.
Completion of the tender offer was subject to satisfaction of certain
conditions, including valid tenders of a minimum of 16,730,502 shares of
Barrett common stock. The tender offer will be followed by a merger in
which each remaining share of Barrett Resources common stock, other than
shares held by Williams or its subsidiaries, will be exchanged for 1.767
shares of Williams common stock. Barrett stockholders will receive cash in
lieu of fractional Williams shares.
Williams plans to file a registration statement on Form S-4
registering the shares to be issued in the merger within the next two
weeks. Once the registration statement is declared effective by the
Securities and Exchange Commission, Barrett will schedule a stockholders
meeting to approve the merger. That meeting is expected to take place
approximately 30 days after the registration statement is declared
effective. The merger will take place shortly following the meeting.
Williams expects to close in the third quarter of 2001.
Additional Information
This news release is being filed pursuant to Rule 425 under the Securities
Act of 1933. It does not constitute an offer of sale of securities.
Shareholders of Barrett and other investors are urged to read the proxy
statement/prospectus, when available, that will be included in the
registration statement on Form S-4 to be filed by Williams in connection
with the second-step merger. These materials will contain important
information about Barrett, Williams, the merger, the people soliciting
proxies relating to the merger, their interests in the merger and related
matters.
In addition to the registration statement and the proxy
statement/prospectus to be filed in connection with the merger, Williams
and Barrett file annual, quarterly and special reports, proxy statements
and other information with the SEC. You may read and copy any reports,
statements or other information filed by Barrett Resources or Williams at
the SEC Public Reference Rooms at 450 Fifth St., N.W., Washington, D.C.
20549 or at any of the SEC's other public reference rooms in New York and
Chicago. Please call the SEC at (800) SEC-0330 for further information on
the public reference rooms. Williams' and Barrett's filings with the SEC
are also available to the public from commercial document-retrieval
services and at the web site maintained by the SEC at www.sec.gov. Free
copies of the proxy statement/prospectus, when available, and these other
documents may also be obtained from Williams by directing a request through
the investor relations portion of Williams' website at www.williams.com or
by mail to Williams, One Williams Center, 50th Floor, Tulsa, Okla., 74172,
Attention: Investor Relations, Telephone: (800) 600-3782.
About Williams (NYSE: WMB)
Williams, through its subsidiaries, connects businesses to energy,
delivering innovative, reliable products and services. Williams information
is available at www.williams.com.
###
Portions of this document may constitute "forward-looking statements" as
defined by federal law. Although the company believes any such statements
are based on reasonable assumptions, there is no assurance that actual
outcomes will not be materially different. Any such statements are made in
reliance on the "safe harbor" protections provided under the Private
Securities Reform Act of 1995. Additional information about issues that
could lead to material changes in performance is contained in the company's
annual reports filed with the Securities and Exchange Commission.
U.S. $1,500,000,000
CREDIT AGREEMENT
Dated as of June 11, 2001
among
THE WILLIAMS COMPANIES, INC.
as Borrower
THE BANKS NAMED HEREIN
as Banks
MERRILL LYNCH & CO.
as Syndication Agent
and
LEHMAN COMMERCIAL PAPER INC.
as Documentation Agent
and
SALOMON SMITH BARNEY INC.
as Lead Arranger and Book Manager
and
CITIBANK, N.A.
as Administrative Agent
Table of Contents
Page
PRELIMINARY STATEMENTS...........................................................................................2
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS...........................................................2
Section 1.1 Certain Defined Terms.............................................................2
Section 1.2 Computation of Time Periods......................................................16
Section 1.3 Accounting Terms.................................................................16
Section 1.4 Miscellaneous....................................................................16
Section 1.5 Ratings..........................................................................16
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES.........................................................17
Section 2.1 The Advances.....................................................................17
Section 2.2 Making the Advances..............................................................17
Section 2.3 Fees.............................................................................19
Section 2.4 Reduction of the Commitments.....................................................19
Section 2.5 Repayment of Advances............................................................20
Section 2.6 Interest on Advances.............................................................20
Section 2.7 Additional Interest on Eurodollar Rate Advances..................................20
Section 2.8 Interest Rate Determination......................................................21
Section 2.9 Evidence of Debt.................................................................21
Section 2.10 Prepayments......................................................................21
Section 2.11 Increased Costs..................................................................22
Section 2.12 Illegality.......................................................................23
Section 2.13 Payments and Computations........................................................24
Section 2.14 Taxes............................................................................25
Section 2.15 Sharing of Payments, Etc.........................................................27
Section 2.16 [Intentionally Blank]............................................................28
Section 2.17 Optional Termination.............................................................28
Section 2.18 [Intentionally Blank]............................................................28
Section 2.19 Voluntary Conversion of Advances.................................................28
Section 2.20 Automatic Provisions.............................................................29
ARTICLE III CONDITIONS................................................................................29
Section 3.1 Conditions Precedent to Initial Advances.........................................29
Section 3.2 Additional Condition Precedent to Borrowing......................................31
Section 3.3 Additional Conditions Precedent to Each Borrowing................................31
ARTICLE IV REPRESENTATIONS AND WARRANTIES............................................................32
Section 4.1 Representations and Warranties of the Borrower...................................32
ARTICLE V COVENANTS OF THE BORROWER.................................................................36
Section 5.1 Affirmative Covenants............................................................36
Section 5.2 Negative Covenants...............................................................41
ARTICLE VI EVENTS OF DEFAULT.........................................................................44
Section 6.1 Events of Default................................................................44
ARTICLE VII THE AGENT, SYNDICATION AGENT AND DOCUMENTATION AGENT......................................46
Section 7.1 Authorization and Action.........................................................46
Section 7.2 Administrative Agent's Reliance, Etc.............................................47
Section 7.3 Citibank; Merrill; Lehman........................................................47
Section 7.4 Bank Credit Decision.............................................................47
Section 7.5 Indemnification..................................................................48
Section 7.6 Successor Administrative Agent...................................................48
Section 7.7 Syndication Agent; Documentation Agent...........................................49
ARTICLE VIII MISCELLANEOUS.............................................................................49
Section 8.1 Amendments, Etc..................................................................49
Section 8.2 Notices, Etc.....................................................................49
Section 8.3 No Waiver; Remedies..............................................................50
Section 8.4 Costs and Expenses...............................................................50
Section 8.5 Right of Set-off.................................................................51
Section 8.6 Binding Effect; Transfers........................................................51
Section 8.7 Governing Law....................................................................54
Section 8.8 Interest.........................................................................55
Section 8.9 Execution in Counterparts........................................................55
Section 8.10 Survival of Agreements, Representations and Warranties, Etc......................55
Section 8.11 Borrower's Right to Apply Deposits...............................................55
Section 8.12 Confidentiality..................................................................56
Section 8.13 WAIVER OF JURY TRIAL.............................................................56
Section 8.14 Miscellaneous....................................................................57
Schedules and Exhibits
Schedule I - Bank Information
Schedule II - Borrower Information
Schedule III - Permitted Liens
Schedule IV - Commitments
Schedule V - Rating Categories
Schedule VI - Environmental Matters - Target
Exhibit A-1 - Form of Note
Exhibit B-1 - Notice of Borrowing
Exhibit C - Opinion of William G. von Glahn
Exhibit E - Existing Loans and Investments in WCG Subsidiaries
Exhibit E-1 - Sale and Lease-Back Transaction with WCG
Exhibit F - Form of Transfer Agreement
CREDIT AGREEMENT
This Credit Agreement, dated as of June 11, 2001 (as may be
amended, modified, supplemented, renewed, extended or restated from time to
time, this "Agreement"), is by and among THE WILLIAMS COMPANIES, INC., a
Delaware corporation ("TWC" or the "Borrower"); the various banks as are or
may become parties hereto (collectively, the "Banks"); MERRILL LYNCH & CO.,
as Syndication Agent, (in such capacity, together with any successors in
such capacity, the "Syndication Agent"); LEHMAN COMMERCIAL PAPER INC., as
Documentation Agent (in such capacity, together with any successors in such
capacity, the "Documentation Agent"); and CITIBANK, N.A., as Administrative
Agent (in such capacity, together with any successors in such capacity, the
"Administrative Agent"). In consideration of the mutual covenants and
agreements contained herein, the Borrower, the Administrative Agent and the
Banks hereby agree as set forth herein.
PRELIMINARY STATEMENTS
WHEREAS, the Borrower desires to obtain Commitments from the Banks
pursuant to which Advances, on the terms and conditions and in the amounts
set forth herein, will be made to the Borrower from time to time prior to
the Termination Date; and
WHEREAS, the Banks are willing, on the terms and subject to the
conditions hereinafter set forth (including Article III), to extend such
Commitments and make such Advances to the Borrower;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms
defined):
"Acquisition" means the purchase by the Borrower, whether
direct or indirect, of shares of stock of the Target in an amount
which, when aggregated with shares owned by the Borrower
immediately prior to such acquisition, equal the Required Shares
pursuant to the terms and conditions of the Offer and in
compliance with all Governmental Requirements.
"Acquisition Agreement" means any agreement executed by
the Borrower or a material U.S. Subsidiary of the Borrower and the
Target pursuant to which the Target will be merged with or
acquired by the Borrower or such Subsidiary of the Borrower, if
any such agreement shall be executed.
"Additional Offer Documents" means all amendments and
exhibits to, and material documents related to, the Offer and
filed with the Securities and Exchange Commission or distributed
to stockholders of Target.
"Administrative Agent" means Citibank, N.A. in its
capacity as administrative agent pursuant to Article VII hereof
and any successor Administrative Agent pursuant to Section 7.6.
"Advance" means an advance by a Bank to the Borrower as
part of a Borrowing and refers to a Base Rate Advance or a
Eurodollar Rate Advance, each of which shall be a "Type" of
Advance.
"Agreement" has the meaning specified in the Preamble.
"American Soda" means American Soda, L.L.P., a Colorado
limited liability partnership.
"Applicable Commitment Fee Rate" means the rate per annum
set forth on Schedule V under the heading "Applicable Commitment
Fee Rate" for the relevant Rating Category applicable to the
Borrower from time to time. The Applicable Commitment Fee Rate
shall change when and as the relevant Rating Category applicable
to the Borrower changes.
"Applicable Lending Office" means, with respect to each
Bank, such Bank's Domestic Lending Office in the case of a Base
Rate Advance and such Bank's Eurodollar Lending Office in the case
of a Eurodollar Rate Advance.
"Applicable Margin" means, as to any Eurodollar Rate
Advance, the rate per annum set forth in Schedule V under the
heading "Applicable Margin" for the relevant Rating Category
applicable to the Borrower from time to time. The Applicable
Margin for any Eurodollar Rate Advance shall change when and as
the relevant applicable Rating Category changes.
"Arranger" means Salomon Smith Barney in its capacity as
lead arranger and book manager.
"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).
"Authorized Officer" means any of the Chairman, the
President, the Chief Financial Officer, any Senior Vice-President
or the Treasurer of the Borrower or any other officer of the
Borrower specified to the Administrative Agent in writing by any
of the aforementioned officers of the Borrower.
"Banks" means the lenders listed on the signature pages
hereof and each other Person that becomes a Bank pursuant to the
last sentence of Section 8.6(a).
"Base Rate" means a fluctuating interest rate per annum
as shall be in effect from time to time which rate per annum shall
at all times be equal to the higher of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate; or
(b) 1/2 of one percent per annum above the Federal
Funds Rate in effect from time to time.
"Base Rate Advance" means an Advance which bears interest
as provided in Section 2.6(a).
"Borrower" means The Williams Companies, Inc., a Delaware
corporation.
"Borrowing" means a Borrowing consisting of simultaneous
Advances of the same Type to the Borrower made by each of the
Banks pursuant to Section 2.1.
"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,
on which dealings are carried on in the London interbank market.
"Cash Holdings" of any Person means the total investment
of such Person at the time of determination in:
(a) demand deposits and time deposits maturing within
one year with a Bank (or other commercial banking institution
of the stature referred to in clause (d)(i));
(b) any note or other evidence of indebtedness,
maturing not more than one year after such time, issued or
guaranteed by the United States Government or by a government
of another country which carries a long-term rating of Aaa by
Moody's or AAA by S&P;
(c) commercial paper, maturing not more than nine
months from the date of issue, which is issued by
(i) a corporation (other than an affiliate of
the Borrower) and rated (x) A-1 by S&P, P-1 by Moody's
or F-1 by Fitch or (y) lower than set forth in clause
(x) above, provided that the value of all such
commercial paper shall not exceed 10% of the total value
of all commercial paper comprising "Cash Holdings," or
(ii) any Bank (or its holding company) with a
rating on its unsecured long term debt of at least AA by
S&P or Aa by Moody's;
(d) any certificate of deposit or bankers acceptance,
maturing not more than three years after such time, which is
issued by either
(i) a commercial banking institution that is a
member of the Federal Reserve System and has a combined
capital and surplus and undivided profits of not less
than $1,000,000,000, or
(ii) any Bank with a rating on its unsecured
long term debt of at least AA by S&P or Aa by Moody's;
(e) notes or other evidences of indebtedness
maturing not more than three years after such time, issued by
(i) a corporation (other than an affiliate of
the Borrower) rated AA by S&P or Aa by Moody's, or
(ii) any Bank (or its holding company) with a
rating on its unsecured long term debt of at least AA by
S&P or Aa by Moody's;
(f) any repurchase agreement entered into with any
Bank (or other commercial banking institution of the stature
referred to in clause (d)(i)) which
(i) is secured by a fully perfected security
interest in any obligation of the type described in any
of clauses (a) through (d), and
(ii) has a market value at the time such
repurchase agreement is entered into of not less than
100% of the repurchase obligation of such Bank (or other
commercial banking institution) thereunder; and
(g) money market preferred instruments acquired by
participation in a Dutch auction (or the equivalent) where
the investment is rated no lower than Aa by Moody's or AA by
S&P.
"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 means at any time the amount set
opposite or deemed (pursuant to clause (vii) of the last sentence
of Section 8.6(a) and as reflected in the relevant Transfer
Agreement referred to in such sentence) to be set opposite such
Bank's name on Schedule IV as such amount may be terminated,
reduced or increased after the date hereof, pursuant to Section
2.4, Section 2.17, Section 6.1 or Section 8.6(a).
"Consolidated" refers to the consolidation of the
accounts of any Person and its subsidiaries in accordance with
generally accepted accounting principles.
"Consolidated Net Worth" of any Person means the Net
Worth of such Person and its Subsidiaries on a Consolidated basis
plus, in the case of the Borrower, the Designated Minority
Interests to the extent not otherwise included; provided that, in
no event shall the value ascribed to Designated Minority Interests
for the Subsidiaries of the Borrower described in clauses (i)
through (v) and (vii) of the definition of "Designated Minority
Interests" exceed $136,892,000 in the aggregate.
"Consolidated Tangible Net Worth" of any Person means the
Tangible Net Worth of such Person and its Subsidiaries on a
Consolidated basis.
"Consummation Date" means the date on which all
conditions precedent described in the Offer have been fulfilled in
all material respects in accordance with the terms and provisions
thereof and the Acquisition is consummated pursuant to the terms
of the Offer.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.2, 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
(other than trade payables not overdue by more than 60 days
incurred in the ordinary course of business), (iv) monetary
obligations of such Person as lessee under leases that are, in
accordance with generally accepted accounting principles, recorded
as capital leases, (v) obligations of such Person under guaranties
in respect of, and obligations (contingent or otherwise) to
purchase or otherwise acquire, or otherwise to assure a creditor
against loss in respect of, indebtedness or obligations of others
of the kinds referred to in clauses (i) through (iv) of this
definition and (vi) indebtedness or obligations of others of the
kinds referred to in clauses (i) through (v) of this definition
secured by any Lien on or in respect of any property of such
Person; provided, however, that (x) Debt shall not include any
obligation under or resulting from any agreement referred to in
paragraph (y) of Schedule III; (y) in the case of the Borrower,
Debt shall not include any contingent obligation of the Borrower
relating to indebtedness incurred by any SPV, WCG or a WCG
Subsidiary pursuant to the WCG Structured Financing; and (z) it is
the understanding of the parties hereto that Debt shall not
include any monetary obligations or guaranties of monetary
obligations of Persons as lessee under leases that are, in
accordance with generally accepted accounting principles, recorded
as operating leases.
"Designated Minority Interests" of the Borrower means, as
of any date of determination, the total of the minority interests
in the following Subsidiaries: (i) El Furrial, (ii) PIGAP II,
(iii) Nebraska Energy, (iv) Seminole, (v) American Soda, (vi) the
Midstream Asset MLP, and (vii) other Subsidiaries, as presented in
the Consolidated balance sheet of the Borrower, in an amount not
to exceed in the aggregate $9,000,000 for such other Subsidiaries
not referred to in items (i) through (vi); provided that minority
interests which provide for a stated preferred cumulative return
shall not be included in Designated Minority Interests.
"Designating Bank" has the meaning specified in Section
8.6(d).
"Documentation Agent" means Lehman, together with its
successors and assigns in such capacity.
"Domestic Lending Office" means, with respect to any
Bank, the office of such Bank specified as its "Domestic Lending
Office" opposite its name on Schedule I hereto or pursuant to
Section 8.6(a), or such other office of such Bank as such Bank may
from time to time specify to the Borrower and the Administrative
Agent.
"EDGAR" means "Electronic Data Gathering, Analysis and
Retrieval" system, a database maintained by the Securities and
Exchange Commission containing electronic filings of issuers of
certain securities.
"Effective Date" means the first date on or before July
15, 2001 on which this Agreement has become effective pursuant to
Section 8.6(a) and conditions set forth in Section 3.1 (and
Section 3.2 or 3.3, if applicable) have been satisfied (or waived
pursuant to Section 8.1).
"El Furrial" means WilPro Energy Services (El Furrial)
Limited, a Cayman Islands corporation.
"Environment" shall have the meaning set forth in 42
U.S.C. 9601(8) or any successor statute and "Environmental" shall
mean pertaining or relating to the Environment.
"Environmental Protection Statute" shall mean any United
States local, state or federal, or any foreign, law, statute,
regulation, order, consent decree or other agreement or
Governmental Requirement arising from or in connection with or
relating to the protection or regulation of the Environment,
including, without limitation, those laws, statutes, regulations,
orders, decrees, agreements and other Governmental Requirements
relating to the disposal, cleanup, production, storing, refining,
handling, transferring, processing or transporting of Hazardous
Waste, Hazardous Substances or any pollutant or contaminant,
wherever located.
"ERISA" means the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations
promulgated and rulings issued thereunder from time to time.
"ERISA Affiliate" means any trade or business (whether or
not incorporated) which is a member of a group of which the
Borrower is a member and which is under common control within the
meaning of Section 414 of the Code and the regulations promulgated
thereunder.
"Eurocurrency Liabilities" has the meaning assigned to
that term in Regulation D of the 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 8.6(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 Borrower and the Administrative
Agent.
"Eurodollar Rate" means, for any Eurodollar Rate Advance
comprising part of the same Borrowing for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) appearing on Dow Jones Markets Page 3750
(or any successor page) as the London interbank offered rate for
deposits in Dollars at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period for a
term comparable to such Interest Period. If for any reason such
rate is not available, the term "Eurodollar Rate" shall mean, for
any Eurodollar Rate Advance comprising part of the same Borrowing
for any Interest Period therefor, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Reuters Screen LIBO Page as the London interbank offered rate for
deposits in Dollars at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period for a
term comparable to such Interest Period; provided, however, if
more than one rate is specified on Reuters Screen LIBO Page, the
applicable rate shall be the arithmetic mean of all such rates
(rounded upwards, if necessary, to the nearest 1/100 of 1%).
"Eurodollar Rate Advance" means an Advance that bears
interest as provided in Section 2.6(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 6.1.
"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 Administrative Agent from three federal
funds brokers of recognized standing selected by it.
"Fitch" means Fitch, Inc.
"Governmental Requirements" means all judgments, orders,
writs, injunctions, decrees, awards, laws, ordinances, statutes,
regulations, rules, franchises, permits, certificates, licenses,
authorizations and the like and any other requirements of any
government or any commission, board, court, agency,
instrumentality or political subdivision thereof.
"Hazardous Substance" shall have the meaning set forth in
42 U.S.C. ss. 9601(14) and shall also include each other substance
considered to be a hazardous substance under any Environmental
Protection Statute.
"Hazardous Waste" shall have the meaning set forth in 42
U.S.C. ss. 6903(5) and shall also include each other substance
considered to be a hazardous waste under any Environmental
Protection Statute (including, without limitation 40 C.F.R. ss.
261.3).
"Insufficiency" means, with respect to any Plan, the
amount, if any, by which the present value of the vested benefits
under such Plan exceeds the fair market value of the assets of
such Plan allocable to such benefits.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on
the date of such Advance or the date of the Conversion of any Base
Rate Advance into a Eurodollar Rate Advance and ending on the
corresponding day of the immediately following month (or if there
is no corresponding day, the last Business Day of such immediately
following month), and thereafter, and so long as no Event of
Default shall exist, each subsequent period commencing on the last
day of the immediately preceding Interest Period and ending on the
corresponding day of the immediately following month (or if there
is no corresponding day, the last Business Day of such immediately
following month); provided, that no Interest Period may end after
the Termination Date.
"Kern River Issuance" means the issuance of securities
evidencing Debt of or on behalf of Kern River Gas Transmission
Company in an amount of approximately $500,000,000.
"Lehman" means Lehman Commercial Paper Inc..
"Lien" means any mortgage, lien, pledge, charge, deed of
trust, security interest, encumbrance or other type of
preferential arrangement to secure or provide for the payment of
any obligation of any Person, whether arising by contract,
operation of law or otherwise (including, without limitation, the
interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement).
"Majority Banks" means at any time Banks having more than
50% of the then aggregate unpaid principal amount of the Advances
outstanding to Banks, or, if no such principal amount is then
outstanding, Banks having more than 50% of the principal amount of
the Commitments (provided that for purposes of this definition and
Sections 2.17, 6.1 and 7.1 neither the Borrower nor any Subsidiary
or Related Party of the Borrower, if a Bank, shall be included in
(i) determining the Banks to which outstanding Advances are owed
or (ii) determining the aggregate unpaid principal amount of the
Advances or the amount of the Commitments). For purposes hereof,
Advances made by an SPC shall be considered Advances of its
Designating Bank.
"Merrill" means Merrill Lynch & Co.
"Midstream Asset MLP" means one or more master limited
partnerships included in the Consolidated financial statements of
the Borrower to which the Borrower has transferred or shall
transfer certain assets relating to the distribution, storage and
transportation of petroleum products and ammonia, including
without limitation marine and inland terminals and related
pipeline systems, including, without limitation, Williams Energy
Partners L.P.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan" as
defined in Section 4001(a)(3) of ERISA to which the Borrower or
any ERISA Affiliate is making or accruing an obligation to make
contributions, or has within any of the preceding five plan years
made or accrued an obligation to make contributions.
"Multiple Employer Plan" means an employee benefit plan
as defined in Section 3(2) of ERISA, other than a Multiemployer
Plan, subject to Title IV of ERISA to which the Borrower or any
ERISA Affiliate, and one or more employers other than the Borrower
or an ERISA Affiliate, is making or accruing an obligation to make
contributions or, in the event that any such plan has been
terminated, to which the Borrower or any ERISA Affiliate made or
accrued an obligation to make contributions during any of the five
plan years preceding the date of termination of such plan.
"Multiyear Williams Credit Agreement" means that certain
Credit Agreement of even date herewith among The Williams
Companies, Inc., NWP, TGPL and TGT, as Borrowers; the financial
institutions party thereto, as "Banks" thereunder; The Chase
Manhattan Bank and Commerzbank AG, as Co-Syndication Agents;
Credit Lyonnais New York Branch, as Documentation Agent; and
Citibank, N.A. as Administrative Agent (as the same may from time
to time be amended, supplemented, restated or otherwise modified).
"Nebraska Energy" means Nebraska Energy, L.L.C., a Kansas
limited liability company.
"Net Cash Proceeds" means, with respect to a Securities
Insurance, drafts or currency received, or credit balances in a
demand, time, savings, passbook or like account with a bank,
savings and loan association, credit union or like organization
established, in each case as proceeds of such Securities Issuance
less underwriting discounts and commissions and other reasonable
costs and expenses, including reasonable legal costs and expenses,
associated with such Securities Issuance.
"Net Debt" means for the Borrower as of any date of
determination, the excess of (x) the aggregate amount of all Debt
of the Borrower and its Subsidiaries on a Consolidated basis,
excluding Non-Recourse Debt, over (y) the sum of the Cash Holdings
of the Borrower and its Subsidiaries on a Consolidated basis.
"Net Worth" of any Person means, as of any date of
determination the excess of total assets of such Person over total
liabilities of such Person, total assets and total liabilities
each to be determined in accordance with generally accepted
accounting principles.
"Non-Recourse Debt" means Debt incurred by any
non-material Subsidiary which is a Non-Borrowing Subsidiary (as
defined in the Multiyear Williams Credit Agreement) to finance the
acquisition (other than any acquisition from the Borrower or any
Subsidiary) or construction of a project, which Debt does not
permit or provide for recourse against the Borrower or any
Subsidiary of the Borrower (other than the Subsidiary that is to
acquire or construct such project) or any property or asset of the
Borrower of any Subsidiary of the Borrower (other than the
property or assets of the Subsidiary that is to acquire or
construct such project). For purposes of this definition, a
"non-material Subsidiary" shall mean any Subsidiary of the
Borrower, which, as of the date of the most recent Consolidated
balance sheet of the Borrower delivered pursuant to Section 5.1
has total assets which account for less than five percent (5%) of
the total assets of the Borrower and its Subsidiaries; provided,
that the total aggregate assets of the non-material Subsidiaries
shall not comprise more than ten percent (10%) of the total assets
of the Borrower and its Subsidiaries, as shown in such
Consolidated balance sheet.
"Note" means a promissory note of the Borrower payable to
the order of any Bank, in substantially the form of Exhibit A
hereto, (as such note may be amended, endorsed or otherwise
modified from time to time) delivered at the request of such Bank
pursuant to Section 2.9 or 8.6, together with any other note
accepted from time to time in substitution or replacement
therefor.
"Notice of Borrowing" has the meaning specified in
Section 2.2(a).
"NWP" means Northwest Pipeline Corporation, a Delaware
corporation.
"Offer" means the offer by Resources Acquisition Corp., a
Delaware corporation and a wholly-owned subsidiary of the
Borrower, to purchase 16,730,502 shares of common stock of the
Target, par value $.01 per share (including the association
preferred stock purchase rights, the "Shares"), at $73.00 per
Share, net to the seller in cash, upon the terms and subject to
the conditions set forth in the offer to purchase and in the
related letter of transmittal, copies of which are attached as
Exhibits (a)(1) and (a)(2) to the Tender Offer Statement on
Schedule TO, filed initially with the Securities and Exchange
Commission on May 14, 2001, as amended.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Liens" means Liens specifically described on
Schedule III.
"Person" means an individual, partnership, corporation,
limited liability company, business trust, joint stock company,
trust, unincorporated association, joint venture or other entity,
or a government or any political subdivision or agency thereof.
"PIGAP II" means WilPro Energy Services (PIGAP II)
Limited, a Cayman Islands corporation.
"Plan" means an employee pension benefit plan (other than
a Multiemployer Plan) as defined in Section 3(2) of ERISA
currently maintained by, or in the event such plan has terminated,
to which contributions have been made or an obligation to make
such contributions has accrued during any of the five plan years
preceding the date of the termination of such plan by, the
Borrower or any ERISA Affiliate for employees of the Borrower or
any 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 the Borrower's annual report on
Form 10-K/A for the year ended December 31, 2000, and the
Borrower's quarterly report on Form 10-Q for the quarter ended
March 31, 2001.
"Rating Category" means, as to the Borrower, the relevant
category applicable to the Borrower from time to time as set forth
on Schedule V, which is based on the ratings (or lack thereof) of
the Borrower's senior unsecured long-term debt by S&P or Moody's.
In the event there is a split between the ratings of the
Borrower's senior unsecured long-term debt by S&P and Moody,
"Rating Category" shall mean, as to the Borrower, the relevant
category applicable to the Borrower from time to time as set forth
on Schedule V, which is based on the higher of the ratings of the
Borrower's senior unsecured long-term debt by S&P and Moody.
"Related Party" of any Person means any corporation,
partnership, joint venture or other entity of which more than 10%
of the outstanding capital stock or other equity interests having
ordinary voting power to elect a majority of the board of
directors of such corporation, partnership, joint venture or other
entity or others performing similar functions (irrespective of
whether or not at the time capital stock or other equity interests
of any other class or classes of such corporation, partnership,
joint venture or other entity shall or might have voting power
upon the occurrence of any contingency) is at the time directly or
indirectly owned by such Person or which owns at the time directly
or indirectly more than 10% of the outstanding capital stock or
other equity interests having ordinary voting power to elect a
majority of the board of directors of such Person or others
performing similar functions (irrespective of whether or not at
the time capital stock or other equity interests of any other
class or classes of such corporation, partnership, joint venture
or other entity shall or might have voting power upon the
occurrence of any contingency); provided, however, that neither
the Borrower nor any Subsidiary of the Borrower shall be
considered to be a Related Party of the Borrower or any Subsidiary
of the Borrower.
"Required Shares" means shares of stock of the Target
which constitute (a) more than 49% on a fully diluted basis, of
the outstanding shares of capital stock having ordinary voting
power with respect to election of the board of directors of the
Target and (b) more than 49% of all outstanding non-redeemable,
non-callable stock.
"S&P" means Standard & Poor's Ratings Services, a
division of The McGraw Hill Companies, Inc.
"Sale and Lease-Back Transaction" of any Person means any
arrangement entered into by such Person or any Subsidiary of such
Person, directly or indirectly, whereby such Person or any
Subsidiary of such Person shall sell or transfer any property,
whether now owned or hereafter acquired, and whereby such Person
or any Subsidiary of such Person shall then or thereafter rent or
lease as lessee such property or any part thereof or other
property which such Person or any Subsidiary of such Person
intends to use for substantially the same purpose or purposes as
the property sold or transferred.
"Securities Issuance" means the issuance by the Borrower
or any Subsidiary of the Borrower of any stock, shares,
partnership interests, voting trust certificates, certificates of
interest or participation in any profit-sharing agreement or
arrangement, options, warrants, bonds, debentures, notes, or other
evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly
known as "securities" or any certificates of interest, shares or
participations in temporary or interim certificates for the
purpose or acquisition of, or any right to subscribe to, purchase
or acquire, any of the foregoing, excluding (1) securities issued
by a Subsidiary of the Borrower to the Borrower or to another
Subsidiary and debt Securities issued by the Borrower to a
Subsidiary; (2) securities issued by the Borrower or any
Subsidiary of the Borrower to shareholders in the Target for the
purpose of effecting the Acquisition; (3) refinancings,
refundings, renewals or extensions of Debt outstanding on the
Effective Date, without increasing the principal amount thereof;
(4) the issuance of notes pursuant to credit agreements with
commercial banks or other financial institutions party to such
credit agreements; (5) the issuance of commercial paper in the
ordinary course of business; (6) the Kern River Issuance; (7) the
WCG Structured Financing; (8) securities, including options,
warrants or other convertible securities, issued to officers,
employees, directors, consultants and certain other qualified
persons pursuant to option plans or similar plans or agreements
adopted by the Board of Directors of the Borrower or a Subsidiary;
(9) shares of stock issued to a member of the Board of Directors
of the Borrower or a Subsidiary of the Borrower for purposes of
qualification and (10) the 7.75% Notes.
"Seminole" means Seminole Pipeline Company, a Delaware
corporation.
"7.55% Notes" means the 7.55% Senior Notes due 2007 of
Barrett Resources Corporation.
"7.75% Notes" means the 7.75% Senior Notes due 2031 of
the Borrower.
"SPC" has the meaning specified in Section 8.6(d).
"SPV" is used as defined in the definition of "WCG
Structured Financing."
"Stated Termination Date" means November 27, 2001.
"Subordinated Debt" means any Debt of the Borrower which is
effectively subordinated to the obligations of the Borrower hereunder
and under the Notes, if any.
"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.
"Syndication Agent" means Merrill in such capacity,
together with its successors and assigns in such capacity.
"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.
"Target" means Barrett Resources Corporation.
"Target's Revolving Credit Facility" means that certain
Revolving Credit Agreement dated December 15, 2000 among the
Target, the Lenders (as defined therein), Banc of America
Securities L.L.C., as Sole Lead Arranger and Book Manager, Fleet
National Bank, as Documentation Agent and Bank of America, N.A.,
as Issuing Lender and Administrative Agent for the Lenders, as the
same may from time to time have been amended.
"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 2.4, 2.17 or 6.1.
"Termination Event" means (i) a "reportable event", as
such term is described in Section 4043 of ERISA (other than a
"reportable event" not subject to the provision for 30-day notice
to the PBGC), or (ii) the withdrawal of the Borrower or any ERISA
Affiliate from a Multiple Employer Plan during a plan year in
which it was a "substantial employer," as such term is defined in
Section 4001(a)(2) of ERISA, or the incurrence of liability by the
Borrower or any ERISA Affiliate 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
8.6.
"TWC" is defined in the preface of this Agreement.
"Type" has the meaning set forth in the definition herein
of Advance.
"Unrated" means that no senior unsecured long-term debt
of the Borrower is rated by S&P and no senior unsecured long-term
debt of the Borrower is rated by Moody's.
"U.S. Subsidiary" means, with respect to any Person, a
Subsidiary of such Person organized in a jurisdiction located in
the United States.
"WCG" means Williams Communications Group, Inc., a
Delaware corporation.
"WCG Structured Financing" means a certain series of
related transactions completed in anticipation of the spin-off of
WCG pursuant to which WCG obtained loans through a special purpose
vehicle ("SPV"). Principal of such loans does not exceed in the
aggregate $1.5 billion. The Borrower has a contingent obligation
with respect to repayment of indebtedness of the SPV in regard to
such transaction, which contingent obligation shall terminate in
each case no later than four years after the effective date of
such transaction and shall be satisfied only through the issuance
of equity securities unless further sales of equity securities of
the Borrower are not possible or will not result in additional net
proceeds.
"WCG Subsidiaries" means, collectively, WCG and any
direct or indirect Subsidiary of WCG.
"Wholly-Owned Subsidiary" of any Person means any
Subsidiary of such Person all of the capital stock and other
equity interests of which is owned by such Person or any
Wholly-Owned Subsidiary of such Person.
"Withdrawal Liability" shall have the meaning given such
term under Part I of Subtitle E of Title IV of ERISA.
"WPC" means Williams Gas Pipelines Central, Inc., a
Delaware corporation, formerly Williams Natural Gas Company.
Section 1.2 Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and
"until" each means "to but excluding."
Section 1.3 Accounting Terms. All accounting terms not
specifically defined shall be construed in accordance with general
accounting principles, and each reference herein to "generally accepted
accounting principles" shall mean generally accepted accounting principles
in effect, consistently applied.
Section 1.4 Miscellaneous. The words "hereof," "herein" and
"hereunder" and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Article, Section, Schedule and Exhibit references are
to Articles and Sections of and Schedules and Exhibits to this Agreement,
unless otherwise specified.
Section 1.5 Ratings. A rating, whether public or private, by S&P
or Moody's shall be deemed to be in effect on the date of announcement or
publication by S&P or Moody's, as the case may be, of such rating or, in
the absence of such announcement or publication, on the effective date of
such rating and will remain in effect until the announcement or publication
of, or in the absence of such announcement or publication, the effective
date of, any change in, or withdrawal or termination of, such rating. In
the event the standards for any rating by Moody's or S&P are revised, or
any such rating is designated differently (such as by changing letter
designations to different letter designations or to numerical
designations), the references herein to such rating shall be deemed to
refer to the revised or redesignated rating for which the standards are
closest to, but not lower than, the standards at the date hereof for the
rating which has been revised or redesignated, all as determined by the
Majority Banks in good faith. Long-term debt supported by a letter of
credit, guaranty, insurance or other similar credit enhancement mechanism
shall not be considered as senior unsecured long-term debt. If either
Moody's or S&P has at any time more than one rating applicable to senior
unsecured long-term debt of the Borrower, the lowest such rating shall be
applicable for purposes hereof. For example, if Moody's rates some senior
unsecured long-term debt of the Borrower Ba1 and other such debt of the
Borrower Ba2, the senior unsecured long-term debt of the Borrower shall be
deemed to be rated Ba2 by Moody's.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
Section 2.1 The Advances. Each Bank severally agrees, on the terms
and conditions hereinafter set forth, to make Advances to the 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. Each 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 Advances of the same Type made to the
Borrower on the same day by the Banks ratably according to their respective
Commitments. Within the limits of each Bank's Commitment, the Borrower may
borrow, prepay pursuant to Section 2.10 and reborrow under this Section
2.1.
Section 2.2 Making the Advances. (a) Each 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 to the Administrative Agent, which shall give to each Bank
prompt notice thereof by telecopy, telex or cable. Each such notice of a
Borrowing (a "Notice of Borrowing") shall be by telephone, confirmed
immediately in writing, or by telecopy, telex or cable in substantially the
form of Exhibit B hereto, executed by the Borrower and specifying therein
the requested date of such Borrowing (which shall be a Business Day),
initial Type of Advances comprising such Borrowing and the aggregate amount
of such Borrowing. Each Bank shall, before 11:00 A.M. (New York City time)
on the date of such Borrowing, make available for the account of its
Applicable Lending Office to the Administrative Agent at its New York
address referred to in Section 8.2, in same day funds, such Bank's ratable
portion of such Borrowing. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in
Article III, the Administrative Agent will make such funds available to the
Borrower at the Administrative Agent's aforesaid address.
(b) Anything herein to the contrary notwithstanding:
(i) at no time shall there be outstanding to the Borrower
more than ten Borrowings comprised of Eurodollar Rate Advances;
(ii) the Borrower may not select Eurodollar Rate Advances
for any Borrowing if the aggregate amount of such Borrowing is
less than $10,000,000;
(iii) if the Majority Banks shall notify the
Administrative 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
Administrative Agent shall forthwith so notify the Borrower 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
Administrative Agent, at the request of the Majority Banks, shall
notify the Borrower and the Banks that the circumstances causing
such suspension no longer exist, and, except as provided in
Section 2.2(b)(v), each Advance comprising any requested Borrowing
shall be a Base Rate Advance;
(iv) if the Administrative 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 Administrative Agent shall
notify the Borrower and the Banks that the circumstances causing
such suspension no longer exist, and, except as provided in
Section 2.2(b)(v), each Advance comprising any requested Borrowing
shall be a Base Rate Advance; and
(v) if the Borrower has requested a proposed Borrowing
consisting of Eurodollar Rate Advances and as a result of
circumstances referred to in Section 2.2(b)(iii) or (iv) such
Borrowing would not consist of Eurodollar Rate Advances, the
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 Borrowing would otherwise be made, cancel such Borrowing,
in which case such Borrowing shall be canceled and no Advances
shall be made as a result of such requested Borrowing, but the
Borrower shall indemnify the Banks in connection with such
cancellation as contemplated by Section 2.2(c).
(c) Each Notice of Borrowing shall be irrevocable and binding on
the Borrower, except as set forth in Section 2.2(b)(v). In the case of any
Borrowing which the related Notice of Borrowing specifies is to be
comprised of Eurodollar Rate Advances, the 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
Borrowing for such Borrowing the applicable conditions set forth in Article
III, including, without limitation, any loss (excluding loss of anticipated
profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Bank to fund the
Advance to be made by such Bank as part of such Borrowing when such
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 the Borrower and the Administrative
Agent by such Bank shall be prima facie evidence of the amount of such
loss, cost or expense. If a Borrowing which the related Notice of Borrowing
specifies is to be comprised of Eurodollar Rate Advances is not made as a
Borrowing comprised of Eurodollar Rate Advances as a result of Section
2.2(b), the Borrower shall indemnify each Bank against any loss (excluding
loss of profits), cost or expense incurred by such Bank by reason of the
liquidation or reemployment of deposits or other funds acquired by such
Bank prior to the time such Bank is actually aware that such Borrowing will
not be so made to fund the Advance to be made by such Bank as part of such
Borrowing. A certificate in reasonable detail as to the basis for and the
amount of such loss, cost or expense submitted to the Borrower and the
Administrative Agent by such Bank shall be prima facie evidence of the
amount of such loss, cost or expense.
(d) Unless the Administrative Agent shall have received notice
from a Bank prior to the date of any Borrowing that such Bank will not make
available to the Administrative Agent such Bank's ratable portion of such
Borrowing, the Administrative Agent may assume that such Bank has made such
portion available to the Administrative Agent on the date of such Borrowing
in accordance with subsection (a) of this Section 2.2 and the
Administrative Agent may, in reliance upon such assumption, make available
to the Borrower 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
Administrative Agent, such Bank and the Borrower severally agree to repay
to the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is
made available to the Borrower until the date such amount is repaid to the
Administrative Agent, at (i) in the case of the Borrower, the interest rate
applicable at the time to Advances comprising such Borrowing and (ii) in
the case of such Bank, the Federal Funds Rate. If such Bank shall repay to
the Administrative Agent such corresponding amount, such amount so repaid
shall constitute such Bank's Advance as part of such Borrowing for purposes
of this Agreement.
(e) The failure of any Bank to make the Advance to be made by it
as part of any Borrowing shall not relieve any other Bank of its
obligation, if any, hereunder to make its Advance on the date of such
Borrowing, but no Bank shall be responsible for the failure of any other
Bank to make the Advance to be made by such other Bank on the date of any
Borrowing.
Section 2.3 Fees.
(a) Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Bank a commitment fee on the
average daily unused portion of such Bank's Commitment to the Borrower from
the date hereof until the Termination Date at a rate per annum from time to
time equal to the Applicable Commitment Fee Rate from time to time, payable
in arrears on the last day of each March, June, September and December
during the term such Bank has any Commitment and on the Termination Date.
(b) Administrative Agent's Fees. The Borrower agrees to pay to the
Administrative Agent, for its sole account, such fees as may be separately
agreed to in writing by the Borrower and the Administrative Agent.
Section 2.4 Reduction of the Commitments.
(a) The Borrower shall have the right, upon at least five Business
Days notice to the Administrative Agent, to terminate in whole or reduce
ratably in part the unused portions of the respective Commitments of the
Banks; provided that each partial reduction shall be in the aggregate
amount of at least $10,000,000; and provided further, that the aggregate
amount of the Commitments of the Banks shall not be reduced to an amount
which is less than the aggregate principal amount of the Advances then
outstanding to the Borrower.
(b) On the first Business Day following the receipt by the
Borrower or any Subsidiary of the Borrower of Net Cash Proceeds from a
Securities Issuance after the Effective Date, the aggregate Commitments
shall be permanently reduced by an amount equal to such Net Cash Proceeds.
If the aggregate principal amount outstanding of Advances shall exceed the
aggregate Commitments after such reduction, the Borrower shall repay
Advances in the amount of such excess (i) in the case of Base Rate
Advances, no later than the first Business Day following the receipt by the
Borrower or any Subsidiary of the Borrower of Net Cash Proceeds from such
Securities Issuance and (ii) in the case of Eurodollar Rate Advances, on
the last day of the then existing Interest Period. Such mandatory
prepayments shall be allocated among Types of Advances and tranches of
Eurodollar Rate Advances to afford the earliest possible repayment pursuant
to the foregoing provisions.
Section 2.5 Repayment of Advances. The 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
Advance made by each Bank to the Borrower.
Section 2.6 Interest on Advances. The Borrower shall pay interest
on the unpaid principal amount of each Advance made by each Bank to the
Borrower from the date of such 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 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 Advance is a
Eurodollar Rate Advance, a rate per annum equal at all times during each
Interest Period for such Advance to the sum of the Eurodollar Rate for such
Interest Period plus the Applicable Margin in effect from time to time for
such Advance, payable on the last day of such Interest Period and, if such
Interest Period has a duration of more than three months, on each day which
occurs during such Interest Period every three months from the first day of
such Interest Period; provided that any amount of principal of any
Eurodollar Rate Advance which is not paid when due (whether at stated
maturity, by acceleration or otherwise) shall bear interest, from the date
on which such amount is due until such amount is paid in full, payable on
demand, at a rate per annum equal at all times to the sum of the rate per
annum required to be paid on such Advance at such time plus 2% per annum.
Section 2.7 Additional Interest on Eurodollar Rate Advances. The
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, 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 the Borrower through the Administrative Agent. A
certificate as to the amount of such additional interest submitted to the
Borrower and the Administrative 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 2.7 for
any period more than 90 days prior to the date such Bank notifies the
Borrower that additional interest may be charged pursuant to this Section
2.7.
Section 2.8 Interest Rate Determination. The Administrative Agent
shall give prompt notice to the Borrower and the Banks of the applicable
interest rate for each Eurodollar Rate Advance determined by the
Administrative Agent for purposes of Section 2.6(b).
Section 2.9 Evidence of Debt.
(a) Each Bank shall maintain in accordance with its usual practice
an account or accounts evidencing the Indebtedness of the Borrower to such
Bank resulting from each Advance made by such Bank, including the amounts
of principal and interest payable and paid to such Bank from time to time
hereunder.
(b) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Advance made hereunder, the Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Bank hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Banks and each
Bank's share thereof.
(c) The entries made in good faith in the accounts maintained
pursuant to paragraph (a) or (b) of this Section shall be prima facie
evidence of the existence and amounts of the obligations recorded therein
absent manifest error; provided that the failure of any Bank or the
Administrative Agent to maintain such accounts or any error therein shall
not in any manner affect the obligation of the Borrower to repay the
Advances in accordance with the terms of this Agreement.
(d) Any Bank may request that the Advances made by it be evidenced
by a Note. In such event, the Borrower shall prepare, execute and deliver
to such Bank a Note payable to the order of such Bank. Thereafter, the
Advances evidenced by such Note and interest thereon shall at all times
(including after assignment pursuant to Section 8.6) be represented by one
or more Notes payable to the order of the payee named therein.
Section 2.10 Prepayments.
(a) The Borrower shall not have any right to prepay any principal
amount of any Advance, except as provided in this Section 2.10.
(b) The Borrower shall (i) in respect of Base Rate Advances, upon
notice to the Administrative Agent before 10:00 A.M. (New York City time)
on the date of prepayment and (ii) in respect of Eurodollar Rate Advances,
upon at least three Business Days' notice to the Administrative Agent, in
each case stating the proposed date (which shall be a Business Day) and
aggregate principal amount of the prepayment, prepay the outstanding
principal amounts of the Advances comprising part of the same 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 8.4(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 (1) no Borrowing comprised of Base Rate Advances shall have
a principal amount outstanding of less than $5,000,000 and (2) no Borrowing
comprised of Eurodollar Rate Advances shall have a principal amount
outstanding of less than $10,000,000.
(c) The Borrower will give notice to the Administrative Agent, at
or before the time of each prepayment by the 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. 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.
(d) The Borrower shall be required to prepay Advances as set forth
in Article 2.4(b).
Section 2.11 Increased Costs.
(a) If, due to either (i) the introduction of or any change (other
than any change by way of imposition or increase of reserve requirements
included in the Eurodollar Rate Reserve Percentage) in or in the
interpretation, application or applicability of any law or regulation or
(ii) the compliance with any guideline or request from any central bank or
other governmental or monetary authority (whether or not having the force
of law), there shall be any increase in the cost to any Bank of agreeing to
make or making, funding or maintaining Eurodollar Rate Advances to the
Borrower, then the Borrower shall from time to time, upon demand by such
Bank (with a copy of such demand to the Administrative Agent), pay to the
Administrative 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 the Borrower and the
Administrative 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 Borrower 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 or monetary authority (whether or not having the force of law)
affects or would affect the amount of capital required or expected to be
maintained by such Bank or any corporation controlling such Bank and that
the amount of such capital is increased by or based upon the existence of
such Bank's commitment to lend to the Borrower hereunder and other
commitments of this type, then, upon demand by such Bank (with a copy of
such demand to the Administrative Agent), the Borrower shall immediately
pay to the Administrative 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 the
Borrower and the Administrative 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
Sections 2.7, Section 2.14 or this Section 2.11, the Borrower may within
ninety (90) 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 8.6(a) (including execution of an appropriate Transfer Agreement);
provided that (i) all obligations of such Bank to lend hereunder shall be
terminated and the Notes payable to such Bank and all other obligations
owed to such Bank hereunder shall be purchased in full without recourse at
par plus accrued interest at or prior to such replacement, (ii) such
replacement bank (unless such replacement bank is already a Bank prior to
such replacement) shall be reasonably satisfactory to the Administrative
Agent, (iii) such replacement bank shall, from and after such replacement,
be deemed for all purposes to be a "Bank" hereunder with a Commitment in
the amount of the Commitment of such Bank immediately prior to such
replacement (plus, if such replacement bank is already a Bank prior to such
replacement the respective Commitment of such Bank to the Borrower prior to
such replacement), as such amount may be changed from time to time pursuant
hereto, and shall have all of the rights, duties and obligations hereunder
of the Bank being replaced, and (iv) such other actions shall be taken by
the Borrower, such Bank and such replacement bank as may be appropriate to
effect the replacement of such Bank with such replacement bank on terms
such that such replacement bank has all of the rights, duties and
obligations hereunder as such Bank (including, without limitation,
execution and delivery of new Note(s) to such replacement bank if requested
by such replacement bank or if required pursuant to Section 2.9, redelivery
to the Borrower in due course of the Note(s) of the Borrower payable to
such Bank and specification of the information contemplated by Schedule I
as to such replacement bank).
(d) Before making any demand under this Section 2.11, each Bank
agrees to use reasonable efforts (consistent with its internal policy and
legal and regulatory restrictions) to designate a different Applicable
Lending Office if the making of such a designation would avoid the need
for, or reduce the amount of, such increased cost and would not, in the
reasonable judgment of such Bank, be otherwise disadvantageous to such
Bank.
Section 2.12 Illegality. Notwithstanding any other provision of
this Agreement, if any Bank shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or that any central bank or other
governmental or monetary authority shall assert that it is unlawful, for
any Bank or its Eurodollar Lending Office to perform its obligations
hereunder to make, or Convert a Base Rate Advance into, a Eurodollar Rate
Advance or to continue to fund or maintain any Eurodollar Rate Advance,
then, on notice thereof to the Borrower by the Administrative Agent, (i)
the obligation of each of the Banks to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the Administrative Agent,
at the request of the Majority Banks, shall notify the Borrower and the
Banks that the circumstances causing such suspension no longer exist, and
(ii) the Borrower 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 8.4(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 Administrative Agent, Convert
all Eurodollar Rate Advances of all Banks then outstanding into Base Rate
Advances in accordance with Section 2.19.
(a) If legally permissible, before delivering any notice to the
Administrative Agent under this Section 2.12 regarding illegality of
Eurodollar Rate Advances, each Bank agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions)
to designate a different Eurodollar Lending Office if the making of such a
designation would avoid the need for, or reduce the amount of, such
increased cost and would not, in the reasonable judgment of such Bank, be
otherwise disadvantageous to such Bank.
Section 2.13 Payments and Computations.
(a) The Borrower shall make each payment hereunder to be made by
it not later than 11:00 A.M. (New York City time) on the day when due in
U.S. dollars to the Administrative Agent at its New York address referred
to in Section 8.2 in same day funds, without deduction, counterclaim or
offset of any kind. The Administrative Agent will promptly thereafter cause
to be distributed like funds relating to the payment of principal, interest
or commitment fees ratably (other than amounts payable pursuant to Sections
2.2(c), 2.7, 2.11, 2.14, 2.16 or 8.4(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 Administrative Agent pursuant to
Section 2.3(b), any auction fee paid to the Administrative Agent pursuant
to Section 2.16(a)(i) or any other fee paid to the Administrative Agent, as
such.
(b) [Intentionally Blank]
(c) (i) All computations of interest based on clause (a) of the
definition herein of Base Rate and of commitment fees shall be made by the
Administrative Agent on the basis of a year of 365 or 366 days, as the case
may be, and (ii) all computations of interest based on the Eurodollar Rate,
the Federal Funds Rate or clause (b) of the definition herein of Base Rate
shall be made by the Administrative Agent, and all computations of interest
pursuant to Section 2.7 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
Administrative Agent (or, in the case of Section 2.7, by a Bank) of an
interest rate hereunder shall be conclusive and binding for all purposes,
absent manifest error.
(d) Whenever any payment hereunder shall be stated to be due on a
day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or 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 Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due by the
Borrower to any Bank hereunder that the Borrower will not make such payment
in full, the Administrative Agent may assume that the Borrower has made
such payment in full to the Administrative Agent on such date and the
Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date an amount equal to the amount
then due such Bank hereunder. If and to the extent the Borrower shall not
have so made such payment in full to the Administrative Agent, each Bank
shall repay to the Administrative 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 Administrative Agent, at the Federal Funds Rate.
Section 2.14 Taxes.
(a) Any and all payments by the Borrower hereunder or under any
Note 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 Administrative Agent, (i) taxes imposed on its income, and franchise
taxes imposed on it, by the jurisdiction under the laws of which such Bank
or the Administrative Agent (as the case may be) is organized or any
political subdivision thereof and (ii) taxes imposed as a result of a
present or former connection between such Bank or the Administrative Agent,
as the case may be, and the jurisdiction imposing such tax or any political
subdivision thereof and, in the case of each Bank, taxes imposed on its
income, and franchise taxes imposed on it, by the jurisdiction of such
Bank's Applicable Lending Office or any political subdivision thereof,
other than any such connection arising solely from the Bank or
Administrative Agent having executed or delivered, or performed its
obligations or received a payment under, or taken any other action related
to this Agreement (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter
referred to as "Taxes"). If the Borrower shall be required by law to deduct
any Taxes from or in respect of any sum payable hereunder or under any Note
to any Bank or the Administrative 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 Administrative Agent, as the case may be,
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges
or similar levies which arise from any payment made by the Borrower
hereunder or 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) The Borrower will indemnify each Bank and the Administrative
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
Administrative 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 Administrative Agent, as the case may be, makes written
demand therefor; provided that, the Borrower shall have no liability
pursuant to this clause (c) of this Section 2.14 to indemnify a Bank or the
Administrative Agent for Taxes or Other Taxes which were paid by such Bank
or the Administrative Agent more than ninety days prior to such written
demand for indemnification.
(d) In the event that a Bank or the Administrative Agent receives
a written communication from any governmental authority with respect to an
assessment or proposed assessment of any Taxes, such Bank or Administrative
Agent shall promptly notify the Borrower in writing and provide the
Borrower with a copy of such communication. The Administrative Agent or a
Bank's failure to provide a copy of such communication to the Borrower
shall not relieve the Borrower of any of its obligations under Section
2.14(c).
(e) Within 30 days after the date of the payment of Taxes by or at
the direction of the Borrower, the Borrower will furnish to the
Administrative Agent, at its address referred to in Section 8.2, the
original or a certified copy of a receipt evidencing payment thereof.
Should any Bank or the Administrative Agent ever receive any refund, credit
or deduction from any taxing authority to which such Bank or the
Administrative Agent would not be entitled but for the payment by the
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 Administrative Agent, as the case may be, in its reasonable
judgment), such Bank or the Administrative Agent, as the case may be,
thereupon shall repay to the Borrower an amount with respect to such
refund, credit or deduction equal to any net reduction in taxes actually
obtained by such Bank or the Administrative Agent, as the case may be, and
determined by such Bank or the Administrative Agent, as the case may be, to
be attributable to such refund, credit or deduction.
(f) Each Bank organized under the laws of a jurisdiction outside
the United States shall on or prior to the date of its execution and
delivery of this Agreement in the case of each Bank which is a party to
this Agreement on the date this Agreement becomes effective and on the date
of the Transfer Agreement pursuant to which it becomes a Bank is first
effective in the case of each other Bank, and from time to time thereafter
as necessary or appropriate (but only so long thereafter as such Bank
remains lawfully able to do so), provide each of the Administrative Agent
and the Borrower with two original Internal Revenue Service Forms W-8BEN or
W-8ECI (or, in the case of a Bank that has provided a certificate to the
Administrative Agent that it is not (i) a "bank" as defined in Section
881(c)(3)(A) of the Internal Revenue Code, (ii) a ten-percent shareholder
(within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code)
of the Borrower or (iii) a controlled foreign corporation related to the
Borrower (within the meaning of Section 864(d)(4) of the Internal Revenue
Code), Internal Revenue Service Form W-8BEN), or any successor or other
form prescribed by the Internal Revenue Service, certifying that such Bank
is exempt from or entitled to a reduced rate of United States withholding
tax on payments pursuant to this Agreement or any other Loan Document or,
in the case of a Bank that has certified that it is not a "bank" as
described above, certifying that such Bank is a foreign corporation. If the
forms provided by a Bank at the time such Bank first becomes a party to
this Agreement indicate a United States interest withholding tax rate in
excess of zero, withholding tax at such rate shall be considered excluded
from Taxes unless and until such Bank provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding tax at such
lesser rate only shall be considered excluded from Taxes for periods
governed by such forms.
(g) For any period with respect to which a Bank has failed to
provide the Borrower with the appropriate form, certificate or other
document described in subsection(f) of this Section 2.14 (other than if
such failure is due to a change in the applicable law, or in the
interpretation or application thereof, occurring after the date on which a
form, certificate or other document originally was required to be provided)
such Bank shall not be entitled to indemnification under subsection (a) or
(c) of this Section 2.14 with respect to Taxes imposed by the United States
by reason of such failure; provided, however, that should a Bank become
subject to Taxes because of its failure to deliver a form, certificate or
other document required hereunder, the Borrower shall take such steps as
such Bank shall reasonably request to assist such Bank in recovering such
Taxes.
(h) Any Bank claiming any additional amounts payable pursuant to
this Section 2.14 agrees to use reasonable efforts to change the
jurisdiction of its Applicable Lending Office if the making of such a
change would avoid the need for, or reduce the amount of, any such
additional amounts that may thereafter accrue and would not, in the
reasonable judgment of such Bank, be otherwise materially disadvantageous
to such Bank.
(i) Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 2.14 shall survive the payment in full of
principal and interest hereunder and the termination of the Commitments.
(j) Notwithstanding any provision of this Agreement or the Notes,
if any, to the contrary, this Section 2.14 shall be the sole provision
governing indemnities and claims for taxes under this Agreement and the
Notes, if any.
Section 2.15 Sharing of Payments, Etc. If any Bank shall obtain
any payment (whether voluntary or involuntary, or through the exercise of
any right of set-off or otherwise) on account of the Advances made by it
(other than pursuant to Sections 2.2(c), 2.7, 2.11, 2.14 or 8.4(b)) in
excess of its ratable share of payments on account of the Advances obtained
by all the Banks, such Bank shall forthwith purchase from the other Banks
such participations in the 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. The 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 the Borrower in the amount of such participation.
Section 2.16 [Intentionally Blank].
Section 2.17 Optional Termination. Notwithstanding anything to the
contrary in this Agreement, if (i) any Person (other than a trustee or
other fiduciary holding securities under an employee benefit plan of the
Borrower or of any Subsidiary of the Borrower) or two or more Persons
acting in concert (other than any group of employees of the Borrower or of
any of its Subsidiaries) shall have acquired beneficial ownership (within
the meaning of Rule l3d-3 of the Securities and Exchange Commission under
the Securities Exchange Act of 1934), directly or indirectly, of securities
of the Borrower (or other securities convertible into such securities)
representing 35% or more of the combined voting power of all securities of
the Borrower entitled to vote in the election of directors, other than
securities having such power only by reason of the happening of a
contingency, or (ii) during any period of up to 24 consecutive months,
commencing before or after the date of this Agreement, individuals who at
the beginning of such 24-month period were directors of the Borrower or who
were elected by individuals who at the beginning of such period were such
directors or by individuals elected in accordance with this clause (ii)
shall cease for any reason (other than as a result of death, incapacity or
normal retirement) to constitute a majority of the board of directors of
the Borrower, or (iii) any Person (other than the Borrower or a
Wholly-Owned Subsidiary of the Borrower) or two or more Persons acting in
concert shall have acquired by contract or otherwise, or shall have entered
into a merger or purchase agreement with the Borrower pursuant to which
such Person or Persons shall have acquired the power to exercise, directly
or indirectly, a controlling influence over the management or policies of
the Borrower; then the Administrative Agent (i) shall at the request, or
may with the consent, of the Majority Banks, by notice of the Borrower,
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 the Borrower shall not have any
further right to borrow hereunder and (ii) shall at the request, or may
with the consent, of the Majority Banks declare the principal of the
Advances, all interest thereon and all other amounts payable by the
Borrower under this Agreement to be forthwith due and payable, whereupon
such principal of the Advances, such interest and all such amounts shall
become and be forthwith due and payable, without requirement of any
presentment, demand, protest, notice of intent to accelerate, further
notice of acceleration or other further notice of any kind (other than the
notice expressly provided for above), all of which are hereby expressly
waived by the Borrower.
Section 2.18 [Intentionally Blank].
Section 2.19 Voluntary Conversion of Advances. The Borrower may on
any Business Day, if no Event of Default then exists, upon notice (which
shall be irrevocable) given to the Administrative 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 2.2 and 2.12, Convert all Advances of one Type
comprising the same Borrowing into Advances of the other Type; provided
that (i) no Conversion of any Eurodollar Rate Advances shall occur on a day
other than the last day of an Interest Period for such Eurodollar Rate
Advances, except as contemplated by Section 2.12, and (ii) Advances may not
be Converted into Eurodollar Rate Advances if the aggregate unpaid
principal amount of the Advances is less than $10,000,000. Each such notice
of a Conversion shall, within the restrictions specified above, specify (i)
the date of such Conversion, (ii) the 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 no Event of Default shall exist, the Administrative Agent
will forthwith so notify the Borrower and the Banks, and such Advances will
automatically, on the last day of the then existing Interest Period
therefor, continue as Eurodollar Rate Advances with an Interest Period of
one month. If any Event of Default shall exist, such Advances shall convert
into Base Rate Advances on the last day of the then existing Interest
Period.
(b) On the date on which the aggregate unpaid principal amount of
the Eurodollar Rate Advances of the Borrower shall be reduced to less than
$10,000,000, all of such Eurodollar Rate Advances shall automatically
Convert into Base Rate Advances.
ARTICLE III
CONDITIONS
Section 3.1 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 Administrative Agent
shall have received on or before the date of such Advance, each dated on or
before such date, in form and substance satisfactory to the Administrative
Agent and (except for the Notes, if any) in sufficient copies for each
Bank:
(a) The Notes executed by the Borrower to the order of each of the
respective Banks which has requested a Note prior to the date hereof and
this Agreement executed by the Borrower.
(b) Certified copies of the resolutions of the Board of Directors,
or the Executive Committee thereof, of the Borrower authorizing the
execution of this Agreement and the Notes, to the extent such Notes may be
requested by the Banks.
(c) A certificate of the Secretary or an Assistant Secretary of
the Borrower certifying (i) that attached thereto are true and correct
copies of the Certificate of Incorporation and Bylaws of the Borrower,
together with any amendments thereto, and (ii) the names and true
signatures of the officers of the Borrower authorized to sign this
Agreement, Notices of Borrowing and any Notes to be executed by the
Borrower and any other documents to be delivered hereunder by the Borrower.
(d) An opinion of William G. von Glahn, General Counsel of the
Borrower, substantially in the form of Exhibit C hereto and as to such
other matters as any Bank through the Administrative Agent may reasonably
request.
(e) [Intentionally blank]
(f) The financial statements described in Section 4.1(e) hereof.
(g) A certificate from an Authorized Officer of the Borrower,
dated as of the Effective Date, certifying that attached thereto is a true
and correct copy of the Offer and the Additional Offer Documents and
certifying that:
(i) On and as of the Effective Date, and except as
otherwise previously disclosed pursuant to the provisions hereof,
there does not exist any judgment, order, injunction or other
restraint issued or filed with respect to the making of Advances
or which could reasonably be expected to impair materially the
right or ability of Borrower to effect the Acquisition
substantially in accordance with the terms and conditions of the
Offer and to comply with the requirements of Section 5.1(e)
hereof;
(ii) The Offer, at the time of the mailing thereof to the
shareholders of Target, and any documents, at the time of mailing
thereof, mailed to Target shareholders in relation to any
Acquisition Agreement did not contain any untrue statement of a
material fact or omit to state any material fact necessary in
order to make the statements therein contained, in light of the
circumstances under which made, not misleading;
(iii) The Borrower has received all governmental and
third party approvals necessary in connection with the Acquisition
and the financing contemplated by this Agreement and such
approvals are in full force and effect; and
(iv) Shares of stock issued by the Target which have been
tendered pursuant to the Offer and have not been withdrawn, when
aggregated with shares owned by the Borrower, constitute more than
50% of the shares of the Target.
(h) A certificate of an officer of the Borrower stating the
respective ratings by each of S&P and Moody's of the senior unsecured
long-term debt of the Borrower as in effect on the date of this Agreement.
(i) The Administrative Agent, the Syndication Agent, the
Documentation Agent, the Arranger and the Banks shall have received all
fees and other amounts due and payable pursuant to any letter agreement in
regard to fees, this Agreement or any other Loan Document, including, to
the extent invoiced, reimbursement or payment of expenses (including
reasonable fees, charges and disbursements of counsel) required to be
reimbursed or paid by the Borrower hereunder.
Section 3.2 Additional Condition Precedent to Borrowing. (a) The
obligation of each Bank to make any Advance the proceeds of which shall be
used for purposes described in Section 5.2(k)(ii) shall be subject to the
further conditions precedent that:
(i) the Acquisition shall have been consummated and the
conditions set forth in Section 5.1(e) satisfied; and
(ii) the Administrative Agent shall have received
evidence satisfactory to it of the payment in full of the
principal, accrued interest and fees and all other obligations
owed by the Target pursuant to the Target's Revolving Credit
Facility, which payments may be made with the proceeds of such
Borrowing.
(b) The obligation of each Bank to make any Advance to the
Borrower the proceeds of which shall be used for purposes described in
Section 5.2(k)(iii) shall be subject to the further conditions precedent
that on the date of such Borrowing
(i) the Administrative Agent shall have received, dated
as of the date of such Borrowing, certified copies of all
necessary approvals and authorizations (if any) relating to the
refinancing of the 7.55% Notes; and
(ii) the Administrative Agent shall have received
evidence satisfactory to it of the payment in full (or the
establishment of reserves sufficient to defease the payment in
full) of the principal, accrued interest and fees and all other
obligations owed by the Target pursuant to the 7.55% Notes, which
payments may be made with the proceeds of such Borrowing.
Section 3.3 Additional Conditions Precedent to Each Borrowing. The
obligation of each Bank to make an Advance on the occasion of any Borrowing
(including the initial Borrowing) shall be subject to the further
conditions precedent that on the date of such Borrowing the following
statements shall be true (and each of the giving of the applicable Notice
of Borrowing and the acceptance by the Borrower of the proceeds of such
Borrowing shall constitute a representation and warranty by the Borrower
that on the date of such Borrowing such statements are true):
(a) The representations and warranties contained in
Section 4.1 pertaining to the Borrower and its Subsidiaries are
correct on and as of the date of such Borrowing, before and after
giving effect to such Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date,
(b) No event has occurred and is continuing, or would
result from such Borrowing or from the application of the proceeds
therefrom, which constitutes an Event of Default or which would
constitute an Event of Default but for the requirement that notice
be given or time elapse or both, and
(c) After giving effect to such 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.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) The Borrower is duly organized or validly formed, validly
existing and (if applicable) in good standing under the laws of the State
of Delaware and has all corporate or limited liability company powers and
all governmental licenses, authorizations, certificates, consents and
approvals required to carry on its business as now conducted in all
material respects, except for those licenses, authorizations, certificates,
consents and approvals the failure to have which could not reasonably be
expected to have a material adverse effect on the business, assets,
condition or operation of the Borrower and its Subsidiaries taken as a
whole. Each material Subsidiary of the Borrower is duly organized or
validly formed, validly existing and (if applicable) in good standing under
the laws of its jurisdiction of incorporation or formation, except where
the failure to be so organized, existing and in good standing could not
reasonably be expected to have a material adverse effect on the business,
assets, condition or operations of the Borrower and its Subsidiaries taken
as a whole. Each material Subsidiary of the Borrower has all corporate or
limited liability company powers and all governmental licenses,
authorizations, certificates, consents and approvals required to carry on
its business as now conducted in all material respects, except for those
licenses, authorizations, certificates, consents and approvals the failure
to have which could not reasonably be expected to have a material adverse
effect on the business, assets, condition or operation of the Borrower and
its Subsidiaries taken as a whole.
To the best of Borrower's knowledge, the Target is 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
authorizations, certificates, consents and approvals the failure to have
which could not reasonably be expected to have a material adverse effect on
the business, assets, condition or operation of the Target and its
Subsidiaries, taken as a whole. Each material Subsidiary of the Target is
duly organized or validly formed, validly existing and (if applicable) in
good standing under the laws of its jurisdiction of incorporation or
formation, except where the failure to be so organized, existing and in
good standing could not reasonably be expected to have a material adverse
effect on the business, assets, condition or operations of the Target and
its Subsidiaries taken as a whole. Each material Subsidiary of the Target
has all corporate or limited liability company powers and all governmental
licenses, authorizations, certificates, consents and approvals required to
carry on its business as now conducted in all material respects, except for
those licenses, authorizations, certificates, consents and approvals the
failure to have which could not reasonably be expected to have a material
adverse effect on the business, assets, condition or operation of the
Target and its Subsidiaries taken as a whole.
(b) The execution, delivery and performance by the Borrower of
this Agreement and the Notes, if any, delivered hereunder and the
consummation of the transactions contemplated by this Agreement, including
the Acquisition, are within the Borrower's corporate powers, have been duly
authorized by all necessary corporate action, do not contravene (i) the
Borrower's charter or by-laws or (ii) any law or contractual restriction
binding on or affecting the 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 the Borrower of
this Agreement or the Notes, if any, or the consummation of the
transactions, including the Acquisition, contemplated by this Agreement,
except those previously disclosed pursuant to Section 3.1(g)(iii).
(d) This Agreement has been duly executed and delivered by the
Borrower. This Agreement is the legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with its terms,
except as such enforceability may be limited by any applicable bankruptcy,
insolvency, reorganization, moratorium or similar law affecting creditors'
rights generally and by general principles of equity. The Notes, if any,
are, or when executed will be, the legal, valid and binding obligations of
the Borrower enforceable against the 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 balance sheets of the Borrower and its
Subsidiaries as at December 31, 2000, and the related Consolidated
statements of income and cash flows of the Borrower and its Subsidiaries
for the fiscal year then ended, copies of which have been furnished to each
Bank, and the Consolidated balance sheet of the Borrower and its
Subsidiaries as at March 31, 2001, and the related Consolidated statements
of income and cash flows of the Borrower and its Subsidiaries for the three
months then ended, duly certified by an authorized financial officer of the
Borrower, copies of which have been furnished to each Bank, fairly present,
(in the case of such balance sheets as at March 31, 2001, and such
statements of income and cash flows for the three months then ended,
subject to year-end audit adjustments) the Consolidated financial condition
of the Borrower and its Subsidiaries as at such dates and the Consolidated
results of operations of the Borrower and its Subsidiaries for the year and
three month period, respectively, ended on such dates, all in accordance
with generally accepted accounting principles consistently applied. Since
December 31, 2000, there has been no material adverse change in the
condition or operations of the Borrower or its Subsidiaries. The Borrower
has also provided to the Banks and the Administrative Agent copies of all
material financial statements (including pro forma financial statements)
reports, notices and proxy statements sent by the Borrower to its
stockholders and the stockholders of the Target and all Securities and
Exchange commission filings concerning the Offer.
(ii) To the best knowledge of the Borrower, the
Consolidated balance sheets of the Target and its Subsidiaries as
at December 31, 2000, and the related Consolidated statements of
income and cash flows of the Target and its Subsidiaries for the
fiscal year then ended, copies of which have been furnished to
each Bank, and the Consolidated balance sheet of the Target and
its Subsidiaries as at March 31, 2001, and the related
Consolidated statements of income and cash flows of the Target and
its Subsidiaries for the three months then ended, copies of which
have been furnished to each Bank, fairly present, (in the case of
such balance sheets as at March 31, 2001, and such statements of
income and cash flows for the three months then ended, subject to
year-end audit adjustments) the Consolidated financial condition
of the Target and its Subsidiaries as at such dates and the
Consolidated results of operations of the Target and its
Subsidiaries for the year and three month period, respectively,
ended on such dates, all in accordance with generally accepted
accounting principles consistently applied, and since December 31,
2000, there has been no material adverse change in the condition
or operations of the Target or its Subsidiaries. The Borrower has
also provided to the Banks and the Administrative Agent copies of
all material financial statements (including pro forma financial
statements) reports, notices and proxy statements sent by the
Target to its stockholders and Securities and Exchange Commission
filings concerning the Offer.
(iii) Borrower has heretofore furnished to the Banks and
the Administrative Agent the pro forma balance sheet of Borrower
and its Subsidiaries after giving effect to the Acquisition. Such
pro forma balance sheet presents fairly, in all material respects,
the estimated financial position of Borrower and its Subsidiaries
on a pro form basis as of the Consummation Date and the projected
results of operations for such period in accordance with GAAP
consistently applied.
(f) (i) Except as set forth in the Public Filings or as otherwise
disclosed in writing by the Borrower to the Banks and the Administrative
Agent after the date hereof and approved by the Majority Banks, there is no
pending or, to the knowledge of the Borrower, threatened action or
proceeding affecting the Borrower or any material Subsidiary of the
Borrower before any court, governmental agency or arbitrator, which could
reasonably be expected to materially and adversely affect the financial
condition or operations of the Borrower and its Subsidiaries taken as a
whole.
(ii) To the best knowledge of the Borrower, as of the
Effective Date, there is no pending or threatened action or
proceeding affecting the Target or any material Subsidiary of the
Target before any court, governmental agency or arbitrator, which
could reasonably be expected to materially and adversely affect
the financial condition or operations of the Target and its
Subsidiaries taken as a whole.
(g) No proceeds of any Advance has been or will be used for any
purpose or in any manner not permitted by Section 5.2(k).
(h) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the 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 5.2(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 the Borrower subject to the provisions of Section 5.2(a) (the
"Affected Assets") will be represented by such margin stock and not more
than 25% of the value of the Affected Assets of the Borrower and its
Subsidiaries will be represented by such margin stock.
(i) The Borrower is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(j) No Termination Event has occurred or is reasonably expected to
occur with respect to any Plan that could reasonably be expected to have a
material adverse effect on the Borrower or any material Subsidiary of the
Borrower. Neither the Borrower nor any ERISA Affiliate has received any
notification that any Multiemployer Plan is in reorganization or has been
terminated, within the meaning of Title IV of ERISA, and the Borrower is
not aware of any reason to expect that any Multiemployer Plan is to be in
reorganization or to be terminated within the meaning of Title IV of ERISA
that would have any material adverse effect on the Borrower, any material
Subsidiary of the Borrower or any ERISA Affiliate of the Borrower.
(k) As of the date of this Agreement, the United States federal
income tax returns of the Borrower and its material Subsidiaries have been
examined through the fiscal year ended December 31, 1993. The Borrower and
its Subsidiaries have filed all United States Federal income tax returns
and all other material domestic tax returns which are required to be filed
by them and have paid, or provided for the payment before the same become
delinquent of, all taxes due pursuant to such returns or pursuant to any
assessment received by the Borrower or any such Subsidiary, other than
those taxes contested in good faith by appropriate proceedings. The
charges, accruals and reserves on the books of the Borrower and the
material Subsidiaries of the Borrower in respect of taxes are adequate.
(l) The Borrower is not a "holding company," or a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding company"
or of a "subsidiary company" of a "holding company," or a "public utility"
within the meaning of the Public Utility Holding Company Act of 1935, as
amended.
(m) Except as set forth in the Public Filings or as otherwise
disclosed in writing by the Borrower to the Banks and the Administrative
Agent after the date hereof and approved by the Majority Banks, the
Borrower and its material Subsidiaries are in compliance in all material
respects with all Environmental Protection Statutes to the extent material
to their respective operations or financial condition. Except as set forth
in the Public Filings or as otherwise disclosed in writing by the Borrower
to the Banks and the Administrative Agent after the date hereof and
approved by the Majority Banks, the aggregate contingent and non-contingent
liabilities of the Borrower and its Subsidiaries (other than those reserved
for in accordance with generally accepted accounting principles and set
forth in the financial statements regarding the Borrower referred to in
Section 4.1(e) and delivered to each Bank and excluding liabilities to the
extent covered by insurance if the insurer has confirmed that such
insurance covers such liabilities or which the Borrower reasonably expects
to recover from ratepayers) which are reasonably expected to arise in
connection with (i) the requirements of Environmental Protection Statutes
or (ii) any obligation or liability to any Person in connection with any
Environmental matters (including, without limitation, any release or
threatened release (as such terms are defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980) of any
Hazardous Waste, Hazardous Substance, other waste, petroleum or petroleum
products into the Environment) could not reasonably be expected to have a
material adverse effect on the business, assets, conditions or operations
of the Borrower and its Subsidiaries, taken as a whole.
(n) To the best of Borrower's knowledge, after due inquiry, except
as disclosed on Schedule VI, the Target and its material Subsidiaries are
in compliance in all material respects with all Environmental Protection
Statutes to the extent material to their respective operations or financial
condition. To the best of Borrower's knowledge, except as disclosed on
Schedule VI, the aggregate contingent and non-contingent liabilities of the
Target and its Subsidiaries (other than those reserved for in accordance
with generally accepted accounting principles and set forth in the
financial statements regarding the Target referred to in Section 4.1(e) and
delivered to each Bank and excluding liabilities to the extent covered by
insurance if the insurer has confirmed that such insurance covers such
liabilities or which the Target reasonably expects to recover from
ratepayers) which are reasonably expected to arise in connection with (i)
the requirements of Environmental Protection Statutes or (ii) any
obligation or liability to any Person in connection with any Environmental
matters (including, without limitation, any release or threatened release
(as such terms are defined in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980) of any Hazardous Waste, Hazardous
Substance, other waste, petroleum or petroleum products into the
Environment) could not reasonably be expected to have a material adverse
effect on the business, assets, conditions or operations of the Target and
its Subsidiaries, taken as a whole.
ARTICLE V
COVENANTS OF THE BORROWER
Section 5.1 Affirmative Covenants. So long as any Note shall
remain unpaid, any Advance shall remain outstanding or any Bank shall have
any Commitment hereunder, the Borrower will, unless the Majority Banks
shall otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects with all applicable laws,
rules, regulations and orders (except where failure to comply could not
reasonably be expected to have a material adverse effect on the business,
assets, condition or operations of the Borrower and its Subsidiaries taken
as a whole), such compliance to include, 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 neither
the Borrower nor any Subsidiary of the Borrower shall be required to pay
any such tax, assessment, charge, levy or claim which is being contested in
good faith and by proper proceedings and with respect to which reserves in
conformity with generally accepted accounting principles, if required by
such principles, have been provided on the books of the Borrower or such
Subsidiary, as the case may be.
(b) Reporting Requirements. Furnish to each of the Banks:
(i) as soon as possible and in any event within five days
after the occurrence of each 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 the
Borrower setting forth the details of such Event of Default or
event and the actions, if any, which the Borrower has taken and
proposes to take with respect thereto;
(ii) as soon as available and in any event not later than
60 days after the end of each of the first three quarters of each
fiscal year of the Borrower, the Consolidated balance sheets of
the Borrower and its Subsidiaries as of the end of such quarter
and the Consolidated statements of income and cash flows of the
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 the Borrower as
having been prepared in accordance with generally accepted
accounting principles; provided that, if any financial statement
referred to in this clause (ii) of Section 5.1(b) is readily
available on-line through EDGAR, the Borrower shall not be
obligated to furnish copies of such financial statement. An
authorized financial officer of the Borrower shall furnish a
certificate (a) stating that he has no knowledge that an Event of
Default, or an event which, with notice or lapse of time or both,
would constitute an Event of Default has occurred and is
continuing or, if an Event of Default or such an event has
occurred and is continuing, a statement as to the nature thereof
and the action, if any, which the Borrower proposes to take with
respect thereto, and (b) showing in detail the calculation
supporting such statement in respect of Section 5.2(b).
(iii) as soon as available and in any event not later
than 105 days after the end of each fiscal year of the Borrower, a
copy of the annual audit report for such year for the Borrower and
its Subsidiaries, including therein Consolidated balance sheets of
the Borrower and its Subsidiaries as of the end of such fiscal
year and Consolidated statements of income and cash flows of the
Borrower and its Subsidiaries for such fiscal year, in each case
prepared in accordance with generally accepted accounting
principles and certified by Ernst & Young, LLP or other
independent certified public accountants of recognized standing
acceptable to the Majority Banks; provided that if any financial
statement referred to in this clause (iii) of Section 5.1(b) is
readily available on-line through EDGAR, such Borrower shall not
be obligated to furnish copies of such financial statement. The
Borrower shall also deliver in conjunction with such financial
statements, a certificate of such accounting firm to the Banks (a)
stating that, in the course of the regular audit of the business
of the 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 5.2(b);
(iv) such other information respecting the business or
properties, or the condition or operations, financial or
otherwise, of the Borrower or any of its material Subsidiaries as
any Bank through the Administrative 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 the
Borrower sends to any of its security holders, and copies of all
final reports and final registration statements which the Borrower
or any material Subsidiary of the Borrower files with the
Securities and Exchange Commission or any national securities
exchange; provided that, if such proxy materials and reports,
registration statements and other information are readily
available on-line through EDGAR, the Borrower or material
Subsidiary shall not be obligated to furnish copies thereof;
(vi) as soon as possible and in any event within 30
Business Days after the Borrower or any ERISA Affiliate knows or
has reason to know (A) that any Termination Event described in
clause (i) of the definition of Termination Event with respect to
any Plan has occurred that could have a material adverse effect on
the Borrower or any material Subsidiary of the Borrower or any
ERISA Affiliate or (B) that any other Termination Event with
respect to any Plan has occurred or is reasonably expected to
occur that could have a material adverse effect on the Borrower or
any material Subsidiary of the Borrower or any ERISA Affiliate, a
statement of the chief financial officer or chief accounting
officer of the Borrower describing such Termination Event and the
action, if any, which the Borrower or such Subsidiary or ERISA
Affiliate proposes to take with respect thereto;
(vii) promptly and in any event within 25 Business Days
after receipt thereof by the Borrower or any ERISA Affiliate,
copies of each notice received by the Borrower or any ERISA
Affiliate from the PBGC stating its intention to terminate any
Plan or to have a trustee appointed to administer any Plan;
(viii) within 30 days following request therefor by any
Bank, copies of each Schedule B (Actuarial Information) to each
annual report (Form 5500 Series) of the Borrower or any ERISA
Affiliate with respect to each Plan;
(ix) promptly and in any event within 25 Business Days
after receipt thereof by the Borrower or any ERISA Affiliate from
the sponsor of a Multiemployer Plan, a copy of each notice
received by the Borrower or any ERISA Affiliate concerning (A) the
imposition of a Withdrawal Liability by a Multiemployer Plan, (B)
the determination that a Multiemployer Plan is, or is expected to
be, in reorganization within the meaning of Title IV of ERISA, (C)
the termination of a Multiemployer Plan within the meaning of
Title IV of ERISA, or (D) the amount of liability incurred, or
expected to be incurred, by the Borrower or any ERISA Affiliate in
connection with any event described in clause (A), (B) or (C)
above that, in each case, could have a material adverse effect on
the Borrower or any ERISA Affiliate;
(x) not more than 60 days (or 105 days in the case of the
last fiscal quarter of a fiscal year of the Borrower) after the
end of each fiscal quarter of the Borrower, a certificate of an
authorized financial officer of the Borrower stating the
respective ratings, if any, by each of S&P and Moody's of the
senior unsecured long-term debt of the Borrower as of the last day
of such quarter;
(xi) promptly after any withdrawal or termination of any
letter of credit, guaranty, insurance or other credit enhancement
referred to in the second to last sentence of Section 1.5 or any
change in the indicated rating set forth therein or any change in,
or issuance, withdrawal or termination of, the rating of any
senior unsecured long-term debt of the Borrower by S&P or Moody's,
notice thereof; and
(xii) not more than 10 Business Days after the Effective
Date, a certificate of an Authorized Officer of the Borrower that
the Target is 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 authorizations, certificates, consents and approvals the
failure to have which could not reasonably be expected to have a
material adverse effect on the business, assets, condition or
operation of the Target and its Subsidiaries, taken as a whole.
(c) Maintenance of Insurance. Maintain, and cause each of its
material Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such risks
as is usually carried by companies engaged in similar businesses and owning
similar properties in the same general areas in which the Borrower or its
Subsidiaries operate, provided that the Borrower or any of its Subsidiaries
may self-insure to the extent and in the manner normal for companies of
like size, type and financial condition.
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain, its
corporate existence, rights, franchises and privileges in the jurisdiction
of its incorporation, and qualify and remain qualified, and cause each
Subsidiary to qualify and remain qualified, as a foreign corporation in
each jurisdiction in which qualification is necessary or desirable in view
of its business and operations or the ownership of its properties, except
(i) in the case of any Subsidiary of the Borrower, where the failure of
such Subsidiary to so preserve, maintain, qualify and remain qualified
could not reasonably be expected to have a material adverse effect on the
business, assets, condition or operations of the Borrower and its
Subsidiaries taken as a whole; (ii) in the case of the Borrower, where the
failure of the Borrower to preserve and maintain such rights, franchises
and privileges and to so qualify and remain qualified could not reasonably
be expected to have a material adverse effect on the business, assets,
condition or operations of the Borrower and its Subsidiaries taken as a
whole, (iii) the Borrower and its Subsidiaries may consummate any merger or
consolidation permitted pursuant to Section 5.2(c), and (iv) the Borrower
and any of its Subsidiaries may be converted into a limited liability
company by statutory election; provided that any such conversion of the
Borrower shall not affect its liabilities and obligations to the Banks
pursuant to this Agreement.
(e) Acquisition of Target.
(i) On the Consummation Date, Borrower shall deliver to
the Administrative Agent a certificate from an Authorized Officer
of Borrower certifying that attached thereto is a true and correct
copy of the Offer and the Additional Offer Documents as of the
Consummation Date and certifying that:
(A) On and as of the Consummation Date, Borrower has
directly or indirectly taken up and paid for, substantially
in accordance with the terms and conditions of the Offer and
in compliance with all Governmental Requirements, shares of
the Target which, constitute the Required Shares;
(B) As of the Consummation Date, the Offer and any
documents mailed to Target shareholders in relation to the
Offer or any Acquisition Agreement did not contain any untrue
statement of a material fact or omit to state any material
fact necessary in order to make the statements therein
contained, in light of the circumstances under which made,
not misleading;
(C) All conditions precedent described in the Offer
have been fulfilled in all material respects in accordance
with the terms and provisions thereof; and
(D) On and as of the Consummation Date, all of the
shares of Target taken up and paid for by Borrower under the
Offer will be capable of being voted by Borrower.
(ii) The Borrower shall deliver to the Administrative
Agent a certificate from an Authorized Officer of the Borrower
dated as of the Consummation Date, certifying that (A) when
aggregated with the shares of common stock currently owned by
Borrower, more than 50% of the shares of the Target have been
tendered pursuant to the Offer (or are otherwise owned) and (B) if
available, attached thereto is a true and correct copy of the
correspondence from the depository institution under the Offer
addressed to Borrower or one of its material U.S. Subsidiaries
confirming that, when aggregated with the shares of common stock
currently owned by Borrower, more than 50% of the shares of the
Target have been tendered pursuant to the Offer (or are otherwise
owned).
(iii) After the occurrence of the Consummation Date, the
Borrower shall cause the Target to undertake and complete in
accordance with all Governmental Requirements all necessary
actions, and make and obtain all necessary filings and
governmental approvals and other approvals and consents necessary
to complete (whether pursuant to or as a result of a merger or
otherwise), on or before the date which is 120 days after the
Consummation Date the acquisition of all shares of the Target not
previously acquired pursuant to the Offer (or otherwise), if any.
Section 5.2 Negative Covenants. So long as any Note shall remain
unpaid, any Advance shall remain outstanding or any Bank shall have any
Commitment hereunder, the Borrower will not, without the written consent of
the Majority Banks:
(a) Liens, Etc. Create, assume, incur or suffer to exist, or
permit any of its Subsidiaries to create, assume, incur or suffer to exist,
any Lien on or in respect of any of its property, whether now owned or
hereafter acquired, or assign or otherwise convey, or permit any such
Subsidiary to assign or otherwise convey, any right to receive income, in
each case to secure or provide for the payment of any Debt of any Person,
except, that the Borrower may create, incur, assume or suffer to exist
Permitted Liens.
(b) Debt. Permit the ratio of (A) the aggregate amount of Net Debt
of the Borrower to (B) the sum of the Consolidated Net Worth of the
Borrower plus Net Debt of the Borrower to exceed 0.65 to 1.0 at any time.
(c) Merger and Sale of Assets. Merge or consolidate with or into
any other Person, or sell, lease or otherwise transfer all or substantially
all of its assets, or permit any of its material Subsidiaries to merge or
consolidate with or into any other Person, or sell, lease or otherwise
transfer all or substantially all of its assets, except that this Section
5.2(c) shall not prohibit:
(i) the Borrower and its Subsidiaries from selling,
leasing or otherwise transferring their respective assets in the
ordinary course of business;
(ii) any merger, consolidation or sale, lease or other
transfer of assets involving only the Borrower and its
Subsidiaries; provided, however, that transactions under this
paragraph (ii) shall be permitted if, and 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 the Borrower or any of its
Subsidiaries, such transaction could not reasonably be expected to
impair materially the ability of the Borrower to perform its
obligations hereunder and under any Notes issued pursuant hereto
and the Borrower shall continue to exist;
(iii) the 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 the Borrower or
any Subsidiary of the Borrower for consideration that is not
materially less than the net book value of such assets and
facilities; provided, however, that transactions under this
paragraph (iii) shall be permitted if, and only if, there shall
not exist or such transaction shall not result in an Event of
Default or an event which with notice or lapse of time or both
would constitute an Event of Default;
(iv) sales of receivables of any kind; or
(v) any merger, consolidation, sale, lease or transfer
pursuant to the Acquisition or Section 5.1(e)(iii).
(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 the Borrower (i) to pay, directly or indirectly,
dividends or make any other distributions in respect of its capital stock
or pay any Debt or other obligation owed to the Borrower or to any
Subsidiary of the Borrower; or (ii) to make loans or advances to the
Borrower or any Subsidiary of the Borrower, except (1) encumbrances and
restrictions on any immaterial Subsidiary of the Borrower, (2) those
encumbrances and restrictions existing on the date hereof, (3) consensual
encumbrances and restrictions on the ability of any SPV to make or pay
distributions, dividends, loans or advances to the Borrower or its
Subsidiaries if such encumbrances and restrictions are pursuant to
documents governing the WCG Structured Financing and apply only to assets
of such SPV which are directly related to the WCG Structured Financing, and
(4) other customary encumbrances and restrictions now or hereafter existing
of the Borrower or any of its Subsidiaries entered into in the ordinary
course of business that are not more restrictive in any material respect
than the encumbrances and restrictions with respect to the Borrower or its
Subsidiaries existing on the date hereof.
(e) Loans and Advances; Investments. Make or permit to remain
outstanding, or allow any of its Subsidiaries to make or permit to remain
outstanding, any loan or advance to, or own, purchase or acquire any
obligations or debt securities of, any WCG Subsidiary, except that the
Borrower and its Subsidiaries may permit to remain outstanding loans and
advances to a WCG Subsidiary existing as of the date hereof and listed on
Exhibit E hereof (and such WCG Subsidiaries may permit such loans and
advances to remain outstanding) and the Borrower or one or more
Subsidiaries of the Borrower may act as lessor in a Sale and Lease-Back
Transaction described in Exhibit E-1 with respect to the assets described
in Exhibit E-1. Except for those investments in existence on the date
hereof and listed on Exhibit E hereof, the Borrower shall not, and shall
not permit any of its Subsidiaries to, acquire or otherwise invest in any
stock or other equity or other ownership interest in a WCG Subsidiary.
(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 or other ownership interests in (1) WPC, TGPL, TGT or
NWP, or any of their respective material Subsidiaries or (2) any Subsidiary
of the Borrower at the time it owns any shares of or any interest in any
shares of the capital stock of or other ownership interests in WPC, TGPL,
TGT or NWP or any of their respective material Subsidiaries; provided,
however, that this Section 5.2(f) shall not prohibit the sale or other
disposition of the stock of any Subsidiary of the Borrower to the Borrower
or any Wholly-Owned Subsidiary of the Borrower if, but only if, (x) there
shall not exist or result 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 the Borrower or any of its Subsidiaries, such sale or other
disposition could not reasonably be expected to impair materially the
ability of the Borrower to perform its obligations hereunder and under the
Notes and the Borrower shall continue to exist. Nothing herein shall be
construed to permit the Borrower or any of its Subsidiaries to purchase
shares, any interest in shares or any ownership interest in a WCG
Subsidiary except as permitted by clause (e) of this Section 5.2.
(g) Compliance with ERISA. (i) Terminate, or permit any ERISA
Affiliate to terminate, any Plan so as to result in any material liability
of the Borrower or any ERISA Affiliate or any material Subsidiary to the
PBGC, or (ii) permit to exist any occurrence of any Termination Event with
respect to a Plan which would have a material adverse effect on the
Borrower or any material Subsidiary.
(h) Transactions with Related Parties. Make any sale to, make any
purchase from, extend credit to, make payment for services rendered by, or
enter into any other transaction with, or permit any material Subsidiary of
the Borrower to make any sale to, make any purchase from, extend credit to,
make payment for services rendered by, or enter into any other transaction
with, any Related Party of the Borrower or of such Subsidiary unless as a
whole such sales, purchases, extensions of credit, rendition of services
and other transactions are (at the time such sale, purchase, extension of
credit, rendition of services or other transaction is entered into) on
terms and conditions reasonably fair in all material respects to the
Borrower or such Subsidiary in the good faith judgment of the Borrower.
(i) Guarantees. After the date of this Agreement, enter into any
agreement to guarantee or otherwise become contingently liable for, or
permit any of its Subsidiaries to guarantee or otherwise become
contingently liable for, Debt or any other obligation of any WCG Subsidiary
or to otherwise insure a WCG Subsidiary against loss; provided that the
Borrower or a Subsidiary of the Borrower may be contingently liable with
respect to the indebtedness or return on and of equity incurred pursuant to
the WCG Structured Financing.
(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 the Borrower would not be permitted to incur at
least $1.00 of additional Debt secured by a Lien permitted by paragraph (z)
of Schedule III.
(k) Use of Proceeds. Use any proceeds of any Advance for any
purpose other than (i) for purchase of the Required Shares as required to
effect the Acquisition pursuant to the Offer, together with the payment or
reimbursement of reasonable expenses of the Borrower (including fees,
charges and expenses of counsel) incurred in connection with the Offer and
the Acquisition; (ii) the repayment of obligations of the Target
outstanding pursuant to the Target's Revolving Credit Facility; or (iii)
the repayment of the 7.55% Notes; provided, however, that no proceeds of
any Advance will be used to acquire any equity security of a class which is
registered pursuant to Section 12 of the Securities Exchange Act of 1934,
as amended, (other than the purchase of the Required Shares and 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 the Target and Apco Argentina Inc., a Cayman
Islands corporation) purchased during any calendar year shall not exceed 1%
of the common stock of such corporation issued and outstanding at the time
of such purchase) or in any manner which contravenes law, and no proceeds
of any Advance will be used to purchase or carry any margin stock (within
the meaning of Regulation U issued by the Board of Governors of the Federal
Reserve System) in violation of Regulation U. The Borrower may not use any
Advance to make any loan or advance to, or own, purchase or acquire any
obligations or debt securities of, WCG or any of its Subsidiaries or to
acquire or otherwise invest in any stock or other equity or other ownership
interest in WCG or any of its Subsidiaries.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.1 Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Advance or
any Note executed by it when the same becomes due and payable, or shall
fail to pay any interest on any Advance or on any Note or 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 the
Borrower herein or by the Borrower (or any officer of the Borrower) in
writing under or in connection with this Agreement or any instrument
executed in connection herewith (including, without limitation,
representations and warranties deemed made pursuant to Section 3.6) shall
prove to have been incorrect in any material respect when made or deemed
made; or
(c) The Borrower shall fail to perform or observe (i) any term,
covenant or agreement contained in Section 5. 1 (b) on its part to be
performed or observed and such failure shall continue for ten Business Days
after the earlier of the date notice thereof shall have been given to the
Borrower by the Administrative Agent or any Bank or the date the Borrower
shall have knowledge of such failure, or (ii) any term, covenant or
agreement contained in this Agreement (other than a term, covenant or
agreement contained in Section 5. 1 (b)) or any Note on its part to be
performed or observed and such failure shall continue for five Business
Days after the earlier of the date notice thereof shall have been given to
the Borrower by the Administrative Agent or any Bank or the date the
Borrower shall have knowledge of such failure; or
(d) The Borrower or any Subsidiary of the Borrower shall fail to
pay any principal of or premium or interest on any Debt which is
outstanding in a principal amount of at least $60,000,000 in the aggregate
(excluding Debt incurred pursuant to any Advance) of the Borrower and/or
such Subsidiary (as the case may be), when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration, demand
or otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such
Debt; or any other event shall occur or condition shall exist under any
agreement or instrument relating to any such Debt and shall continue after
the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or
to permit the acceleration of, the maturity of such Debt; or any such Debt
shall be declared to be due and payable, or required to be prepaid (other
than by a regularly scheduled required prepayment or as required pursuant
to an illegality event of the type set forth in Section 2.12), prior to the
stated maturity thereof; provided, however, that the provisions of this
Section 6.1(d) shall not apply to any Non-Recourse Debt of any Subsidiary
of the Borrower which is a Non-Borrowing Subsidiary as defined in and
pursuant to the Multiyear Williams Credit Agreement; or
(e) The Borrower or any material Subsidiary of the Borrower shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Borrower or any material Subsidiary of the
Borrower seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors,
or seeking the entry of an order for relief or the appointment of a
receiver, trustee, or other similar official for it or for any substantial
part of its property and, in the case of any such proceeding instituted
against it (but not instituted by it), shall remain undismissed or unstayed
for a period of 60 days; or the Borrower or any material Subsidiary of the
Borrower shall take any action to authorize any of the actions set forth
above in this subsection (e); or
(f) Any judgment or order for the payment of money in excess of
$60,000,000 shall be rendered against the Borrower or any material
Subsidiary of the Borrower and remain unsatisfied and either (i)
enforcement proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be any period of 30 consecutive days
during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or
(g) Any Termination Event with respect to a Plan shall have
occurred and, 30 days after notice thereof shall have been given to the
Borrower by the Administrative Agent, (i) such Termination Event shall
still exist and (ii) the sum (determined as of the date of occurrence of
such Termination Event) of the Insufficiency of such Plan and the
Insufficiency of any and all other Plans with respect to which a
Termination Event shall have occurred and then exist (or in the case of a
Plan with respect to which a Termination Event described in clause (ii) of
the definition of Termination Event shall have occurred and then exist, the
liability related thereto) is equal to or greater than $75,000,000; or
(h) The Borrower or any ERISA Affiliate shall have been notified
by the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount which, when aggregated
with all other amounts required to be paid to Multiemployer Plans in
connection with Withdrawal Liabilities (determined as of the date of such
notification), exceeds $75,000,000 in the aggregate or requires payments
exceeding $50,000,000 per annum; or
(i) The Borrower or any ERISA Affiliate shall have been notified
by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of
ERISA, if as a result of such reorganization or termination the aggregate
annual contributions of the Borrower and the ERISA Affiliates to all
Multiemployer Plans which are then in reorganization or being terminated
have been or will be increased over the amounts contributed to such
Multiemployer Plans for the respective plan years which include the date
hereof by an amount exceeding $75,000,000;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of Banks owed more than 50% in principal amount of the
Advances then outstanding or, if no Advances are then outstanding, Banks having
more than 50% of the principal amount of the Commitments, by notice to the
Borrower, declare all of the Commitments and the obligation of each Bank to make
Advances to be terminated, whereupon all of the Commitments and each such
obligation shall forthwith terminate, and (ii) shall at the request, or may with
the consent, of Banks owed more than 50% in principal amount of the Advances
then outstanding or if no Advances are then outstanding, Banks having more than
50% of the principal amount of the Commitments, by notice to the Borrower,
declare the principal of the Advances, all interest thereon and all other
amounts payable by the Borrower under this Agreement to be forthwith due and
payable, whereupon such principal of the Advances, such interest and all such
amounts shall become and be forthwith due and payable, without requirement of
any presentment, demand, protest, notice of intent to accelerate, further notice
of acceleration or other further notice of any kind (other than the notice
expressly provided for above), all of which are hereby expressly waived by the
Borrower; provided, however, that in the event of any Event of Default described
in Section 6.1(e), (A) the obligation of each Bank to make Advances shall
automatically be terminated and (B) the principal of the Advances outstanding,
all such interest and all such amounts shall automatically become and be due and
payable, without presentment, demand, protest, notice of intent to accelerate,
notice of acceleration or any other notice of any kind, all of which are hereby
expressly waived by the Borrower. For purposes of this Section 6.1, any Advance
owed to an SPC shall be deemed to be owed to its Designating Bank.
ARTICLE VII
THE AGENT, SYNDICATION AGENT AND DOCUMENTATION AGENT
Section 7.1 Authorization and Action. Each Bank hereby appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated to
the Administrative Agent by the terms hereof, together with such powers as
are reasonably incidental thereto. As to any matters not expressly provided
for by this Agreement (including, without limitation, enforcement of the
terms of this Agreement or collection of the principal of, and interest on
the Advances, fees and any other amounts due and payable pursuant to this
Agreement), the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain
from acting (and shall be fully protected in so acting or refraining from
acting) upon the instructions of Banks owed more than 50% of the principal
amount of the Advances then outstanding or, if no Advances are then
outstanding, Banks having more than 50% of the Commitments, and such
instructions shall be binding upon all Banks; provided, however, that the
Administrative Agent shall not be required to take any action which exposes
the Administrative Agent to personal liability or which is contrary to any
Note, this Agreement or applicable law. The Administrative Agent agrees to
give to each Bank prompt notice of each notice given to it by the Borrower
pursuant to the terms of this Agreement.
Section 7.2 Administrative Agent's Reliance, Etc. Neither the
Administrative Agent nor any of its directors, officers, agents or
employees shall be liable for any action taken or omitted to be taken by it
or them under or in connection with this Agreement, except for its or their
own gross negligence or willful misconduct. Without limitation of the
generality of the foregoing, the Administrative Agent: (i) may treat a Bank
as the obligee of any Advance or, if applicable, the payee of any Note
until the Administrative Agent receives and accepts a Transfer Agreement
executed by the Borrower (if required pursuant to Section 8.6), the Bank
which is the assignor Bank, and the assignee in accordance with the last
sentence of Section 8.6(a); (ii) may consult with legal counsel (including
counsel for the Borrower), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to
be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (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 this Agreement; (iv) shall not have any duty to ascertain
or to inquire as to the performance or observance of any of the terms,
covenants or conditions of this Agreement on the part of the Borrower or to
inspect the property (including the books and records) of the Borrower; (v)
shall not be responsible to any Bank for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other instrument or document furnished pursuant hereto
(including a Note requested by a Bank, delivered to a Bank pursuant to
Section 8.6 or otherwise held by a Bank); and (vi) shall incur no liability
under or in respect of any, Note or this Agreement by acting upon any
notice, consent, certificate or other instrument or writing (which may be
by telecopier, telegram, cable or telex) believed by it to be genuine and
signed or sent by the proper party or parties.
Section 7.3 Citibank; Merrill; Lehman. With respect to its
Commitments, the Advances made by it and the Notes, if any, issued to it,
Citibank shall have the same rights and powers under such Note and this
Agreement as any other Bank and may exercise the same as though it was not
the Administrative Agent; with respect to its Commitments, the Advances
made by it and the Notes, if any, issued to it, each of Merrill and Lehman
shall have the rights and powers under any Note and this Agreement as any
other Bank and may exercise the same as though it was not a Syndication
Agent or Documentation Agent, as the case may be. The term "Bank" or
"Banks" shall, unless otherwise expressly indicated, include each of
Citibank, Merrill and Lehman in its individual capacity. Citibank, Merrill
and Lehman and the respective affiliates of each may accept deposits from,
lend money to, act as trustee under indentures of, and generally engage in
any kind of business with, the Borrower, any Subsidiary of the Borrower,
any Person who may do business with or own, directly or indirectly,
securities of the Borrower or any such Subsidiary and any other Person, all
as if Citibank were not the Administrative Agent, Merrill were not the
Syndication Agent and Lehman were not the Documentation Agent without any
duty to account therefor to the Banks.
Section 7.4 Bank Credit Decision. Each Bank acknowledges that it
has, independently and without reliance upon the Administrative Agent, the
Syndication Agent, the Documentation Agent, the Arranger or any other Bank
and based on the financial statements referred to in Section 4.1(e) and
such other documents and information as it has deemed appropriate. made its
own credit analysis and decision to enter into this Agreement. Each Bank
also acknowledges that it will, independently and without reliance upon the
Administrative Agent, the Syndication Agent, the Documentation Agent, the
Arranger or any other Bank and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under any Note or this Agreement.
Section 7.5 Indemnification. The Banks agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrower),
ratably according to the respective principal amounts of the Advances then
owed to each of them (or if no Advances are at the time outstanding or if
any Advances are held by Persons which are not Banks, ratably according to
either (i) the respective amounts of their Commitments, or (ii) if all
Commitments have terminated, the respective amounts of the Commitments
immediately prior to the time the Commitments terminated), from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted against the
Administrative Agent in any way relating to or arising out of this
Agreement or any action taken or omitted by the Administrative Agent under
this Agreement, provided that no Bank shall be liable to the Administrative
Agent for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agents gross negligence or willful
misconduct. Without limitation of the foregoing, each Bank agrees to
reimburse the Administrative Agent promptly upon demand for its ratable
share of any out-of-pocket expenses (including counsel fees) incurred by
the Administrative Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice
in respect of rights or responsibilities under this Agreement to the extent
that the Administrative Agent is not reimbursed for such expenses by the
Borrower.
Section 7.6 Successor Administrative Agent. The Administrative
Agent may resign at any time as Administrative Agent under this Agreement
by giving written notice thereof to the Banks and the Borrower and may be
removed at any time with or without cause by the Majority Banks. Upon any
such resignation or removal, the Majority Banks shall have the right to
appoint, with the consent the Borrower (which consent shall not be
unreasonably withheld and shall not be required if an Event of Default
exists), a successor Administrative Agent from among the Banks. If no
successor Administrative 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 Administrative Agent's giving of notice of
resignation or the Majority Banks' removal of the retiring Administrative
Agent, then the retiring Administrative Agent may, on behalf of the Banks,
appoint a successor Administrative 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 Administrative
Agent under this Agreement by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring
Administrative Agent and shall function as the Administrative Agent under
this Agreement, and the retiring Administrative Agent shall be discharged
from its duties and obligations as Administrative Agent under this
Agreement. After any retiring Administrative Agents resignation or removal
hereunder as Administrative 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 Administrative Agent under this Agreement.
Section 7.7 Syndication Agent; Documentation Agent. The
Syndication Agent and the Documentation Agent have no duties or obligations
under this Agreement. Neither the Syndication Agent nor the Documentation
Agent shall have, by reason of this Agreement or the Notes, a fiduciary
relationship in respect of any Bank or the holder of any Note, and nothing
in this Agreement or the Notes, express or implied, is intended or shall be
so construed to impose on either the Syndication Agent or the Documentation
Agent any obligation in respect of this Agreement or the Notes.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Amendments, Etc. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Majority Banks, and then such waiver or consent
shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no amendment, waiver or
consent shall, unless in writing and signed by all the Banks, do any of the
following: (a) waive any of the conditions specified in Article III, (b)
increase the Commitments of the Banks or subject the Banks to any
additional obligations, (c) reduce the principal of, or interest on, the
outstanding Advances or any fees or other amounts payable hereunder, (d)
postpone any date fixed for any payment of principal of, or interest on,
the outstanding Advances or any fees or other amounts payable hereunder,
(e) take any action which requires the signing of all the Banks pursuant to
the terms of this Agreement, (f) change the definition of Majority Banks or
otherwise change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Advances, or the number of Banks, which
shall be required for the Banks or any of them to take any action under
this Agreement, (g) amend Section 8.6(b) or (h) amend this Section 8.1; and
provided, further, that no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Banks
required above to take such action, affect the rights or duties of the
Administrative Agent under any Note or this Agreement.
Section 8.2 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
8.6(a); if to the Borrower, as specified opposite its name on Schedule II
hereto; and if to Citibank, as Administrative Agent, to its address at 399
Park Avenue, New York, New York 10043, (telecopier number: (302) 894-6120),
Attention: Bilal Aman, with a copy to Citicorp North America, Inc., 1200
Smith Street, Suite 2000, Houston, Texas 77002 (telecopier number: (713)
654-2849; telex number 127001 (Attn: Route Code HOUAA)), Attention: The
Williams Companies, Inc. Account Officer, or, as to the Borrower or the
Administrative Agent, at such other address as shall be designated by such
party in a written notice to the other parties and, as to each other party,
at such other address as shall be designated by such party in a written
notice to the Borrower and the Administrative 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 8.6(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 8.6(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 Administrative Agent shall not be
effective until received by the Administrative Agent. Any notice or
communication to a Bank shall be deemed to be a notice or communication to
any SPC designated by such Bank and no further notice to an SPC shall be
required. Delivery by telecopier of an executed counterpart of this
Agreement or of any amendment or waiver of any provision of this Agreement
or any Schedule or Exhibit hereto to be executed and delivered hereunder
shall be effective as delivery of a manually executed counterpart thereof.
Section 8.3 No Waiver; Remedies. No failure on the part of any
Bank or the Administrative 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 this Agreement are cumulative and not
exclusive of any remedies provided by law.
Section 8.4 Costs and Expenses. (i) The Borrower agrees to pay on
demand all reasonable out-of-pocket costs and expenses of the Arranger and
the Administrative Agent in connection with the preparation, execution,
delivery, administration, modification and amendment of this Agreement, the
Notes, if any, and the other documents to be delivered under this
Agreement, including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel for the Administrative Agent with respect
thereto and with respect to advising the Administrative Agent as to its
rights and responsibilities under this Agreement and any Note, and (ii) the
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 Administrative Agent and each
Bank in connection with the enforcement (whether before or after the
occurrence of an Event of Default and whether through negotiations
(including formal workouts or restructurings), legal proceedings or
otherwise) against the Borrower of any Note of the Borrower or this
Agreement and the other documents to be delivered by the Borrower under
this Agreement.
(a) If any payment (or purchase pursuant to Section 2.11(c)) of
principal of, or Conversion of, any Eurodollar Rate Advance made to the
Borrower is made other than on the last day of an Interest Period relating
to such Advance, as a result of a payment pursuant to Section 2.10 or 2.12
or acceleration of the maturity of the Advances pursuant to Section 6.1 or
for any other reason or as a result of any purchase pursuant to Section
2.11(c) or any Conversion, the Borrower shall, upon demand by any Bank
(with a copy of such demand to the Administrative Agent), pay to the
Administrative 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.
(b) The Borrower agrees, to the fullest extent permitted by law,
to indemnify and hold harmless the Administrative Agent, the Syndication
Agent, the Documentation 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 Administrative Agent, the Syndication Agent, the
Documentation 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 any of the Administrative Agent, the Syndication Agent, the
Documentation Agent, the Arranger, such Bank or any such director, officer,
employee or agent is a party thereto, arising out of, related to or in
connection with this Agreement or any transaction in which any proceeds of
all or any part of the Advances are applied (other than any such claim,
damage, liability or expense to the extent attributable to the gross
negligence or willful misconduct of, or violation of any law or regulation
by, either the party seeking indemnity under this Section 8.4(c) or any of
its directors, officers, employees or agents).
Section 8.5 Right of Set-off. Upon (i) the occurrence and during
the continuance of any Event of Default and (ii) the making of the request
or the granting of the consent specified by Section 6.1 to authorize the
Administrative Agent to declare the Advances due and payable pursuant to
the provisions of Section 6.1, each Bank is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time
owing by such Bank to or for the credit or the account of the Borrower
against any and all of the obligations of the Borrower now or hereafter
existing under this Agreement and the Notes, if any, held by such Bank,
irrespective of whether or not such Bank shall have made any demand under
this Agreement or such Notes and although such obligations may be
unmatured. Each Bank agrees promptly to notify the Borrower after such
set-off and application made by such Bank, provided that the failure to
give such notice shall not affect the validity of such set-off and
application. The rights of each Bank under this Section are in addition to
other rights and remedies (including, without limitation, other rights of
set-off) which such Bank may have.
Section 8.6 Binding Effect; Transfers. (a) This Agreement shall
become effective when it shall have been executed by the Borrower, the
Syndication Agent, the Documentation Agent and the Administrative Agent and
when each Bank listed on the signature pages hereof has delivered an
executed counterpart hereof to the Administrative Agent, has sent to the
Administrative Agent a facsimile copy of its signature hereon or has
notified the Administrative Agent that such Bank has executed this
Agreement and thereafter shall be binding upon and inure to the benefit of
the Borrower, the Administrative Agent and each Bank and their respective
successors and assigns; provided that the Borrower shall not have the right
to assign any of its rights hereunder or any interest herein without the
prior written consent of all of the Banks. Each Bank may assign to one or
more banks, financial institutions or government entities all or any part
of, or may grant participations to one or more banks, financial
institutions or government entities in or to all or any part of, any
Advance or Advances owing to such Bank, any Note or Notes held by such Bank
and all or any portion of such Bank's Commitments, and to the extent of any
such assignment or participation (unless 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 Commitment
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 Borrower, the other
Banks and the Administrative Agent shall continue to deal solely with and
directly with such Bank in connection with such Bank's rights and
obligations under this Agreement; and (2) no Bank shall assign or grant a
participation that conveys to the assignee or participant the right to vote
or consent under this Agreement, other than the right to vote upon or
consent to (i) any increase in the amount of any Commitment of such Bank;
(ii) any reduction of the principal amount of, or interest to be paid on,
such Bank's Advance or Advances; (iii) any reduction of any fee or other
amount payable hereunder to such Bank; or (iv) any postponement of any date
fixed for any payment of principal of, or interest on, such Bank's Advance
or Advances or Note or Notes or any fee or other amount payable hereunder
to such Bank.
If (I) the assignee of any Bank either (1) is another Bank or is
an affiliate of a Bank or (2) is approved in writing by the Administrative
Agent and the Borrower (which approvals shall not be unreasonably withheld)
or (3) is approved in writing by the Administrative Agent (which approval
shall not be unreasonably withheld) and an Event of Default exists 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
assigned, whether all or a portion, shall be in a minimum amount of
$10,000,000 or such lesser amount as shall represent the entire remaining
interest of such assigning Bank or as may be otherwise approved in writing
by the Administrative Agent and the Borrower for such assignment) of the
Commitment of such assigning Bank by executing a document in the form of
Exhibit F (or with such changes thereto as have been approved in writing by
the Administrative Agent in its sole discretion as evidenced by its
execution thereof) duly executed by the Administrative Agent, the Borrower
(unless an Event of Default exists or the Borrower has relinquished the
right to approve the assignment pursuant to Section 8.6(b)), such assigning
Bank and such assignee and delivered to the Administrative 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) the Borrower shall deliver,
in replacement of any Note of the Borrower then outstanding which may have
been executed to the order of such assigning Bank or as may be requested by
the assignee or the assigning Bank (a) to such assignee upon its request or
as required by Section 2.9, a new Note of the Borrower in the amount of the
Commitment of such assigning Bank 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 immediately prior to
such assignment (any such assignee which is already a Bank hereunder agrees
to mark "Exchanged" and return to the Borrower, with reasonable promptness
following the delivery of such new Note, the Note being replaced thereby,
if any), (b) to such assigning Bank upon its request or as required by
Section 2.9, a new Note in the amount of the balance, if any, of the
Commitment of such assigning Bank to the Borrower retained by such
assigning Bank (and such assigning Bank agrees to mark "Exchanged" and
return to the Borrower, with reasonable promptness following delivery of
such new Notes, the Note being replaced thereby), and (c) to the
Administrative Agent, photocopies of such new Notes, if any; (v) if such
assignment is of all of such assigning Bank's Commitment, all of the
outstanding 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 Advance to the 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 so assumed and the denominator
of which is the amount of the Commitment of such assigning Bank immediately
prior to such assumption, shall be transferred to such assignee and
evidenced by such assignee's Note from the Borrower, if requested or
required by Section 2.9, and the balance of such Advance shall be evidenced
by such assigning Bank's new Note, if any, from the 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 so assumed shall be deemed to be the amount set opposite such
assigning Bank's name on Schedule IV 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 8.2 the notice
information set forth in such Transfer Agreement; and the Administrative
Agent shall promptly after execution of any Transfer Agreement by the
Administrative Agent and the other parties thereto notify the Banks of the
parties to such Transfer Agreement and the amounts of the assigning Bank's
Commitment assumed thereby.
(b) Notwithstanding any provision of subsection (a) above, each
Bank hereby agrees that it will not assign its Advances or Commitments, in
whole or in part, or grant a participation in its Advances or Commitments,
to any bank, financial institution or governmental entity prior to the
closing of the primary syndication, except for assignments of Advances and
Commitments to such Bank's affiliates or assignments of Advances and
Commitments pursuant to such primary syndication, which primary syndication
shall not occur prior to October 15, 2001.
(c) The Borrower agrees to promptly execute the Transfer Agreement
pertaining to any assignment as to which approval by the Borrower of the
assignee is not required by clause (I) of the last paragraph of Section
8.6(a).
(d) Notwithstanding anything to the contrary contained herein, any
Bank (a "Designating Bank") with the consent of the Administrative Agent
and, if no Event of Default has occurred and is continuing, the Borrower
may grant to a special purpose funding vehicle (an "SPC"), identified as
such in writing from time to time by the Designating Bank to the
Administrative Agent and the Borrower, the option to fund all or any part
of any Advance that such Designating Bank is obligated to fund pursuant to
this Agreement; provided that, no Designating Bank shall have granted at
any one time such option to more than one SPC and further provided that (i)
such Designating Bank's obligations under this Agreement (including,
without limitation, its Commitment to the Borrower hereunder) shall remain
unchanged, (ii) such Designating Bank shall remain solely responsible to
the other parties hereto for the performance of such obligations, (iii) the
Borrower, the Administrative Agent and the other Banks shall continue to
deal solely and directly with such Designating Bank in connection with such
Designating Bank's rights and obligations under this Agreement, (iv) any
such option granted to an SPC shall not constitute a commitment by such SPC
to fund any Advance, and (v) neither the grant nor the exercise of such
option to an SPC shall increase the costs or expenses or otherwise increase
or change the obligations of the Borrower under this Agreement (including,
without limitation, its obligations under Section 2.14). The making of an
Advance by an SPC hereunder shall utilize the Commitment of the Designating
Bank to the same extent, and as if, such Advance were made by such
Designating Bank. Each party hereto hereby agrees that no SPC shall be
liable for any indemnity or similar payment obligation under this Agreement
to the extent that any such indemnity or similar payment obligations shall
have been paid by its Designating Bank. In furtherance of the foregoing,
each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and
one day after the payment in full of all outstanding commercial paper or
other senior indebtedness of any SPC, it will not institute against, or
join any other person in instituting against such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under
the laws of the United States. In addition, notwithstanding anything to the
contrary contained in this Section 8.6, an SPC may not assign its interest
in any Advance except that, with notice to, but without the prior written
consent of, the Borrower and the Administrative Agent and without paying
any processing fee therefor, such SPC may assign all or a portion of its
interests in any Advances to the Designating Bank or to any financial
institutions (consented to by the Borrower and Administrative Agent),
providing liquidity and/or credit support to or for the account of such SPC
to support the funding or maintenance of Advances. Each Designating Bank
shall serve as the agent of its SPC and shall on behalf of its SPC: (i)
receive any and all payments made for the benefit of such SPC and (ii) give
and receive all communications and notices, and vote, approve or consent
hereunder, and take all actions hereunder, including, without limitation,
votes, approvals, waivers, consents and amendments under or relating to
this Agreement and the other Loan Documents. Any such notice,
communication, vote, approval, waiver, consent or amendment shall be signed
by the Designating Bank for the SPC and need not be signed by such SPC on
its own behalf. The Borrower, the Administrative Agent and the Banks may
rely thereon without any requirement that the SPC sign or acknowledge the
same or that notice be delivered to the Borrower. This section may not be
amended without the written consent of any SPC. which shall have been
identified to the Administrative Agent and the Borrower.
(e) Any Bank may assign, as collateral, any of its rights
(including, without limitation, rights to payments of principal of and/or
interest on the Advances) under this Agreement or any of the Advances to
any Federal Reserve Bank or any other Person without notice to or consent
of the Borrower or the Administrative Agent.
Section 8.7 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 8.8 Interest. It is the intention of the parties hereto
that the Administrative Agent and each Bank shall conform strictly to usury
laws applicable to it, if any. Accordingly, if the transactions with the
Administrative Agent or any Bank contemplated hereby would be usurious
under applicable law, then, in that event, notwithstanding anything to the
contrary in this Agreement or any other agreement entered into in
connection with or as security for this Agreement, it is agreed as follows:
(i) the aggregate of all consideration which constitutes interest under
applicable law that is contracted for, taken, reserved, charged or received
by the Administrative 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 canceled automatically and, if theretofore paid,
shall at the option of the Administrative Agent or such Bank, as the case
may be, be credited by the Administrative Agent or such Bank, as the case
may be, on the principal amount of the obligations owed to the
Administrative Agent or such Bank, as the case may be, by the Borrower or
refunded by the Administrative Agent or such Bank, as the case may be, to
the Borrower, and (ii) in the event that the maturity of any Note or other
obligation payable to the Administrative 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 Administrative 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 Administrative Agent or such Bank,
as the case may be, provided for in this Agreement or otherwise shall be
canceled automatically as of the date of such acceleration or prepayment
and, if theretofore paid, shall, at the option of the Administrative Agent
or such Bank, as the case may be, be credited by the Administrative Agent
or such Bank, as the case may be, on the principal amount of the
obligations owed to the Administrative Agent or such Bank, as the case may
be, by the Borrower or refunded by the Administrative Agent or such Bank,
as the case may be, to the Borrower.
Section 8.9 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 the
Borrower or any officer of the Borrower herein or in any certificate or
other document delivered in connection with this Agreement shall be
considered to have been relied upon by the Banks and shall survive the
issuance and delivery of the Notes, if any, and the making of the Advances
regardless of any investigation. The indemnities and other payment
obligations of the Borrower set forth in Sections 2.11, 2.14 and 8.4, and
the indemnities by the Banks in favor of the Administrative Agent and its
officers, directors, employees and agents, will survive the repayment of
the Advances and the termination of this Agreement.
Section 8.11 Borrower's Right to Apply Deposits. In the event that
any Bank is placed in receivership or enters a similar proceeding, the
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 the Borrower in U.S. dollars held by such Bank, by giving
notice to the Administrative 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, the
Borrower shall pay the balance of such insufficiency in accordance with
this Agreement.
Section 8.12 Confidentiality. Each Bank agrees that it will not
disclose without the prior consent of the Borrower (other than to
employees, auditors, accountants, counsel or other professional advisors of
the Administrative Agent or any Bank) any information with respect to the
Borrower or its Subsidiaries, which is furnished pursuant to this Agreement
and which (i) the Borrower in good faith considers to be confidential and
(ii) is either clearly marked confidential or is designated by the Borrower
to the Administrative Agent or the Banks in writing as confidential,
provided that any Bank may disclose any such information (a) as has become
generally available to the public, (b) as may be required or appropriate in
any report, statement or testimony submitted to or required by any
municipal, state or Federal regulatory body having or claiming to have
jurisdiction over such Bank or submitted to or required by the Board of
Governors of the Federal Reserve System or the Federal Deposit Insurance
Corporation or similar organizations (whether in the United States or
elsewhere) or their successors, (c) as may be required or appropriate in
response to any summons or subpoena in connection with any litigation, (d)
in order to comply with any law, order, regulation or ruling applicable to
such Bank, (e) to the prospective transferee or grantee in connection with
any contemplated transfer of any of the Commitments or Advances or any
interest therein by such Bank or the grant of an option to an SPC to fund
any Advance, provided that such prospective transferee executes an
agreement with or for the benefit of the Borrower 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 4.1(e) or
Section 5.1(b) (other than paragraph (iv) thereof) and if the contemplated
transfer is a grant of an option to fund Advances to an SPC pursuant to
Section 8.6(d), such SPC may disclose, on a confidential bases, any
non-public information relating to Advances funded by it to any rating
agency, commercial paper dealer or provider of any surety, guaranty or
credit or liquidity enhancement to such SPC, and (ii) if prior notice of
the delivery thereof is given to the Borrower, such information as may be
required by law or regulation to be delivered, (f) in connection with the
exercise of any remedy by such Bank following an Event of Default
pertaining to this Agreement, any of the 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
Administrative Agent, or (i) to any affiliate of any Bank, provided that
such affiliate executes an agreement with or for the benefit of the
Borrower containing provisions substantially identical to those contained
in this Section 8.12.
Section 8.13 WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT, THE
SYNDICATION AGENT, THE DOCUMENTATION AGENT AND THE BANKS HEREBY IRREVOCABLY
WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT, ANY NOTE OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY.
Section 8.14 Miscellaneous. This Agreement shall become effective
in accordance with the first sentence of Section 8.6(a).
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized, as
of the date first above written.
BORROWER:
THE WILLIAMS COMPANIES, INC.
By:
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Name: James G. Ivey
Title: Treasurer
ADMINISTRATIVE AGENT:
CITIBANK, N.A., as Administrative Agent
By:
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Authorized Officer
SYNDICATION AGENT:
MERRILL LYNCH & CO., as Syndication Agent
By:
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Authorized Officer
DOCUMENTATION AGENT:
LEHMAN COMMERCIAL PAPER INC., as
Documentation Agent
By:
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Authorized Signatory
BANKS:
CITIBANK, N.A.
By:
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Authorized Officer
MERRILL LYNCH CAPITAL CORPORATION
By:
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Authorized Officer
MERRILL LYNCH BANK USA.
By:
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Authorized Officer
LEHMAN COMMERCIAL PAPER INC.
By:
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Authorized Signatory
Schedule I
APPLICABLE LENDING OFFICES
Domestic Eurodollar
Name of Bank Lending Office Lending Office
Citibank N.A. Citibank N.A. Citibank N.A.
399 Park Avenue 399 Park Avenue
New York, New York 10043 New York, New York 10043
Notices: Notices:
Citibank, N.A. Citibank, N.A.
399 Park Avenue 399 Park Avenue
New York, New York 10043 New York, New York 10043
Telecopier: (212) 527-1084 Telecopier: (212) 527-1084
Telex: None Telex: None
Attn: Christine Grundel Attn: Christine Grundel
Dept: Medium Term Finance Dept: Medium Term Finance
with copies to: with copies to:
Citicorp North America, Inc. Citicorp North America, Inc.
1200 Smith Street, Suite 2000 1200 Smith Street, Suite 2000
Houston, Texas 77002 Houston, Texas 77002
Telecopier: (713) 654-2849 Telecopier: (713) 654-2849
Telex: 127001 Telex: 127001
(Attn. Route Code HOUAA) (Attn. Route Code HOUAA)
Attn: The Williams Companies, Inc. Attn: The Williams Companies, Inc.
Account Officer Account Officer
Merrill Lynch Capital Corporation Merrill Lynch Capital Corporation Merrill Lynch Capital Corporation
================================ ================================
Telecopier: __________________ Telecopier: __________________
Telex: ____________________ Telex: ____________________
Attn: ____________________ Attn: ____________________
Merrill Lynch Bank USA Merrill Lynch Bank USA Merrill Lynch Bank USA
================================ ================================
Telecopier: __________________ Telecopier: __________________
Telex: ____________________ Telex: ____________________
Attn: ____________________ Attn: ____________________
Lehman Commercial Paper Inc. Lehman Commercial Paper Inc. Lehman Commercial Paper Inc.
================================ ================================
Telecopier: __________________ Telecopier: __________________
Telex: ____________________ Telex: ____________________
Attn: ____________________ Attn: ____________________
Schedule II
BORROWER INFORMATION
Borrower Information for Notices
The Williams Companies, Inc. The Williams Companies, Inc.
One Williams Center, Suite 5000
Tulsa, Oklahoma 74172
Attention: Patti J. Kastl
Telecopier: (918) 573-2065
Telephone: (918) 573-2172
E-mail: patti.kastl@williams.com
Schedule III
PERMITTED BORROWER LIENS
a) Any purchase money Lien created by the Borrower 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 the Borrower 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 the Borrower or any of its Subsidiaries, whether or not
assumed by the Borrower or any of its Subsidiaries, and any Lien
on any property acquired or constructed by the Borrower 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 the
Borrower 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 the Borrower 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 the Borrower 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 the Borrower
at the time it becomes a Subsidiary of the Borrower.
e) Any refunding or extension of maturity, in whole or in part, of
any Lien created or assumed in accordance with the provisions of
paragraph (a), (b), (c) or (d) above or (j) below; provided that
the principal amount of the Debt secured by such refunding Lien or
extended Lien shall not exceed the principal amount of the Debt
secured by the Lien to be refunded or extended outstanding at the
time of such refunding or extension and that such refunding Lien
or extended Lien shall be limited to the same property that
secured the Lien so refunded or extended.
f) Mechanics' or materialmen's or other similar liens arising in the
ordinary course of business which are not more than 90 days past
due or are being contested in good faith by appropriate
proceedings or any Lien arising by reason of pledges or deposits
to secure payment of workmen's compensation or other insurance,
good faith deposits in 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 the Borrower 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 the Borrower 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 the
Borrower.
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 the Borrower or any of its
Subsidiaries of any business or the exercise by the Borrower or
any of its Subsidiaries of any privilege or license, (ii) to
enable the Borrower or any of its Subsidiaries to maintain
self-insurance or to participate in any fund for liability on any
insurance risks or (iii) in connection with workmen's
compensation, unemployment insurance, old age pensions or other
social security with respect to the Borrower or any of its
Subsidiaries to share in the privileges or benefits required for
companies participating in such arrangements.
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 the Borrower 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 the Borrower 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 the Borrower nor any other
Subsidiary of the Borrower 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 the
Borrower or any of its Subsidiaries by appropriate proceedings and
with respect to which reserves in conformity with generally
accepted accounting principles, if required by such principles,
have been provided on the books of the Borrower or the relevant
Subsidiary of the Borrower, as the case may be.
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 the
Borrower and its Subsidiaries considered as a whole.
r) Any Liens securing Debt neither assumed nor guaranteed by the
Borrower 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 the Borrower 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 the Borrower or such Subsidiary.
s) Easements, exceptions or reservations in any property of the
Borrower or any of its Subsidiaries granted or reserved in the
ordinary course of business for the purpose of pipelines, roads,
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 the Borrower or such Subsidiary.
t) Rights reserved to or vested in any municipality or public
authority to control or regulate any property of the Borrower or
any of its Subsidiaries, or to use such property in any manner
which does not materially impair the use of such property for the
purposes for which it is held by the Borrower or such Subsidiary.
u) Any obligations or duties, affecting the property of the Borrower
or any of its Subsidiaries, to any municipality or public
authority with respect to any franchise, grant, license or permit.
v) The Liens of any judgments in an aggregate amount for the Borrower
and all of its Subsidiaries (i) not in excess of $5,000,000, the
execution of which has not been stayed and (ii) not in excess of
$25,000,000, the execution of which has been stayed and which have
been appealed and secured, if necessary and permitted hereby, by
the filing of an appeal bond.
w) Zoning laws and ordinances.
x) Any Lien 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 the Borrower 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 the Borrower and its Subsidiaries
or securing any Debt of the Borrower 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 the
Borrower 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 the Borrower
and its Subsidiaries in respect of Sale and Lease-Back
Transactions permitted by Section 5.2(j) does not exceed 5% of the
sum of (i) Consolidated Tangible Net Worth of the Borrower plus
(ii) Debt of the Borrower and its Subsidiaries on a Consolidated
basis.
aa) Any overriding royalties or other rights of Pacific Northwest
Pipeline Corporation, a Delaware corporation ("Pacific") and
Phillips Petroleum Company ("Phillips") or their respective
successors in interest under a contract dated January 9, 1953, as
amended, between Phillips and Pacific, to which the Borrower is
successor in interest; and the obligations of the Borrower to
surrender, transfer, release or reassign the leases or interests
or rights to which said instruments relate under the conditions
and upon the occurrence of the events specified in said
instruments.
bb) Any Lien created by the Borrower or any of its Subsidiaries on any
contract (or any rights thereunder or proceeds therefrom)
providing for advances by the Borrower or any of its Subsidiaries
to finance gas exploration and development, which Lien is created
to secure only indebtedness incurred to finance such advances.
Schedule IV
COMMITMENTS
as of June 11, 2001
============================================================================== ============================
Banks Commitment
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Citibank, N.A. $500,000,000.00
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Merrill Lynch Capital Corporation $300,000,000.00
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Lehman Commercial Paper Inc. $500,000,000.00
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Merrill Lynch Bank USA $200,000,000.00
============================================================================== ============================
COMMITMENTS $1,500,000,000.00
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Schedule V
RATING CATEGORIES
Applicable
Rating Category S&P or Moody's ratings of the senior unsecured Applicable Commitment
of the Borrower long-term debt of the Borrower* Margin Fee Rate
One A or better by S&P or A2 or better by Moody's .500% .075%
Two A-by S&P or A3 by Moody's .625% .085%
Three BBB+ by S&P or Baa1 by Moody's .750% .095%
Four BBB by S&P or Baa2 by Moody's .875% .10%
Five BBB- by S&P and Baa3 by Moody's 1.125% .15%
Six BBB- by S&P or Baa3 by Moody's 1.500% .20%
Seven Borrower is Unrated or none of the above applies to 2.000% .25%
Borrower
- ----------------------------------------------------------------------------------------------------------
*If split-rated, the higher rating will apply.
Schedule VI
ENVIRONMENTAL MATTERS RELATING TO TARGET
None.
Exhibit A
PROMISSORY NOTE
U.S. $__________________ June 11_, 2001
FOR VALUE RECEIVED, the undersigned, The Williams Companies, Inc.,
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 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 Administrative Agent,
at 399 Park Avenue, New York, New York 10043, in same day funds.
This Promissory Note is one of the Notes referred to in, and is
subject to and entitled to the benefits of that certain Credit Agreement,
dated as of June 11, 2001 (as amended or otherwise modified from time to
time, the "Credit Agreement"), by and among the Borrower, the Bank, certain
other financial institutions parties thereto, Merrill Lynch & Co., as
Syndication Agent, Lehman Commercial Paper Inc., as Documentation Agent,
and Citibank, N.A., as Administrative Agent for the Bank and such other
financial institutions. The Credit Agreement provides, among other things,
for (i) the making of advances to the Borrower from time to time pursuant
to Section 2.1 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 Promissory Note, (ii) acceleration of the
maturity hereof upon the happening of certain stated events and (iii)
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 Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
THE WILLIAMS COMPANIES, INC.
By:
-----------------------------------------------
Name: James G. Ivey
Title: Treasurer
ADVANCES AND PAYMENTS OF PRINCIPAL
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Amount Of Principal Unpaid Principal
Date Amount Of Advance Paid Or Prepaid Balance Notation Made By
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Exhibit B
NOTICE OF BORROWING
[Date]
Citibank, N.A., as Administrative Agent
for the Banks parties to the Credit
Agreement referred to below
399 Park Avenue
New York, New York 10043
Attention: Bilal Aman
Ladies and Gentlemen:
The undersigned, The Williams Companies, Inc. (the "Borrower"),
(a) refers to that certain Credit Agreement, dated as of June 11, 2001 (as
amended or otherwise modified from time to time, the "Credit Agreement";
the terms defined therein and not defined herein being used herein as
therein defined), by and among the undersigned, certain Banks parties
thereto, Merrill Lynch & Co., as Syndication Agent, Lehman Commercial Paper
Inc., as Documentation Agent, and Citibank, N.A., as Administrative Agent
for such Banks; (b) hereby gives you notice, irrevocably, pursuant to
Section 2.2 of the Credit Agreement that the undersigned hereby requests a
Borrowing under the Credit Agreement and (c) in that connection sets forth
below the information relating to such Borrowing (the "Proposed Borrowing")
as required by Section 2.2 (a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is ______________,
19____.
(ii) The Type of Advances comprising the Proposed Borrowing is [Base
Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is
$__________________.
(iv) The proceeds of such Borrowing will be used as set forth in
subclause[s] [i] [ii] [and] [iii] of Section 5.2(k).
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed
Borrowing:
(a) the representations and warranties contained in Section 4.1 of
the Credit Agreement as to the Borrower and its Subsidiaries are
correct on and as of the date of the Proposed Borrowing, before
and after giving effect to the Proposed 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 Borrowing or from the application of the proceeds
therefrom, which constitutes an Event of Default or which would
constitute an Event of Default but for the requirement that
notice be given or time elapse or both;
(c) the senior unsecured debt of the Borrower is rated _____ by S&P
and ____ by Moody's; and
(d) after giving effect to the Proposed Borrowing and all other
Borrowings which have been requested on or prior to the date of
the Proposed Borrowing but which have not been made prior to such
date, the aggregate principal amount of all Advances will not
exceed the aggregate of the Commitments of the Banks to the
Borrower (computed without regard to any B Reduction).
Very truly yours,
THE WILLIAMS COMPANIES, INC.
By:
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Name:
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Title:
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cc: Citicorp North America, Inc.
1200 Smith Street, Suite 2000
Houston, Texas 77002
Attn: The Williams Companies, Inc.
Account Officer
Exhibit E
INVESTMENTS DESCRIBED IN PARAGRAPH 5.2(e)
OF THE CREDIT AGREEMENT
Various immaterial intercompany receivables between TWC or its Subsidiaries and
the WCG Subsidiaries for services rendered, which are settled on a reasonably
prompt basis. Services are rendered to the WCG Subsidiaries by TWC or its
Subsidiaries pursuant to certain intercompany services agreements, the most
significant of which are filed as exhibits to WCG's Form 8-K dated March 31,
2001.
As of June 11, 2001, TWC's investment in WCG consists of 21,200,857 shares of
Class B common stock.
Exhibit E-1
ASSETS SUBJECT TO SALE AND LEASE-BACK
TRANSACTION DESCRIBED IN PARAGRAPH 5.2(e)
OF CREDIT AGREEMENT
The Borrower is in negotiations with Williams Communications Group, Inc.
regarding the terms and conditions of a Sale and Leaseback transaction which
would include the assets described below.
Assets to be subject to the Sale and Lease-back transaction:
WILLIAMS TECHNOLOGY CENTER
The (a) real property and structures located east of the
existing Bank of Oklahoma Tower at One Williams Center,
Tulsa, Oklahoma commonly known as the Williams
Technology Center (the "Center"), Tech Center Parking
Garage (including the "La Petite" parcel)(located at
First Street and Cincinnati Avenue), Skywalk, Skywalk
Support and Skywalk Support Parcel (the "Realty") and
(b) the personal property and fixtures generally
comprised of the furniture, fixtures and equipment as
are located or to be located upon or affixed or to be
affixed to the Realty (the "FF&E").
AIRCRAFT
The Aircraft shall include the three (3) aircraft
identified as follows:
Citation X (N358WC)
Citation V (N352WC)
Citation Excel (N359WC)
Exhibit F
TRANSFER AGREEMENT
This Transfer Agreement, dated as of ___________________ (this
"Agreement"), is made by and among (a) The Williams Companies, Inc., a
Delaware corporation ("Borrower"); (b) Citibank, N.A., as Administrative
Agent for the banks party to that certain Credit Agreement, dated as of
June 11, 2001 (as may be amended from time to time, the "Credit
Agreement"), by and among the Borrower, Merrill Lynch & Co., as Syndication
Agent, Lehman Commercial Paper Inc., as Documentation Agent, such
Administrative Agent and such banks; (c) ___________________ ("Assignor")
and (d) _______________ ("Assignee"). In consideration of the mutual
covenants herein contained, the parties hereto agree as set forth herein.
1. Transfer. Pursuant to the last sentence of Section 8.6(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 to the
Borrower under the Credit Agreement, such assignment from Assignor to
Assignee being [all of Assignor's Commitments to the Borrower][$___________
of Assignor's $____________ Commitment to the Borrower] (the amount of such
Commitment to the Borrower so assigned is called the "Assigned Portion" of
such Commitment). [The Assignee is already a Bank under the Credit
Agreement with a Commitment of $___________ to the Borrower prior to the
assumption contemplated hereby.] [The Assignee is hereby approved by the
Administrative Agent [and the Borrower] for purposes of the assignment and
assumption contemplated hereby.] As contemplated by such Section 8.6, it is
hereby agreed that:
(i) the Assignor is hereby released from all of its obligations
under the Credit Agreement with respect to or arising as a
result of the Assigned Portions of its Commitment assigned
hereby;
(ii) the Assignee hereby becomes obligated for the Assigned Portions
of such Commitment and all other obligations of the Assignor
(including, without limitation, obligations to the
Administrative Agent under Section 7.5 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 Commitment;
(iv) The Borrower, contemporaneously with its execution and delivery
hereof, will deliver, in replacement of the Note of the
Assignor currently outstanding [(and in replacement of
Assignee's existing $___________ Note)] (a) to the Assignee, a
new Note in the amount of $____________ [(and the Assignee
agrees to cancel and return to the Borrower, with reasonable
promptness following such delivery, the Note of the Assignee
being replaced thereby)], (b) to the Assignor, a new Note in
the amount of $____________ (and the Assignor agrees to cancel
and return to the Borrower, with reasonable promptness
following delivery of such new Note, the Note of the Assignor
being replaced thereby), and (c) to the Administrative Agent,
photocopies of all such new Notes and of all such canceled
Notes;
(v) [inasmuch as there are currently no outstanding Advances, no
transfer of Advances is hereby made];
(vi) [$__________ of the Assignor's outstanding Advances to the
Borrower are hereby transferred to the Assignee, which amounts
represent [the aggregate amount of all of the Assignor's
outstanding Advances to the Borrower respectively,] [the amount
of the assigned portions of the outstanding Advances of the
Assignor to the Borrower being hereby assigned to Assignee a
portion of each such Advance with the assigned portion of each
such Advance being equal to the amount of such 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 immediately prior to such assumption]; [and]
(vii) the Assignee hereby confirms that it is a party to the Credit
Agreement as a Bank and agrees that after giving effect to this
Agreement its Commitments will be $_______________ to the
Borrower; [and]
(viii) the Assignee hereby specifies the following offices as its
Applicable Lending Offices under the Credit Agreement:
Domestic Eurodollar
Lending Office Lending Office
Attention:______________ Attention:______________
Telephone:______________ Telephone:______________
Telecopy:______________ Telecopy:______________
Answerback:_____________ Answerback:_____________
(ix) [the Assignee hereby specifies the following as its address for
notices and communications under the Credit Agreement:
[Assignee]
Attention: ______________________
Telephone: _____________________
Telecopy: ______________________
Answerback: ____________________]
2. Miscellaneous.
2.1 Amendments, Etc. This Agreement shall not be amended, waived
or otherwise modified except in writing executed by the parties hereto.
2.2 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
2.3 Definitions. Capitalized terms used herein which are defined
in the Credit Agreement and not defined herein are used herein as defined
in the Credit Agreement.
2.4 Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
2.5 Effective Date. This Agreement shall be effective as of the date
first above written for purposes of computation of commitment fees under the
Credit Agreement and for all other relevant purposes.
2.6 Assignee Credit Decision. The Assignee acknowledges that it
has, independently and without reliance upon the Administrative 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
Administrative 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized, as
of the date first above written.
[NAME OF ASSIGNEE] THE WILLIAMS COMPANIES, INC.
By: By: ------------------------------------------------
Name: Name: ------------------------------------------------
Title: Title: ------------------------------------------------
[NAME OF ASSIGNOR] CITIBANK, N.A., as Administrative Agent
By: --------------------------------------------- By: ------------------------------------------------
Name: --------------------------------------------- Name: ------------------------------------------------
Title: --------------------------------------------- Title: ------------------------------------------------