EXHIBIT 10.8
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INDENTURE
dated as of March 28, 2001
among
WCG NOTE TRUST,
Issuer,
WCG NOTE CORP., INC.,
Co-Issuer
and
UNITED STATES TRUST COMPANY OF NEW YORK,
Indenture Trustee and Securities Intermediary
8.25% Senior Secured Notes due 2004
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TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS............................................................................................ 1
SECTION 1.01. Definitions.......................................................................... 1
SECTION 1.02. Rules of Construction................................................................ 8
SECTION 1.03. Legal Holidays....................................................................... 8
SECTION 1.04. Compliance Certificates and Opinions................................................. 8
SECTION 1.05. Form of Documents Delivered to Trustee............................................... 9
ARTICLE II THE SENIOR NOTES......................................................................................10
SECTION 2.01. Forms Generally......................................................................10
SECTION 2.02. Authorized Amount; Interest Rate; Maturity Date; Denominations.......................11
SECTION 2.03. Execution, Authentication, Delivery and Dating.......................................11
SECTION 2.04. Registrar and Paying Agent; Registration.............................................12
SECTION 2.05. Payments of Principal and Interest; Rights Preserved.................................13
SECTION 2.06. Transfer and Exchange of Senior Notes................................................14
SECTION 2.07. Replacement of Lost, Mutilated or Stolen Senior Notes................................21
SECTION 2.08. Taxes................................................................................22
SECTION 2.09. Cancellation.........................................................................22
ARTICLE III SUPPORT FOR THE SENIOR NOTES.........................................................................22
SECTION 3.01. Support for the Senior Notes; Grant of Lien..........................................22
SECTION 3.02. Noteholders and Williams Equally and Ratably Secured.................................23
SECTION 3.03. The Issuer's Obligations; Appointment of Attorney; Further
Assurances; Release..................................................................24
ARTICLE IV ISSUANCE..............................................................................................24
SECTION 4.01. Conditions to Issuance...............................................................24
SECTION 4.02. Waiver of Conditions to Issuance.....................................................26
ARTICLE V THE INDENTURE ACCOUNTS.................................................................................26
SECTION 5.01. Establishment of Indenture Accounts..................................................26
SECTION 5.02. Indenture Interest Account...........................................................28
SECTION 5.03. Indenture Redemption Account.........................................................28
SECTION 5.04. Share Trust Accounts.................................................................28
SECTION 5.05. Payments.............................................................................29
SECTION 5.06. Report to Noteholders................................................................33
SECTION 5.07. Termination..........................................................................34
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE ISSUERS.........................................................34
SECTION 6.01. Representations and Warranties.......................................................34
SECTION 6.02. Survival of Representations and Warranties...........................................37
ARTICLE VII COVENANTS OF THE ISSUERS.............................................................................37
SECTION 7.01. Covenants of the Issuers.............................................................37
ARTICLE VIII LIMITATION ON LIABILITY OF THE ISSUERS..............................................................41
SECTION 8.01. Liabilities of the Issuers...........................................................41
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ARTICLE IX EVENTS OF DEFAULT.....................................................................................41
SECTION 9.01. Events of Default....................................................................41
SECTION 9.02. Application of Proceeds..............................................................43
SECTION 9.03. Waiver of Past Events of Default.....................................................43
SECTION 9.04. Provisions Relating to the Support for the Senior Notes..............................44
ARTICLE X SATISFACTION AND DISCHARGE; NOTICE OF CERTAIN EVENTS; UNCLAIMED MONEYS................................50
SECTION 10.01. Satisfaction and Discharge of Indenture..............................................50
SECTION 10.02. Application by Indenture Trustee of Funds Deposited for Payment of
Secured Obligations..................................................................50
SECTION 10.03. Repayment of Moneys and Transfer of Eligible Investments Held by
Indenture Trustee....................................................................50
SECTION 10.04. Return of Moneys Held by Indenture Trustee...........................................50
SECTION 10.05. Notice of Certain Events.............................................................51
ARTICLE XI CONCERNING THE INDENTURE TRUSTEE......................................................................52
SECTION 11.01. Duties of the Indenture Trustee; Certain Rights of the Indenture
Trustee..............................................................................52
SECTION 11.02. Performance of Indenture Trustee's Duties............................................54
SECTION 11.03. Resignation and Removal; Appointment of Successor Indenture Trustee..................54
SECTION 11.04. Acceptance of Appointment by Successor Indenture Trustee.............................55
SECTION 11.05. Merger or Consolidation of Indenture Trustee.........................................55
SECTION 11.06. Certain Procedural Matters...........................................................55
SECTION 11.07. Indenture Trustee Fees and Indemnification...........................................55
SECTION 11.08. Information..........................................................................56
SECTION 11.09. Eligibility Requirements for Indenture Trustee.......................................56
SECTION 11.10. Indenture Trustee Not Liable for Senior Notes........................................57
SECTION 11.11. Indenture Trustee May Own Senior Notes...............................................57
SECTION 11.12. Maintenance of Office or Agency......................................................57
SECTION 11.13. Appointment of Co-Indenture Trustee..................................................57
SECTION 11.14. Resignation; Appointment of Successor Securities Intermediary........................57
SECTION 11.15. Acceptance of Appointment by Successor Securities Intermediary.......................58
SECTION 11.16. Merger or Consolidation of Securities Intermediary...................................58
ARTICLE XII SUPPLEMENTAL INDENTURES..............................................................................58
SECTION 12.01. Supplemental Indentures Without Consent of Noteholders...............................58
SECTION 12.02. Supplemental Indentures With Consent of Noteholders..................................59
SECTION 12.03. Effect of Supplemental Indenture.....................................................59
SECTION 12.04. Documents to Be Given to Indenture Trustee...........................................60
SECTION 12.05. Notation on Senior Notes in Respect of Supplemental Indentures.......................60
ARTICLE XIII CONCERNING THE HOLDERS..............................................................................60
SECTION 13.01. Control by Majority Noteholders......................................................60
SECTION 13.02. Evidence of Action Taken by Holders..................................................60
SECTION 13.03. Proof of Execution of Instruments....................................................61
SECTION 13.04. Senior Notes Owned by the Issuers....................................................61
SECTION 13.05. Right of Revocation of Action Taken..................................................61
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ARTICLE XIV EARLY REDEMPTION.....................................................................................61
SECTION 14.01. Early Redemption.....................................................................61
SECTION 14.02. Notice of Early Redemption...........................................................62
SECTION 14.03. Selection of Senior Notes to be Redeemed.............................................63
SECTION 14.04. Deposit of Early Redemption Price....................................................63
SECTION 14.05. Payment of Senior Notes Called for Early Redemption..................................63
SECTION 14.06. Senior Notes Redeemed in Part........................................................63
ARTICLE XV MANDATORY REDEMPTION..................................................................................64
SECTION 15.01. Mandatory Redemption.................................................................64
SECTION 15.02. Notice of Mandatory Redemption.......................................................64
SECTION 15.03. Selection of Senior Notes to be Redeemed.............................................65
ARTICLE XVI MISCELLANEOUS........................................................................................65
SECTION 16.01. Survival.............................................................................65
SECTION 16.02. Notices..............................................................................65
SECTION 16.03. Severability of Provisions...........................................................66
SECTION 16.04. Effect of Headings...................................................................66
SECTION 16.05. Counterparts.........................................................................66
SECTION 16.06. Further Assurance....................................................................66
SECTION 16.07. Governing Law; Consent to Jurisdiction...............................................66
SECTION 16.08. Entire Agreement.....................................................................68
SECTION 16.09. Benefit of Agreement.................................................................68
SECTION 16.10. Limitation on Rights of Noteholders..................................................68
SECTION 16.11. Limitation on Liability of the Remarketing Agents and the Indenture
Trustee..............................................................................69
SECTION 16.12. Senior Notes Non-Assessable and Fully Paid...........................................69
SECTION 16.13. Limitation on Liability..............................................................69
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Exhibit A Form of Rule 144A Note
Exhibit B Form of Regulation S Temporary Global Note
Exhibit C Form of Unrestricted Global Note
Exhibit D Form of Certificate of Transfer
Exhibit E Form of Certificate of Exchange
Exhibit F Form of Default Notice
Exhibit G Form of Spin-Off Notice
Exhibit H Form of Shortfall Notice
Exhibit I Form of Demand Notice
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INDENTURE
This INDENTURE, dated as of March 28, 2001, is among WCG NOTE
TRUST, a special purpose statutory business trust created under the law of the
State of Delaware (the "Issuer"), WCG NOTE CORP., INC., a special purpose
corporation organized under the law of the State of Delaware (the "Co-Issuer"
and, together with the Issuer, the "Issuers"), and UNITED STATES TRUST COMPANY
OF NEW YORK, a New York banking corporation duly organized and existing under
the law of the State of New York (in its capacity as Indenture Trustee, together
with its successors in such capacity, the "Indenture Trustee" and, in its
capacity as securities intermediary, together with its successors in such
capacity, the "Securities Intermediary").
WITNESSETH:
WHEREAS, pursuant to a Participation Agreement (the
"Participation Agreement") dated as of March 22, 2001, among Williams, WCG, WCL,
the Issuer, the Co-Issuer, the Share Trust, Wilmington Trust Company and United
States Trust Company of New York (each as defined therein), the Issuers are
required to issue, offer and sell the Senior Notes;
WHEREAS, the Issuers have authorized the issuance and sale of
$1,400,000,000 original aggregate principal amount of their 8.25% Senior Secured
Notes due 2004, the payments of which will be secured by the Security for the
Senior Notes;
WHEREAS, the Issuer also wishes to secure its Reimbursement
Obligations to Williams pursuant to the Remarketing and Support Agreement and
the Liquidity Agreement with the Security for the Senior Notes;
WHEREAS, the execution and delivery of this Indenture has been
duly authorized by the Issuers;
WHEREAS, the Indenture Trustee has accepted the trusts created
by this Indenture and in evidence thereof has joined in the execution hereof;
and
WHEREAS, all things necessary to make the Senior Notes, when
issued and authenticated by the Indenture Trustee as contemplated in this
Indenture, the legal, valid and binding obligations of the Issuers and to
provide the Security for the Senior Notes have been done and performed.
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that for good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and for the purpose of fixing and declaring the terms and
conditions upon which the Senior Notes are to be issued, authenticated,
delivered, secured and accepted by all Persons who shall from time to time be or
become holders thereof, the Issuers and the Indenture Trustee, for the benefit
of the Noteholders, agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. References to "Sections" and
"Articles" herein refer to Sections and Articles of this Indenture unless
otherwise stated. Unless otherwise defined herein or unless the context shall
otherwise require, capitalized terms used in this Indenture shall have the
meanings assigned to such terms in Annex A to the Participation Agreement.
Whenever used in this Indenture, the following words and phrases, unless the
context otherwise requires, shall have the following meanings:
"Acceleration Trigger" means the occurrence of an Event of
Default and the acceleration of the Senior Notes in accordance with Section
9.01.
"Account Statement" has the meaning assigned to such term in
Section 5.06.
"Amount Available" means, at any time, with respect to any
Indenture Account, the amount in cash credited to such Indenture Account at such
time.
"Applicable Procedures" means, with respect to any transfer or
exchange of, or for beneficial interests in, any Global Note, the applicable
rules and procedures of the Depositary, Euroclear and Clearstream that apply to
such transfer or exchange.
"Asset Remedy Standstill Period" has the meaning assigned to
such term in Section 9.04(b)(ii).
"Authentication Order" means an order executed by the Issuers
and addressed to the Indenture Trustee for the authentication and delivery of
the Senior Notes.
"Cash Flow Event of Default" has the meaning assigned to such
term in Section 9.01(b).
"Certificate of Authentication" has the meaning assigned to
such term in Section 2.03(f).
"Clearstream" means Clearstream Banking, societe anonyme.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Senior Notes from the date of
determination to the Maturity Date that would be utilized in pricing new issues
of corporate debt securities of comparable maturity to the remaining term of the
applicable securities, at the time of selection and in accordance with customary
financial practice.
"Comparable Treasury Price" means, with respect to any
redemption date for the Senior Notes, (i) the average of the applicable
Reference Treasury Dealer Quotations for such redemption date, after excluding
the highest and lowest such applicable Reference Treasury Dealer Quotations, or
(ii) if fewer than four such Reference Treasury Dealer Quotations are obtained,
the average of all such Quotations.
"Corporate Trust Office" means the principal office of the
Indenture Trustee at which at any particular time its corporate trust business
shall be administered, which office, at the date of the execution of this
Indenture, is located at United States Trust Company of New York, 114 West 47th
Street, 25th Floor, New York, New York 10036, Attention: Louis P. Young or any
other office specified from time to time in writing by the Indenture Trustee to
the Issuers.
"Custodian" has the meaning assigned to such term in Section
2.01(b).
"Default Notice" has the meaning assigned to such term in
Section 9.01.
"Definitive Notes" means one or more definitive Senior Notes
registered in the name of the Holder thereof and issued in accordance with
Section 2.06, substantially in the form of Exhibit A hereto except that such
Senior Notes shall not bear the Global Note Legend and shall not have the
"Schedule of Exchanges of Interests in the Global Note" attached thereto.
"Demand Notice" has the meaning assigned to such term in
Section 5.05(a)(ii).
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"Depositary" means DTC, its nominees and their respective
successors and assigns or such other depository institution hereinafter
appointed by the Issuers.
"Distribution Compliance Period" has the meaning assigned to
such term in Regulation S.
"DTC" means The Depository Trust Company.
"Early Distribution" means (i) any prepayment on the WCG Note
or (ii) any proceeds from a Reset Sale or a sale of the WCG Note pursuant to
Section 9.04(i)(i),(ii) or (iii).
"Early Redemption" has the meaning assigned to such term in
Section 14.01(a).
"Early Redemption Date" has the meaning assigned to such term
in Section 14.01(a).
"Early Redemption Price" has the meaning assigned to such term
in Section 14.01(b).
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear system, or any successor to Morgan
Guaranty Trust Company of New York, Brussels office, as operator thereof.
"Excepted Rights" has the meaning assigned to such term in
Section 9.04(g).
"Global Note Legend" has the meaning assigned to such term in
Section 2.06(e)(ii).
"Global Notes" means, individually and collectively, one or
more Rule 144A Global Notes, Regulation S Global Notes and/or Regulation S
Temporary Global Notes.
"Grant" shall mean to grant, bargain, sell, warrant, alienate,
remise, demise, release, convey, assign, transfer, mortgage, pledge, create and
grant a security interest in or a Lien and right of set-off against, deposit,
set over and confirm. A Grant of the Security for the Senior Notes or of any
other instruments shall include all rights, powers and options (but none of the
obligations) of the granting party thereunder, including the immediate
continuing right to claim for, collect, receive and receipt for principal and
interest payments in respect to the Security for the Senior Notes and all other
moneys payable thereunder, to give and receive notices and other communications,
to make waivers or other agreements, to exercise all rights and options, to
bring proceedings in the name of the granting party or otherwise and generally
to do and receive anything that the granting party is or may be entitled to do
or receive thereunder or with respect thereto.
"Holders" and "Noteholders" means the registered holders from
time to time of any of the Senior Notes.
"Indenture Accounts" has the meaning assigned to such term in
Section 5.01(a).
"Indenture Interest Account" has the meaning assigned to such
term in Section 5.01(a).
"Indenture Default" means any event or occurrence that with
the giving of notice or lapse of time or both would become an Event of Default.
"Indenture Redemption Account" has the meaning assigned to
such term in Section 5.01(a).
"Indenture Trustee Expenses" has the meaning assigned to such
term in Section 11.07(a).
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"Indenture Trustee Fee" means the initial and annual fee to be
paid to the Indenture Trustee pursuant to Section 11.07 and in accordance with a
separate fee agreement between the Issuer and the Indenture Trustee.
"Independent Investment Banker" means CSFB or another
independent investment banking institution of national standing appointed by the
Issuer.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Insolvency Appointee" has the meaning assigned to such term
in Section 7.01(d).
"Interest Payment Date" means each March 15 and September 15,
commencing September 15, 2001.
"Issuer Only Payment Default" has the meaning assigned to such
term in Section 9.04(i)(iv).
"Issuers' Certificate" means a certificate of the Issuer
executed on behalf of itself (by the Issuer Trustee) and the Co-Issuer.
"Majority Noteholders" means, at any time, Noteholders
holding, collectively, Senior Notes evidencing at least a majority in aggregate
outstanding principal amount of the Senior Notes at such time.
"Mandatory Redemption" has the meaning assigned to such term
in Section 15.01(d).
"Mandatory Redemption Date" has the meaning assigned to such
term in Section 15.01(d).
"Mandatory Redemption Price" has the meaning assigned to such
term in Section 15.01(d).
"Maturity Date" has the meaning assigned to such term in
Section 2.02(c).
"Maturity Trigger" means the failure by Williams to exercise
the Share Trust Release Option at least 120 days prior to the Maturity Date in
an amount from Permitted Redemption Sources which, in the aggregate with all
funds and any investments then held in the Indenture Accounts and available to
the Indenture Trustee for repayment of the Senior Notes, is sufficient to repay
all accrued and unpaid interest on and all outstanding principal of the Senior
Notes on the Maturity Date and any other determinable amounts that are, or are
scheduled to become, due and payable under this Indenture on or prior to the
Maturity Date.
"Note Register" has the meaning assigned to such term in
Section 2.04(a).
"Notice of Early Redemption" has the meaning assigned to such
term in Section 14.02.
"Notice of Mandatory Redemption" has the meaning assigned to
such term in Section 15.02.
"Officer's Certificate" means a certificate of any Person
signed by any Authorized Officer of such Person.
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"Opinion of Counsel" means an opinion in writing signed by
legal counsel and delivered to the Indenture Trustee which counsel may be an
employee of Williams or WCG or other counsel reasonably satisfactory to the
Indenture Trustee.
"Outstanding" means at any time all Senior Notes authenticated
and delivered by the Indenture Trustee under this Indenture except:
(a) Senior Notes theretofore canceled by the Indenture Trustee
or delivered to the Indenture Trustee for cancellation;
(b) Senior Notes or portions thereof, with respect to which
moneys in the amount necessary to pay such Senior Notes or portions thereof
shall have been deposited in trust with the Indenture Trustee; provided that, if
such Senior Notes or portions thereof are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as herein provided or
provision satisfactory to the Indenture Trustee shall have been made for the
giving of such notice; and
(c) Senior Notes in substitution or exchange for which other
Senior Notes shall have been authenticated and delivered.
"Participant" means, with respect to the Depositary, Euroclear
or Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include Euroclear and
Clearstream).
"Paying Agent" means any Person authorized by the Issuers to
pay the principal of, premium, if any, or interest on any Senior Notes on behalf
of the Issuers as specified in Section 2.04(b).
"QIB" means a "qualified institutional buyer" within the
meaning of Rule 144A.
"Qualified Equity Proceeds" means amounts equivalent to the
proceeds of (i) sales of mandatorily convertible preferred (as to which the
conversion must occur within three years of its issuance) or common equity
securities of Williams, (ii) conversion by its terms of convertible debt or
non-mandatorily convertible preferred stock into common equity securities of
Williams, (iii) sales by Williams of its equity interests in WCG (or any of
WCG's Subsidiaries), (iv) the liquidation by Williams of securities or assets
received by Williams in exchange for its equity interests in WCG or (v) sales or
dispositions of assets of Williams or its Subsidiaries for cash up to the amount
of equity that has been issued by Williams in one or more consolidations,
acquisitions, mergers or other similar transactions, in each case, occurring
after the Closing Date.
"Record Date" has the meaning assigned to such term in Section
5.05(f).
"Reference Treasury Dealer" means at least four primary U.S.
Government securities dealers in New York City as an Independent Investment
Banker shall select at the request of the Issuer.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer, the average, as determined by an Independent
Investment Banker, of the bid and asked prices for the Comparable Treasury Issue
for the Senior Notes (expressed in each case as a percentage of its principal
amount), quoted in writing by such Reference Treasury Dealer at 5:00 p.m. on the
third Business Day preceding a redemption date for the Senior Notes.
"Registrar" has the meaning assigned to such term in Section
2.04(a).
"Regulation S" means Regulation S under the Securities Act.
5
"Regulation S Global Note" means one or more permanent global
notes substantially in the form of Exhibit B hereto bearing the Global Note
Legend and deposited with or on behalf of and registered in the name of the
Depositary, issued in an aggregate denomination equal to the outstanding
principal amount of the Regulation S Temporary Global Note upon expiration of
the Distribution Compliance Period.
"Regulation S Temporary Global Note" means one or more
temporary global notes substantially in the form of Exhibit B hereto bearing the
Regulation S Temporary Global Note Legend, the Global Note Legend and the
Transfer Restriction Legend and deposited with or on behalf of and registered in
the name of the Depositary, issued in an aggregate denomination equal to the
outstanding principal amount of the Senior Notes initially sold in reliance on
Rule 903 of Regulation S.
"Regulation S Temporary Global Note Legend" has the meaning
assigned to such term in Section 2.06(e)(iii).
"Required Holder" has the meaning assigned to such term in
Section 9.01.
"Restricted Definitive Note" means a Definitive Note bearing
the Transfer Restriction Legend.
"Restricted Global Note" means a Global Note bearing the
Transfer Restriction Legend.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Global Note" means one or more permanent global
notes substantially in the form of Exhibit A hereto bearing the Global Note
Legend and the Transfer Restriction Legend and deposited with or on behalf of,
and registered in the name of, the Depositary, issued in an aggregate
denomination equal to the outstanding principal amount of the Senior Notes sold
in reliance on Rule 144A.
"Secured Obligations" has the meaning assigned to such term in
Section 3.01.
"Securities Intermediary" has the meaning assigned to such
term in the introductory paragraph of this Indenture.
"Security for the Senior Notes" has the meaning assigned to
such term in Section 3.01.
"Semi-Annual Cash Flow" has the meaning assigned to such term
in Section 5.02(b).
"Senior Note Interest Amount" means, for any Senior Note
Payment Date, the product of (a) the Senior Note Rate, (b) the aggregate
Outstanding principal amount of Senior Notes and (c) the quotient of (i) the
number of days elapsed (calculated on the basis of a 360-day year consisting of
twelve 30-day months) since the later of the Closing Date or the last Interest
Payment Date (provided that for any period during which the Senior Note Rate is
increased or decreased, this calculation shall be based on the number of days
elapsed for which each such Senior Note Rate was applicable during such period,
without duplication) and (ii) 360.
"Senior Note Payment Date" means: (a) each Interest Payment
Date, (b) the Maturity Date, (c) a Mandatory Redemption Date and (d) an Early
Redemption Date.
"Senior Note Rate" means the fixed per annum rate equal to
8.25%; provided that the Senior Note Rate shall, to the extent permitted by
Applicable Law, be increased by 2% per annum (calculated on the basis of a
360-day year consisting of twelve 30-day months) (it being understood that the
Senior Note Rate shall never exceed 10.25%) upon the occurrence of: (a) the
failure to pay in full the
6
Senior Notes on the Maturity Date (such additional 2% beginning to accrue from
the Maturity Date) or (b) the failure to pay interest on the Senior Notes on any
Interest Payment Date and such failure continues for five Business Days (such
additional 2% beginning to accrue from such Interest Payment Date); and, in each
case, will continue to accrue at such higher rate until such circumstance has
been remedied in full.
"Senior Notes" means the 8.25% senior secured notes due 2004
issued by the Issuers pursuant to this Indenture in an original aggregate
principal amount of $1,400,000,000.
"Share Trust Proceeds Account" has the meaning assigned to
such term in Section 5.01.
"Share Trust Remedy Standstill Period" has the meaning
assigned to such term in Section 9.04(b)(i).
"Shortfall Notice" has the meaning assigned to such term in
Section 5.05(a)(i).
"Special Default" means any Reset Event that does not
otherwise constitute an Event of Default.
"Spin-Off Notice" means a notice delivered to the Issuer
Trustee and the Indenture Trustee by Williams substantially in the form of
Exhibit G attached hereto.
"Standstill Expiration Date" means the date of expiration of
any 21-day, 60-day or 120-day period referred to in Section 9.04(b)(i) or (ii).
"Stock Price/Credit Downgrade Trigger" means (a) a downgrading
of Williams' senior unsecured debt to "Ba1" or below by Moody's, "BB" or below
by S&P or "BB+" or below by Fitch (a "Downgrade") and (b) while such Downgrade
is in effect, for ten consecutive Trading Days or, from the date of any Spin-Off
Notice until 120 days from the date of such Spin-Off Notice, for 20 consecutive
Trading Days, Williams' or any successor's common stock closing price shall be
$30.22 or below, after adjustment of such price to appropriately reflect, in the
same manner as set forth in the Certificate of Designation, any stock split,
stock dividend or other events occurring with respect to such common stock after
the Closing Date that would result in adjustments made to the "Optional
Conversion Rate" as defined in the Certificate of Designation.
"Transfer Restriction Legend" has the meaning assigned to such
term in Section 2.06(e)(i).
"Treasury Yield" means, with respect to any redemption date
for the Senior Notes, the rate per annum equal to the semi-annual equivalent
yield to maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the applicable Comparable Treasury Price for the applicable redemption
date.
"Trigger Event" means the occurrence of (a) the Acceleration
Trigger, (b) the Maturity Trigger, or (c) the Stock Price/Credit Downgrade
Trigger.
"Trigger Event Notice" has the meaning assigned to such term
in Section 9.04.
"U.S. Person" means a "U.S. person" within the meaning of
Regulation S.
"U.S. Treasuries" means direct general obligations of, or
obligations fully and unconditionally guaranteed as to the timely payment of
principal and interest by, the United States, but excluding any of such
securities whose terms do not provide for payment of a fixed dollar amount upon
maturity or call for redemption.
7
"Unrestricted Definitive Note" means one or more Definitive
Notes that do not bear and are not required to bear the Transfer Restriction
Legend.
"Unrestricted Global Note" means one or more permanent Global
Notes substantially in the form of Exhibit C attached hereto that bear the
Global Note Legend and that have the "Schedule of Exchanges of Interests in the
Global Note" attached thereto and that are deposited with or on behalf of and
registered in the name of the Depositary, representing Senior Notes that do not
bear and are not required to bear the Transfer Restriction Legend.
"Williams Event" means the occurrence of any event described
in Sections 9.01(c) through (i) and (k) with respect to Williams or the Share
Trust.
SECTION 1.02. Rules of Construction. This Indenture and the
definitions referred to in Section 1.01 shall be governed by, and construed in
accordance with, the rules of construction set forth in Section 1.02 of Annex A
to the Participation Agreement.
SECTION 1.03. Legal Holidays. In any case where any Senior
Note Payment Date or any date for the making of a deposit or payment hereunder
shall fall on a day which is not a Business Day, such deposit or payment need
not be made on such date but may be made on the next succeeding day that is a
Business Day with the same force and effect as if made on such Senior Note
Payment Date; provided that no interest shall accrue on the amount so payable
for such period; provided, further, that, if such next succeeding Business Day
shall be in the next calendar year, such deposit or payment shall be made on the
preceding Business Day.
SECTION 1.04. Compliance Certificates and Opinions. Except as
otherwise expressly provided in this Indenture, upon any application or request
by the Issuers to the Indenture Trustee that the Indenture Trustee take any
action under any provision of this Indenture, the Issuers shall furnish to the
Indenture Trustee an Issuers' Certificate stating that all conditions precedent,
if any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that, in the case of any particular application or request as to which the
furnishing of documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each party providing such certificate or
opinion has read such covenant or condition and the definitions herein
and in the Participation Agreement relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such party, such
party has made such examination or investigation as is reasonably
necessary to enable such party to express an informed opinion as to
whether or not such covenant or condition has been complied with;
(d) a statement as to whether, in the opinion of each such
party, such condition or covenant has been complied with; and
(e) in the case of an Issuers' Certificate, a statement that
no Indenture Default or Event of Default has occurred and is continuing
(unless such Issuers' Certificate relates to or occurs
8
after an Indenture Default or Event of Default in which case such
Issuer's Certificate shall state that an Indenture Default or Event of
Default has occurred and the action being taken with respect thereto).
SECTION 1.05. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person or that they be
so certified by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any Issuers' Certificate or Opinion of Counsel of the Issuers
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless the person signing such
Issuers' Certificate or Opinion of Counsel has actual knowledge that the
certificate or opinion or representations with respect to the matters upon which
such Issuers' Certificate or Opinion of Counsel is based are erroneous. Any such
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate of an Authorized Officer of the Issuers, Williams or any other
party to the Transaction Documents, as applicable, stating that the information
with respect to such factual matters is in the possession of such Person unless
such counsel knows that the certificate or opinion or representations with
respect to such matters are erroneous.
Any Opinion of Counsel stated to be based on the opinion of
other counsel shall be accompanied by a copy of such other opinion.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Whenever, subsequent to the receipt by the Indenture Trustee
of any Issuers' Certificate, Opinion of Counsel or other document or instrument,
a clerical, typographical or other inadvertent or unintentional error or
omission shall be discovered therein, a new document or instrument may be
substituted therefor in corrected form with the same force and effect as if
originally filed in the corrected form and, irrespective of the date or dates of
the actual execution and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and/or delivered as of the date
or dates required with respect to the document or instrument for which it is
substituted. Anything in this Indenture to the contrary notwithstanding, if any
such corrective document or instrument indicates that action has been taken by
or at the request of the Issuers which could not have been taken had the
original document or instrument not contained such error or omission, the action
so taken shall not be invalidated or otherwise rendered ineffective but shall be
and remain in full force and effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without limiting the generality of
the foregoing, any Senior Notes issued under the authority of such defective
document or instrument shall nevertheless be the valid obligation of the Issuers
entitled to the benefits of this Indenture equally and ratably with all other
Outstanding Senior Notes, except as aforesaid.
9
ARTICLE II
THE SENIOR NOTES
SECTION 2.01. Forms Generally.
(a) The Senior Notes and the Indenture Trustee's Certificate
of Authentication shall be in substantially the forms set forth in Exhibits A, B
and C hereto (i) in the case of Global Notes, including the Global Note Legend
thereon and the "Schedule of Exchanges of Interests in the Global Note" attached
thereto and (ii) in the case of Definitive Notes, without the Global Note Legend
thereon and without the "Schedule of Exchanges of Interests in the Global Note"
attached, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with applicable laws or
the rules of any securities exchange or Depositary or as may, consistently
herewith, be determined by the Authorized Officers executing such Senior Notes,
as evidenced by their execution of the Senior Notes. Any portion of the text of
any Senior Note may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of such Senior Note.
The terms and provisions contained in the Senior Notes shall
constitute, and are hereby expressly made, a part of this Indenture, and the
Issuers and the Indenture Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
To the extent any provision of any Senior Note conflicts with the express
provisions of this Indenture, however, the provisions of this Indenture shall
govern and be controlling.
(b) Senior Notes offered and sold in the United States to QIBs
shall be issued on the Closing Date in the form of the Rule 144A Global Note in
fully registered form without interest coupons and shall represent the
beneficial interests of Persons purchasing such Senior Notes. The Rule 144A
Global Note shall be deposited with the Indenture Trustee, as custodian (in such
capacity, the "Custodian") for the Depositary, duly executed by the Issuers and
authenticated by the Indenture Trustee as hereinafter provided. The Rule 144A
Global Note may be represented by more than one certificate, if so required by
the Depositary's rule regarding the maximum principal amount to be represented
by a single certificate. The aggregate principal amount of the Rule 144A Global
Note may from time to time be increased or decreased by adjustments made on the
records of the Custodian as hereinafter provided. Interests in the Rule 144A
Global Note shall be transferred on the Depositary's book-entry settlement
system in accordance with the Applicable Procedures.
(c) Senior Notes offered and sold in offshore transactions to
non-U.S. Persons (as defined in Regulation S) in reliance on Regulation S shall
be issued on the Closing Date in the form of the Regulation S Temporary Global
Note in fully registered form without interest coupons and shall represent the
beneficial interests of Persons purchasing such Senior Notes. At any time on or
after the termination of the Distribution Compliance Period and upon the receipt
by the Indenture Trustee of (i) a written certificate from the Depositary,
together with copies of certificates from Euroclear and Clearstream, certifying
in accordance with Rule 903(b)(3)(ii)(B) under the Securities Act that they have
received certification of non-United States beneficial ownership of 100% of the
aggregate principal amount of the Regulation S Temporary Global Note (except to
the extent of any beneficial owners thereof who acquired an interest therein
during the Distribution Compliance Period pursuant to another exemption from
registration under the Securities Act and who will take delivery of a beneficial
ownership interest in a Rule 144A Global Note, all as contemplated by Section
2.06(b) hereof), and (ii) an Authentication Order from the Issuers, beneficial
interests in the Regulation S Temporary Global Note shall be exchanged for
beneficial interests in a Regulation S Global Note pursuant to the Applicable
Procedures. Upon any exchange of a portion of a Regulation S Temporary Global
Note for a comparable portion of a Regulation S Global Note, the Custodian shall
endorse on the schedules affixed to each such Regulation S Temporary Global Note
(or on continuations of such schedules affixed to each such Regulation S
Temporary Global
10
Note and made parts thereof) appropriate notations evidencing the date of
transfer and (A) with respect to the applicable Regulation S Temporary Global
Note, a decrease in the principal amount thereof equal to the amount covered by
the applicable certification and (B) with respect to the applicable Regulation S
Global Note, an increase in the principal amount thereof equal to the principal
amount of the decrease in the applicable Regulation S Temporary Global Note
pursuant to clause (A) above. The Regulation S Temporary Global Note and the
Regulation S Global Note, as applicable, will be deposited with the Custodian,
duly executed by the Issuers and authenticated by the Indenture Trustee as
hereinafter provided; provided that upon such deposit all such Senior Notes
shall be credited to or through accounts maintained by DTC by or on behalf of
Euroclear or Clearstream. The Regulation S Temporary Global Note and the
Regulation S Global Note, as applicable, may be represented by more than one
certificate, if so required by the Depositary's rules regarding the maximum
principal amount to be represented by a single certificate. The aggregate
principal amount of the Regulation S Temporary Global Note and the Regulation S
Global Note, as applicable, may from time to time be increased or decreased by
adjustments made on the records of the Custodian as hereinafter provided.
(d) The provisions of the "Operating Procedures of the
Euroclear System" and "Terms and Conditions Governing Use of Euroclear" and the
"General Terms and Conditions of Clearstream Banking" and "Customer Handbook" of
Clearstream, in each case, as in effect from time to time, shall be applicable
to transfers of beneficial interests in the Regulation S Temporary Global Note
and the Regulation S Global Note that are held by Participants through Euroclear
or Clearstream.
(e) The Issuers, in issuing the Senior Notes, may use "CUSIP,"
"CINS," "Common Code" and "ISIN" numbers, and, if so, the Indenture Trustee will
indicate the CUSIP, CINS, Common Code and ISIN numbers of the Senior Notes in
notices of redemption and related materials as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Senior Notes or as
contained in any notice of redemption and related materials.
SECTION 2.02. Authorized Amount; Interest Rate; Maturity Date;
Denominations.
(a) The aggregate principal amount of Senior Notes which may
be issued on the date hereof and outstanding at any one time under this
Indenture shall not exceed $1,400,000,000.
(b) The Senior Notes shall bear interest at the Senior Note
Rate. Interest shall accrue on the unpaid principal amount of the Senior Notes
from time to time from the Closing Date, and accrued and unpaid interest will be
payable semi-annually in arrears on each Interest Payment Date. Interest on the
Senior Notes will be computed on the basis of the number of days elapsed
(calculated on the basis of a 360-day year consisting of twelve 30-day months).
(c) The maturity date for the Senior Notes will be March 15,
2004 (the "Maturity Date").
(d) The Senior Notes shall be issuable in minimum
denominations of $25,000 and integral multiples of $1,000 in excess thereof.
(e) The Senior Notes shall be redeemable as provided in
Article XIV and Article XV.
SECTION 2.03. Execution, Authentication, Delivery and Dating.
(a) The Senior Notes shall be executed on behalf of the
Issuers by an Authorized Officer of each of the Issuer and the Co-Issuer. The
signatures of such Authorized Officers on the Senior Notes may be manual or
facsimile (including in counterparts).
11
(b) Senior Notes bearing the manual or facsimile signatures of
individuals who were at any time the Authorized Officers of the Issuer or the
Co-Issuer, shall bind the Issuer or the Co-Issuer, as the case may be,
notwithstanding the fact that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Senior Notes
or did not hold such offices at the date of issuance of such Senior Notes. With
the delivery of this Indenture, each of the Issuers is furnishing, and from time
to time thereafter may furnish, an Officer's Certificate identifying and
certifying the incumbency and specimen signatures of its respective Authorized
Officers. Until the Indenture Trustee receives a subsequent Officer's
Certificate, the Indenture Trustee shall be entitled to rely on the last such
Officer's Certificate delivered to it for purposes of determining the Authorized
Officers of each of the Issuers. Typographical and other minor errors or defects
in any signature shall not affect the validity or enforceability of any Senior
Note which has been duly authenticated and delivered by the Indenture Trustee.
(c) At any time and from time to time after the execution and
delivery of this Indenture, the Issuers may deliver the Senior Notes executed by
the Issuers to the Indenture Trustee for authentication, and the Indenture
Trustee, upon receiving an Authentication Order, shall authenticate and deliver
such Senior Notes as provided in this Indenture and not otherwise.
The Indenture Trustee may appoint an authenticating agent
acceptable to the Issuers to authenticate the Senior Notes. Unless limited by
the terms of such appointment, an authenticating agent may authenticate Senior
Notes whenever the Indenture Trustee may do so. Each reference in this Indenture
to authentication by the Indenture Trustee includes authentication by any such
agent. An authenticating agent shall have the same rights as the Registrar and
the Paying Agent to deal with Holders or any Affiliate of either of the Issuers.
(d) Each Senior Note authenticated and delivered by the
Indenture Trustee upon Authentication Order on the Closing Date shall be dated
as of the Closing Date.
(e) Senior Notes issued upon transfer, exchange or replacement
of other Senior Notes shall be issued in authorized denominations reflecting the
original aggregate principal amount of the Senior Notes so transferred,
exchanged or replaced.
(f) No Senior Note shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose, unless there appears on
such Senior Note a certificate of authentication (the "Certificate of
Authentication") substantially in the form provided for herein, executed by the
Indenture Trustee by the manual signature of one of its Authorized Officers, and
such certificate upon any Senior Note shall be conclusive evidence, and the only
evidence, that such Senior Note has been duly authenticated and delivered
hereunder.
SECTION 2.04. Registrar and Paying Agent; Registration.
(a) The Issuers shall cause to be kept at the Corporate Trust
Office one or more books (the "Note Register") for the registration of the
Senior Notes and the registration of transfer or exchange of any of the Senior
Notes. The Note Register shall be in written form or any other form capable of
being converted into written form within a reasonable time. At all reasonable
times, the Note Register shall be open to inspection by the Indenture Trustee.
The Indenture Trustee is hereby initially appointed as security registrar (the
"Registrar") for the purpose of registering Senior Notes and transfers of Senior
Notes as hereinafter provided.
(b) The Issuers shall maintain an office or agency with a
Person in the Borough of Manhattan in The City of New York where Senior Notes
may be presented for payment, and United States Trust Company of New York is
hereby initially appointed as Paying Agent for the Senior Notes. The Issuers
shall give prompt written notice to the Indenture Trustee and the Indenture
Trustee shall
12
notify the Rating Agencies and the Noteholders of the appointment or termination
of any Paying Agent or agent for notices and of the location and any change in
the location of any such office or agency.
(c) The Issuers shall require each Paying Agent other than the
Indenture Trustee to agree in writing, and the Indenture Trustee in its capacity
as the initial Paying Agent hereby agrees, that the Paying Agent will hold in
trust for the benefit of Holders and the Indenture Trustee all money held by the
Paying Agent for the payment of principal of, premium, if any, or interest on
the Senior Notes and will notify the Indenture Trustee in writing of any default
by the Issuers in making any such payment. While any such default continues, the
Indenture Trustee may require the Paying Agent to pay all money held by it to
the Indenture Trustee. The Issuers, at any time, may require the Paying Agent to
pay all money held by it to the Indenture Trustee. Upon payment over to the
Indenture Trustee, the Paying Agent (if other than either of the Issuers) shall
have no further liability for the money. If either of the Issuers acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of
the Holders all money held by it as Paying Agent. Upon any bankruptcy or
insolvency proceedings relating to the Issuers, if either of the Issuers is then
acting as Paying Agent, the Indenture Trustee shall thereafter serve as Paying
Agent for the Senior Notes.
SECTION 2.05. Payments of Principal and Interest; Rights
Preserved.
(a) Notwithstanding any provision of this Indenture or the
Senior Notes to the contrary other than Sections 14.02(f) and 15.02(e), payments
of all amounts which become due and payable in respect of any Senior Note other
than payment in full shall be made by the Paying Agent directly to the Person in
whose name that Senior Note is registered at the close of business on the Record
Date for such payment, without surrender or presentation thereof to the Paying
Agent.
(b) The Issuers hereby covenant with the Paying Agent to pay
or cause to be paid to the Paying Agent, prior to 10:00 a.m., New York City
time, on each Senior Note Payment Date, all amounts from time to time due and
payable by them hereunder and under the Senior Notes to any Noteholder as herein
and therein provided (including the manner of payment thereof).
(c) The unpaid principal balance of each Senior Note shall be
payable on the Maturity Date thereof unless the principal of such Senior Note
becomes due and payable at an earlier date by declaration of acceleration, call
for redemption or as otherwise agreed between the Issuers and the Noteholders.
Except as provided in Section 14.03, any repayment of principal shall be applied
to repay the Senior Notes Outstanding ratably in accordance with the respective
unpaid principal balances thereof. The final installment of principal on any
Senior Note, whether at maturity or upon redemption, will be payable only upon
surrender of such Senior Note at the Corporate Trust Office or at the specified
offices of any Paying Agent and will be made to the Person surrendering such
Senior Note.
If the due date for payment of the final installment of
principal in respect of any Senior Note is not a Business Day at the place in
which it is presented for payment, the Noteholder thereof will not be entitled
to payment of the amount due until the next succeeding Business Day at such
place and will not be entitled to any further interest or other payment in
respect of any such delay.
(d) Interest on any Senior Note which is payable, and is
punctually paid or duly provided for by the Issuers on any Senior Note Payment
Date, shall be paid to the Person in whose name that Senior Note is registered
at the close of business on the Record Date relating to such interest payment.
(e) All reductions in the principal amount of a Senior Note
(or one or more predecessor Senior Notes) effected by payments of principal made
on any Early Redemption Date shall be binding upon all future Holders of such
Senior Notes and of any Senior Note issued upon the
13
registration of transfer thereof or in exchange therefor or in lieu thereof,
whether or not such payment is noted on such Senior Note.
(f) Notwithstanding any other term of this Indenture, the
Senior Notes, any other Transaction Document or otherwise, the obligations of
the Issuers under the Senior Notes and this Indenture are senior secured limited
recourse obligations of the Issuers, payable solely from the Security for the
Senior Notes, and, following realization of the Security for the Senior Notes
and application of proceeds thereof in accordance with the terms of this
Indenture, none of the Noteholders, the Indenture Trustee or any of the other
parties to the Transaction Documents shall be entitled to take any further
action to recover any sums due but remaining unpaid hereunder or thereunder, all
claims in respect of which shall be extinguished. In particular, neither the
Indenture Trustee nor any Noteholder nor any other party to a Transaction
Document shall be entitled to petition or take any other action for the winding
up or bankruptcy of either the Issuer or the Co-Issuer or shall have any claim
in respect of any assets of either of the Issuers other than the Security for
the Senior Notes. No recourse shall be had for the payment of any amount owing
in respect of the Senior Notes or this Indenture against any trustee, trust
officer, limited partner, general partner, holder of a beneficial interest,
officer, director, employee, shareholder or incorporator of either of the
Issuers, the Noteholders, the Indenture Trustee, the Initial Purchasers, their
respective Affiliates or any of their successors or assigns. It is understood
that the foregoing provisions of this paragraph (f) shall not (i) prevent
recourse to the Security for the Senior Notes for the sums due or to become due
under any security, instrument or agreement which is part of the Security for
the Senior Notes or (ii) except as specifically provided therein, constitute a
waiver, release or discharge of any indebtedness or obligation evidenced by the
Senior Notes or secured by this Indenture. It is further understood that the
foregoing provisions of this paragraph (f) shall not limit the right of any
Person to name the Issuers as party defendants in any Proceeding or in the
exercise of any other remedy under the Senior Notes or this Indenture, so long
as no judgment in the nature of a deficiency judgment or seeking personal
liability shall be asked for or (if obtained) enforced against any such Person.
(g) Notwithstanding any other term of this Indenture, the
Senior Notes, any other Transaction Document or otherwise, neither the Issuer
nor the Co-Issuer shall have any liability whatsoever to each other under this
Indenture, the Senior Notes or any other Transaction Document or otherwise, and,
without prejudice to the generality of the foregoing, neither the Issuer nor the
Co-Issuer shall be entitled to take any action to enforce, or bring any
Proceeding in respect of, this Indenture, the Senior Notes or any other
Transaction Document or otherwise, against each other. In particular, neither
the Issuer nor the Co-Issuer shall petition or take any other steps for the
winding up or bankruptcy of the other or shall have any claim in respect of any
assets of the other (other than a claim by the Issuer as a shareholder of the
Co-Issuer).
(h) Subject to the foregoing provisions of this Section 2.05,
each Senior Note delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Senior Note shall carry the rights of
unpaid interest and principal that were carried by such other Senior Note.
(i) Notwithstanding any of the foregoing provisions with
respect to payments of principal of and interest on the Senior Notes, if the
Senior Notes have become or been declared due and payable following an Event of
Default or a Trigger Event and such acceleration of maturity and its
consequences have not been rescinded and annulled, then payments of principal of
and interest on such Senior Notes shall be made in accordance with Section
5.05(d).
SECTION 2.06. Transfer and Exchange of Senior Notes.
(a) Transfer and Exchange of Global Notes. A Global Note may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary or by the Depositary or any such nominee to a
14
successor Depositary or a nominee of such successor Depositary. All Global Notes
will be exchanged by the Issuers for Definitive Notes if (i) the Issuers deliver
to the Indenture Trustee notice from the Depositary that it is unwilling or
unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Issuers within 120 days after the date of
such notice from the Depositary or (ii) the Issuers in their sole discretion
determine that the Global Notes (in whole but not in part) should be exchanged
for Definitive Notes and deliver a written notice to such effect to the
Indenture Trustee; provided that in no event shall the Regulation S Temporary
Global Note be exchanged by the Issuers for Definitive Notes prior to (A) the
expiration of the Distribution Compliance Period and (B) the receipt by the
Registrar of any certificates required pursuant to Rule 903(b)(3)(ii)(B) under
the Securities Act. Upon the occurrence of either of the preceding events in
clause (i) or clause (ii) above, Definitive Notes shall be issued in such names
as the Depositary shall instruct the Indenture Trustee in writing. Global Notes
also may be exchanged or replaced, in whole or in part, as provided in Section
2.07. Every Senior Note authenticated and delivered in exchange for, or in lieu
of, any Global Note or any portion thereof, pursuant to this Section 2.06 or
Section 2.07, shall be authenticated and delivered in the form of, and shall be,
a Global Note or a Definitive Note, as the case may be. A Global Note may not be
exchanged for another Senior Note other than as provided in this Section
2.06(a); however, beneficial interests in a Global Note may be transferred and
exchanged as provided in Sections 2.06(b) and (c).
(b) Transfer and Exchange of Beneficial Interests in the
Global Notes. The transfer and exchange of beneficial interests in the Global
Notes shall be effected through the Depositary, in accordance with the
provisions of this Indenture and the Applicable Procedures. Beneficial interests
in the Restricted Global Notes shall be subject to restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act. Transfers of beneficial interests in the Global Notes also shall require
compliance with either subparagraph (i) or (ii) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same
Global Note. Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance
with the transfer restrictions set forth in the Transfer Restriction
Legend. Prior to the expiration of the Distribution Compliance Period,
transfers of beneficial interests in the Regulation S Temporary Global
Note may not be made to a U.S. Person or for the account or benefit of
a U.S. Person (other than any Initial Purchaser). Beneficial interests
in any Unrestricted Global Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers
described in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial
Interests in Global Notes. In connection with all transfers and
exchanges of beneficial interests that are not subject to Section
2.06(b)(i) above, the transferor of such beneficial interest must
deliver to the Registrar (A) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to be
credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged, (B)
instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited
with such increase and (C) such other information or documentation as
may be required by Section 2.06(b)(iii) and (iv), if any. Upon
satisfaction of all of the requirements for transfer or exchange of
beneficial interests in Global Notes contained in this Indenture and
the Senior Notes or otherwise applicable under the Securities Act, the
Indenture Trustee shall adjust the principal amount of the relevant
Global Note(s) pursuant to Section 2.06(f).
15
(iii) Transfer of Beneficial Interests to Another
Restricted Global Note. A beneficial interest in any Restricted Global
Note may be transferred to a Person who takes delivery thereof in the
form of a beneficial interest in another Restricted Global Note if the
transfer complies with the requirements of Section 2.06(b)(ii) above
and the Registrar receives the following:
(A) if the transferee will take delivery in
the form of a beneficial interest in the Rule 144A Global
Note, then the transferor must deliver a certificate in the
form of Exhibit D, including the certifications in item (1)
thereof; and
(B) if the transferee will take delivery in
the form of a beneficial interest in the Regulation S
Temporary Global Note, then the transferor must deliver a
certificate in the form of Exhibit D, including the
certifications in item (2) thereof.
(iv) Transfer and Exchange of Beneficial Interests in
a Restricted Global Note for Beneficial Interests in an Unrestricted
Global Note. A beneficial interest in any Restricted Global Note may be
exchanged by any owner thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note if the exchange or transfer complies with the requirements of
Section 2.06(b)(ii) above and the Registrar receives the following:
(A) if the owner of such beneficial interest
in a Restricted Global Note proposes to exchange such
beneficial interest for a beneficial interest in an
Unrestricted Global Note, a certificate from such owner in the
form of Exhibit E hereto, including the certifications in item
(1)(a) thereof; or
(B) if the owner of such beneficial interest
in a Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take delivery
thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such owner in the
form of Exhibit D hereto, including the certifications in item
(4) thereof;
and, in each such case set forth above, if the Registrar so requests or
if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange
or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein are no longer required in
order to maintain compliance with the Securities Act.
If any such exchange or transfer is effected pursuant
to this subparagraph (iv) at a time when an Unrestricted Global Note
has not yet been issued, the Issuers shall issue and, upon receipt of
an Authentication Order in accordance with Section 2.03 hereof, the
Indenture Trustee shall authenticate one or more Unrestricted Global
Notes in an aggregate principal amount equal to the aggregate principal
amount of beneficial interests transferred as set forth above.
(v) Transfer or Exchange of Beneficial Interests in
Unrestricted Global Notes for Beneficial Interests in Restricted Global
Notes Prohibited. Beneficial interests in an Unrestricted Global Note
cannot be exchanged for, or transferred to Persons who take delivery
thereof in the form of, a beneficial interest in a Restricted Global
Note.
(c) Exchange of Beneficial Interests for Definitive Notes.
(i) Beneficial Interests in Restricted Global Notes
to Restricted Definitive Notes. If Definitive Notes are required to be
issued pursuant to Section 2.06(a), an owner of a beneficial interest
in a Restricted Global Note may exchange such beneficial interest for a
16
Restricted Definitive Note in accordance with Section 2.06(a) only upon
receipt by the Registrar of a certificate from such owner in the form
of Exhibit E hereto, including the certifications in item (2) thereof,
the Indenture Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section
2.06(f) hereof, and the Issuers shall execute and the Indenture Trustee
shall authenticate and deliver to the Person designated in the
instructions a Definitive Note in the appropriate principal amount. Any
Definitive Note issued in exchange for a beneficial interest in a
Restricted Global Note pursuant to this Section 2.06(c) shall be
registered in such name or names and in such authorized denomination or
denominations as the owner of such beneficial interest shall instruct
the Registrar through instructions from the Depositary and the
Participant or Indirect Participant. The Indenture Trustee shall
deliver such Definitive Notes to the Persons in whose names such Senior
Notes are so registered. Any Definitive Note issued in exchange for a
beneficial interest in a Restricted Global Note pursuant to this
Section 2.06(c)(i) shall bear the Transfer Restriction Legend and shall
be subject to all restrictions on transfer contained therein.
(ii) Beneficial Interests in Restricted Global Notes
to Unrestricted Definitive Notes. If Definitive Notes are required to
be issued pursuant to Section 2.06(a), an owner of a beneficial
interest in a Restricted Global Note may exchange such beneficial
interest for an Unrestricted Definitive Note in accordance with Section
2.06(a) only if the Registrar receives a certificate from such owner in
the form of Exhibit E hereto, including the certifications in item
(1)(b) thereof and, if the Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange is in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Transfer Restriction Legend are no
longer required in order to maintain compliance with the Securities
Act.
(iii) Exchange of Beneficial Interests in
Unrestricted Global Notes to Restricted Definitive Notes Prohibited.
Beneficial Interests in an Unrestricted Global Note cannot be exchanged
for a Restricted Definitive Note.
(iv) Exchange of Beneficial Interests in Unrestricted
Global Notes to Unrestricted Definitive Notes. If Definitive Notes are
required to be issued pursuant to Section 2.06(a), an owner of a
beneficial interest in an Unrestricted Global Note may exchange such
beneficial interest for an Unrestricted Definitive Note in accordance
with Section 2.06(a) only upon satisfaction of the conditions set forth
in Section 2.06(b)(ii) hereof (other than Section 2.06(b)(ii)(C)), the
Indenture Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section
2.06(f) hereof, and the Issuers shall execute and the Indenture Trustee
shall authenticate and deliver to the Person designated in the
instructions a Definitive Note in the appropriate principal amount. Any
Definitive Note issued in exchange for a beneficial interest pursuant
to this Section 2.06(c)(iv) shall be registered in such name or names
and in such authorized denomination or denominations as the owner of
such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect
Participant. The Indenture Trustee shall deliver such Definitive Notes
to the Persons in whose names such Senior Notes are so registered. Any
Definitive Note issued in exchange for a beneficial interest pursuant
to this Section 2.06(c)(iv) shall not bear the Transfer Restriction
Legend.
(d) Transfer and Exchange of Definitive Notes for Definitive
Notes.
(i) Following the issuance of Definitive Notes in
exchange for the Global Notes pursuant to Section 2.06(a), upon request
by a Holder of Definitive Notes and such Holder's compliance with the
provisions of this Section 2.06(d), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of
transfer or exchange, the
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requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction
of transfer in form satisfactory to the Registrar duly executed by such
Holder or by his attorney, duly authorized in writing. In addition, the
requesting Holder shall provide any additional certifications,
documents and information, as applicable, required pursuant to the
following provisions of this Section 2.06(d).
(ii) Restricted Definitive Notes to Restricted
Definitive Notes. Any Restricted Definitive Note may be transferred to
and registered in the name of Persons who take delivery thereof in the
form of a Restricted Definitive Note if the Registrar receives the
following:
(A) if the transfer will be made pursuant to
Rule 144A under the Securities Act, then the transferor must
deliver a certificate in the form of Exhibit D hereto,
including the certifications in item (1) thereof; or
(B) if the transfer will be made pursuant to
any other exemption from the registration requirements of the
Securities Act, then the transferor must deliver a certificate
in the form of Exhibit D hereto, including the certifications
required by item (3) thereof, if applicable.
(iii) Restricted Definitive Notes to Unrestricted
Definitive Notes. Any Restricted Definitive Note may be exchanged by
the Holder thereof for an Unrestricted Definitive Note or transferred
to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if the Registrar receives the following:
(A) if the Holder of such Restricted
Definitive Note proposes to exchange such Senior Note for an
Unrestricted Definitive Note, a certificate from such Holder
in the form of Exhibit E hereto, including the certifications
in item (1)(c) thereof; or
(B) if the Holder of such Restricted
Definitive Note proposes to transfer such Senior Note to a
Person who shall take delivery thereof in the form of an
Unrestricted Definitive Note, a certificate from such Holder
in the form of Exhibit D hereto, including the certifications
in item (4) thereof;
and, in each such case set forth above, if the Registrar so requests,
an Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein
and in the Transfer Restriction Legend are no longer required in order
to maintain compliance with the Securities Act.
(iv) Transfer or Exchange of Unrestricted Definitive
Notes to Restricted Definitive Notes Prohibited. An Unrestricted
Definitive Note cannot be exchanged for, or transferred to Persons who
take delivery thereof in the form of, a Restricted Definitive Note.
(v) Unrestricted Definitive Notes to Unrestricted
Definitive Notes. A Holder of Unrestricted Definitive Notes may
transfer such Senior Notes to a Person who takes delivery thereof in
the form of an Unrestricted Definitive Note. Upon receipt of a request
to register such a transfer, the Registrar shall register the
Unrestricted Definitive Notes pursuant to the instructions from the
Holder thereof.
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(e) Legends. The following legends shall appear on the face of
all Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) Transfer Restriction Legend. (A) Except as
permitted by subparagraph (B) below, each Global Note and each
Definitive Note (and all Senior Notes issued in exchange therefor or
substitution thereof) shall bear the legend (the "Transfer Restriction
Legend") in substantially the following form:
"THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE OR OTHER SECURITIES LAWS. ACCORDINGLY, NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED
OF WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF,
U.S. PERSONS, EXCEPT IN ACCORDANCE WITH APPLICABLE SECURITIES LAWS OF
THE UNITED STATES OR ANY STATE OF THE UNITED STATES. BY ITS ACQUISITION
HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER: (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) (A "QIB") OR (B) IT HAS ACQUIRED THIS
NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER
THE SECURITIES ACT; AND (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE
DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY
RULE 144(k) UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION
THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF
ANY PREDECESSOR OF THIS SECURITY ) OR THE LAST DAY ON WHICH EITHER OF
THE ISSUERS OR ANY AFFILIATE OF EITHER OF THE ISSUERS WAS THE OWNER OF
THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) AND (Y) SUCH LATER
DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE
RESTRICTION TERMINATION DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO EITHER OF THE ISSUERS, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS
AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUERS' AND THE
REGISTRAR'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
SUBCLAUSE (D) OR (E) OF THIS CLAUSE (2) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, A CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM AND PROVIDED THAT A CERTIFICATION OF
TRANSFER IN THE FORM PROVIDED IN THE INDENTURE IS COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE INDENTURE TRUSTEE IN CONNECTION WITH
ANY TRANSFER OF THIS SECURITY WITHIN THE TIME PERIOD REFERRED TO ABOVE.
THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE TRANSFER
CERTIFICATE RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THE
CERTIFICATE TO THE INDENTURE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON
THE REQUEST OF
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THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT."
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraph (b)(iv), (c)(ii),
(c)(iv), (d)(iii) or (d)(v) to this Section 2.06 (and all Senior Notes
issued in exchange therefor or substitution thereof) shall not bear the
Transfer Restriction Legend.
(ii) Global Note Legend. Each Global Note shall bear
a legend (the "Global Note Legend") in substantially the following
form:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO EITHER OF THE ISSUERS OR THEIR AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE, AND TRANSFERS OF BENEFICIAL INTERESTS IN THIS
GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTION 2.06 OF THE INDENTURE."
(iii) Regulation S Temporary Global Note Legend. The
Regulation S Temporary Global Note shall bear a legend (the "Regulation
S Temporary Global Note Legend") in substantially the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND
THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR PERMANENT OR
CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED
HEREIN)."
(f) Cancellation and/or Adjustment of Global Notes. At
such time as all beneficial interests in a particular Global Note have been
exchanged for Definitive Notes or a particular Global Note has been redeemed,
repurchased or canceled in whole and not in part, each such Global Note shall be
returned to or retained and canceled by the Indenture Trustee in accordance with
Section 2.09. At any time prior to such cancellation, if any beneficial interest
in a Global Note is exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global Note or
for Definitive Notes, the principal amount of Senior Notes represented by such
Global Note shall be reduced accordingly and an endorsement shall be made on
such Global Note by the Indenture Trustee or by the Depositary at the direction
of the Indenture Trustee to reflect such reduction; and, if the beneficial
interest is being exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global Note,
such other Global Note shall be increased accordingly and an endorsement shall
be made on such Global Note by the Indenture Trustee or by the Depositary at the
direction of the Indenture Trustee to reflect such increase.
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(g) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and
exchanges, the Issuers shall execute and the Indenture Trustee shall
authenticate Global Notes and Definitive Notes upon the Issuers' order
or at the Registrar's request.
(ii) No service charge shall be made to an owner of a
beneficial interest in a Global Note or to a Holder of a Definitive
Note for any registration of transfer or exchange, but the Issuers may
require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith.
(iii) The Registrar shall not be required to register
the transfer or exchange of any Senior Note selected for redemption in
whole or in part, except the unredeemed portion of any Senior Note
being redeemed in part.
(iv) All Global Notes and Definitive Notes issued
upon any registration of transfer or exchange of Global Notes or
Definitive Notes shall be the valid obligations of the Issuers,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Global Notes or Definitive Notes surrendered upon
such registration of transfer or exchange.
(v) The Issuers shall not be required (A) to issue,
to register the transfer of or to exchange any Senior Notes during a
period beginning at the opening of business 15 days before the day of
any selection of Senior Notes for redemption under Section 14.03 and
ending at the close of business on the day of selection, (B) to
register the transfer of or to exchange any Senior Note so selected for
redemption in whole or in part, except the unredeemed portion of any
Senior Note being redeemed in part, or (C) to register the transfer of
or to exchange a Senior Note between a Record Date and the next
succeeding Senior Note Payment Date.
(vi) Prior to due presentment for the registration of
a transfer of any Senior Note, the Indenture Trustee, the Paying Agent,
the Registrar and the Issuers may deem and treat the Person in whose
name such Senior Note is registered as the absolute owner of such
Senior Note for the purpose of receiving payment of principal of,
premium, if any, and interest on such Senior Notes and for all other
purposes, and none of the Indenture Trustee, the Paying Agent, the
Registrar or the Issuers shall be affected by notice to the contrary.
(vii) The Indenture Trustee shall authenticate Global
Notes and Definitive Notes in accordance with the provisions of Section
2.03.
(viii) All certifications, certificates and Opinions
of Counsel required to be submitted to the Registrar pursuant to this
Section 2.06 to effect a registration of transfer or exchange may be
submitted by facsimile.
SECTION 2.07. Replacement of Lost, Mutilated or Stolen Senior
Notes. In case any Senior Note shall become mutilated or defaced or be lost,
destroyed or stolen, then on the terms herein set forth, and not otherwise, the
Issuers shall execute and the Indenture Trustee shall authenticate and deliver
to the registered Holder a new Senior Note of like tenor and date, and bearing
such identifying number or designation as the Indenture Trustee may determine,
in exchange and substitution for, and upon cancellation of, the mutilated or
defaced Senior Note, or in lieu of and in substitution for the same if lost,
destroyed or stolen. The applicant for a new Senior Note pursuant to this
Section 2.07 shall, in the case of any mutilated or defaced Senior Note,
surrender such Senior Note to the Indenture Trustee and furnish to the Indenture
Trustee, in the case of any lost, destroyed or stolen Senior Note, evidence
satisfactory to the Indenture Trustee of such loss, destruction or theft and, in
each case, evidence satisfactory to the Indenture Trustee of the ownership and
authenticity of such Senior Note and shall pay all expenses and
21
charges of such substitution and furnish such security or indemnity as may be
reasonably required by the Indenture Trustee and the Issuers to indemnify and
defend and save and hold them harmless. Any defaced or mutilated Senior Note
shall be destroyed by the Indenture Trustee, or retained in accordance with its
standard retention policy, upon delivery by it of a new Senior Note to the
Holder.
SECTION 2.08. Taxes.
(a) Any and all payments by the Issuers to or for the account
of any Noteholder or the Indenture Trustee hereunder, under any Senior Note or
under any other Transaction Document shall be made without set-off or
counterclaim and, except as otherwise required by law, free and clear of and
without deduction for any and all Taxes. If any Taxes shall be required by law
to be deducted from or in respect of any sum payable hereunder, under any Senior
Note or under any other Transaction Document to any Noteholder or the Indenture
Trustee, the Indenture Trustee shall make such deduction and shall pay such
Taxes directly to the relevant taxing authority or other authority in accordance
with applicable law. Within 30 days after the payment of any Taxes by the
Indenture Trustee, the Indenture Trustee shall promptly deliver to the relevant
Noteholder or Noteholders such receipts together with the original or a
certified copy of any receipts evidencing payment of any Taxes paid directly by
the Indenture Trustee. No additional amounts shall be payable by the Issuers to
any Noteholder in respect of Taxes required to be deducted or withheld.
(b) The Indenture Trustee shall collect such duly completed
forms or other certifications from each Noteholder as shall permit such
Noteholder to receive payments under the Senior Notes without withholding or
deduction on account of Taxes and shall promptly forward copies of such forms to
the Issuer. In addition, the Indenture Trustee shall, to the extent it is
legally able to do so, execute and file such forms and take such other actions
as are reasonably necessary to permit payments under the Senior Notes to be made
without withholding or deduction on account of Taxes.
(c) The Senior Notes have been issued with the intention that
such Senior Notes will qualify under applicable Federal, state and local income
tax law as indebtedness secured by the Security for the Senior Notes. Each of
the Issuer and the Co-Issuer and each Noteholder, by its acceptance of a Senior
Note, agrees to treat the Senior Notes as indebtedness of the Issuer for
purposes of Federal, state and local income or franchise taxes or for any other
tax imposed on or measured by income and agrees that, to the extent it is
required to report any item of income, gain, loss, deduction or credit relating
to the Senior Notes for United States Federal, state or local income tax
purposes, it shall report such item in a manner consistent with the
characterization intended by this Section 2.08(c) and shall not take any
contrary position on any tax return or report relating to the United States
Federal, state or local income taxes or take any other action which is
inconsistent with such characterization. The Issuers covenant and agree to
exercise at all times such rights, powers and obligations they may have through
an office located in Delaware or New York.
SECTION 2.09. Cancellation. All Senior Notes surrendered for
payment, registration of transfer, exchange or redemption, or deemed lost or
stolen pursuant to Section 2.07, shall, if surrendered to any Person other than
the Indenture Trustee, be delivered to the Indenture Trustee and shall be
promptly canceled by it. All canceled Senior Notes held by the Indenture Trustee
shall be destroyed or held by the Indenture Trustee in accordance with its
standard retention policy.
ARTICLE III
SUPPORT FOR THE SENIOR NOTES
SECTION 3.01. Support for the Senior Notes; Grant of Lien. In
order to secure (x) the payment of principal of, premium, if any, and interest
on the Senior Notes Outstanding according to their tenor, purport and effect and
all other amounts payable by the Issuers hereunder and under the Senior Notes
and (y) the payment of the Issuer's Reimbursement Obligations to Williams under
the
22
Liquidity Agreement and the Remarketing and Support Agreement, and in order to
secure the performance and observance by the Issuers of all their covenants,
agreements and conditions contained herein (including, without limitation, the
obligations set forth in Section 11.07), in the other Transaction Documents and
in the Senior Notes (collectively, the "Secured Obligations"), the Issuers have
executed and delivered this Indenture and have Granted and do hereby Grant to
the Indenture Trustee, on and subject to the terms set forth in this Indenture,
a security interest in and Lien on all right, title and interest of the Issuers,
whether now owned or hereafter acquired, in, to and under the following (the
"Security for the Senior Notes"):
(a) all of the rights of each of the Issuer and the Co-Issuer,
excluding Excepted Rights, under the Participation Agreement and the other
Transaction Documents (other than the Note Purchase Agreement, the Senior Notes
and this Indenture) to which it is a party;
(b) the WCG Note and all of the rights of the Issuer as holder
of the WCG Note (including its rights under the WCG Note Indenture and the WCG
Note Reset Remarketing Agreement);
(c) all of the rights of each of the Issuer and the Co-Issuer
in respect of the Indenture Interest Account and the Indenture Redemption
Account, all amounts credited to such Indenture Accounts pursuant to the
applicable provisions of this Indenture and all investments of such amounts
pursuant to the applicable provisions of this Indenture, including all
securities, financial assets and securities entitlements carried in such
Indenture Accounts; and
(d) all proceeds of the conversion, voluntary or involuntary,
of any of the foregoing into cash, instruments, securities or other property,
including without limitation all amounts from time to time held in or credited
to the Indenture Interest Account and the Indenture Redemption Account, whether
in the form of cash or invested in instruments, securities or other property,
including all property hereafter required to be subject to the Lien of this
Indenture by any instrument supplemental hereto.
The Senior Notes shall also benefit from the support provided
by the Share Trust (including the Pledged Share Trust Reserve Account) and the
obligations of Williams under the Remarketing and Support Agreement; provided
that the rights of the Indenture Trustee under the Remarketing and Support
Agreement, and to any proceeds of such rights, are solely for the benefit of the
Noteholders and will not in any way benefit the Issuer or the holder of the WCL
Interest.
The Indenture Trustee shall receive and shall at all times
retain possession, as secured party (subject to the terms of the Transaction
Documents), of (i) any instrument evidencing the WCG Note, accompanied by an
instrument of transfer duly executed in blank and (ii) any instrument evidencing
the Williams Demand Loan or successor instrument constituting the Share Trust
Reserve, accompanied by an instrument of transfer duly executed in blank.
SECTION 3.02. Noteholders and Williams Equally and Ratably
Secured. The Security for the Senior Notes shall be held by the Indenture
Trustee, as secured party, for the equal and proportionate benefit, security and
protection of:
(a) all Holders of the Senior Notes issued under and secured
by this Indenture, without privilege, priority or distinction as to Lien or
otherwise of any of the Senior Notes over any of the other Senior Notes, except
as otherwise expressly provided in this Indenture, and for the benefit, security
and protection of the Noteholders with respect to the payment of all amounts
payable to the Noteholders out of the Indenture Accounts to the extent herein
provided; provided, however, that, if the Issuers, their successors or assigns
shall pay, or cause to be paid, the principal of and premium, if any, on the
Senior Notes and the interest due or to become due thereon, then upon such final
payment this Indenture and the Liens created hereby shall cease, and the
Indenture Trustee shall, at the expense and written direction of
23
the Issuers, execute and deliver such assignments, termination statements or
other instruments required or reasonably requested and prepared by the Issuers
to effect and evidence such termination; and
(b) Williams, only in respect of the Issuer's Reimbursement
Obligations to Williams pursuant to Section 27 of the Remarketing and Support
Agreement and Section 3 of the Liquidity Agreement.
SECTION 3.03. The Issuer's Obligations; Appointment of
Attorney; Further Assurances; Release.
(a) It is expressly agreed that, notwithstanding anything to
the contrary contained herein, the Issuer shall remain liable under each of the
Transaction Documents to which it is a party to perform all of the obligations,
if any, assumed by it thereunder, all in accordance with and pursuant to the
terms and provisions thereof.
(b) The Issuer does hereby constitute the Indenture Trustee to
the extent permitted by Applicable Law the true and lawful attorney of the
Issuer, irrevocably, with full power (in the name of the Issuer or otherwise),
to ask, require, demand, receive, compound and give acquittance for any and all
moneys and claims for moneys due and to become due to the Issuer under or
arising out of the Security for the Senior Notes and all other property which
now or hereafter constitutes part of the Security for the Senior Notes or to
endorse any checks or other instruments or orders in connection therewith and to
file any claims or take any action or institute any Proceedings which the
Indenture Trustee may deem to be necessary or advisable in the premises, subject
to Section 9.04. The Issuer agrees that, promptly upon receipt thereof, it will
transfer to the Indenture Trustee any and all moneys from time to time received
by it constituting part of the Security for the Senior Notes for distribution by
the Indenture Trustee pursuant to this Indenture, except that the Issuer shall
accept for distribution pursuant to the Issuer Trust Agreement any amounts
distributed to it by the Indenture Trustee as expressly provided in this
Indenture.
(c) The Issuer agrees that at any time and from time to time,
upon the written request of the Indenture Trustee, the Issuer will promptly and
duly execute and deliver or cause to be executed and delivered any and all such
further instruments and documents as the Indenture Trustee may reasonably deem
to be necessary in order to obtain the full benefits of this assignment and of
the rights and powers herein granted.
(d) One year and one day after the payment in full of the
Secured Obligations, all Security for the Senior Notes shall be released from
the Lien of this Indenture and all rights of the Indenture Trustee, the
Noteholders and Williams in respect thereof under this Article III or pursuant
to any other Transaction Document, other than any rights of the Indenture
Trustee to indemnity with respect thereto pursuant to any Transaction Document,
shall automatically terminate.
ARTICLE IV
ISSUANCE
SECTION 4.01. Conditions to Issuance. The issuance by the
Issuers and the authentication by the Indenture Trustee of the Senior Notes on
initial issuance shall be subject to the satisfaction of the following
conditions on or prior to the Closing Date:
(a) the Indenture Trustee shall have received fully executed
copies of each of the Transaction Documents to which the Issuer or the
Co-Issuer is a party (other than this Indenture and the Senior Notes);
24
(b) the Indenture Trustee shall have received certificates
from each of the Issuers in form and substance reasonably satisfactory
to it and counsel for the Initial Purchasers to the effect that the
representations and warranties of such Person in the Transaction
Documents shall be true on and as of the Closing Date as if made on and
as of such date (except to the extent (i) specifically limited to an
earlier date, (ii) modified to give effect to the transactions
contemplated by the Transaction Documents or (iii) waived) and that the
conditions precedent to the issuance of the Senior Notes contained in
any other Transaction Document have been fulfilled (or waived);
(c) the Indenture Trustee shall have received a certificate of
an Authorized Officer of Williams, in form and substance reasonably
satisfactory to the Indenture Trustee and counsel for the Initial
Purchasers to the effect that immediately before and immediately after
the issuance of the Senior Notes on the Closing Date no Indenture
Default or Event of Default shall have occurred and be continuing;
(d) the Indenture Trustee shall have received evidence that
Williams issued to the Share Trust shares of the Williams Preferred
Stock with an initial aggregate liquidation preference in an amount
equal to $1,400,000,000 in accordance with the Share Trust Agreement in
form and substance reasonably satisfactory to the Indenture Trustee and
counsel for the Initial Purchasers;
(e) the Indenture Trustee shall have received evidence that
Williams authorized and reserved 110,000,000 shares of Williams Common
Stock issuable upon conversion of the Williams Preferred Stock;
(f) the Indenture Trustee shall have received letters from (i)
Skadden, Arps, Slate, Meagher & Flom LLP, special counsel for Williams,
(ii) Crowe and Dunlevy, special counsel for WCG and WCL, (iii) William
G. von Glahn, internal counsel of Williams, WCG and WCL, (iv) Jones,
Day, Reavis & Pogue, special counsel for the Issuers, WCG and WCL and
(v) Richards, Layton & Finger, P.A., special Delaware counsel for the
Issuers, each entitling it to rely upon certain opinions delivered by
such counsel pursuant to the Participation Agreement;
(g) the purchase of the Senior Notes will (i) be permitted by
the laws and regulations of each jurisdiction to which the Initial
Purchasers are subject, (ii) not violate any Applicable Law and (iii)
not subject any Initial Purchaser to any Taxes, penalty or liability
under or pursuant to any Applicable Law;
(h) no invalidation of Rule 144A or Regulation S under the
Securities Act by any court or any withdrawal or proposed withdrawal of
any rule or regulation under the Securities Act or the Exchange Act by
the SEC or any amendment or proposed amendment thereof by the SEC which
in the judgment of the Initial Purchasers would materially impair the
ability of the Initial Purchasers to purchase, hold or effect resales
of the Senior Notes as contemplated herein shall have occurred;
(i) the Indenture Trustee shall have received letters from
Moody's rating the Senior Notes "Baa3" or better, S&P rating the Senior
Notes "BB+" or better and Fitch rating the Senior Notes "BBB-" or
better, in form and substance reasonably satisfactory to the Indenture
Trustee and the Initial Purchasers;
(j) the Indenture Trustee shall have received (i) Uniform
Commercial Code Financing Statements signed by the Issuer, in form and
substance reasonably satisfactory to the Indenture Trustee and the
Initial Purchasers, (ii) the instrument evidencing the WCG Note
accompanied by an instrument of transfer duly executed in blank and
(iii) the instrument evidencing the Williams
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Demand Loan constituting the Share Trust Reserve accompanied by an
instrument of transfer duly executed in blank; and
(k) the Indenture Trustee shall have received, from each of
the Issuer and the Co-Issuer, an Officer's Certificate attaching
Organizational Documents and resolutions, if applicable, relating to
the existence of such Person, the trust authority or corporate
authority for and the validity of this Indenture, the Senior Notes and
the other Transaction Documents and any other matters relevant hereto,
all in form and substance reasonably satisfactory to the Indenture
Trustee and counsel for the Initial Purchasers.
SECTION 4.02. Waiver of Conditions to Issuance. If any of the
foregoing conditions shall not be satisfied upon the issuance of the Senior
Notes, such conditions shall be deemed to have been waived by the Indenture
Trustee by its authentication of the Senior Notes and by the Initial Purchasers
and each Noteholder by their acceptance of a Senior Note.
ARTICLE V
THE INDENTURE ACCOUNTS
SECTION 5.01. Establishment of Indenture Accounts.
(a) The Securities Intermediary hereby acknowledges and agrees
that it has established, on the books and records of its office in New York, the
"Indenture Interest Account," bearing account number 04000893, the "Indenture
Redemption Account," bearing account number 04000894, and the "Pledged Share
Trust Reserve Account," bearing account number 04000895, each in the name of the
Indenture Trustee on behalf of the Noteholders and Williams, and each of which
are under the sole dominion and control of the Indenture Trustee. The Indenture
Trustee hereby acknowledges and agrees that it has established, on its books and
records of its office in New York, the "Share Trust Proceeds Account" (together
with the Pledged Share Trust Reserve Account, the "Share Trust Accounts" and,
the Share Trust Accounts, together with the Indenture Interest Account and the
Indenture Redemption Account, the "Indenture Accounts") in the name of the
Indenture Trustee on behalf of the Noteholders and Williams, and under the sole
dominion and control of the Indenture Trustee. In addition, the Securities
Intermediary hereby agrees that (A) each Indenture Account (other than the Share
Trust Proceeds Account) is and shall be maintained by the Securities
Intermediary as a "securities account" (within the meaning of Section 8-501 of
the New York UCC), (B) the "securities intermediary's jurisdiction" (within the
meaning of Article 8 of the New York UCC) of the Securities Intermediary is the
State of New York, (C) all cash and other property in each Indenture Account
(other than the Share Trust Proceeds Account) will be treated by the Securities
Intermediary as a "financial asset" (as defined in Section 8-102(a)(9) of the
New York UCC) for the purposes of Article 8 of the New York UCC, (D) the
"entitlement holder" (as such term is defined in Section 8-102(a)(7) of the New
York UCC) for the purposes of Article 8 of the New York UCC shall be the
Indenture Trustee for the benefit of the Noteholders and (E) the Securities
Intermediary shall act as a "securities intermediary" (within the meaning of
Section 8-102(a)(14) of the New York UCC) in maintaining the Indenture Accounts
established by it and shall credit to each such Indenture Account each financial
asset to be held in or credited to each such Indenture Account pursuant to this
Indenture. To the extent, if any, that the Indenture Trustee is deemed to hold
directly, as opposed to having a security entitlement in, any financial asset
held by the Securities Intermediary for the Indenture Trustee, the Securities
Intermediary hereby agrees that it is holding such financial asset as the agent
of the Indenture Trustee and hereby expressly acknowledges and agrees that it
has received notification of the Indenture Trustee's security interest in such
financial asset and that it is holding possession of such financial asset for
the benefit of the Indenture Trustee.
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(b) Each Indenture Account (other than the Share Trust
Proceeds Account) shall remain at all times with a securities intermediary
having a combined capital and surplus of at least $150,000,000 and having a
long-term debt rating of at least "A3" by Moody's, at least "A-" by S&P and at
least "A-" by Fitch. The Securities Intermediary will give notice to the Issuers
and the Noteholders of the location of the Indenture Accounts established by it
and of any change thereof (provided that, except with respect to such a change
in connection with the appointment of a successor securities intermediary in
accordance with Section 11.14, no such change shall be made without the prior
approval of the Majority Noteholders), prior to the use thereof. Any income
received by the Indenture Trustee with respect to the balance from time to time
on deposit in each Indenture Account, including any interest or capital gains on
investments in overnight securities made with amounts on deposit in each
Indenture Account, shall be credited to the applicable Indenture Account. All
right, title and interest in and to the cash amounts on deposit from time to
time in the Indenture Interest Account and the Indenture Redemption Account
together with any investments in overnight securities from time to time made
with such amounts pursuant to this Article V shall constitute part of the
Security for the Senior Notes and shall be held for the benefit of the
Noteholders, Williams, the Indenture Trustee and the Issuer as their interests
shall appear hereunder and shall not constitute payment of the Secured
Obligations (or any other obligations to which such funds are provided hereunder
to be applied) until applied thereto as hereinafter provided. All right, title
and interest in and to the cash amounts on deposit from time to time in the
Pledged Share Trust Reserve Account and the Share Trust Proceeds Account
together with any investments in overnight securities from time to time made
with such amounts pursuant to this Article V shall not constitute part of the
Security for the Senior Notes and shall be held for the benefit of the
Noteholders, Williams, the Indenture Trustee and the Share Trust as their
interests shall appear hereunder and shall not constitute payment of the Secured
Obligations (or any other obligations to which such funds are provided hereunder
to be applied) until applied thereto as hereinafter provided.
(c) In the event that the Securities Intermediary has or
subsequently obtains by agreement, operation of law or otherwise a security
interest in any of the Indenture Accounts established by it, or any "financial
asset" (as defined in Section 8-102(a)(9) of the New York UCC) credited thereto,
or any "security entitlement" (as defined in Section 8-102(a)(17) of the New
York UCC) with respect thereto, the Securities Intermediary hereby agrees that
such security interest shall be subordinate to the security interest of the
Indenture Trustee. The financial assets (as defined in Section 8-102(a)(9) of
the New York UCC) or any "security entitlement" (as defined in Section
8-102(a)(17) of the New York UCC) with respect thereto, standing to the credit
of such Indenture Accounts, will not be subject to deduction, set-off, banker's
lien or any other right in favor of any Person other than the Indenture Trustee
(except the face amount of any checks which have been credited to any such
Indenture Account but are subsequently returned unpaid because of uncollected or
insufficient funds).
(d) There are no other agreements entered into between the
Securities Intermediary, the Indenture Trustee, the Issuer and the Share Trust
with respect to the Indenture Accounts other than as provided hereunder and
under the other Transaction Documents. In the event of any conflict between this
Section 5.01 (or any portion thereof), any other provision of this Indenture or
any other agreement now existing or hereafter entered into, the terms of this
Section 5.01 shall prevail.
(e) The Indenture Trustee shall make or direct the Securities
Intermediary to make, to the extent required or authorized hereunder,
withdrawals from each Indenture Account: (i) to withdraw any amount deposited in
each Indenture Account and not required to be deposited therein; (ii) to make
required payments to the parties entitled thereto pursuant to Section 5.05; and
(iii) to clear and terminate such Indenture Accounts upon satisfaction and
discharge of this Indenture pursuant to Article X.
(f) The Issuers shall promptly deposit with the Indenture
Trustee, for credit to the Indenture Interest Account and the Indenture
Redemption Account in accordance with this Article V, any funds the Issuers may
receive in respect of payments on the Security for the Senior Notes due after
the Closing Date. The Indenture Trustee shall be accountable for all funds
deposited into the Indenture
27
Accounts and shall pay and apply such funds in accordance with the provisions of
this Article V. Any amounts withdrawn under Section 5.01(e)(i) shall either be
paid to the party entitled to such funds or shall be deposited into the
appropriate Indenture Account, as applicable.
(g) Any and all amounts on deposit in any Indenture Account
shall, until withdrawn in accordance with this Article V, be invested by the
Indenture Trustee or the Securities Intermediary in Financial Investments
described in clause (b) of the definition thereof unless otherwise directed in
writing by the Issuer, with respect to the Indenture Interest Account and the
Indenture Redemption Account, or Williams, with respect to the Share Trust
Accounts, from time to time. Any proceeds of Financial Investments in excess of
the amount required to redeem or prepay the Secured Obligations under the terms
hereof and any losses generated by such Financial Investments shall be reflected
in the payments made pursuant to Section 5.05.
(h) The Indenture Trustee shall, as an express trust solely
for the benefit of the Noteholders and Williams, possess all right, title and
interest in all funds on deposit from time to time in the Share Trust Proceeds
Account, and in all proceeds thereof (including all income thereon), and the
Issuer shall have no right, title or interest therein.
SECTION 5.02. Indenture Interest Account.
(a) The Issuer shall deposit or cause to be deposited into the
Indenture Interest Account, by 10:00 a.m. New York City time, at least one
Business Day before each Interest Payment Date, all payments from WCG from or in
respect of interest on the WCG Note.
(b) The Issuer shall deposit or cause to be deposited into the
Indenture Interest Account all payments made by Williams in accordance with the
Liquidity Agreement in respect of the Liquidity Option (such amounts deposited
in respect of clauses (a) and (b) collectively, the "Semi-Annual Cash Flow").
SECTION 5.03. Indenture Redemption Account. The Issuer shall
deposit or cause to be deposited into the Indenture Redemption Account (a) all
payments from WCG in respect of any prepayment of the WCG Note, in whole or in
part, (b) proceeds from a Reset Sale in accordance with Section 9.04(i)(i) and
(c) proceeds from a sale of the WCG Note in accordance with Sections
9.04(i)(ii), (iii) or (iv); provided that any such amounts that are not
specified in a notice to the Indenture Trustee to fund an Early Redemption shall
be invested in accordance with Section 5.01(g) in Financial Investments maturing
no later than the Maturity Date; provided further that if, following the payment
in full of the Secured Obligations, amounts are subsequently deposited into the
Indenture Redemption Account, then by 9:00 a.m. the Business Day after such
amounts are deposited into the Indenture Redemption Account, the Indenture
Trustee shall direct the Securities Intermediary to withdraw the Amount
Available from the Indenture Redemption Account and pay such amount to the
Issuer.
SECTION 5.04. Share Trust Accounts.
(a) Pledged Share Trust Reserve Account. (i) The Indenture
Trustee, on behalf of the Share Trust, shall deposit or cause to be deposited
into the Pledged Share Trust Reserve Account (x) the cash proceeds of the
Williams Demand Loan constituting the Share Trust Reserve and (y) all payments
from Williams or any successor obligor in respect of the Share Trust Reserve.
The Issuer shall have no right, title or interest in or to the Share Trust
Reserve or any funds or assets therein.
(ii) Upon the occurrence of an Early Redemption in accordance
with Article XIV hereof, the Indenture Trustee shall (x) pursuant to and in
accordance with Section 5.10 of the Share Trust Security Agreement, release an
amount of the Share Trust Reserve in proportion to the principal amount of
Senior Notes that have been redeemed and (y) provide written notice to Williams
and the Share Trust
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of any such release, which notice shall include the release date, the amount
released and the amount remaining in the Share Trust Reserve.
(b) Share Trust Proceeds Account. The Indenture Trustee, on
behalf of Williams, shall deposit or cause to be deposited into the Share Trust
Proceeds Account (i) all amounts received by it pursuant to Section 7(a), 7(b),
7(c) or 8(h) of the Remarketing and Support Agreement in connection with the
remarketing of the New Series or the Shares under the Remarketing and Support
Agreement, (ii) all amounts received by it from Williams pursuant to Section
7(d) of the Remarketing and Support Agreement in connection with Williams'
exercise of the Share Trust Release Option, (iii) all amounts received by it in
respect of Redemption Proceeds pursuant to Section 4.03(a) of the Share Trust
Agreement and (iv) all amounts received by it from Williams pursuant to Section
8(g) of the Remarketing and Support Agreement in connection with a Failed
Remarketing.
SECTION 5.05. Payments.
(a) General. (i) By 10:00 a.m. New York City time on any
Interest Payment Date, the Indenture Trustee shall give written notice to
Williams, the Issuers and the Share Trustee (the "Shortfall Notice") if the
Amount Available in the Indenture Interest Account, the Share Trust Proceeds
Account and the Indenture Redemption Account is not sufficient to pay the Senior
Note Interest Amount and any Administrative Expenses due and owing under this
Section 5.05 as of such Interest Payment Date, which notice shall specify the
amount of the shortfall and also constitute a conditional demand on the Share
Trust Reserve in an amount equal to the amount of the shortfall if the Indenture
Trustee does not otherwise receive such amount by the fifth Business Day
following such Interest Payment Date (either from Williams' exercise of the
Liquidity Option or from WCG).
(ii) If Williams has not exercised the Liquidity Option
pursuant to the Liquidity Agreement and the Indenture Trustee has not received
the amount of the shortfall specified in the applicable Shortfall Notice by the
open of business on the fifth Business Day following any Interest Payment Date,
by 10:00 a.m. on such fifth Business Day, the Indenture Trustee shall give
written notice to Williams, the Issuers and the Share Trustee (the "Demand
Notice"), which notice shall constitute a demand for immediate payment on the
Share Trust Reserve in an amount equal to the amount of such shortfall.
(iii) (A) If Williams shall have exercised the Liquidity
Option pursuant to the Liquidity Agreement and the Noteholders have received the
Senior Note Interest Amount pursuant to Section 5.05(b)(ii) and (B) WCG
subsequently deposits money in respect of interest on the WCG Note with the
Indenture Trustee, by 9:00 a.m. the Business Day after any such deposit by WCG,
the Indenture Trustee shall direct the Securities Intermediary to withdraw the
Amount Available from the Indenture Interest Account and pay such amount to
Williams as payment of the Liquidity Reimbursement Obligations.
(b) Payments Relating to each Interest Payment Date. (i) If no
Shortfall Notice has been given pursuant to Section 5.05(a)(i), by 10:00 a.m.
New York City time on each Interest Payment Date, the Indenture Trustee shall
direct the Securities Intermediary to withdraw the Amount Available from the
Indenture Interest Account, the Share Trust Proceeds Account and the Indenture
Redemption Account and pay such amounts, in the manner and in the order of
priority as follows:
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first, from amounts credited to the Indenture
Interest Account and, to the extent the Amount Available therein is not
sufficient, from the Share Trust Proceeds Account and, to the extent
the Amount Available therein is not sufficient, from the Indenture
Redemption Account, to the Paying Agent for the payment of any
Administrative Expenses;
second, from amounts credited to the Indenture
Interest Account to the Paying Agent to be applied to the Noteholders,
pro rata in accordance with the respective unpaid principal balances of
the Senior Notes Outstanding held by them, in the amount of any and all
accrued and unpaid Senior Note Interest Amount; and
third, (i) any amounts remaining in the Share Trust
Proceeds Account and the Indenture Redemption Account to be invested in
accordance with Section 5.01(g) and (ii) any amounts remaining in the
Indenture Interest Account, to the Issuer to be applied in accordance
with the Issuer Trust Agreement.
(ii) If a Shortfall Notice has been given pursuant to Section
5.05(a)(i) above and Williams has exercised the Liquidity Option pursuant to the
Liquidity Agreement, by 10:00 a.m. on the third Business Day after the relevant
Interest Payment Date, the Indenture Trustee shall direct the Securities
Intermediary to withdraw the Amount Available from the Indenture Interest
Account, the Share Trust Proceeds Account and the Indenture Redemption Account
and pay such amounts, in the manner and in the order of priority as follows:
first, from amounts credited to the Indenture
Interest Account and, to the extent the Amount Available therein is not
sufficient, from the Share Trust Proceeds Account and, to the extent
the Amount Available therein is not sufficient, from the Indenture
Redemption Account, to the Paying Agent for the payment of any
Administrative Expenses;
second, from amounts credited to the Indenture
Interest Account to the Paying Agent to be applied to the Noteholders,
pro rata in accordance with the respective unpaid principal balances of
the Senior Notes Outstanding held by them, in the amount of any and all
accrued and unpaid Senior Note Interest Amount; and
third, (i) any amounts remaining in the Share Trust
Proceeds Account and the Indenture Redemption Account to be invested in
accordance with Section 5.01(g) and (ii) any amounts remaining in the
Indenture Interest Account to be paid (A) first to Williams in an
amount up to the amount of the Liquidity Reimbursement Obligations and
(B) second to the Issuer to be applied in accordance with the Issuer
Trust Agreement.
(iii) If a Demand Notice has been given pursuant to Section
5.05(a)(ii) above, by 12:00 noon on the fifth Business Day after the relevant
Interest Payment Date, the Indenture Trustee shall direct the Securities
Intermediary to withdraw the Amount Available from the Indenture Interest
Account, the Share Trust Proceeds Account, the Indenture Redemption Account and
the Pledged Share Trust Reserve Account and pay such amounts, in the manner and
in the order of priority as follows:
first, from amounts credited to the Indenture
Interest Account and, to the extent the Amount Available therein is not
sufficient, from the Share Trust Proceeds Account and, to the extent
the Amount Available therein is not sufficient, from the Indenture
Redemption Account and, to the extent the Amount Available therein is
not sufficient, from the Pledged Share Trust Reserve Account, to the
Paying Agent for the payment of any Administrative Expenses;
second, from amounts credited to the Indenture
Interest Account and the Pledged Share Trust Reserve Account to the
Paying Agent to be applied to the Noteholders, pro rata in
30
accordance with the respective unpaid principal balances of the Senior
Notes Outstanding held by them, in the amount of any and all accrued
and unpaid Senior Note Interest Amount; and
third, any amounts remaining in any Indenture Account
to be invested in accordance with Section 5.01(g).
(iv) Each Noteholder shall be deemed, by its acceptance of a
Senior Note, to agree that, in case of any excess payment to it, it shall
promptly remit to the Indenture Trustee for payment in accordance with the terms
of this Section 5.05(b) any such excess payment it has received. The Indenture
Trustee shall promptly pay such amounts, when received, to any party then not
paid in full pursuant to this Section 5.05(b), and any remainder shall be paid
in accordance with priority third of Section 5.05(b)(i), (ii) or (iii), as
applicable.
(c) Payments on the Maturity Date. By 10:00 a.m. New York
City time on the Maturity Date (assuming no Trigger Event shall have occurred),
the Indenture Trustee shall direct the Securities Intermediary to withdraw the
Amount Available from each Indenture Account and pay such amounts, in the manner
and in the order of priority as follows:
first, from amounts credited to the Indenture
Interest Account and, to the extent the Amount Available therein is not
sufficient, from the Share Trust Proceeds Account and, to the extent
the Amount Available therein is not sufficient, from the Indenture
Redemption Account and, to the extent the Amount Available therein is
not sufficient, from the Pledged Share Trust Reserve Account, to the
Paying Agent for the payment of Administrative Expenses;
second, from amounts credited to the Indenture
Interest Account and, to the extent the Amount Available therein is not
sufficient, from the Share Trust Proceeds Account and, to the extent
the Amount Available therein is not sufficient, from the Indenture
Redemption Account and, to the extent the Amount Available therein is
not sufficient, from the Pledged Share Trust Reserve Account, to the
Paying Agent to be applied to the Noteholders, pro rata in accordance
with the respective unpaid principal balances of the Senior Notes
Outstanding held by them, in the amount of any and all accrued and
unpaid Senior Note Interest Amount;
third, from amounts credited to the Indenture
Interest Account and, to the extent the Amount Available therein is not
sufficient, from the Share Trust Proceeds Account and, to the extent
the Amount Available therein is not sufficient, from the Indenture
Redemption Account and, to the extent the Amount Available therein is
not sufficient, from the Pledged Share Trust Reserve Account, to the
Paying Agent to be applied to the Noteholders, pro rata in accordance
with the respective unpaid principal balances of the Senior Notes
Outstanding held by them, as a payment of principal, until such
principal is reduced to zero;
fourth, to the extent that (i) Williams has exercised
the Liquidity Option in accordance with the Liquidity Agreement or (ii)
Williams has exercised the Share Trust Release Option in accordance
with Section 7(d) of the Remarketing and Support Agreement, from any
amounts remaining in the Indenture Accounts, to Williams in an amount
up to the amount of the Issuer's Reimbursement Obligations to Williams;
and
fifth, any amounts remaining in the Indenture
Accounts, to the Issuer to be applied in accordance with the Issuer
Trust Agreement.
Each Noteholder shall be deemed by its acceptance of a Senior
Note to agree that, in case of any excess payment to it, it shall promptly remit
to the Indenture Trustee for payment in accordance with the terms of this
Section 5.05(c) any such excess payment it has received. The Indenture Trustee
shall promptly pay such amounts, when received, to any party then not paid in
full pursuant to this
31
Section 5.05(c), and any remainder in such Indenture Accounts shall be paid in
accordance with priority fifth of this Section 5.05(c).
(d) Payments on a Mandatory Redemption Date. By 10:00 a.m. on
any Mandatory Redemption Date, the Indenture Trustee shall direct the Securities
Intermediary to withdraw the Amount Available from each Indenture Account and
pay such amounts, in the manner and in the order of priority as follows:
first, from amounts credited to the Indenture
Interest Account and, to the extent the Amount Available therein is not
sufficient, from the Share Trust Proceeds Account and, to the extent
the Amount Available therein is not sufficient, from the Indenture
Redemption Account and, to the extent the Amount Available therein is
not sufficient, from the Pledged Share Trust Reserve Account, to the
Paying Agent for the payment of Administrative Expenses;
second, from amounts credited to the Indenture
Interest Account and, to the extent the Amount Available therein is not
sufficient, from the Share Trust Proceeds Account and, to the extent
the Amount Available therein is not sufficient, from the Indenture
Redemption Account and, to the extent the Amount Available therein is
not sufficient, from the Pledged Share Trust Reserve Account, to the
Paying Agent to be applied to the Noteholders, pro rata in accordance
with the respective unpaid principal balances of the Senior Notes
Outstanding held by them, in accordance with this Indenture as payment
of the applicable Mandatory Redemption Price;
third, to the extent that (i) Williams has exercised
the Liquidity Option, (ii) Williams has exercised the Share Trust
Release Option or (iii) the Indenture Trustee has received any payments
in respect of the Share Trust Remedy pursuant to Sections 7(a) or 8(g)
or 8(h) of the Remarketing and Support Agreement, from any amounts
remaining in the Indenture Accounts, to Williams in an amount up to the
amount of the Issuer's Reimbursement Obligations to Williams; and
fourth, any amounts remaining in the Indenture
Accounts, to the Issuer to be applied in accordance with the Issuer
Trust Agreement.
Each Noteholder shall be deemed by its acceptance of a Senior
Note to agree that, in case of any excess payment to it, it shall promptly remit
to the Indenture Trustee for payment in accordance with the terms of this
Section 5.05(d) any such excess payment it has received. The Indenture Trustee
shall promptly pay such amounts, when received, to any party then not paid in
full pursuant to this Section 5.05(d), and any remainder in such Indenture
Accounts shall be paid in accordance with priority fourth of this Section
5.05(d).
(e) Payments on an Early Redemption Date. By 10:00 a.m. New
York City time on an Early Redemption Date, the Indenture Trustee shall direct
the Securities Intermediary to withdraw the Amount Available from the Indenture
Interest Account and the Indenture Redemption Account and pay such amounts, in
the manner and in the order of priority as follows:
first, from amounts credited to the Indenture
Interest Account and, to the extent the Amount Available therein is not
sufficient, from the Indenture Redemption Account, to the Paying Agent
for the payment of Administrative Expenses;
second, from amounts credited to the Indenture
Interest Account and, to the extent the Amount Available therein is not
sufficient, from the Indenture Redemption Account, to the Paying Agent
to be applied to the Noteholders, pro rata in accordance with the
respective
32
unpaid principal balances of the Senior Notes Outstanding held by them,
in accordance with this Indenture as payment of the applicable Early
Redemption Price;
third, with respect to an Early Redemption in whole
only, to the extent that Williams has exercised the Liquidity Option,
any amounts remaining in the Indenture Interest Account and the
Indenture Redemption Account, to Williams in an amount up to the amount
of the Issuer's Reimbursement Obligations;
fourth, with respect to an Early Redemption in whole
only, any amounts remaining in the Indenture Interest Account and the
Indenture Redemption Account, to the Issuer to be applied in accordance
with the Issuer Trust Agreement; and
fifth, with respect to an Early Redemption in part,
any amounts remaining in the Indenture Interest Account and the
Indenture Redemption Account to be invested in accordance with Section
5.01(g).
Each Noteholder shall be deemed by its acceptance of a Senior
Note to agree that, in case of any excess payment to it, it shall promptly remit
to the Indenture Trustee for payment in accordance with the terms of this
Section 5.05(e) any such excess payment it has received. The Indenture Trustee
shall promptly pay such amounts, when received, to any party then not paid in
full pursuant to this Section 5.05(e), and any remainder in such Indenture
Accounts shall be paid in accordance with priority fourth of this Section
5.05(e).
(f) All payments made to Noteholders on any Interest Payment
Date will be made to the Noteholders of record at the close of business on the
March 1 or September 1, as applicable, next preceding such Interest Payment Date
(the "Record Date").
(g) The Noteholders shall be entitled to receive payments
hereunder on any Senior Note Payment Date by wire transfer to the account
specified in writing by the applicable Noteholder to the Paying Agent. In each
case, the account must be specified in writing no later than the Record Date for
the applicable Senior Note Payment Date on which wire transfers will commence.
Unless such instruction is revoked, any such instruction made by such Holder
with respect to such Senior Notes shall remain in effect with respect to any
future payments with respect to such Senior Note payable to such Holder.
(h) If the Indenture Trustee shall not have received a
distribution or payment with respect to the Remarketing and Support Agreement by
the Business Day after the date on which such distribution was due and payable
pursuant to the terms of the Remarketing and Support Agreement, the Indenture
Trustee shall promptly and in no event later than two Business Days demand such
payment from the Share Trust or the Remarketing Agents and promptly and in no
event later than two Business Days give written notice thereof to the
Noteholders.
(i) If on any day on which a distribution under this Section
5.05 is required to be made, the Indenture Trustee ascertains that the Amount
Available in an Indenture Account is then insufficient to pay in full the amount
required to be paid from such Indenture Account, then, if any investments are
held in such Indenture Account, the Indenture Trustee shall sell or otherwise
liquidate all or such portion of such investments as is necessary to pay in full
the required amount.
SECTION 5.06. Report to Noteholders.
(a) Within five Business Days following every Senior Note
Payment Date commencing September 15, 2001, the Indenture Trustee shall deliver
to the Issuers, Williams, each Noteholder and, if so requested in writing, each
owner of a beneficial interest in a Global Note a
33
statement (an "Account Statement") setting forth the status of the Indenture
Accounts showing, for the period covered by such statement, deposits in or
withdrawals from the Indenture Accounts and proceeds of investments of funds in
the Indenture Accounts. The Account Statement shall also set forth the following
information:
(i) the amounts in the Indenture Accounts as of such
Senior Note Payment Date prior to giving effect to payments made on
such Senior Note Payment Date; and
(ii) the amounts of such funds in the Indenture
Accounts pursuant to Section 5.05.
Within a reasonable period of time after the end of each
calendar year, the Indenture Trustee will furnish a report to the Issuers, the
Rating Agencies, each Noteholder of record at any time during such calendar year
and, subject to Section 5.06(b), each owner of a beneficial interest in a Global
Note who so requests in writing as to aggregate amounts reported pursuant to (i)
and (ii) above for such calendar year.
(b) With respect to the information and documents required to
be delivered pursuant to clause (a) above, the Indenture Trustee may require
each owner of a beneficial interest in a Global Note requesting such information
to provide evidence satisfactory to the Indenture Trustee of such Person's
interest in a Global Note before delivering the requested information to such
Person.
(c) The Indenture Trustee shall, subject to Article XI, use
its reasonable efforts to obtain any information it is required under this
Indenture to obtain in the manner provided by this Indenture.
(d) Consistent with the provisions of Section 2.08(c), the
Indenture Trustee shall (i) furnish to the Noteholders and any taxing authority,
within the time periods required by applicable law, such forms of information as
is required by applicable Federal or state tax law applicable to any Noteholder
in respect of the Senior Notes, including, but not limited to, appropriate Forms
1099, and (ii) shall also provide such other information as may be reasonably
requested by any Noteholder, at such Noteholder's expense, to enable the
Noteholder to prepare its tax returns.
SECTION 5.07. Termination. This Indenture shall terminate and
be discharged in accordance with Article X one year and one day following
repayment in full of the Secured Obligations.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE ISSUERS
SECTION 6.01. Representations and Warranties. Each of the
Issuer and the Co-Issuer, as applicable, represents and warrants to the
Indenture Trustee that, as of the Closing Date:
(a) Existence and Power. The Issuer is a business trust duly
organized, validly existing and in good standing under the law of the
State of Delaware and has all requisite trust powers and all Permits
required to carry on its business as now conducted and as contemplated
by the Transaction Documents. The Co-Issuer is a corporation duly
incorporated, validly existing and in good standing under the law of
the State of Delaware and has all requisite corporate powers and all
material Permits required to carry on its business as now conducted and
as contemplated by the Transaction Documents.
(b) Special Purpose Status. The Issuer has not engaged in any
activities since its organization (other than those incidental to its
organization and other appropriate steps in connection with the
transactions contemplated by the Transaction Documents, including
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arrangements for the payment of the fees of its trustee, the issuance
and sale of the Senior Notes and the WCL Interest in exchange for the
consideration received therefor, the purchase and receipt of the WCG
Note, the preparation, execution and delivery of any applications with
any Governmental Authority, the execution of the Transaction Documents
to which it is a party executed on or prior to the date hereof and the
other activities referred to in or contemplated by such Transaction
Documents) and has not made any distributions since its organization,
other than those contemplated by the Transaction Documents. The
Co-Issuer has not engaged in any activities since its incorporation
(other than those incidental to its incorporation and other appropriate
steps in connection with the transactions contemplated by the
Transaction Documents, including the issuance of stock to the Issuer
and arrangements for the payment of fees to its directors, the
authorization and the issuance of the Senior Notes, the execution of
the Transaction Documents to which it is a party executed on or prior
to the date hereof and the activities referred to in or contemplated by
such Transaction Documents) and has not paid any dividends or made any
distributions since its incorporation.
(c) Trust or Corporate Authorization; No Contravention. The
execution, delivery and performance by the Issuer of each of the
Transaction Documents to which it is a party are within the Issuer's
trust powers, have been duly authorized by all necessary trust action,
and do not contravene, or constitute a default under, any provision of
Applicable Law in effect on the Closing Date or of the Issuer Trust
Agreement or of the Certificate of Trust or of any agreement or other
instrument binding upon the Issuer or result in the creation or
imposition of any Lien on any asset of the Issuer, except for Permitted
Liens of the type described in clause (iii) of the definition thereof.
The execution, delivery and performance by the Co-Issuer of each of the
Transaction Documents to which it is a party are within the Co-Issuer's
corporate powers, have been duly authorized by all necessary corporate
action, and do not contravene, or constitute a default under, any
provision of Applicable Law in effect on the Closing Date or of the
Co-Issuer's Certificate of Incorporation or Bylaws or of any agreement
or other instrument binding upon the Co-Issuer or result in the
creation or imposition of any Lien on any asset of the Co-Issuer,
except for Permitted Liens of the type described in clause (iii) of the
definition thereof.
(d) Binding Effect. Each of the Transaction Documents to which
each of the Issuer and the Co-Issuer is a party has been duly executed
and delivered by the Issuer and/or the Co-Issuer, as the case may be,
and, subject to the due execution and delivery by the other parties
thereto, each such Transaction Document constitutes (or, in the case of
the Senior Notes, when duly authenticated, issued, paid for and
delivered in accordance with this Indenture and the Note Purchase
Agreement, will constitute) a legal, valid and binding obligation of
the Issuer and/or the Co-Issuer, as the case may be, enforceable
against the Issuer and/or the Co-Issuer, as the case may be, in
accordance with its terms except as the enforceability thereof may be
limited by (i) applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally and general equitable principles (whether
enforcement is sought by proceedings in equity or at law) and (ii) in
the case of the Remarketing and Support Agreement, the Note Purchase
Agreement and the WCG Note Reset Remarketing Agreement, the effect of
applicable public policy on the enforceability of provisions relating
to contribution and indemnification.
(e) Security for the Senior Notes. The Grant of the Security
for the Senior Notes securing on an equal and ratable basis the payment
of the Secured Obligations (x) for the benefit of the Indenture Trustee
and the Noteholders and (y) for the benefit of Williams will constitute
a valid, first priority, perfected security interest in the Security
for the Senior Notes, free and clear of any Lien or claims of any
Person (other than Permitted Liens set forth in clause (iii) of the
definition thereof), to the extent perfection can occur under Article 8
and/or Article 9 of the New York UCC by possession, filing of a
financing statement or control of a securities account. Following such
perfection, such security interest will be enforceable as such against
all creditors
35
of the Issuer and any Persons purporting to purchase any of the
Security for the Senior Notes from the Issuer, except in each case as
enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and general equitable
principles (whether enforcement is sought by proceedings in equity or
at law) and other than as permitted by the Transaction Documents.
Neither the Issuer nor the Co-Issuer has executed and/or filed any
valid financing statement covering the Indenture Trustee's interest in
the Security for the Senior Notes that is on file in any public office
other than the financing statements, if any, filed pursuant to the
Transaction Documents.
(f) No Consents. The execution, delivery and performance by
each of the Issuer and the Co-Issuer of each Transaction Document to
which the Issuer and/or the Co-Issuer, as the case may be, is a party
and the offering of the Senior Notes by the Issuers and the creation of
the Security for the Senior Notes do not require the consent or the
approval or authorization of, or any filing, registration or
qualification with, any Person or any Governmental Authority on the
part of either the Issuer and/or the Co-Issuer, as the case may be, as
a condition to such execution, delivery and performance by it as and
when required that has not been obtained, given or taken except (i) for
filings of Uniform Commercial Code financing statements to perfect the
security interests contemplated by the Transaction Documents and (ii)
where the failure to obtain such consent, approval or authorization or
make such filing, registration or qualification would not have an
Issuer Material Adverse Effect.
(g) Litigation. There is no Proceeding pending against or, to
the actual knowledge of any Authorized Officer of either the Issuer or
the Co-Issuer, threatened against, the Issuers before any Governmental
Authority.
(h) Tax Claims. There is no Tax claim pending against or, to
the actual knowledge of any Authorized Officer of either the Issuer or
the Co-Issuer, threatened against the Issuers.
(i) Payment of Taxes. The Issuers have each paid all Taxes
which they are required to have paid prior to the Closing Date.
(j) Not an Investment Company. Neither the Issuer nor the
Co-Issuer will be required to register as an "investment company"
within the meaning of the Investment Company Act, and neither will
become such as a result of the issuance and sale of the Senior Notes or
the other transactions contemplated by the Transaction Documents.
(k) Liens. There are no Liens of any kind (other than
Permitted Liens described in clause (iii) of the definition thereof)
affecting title to any of the assets or rights of the Issuer or the
Co-Issuer under any Transaction Documents.
(l) No Conflict. Neither the sale, issuance or delivery of the
Senior Notes to the Initial Purchasers nor the consummation of any
other of the transactions contemplated herein nor compliance with the
provisions of this Indenture will conflict with or result in the breach
of any material term or provision of any agreements to which the Issuer
or the Co-Issuer is a party or constitute a violation of any Applicable
Law.
(m) Margin Compliance. No part of the proceeds of the sale of
the Senior Notes will be used, directly or indirectly, for the purpose
of purchasing or carrying any Margin Stock within the meaning of
Regulations U and X of the Board of Governors of the Federal Reserve
System.
(n) Compliance. Neither the Issuer nor the Co-Issuer is in
breach or violation of or in default (nor, to the actual knowledge of
an Authorized Officer of either the Issuer or the
36
Co-Issuer, has an event occurred that with notice or lapse of time or
both would constitute a default) under the terms of (i) its
Organizational Documents, (ii) any of the Transaction Documents, (iii)
any other agreements to which the Issuer or the Co-Issuer, as the case
may be, is a party or (iv) any Applicable Law.
(o) No Defaults. To the best of the Issuers' knowledge, no
Event of Default has occurred and is continuing and no condition, event
or act has occurred and is continuing that with the giving of notice
and/or the lapse of time and/or any determination or certification
would constitute an Event of Default.
(p) Indebtedness. Neither the Issuer nor the Co-Issuer has
created, assumed or incurred any Indebtedness in violation of its
Organizational Documents or any Transaction Document.
(q) Employees, Subsidiaries. The Issuer has no employees, and
other than the Co-Issuer, no Subsidiaries and no place of business
outside of the State of Delaware. The Co-Issuer has no employees, no
Subsidiaries and no place of business outside of the State of Delaware.
(r) PUHCA. Neither the Issuer nor the Co-Issuer is subject to
regulation as a "holding company" as such term is defined in the PUHCA.
(s) Securities Act. Assuming that the representations of the
Initial Purchasers relating to matters of securities law set forth in
the Note Purchase Agreement are true and correct and assuming
compliance by the Initial Purchasers with their agreements contained in
the Note Purchase Agreement and assuming compliance by the initial
Noteholders with the restrictive legends contained in the Senior Notes,
the sale of the Senior Notes by the Issuers to the Initial Purchasers
and by the Initial Purchasers to the initial Noteholders in the manner
contemplated by the Note Purchase Agreement will be exempt from the
registration requirements of the Securities Act.
SECTION 6.02. Survival of Representations and Warranties. It
is understood and agreed that the representations and warranties set forth in
Section 6.01 shall survive the contribution and sale of the Security for the
Senior Notes to the Issuers and the Grant of the Security for the Senior Notes.
Upon actual knowledge by the Issuers or a Responsible Officer of the Indenture
Trustee of a breach of any of such representations and warranties, the party
discovering such breach shall give prompt written notice to the other parties
and to the Noteholders.
ARTICLE VII
COVENANTS OF THE ISSUERS
SECTION 7.01. Covenants of the Issuers. The Issuers agree that
so long as any amount payable hereunder or under any Senior Note remains unpaid:
(a) Information. The Issuers will at all times furnish to the
Indenture Trustee such information as the Indenture Trustee may
reasonably request for the purpose of the discharge of the trusts,
powers, rights, duties, authorities and discretions vested in it
hereunder or under any other Transaction Document or by operation of
law.
(b) Reporting Requirements. The Issuers shall furnish or cause
to be furnished to the Indenture Trustee who shall furnish to Williams,
the Rating Agencies and the Noteholders:
(i) as soon as available and in any event within 60
days after the end of the first, second and third fiscal
quarters of the Issuer, an unaudited consolidated balance
sheet of
37
the Issuer as of the end of such quarter and the related
consolidated statements of income and cash flows for such
quarter, prepared in accordance with GAAP, and for the portion
of the fiscal year ending with the last day of such quarter,
setting forth in each case in comparative form corresponding
unaudited figures for the corresponding fiscal period of the
preceding year, if any; provided that such financial
statements need not include footnote disclosure and may be
subject to ordinary year-end adjustments;
(ii) as soon as available and in any event within 120
days after the end of each fiscal year of the Issuer, audited
consolidated financial statements of the Issuer, prepared in
accordance with GAAP, together with an unqualified audit
opinion of Ernst & Young LLP or another firm of independent
certified public accountants of recognized national standing
and an Issuers' Certificate stating, to their actual
knowledge, (a) that no Indenture Default or Event of Default
has occurred or is continuing, (b) if an Indenture Default or
Event of Default has occurred and is continuing, a statement
as to the nature thereof and what action the Issuers are
taking or propose to take in respect thereof and (c) that no
event has occurred or remains by reason of which payments on
account of the principal of or interest, if any, on the Senior
Notes are prohibited or, if such event has occurred, a
statement as to the nature thereof and what action the Issuers
are taking or propose to take with respect thereto;
(iii) promptly and in any event within 10 Business
Days after either the Issuer or the Co-Issuer has actual
knowledge thereof, written notice of the occurrence of any
event or condition which constitutes an Indenture Default,
Event of Default or Trigger Event, specifically stating that
such event or condition has occurred and describing it and any
action being or proposed to be taken with respect thereto; and
(iv) promptly and in any event within 10 Business
Days after either the Issuer or the Co-Issuer has actual
knowledge thereof, written notice of the occurrence of any
material default under any Transaction Document, the
commencement of any material actions, suits and other
proceedings instituted against either the Issuer or the
Co-Issuer or the occurrence of any event or condition that is
reasonably likely to have an Issuer Material Adverse Effect.
With respect to the information and documents required to be
delivered pursuant to this Section 7.01(b), the Indenture Trustee may
require each owner of a beneficial interest in a Global Note requesting
such information to provide evidence satisfactory to the Indenture
Trustee of such Person's interest in a Global Note before delivering
the requested information to such Person. Delivery of such information,
documents or notices to the Indenture Trustee shall be for
informational purposes only, and the Indenture Trustee's receipt of
such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein,
including the Issuers' compliance with any of their covenants hereunder
(as to which the Indenture Trustee is entitled to rely exclusively on
Issuers' Certificates).
(c) Maintenance of Books and Records. The Issuers will
maintain their books and records in accordance with GAAP.
(d) Notices. If at any time any creditor of either of the
Issuers seeks to enforce any judgment or order of any competent court
or other competent tribunal in the State of Delaware or the State of
New York against any of the Security for the Senior Notes, the Issuers
shall (i) promptly give written notice to such creditor and to such
court or tribunal of the Indenture Trustee's interests therein; (ii) if
at any time an examiner, administrator, administrative receiver,
receiver, trustee, custodian, sequestrator, conservator or other
similar appointee (an "Insolvency Appointee") is appointed in respect
of any creditor or any of their assets, promptly give notice to
38
such appointee of the Indenture Trustee's interests therein; and (iii)
notify the Indenture Trustee in writing thereof in either case.
(e) Payment of Obligations. The Issuers will pay and discharge
in full their obligations hereunder, under the Senior Notes and under
the other Transaction Documents.
(f) Limitation on Activities of the Issuer. The Issuer shall
not hold any material assets (other than Permitted Assets and its
interests under the Transaction Documents and Financial Investments as
contemplated by the Transaction Documents), become liable for any
material obligations (other than the Senior Notes), engage in any trade
or business or conduct any activity other than the incurrence of
indebtedness as a co-obligor of the Senior Notes, the activities
contemplated in this Indenture, the Participation Agreement, the Issuer
Trust Agreement, the Liquidity Agreement, the Remarketing and Support
Agreement, the WCG Note Reset Remarketing Agreement and any other
Transaction Document to which it is a party and the activities
incidental thereto.
(g) Limitation on Activities of the Co-Issuer. The Co-Issuer
shall not hold any material assets, become liable for any material
obligations (other than the Senior Notes), engage in any trade or
business or conduct any activity, other than the issuance of equity
interests to the Issuer, the incurrence of indebtedness as a co-obligor
of the Senior Notes, the activities contemplated in this Indenture and
any other Transaction Document to which it is a party and the
activities incidental thereto. The Issuer shall not engage in any
transactions with the Co-Issuer in violation of the immediately
preceding sentence.
(h) Issuance of Trust Interests. The Issuer shall not issue
any other trust certificates of beneficial interest or any other
interests in relation to its ownership or control other than the WCL
Interest.
(i) Disposal of the Security for the Senior Notes. Except as
provided in or permitted by this Indenture or the other Transaction
Documents, the Issuers shall not sell, assign, lease, transfer or
otherwise dispose of any interest in the Security for the Senior Notes.
(j) No Liens. The Issuers will not create, assume or permit to
exist upon any of the Security for the Senior Notes any Lien whatsoever
other than Permitted Liens.
(k) Further Assurances. The Issuers will cause all financing
statements covering the Security for the Senior Notes to be promptly
recorded, registered and filed, and at all times to be kept recorded,
registered and filed, and will execute and file such financing
statements, all in such manner and in such places as may be required by
law fully to preserve and protect the rights of the Indenture Trustee
as secured party hereunder to all property comprising the Security for
the Senior Notes. The Issuers shall take all steps as the Indenture
Trustee may reasonably request to perfect the security interests in the
Security for the Senior Notes and maintain such perfection; provided
that any costs and expenses of taking such steps shall be included in
the Administrative Expenses due and payable on the next succeeding
Senior Note Payment Date.
(l) Direction. The Issuers shall take all steps as the
Indenture Trustee may reasonably require at any time or times to give
effect to the Transaction Documents; provided that any costs and
expenses of taking such steps shall be included in the Administrative
Expenses due and payable on the next succeeding Senior Note Payment
Date.
(m) Conduct of Business and Maintenance of Existence. The
Issuers will not engage in any activity other than as required or
contemplated hereunder and under the Transaction Documents. The Issuers
will carry on their respective businesses in a proper and efficient
39
manner, to the extent permitted under this Indenture. Subject to the
terms of Section 7.01(q), the Issuers will keep in full effect their
legal existence, material rights (charter, if applicable, and
statutory) and material franchises as a partnership or corporation, as
applicable, under the laws of the State of Delaware and, at the request
of the Indenture Trustee, obtain and preserve their qualification to do
business as a foreign partnership or foreign corporation, as
applicable, in each jurisdiction in which such qualification is or
shall be necessary to protect the validity and enforceability of this
Indenture or any of the Security for the Senior Notes and to perform
their respective duties under this Indenture.
(n) Compliance with Laws. Each of the Issuer and the Co-Issuer
will comply in all material respects with all Applicable Laws in the
jurisdiction of its organization or incorporation except where the
necessity of compliance therewith is contested in good faith by
appropriate proceedings or where the failure to so comply would not
reasonably be expected to have an Issuer Material Adverse Effect.
(o) Investments; No Subsidiaries. Other than as contemplated
by the Transaction Documents, the Issuers will not make or acquire any
direct Investment in any Person other than, in the case of the Issuer,
its Investment in the Co-Issuer, the WCG Note and any Financial
Investments. Without limitation of the foregoing, the Co-Issuer shall
have no subsidiaries.
(p) Indebtedness. The Issuers will not create, assume, incur
or suffer to exist any Indebtedness other than the Senior Notes.
(q) Consolidation or Merger. Neither of the Issuers will
consolidate or merge with or into any Person unless (i) such Issuer
shall be the surviving entity, or the Person (if other than such
Issuer) formed by such consolidation or into which such Issuer is
merged shall expressly assume the due and punctual payment of the
principal of and interest and premium, if any, on the Senior Notes and
the performance of every other covenant of such Issuer under this
Indenture and under each other Transaction Document to which such
Issuer is a party and (ii) each Rating Agency confirms that its then
current rating on the Senior Notes shall not be withdrawn or
downgraded.
(r) Use of Proceeds. The proceeds of the Senior Notes,
together with the proceeds of the issuance of the WCL Interest, will be
used by the Issuer to purchase the WCG Note for $1,500,000,000.
(s) Amendment of Transaction Documents. Except for amendments,
modifications and supplements to this Indenture contemplated in Article
XII, the Issuers will not agree or consent to any amendment,
modification or waiver of any provision of any Transaction Document
without the consent of the Indenture Trustee acting at the written
direction of the Majority Noteholders unless the Indenture Trustee
receives an Opinion of Counsel to the effect that such amendment,
modification or waiver will not materially adversely affect the
Noteholders. In addition to the foregoing, the Issuers will not agree
or consent to any amendment, modification or waiver of any provisions
of any Transaction Document unless the Indenture Trustee has received
an Opinion of Counsel to the effect that such amendment, modification
or waiver will not result in the Lien created by this Indenture being
materially adversely affected. Neither the Issuer nor the Co-Issuer
shall amend or modify, or consent to amend or modify, the Issuer Trust
Agreement or the Certificate of Incorporation of the Co-Issuer without
the written consent of the Majority Noteholders (except, in either
case, as required by law or with respect to its registered agent or
office in the State of Delaware).
40
(t) Assignment of Transaction Documents. Except for
assignments contemplated by this Indenture, the Issuers will not assign
their rights under any of the Transaction Documents to which they are a
party without the prior written consent of the Majority Noteholders.
(u) Rule 144A. The Issuers will furnish or cause to be
furnished promptly upon the request of a Noteholder or a prospective
transferee, at any time when the Issuers are not subject to Section 13
or 15(d) of the Exchange Act, information specified in Rule
144A(d)(4)(i) and (ii) under the Securities Act to such Noteholder or
to a prospective transferee of a Senior Note or interests in such
Senior Note designated by such Noteholder, as the case may be, in
connection with the resale pursuant to Rule 144A of such Senior Note or
such interests by such Noteholder; provided, however, that the Issuers
shall not be required to furnish such information in connection with
any request made after the date which is the earlier to occur of the
date two years after the later to occur of (i) the Closing Date and
(ii) the date such Senior Note was last acquired from an "affiliate" of
either the Issuer or the Co-Issuer within the meaning of Rule 144.
(v) Restrictions on Certain Actions. The Issuers will not
take, or knowingly permit to be taken, any action that would terminate
or discharge or prejudice the validity or effectiveness of any of the
Transaction Documents or the validity, effectiveness or priority of the
Liens created hereby or thereby or permit any party to any of the
Transaction Documents whose obligations form part of the security
created by this Indenture to be released from such obligations except,
in each case above, as permitted or contemplated by this Indenture or
the other Transaction Documents.
(w) Transaction Documents. Each of the Issuer and the
Co-Issuer will enter into and perform all of its material obligations
under each Transaction Document to which it is a party.
(x) Issuance of Stock. The Co-Issuer shall not issue, deliver
or sell any additional shares of its capital stock, except to the
Issuer.
(y) Taxes. The Issuers shall file all Federal, state, local
and foreign tax returns which are required to be filed and will pay all
taxes shown on such returns and all assessments received by them to the
extent the same are material and have become due.
ARTICLE VIII
LIMITATION ON LIABILITY OF THE ISSUERS
SECTION 8.01. Liabilities of the Issuers. The Issuers shall be
liable in accordance herewith only to the extent of the obligations specifically
imposed upon and undertaken by each of them herein.
ARTICLE IX
EVENTS OF DEFAULT
SECTION 9.01. Events of Default. If one or more of the
following events (herein referred to as "Events of Default") (whatever the
reason for such Events of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body) shall have occurred and be continuing:
41
(a) failure by the Issuers to make (or cause to be made on
their behalf) on any Interest Payment Date a payment of the Senior Note
Interest Amount for such Interest Payment Date, and such failure
continues for five Business Days thereafter;
(b) funds from the Semi-Annual Cash Flow are not sufficient to
pay accrued and unpaid interest on the Senior Notes as of the opening
of business on the fifth Business Day after any Interest Payment Date
(a "Cash Flow Event of Default");
(c) failure by the Issuers, Williams, or the Share Trust duly
to observe or to perform any other covenant of the Issuers, Williams,
or the Share Trust, as applicable, under this Indenture or any other
Transaction Document (other than any covenant or agreement in or with
respect to the Note Purchase Agreement) to which such entity is a
party, which failure (i) materially adversely affects the rights of the
Noteholders and (ii) continues unremedied for a period of 30 days after
the earlier of (A) Williams or any of its Affiliates having actual
knowledge of such default and (B) the giving of written notice of such
failure to the Issuers and Williams by the Indenture Trustee or by any
Noteholder;
(d) any representation or warranty made by any of the Issuer,
the Co-Issuer, Williams, WCL, WCG or the Share Trust, as applicable, in
this Indenture or in any other Transaction Document (other than any
representation or warranty made in or with respect to the Note Purchase
Agreement) or in any other document delivered to the Indenture Trustee
pursuant to any Transaction Document (other than the Note Purchase
Agreement) shall prove to have been incorrect in any respect which
materially adversely affects the rights of the Noteholders when made
(or deemed made) and such misrepresentation continues for 30 days after
the earlier of (x) Williams or any of its Affiliates having actual
knowledge of such default and (y) the giving of written notice of such
misrepresentation to the Issuers and Williams by the Indenture Trustee
or by any Noteholder;
(e) the rendering of any final money judgment, enforceable in
any competent court, against any of the Issuer, the Co-Issuer or the
Share Trust, and such judgment shall not be discharged or dismissed or
execution thereon stayed within 60 days after entry;
(f) the occurrence of any default in the payment when due of
interest on or principal of any Williams Demand Loans;
(g) any of the Issuer, the Co-Issuer, Williams, WCG, WCL or
the Share Trust becomes an investment company required to be registered
under the Investment Company Act;
(h) the commencement of any voluntary or involuntary
proceeding under any bankruptcy or insolvency law seeking liquidation,
reorganization or other relief with respect to any of the Issuer, the
Co-Issuer, Williams, WCG, WCL or the Share Trust, and, in the case of
any such involuntary proceeding with respect to Williams, WCG or WCL,
such proceeding has not been terminated within 60 days after
commencement;
(i) the failure by Williams to pay any principal or interest,
regardless of amount, due in respect of any Indebtedness in a principal
amount in excess of $60,000,000 in the aggregate, when and as the same
shall become due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise) which failure continues
after any applicable grace period;
(j) the failure by the Issuer to make any payments required
under the Transaction Documents, subject to any otherwise applicable
grace period;
42
(k) this Indenture or any other Transaction Document to which
any of the Issuer, the Co-Issuer, Williams, WCG, WCL or the Share Trust
is a party ceases to be the legally valid and enforceable obligation of
any of the Issuer, the Co-Issuer, Williams, WCG, WCL or the Share
Trust, as the case may be, which cessation (x) materially adversely
affects the rights of the Noteholders and (y) continues for 30 days
after the earlier of (A) Williams or any of its Affiliates having
actual knowledge thereof and (B) the giving of written notice of such
cessation to the Issuers and Williams by the Indenture Trustee or by
any Noteholder; and
(l) the pledge of the Security for the Senior Notes ceases to
be in full force and effect or is repudiated by the Issuers; provided
that, in the case of such cessation which is not a repudiation and does
not materially adversely affect the rights of the Noteholders, such
cessation shall not become an Event of Default unless it continues
unremedied for 30 days after the earlier of (x) Williams or any of its
Affiliates having actual knowledge thereof and (y) the giving of
written notice of such cessation to the Issuers and Williams by the
Indenture Trustee or by any Noteholder;
then, (x) the Indenture Trustee, at the written direction of the Holders of at
least 25% of the aggregate principal amount of the Senior Notes Outstanding (the
"Required Holders") in their sole and absolute discretion, shall deliver a
written notice substantially in the form of Exhibit F hereto (a "Default
Notice") to the Issuers, the Share Trustee and Williams, which shall
specifically state that it is a Default Notice, and (y) the Indenture Trustee,
by notice in writing to the Issuers, the Share Trustee and Williams, shall
declare the principal of all the Senior Notes and the unpaid interest accrued
thereon to be due and payable immediately, without presentment, demand, protest
or other requirements of any kind, all of which are hereby expressly waived by
the Issuers, upon, in the case of an Event of Default other than an Event of
Default of the type described in clauses (a), (b), (f) or (h), the written
direction of the Required Holders and, in the case of any Event of Default of
the type described in clauses (a), (b), (f) or (h), the principal of all the
Senior Notes and the unpaid interest accrued thereon shall automatically become
due and payable immediately.
If and to the extent that any payment by or on behalf of the
Issuers in respect of the Senior Notes is rescinded or must be otherwise
restored by any Noteholder, not later than one year and one day after the
payment in full of the Senior Notes, as a result of any proceedings in
bankruptcy or reorganization relating to the Issuers, WCL or WCG, the amount of
any such payment shall be deemed not to have been paid and shall, together with
all other amounts remaining payable by the Issuers to the Noteholders hereunder,
automatically become due and payable immediately, and the Indenture Trustee
shall give notice thereof in the same manner as provided with respect to an
Event of Default described in Section 9.01(a) above.
SECTION 9.02. Application of Proceeds. Subject to the
limitations described in Section 9.04(b), any moneys collected by the Indenture
Trustee pursuant to this Article IX, from and after an acceleration of the
Senior Notes, together with all moneys at the time on deposit in the Indenture
Accounts, shall be applied to a Mandatory Redemption of the Senior Notes in
accordance with Section 5.05(d) at the date or dates fixed by the Indenture
Trustee pursuant to Section 15.01.
SECTION 9.03. Waiver of Past Events of Default. Prior to the
declaration of the acceleration of the Senior Notes as provided in Section 9.01,
the Majority Noteholders may, on behalf of the Holders of all the Senior Notes,
waive any past Indenture Default or Event of Default hereunder and its
consequences, except a default (a) in the payment of principal of or interest on
any of the Senior Notes or (b) in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the Holder of each
Senior Note affected. In the case of any such waiver, the Issuers, the Indenture
Trustee and the Noteholders shall be restored to their former positions and
rights hereunder, respectively, and the relevant Indenture Default or Event of
Default shall cease to exist and be deemed to
43
have been cured and not to have occurred for every purpose of this Indenture;
but no such waiver shall extend to any subsequent or other Event of Default or
impair any right consequent thereon.
SECTION 9.04. Provisions Relating to the Support for the
Senior Notes. Subject to Section 9.03, the Indenture Trustee shall not take any
of the actions described in this Section 9.04 (other than the actions described
in Section 9.04(i)) until the occurrence of a Trigger Event. Upon the occurrence
of a Trigger Event, the Indenture Trustee shall deliver a written notice (a
"Trigger Event Notice") to the Issuers, Williams, WCG, WCL, the Noteholders and
the Share Trust, which shall specifically state that it is a Trigger Event
Notice and the Senior Notes will be subject to a Mandatory Redemption in
accordance with Article XV.
(a) Proceedings Upon Trigger Event.
(i) Subject to subparagraphs (b), (g) and (h) below,
upon the occurrence of a Trigger Event, the Indenture Trustee
shall institute proceedings to seek or enforce any remedy to
protect and enforce any of its rights or powers with respect
to the Remarketing and Support Agreement and the Share Trust
Agreement, including to cause the Share Trustee to liquidate
the Williams Preferred Stock held by the Share Trust and/or
shares issued pursuant to the Remarketing and Support
Agreement through the remarketing process set forth in the
Remarketing and Support Agreement and to deposit the proceeds
into the Indenture Redemption Account (the "Share Trust
Remedy").
(ii) Subject to subparagraphs (b), (h) and (i) below,
upon the occurrence of a Trigger Event, the Indenture Trustee
may, or at the written direction of the Required Holders
shall, institute proceedings to seek or enforce any remedy to
protect and enforce any of its rights or powers with respect
to the other assets of the Issuer constituting the Security
for the Senior Notes, including, without limitation, selling
the Issuer's interest in the WCG Note, and deposit the
proceeds in the Indenture Redemption Account (the "Asset
Remedy").
(iii) In taking any action under the Asset Remedy,
the Indenture Trustee shall use its best efforts to achieve
the maximum proceeds for the Noteholders and Williams,
consistent with a prompt and orderly proceeding, without
regard to any proceeds available to the Noteholders pursuant
to the Share Trust Remedy.
(b) Limitations on Remedies of Indenture Trustee.
(i) Upon the occurrence of any Trigger Event, the
Share Trust Remedy shall not commence until the later of (A)
21 days after the occurrence of such Trigger Event and (B) if,
no later than 21 days after such Trigger Event, Williams files
a registration statement for and is diligently pursuing the
registration and sale of the New Series (including, at
Williams' option, the Williams Preferred Stock and/or shares
issued pursuant to the Remarketing and Support Agreement) in
order to generate proceeds in an amount reasonably expected to
be at least equal to the Share Trust Amount, then 60 days
after the occurrence of such Trigger Event. The 21-day or
60-day period referred to in this paragraph is herein referred
to as the "Share Trust Remedy Standstill Period."
(ii) Upon the occurrence of any Trigger Event, the
Indenture Trustee may pursue the Asset Remedy: (A) in the case
of an Acceleration Trigger not caused by a Williams Event,
only after the later of (x) 21 days after the occurrence of
such Trigger Event and (y) if, no later than 21 days after
such Trigger Event, Williams files a registration statement
for and is diligently pursuing the registration and sale of
either the
44
New Series or, at Williams' option, the Williams Preferred
Stock and/or shares issued pursuant to the Remarketing and
Support Agreement in order to generate proceeds in an amount
reasonably expected to be at least equal to the Share Trust
Amount, then 120 days following the occurrence of such Trigger
Event; (B) in the case of an Acceleration Trigger caused by a
Williams Event, only at the direction of the Required Holders;
and (C) in the case of a Maturity Trigger or a Stock
Price/Credit Downgrade Trigger, only after 120 days following
the occurrence of such Trigger Event. The 21-day or 120-day
period referred to in this paragraph is herein referred to as
the "Asset Remedy Standstill Period."
(iii) The Indenture Trustee may, at the direction of
the Required Holders, to the extent permitted by Applicable
Law and subject to the other provisions of this Indenture,
take any other action of a secured party under such law. The
Indenture Trustee shall not be bound to institute any such
proceedings or take any other action, except as otherwise
provided in this Section 9.04 unless (A) it shall have been so
directed in writing by the Required Holders and (B) it shall
have been furnished an indemnity to its reasonable
satisfaction.
(c) Indenture Trustee's Actions in Event of Proceedings. Any
time the Indenture Trustee is entitled under this Indenture to
institute Proceedings to enforce this Indenture and the Senior
Notes or its rights under the other Transaction Documents the
following shall be applicable:
(i) subject to Section 2.05(f), the Indenture Trustee
in its own name, and as trustee of an express trust, shall be
entitled and empowered to institute any Proceedings to recover
judgment against the Issuers under this Indenture or the
Senior Notes for the whole amount due and unpaid hereunder or
thereunder and may prosecute any such claims or Proceedings to
judgment or final decree against the Issuers or such other
party and collect the moneys adjudged or decreed to be payable
in any manner provided by law, whether before or after or
during the pendency of any Proceedings for the enforcement of
the Lien of this Indenture or of any of the Indenture
Trustee's rights or the rights of the Holders under this
Indenture, and such power of the Indenture Trustee shall not
be affected by the exercise of any other right, power or
remedy for the enforcement of the provisions of this Indenture
or for the foreclosure of the Lien hereof;
(ii) subject to Section 2.05(f) and except as
required by applicable law or the terms of such judgment or
final decree, no recovery of any judgment or final decree by
the Indenture Trustee and no levy of any execution under any
such judgment upon any of the Security for the Senior Notes
shall in any manner or to any extent affect the Lien of this
Indenture upon any of the Security for the Senior Notes or any
rights, powers or remedies of the Indenture Trustee, but all
such Liens, rights, powers and remedies shall continue
unimpaired as before;
(iii) subject to Section 2.05(f), the Indenture
Trustee in its own name, or as trustee of an express trust, as
the case may be, or in any one or more of such capacities,
shall be entitled and empowered to file such proofs of claim
and other papers or documents as may be necessary or advisable
in order to have the claims of the Indenture Trustee and of
the Noteholders (whether such claims be based upon the
provisions of such Senior Notes or of this Indenture) allowed
in any receivership, insolvency, bankruptcy, moratorium,
liquidation, readjustment, reorganization or any other
Proceedings relative to either of the Issuers or the
respective creditors of the Issuers, and any receiver,
assignee, trustee, liquidator or sequestrator (or other
similar official) in any such judicial or other proceeding is
hereby authorized to make such payments to the
45
Indenture Trustee and, in the event that the Indenture Trustee
shall consent to the making of such payments directly to the
Noteholders, to pay to the Indenture Trustee any amount due to
it for the reasonable compensation, expenses, disbursements
and advances of the Indenture Trustee, its agents and counsel;
(iv) subject to Section 11.01(b), all rights of
action and of asserting claims under this Indenture or under
any of the Senior Notes enforceable by the Indenture Trustee
may be enforceable by the Indenture Trustee to the extent
permitted by law without possession of any of such Senior
Notes or the production thereof at the trial or other
Proceedings relative thereto;
(v) in case the Indenture Trustee shall have
proceeded to enforce any right under this Indenture by suit,
foreclosure or otherwise and such Proceedings shall have been
discontinued or abandoned for any reason or shall have been
determined adversely to the Indenture Trustee, then in every
such case the Issuers and the Indenture Trustee shall, to the
extent permitted by law, be restored without further act to
their respective former positions and rights hereunder, and
all rights, remedies and powers of the Indenture Trustee shall
continue as though no such proceedings had been taken, except
to the extent determined in litigation adversely to the
Indenture Trustee; and
(vi) the Indenture Trustee shall incur no liability
as a result of the sale of the Security for the Senior Notes,
or any part thereof, at any private sale conducted in a
commercially reasonable manner and in accordance with
Applicable Law. To the extent permitted by law, the Issuers
hereby waive any claims against the Indenture Trustee arising
by reason of the fact that the price at which the Security for
the Senior Notes may have been sold at such a private sale was
less than the price that might have been obtained at a public
sale or was less than the aggregate amount of the Senior
Notes, even if the Indenture Trustee accepts the first offer
received and does not offer the Security for the Senior Notes
to more than one offeree.
(d) Waiver of Appraisement, Valuation and Stay. To the extent
they may lawfully do so, the Issuers for themselves and for any Person
who may claim through or under either of them hereby:
(i) agree that neither they nor any such Person will
plead, claim or in any manner whatsoever take advantage of any
appraisement, valuation, stay, extension or redemption laws,
now or hereafter in force in any jurisdiction, which may
delay, prevent or otherwise hinder (A) the performance,
enforcement or foreclosure of the Liens created by this
Indenture or (B) the sale or other enforcement of the Security
for the Senior Notes as provided herein or therein;
(ii) waive all benefit or advantage of any such laws;
and
(iii) consent and agree that, subject to the terms of
this Indenture, the instruments constituting the Security for
the Senior Notes and regulations applicable thereto, all the
Security for the Senior Notes may upon any such sale be sold
by the Indenture Trustee as an entirety.
(e) Bankruptcy. Subject to Section 2.05(f), in case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other
Proceeding under any bankruptcy, insolvency or similar law relative to
either of the Issuers or the respective property of the Issuers or
their respective creditors, the Indenture Trustee (irrespective of
whether the principal of the Senior Notes shall then be due and
46
payable as herein or therein expressed or by declaration or otherwise
and irrespective of whether the Indenture Trustee shall have made any
demand on the Issuers for the payment of overdue principal, premium, if
any, or interest) shall be entitled and empowered, by intervention in
such Proceeding or otherwise:
(i) to file and prove a claim for the whole amount of
principal, premium, if any, and interest owing and unpaid in
respect of the Senior Notes and to file such other papers or
documents as may be necessary or advisable in order to have
the claims of the Indenture Trustee (including any claims for
the reasonable compensation, expenses, disbursements and
advances of the Indenture Trustee, its agents and counsel) and
of the Holders allowed in such Proceeding; and
(ii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or similar official in any
such Proceeding is hereby authorized by each Holder to make
such payments to the Indenture Trustee and, in the event that
the Indenture Trustee shall consent to the making of such
payments directly to the Holders, to pay the Indenture Trustee
any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee, its
agents and counsel and any other amounts due the Indenture
Trustee.
Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any proposal, plan of reorganization, arrangement,
adjustment or composition or other similar arrangement affecting the
Senior Notes or the rights of any Holder thereof or to authorize the
Indenture Trustee to vote in respect of the claim of any Holders in any
such proceeding.
(f) Remedies Cumulative; Delay or Omission Not a Waiver. To
the extent permitted by law, every remedy given hereunder to the
Indenture Trustee or to any of the Noteholders shall not be exclusive
of any other remedy or remedies, and every such remedy shall be
cumulative and in addition to every other remedy given hereunder or now
or hereafter given by statute, law, equity or otherwise. The Indenture
Trustee may exercise all or any of the powers, rights or remedies given
to it hereunder or which may be now or hereafter given by statute, law,
equity or otherwise, in its absolute discretion. No course of dealing
between the Issuers and the Indenture Trustee or the Noteholders or any
delay or omission of the Indenture Trustee or of the Holders to
exercise any right, remedy or power accruing upon any Event of Default
shall impair any right, remedy or power or shall be construed to be a
waiver of any such Event of Default or of any right of the Indenture
Trustee or of any Holder or acquiescence therein, and every right,
remedy and power given by this Article IX to the Indenture Trustee or
to the Holders may, to the extent permitted by law, be exercised from
time to time and as often as may be deemed expedient by the Indenture
Trustee or by the Holders.
(g) Certain Rights of the Issuer. Notwithstanding any other
provision of this Indenture, the Indenture Trustee and the Noteholders
(by their acceptance of the Senior Notes) agree that the Issuer shall
have reserved to it (i) its rights, together with the Indenture
Trustee, to receive notices, reports and other information under each
of the Transaction Documents and (ii) its right to appoint an
Independent Investment Banker under this Indenture and its right, prior
to the satisfaction and discharge of this Indenture, to consent to the
appointment of an Independent Investment Banker under the WCG Note
Indenture (the "Excepted Rights").
(h) Certain Voting Rights. The Issuer, the Indenture Trustee
and the Noteholders (by their acceptance of the Senior Notes) agree
that in exercising the contractual rights of the Issuer pursuant to the
grant of the Security for the Senior Notes (including, without
limitation, all such
47
rights in respect of the WCG Note and the WCG Note Indenture), and
subject to Section 9.04(i), the Indenture Trustee will act upon the
written direction of the secured party entitled to give such directions
at such point in time (the "Collateral Instructions Party"), as
follows:
(i) until the earlier of (x) a Williams Event and (y)
the Standstill Expiration Date with respect to the Asset
Remedy, the rights of the Issuer shall be exercised by the
Indenture Trustee acting at the written direction of Williams
as the Collateral Instructions Party; provided that the
following actions in respect of the WCG Note will also require
the consent of the Majority Noteholders:
(A) any change in the stated maturity of the
principal of, or any installment of interest on, the
WCG Note, or reduction in the principal amount thereof
or the interest thereon that would be due and payable
upon the stated maturity thereof, or change in the
place of payment where, or the coin or currency in
which, the WCG Note or any premium or interest thereon
is payable, or impairment of the right to institute
suit for the enforcement of any such payment on or
after the stated maturity thereof;
(B) any reduction in the percentage of required
holders of the WCG Note necessary for any supplemental
indenture or for any waiver of compliance with certain
provisions of the WCG Note Indenture or certain
defaults thereunder;
(C) except as otherwise required by the WCG Note
Indenture, any subordination, in right of payment or
otherwise, of the WCG Note to any other Debt (as
defined in the WCG Note Indenture) of WCG;
(D) except as otherwise required by the WCG Note
Indenture, the release of any security interest that
may have been granted in favor of the holder of the WCG
Note, except as otherwise required by the WCG Note
Indenture;
(E) any reduction of the premium payable upon the
redemption of the WCG Note or any change in the time at
which the WCG Note may be redeemed;
(F) any reduction of the premium payable upon a
Change of Control Triggering Event (as defined in the
WCG Note Indenture);
(G) any change in any Domestic Restricted
Subsidiary Guarantee (as defined in the WCG Note
Indenture) that would adversely affect the holder of
the WCG Note;
(H) any waiver of any default with respect to the
payment of the principal of, or premium, if any, or
interest on the WCG Note; or
(I) any modification of any provision contained
in clauses (A) through (H) above, except to increase
any percentage set forth therein; and
(ii) after the earlier to occur of (x) a Williams
Event and (y) the Standstill Expiration Date with respect to
the Asset Remedy, the rights of the Issuer will be exercised
by the Indenture Trustee acting at the written direction of
the Required Holders as the Collateral Instructions Party;
provided that any of the actions set forth in Section
9.04(h)(i)(A) through (H) shall require the consent of the
Holders of at least two-thirds of the then Outstanding
aggregate principal amount of the Senior Notes.
48
The Collateral Instructions Party shall have the right to (i)
direct the Indenture Trustee in writing to consent to the appointment
of a successor Issuer Trustee pursuant to Section 7.04(a) of the Issuer
Trust Agreement and (ii) direct the time, method and place of
conducting any proceeding for any remedy available to the Indenture
Trustee, or exercising any trust or power conferred upon the Indenture
Trustee; provided, that (x) such direction shall not be in conflict
with any Applicable Law or with this Indenture or expose the Indenture
Trustee to personal liability, and (y) the Indenture Trustee may take
any other action deemed proper by the Indenture Trustee which is not
inconsistent with such direction.
Williams is hereby irrevocably appointed as the agent of the
Indenture Trustee (effective so long as Williams is the Collateral
Instructions Party) to exercise such rights and remedies, including,
without limitation, to cause sales of the WCG Note in accordance with
Section 9.04(i), and no Noteholder will have the right to pursue, or to
direct the Indenture Trustee to pursue, any such sales in such
circumstances. Each Noteholder by its acceptance of a Senior Note,
hereby acknowledges and agrees that no conflict of interest shall exist
or arise from the Indenture Trustee acting in accordance with the
instructions of Williams pursuant hereto, it being in the best
interests of both the Noteholders and Williams to maximize the amount
of proceeds realized by the actions contemplated herein pursuant to a
prompt and orderly proceeding. When acting at the direction of
Williams, the Indenture Trustee shall not be a trustee or fiduciary of
Williams until the Senior Notes have been paid in full but shall
nevertheless perform such obligations in accordance with, and be
entitled to all of the rights and protections accorded it under,
Article XI.
(i) Certain Rights of the Indenture Trustee with respect to
the WCG Note; Reset Events; Special Defaults. Notwithstanding any other
provision of this Indenture, the Issuer, the Indenture Trustee and the
Noteholders (by their acceptance of the Senior Notes) agree that:
(i) Following the occurrence of any Reset Event,
including any Special Default, the Indenture Trustee shall
have the obligation to cause a Reset Sale of all or a portion
of the WCG Note in accordance with the WCG Note Reset
Remarketing Agreement; provided that upon the occurrence of a
Reset Event that is caused by an "Event of Default" as defined
in the WCG Note Indenture, the Indenture Trustee shall be
obligated to cause such a Reset Sale unless the Collateral
Instructions Party chooses to accelerate the WCG Note as a
result of such "Event of Default";
(ii) If (x) the WCG Note has been accelerated or (y)
a Failed Reset Sale (as defined in the WCG Note Reset
Remarketing Agreement) or a Reset Sale of less than all of the
WCG Note has occurred (in each case, other than as a result of
a Reset Event caused by the occurrence of the Interest Rate
Reset Date (as defined in the WCG Note Indenture)), the
Collateral Instructions Party shall have the right to direct
the sale of any unsold portion of the WCG Note at the highest
reasonably available market price (on an arm's length basis);
provided that the Indenture Trustee, when acting on the
instructions of the Required Holders as Collateral
Instructions Party, shall be subject to the Asset Remedy
Standstill Period;
(iii) If a Failed Reset Sale (as defined in the WCG
Note Reset Remarketing Agreement) or a Reset Sale of less than
all of the WCG Note has occurred, in each case, as a result of
a Reset Event caused by the occurrence of the Interest Rate
Reset Date, the Collateral Instructions Party shall have the
right, after the occurrence of a Trigger Event, to direct the
sale of any unsold portion of the WCG Note at the highest
reasonably available market price; provided that the Indenture
Trustee, when acting on the instructions of the Required
Holders as Collateral Instructions Party, shall be subject to
the Asset Remedy Standstill Period; and
49
(iv) Following the occurrence of any Trigger Event
caused by an Event of Default arising solely from the failure
of the Issuer to make any payments on the Senior Notes that is
not caused by the failure of WCG to make a corresponding
payment on the WCG Note (an "Issuer Only Payment Default"),
the Collateral Instructions Party shall have the right to
direct the sale of the WCG Note at the highest reasonably
available market price; provided that the Indenture Trustee,
when acting on the instructions of the Required Holders as
Collateral Instructions Party, shall be subject to the Asset
Remedy Standstill Period.
Any sale of the WCG Note (or any portion thereof) pursuant to
this Section 9.04(i) shall be made free and clear of the Lien of this
Indenture.
ARTICLE X
SATISFACTION AND DISCHARGE;
NOTICE OF CERTAIN EVENTS; UNCLAIMED MONEYS
SECTION 10.01. Satisfaction and Discharge of Indenture. If at
any time the Issuers shall have paid or caused to be paid in full the Secured
Obligations, the Indenture Trustee, at the reasonable cost and expense of the
Issuers, shall give written notice to Williams, WCG, the Issuer and the Share
Trustee as to the payment in full of the Secured Obligations. One year and one
day after the payment in full of the Secured Obligations, the Indenture Trustee,
at the reasonable cost and expense of the Issuers, shall (i) give written notice
to Williams, WCG, the Issuer and the Share Trustee as to the satisfaction and
discharge of this Indenture, (ii) execute proper instruments releasing the
Security for the Senior Notes, (iii) deliver such instruments to Williams, WCG,
the Issuer and the Share Trustee and (iv) release the Security for the Senior
Notes to or on the order of the Issuer. The Issuers agree to reimburse or cause
the reimbursement of the Indenture Trustee for any documented costs or expenses
thereafter reasonably and properly incurred and to compensate the Indenture
Trustee for any services thereafter reasonably and properly rendered by the
Indenture Trustee in connection with this Indenture or the Senior Notes.
SECTION 10.02. Application by Indenture Trustee of Funds
Deposited for Payment of Secured Obligations. Subject to Section 10.04, all
moneys deposited with the Indenture Trustee for payment pursuant to Section
10.01 shall be held in trust by the Indenture Trustee and applied by it first to
the payment of all sums payable hereunder by the Issuers (other than the amounts
referred to in clause second and third), second to the payment to the Holders of
the particular Senior Notes for the payment of which such moneys have been
deposited with the Indenture Trustee, of all sums due and to become due thereon
as principal, premium, if any, and interest, and third, to the payment to
Williams of the Issuer's Reimbursement Obligations, but such money need not be
segregated from other funds except to the extent required by law.
SECTION 10.03. Repayment of Moneys and Transfer of Eligible
Investments Held by Indenture Trustee. Following the satisfaction and discharge
of this Indenture, all moneys and Financial Investments then held by the
Indenture Trustee under the provisions of this Indenture (including all moneys
and Financial Investments then held in the Indenture Accounts) shall be promptly
repaid or, as the case may be, assigned or transferred to the Issuer to be
applied in accordance with the Issuer Trust Agreement, and thereupon the
Indenture Trustee shall be released from all further liability with respect to
such moneys and such Financial Investments.
SECTION 10.04. Return of Moneys Held by Indenture Trustee. Any
moneys deposited with or paid to the Indenture Trustee or any Paying Agent in
trust for the payment of the principal of, premium, if any, or interest on any
Senior Note and not applied but remaining unclaimed for
50
two years after the date upon which such principal, premium, if any, or interest
shall have become due and payable shall be repaid to or for the account of the
Issuer by the Indenture Trustee for application as provided for in the Issuer
Trust Agreement, the receipt of such repayment to be confirmed promptly in
writing by or on behalf of the Issuers, and, to the extent permitted by law, the
Holder of such Senior Note shall thereafter look only to the Issuers for any
payment which such Holder may be entitled to collect, and all liability of the
Indenture Trustee with respect to such moneys shall thereupon cease.
SECTION 10.05. Notice of Certain Events.
(a) The Indenture Trustee shall, upon the written request of
the Remarketing Agents, deliver to the Remarketing Agents, the Share Trustee and
Williams an Officer's Certificate setting forth the amounts available in the
Share Trust Proceeds Account, the Indenture Redemption Account, the Indenture
Interest Account and, to the extent applicable, the Pledged Share Trust Reserve
Account, to be used in determining the Share Trust Amount and hereby undertakes
to notify the Remarketing Agents, the Share Trustee and Williams if any such
amounts should change prior to the Reset Date.
(b) Following an Early Redemption in part of the Senior Notes,
the Indenture Trustee shall give notice to Williams, the Issuers and the Share
Trustee of the principal amount of the Senior Notes remaining Outstanding.
(c) The Indenture Trustee shall give written notice to
Williams, the Issuers and the Share Trustee as to the payment in full of the
Senior Notes.
(d) Following a Reset Event, the Indenture Trustee shall:
(i) upon consultation with the WCG Note Remarketing
Agents (as defined in the WCG Note Reset Remarketing Agreement) or the
Collateral Instructions Party, as applicable, with respect to the
proposed settlement date for a Reset Sale or other sale of the WCG Note
pursuant to Section 9.04(i) (but without further notice or instruction
from the Issuers), provide notice to the WCG Note Remarketing Agents
(as defined in the WCG Note Reset Remarketing Agreement), the Issuers,
WCG and Williams of the proposed Early Redemption Date in connection
with the related Reset Sale;
(ii) upon a Reset Sale, deliver written notice to the
Issuers, Williams, WCG and the Share Trust of the occurrence of the
Reset Sale Date (as defined in the WCG Note Reset Remarketing
Agreement) (as notified by the WCG Note Remarketing Agents); and
(iii) deliver written notice to the Issuer, Williams,
WCG and the Share Trust of the sale of all or a portion of the WCG Note
pursuant to Section 9.04(i)(ii), (iii) or (iv).
(e) Following an Acceleration Trigger caused by an Event of
Default referred to in Section 9.01(a) or (b), the Indenture Trustee shall, upon
consultation with (x) the WCG Note Remarketing Agents (as defined in the WCG
Note Reset Remarketing Agreement) or the Collateral Instructions Party, as
applicable, with respect to the proposed settlement date for a Reset Sale or
other sale of the WCG Note pursuant to Section 9.04(i) and/or (y) the
Remarketing Agents or Williams, as applicable, with respect to the proposed
settlement date for a sale of the Shares or the New Series or the proposed date
of exercise of the Share Trust Release Option (but in each case without further
notice or instruction from the Issuers), provide notice in each case to the
applicable remarketing agents, the Share Trustee, the Issuers, WCG and Williams
of the proposed Mandatory Redemption Date in connection with such Acceleration
Trigger.
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ARTICLE XI
CONCERNING THE INDENTURE TRUSTEE
SECTION 11.01. Duties of the Indenture Trustee; Certain Rights
of the Indenture Trustee.
(a) United States Trust Company of New York agrees to act, and
is hereby appointed by the Issuers to act, as the Indenture Trustee under this
Indenture. The Indenture Trustee shall, on behalf of the Issuers and the
Noteholders, collect payments due under the Security for the Senior Notes in
accordance with applicable law. Without limiting the generality of the
foregoing, the Indenture Trustee is hereby authorized and empowered after the
failure to pay any amount on or in connection with the Security for the Senior
Notes when such amount is due and payable, to the extent permitted under and in
compliance with applicable law and regulations, to commence enforcement
proceedings with respect to the Security for the Senior Notes.
(b) The Indenture Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture and the
other Transaction Documents to which it is a party, and no implied duties shall
be read into this Indenture or the other Transactions Documents. Neither the
Indenture Trustee, its agents nor any of their Affiliates shall be liable for
any act or omission made in connection with this Indenture or the other
Transaction Documents except in the case of its gross negligence, bad faith or
willful misconduct. In furtherance, and not in limitation, of the Indenture
Trustee's rights, duties and protections hereunder, and unless otherwise
specifically provided in this Indenture, the Indenture Trustee shall (subject to
the terms hereof and of the other Transaction Documents) grant such consents,
make such requests and determinations and take or refrain from taking such
actions (including, without limitation, actions with respect to an Event of
Default, of which the Indenture Trustee has notice) as are permitted (but not
expressly required) to be granted, made or taken by the Indenture Trustee under
the Transaction Documents, as the Majority Noteholders shall direct in writing.
No provision of this Indenture shall be construed to relieve the Indenture
Trustee from liability for its own grossly negligent action, its own grossly
negligent failure to act or its own misconduct, its grossly negligent failure to
perform its obligations in compliance with this Indenture or any liability which
would be imposed by reason of its willful misconduct or bad faith; provided,
however, that:
(i) the duties and obligations of the Indenture Trustee shall
be determined solely by the express provisions of this Indenture, the
Indenture Trustee shall not be personally liable except for the
performance of such duties and obligations as are specifically set
forth in this Indenture, no implied covenants, duties or obligations
shall be read into this Indenture against the Indenture Trustee and the
Indenture Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Indenture Trustee and
conforming to the requirements of this Indenture which it reasonably
believes in good faith to be genuine and to have been duly executed by
the proper authorities respecting any matters arising hereunder;
(ii) the Indenture Trustee shall not be personally liable for
an error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Indenture Trustee, unless the Indenture
Trustee was grossly negligent or acted in bad faith or with willful
misconduct;
(iii) the Indenture Trustee shall not be personally liable
with respect to any action taken, suffered or omitted to be taken by it
in good faith in accordance with the direction of the Majority
Noteholders or the Issuers, relating to the time, method and place of
conducting any proceeding for any remedy available to the Indenture
Trustee, or exercising any trust or power conferred upon the Indenture
Trustee, under this Indenture; and
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(iv) no provision of this Indenture or the other Transaction
Documents shall require the Indenture Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of
any of its duties hereunder or in the exercise of any of its rights or
powers if it shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(c) If an Event of Default shall have occurred and be
continuing, the Indenture Trustee shall exercise the same degree of care in
exercising the rights and powers vested in it hereunder as a prudent man would
exercise or use under the same circumstances in the conduct of his own affairs.
(d) Certain Rights of Indenture Trustee.
(i) The Indenture Trustee may request and conclusively rely
upon, and shall be fully protected in acting or refraining from acting
upon, and shall not be bound to make any investigation into the facts
or matters stated in, any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, note,
guaranty or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties, but the
Indenture Trustee in its sole discretion may make such further inquiry
or investigation into such facts or matters as it may see fit;
(ii) The Indenture Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture or
any of the other Transaction Documents at the request, order or
direction of any of the Holders, including the Majority Noteholders,
pursuant to the provisions of this Indenture or any of the other
Transaction Documents, unless (A) such request, order or direction
shall not be in conflict with any Applicable Law or this Indenture or
expose the Indenture Trustee to any personal liability for which it is
not, in its sole judgment, adequately indemnified and (B) such Holders
or other entities shall have furnished to the Indenture Trustee
reasonable security or indemnity (including reasonable advances)
against the costs, expenses and liabilities (including, without
limitation, attorneys' fees and expenses) which might be incurred
therein or thereby;
(iii) As a condition to the taking or omitting of any action
by it hereunder, the Indenture Trustee may consult with counsel,
accountants or other experts, and the advice of such counsel,
accountants or other experts or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action
taken or omitted by it hereunder in good faith and in reliance thereon;
(iv) For all purposes under this Indenture, the Indenture
Trustee shall not be deemed to have notice or knowledge of any
Indenture Default, Event of Default or Trigger Event (other than the
Events of Default specified in Section 9.01(a) and (b)) unless a
Responsible Officer of the Indenture Trustee has actual knowledge
thereof or unless written notice of such an Indenture Default or Event
of Default is received by the Indenture Trustee and such notice
references the Senior Notes generally, the Issuers, the Security for
the Senior Notes or this Indenture; and
(v) In no event shall the Indenture Trustee be liable for the
selection of investments or of investment losses incurred thereon. The
Indenture Trustee shall have no liability in respect of losses incurred
as a result of the liquidation of any investment prior to its stated
maturity.
(e) In the event that the Indenture Trustee is also acting as
Paying Agent, Securities Intermediary and/or Registrar hereunder, the rights and
protection afforded to the Indenture Trustee pursuant to this Article XI shall
also be afforded to such Paying Agent, Securities Intermediary and/or Registrar.
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SECTION 11.02. Performance of Indenture Trustee's Duties.
(a) Neither the Indenture Trustee nor its agents shall be
liable to any Person for any delay in or failure of the payment under the
Security for the Senior Notes or for any nonperformance or default on the part
of any party (other than the Indenture Trustee) under the Transaction Documents.
(b) Subject to Section 9.04(b), the Indenture Trustee may, in
the execution and exercise of all or any of the trusts, powers, authorities and
discretions vested in it by the Transaction Documents, act by Responsible
Officers or a Responsible Officer of the Indenture Trustee or its Affiliates,
and the Indenture Trustee may also whenever it deems it expedient in the
interests of the Noteholders, whether by power of attorney or otherwise,
delegate to any Person or fluctuating body of Persons all or any of the trusts,
powers, authorities and discretions vested in it by the Transaction Documents,
and any such delegation may be made upon such terms and conditions and subject
to such regulations (including power to subdelegate) as the Indenture Trustee
may deem fit, and it shall not in any way or to any extent be responsible for
any loss incurred by any misconduct or default on the part of such delegate or
subdelegate; provided that the Indenture Trustee shall exercise reasonable care
in the selection of such delegate and, subject to Section 11.03, shall continue
to be responsible for the execution and exercise of all or any of the trusts,
powers, authorities and discretions vested in it by the Transaction Documents.
The Indenture Trustee shall give prompt notice to the Issuers and Williams of
the appointment (and termination thereof) of any delegate as aforesaid and shall
procure that any delegate shall also give prompt notice to the Issuers and
Williams of any subdelegate.
(c) Neither the Indenture Trustee nor any director or officer
of the Indenture Trustee shall be precluded from underwriting, guaranteeing the
subscription of or subscribing for some or all of the Senior Notes with or
without a commission or other remuneration or from purchasing or otherwise
acquiring, holding, dealing in or disposing of the Senior Notes or any of them
or any other notes, bonds, debentures, debenture stock, shares or securities
whatsoever of, or from acting as banker (including, without limitation, engaging
in normal banking, trust and investment banking business), paying agent or
process agent for or with, either of the Issuers and any Affiliate thereof or
from otherwise at any time contracting or entering into any financial or other
transactions with either of the Issuers or any Affiliate thereof or from
accepting and holding the office of Indenture Trustee for the holders of any
securities of the Issuers or any Affiliate thereof.
SECTION 11.03. Resignation and Removal; Appointment of
Successor Indenture Trustee.
(a) The Indenture Trustee (i) may resign and be discharged of
the trust created by this Indenture by giving 30 days' written notice to the
Issuers and the Holders and (ii) shall resign if it fails to meet the
requirements of Section 11.09, and such resignation shall take effect upon
receipt by the Indenture Trustee of an instrument of acceptance of appointment
executed by a successor Indenture Trustee as herein provided in Section 11.04.
(b) The Indenture Trustee may be removed at any time upon
written notice by the Majority Noteholders delivered to the Indenture Trustee
and to the Issuers, Williams and WCG.
(c) If at any time the Indenture Trustee shall resign or be
removed or otherwise become incapable of acting or if at any time a vacancy
shall occur in the office of the Indenture Trustee for any other cause, the
Issuer shall use its best efforts to locate and recommend a qualified successor
Indenture Trustee or Indenture Trustees, and a successor Indenture Trustee or
Indenture Trustees may be appointed by the Issuer (whether or not such successor
or successors shall have been located or recommended by the Issuer) upon written
notice to the Noteholders and the Indenture Trustee. In the event that no such
successor Indenture Trustee (or Indenture Trustees) is appointed by the Issuer
within 30 days after the giving of a notice of resignation, the Indenture
Trustee may request a court to make such appointment. Every successor Indenture
Trustee appointed pursuant to this Section 11.03 shall be a corporation or
association organized
54
under the law of the United States or any State thereof having a corporate trust
department and a combined capital and surplus of at least $150,000,000 and a
long-term debt rating of at least "A3" by Moody's, at least "A-" by S&P and at
least "A-" by Fitch and otherwise satisfying the criteria set forth in Section
11.09, if there be such an institution willing and able to accept the trust upon
reasonable or customary terms.
(d) So long as no event which is or, after notice or lapse of
time, or both, would become an Event of Default, Indenture Default or Trigger
Event shall have occurred and be continuing, if the Issuer shall have delivered
to the Indenture Trustee (i) an Issuers' Certificate appointing a successor
Indenture Trustee, effective as of a date specified therein, and (ii) an
instrument of acceptance of such appointment, effective as of such date, by such
successor Indenture Trustee in accordance with Section 11.04, the Indenture
Trustee shall be deemed to have resigned as contemplated in subsection (a) of
this Section 11.03, the successor Indenture Trustee shall be deemed to have been
appointed by the Issuer pursuant to Section 11.03(c), and such appointment shall
be deemed to have been accepted as contemplated in Section 11.04, all as of such
date, and all other provisions of this Section 11.03 and Section 11.04 shall be
applicable to such resignation, appointment and acceptance except to the extent
inconsistent with this subsection (d).
SECTION 11.04. Acceptance of Appointment by Successor
Indenture Trustee. Any successor Indenture Trustee appointed as provided in
Section 11.03 shall execute, acknowledge and deliver to the Issuers and to its
predecessor Indenture Trustee an instrument accepting such appointment
hereunder, and, subject to the provisions of Section 11.03, thereupon the
resignation or removal of the predecessor Indenture Trustee shall become
effective and such successor Indenture Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as Indenture Trustee herein; but, nevertheless, at the written direction
of the Majority Noteholders or written request of the successor Indenture
Trustee, the Indenture Trustee ceasing to act shall execute and deliver an
instrument transferring to such successor Indenture Trustee all the rights and
powers of the Indenture Trustee so ceasing to act.
SECTION 11.05. Merger or Consolidation of Indenture Trustee.
Any corporation into which the Indenture Trustee may be merged or converted or
with which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Indenture Trustee shall be a party or
any corporation succeeding to all or substantially all of the corporate trust
business of the Indenture Trustee shall be the successor of the Indenture
Trustee hereunder; provided that such corporation shall be qualified under the
provisions of Section 11.03(c), without the execution or filing of any paper or
any further act on the part of any of the parties hereto or the Holders,
notwithstanding anything contained herein to the contrary.
SECTION 11.06. Certain Procedural Matters. Subject to Sections
2.05(f) and 13.01, the Indenture Trustee, in its own name and as Indenture
Trustee of an express trust, at the written direction of the Majority
Noteholders, shall be entitled and empowered to institute any Proceeding for the
collection of any amounts due and unpaid or the enforcement of any other rights
of the Holders and prosecute any such action or proceeding to judgment or final
decree.
SECTION 11.07. Indenture Trustee Fees and Indemnification.
(a) The Issuers covenant and agree to pay or reimburse the
Indenture Trustee upon its request for the Indenture Trustee Fee and the
documented expenses, disbursements and advances reasonably and properly incurred
or made by the Indenture Trustee in accordance with any of the provisions of
this Indenture or any other Transaction Document to which it is a party
(including the reasonable compensation and the expenses and disbursements of its
counsel and of all Persons not regularly in its employ, whether or not such
expenses are incurred in connection with any Opinion of Counsel required or
permitted to be obtained by the Indenture Trustee) ("Indenture Trustee
Expenses"),
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except that the Issuers shall not pay or reimburse the Indenture Trustee for any
expense, disbursement or advance as may arise from the negligence, willful
misconduct or bad faith of the Indenture Trustee or the Person to be
indemnified. The Indenture Trustee agrees that all Indenture Trustee Fees and
Indenture Trustee Expenses are for the account of the Issuers, and it shall have
no Lien or claim on the Security for the Senior Notes in respect thereof. The
Indenture Trustee and any director, officer, employee or agent of the Indenture
Trustee shall be indemnified by the Issuers, jointly and severally, and held
harmless against any loss, liability, claim or expense incurred in connection
with this Indenture or with any legal action or claim, including any pending or
threatened legal action or claim, relating to this Indenture or the Senior Notes
or the performance of any of the Indenture Trustee's duties hereunder or under
any other Transaction Document to which it is a party , other than any loss,
liability, claim or expense incurred by reason of willful misconduct, bad faith
or gross negligence in the performance of duties hereunder or by reason of
reckless disregard of obligations and duties hereunder; provided that (i) with
respect to any such legal action the Indenture Trustee shall have given the
Issuers notice thereof promptly after the Indenture Trustee shall have knowledge
thereof and (ii) the Issuers shall defend such legal action and the Indenture
Trustee shall cooperate and consult fully with the Issuers in preparing such
defense; provided, however, that any failure to notify the Issuers of such legal
action shall not diminish the obligations of the Issuers hereunder except to the
extent they are prejudiced thereby. Such indemnity shall survive the termination
or discharge of this Indenture and the resignation or removal of the Indenture
Trustee. Any payment in respect of the Indenture Trustee Fee, Indenture Trustee
Expenses or the foregoing indemnity made by the Issuers to the Indenture Trustee
shall be from the Issuers' own funds, without reimbursement from the Security
for the Senior Notes therefor.
(b) The Indenture Trustee shall be required to pay all
expenses, except as expressly provided herein, incurred by it or its agents in
connection with its activities hereunder or under any other Transaction Document
to which it is a party and shall be entitled to reimbursement therefor as
provided in this Section 11.07. The Indenture Trustee shall in no event acquire
any claim against the Noteholders by reason of non-receipt of any fees and
expenses, and the Indenture Trustee shall, unless and until the effective date
of any resignation of the Indenture Trustee under Section 11.03, continue to
perform its obligations hereunder notwithstanding such non-receipt. When the
Indenture Trustee incurs expenses or renders services in connection with an
Event of Default under Section 9.01(h), such expenses (including the reasonable
fees and expenses of its counsel and agents) and the compensation for such
services are intended to constitute expenses of administration under any
applicable Federal or state bankruptcy, insolvency or other similar law.
SECTION 11.08. Information. The Indenture Trustee will
promptly deliver to the Noteholders, the Rating Agencies, Williams and WCG any
notices, including notices of Events of Default, financial statements, officer's
certificates or other forms of communication that it receives pursuant to the
terms of this Indenture.
SECTION 11.09. Eligibility Requirements for Indenture Trustee.
The Indenture Trustee hereunder shall at all times be a corporation or
association having a corporate trust office in the State of Delaware or New York
and organized and doing business under the laws of such state or the United
States of America, authorized under such laws to exercise corporate trust powers
(i) having a combined capital and surplus of at least $150,000,000, (ii) having
a long-term debt rating of at least "A3" by Moody's, at least "A-" by S&P and at
least "A-" by Fitch and (iii) subject to supervision or examination by Federal
or state authority. If such corporation or association publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 11.09 the combined capital and surplus of such corporation or
association shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Indenture Trustee shall cease to be eligible in accordance with the provisions
of this Section 11.09, the Indenture Trustee shall resign immediately in the
manner and with the effect specified in Section 11.03.
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SECTION 11.10. Indenture Trustee Not Liable for Senior Notes.
The recitals contained herein shall be taken as the statements of the Issuers,
and the Indenture Trustee assumes no responsibility for their correctness.
Except for the Certificate of Authentication on the Senior Notes, the Indenture
Trustee makes no representations as to the value or condition of the Security
for the Senior Notes or any part thereof, or as to the title of the Issuers
thereto or as to the security afforded thereby or hereby, or as to the validity
or genuineness of any securities at any time pledged and deposited with the
Trustee hereunder, or as to the validity or sufficiency of this Indenture or the
Senior Notes or any related Transaction Documents. The Indenture Trustee shall
not be accountable for the use or application by the Issuers of any funds paid
to the Issuers in respect of the Senior Notes, but the Indenture Trustee shall
be responsible for any such funds that may be deposited with it pursuant to
Section 5.02, Section 5.03 and Section 5.04 and for payment of amounts deposited
therein in accordance with Section 5.05. The Indenture Trustee shall have no
duty to monitor the performance of the Issuers nor shall it have any liability
in connection with the misfeasance or nonfeasance by the Issuers. The Indenture
Trustee shall have no liability in connection with compliance by the Issuers
with statutory or regulatory requirements related to the Transaction Documents
or any related instrument or agreement.
SECTION 11.11. Indenture Trustee May Own Senior Notes. United
States Trust Company of New York, in its capacity as the Indenture Trustee or in
its individual or any other capacity, and any of its Affiliates may become the
owner or pledgee of Senior Notes with the same rights as it would have if it
were not the Indenture Trustee.
SECTION 11.12. Maintenance of Office or Agency. The Indenture
Trustee will maintain or cause to be maintained at its expense an office or
offices or agency or agencies where Senior Notes may be surrendered for payment,
registration of transfer or exchange and where notices and demands to or upon
the Indenture Trustee in respect of the Senior Notes and this Indenture may be
served. The Indenture Trustee will give prompt written notice to the Noteholders
of any change in the location of the Note Register or any such office or agency.
SECTION 11.13. Appointment of Co-Indenture Trustee. The
Indenture Trustee, with the consent of the Issuers and only for the purpose of
meeting the legal requirements, if any, of certain jurisdictions, shall have the
power to appoint co-indenture trustees. In the event of such appointment, all
rights, powers and duties and obligations conferred or imposed upon the
Indenture Trustee by this Indenture will be conferred or imposed upon the
co-indenture trustee, and such co-indenture trustee jointly or, in any
jurisdiction where the Indenture Trustee is incompetent or unqualified to
perform certain acts, singly shall exercise and perform such rights, powers,
duties and obligations solely at the discretion of the Indenture Trustee.
SECTION 11.14. Resignation; Appointment of Successor
Securities Intermediary.
(a) The Securities Intermediary shall resign if it fails to
meet the requirements of the first sentence of Section 5.01(b), and such
resignation shall take effect upon receipt by the Indenture Trustee of an
instrument of acceptance of appointment executed by a successor Securities
Intermediary as herein provided in Section 11.15.
(b) If at any time the Securities Intermediary shall resign,
the Issuer shall use its best efforts to locate and recommend a qualified
successor Securities Intermediary, and a successor Securities Intermediary may
be appointed by the Issuer (whether or not such successor shall have been
located or recommended by the Issuer) upon written notice to the Noteholders and
the Securities Intermediary. In the event that no such successor Securities
Intermediary is appointed by the Issuer within 30 days after the giving of a
notice of resignation, the Securities Intermediary may request a court to make
such appointment. Every successor Securities Intermediary appointed pursuant to
this Section 11.14(b) shall be a corporation or association organized under the
law of the United States or any State thereof having a combined capital and
surplus of at least $150,000,000 and a long-term debt rating of at least "A3" by
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Moody's, at least "A-" by S&P and at least "A-" by Fitch, if there be such an
institution willing and able to accept the position upon reasonable or customary
terms.
(c) So long as no event which is or, after notice or lapse of
time, or both, would become an Event of Default, Indenture Default or Trigger
Event shall have occurred and be continuing, if the Issuer shall have delivered
to the Securities Intermediary (i) an Issuers' Certificate appointing a
successor Securities Intermediary, effective as of a date specified therein, and
(ii) an instrument of acceptance of such appointment, effective as of such date,
by such successor Securities Intermediary in accordance with Section 11.15, the
Securities Intermediary shall be deemed to have resigned as contemplated in
Section 11.14(a), the successor Securities Intermediary shall be deemed to have
been appointed by the Issuer pursuant to Section 11.14(b), and such appointment
shall be deemed to have been accepted as contemplated in Section 11.15, all as
of such date, and all other provisions of this Section 11.14 and Section 11.15
shall be applicable to such resignation, appointment and acceptance except to
the extent inconsistent with this Section 11.14(c).
SECTION 11.15. Acceptance of Appointment by Successor
Securities Intermediary. Any successor Securities Intermediary appointed as
provided in Section 11.14 shall execute, acknowledge and deliver to the
Indenture Trustee, the Issuers and its predecessor Securities Intermediary an
instrument accepting such appointment hereunder and agreeing to all the
provisions regarding the Securities Intermediary and the Indenture Accounts set
forth in this Indenture. Subject to the provisions of Section 11.14, thereupon
the resignation of the predecessor Securities Intermediary shall become
effective and such successor Securities Intermediary, without any further act,
deed or conveyance, shall become vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as Securities Intermediary herein; but, nevertheless, at the written
direction of the Majority Noteholders or written request of the successor
Securities Intermediary, the Securities Intermediary ceasing to act shall
execute and deliver an instrument transferring to such successor Securities
Intermediary all the rights and powers of the Securities Intermediary so ceasing
to act.
SECTION 11.16. Merger or Consolidation of Securities
Intermediary. Any corporation into which the Securities Intermediary may be
merged or converted or with which it may be consolidated or any corporation
resulting from any merger, conversion or consolidation to which the Securities
Intermediary shall be a party or any corporation succeeding to all or
substantially all the assets of the Securities Intermediary shall be the
successor of the Securities Intermediary hereunder; provided that such
corporation shall be qualified under the provisions of the first sentence of
Section 5.01(b), without the execution or filing of any paper or any further act
on the part of any of the parties hereto or the Holders, notwithstanding
anything contained herein to the contrary.
ARTICLE XII
SUPPLEMENTAL INDENTURES
SECTION 12.01. Supplemental Indentures Without Consent of
Noteholders. The Issuers and the Indenture Trustee may from time to time and at
any time enter into an indenture or indentures supplemental hereto for one or
more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Indenture Trustee as Security for the Senior Notes any property or
assets;
(b) to cure any ambiguity or to correct or supplement any
provision contained herein, in the Senior Notes or in any supplemental
indenture which may be defective or inconsistent with any other
provision contained herein or in the Senior Notes or in any
supplemental indenture; or to make any other changes to such provisions
or to add provisions in regard to matters or questions arising under
this Indenture, the Senior Notes or under any supplemental indenture as
58
the Issuers and the Indenture Trustee may deem necessary or desirable
and which shall not adversely affect the interests of the Noteholders;
and
(c) to amend Article II of this Indenture, and any other
applicable provision herein, to reflect changes made to the Securities
Act, the Investment Company Act and, in each case, the rules and
regulations thereunder, which have the effect of invalidating, or
deviating from the initial intent of, any provision herein.
The Indenture Trustee is hereby authorized to join in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Indenture Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Indenture Trustee's own rights, duties
or immunities under this Indenture or under the other Transaction Documents or
otherwise.
Any supplemental indenture authorized by the provisions of
this Section 12.01 may be executed without the consent of the Holders of any of
the Senior Notes at the time Outstanding, notwithstanding any of the provisions
of Section 12.02.
SECTION 12.02. Supplemental Indentures With Consent of
Noteholders. With the consent (evidenced as provided in Article XIII) of the
Majority Noteholders, the Issuers and the Indenture Trustee may, from time to
time and at any time, enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture, the Senior Notes or of any
supplemental indenture or of modifying in any manner the rights of the
Noteholders; provided that no such supplemental indenture shall (a) extend the
final maturity of any Senior Note or the time of payment of any principal
thereof or reduce the principal amount thereof or any premium thereon or extend
the time of payment of any interest thereon or reduce any amount payable on
redemption thereof or reduce the amount of principal that would be due and
payable upon the occurrence of an Event of Default or impair or affect the
rights of any Noteholder to institute suit for the payment thereof, (b) decrease
the Senior Note Rate, (c) reduce any amount required to be collected or retained
in any Indenture Account, (d) release any part of the Security for the Senior
Notes, except as specifically contemplated in the Transaction Documents, or (e)
reduce the aforesaid percentage of Senior Notes the consent of the Holders of
which is required for any supplemental indenture, in each case without the
consent of the Holder of each Senior Note so affected.
Upon the request of the Issuers, accompanied by a copy of the
supplemental indenture and upon the filing with the Indenture Trustee of
evidence of the consent of the Majority Noteholders or any greater percentage of
Holders as required by this Section 12.02 and other documents, if any, required
by this Section 12.02, the Indenture Trustee shall join with the Issuers in the
execution of such supplemental indenture unless such supplemental indenture
affects the Indenture Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Indenture Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Noteholders
under this Section 12.02 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve
the substance thereof.
SECTION 12.03. Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture and the Senior Notes shall be and be deemed to be modified and amended
in accordance therewith, and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Indenture
Trustee, the Issuers and the Noteholders shall thereafter be determined,
exercised and enforced hereunder subject in all respects to
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such modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 12.04. Documents to Be Given to Indenture Trustee. The
Indenture Trustee, subject to the provisions of Sections 12.01 and 12.02, shall
be entitled to receive one or more Officer's Certificate or Certificates and
Opinion or Opinions of Counsel as conclusive evidence that any such supplemental
indenture complies with the applicable provisions of this Indenture.
SECTION 12.05. Notation on Senior Notes in Respect of
Supplemental Indentures. Senior Notes authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form and manner approved by the Indenture Trustee
as to any matter provided for by such supplemental indenture. If the Issuers
shall so determine, new Senior Notes so modified as to conform to any
modification of this Indenture contained in any such supplemental indenture may
be prepared by the Issuers at their expense, authenticated by the Indenture
Trustee and delivered in exchange for the Senior Notes then Outstanding.
ARTICLE XIII
CONCERNING THE HOLDERS
SECTION 13.01. Control by Majority Noteholders. Subject to the
provisions of Section 9.04(h) and the provisions hereunder granting rights to
the Required Holders, the Majority Noteholders shall have the right to direct
the Indenture Trustee, in writing, to (i) take action, suffer any action to be
taken or omit to take action with respect to the Security for the Senior Notes
or (ii) direct the time, method and place of conducting any proceeding for any
remedy available to the Indenture Trustee or exercising any trust or power
conferred on the Indenture Trustee; provided that:
(a) the Indenture Trustee shall not be required to act if the
Indenture Trustee shall have received an Opinion of Counsel that the
action so directed may not lawfully be taken or would be in conflict
with this Indenture;
(b) if the payment within a reasonable time to the Indenture
Trustee of the reasonable costs, expenses or liabilities likely to be
incurred by it in the taking, suffering or omission of such action, in
the reasonable opinion of the Indenture Trustee, is not assured to the
Indenture Trustee by the terms of this Indenture, the Indenture Trustee
may require reasonable security or indemnity (including reasonable
advances) against any such expense or liability as a condition to the
taking, suffering or omission of any such action; and
(c) the Indenture Trustee may take any other reasonable action
deemed proper by the Indenture Trustee that is consistent with such
direction; provided, however, that, subject to Section 11.01, the
Indenture Trustee need not take any action that is discretionary or
that it determines might impose liability on the Indenture Trustee for
which it is not, in its sole discretion, adequately indemnified.
SECTION 13.02. Evidence of Action Taken by Holders. Whenever
in this Indenture or in any other Transaction Document it is provided that the
Required Holders or the Majority Noteholders may take any action (including the
making of any demand or request, the giving of any notice, direction,
instruction, consent or waiver or the taking of any other action), the fact that
at the time of taking any such action the Required Holders or the Majority
Noteholders, as the case may be, have joined therein shall be evidenced in
writing by one or more instruments of similar tenor executed by such Holders in
person or by agent or proxy appointed in writing. Such action by the Required
Holders or the Majority Noteholders, as the case may be, shall become effective
when such instrument or instruments
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are delivered to and received by the Indenture Trustee. The Indenture Trustee
shall thereafter notify the Issuers, Williams and WCG of the effectiveness of
such action.
SECTION 13.03. Proof of Execution of Instruments. The fact and
date of the execution of any instrument by a Holder or his agent or proxy may be
proved by the certificate of any notary public or other officer of any
jurisdiction within or without the United States authorized to take
acknowledgments of deeds to be recorded in such jurisdiction certifying that the
person executing such instrument acknowledged to him the execution thereof or by
an affidavit of a witness to such execution sworn to before any such notary or
other such officer. Where such execution is by or on behalf of any legal entity
other than an individual, such certificate or affidavit shall also constitute
proof of the authority of the individual executing the same.
SECTION 13.04. Senior Notes Owned by the Issuers. In
determining whether the Holders have concurred in any direction, request,
consent or waiver under this Indenture, Senior Notes which are owned by the
Issuers, Williams, WCG or any of their respective Affiliates thereof shall be
disregarded in both the numerator and denominator of the fraction used to
determine the requisite percentage.
SECTION 13.05. Right of Revocation of Action Taken. At any
time prior to (but not later than) the evidencing to the Indenture Trustee, as
provided in Section 13.02, of the taking of any action by the Holders, any
Holder of a Senior Note, the serial number of which is shown by the evidence to
be included in those Senior Notes the Holders of which have consented to such
action, may revoke such action insofar as it concerns such Senior Note by filing
written notice with the Indenture Trustee at the Corporate Trust Office and upon
proof of holding as provided in Section 2.05. Unless revoked pursuant to the
foregoing provisions, any such action taken by a Holder shall be conclusive and
binding upon such Holder and upon all future holders and owners of such Senior
Note and of any Senior Note issued in exchange or substitution therefor,
irrespective of whether or not any notation in regard thereto is made upon such
Senior Note. Except as otherwise provided herein, any action taken by the
Majority Noteholders shall be conclusive and binding upon the Issuers, the
Indenture Trustee and the Holders of all Senior Notes.
ARTICLE XIV
EARLY REDEMPTION
SECTION 14.01. Early Redemption.
(a) The Outstanding Senior Notes shall be redeemed at any time
in whole or in part to the extent of funds available therefor, in minimum
denominations of $25,000 and integral multiples of $1,000 in excess thereof (an
"Early Redemption"), upon receipt of an Early Distribution to the extent of such
distribution so long as no Trigger Event has occurred. Any Early Redemption will
be made on the Business Day specified in the applicable Notice of Early
Redemption (any such date, an "Early Redemption Date") at the Early Redemption
Price, notwithstanding the subsequent occurrence of a Trigger Event; provided,
that an Early Redemption prior to the occurrence of a Trigger Event but on or
after the Interest Rate Reset Date shall occur on the 120th day prior to the
Maturity Date, subject to satisfaction of the conditions set forth in Section
14.01(c).
(b) The "Early Redemption Price" for each Senior Note redeemed
on an Early Redemption Date shall be calculated as follows: (i) any Early
Redemption prior to the occurrence of a Trigger Event or the Interest Rate Reset
Date shall be at a price equal to the accrued and unpaid interest thereon to the
Early Redemption Date plus the greater of: (x) 100% of the Outstanding aggregate
principal amount of such Senior Note and (y) the sum of the present values of
the remaining scheduled
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payments of principal thereof and interest (without duplication) which is
scheduled to be payable thereon to the Maturity Date discounted to the Early
Redemption Date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the applicable Treasury Yield plus 50 basis points; and
(ii) any Early Redemption prior to the occurrence of a Trigger Event but on or
after the Interest Rate Reset Date shall be at a price equal to accrued and
unpaid interest thereon to the Early Redemption Date plus 100.50% of the
Outstanding aggregate principal amount of such Senior Note.
(c) Any Early Redemption pursuant to Section 14.01(a) shall
occur at such time as (i) the Indenture Trustee shall have received (x) written
notice from WCG specifying that the amounts deposited into the Indenture
Redemption Account are to fund an Early Redemption or (y) proceeds from a Reset
Sale or a sale of the WCG Note pursuant to Sections 9.04(i)(i), (ii) or (iii),
(ii) the aggregate amount of funds irrevocably deposited with the Indenture
Trustee is sufficient to effect such redemption, (iii) appropriate notice is
given in accordance with Section 14.02 and (iv) the Indenture Trustee shall have
received (x) an Officer's Certificate of WCG or Williams certifying that the
amounts deposited in respect of the Early Redemption Price represent cash from
Permitted Redemption Sources or (y) a certificate from the WCG Note Remarketing
Agents (as defined in the WCG Note Reset Remarketing Agreement) certifying that
the amounts deposited in respect of the Early Redemption Price represent
proceeds from a Reset Sale.
(d) Upon the redemption of all of the Senior Notes pursuant to
the terms of this Section 14.01, the obligations and responsibilities of the
Issuers and the Indenture Trustee solely with respect to the Senior Notes shall
terminate (subject to Section 5.07).
SECTION 14.02. Notice of Early Redemption. Notice of an Early
Redemption (a "Notice of Early Redemption") of the Senior Notes pursuant to
Section 14.01 shall be given by the Issuers or by the Indenture Trustee promptly
upon satisfaction of the conditions set forth in Section 14.01(c)(i), (ii) and
(iv). Any Notice of Early Redemption shall be given to each Noteholder by first
class mail or airmail, postage prepaid, at their last addresses as they shall
appear upon the Note Register. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the Holder receives the notice. Once Notice of Early Redemption is mailed in
accordance with this Section 14.02, Senior Notes called for redemption become
irrevocably due and payable on the Early Redemption Date at the applicable Early
Redemption Price specified in the Notice of Early Redemption. A Notice of Early
Redemption may not be conditional. Failure to give such notice by mail or any
defect in the notice to any Noteholder shall not affect the validity of the
proceedings for the redemption with respect to the Senior Notes held by other
Noteholders. Each Notice of Early Redemption shall be given at least 30 days but
not more than 60 days before the applicable Early Redemption Date (other than
with respect to an Early Redemption described in the proviso to Section
14.01(a), in which case the Notice of Early Redemption shall be given as many
days before the Early Redemption Date set forth in such Section 14.01(a) as
practicable) and shall specify (a) the Early Redemption Date; (b) the formula by
which the Early Redemption Price will be calculated on the Early Redemption Date
and the amount of accrued and unpaid interest, if any, to be due as of the Early
Redemption Date as a part of the Early Redemption Price; (c) that, on the Early
Redemption Date, the Early Redemption Price plus accrued and unpaid interest, if
any, will become due and payable upon each such Senior Note to be redeemed and
that interest shall cease to accrue on such Senior Note on and after such date;
(d) if any Senior Note is being redeemed in part, the portion of the principal
amount of such Senior Note to be redeemed and that, after the Early Redemption
Date, upon surrender of such Senior Note, a new Senior Note or new Senior Notes
in principal amount equal to the unredeemed portion shall be issued upon
cancellation of the original Senior Note; (e) the name and address of the Paying
Agent; (f) that Senior Notes called for redemption must be surrendered to the
Paying Agent to collect the Early Redemption Price; (g) the paragraph of the
Senior Notes and/or the clause of Section 14.01 of this Indenture pursuant to
which the Senior Notes called for redemption are being redeemed; and (h) that no
representation is made as to the correctness or accuracy of the CUSIP, CINS,
ISIN or Common Code number, if any, listed in such notice or printed on the
Senior Notes.
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SECTION 14.03. Selection of Senior Notes to be Redeemed. (a)
If less than all of the Senior Notes are to be redeemed, the Indenture Trustee
shall select the Senior Notes to be redeemed or purchased among the Noteholders
on a pro rata basis in accordance with the respective unpaid principal balances
of the Senior Notes Outstanding held by them; provided that no Senior Notes of
$25,000 or less shall be redeemed in part.
The Indenture Trustee shall promptly notify the Issuers in
writing of the Senior Notes selected for redemption and, in the case of any
Senior Note selected for partial redemption, the principal amount thereof to be
redeemed. Senior Notes and portions of Senior Notes selected shall be in amounts
of $25,000 or whole multiples of $1,000 in excess thereof; except that, if all
of the Senior Notes of a Holder are to be redeemed, the entire outstanding
amount of Senior Notes held by such Holder, even if not such a multiple of
$1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to the Senior Notes called for
redemption also apply to portions of Senior Notes called for redemption.
SECTION 14.04. Deposit of Early Redemption Price.
(a) On or prior to 9:00 a.m., New York City time, on the Early
Redemption Date of the Senior Notes, the Issuers shall deposit or cause to be
deposited into the Indenture Redemption Account an amount equal to the
applicable Early Redemption Price, for each Senior Note (or portion thereof)
being redeemed, together with any other amount necessary to be deposited with
the Indenture Trustee so that each Holder of any such Senior Note is able to
receive the applicable Early Redemption Price for such Senior Note (or portion
thereof) in full.
(b) If the Issuers comply with the provisions of paragraph (a)
above, on and after the Early Redemption Date, interest shall cease to accrue on
the Senior Notes or the portions of the Senior Notes called for Early
Redemption. If a Senior Note is redeemed in whole or in part on or after a
Record Date but on or prior to the related Senior Note Payment Date, then any
accrued and unpaid interest shall be paid to the Person in whose name such
Senior Note was registered at the close of business on such Record Date. If any
Senior Note called for Early Redemption shall not be so paid upon surrender for
redemption because of the failure of the Issuers to comply with the provisions
of (a) above, interest shall be paid on the unpaid principal, from the Early
Redemption Date until such principal is paid, and to the extent lawful on any
interest not paid on such unpaid principal, in each case at the Senior Note
Rate.
SECTION 14.05. Payment of Senior Notes Called for Early
Redemption. If a Notice of Early Redemption has been given with respect to the
Senior Notes as provided in Section 14.02, such Senior Notes (or portions
thereof) to be redeemed shall become due and payable on the date and at the
place stated in such Notice of Early Redemption at the Early Redemption Price
payable pursuant to Section 14.01(e) and on and after said date (unless the
Issuers shall default in the payment of the Early Redemption Price) interest on
such Senior Notes (or portions thereof) to be redeemed shall cease to accrue and
such Senior Notes shall cease from and after the Early Redemption Date to be
entitled to any benefit or security under this Indenture, and the Noteholders
shall have no right in respect of such Senior Notes (or portion thereof) to be
redeemed except the right to receive the Early Redemption Price with respect to
each such Senior Note. The Senior Notes (or portions thereof) to be redeemed
shall be paid and redeemed by the Indenture Trustee in accordance with Section
5.05(e) at the applicable Early Redemption Price; provided that any payment of
interest becoming due on the Early Redemption Date shall be payable to the
registered holders of such Senior Notes subject to the terms and provisions of
Section 2.05.
SECTION 14.06. Senior Notes Redeemed in Part. Upon surrender
of a Senior Note that is redeemed in part, the Issuers shall issue and, upon the
Issuers' written request, the Indenture Trustee shall authenticate for the
Holder, at the expense of the Issuers, a new Senior Note equal in principal
amount to the unredeemed portion of the Senior Note surrendered.
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ARTICLE XV
MANDATORY REDEMPTION
SECTION 15.01. Mandatory Redemption.
(a) Upon the occurrence of a Maturity Trigger (or upon
Williams' exercise of the Share Trust Release Option prior to the Maturity Date
when no Trigger Event has occurred), (i) the Senior Notes shall be mandatorily
redeemed on the Maturity Date and (ii) any funds from Permitted Redemption
Sources received and held by the Indenture Trustee or credited to any of the
Indenture Accounts prior to the Maturity Date in respect of the Senior Notes
shall be invested in Financial Investments of the type described in clause (b)
of the definition thereof maturing on or prior to the Maturity Date for payment
in accordance with Section 5.05(d); provided that if a Stock Price/Credit
Downgrade Trigger or an Acceleration Trigger subsequently occurs, the Senior
Notes shall be subject to a Mandatory Redemption pursuant to Sections 15.01(b)
or 15.01(c), as applicable.
(b) Upon the occurrence of a Stock Price/Credit Downgrade
Trigger, the Indenture Trustee shall begin making distributions in respect of
the mandatory redemption of the Senior Notes no earlier than the date that is
the earliest to occur of: (i) the date following 120 days after the date of such
Trigger Event, (ii) the Maturity Date and (iii) the date on which the Indenture
Trustee has received sufficient funds from Permitted Redemption Sources to
redeem the Senior Notes in full in accordance with Section 5.05(d).
(c) Upon the occurrence of an Acceleration Trigger, the
Indenture Trustee shall begin making payments in respect of the mandatory
redemption of the Senior Notes on the dates fixed by the Indenture Trustee from
time to time as soon as practicable as the Indenture Trustee receives funds from
Permitted Redemption Sources to redeem the Senior Notes in accordance with
Section 5.05(d).
(d) The Senior Notes outstanding shall be redeemed pursuant to
clauses (a), (b) or (c) above (a "Mandatory Redemption") on the dates referred
to therein and specified in the Notice of Mandatory Redemption (each a
"Mandatory Redemption Date") on a pro rata basis at the Mandatory Redemption
Price. The "Mandatory Redemption Price" for each Senior Note redeemed on a
Mandatory Redemption Date shall be calculated as follows: (i) any Mandatory
Redemption pursuant to Section 15.01(a) or (b) shall be at a price equal to
accrued and unpaid interest thereon to the Mandatory Redemption Date plus
100.00% of the Outstanding aggregate principal amount of such Senior Note; (ii)
any Mandatory Redemption pursuant to Section 15.01(c) other than as described in
the following clause (iii) shall be at a price equal to accrued and unpaid
interest thereon to the Mandatory Redemption Date plus 100.00% of the
Outstanding aggregate principal amount of such Senior Note; and (iii) any
Mandatory Redemption pursuant to Section 15.01(c) as a result of an Acceleration
Trigger caused by an Event of Default referred to Section 9.01(a) or (b) shall
be at a price equal to the accrued and unpaid interest thereon to the Mandatory
Redemption Date plus the greater of: (x) 100% of the Outstanding aggregate
principal amount of such Senior Note and (y) the sum of the present values of
the remaining scheduled payments of principal thereof and interest (without
duplication) which is scheduled to be payable thereon to the Maturity Date
discounted to the Mandatory Redemption Date on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the applicable Treasury
Yield plus 50 basis points.
(e) Upon the redemption of all of the Senior Notes pursuant to
the terms of this Section 15.01, the obligations and responsibilities of the
Issuers and the Indenture Trustee solely with respect to the Senior Notes shall
terminate (subject to Section 5.07).
SECTION 15.02. Notice of Mandatory Redemption. Notice of a
Mandatory Redemption ("Notice of Mandatory Redemption") of the Senior Notes
pursuant to Section 15.01 shall be
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given by the Indenture Trustee at such time or times when the Indenture Trustee
has any Amount Available in the Indenture Accounts to apply to the payment of
the Senior Notes in accordance with Section 15.01 and Section 5.05(d); provided,
that, with respect to any such amounts, the Indenture Trustee shall have
received a certificate of Williams certifying that the amount of such funds in
respect of the Mandatory Redemption Price represents cash from Permitted
Redemption Sources. Any Notice of Mandatory Redemption shall be given to each
Noteholder by first class mail or airmail, postage prepaid, at their last
addresses as they shall appear upon the Note Register. Any such Notice which is
mailed in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the Holder receives the notice. Each Notice of
Mandatory Redemption shall be given the number of days prior to each Mandatory
Redemption Date as the Indenture Trustee may fix and shall specify, among other
things, (a) the Mandatory Redemption Date; (b) the applicable Mandatory
Redemption Price; (c) that, on the Mandatory Redemption Date, the applicable
Mandatory Redemption Price will become due and payable upon each such Senior
Note to be redeemed and that interest shall cease to accrue on such Senior Note
on and after such date; (d) the name and address of the Paying Agent; (e) that
Senior Notes must be surrendered to the Paying Agents to collect the applicable
Mandatory Redemption Price; (f) the paragraph of the Senior Notes and/or the
paragraph of Section 15.01 of this Indenture pursuant to which the Senior Notes
are being redeemed; and (g) that no representation is made as to the correctness
or accuracy of the CUSIP, CINS, Common Code or ISIN number, if any, listed in
such notice or printed on the Senior Notes.
SECTION 15.03. Selection of Senior Notes to be Redeemed. If
less than all of the Senior Notes are to be redeemed on any particular Mandatory
Redemption Date, the Senior Notes shall be redeemed on a pro rata basis in
accordance with the respective unpaid principal balances of the Senior Notes
Outstanding held by them. The Indenture Trustee shall promptly notify the
Issuers in writing of the amount of Senior Notes to be redeemed on any
particular Mandatory Redemption Date. Provisions of this Indenture that apply to
the Senior Notes called for redemption also apply to portions of Senior Notes
called for redemption.
ARTICLE XVI
MISCELLANEOUS
SECTION 16.01. Survival. All agreements, representations,
warranties and indemnities contained in this Indenture and in any agreement,
document or certificate delivered pursuant hereto, or in connection herewith,
shall survive and continue in effect following the execution and delivery of
this Indenture and the Closing Date.
SECTION 16.02. Notices. Except as otherwise expressly provided
herein in any particular case, all notices, approvals, consents, requests and
other communications hereunder shall be in writing and shall, if addressed as
provided in the following sentence, be deemed to have been given (i) when
delivered by hand, (ii) one Business Day after being sent by a private
nationally or internationally recognized overnight courier service, (iii) five
days after being sent by first class mail or airmail, postage prepaid, or (iv)
when sent by telecopy, if immediately after transmission the sender's facsimile
machine records in writing the correct answer back. Actual receipt at the
address of an addressee, regardless of whether in compliance with the foregoing,
is effective notice hereunder. Until otherwise so notified by the respective
parties, all notices, approvals, consents, requests and other communications
shall be addressed to the addresses for such parties provided in Section 7.2 of
the Participation Agreement and to the following addressees:
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If to the Rating Agencies:
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007-2701
Attention: Stephen Moore/Mihoko Manabe
Telecopier No.: (212) 553-4997/(212) 553-0519
Telephone No.: (212) 553-1036/(212) 553-1942
Standard & Poor's Ratings Services
25 Broadway
New York, New York 10004
Attention: Judith Waite
Telecopier No.: (212) 438-7680
Telephone No.: (212) 438-7677
Fitch, Inc.
One State Street Plaza
New York, New York 10004
Attention: Hugh Welton
Telecopier No.: (212) 425-4730
Telephone No.: (212) 908-0746
A duplicate copy of each notice, approval, consent, request or
other communication given hereunder by each of the parties to any one of the
others shall also be given to all of the others. However, failure to give notice
to any party shall not affect the effectiveness of notice to parties as to whom
notice has been given in accordance with this Section 16.02. Each of the parties
may, by notice given hereunder, designate any further or different addresses to
which subsequent notices, approvals, consents, requests or other communications
shall be sent or persons to whose attention the same shall be directed.
SECTION 16.03. Severability of Provisions. If any provision
hereof shall be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render unenforceable any
other provision hereof. To the extent permitted by Applicable Law, the Issuers
and the Indenture Trustee hereby agree that any provision hereof that renders
any other term or provision hereof invalid or unenforceable in any respect shall
be modified but only to the extent necessary to avoid rendering such other term
or provision invalid or unenforceable, and such modification shall be
accomplished in the manner that most nearly preserves the benefit of the
Issuers' and the Indenture Trustee's bargain hereunder.
SECTION 16.04 Effect of Headings. The Table of Contents and
the headings of the Articles, Sections, subsections, clauses and paragraphs
hereof, and of Exhibits hereto, are for convenience of reference only and shall
not affect the construction or interpretation of this Indenture.
SECTION 16.05. Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original; but all such
counterparts shall together constitute but one and the same instrument.
SECTION 16.06. Further Assurance. The Issuers shall, from time
to time on being required to do so by the Indenture Trustee, now or at any time
in the future, do or procure the doing of all such acts and/or execute or
procure the execution of all such documents in a form reasonably satisfactory to
the Indenture Trustee as the Indenture Trustee may reasonably consider necessary
for giving full effect to this Indenture and securing to the Indenture Trustee
the full benefit of the rights, powers and remedies conferred upon the Indenture
Trustee in this Indenture.
SECTION 16.07 Governing Law; Consent to Jurisdiction.
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(a) THE RIGHTS AND OBLIGATIONS OF EACH OF THE PARTIES UNDER
THIS INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
(b) EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES TO THE
FULLEST EXTENT PERMITTED BY LAW ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING
ARISING OUT OF OR RELATING DIRECTLY OR INDIRECTLY TO ANY OF THIS INDENTURE OR
ANY OTHER TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS INDENTURE BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS PARAGRAPH.
(c) ANY PROCEEDING WITH RESPECT TO THIS INDENTURE OR ANY OTHER
TRANSACTION DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK IN
THE COUNTY OF NEW YORK IN THE COMMERCIAL DIVISION OF THE SUPREME COURT, CIVIL
BRANCH OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK OR THE
EASTERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS INDENTURE,
EACH OF THE PARTIES HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS IN RESPECT OF, BUT ONLY IN RESPECT OF, PROCEEDINGS WITH RESPECT
TO THIS INDENTURE OR ANY OTHER TRANSACTION DOCUMENT.
(d) EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID PROCEEDINGS ARISING OUT OF
OR IN CONNECTION WITH THIS INDENTURE OR ANY OTHER TRANSACTION DOCUMENT BROUGHT
IN THE COURTS REFERRED TO IN SECTION 16.07(c) HEREOF AND HEREBY FURTHER
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND
AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH PROCEEDING BROUGHT
IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(e) EACH OF THE ISSUER AND THE CO-ISSUER HEREBY IRREVOCABLY
DESIGNATES, APPOINTS AND EMPOWERS AND HEREBY CONFERS AN IRREVOCABLE SPECIAL
POWER, AMPLE AND SUFFICIENT, TO CT CORPORATION SYSTEM, WITH OFFICES ON THE DATE
HEREOF AT 111 EIGHTH AVENUE, NEW YORK, NY 10011 AS ITS DESIGNEE, APPOINTEE AND
AGENT WITH RESPECT TO ANY SUCH PROCEEDING IN NEW YORK TO RECEIVE, ACCEPT AND
ACKNOWLEDGE FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF
ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN
ANY SUCH PROCEEDING AND AGREES THAT THE FAILURE OF SUCH AGENT TO GIVE ANY ADVICE
OF ANY SUCH SERVICE OF PROCESS TO THE ISSUER AND THE CO-ISSUER, AS THE CASE MAY
BE, SHALL NOT IMPAIR OR AFFECT THE VALIDITY OF SUCH SERVICE OR OF ANY CLAIM
BASED THEREON. IF FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL CEASE
TO BE AVAILABLE TO ACT AS SUCH, EACH OF THE ISSUER AND THE CO-ISSUER AGREES TO
DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT IN NEW YORK CITY ON THE TERMS AND
FOR THE PURPOSES OF THIS PROVISION. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
EACH OF THE ISSUER AND THE CO-ISSUER HEREBY IRREVOCABLY
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CONSENTS TO THE SERVICE OF PROCESS WITH RESPECT TO ANY PROCEEDING (WHETHER OR
NOT IN NEW YORK), BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, TO SUCH PERSON, AT ITS RESPECTIVE ADDRESS SET FORTH IN
SECTION 7.2 OF THE PARTICIPATION AGREEMENT, SUCH SERVICE TO BECOME EFFECTIVE 30
DAYS AFTER SUCH MAILING.
SECTION 16.08. Entire Agreement. This Indenture (including,
without limitation, the exhibits hereto) and the Senior Notes supersede all
prior agreements, written or oral, between or among any of the Issuer, the
Co-Issuer and the Indenture Trustee relating to the transactions contemplated
hereby and thereby, and each of the Issuer, the Co-Issuer and the Indenture
Trustee represents and warrants to the others that this Indenture, the Senior
Notes and the other Transaction Documents constitute the entire agreement among
the Issuers and the Indenture Trustee relating to the transactions contemplated
hereby and thereby.
SECTION 16.09. Benefit of Agreement. All agreements,
representations, warranties and indemnities in this Indenture and in any
agreement, document or certificate delivered pursuant hereto shall be binding
upon the Person making the same and its successors and assigns and shall inure
to the benefit of and be enforceable by the Person for whom made and its
successors and assigns; provided, however, none of the Issuer or the Co-Issuer
may assign or transfer any of its rights or obligations hereunder, except as
permitted by Section 7.01(q), without the prior written consent of the Majority
Noteholders. The Indenture Trustee may transfer, assign or grant its rights and
obligations hereunder in connection with an assignment or transfer of all or any
part of its interest in accordance with the provisions of Sections 11.02, 11.03,
11.05 and 11.13, provided that any such assignee has agreed to be bound by the
terms of this Indenture and the other Transaction Documents. This Indenture is
for the sole benefit of the Issuer, the Co-Issuer, the Indenture Trustee and the
Noteholders and Williams, as an express third-party beneficiary, and their
respective successors and assigns and is not for the benefit of any other
Person. This Indenture may not be amended or supplemented without the consent of
Williams, as express third-party beneficiary.
SECTION 16.10. Limitation on Rights of Noteholders. No
Noteholder shall have any right to vote (except as provided in this Indenture)
or in any manner otherwise control the operation and management of the Security
for the Senior Notes (except as provided in this Indenture) or the obligations
of the parties hereto (except as provided in this Indenture) nor shall anything
herein set forth or contained in the terms of the Senior Notes be construed so
as to constitute the Noteholders from time to time as partners or members of an
association nor shall any Noteholder be under any liability to any third party
by reason of any action taken by the parties to this Indenture pursuant to any
provision hereof, except as expressly provided for herein.
No Noteholder shall have any right by virtue or by availing
itself of any provisions of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture,
unless such Holder previously shall have given to the Indenture Trustee a
written notice of an Event of Default and of the continuance thereof, as
hereinbefore provided, and unless the Majority Noteholders shall also have made
written request upon the Indenture Trustee to institute such action, suit or
proceeding in its own name as Indenture Trustee hereunder and shall have offered
to the Indenture Trustee such reasonable security or indemnity (including
reasonable advances) as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Indenture Trustee, for
ten Business Days after its receipt of such notice, request and offer of
security or indemnity, shall have neglected or refused to institute any such
action, suit or proceeding, it being understood and intended, and being
expressly covenanted by each Noteholder with the other Noteholder and the
Indenture Trustee, that no one or more Noteholders shall have any right in any
manner whatever by virtue or by availing itself or themselves of any provisions
of this Indenture to affect, disturb or prejudice the rights of any other
Noteholders or to obtain or seek to obtain priority over or preference to any
other such Holder or to enforce any right under this Indenture, except in the
manner herein provided and for the common benefit
68
of all Noteholders. For the protection and enforcement of the provisions of this
Section 16.10, each and every Noteholder and the Indenture Trustee shall be
entitled to such relief as can be given either at law or in equity.
SECTION 16.11. Limitation on Liability of the Remarketing
Agents and the Indenture Trustee.
(a) Each Noteholder, by its acceptance of a Senior Note,
acknowledges that (i) any sale of the Williams Preferred Stock (and Additional
Shares, if any) pursuant to the Remarketing and Support Agreement or (ii) any
sale of the WCG Note pursuant to the WCG Note Reset Remarketing Agreement may be
at prices and on terms less favorable to such Noteholder or to Williams than
those obtainable in a public or private offering by Williams or any third party
under different circumstances. Each Noteholder, by its acceptance of a Senior
Note, agrees that any such sale shall be deemed to have been made in a
commercially reasonable manner and that the applicable remarketing agents shall
have no obligation to engage in public sales and no obligation with respect to
(x) the sale of any Williams Preferred Stock (and Additional Shares, if any)
other than as expressly set forth in the Remarketing and Support Agreement or
(y) the sale of the WCG Note, other than as expressly set forth in the WCG Note
Reset Remarketing Agreement.
(b) The Indenture Trustee and the applicable remarketing
agents shall incur no liability as a result of (i) the sale of the Williams
Preferred Stock (and Additional Shares, if any) including any Partial
Remarketing, made in accordance with the Remarketing and Support Agreement and
(ii) the sale, in whole or in part, of the WCG Note made in accordance with the
WCG Note Reset Remarketing Agreement. Each Noteholder, by its acceptance of a
Senior Note, waives any claims against the Indenture Trustee or the applicable
remarketing agents arising by reason of the fact that the price at which (x) the
Williams Preferred Stock (and Additional Shares, if any) may have been sold or
(y) the WCG Note may have been sold was less than the prices that might have
been obtained at a sale of such securities by Williams or any third party in
different circumstances or was less than the aggregate amount of the Secured
Obligations, even if the applicable remarketing agents accept the first offer
received and do not offer (x) the Williams Preferred Stock (and Additional
Shares, if any) or (y) the WCG Note, in each case, to more than one offeree.
SECTION 16.12. Senior Notes Non-Assessable and Fully Paid. It
is the intention of the Issuers that the Noteholders shall not be personally
liable for obligations of the Issuers, that the interests in the Security for
the Senior Notes represented by the Senior Notes shall be non-assessable for any
reason whatsoever and that the Senior Notes, upon due authentication thereof by
the Indenture Trustee pursuant to this Indenture, are and shall be deemed fully
paid.
SECTION 16.13. Limitation on Liability. It is expressly
understood and agreed by the parties hereto with respect to the Issuer that (a)
this Indenture is executed and delivered by Wilmington Trust Company, not
individually or personally but solely as Issuer Trustee, in the exercise of the
powers and authority conferred and vested in it under the Issuer Trust
Agreement, (b) each of the representations, undertakings and agreements herein
made on the part of the Issuer is made and intended not as personal
representations, undertakings and agreements by Wilmington Trust Company, but is
made and intended for the purposes of binding only the Issuer and (c) under no
circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Issuer or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Issuer under this Indenture or the other Transaction
Documents; provided that this Section 16.13 shall not limit any liability
expressly assumed by Wilmington Trust Company under the Issuer Trust Agreement
(including Section 7.05 thereof).
[signature pages follow]
69
IN WITNESS WHEREOF, the undersigned have caused this Indenture
to be duly executed as a deed as of this 28th day of March, 2001 by their
respective representatives hereunto duly authorized.
WCG NOTE TRUST, as Issuer
By: Wilmington Trust Company, not in its individual
capacity, but solely as Issuer Trustee
By: /s/ JAMES P. LAWLER
-------------------------------------------------
Name: JAMES P. LAWLER
Title: Vice President
Indenture
WCG NOTE CORP., INC., as Co-Issuer
By: /s/ HOWARD S. KALIKA
-------------------------------------------------
Name: Howard S. Kalika
Title: Vice President
Indenture
UNITED STATES TRUST COMPANY OF NEW YORK,
as Indenture Trustee
By: /s/ LOUIS P. YOUNG
-------------------------------------------------
Name: LOUIS P. YOUNG
Title: VICE PRESIDENT
UNITED STATES TRUST COMPANY OF NEW YORK, as Securities
Intermediary for purposes of Section 5.01, Section 5.02,
Section 5.03, Section 5.04 and Section 5.05 only
By: /s/ LOUIS P. YOUNG
-------------------------------------------------
Name: LOUIS P. YOUNG
Title: VICE PRESIDENT
Indenture