EXHIBIT 4.5
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NORTHWEST PIPELINE CORPORATION
as Company
and
JPMORGAN CHASE BANK
as Trustee
INDENTURE
Dated as of March 4, 2003
Series A and Exchange
8 1/8% Senior Notes due 2010
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CROSS-REFERENCE TABLE*
TIA Section Indenture Section
- ----------- -----------------
310 (a)(1) .................................................................. 6.10
(a)(2)................................................................... 6.10
(a)(3)................................................................... N.A.
(a)(4)................................................................... N.A.
(a)(5)................................................................... 6.10
(b)...................................................................... 6.10
(c)...................................................................... N.A.
311 (a)...................................................................... 6.11
(b)...................................................................... 6.11
(c)...................................................................... N.A.
312 (a)...................................................................... 2.05
(b)...................................................................... 11.03
(c)...................................................................... 11.03
313 (a)...................................................................... 6.06
(b)...................................................................... 6.06
(c)...................................................................... 6.06
(d)...................................................................... 6.06
314 (a)(4)................................................................... 3.04
(b)...................................................................... N.A.
(c)(1)................................................................... N.A.
(c)(2)................................................................... N.A.
(c)(3)................................................................... N.A.
(d)...................................................................... N.A.
(e)...................................................................... 10.05
(f)...................................................................... N.A.
315 (a)...................................................................... N.A.
(b)...................................................................... N.A.
(c)...................................................................... N.A.
(d)...................................................................... N.A.
(e)...................................................................... N.A.
316 (a)(last sentence)....................................................... N.A.
(a)(1)(A)................................................................ N.A.
(a)(1)(B)................................................................ N.A.
(a)(2)................................................................... N.A.
(b)...................................................................... N.A.
(c)...................................................................... N.A.
317 (a)(1)................................................................... N.A.
(a)(2)................................................................... N.A.
(b)...................................................................... N.A.
318 (a)...................................................................... N.A.
318 (c)...................................................................... N.A.
- -----------------
N.A. means not applicable
* This Cross-Reference Table is not part of the Indenture
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.................................................................. 1
SECTION 1.02. Other Definitions............................................................ 26
SECTION 1.03. Incorporation by Reference of Trust Indenture Act............................ 27
SECTION 1.04. Rules of Construction........................................................ 27
ARTICLE 2
THE NOTES
SECTION 2.01. Form and Dating.............................................................. 28
SECTION 2.02. Execution and Authentication................................................. 29
SECTION 2.03. Registrar and Paying Agent................................................... 30
SECTION 2.04. Paying Agent to Hold Money in Trust.......................................... 31
SECTION 2.05. Holder Lists................................................................. 31
SECTION 2.06. Transfer and Exchange........................................................ 31
SECTION 2.07. Certificated Notes........................................................... 37
SECTION 2.08. Replacement Notes............................................................ 38
SECTION 2.09. Outstanding Notes............................................................ 39
SECTION 2.10. Treasury Notes............................................................... 40
SECTION 2.11. Temporary Notes.............................................................. 40
SECTION 2.12. Cancellation................................................................. 40
SECTION 2.13. Defaulted Interest........................................................... 40
SECTION 2.14. Persons Deemed Owners........................................................ 40
SECTION 2.15. CUSIP Numbers................................................................ 41
ARTICLE 3
COVENANTS
SECTION 3.01. Payment of Notes............................................................. 41
SECTION 3.02. Maintenance of Office or Agency.............................................. 41
SECTION 3.03. Commission Reports; Financial Statements..................................... 42
SECTION 3.04. Compliance Certificate....................................................... 43
SECTION 3.05. Limitation on Restricted Payments............................................ 43
SECTION 3.06. Limitation on Incurrence of Indebtedness and Issuance Preferred Stock........ 47
SECTION 3.07. Limitation on Liens.......................................................... 50
SECTION 3.08. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries.......................................... 50
SECTION 3.09. Additional Interest.......................................................... 52
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SECTION 3.10. Guaranties by Restricted Subsidiaries........................................ 52
SECTION 3.11. Repurchase of Notes upon a Change of Control................................. 53
SECTION 3.12. Limitation on Asset Sales.................................................... 53
SECTION 3.13. Limitation on Transactions with Affiliates................................... 56
SECTION 3.14. Designation of Restricted and Unrestricted Subsidiaries...................... 57
SECTION 3.15. Limitation on Sale and Leaseback Transactions................................ 58
SECTION 3.16. Business Activities.......................................................... 58
SECTION 3.17. Payments for Consent......................................................... 58
ARTICLE 4
CONSOLIDATION, MERGER AND SALE
SECTION 4.01. Limitation on Mergers and Consolidations..................................... 59
SECTION 4.02. Successors Substituted....................................................... 60
SECTION 4.03. Consolidation, Merger or Sale of Assets by a Guarantor....................... 61
ARTICLE 5
DEFAULTS AND REMEDIES
SECTION 5.01. Events of Default............................................................ 61
SECTION 5.02. Acceleration................................................................. 64
SECTION 5.03. Other Remedies............................................................... 65
SECTION 5.04. Waiver of Existing Defaults.................................................. 65
SECTION 5.05. Control by Majority.......................................................... 66
SECTION 5.06. Limitations on Suits......................................................... 66
SECTION 5.07. Rights of Holders to Receive Payment......................................... 66
SECTION 5.08. Collection Suit by Trustee................................................... 67
SECTION 5.09. Trustee May File Proofs of Claim............................................. 67
SECTION 5.10. Priorities................................................................... 67
SECTION 5.11. Undertaking for Costs........................................................ 68
ARTICLE 6
TRUSTEE
SECTION 6.01. Duties of Trustee............................................................ 68
SECTION 6.02. Rights of Trustee............................................................ 69
SECTION 6.03. Individual Rights of Trustee................................................. 71
SECTION 6.04. Trustee's Disclaimer......................................................... 71
SECTION 6.05. Notice of Defaults........................................................... 71
SECTION 6.06. Reports by Trustee to Holders................................................ 71
SECTION 6.07. Compensation and Indemnity................................................... 72
SECTION 6.08. Replacement of Trustee....................................................... 72
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SECTION 6.09. Successor Trustee by Merger, Etc............................................. 73
SECTION 6.10. Eligibility; Disqualification................................................ 74
SECTION 6.11. Preferential Collection of Claims Against Company............................ 74
ARTICLE 7
DEFEASANCE AND DISCHARGE
SECTION 7.01. Discharge of Company's Obligations........................................... 75
SECTION 7.02. Legal Defeasance............................................................. 76
SECTION 7.03. Covenant Defeasance.......................................................... 77
SECTION 7.04. Covenant Termination......................................................... 78
SECTION 7.05. Application of Trust Money................................................... 78
SECTION 7.06. Repayment to Company......................................................... 78
SECTION 7.07. Reinstatement................................................................ 79
ARTICLE 8
AMENDMENTS
SECTION 8.01. Without Consent of Holders................................................... 79
SECTION 8.02. With Consent of Holders...................................................... 80
SECTION 8.03. Compliance with Trust Indenture Act.......................................... 82
SECTION 8.04. Revocation and Effect of Consents............................................ 82
SECTION 8.05. Notation on or Exchange of Notes............................................. 83
SECTION 8.06. Trustee to Sign Amendments, Etc.............................................. 83
ARTICLE 9
REDEMPTION
SECTION 9.01. Notices to Trustee........................................................... 83
SECTION 9.02. Selection of Notes to Be Redeemed............................................ 83
SECTION 9.03. Notices to Holders........................................................... 84
SECTION 9.04. Effect of Notices of Redemption.............................................. 85
SECTION 9.05. Deposit of Redemption Price.................................................. 85
SECTION 9.06. Notes Redeemed in Part....................................................... 86
SECTION 9.07. Optional Redemption.......................................................... 86
SECTION 9.08. Redemption with Proceeds of Public Equity Offering........................... 86
SECTION 9.09. Change of Control Offer...................................................... 87
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ARTICLE 10
GUARANTIES
SECTION 10.01. The Guaranties.............................................................. 89
SECTION 10.02. Guarantee Unconditional..................................................... 89
SECTION 10.03. Discharge; Reinstatement.................................................... 90
SECTION 10.04. Waiver by the Guarantors.................................................... 90
SECTION 10.05. Subrogation and Contribution................................................ 90
SECTION 10.06. Stay of Acceleration........................................................ 91
SECTION 10.07. Limitation on Amount of Guarantee........................................... 91
SECTION 10.08. Execution and Delivery of Guarantee......................................... 91
SECTION 10.09. Release of Guarantee........................................................ 91
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls................................................ 92
SECTION 11.02. Notices..................................................................... 92
SECTION 11.03. Communication by Holders with Other Holders................................. 93
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.......................... 94
SECTION 11.05. Statements Required in Certificate or Opinion............................... 94
SECTION 11.06. Rules by Trustee and Agents................................................. 94
SECTION 11.07. Legal Holidays.............................................................. 94
SECTION 11.08. No Recourse Against Others.................................................. 95
SECTION 11.09. Governing Law............................................................... 95
SECTION 11.10. No Adverse Interpretation of Other Agreements............................... 95
SECTION 11.11. Successors.................................................................. 95
SECTION 11.12. Severability................................................................ 95
SECTION 11.13. Counterpart Originals....................................................... 95
SECTION 11.14. Table of Contents, Headings, Etc............................................ 95
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EXHIBITS
EXHIBIT A Form of Note............................................ A-1
EXHIBIT B Form of Supplemental Indenture.......................... B-1
INDENTURE dated as of March 4, 2003 between Northwest Pipeline
Corporation, a Delaware corporation (the "COMPANY") and JPMorgan Chase Bank, a
New York banking corporation, as trustee (the "TRUSTEE").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of the Company's 81/8% Series A
Senior Notes due 2010 (the "SERIES A NOTES") and 8 1/8% Exchange Senior Notes
due 2010 (the "EXCHANGE NOTES" and together with the Series A Notes, the
"NOTES").
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"ACQUIRED DEBT" means, with respect to any Person,
(1) Indebtedness of any other Person existing at the time such other
Person is merged with or into or became a Subsidiary of such specified Person,
whether or not such Indebtedness is incurred in connection with, or in
contemplation of, such other Person merging with or into, or becoming a
Subsidiary of, such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset acquired by
such specified Person.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control,"
as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; provided that beneficial ownership of 10% or more of the
Voting Stock of a Person will be deemed to be control. For purposes of this
definition, the terms "controlling," "controlled by" and "under common control
with" have correlative meanings.
"AGENT" means any Registrar or Paying Agent.
"ASSET SALE" means:
(1) the sale, lease, conveyance or other disposition of any assets or
rights; provided that the sale, conveyance or other disposition of all or
substantially all of the assets of the Company and its Restricted Subsidiaries
taken as a whole will be governed by the provisions of the Indenture described
in Section 3.11
and/or the provisions described in Article IV and not by the provisions of
Section 3.12; and
(2) the issuance of Equity Interests in any of the Company's
Restricted Subsidiaries or the sale of Equity Interests in any of its Restricted
Subsidiaries.
Notwithstanding the preceding, the following items will not be deemed
to be Asset Sales:
(1) any single transaction or series of related transactions that
involves assets having a fair market value of less than $2.0 million;
(2) a transfer of assets between or among the Company and its
Restricted Subsidiaries,
(3) an issuance of Equity Interests by a Restricted Subsidiary to the
Company or to another Restricted Subsidiary;
(4) the sale or lease of equipment, inventory, accounts receivable or
other assets in the ordinary course of business;
(5) the sale or other disposition of cash or Cash Equivalents;
(6) dispositions of accounts receivable and related assets to a
Securitization Subsidiary in connection with a Permitted Receivables Financing;
(7) Sale and Leaseback Transactions; and
(8) a Restricted Payment or Permitted Investment that is permitted by
Section 3.05.
"ATTRIBUTABLE DEBT" in respect of a Sale and Leaseback Transaction
means, at the time of determination, the present value of the obligation of the
lessee for net rental payments during the remaining term of the lease included
in such Sale and Leaseback Transaction including any period for which such lease
has been extended or may, at the option of the lessor, be extended. Such present
value shall be calculated using a discount rate equal to the rate of interest
implicit in such transaction, determined in accordance with GAAP.
"AVAILABLE CASH FLOW FROM OPERATIONS" means for any period of the
Company, Consolidated Cash Flow of the Company for such period, minus the sum of
the following, each determined for such period on a consolidated basis:
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(1) cash taxes for the Company and its Restricted Subsidiaries,
including payments to the Company's Williams Group Affiliates in respect of
taxes pursuant to tax sharing arrangements; plus
(2) cash interest expense paid by the Company and its Restricted
Subsidiaries whether or not capitalized (including, without limitation, the
interest component of all payments associated with Capital Lease Obligations,
imputed interest with respect to Attributable Debt, commissions, discounts and
other fees and charges incurred in respect of letter of credit or bankers'
acceptance financings, and net of the effect of all payments made or received
pursuant to Hedging Obligations); plus
(3) additions to property, plant and equipment and other capital
expenditures of the Company and its Restricted Subsidiaries that are (or would
be) set forth in a consolidated statement of cash flows of the Company and its
Restricted Subsidiaries for such period prepared in accordance with generally
accepted accounting principles (except to the extent financed by the incurrence
of Indebtedness); plus
(4) the aggregate principal amount of long-term Indebtedness repaid
by the Company and its Restricted Subsidiaries and any short-term Indebtedness
that financed capital expenditures referred to in clause (3) above, excluding
any such repayments (i) under working capital facilities (except to the extent
that such Indebtedness so repaid was incurred to finance capital expenditures as
described in clause (3) above), (ii) out of Net Cash Proceeds of Asset Sales as
provided in Section 3.12 and (iii) through a refinancing involving the
incurrence of new long-term Indebtedness.
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar federal,
state or foreign law for the relief of debtors.
"BENEFICIAL OWNER" has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial
ownership of any particular "person" (as that term is used in Section 13(d)(3)
of the Exchange Act), such "person" will be deemed to have beneficial ownership
of all securities that such "person" has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition. The terms
"BENEFICIALLY OWNS" and "BENEFICIALLY OWNED" have a corresponding meaning.
"BOARD OF DIRECTORS" means:
(1) with respect to a corporation, the board of directors of the
corporation;
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(2) with respect to a partnership, the board of directors of the
general partner of the partnership; and
(3) with respect to any other Person, the board or committee of such
Person serving a similar function.
"BUSINESS DAY" means any day that is not a Legal Holiday.
"CAPITAL LEASE OBLIGATION" means, at the time any determination is to
be made, the amount of the liability in respect of a capital lease that would at
that time be required to be capitalized on a balance sheet in accordance with
GAAP.
"CAPITAL STOCK" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited); and
(4) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"CASH EQUIVALENTS" means:
(1) United States dollars;
(2) securities issued or directly and fully guaranteed or insured by
the United States government or any agency or instrumentality of the United
States government (provided that the full faith and credit of the United States
is pledged in support of those securities) having maturities of not more than
one year from the date of acquisition;
(3) certificates of deposit and Eurodollar time deposits with
maturities of one year or less from the date of acquisition, bankers'
acceptances with maturities not exceeding 365 days and overnight bank deposits
and other similar types of investments routinely offered by commercial banks, in
each case, with any lender party to the Credit Agreement or with any domestic
commercial bank or trust company having capital and surplus in excess of $500.0
million and a Thomson Bank Watch Rating of "B" or better;
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(4) repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clauses (2) and (3) above
entered into with any financial institution meeting the qualifications specified
in clause (3) above;
(5) commercial paper having the highest rating obtainable from
Moody's Investors Service, Inc. or Standard & Poor's Rating Services and in each
case maturing within 270 days after the date of acquisition;
(6) money market funds at least 95% of the assets of which constitute
Cash Equivalents of the kinds described in clauses (1) through (5) of this
definition; and
(7) deposits available for withdrawal on demand with any commercial
bank not meeting the qualifications specified in clause (3) above, provided that
all such deposits are made in the ordinary course of business, do not remain on
deposit for more than 30 consecutive days and do not exceed $10.0 million in the
aggregate at any one time.
"CHANGE OF CONTROL" means the occurrence of any of the following:
(1) the direct or indirect sale, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one or a series
of related transactions, of all or substantially all of the properties or assets
of the Company and its Restricted Subsidiaries taken as a whole to any "person"
(as that term is used in Section 13(d)(3) of the Exchange Act);
(2) the adoption of a plan relating to the liquidation or dissolution
of the Company;
(3) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that (A) any
"person" or "group" (as such terms are used for purposes of Sections 13(d) and
14(d) of the Exchange Act), other than a Williams Group Affiliate, becomes the
Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock
of the Company, measured by voting power rather than number of shares (B) any
"person" or "group" (as defined above) (other than a trustee or other fiduciary
holding securities under an employee benefit plan of Williams or any of its
Subsidiaries) becomes the Beneficial Owner, directly or indirectly, of more than
50% of the Voting Stock of Williams, measured by voting power rather than number
of shares;
(4) the first day on which a majority of the members of the Board of
Directors of the Company are not Continuing Directors; or
5
(5) the Company consolidates with, or merges with or into, any
Person, or any Person consolidates with, or merges with or into, the Company, in
any such event pursuant to a transaction in which any of the outstanding Voting
Stock of the Company or such other Person is converted into or exchanged for
cash, securities or other property, other than any such transaction where the
Voting Stock of the Company outstanding immediately prior to such transaction is
converted into or exchanged for Voting Stock (other than Disqualified Stock) of
the surviving or transferee Person constituting a majority of the outstanding
shares of such Voting Stock of such surviving or transferee Person (immediately
after giving effect to such issuance).
"CHANGE OF CONTROL OFFER" has the meaning assigned to such term in
Section 9.09.
"COMMISSION" means the U.S. Securities and Exchange Commission.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of the Indenture, and thereafter
"Company" shall mean such successor Person.
"CONSOLIDATED CASH FLOW" means, with respect to any specified Person
for any period, the Consolidated Net Income of such Person for such period plus
(without duplication):
(1) an amount equal to any extraordinary loss plus any net loss
realized by such Person or any of its Subsidiaries in connection with an Asset
Sale, to the extent such losses were deducted in computing such Consolidated Net
Income; plus
(2) provision for taxes based on income or profits of such Person and
its Restricted Subsidiaries for such period, to the extent that such provision
for taxes was deducted in computing such Consolidated Net Income; plus
(3) consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued and whether or not
capitalized (including, without limitation, amortization of debt issuance costs
and original issue discount, non-cash interest payments, the interest component
of any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, imputed interest with respect to
Attributable Debt, commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers' acceptance financings, and net of the
effect of all payments made or received pursuant to Hedging Obligations), to the
extent that any such expense was deducted in computing such Consolidated Net
Income; plus
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(4) depreciation, amortization (including amortization of goodwill
and other intangibles but excluding amortization of prepaid cash expenses that
were paid in a prior period) and other non-cash expenses (excluding any such
non-cash expense to the extent that it represents an accrual of or reserve for
cash expenses in any future period) of such Person and its Subsidiaries for such
period to the extent that such depreciation, amortization and other non-cash
expenses were deducted in computing such Consolidated Net Income; plus
(5) unrealized non-cash losses resulting from foreign currency
balance sheet adjustments required by GAAP to the extent such losses were
deducted in computing such Consolidated Net Income; plus
(6) all extraordinary, unusual or non-recurring items of gain or
loss, or revenue or expense to the extent such gains or losses were added or
deducted in computing such Consolidated Net Income.
in each case, on a consolidated basis and determined in accordance with
GAAP.
"CONSOLIDATED NET INCOME" means, with respect to any specified Person
for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; provided that:
(1) the Net Income (but not loss) of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting will be included only to the extent of the amount of dividends or
distributions paid in cash to the specified Person or a Restricted Subsidiary of
the Person;
(2) the Net Income of any Restricted Subsidiary will be excluded to
the extent that the declaration or payment of dividends or similar distributions
by that Restricted Subsidiary of that Net Income is not at the date of
determination permitted without any prior governmental approval (that has not
been obtained) or, directly or indirectly, by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Restricted Subsidiary or its
stockholders;
(3) the Net Income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition will be
excluded; and
(4) the cumulative effect of a change in accounting principles will
be excluded.
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"CONSOLIDATED NET TANGIBLE ASSETS" means, with respect to any Person at
any date of determination, the aggregate amount of total assets included in such
Person's most recent quarterly or annual consolidated balance sheet prepared in
accordance with GAAP less applicable reserves reflected in such balance sheet,
after deducting the following amounts: (i) all current liabilities reflected in
such balance sheet, and (ii) all goodwill, trademarks, patents, unamortized debt
discounts and expenses and other like intangibles reflected in such balance
sheet.
"CONSOLIDATED SUBSIDIARIES" means, with respect to any Person, all
other Persons the financial statements of which are consolidated with those of
such Person in accordance with generally accepted accounting principals.
"CONTINUING DIRECTORS" means, as of any date of determination, any
member of the Board of Directors of the Company who:
(1) was a member of such Board of Directors on the date of the
Indenture; or
(2) was nominated for election or elected to such Board of Directors
with the approval of a majority of the Continuing Directors who were members of
such Board at the time of such nomination or election.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" means the office of the Trustee
at which the corporate trust business of the Trustee shall be principally
administered, which office shall initially be located at the address of the
Trustee specified in Section 11.02 hereof and may be located at such other
address as the Trustee may give notice to the Company and the Holders or such
other address as a successor Trustee may designate from time to time by notice
to the Holders and the Company.
"CREDIT AGREEMENT" means the First Amended and Restated Credit
Agreement dated as of October 31, 2002, by and among The Williams Companies,
Inc., the Company, Transcontinental Gas Pipe Line Corporation and Texas Gas
Transmission Corporation as Borrowers and the banks named therein as Banks,
JPMorgan Chase Bank and Commerzbank AG as Co-Syndication Agents, Credit Lyonnais
New York Branch as Documentation Agent and Citicorp USA, Inc. as Agent and
Salomon Smith Barney Inc. as Arranger, providing for up to $400 million of
revolving credit borrowings to the Company, including any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, and in each case as amended, modified, renewed, refunded,
replaced or refinanced from time to time.
"CREDIT AGREEMENT REFINANCING DATE" means the first date after the date
of the Indenture on which the Company's ability to enter into or suffer to exist
restrictions on dividends and advances to its Williams Group Affiliates is no
longer
8
restricted pursuant to a credit facility or debt instrument to which any
Williams Group Affiliates are parties from time to time, including without
limitation pursuant to Section 5.02(d) of the Credit Agreement as in effect on
the date of the Indenture.
"CREDIT FACILITIES" means, one or more debt facilities (including,
without limitation, (1) the Credit Agreement and (2) one or more Permitted
Receivables Financings) or commercial paper facilities, in each case with banks
or other institutional lenders, or pursuant to intercompany loan or advance
arrangements with Williams and/or Williams Gas Pipeline Company, LLC (provided
that in the case of such arrangements with Williams and/or Williams Gas Pipeline
Company, LLC that such arrangements are on terms consistent with practices in
existence on the date of the Indenture) providing for revolving credit loans,
term loans, receivables financing (including through the sale of receivables to
such lenders or to special purpose entities formed to borrow from such lenders
against such receivables) or letters of credit, in each case, as amended,
restated, modified, renewed, refunded, replaced or refinanced in whole or in
part from time to time.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"DEFAULT" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"DEPOSITARY" means The Depository Trust Company, its nominees and their
respective successors.
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder of the Capital Stock), or
upon the happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or redeemable at the option of the
holder of the Capital Stock, in whole or in part, on or prior to the date that
is 91 days after the date on which the Notes mature. Notwithstanding the
preceding sentence, any Capital Stock that would constitute Disqualified Stock
solely because the holders of the Capital Stock have the right to require the
Company to repurchase such Capital Stock upon the occurrence of a change of
control or an asset sale will not constitute Disqualified Stock if the terms of
such Capital Stock provide that the Company may not repurchase or redeem any
such Capital Stock pursuant to such provisions unless such repurchase or
redemption complies with Section 3.05.
"DOMESTIC RESTRICTED SUBSIDIARY" means any Restricted Subsidiary of the
Company that was formed under the laws of the United States or any state of the
United States or the District of Columbia or that guarantees or otherwise
provides direct credit support for any Indebtedness of the Company.
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"EQUITY INTERESTS" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and any successor statute.
"EXCHANGE NOTES" means the Company's 81/8% Senior Notes due 2010 to be
issued pursuant to the Indenture in an Exchange Offer.
"EXCHANGE OFFER" means the offer that may be made by the Company
pursuant to a Registration Rights Agreement to exchange Exchange Notes for
Series A Notes.
"EXCHANGE OFFER REGISTRATION STATEMENT" means a registration statement
under the Securities Act relating to an Exchange Offer, including the related
prospectus.
"EXISTING INDEBTEDNESS" means up to $367.9 million in aggregate
principal amount of Indebtedness of the Company and its Restricted Subsidiaries
(other than Indebtedness under the Credit Agreement) in existence on the date of
the Indenture, until such amounts are repaid.
"FIXED CHARGES" means, with respect to any specified Person for any
period, the sum, without duplication, of:
(1) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued, including,
without limitation, amortization of debt issuance costs and original issue
discount, non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments associated with
Capital Lease Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in respect of letter
of credit or bankers' acceptance financings, any premiums, fees, discounts,
expenses and losses on the sale of accounts receivable (and any amortization
thereof) in connection with a Permitted Receivables Financing, and net of the
effect of all payments made or received pursuant to Hedging Obligations; plus
(2) the consolidated interest of such Person and its Restricted Subsidiaries
that was capitalized during such period; plus
(3) any interest expense on Indebtedness of another Person that is
Guaranteed by such Person or one of its Restricted Subsidiaries or secured by a
Lien on assets of such Person or one of its Restricted Subsidiaries, whether or
not such Guarantee or Lien is called upon; plus
10
(4) the product of (a) all dividends, whether paid or accrued and
whether or not in cash, on any series of preferred stock of such Person or any
of its Restricted Subsidiaries, other than dividends on Equity Interests payable
solely in Equity Interests of the Company (other than Disqualified Stock) or to
the Company or a Restricted Subsidiary of the Company, times (b) a fraction, the
numerator of which is one and the denominator of which is one minus the then
current combined federal, state and local statutory tax rate of such Person,
expressed as a decimal, in each case, on a consolidated basis and in accordance
with GAAP.
"FIXED CHARGE COVERAGE RATIO" means with respect to any specified
Person for any period, the ratio of the Consolidated Cash Flow of such Person
for such period to the Fixed Charges of such Person for such period. In the
event that the specified Person or any of its Restricted Subsidiaries incurs,
assumes, Guarantees, repays, repurchases or redeems any Indebtedness (other than
ordinary working capital borrowings) or issues, repurchases or redeems preferred
stock subsequent to the commencement of the period for which the Fixed Charge
Coverage Ratio is being calculated and on or prior to the date on which the
event for which the calculation of the Fixed Charge Coverage Ratio is made (the
"CALCULATION DATE"), then the Fixed Charge Coverage Ratio will be calculated
giving pro forma effect to such incurrence, assumption, Guarantee, repayment,
repurchase or redemption of Indebtedness, or such issuance, repurchase or
redemption of preferred stock, and the use of the proceeds therefrom as if the
same had occurred at the beginning of the applicable four-quarter reference
period.
In addition, for purposes of calculating the Fixed Charge Coverage
Ratio:
(1) acquisitions that have been made by the specified Person or any
of its Restricted Subsidiaries, including through mergers, consolidations or
otherwise (including acquisitions of assets used in a Permitted Business) and
Qualifying Expansion Projects that have been commenced by the specified Person
or any of its Restricted Subsidiaries, and including in each case any related
financing transactions (including repayment of Indebtedness) during the
four-quarter reference period or subsequent to such reference period and on or
prior to the Calculation Date will be given pro forma effect as if they had
occurred or (in the case of any Qualifying Expansion Projects) been completed
and in service on the first day of the four-quarter reference period, including
any Consolidated Cash Flow (including interest income reasonably anticipated by
such Person to be received from Cash and Cash Equivalents held by such Person or
any of its Restricted Subsidiaries) and any pro forma expense and cost
reductions that have occurred or are reasonably expected to occur, in the
reasonable judgment of the chief financial officer or chief accounting officer
of the Company (regardless of whether those cost savings or operating
improvements could then be reflected in pro forma financial statements in
accordance with Regulation S-X promulgated under the Securities Act or any other
regulation or policy of the Commission
11
related thereto), but in the case of Qualifying Expansion Projects, only to the
extent of Qualifying Expansion Project Amounts;
(2) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or businesses
disposed of prior to the Calculation Date, will be excluded; and
(3) the Fixed Charges attributable to discontinued operations, as
determined in accordance with GAAP, and operations or businesses disposed of
prior to the Calculation Date, will be excluded, but only to the extent that the
obligations giving rise to such Fixed Charges will not be obligations of the
specified Person or any of its Restricted Subsidiaries following the Calculation
Date.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the date of the Indenture.
"GUARANTEE" means a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or
indirect, in any manner including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness.
"GUARANTOR" means any subsidiary of the Company that executes a
Subsidiary Guarantee in accordance with the provisions of the Indenture and its
successors and assigns.
"HEDGING OBLIGATIONS" means, with respect to any specified Person, the
obligations of such Person incurred in the normal course of business and
consistent with past practices and not for speculative purposes under:
(1) interest rate swap agreements, interest rate cap agreements and
interest rate collar agreements;
(2) foreign exchange contracts and currency protection agreements
entered into with one of more financial institutions designed to protect the
person or entity entering into the agreement against fluctuations in interest
rates or currency exchanges rates with respect to Indebtedness incurred and not
for purposes of speculation;
12
(3) any commodity futures contract, commodity option or other similar
agreement or arrangement designed to protect against fluctuations in the price
of commodities used by that entity at the time; and
(4) other agreements or arrangements designed to protect such person
against fluctuations in interest rates or currency exchange rates.
"HOLDER" means a Person in whose name a Note is registered.
"INCREMENTAL FUNDS" has the meaning set forth in Section 3.05.
"INDEBTEDNESS" means, with respect to any specified Person, any
obligation of such Person, whether or not contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar instruments or
letters of credit (or reimbursement agreements in respect thereof);
(3) in respect of banker's acceptances;
(4) representing Capital Lease Obligations;
(5) representing the balance deferred and unpaid of the purchase
price of any property, except any such balance that constitutes an accrued
expense or trade payable;
(6) representing any Hedging Obligations, or
(7) under Permitted Receivables Financings;
if and to the extent any of the preceding items (other than letters of
credit and Hedging Obligations and obligations in respect of Permitted
Receivables Financings) would appear as a liability upon a balance sheet of the
specified Person prepared in accordance with GAAP. In addition, the term
"Indebtedness" includes all Indebtedness of others secured by a Lien on any
asset of the specified Person (whether or not such Indebtedness is assumed by
the specified Person) and, to the extent not otherwise included, the Guarantee
by the specified Person of any indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value of the Indebtedness, in the case of any
Indebtedness issued with original issue discount;
13
(2) in the case of any Permitted Receivables Financing, the net
unrecovered principal amount of the accounts receivable sold thereunder at such
date, or other similar amount representing the principal financing amount
thereof;
(3) in the case of any Hedging Obligation, the net amount payable if
such Hedging Obligation is terminated at that time due to default by such Person
(after giving effect to any contractually permitted set-off); and
(4) the principal amount of the Indebtedness in the case of any other
Indebtedness.
"INDENTURE" means this Indenture as amended or supplemented from time
to time.
"INDEPENDENT INVESTMENT BANKER" means Lehman Brothers Inc. or another
independent investment banking institution of national standing appointed by the
Company.
"INITIAL ISSUE DATE" means the first date on which the Series A Notes
are issued under the Indenture.
"INITIAL PURCHASERS" means any initial purchasers of Series A Notes
issued in connection with an offering under Rule 144A and/or Regulation S,
including without limitation, the Original Initial Purchasers, as such in the
Original Offering.
"INTEREST PAYMENT DATE" shall have the meaning assigned to such term in
the Notes.
"INVESTMENT GRADE DATE" has the meaning set forth in Section 7.04.
"INVESTMENT GRADE RATING" means a rating equal to or higher than Baa3
by Moody's and BBB- by S&P.
"INVESTMENTS" means, with respect to any Person, all direct or indirect
investments by such Person in other Persons (including Affiliates) in the forms
of loans (including Guarantees (other than Guarantees of Indebtedness of the
Company or any of its Guarantors to the extent permitted in Section 3.06),
advances or capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business and
excluding trade payables of the Company and its subsidiaries arising in the
ordinary course of business), purchases or other acquisitions for consideration
of Indebtedness, Equity Interests or other securities, together with all items
that are or would be classified as investments on a balance sheet prepared in
accordance with GAAP. If the Company or any Subsidiary of the Company sells or
otherwise disposes of any Equity Interests of any direct or indirect Subsidiary
of the
14
Company such that, after giving effect to any such sale or disposition, such
Person is no longer a Subsidiary of the Company, the Company will be deemed to
have made an Investment on the date of any such sale or disposition equal to the
fair market value of the Equity Interests of such Subsidiary not sold or
disposed of in an amount determined as provided in Section 3.05(d). The
acquisition by the Company or any Subsidiary of the Company of a Person that
holds an Investment in a third Person will be deemed to be an Investment by the
Company or such Subsidiary in such third Person in an amount equal to the fair
market value of the Investment held by the acquired Person in such third Person
in an amount determined as provided in Section 3.05(d).
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which banking
institutions in New York, New York or a place of payment are authorized or
obligated by law, regulation or executive order to remain closed.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
"LIQUIDATED DAMAGES" has the meaning given to such term in any
Registration Rights Agreement.
"MAKE-WHOLE AMOUNT" with respect to a Note means an amount equal to the
excess, if any, of (1) the present value of the remaining interest, premium and
principal payments due on such Note (excluding any portion of such payments of
interest accrued as of the redemption date), computed using a discount rate
equal to the Treasury Rate plus 50 basis points, over (2) the outstanding
principal amount of such Note.
"MAKE-WHOLE AVERAGE LIFE" means the number of years (calculated to the
nearest one-twelfth) between the date of redemption and the Stated Maturity of
the Notes.
"MAKE-WHOLE PRICE" means the sum of the outstanding principal amount of
the Notes to be redeemed plus the Make-Whole Amount of those Notes.
"MATURITY DATE" means, with respect to any Note, the date on which any
principal of such Note becomes due and payable, whether at the Stated Maturity
with respect to such principal or by declaration of acceleration, call for
redemption or purchase or otherwise.
15
"MOODY'S" means Moody's Investors Service, Inc. and its successors.
"NET INCOME" means, with respect to any specified Person, the net
income (loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however:
(1) any gain (but not loss), together with any related provision for
taxes on such gain (but not loss), realized in connection with: (a) any Asset
Sale; or (b) the disposition of any securities by such Person or any of its
Subsidiaries or the extinguishment of any Indebtedness of such Person or any of
its Subsidiaries; and
(2) any extraordinary gain (but not loss), together with any related
provision for taxes on such extraordinary gain (but not loss).
"NET PROCEEDS" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net of
the direct costs relating to such Asset Sale, including, without limitation,
legal, accounting and investment banking fees, and sales commissions, and any
relocation expenses incurred as a result of the Asset Sale, taxes paid or
payable as a result of the Asset Sale (as reasonably estimated by the Company),
in each case, after taking into account any available tax credits or deductions
and any tax sharing arrangements, and amounts required to be applied to the
repayment of Indebtedness secured by a Lien on the asset or assets that were the
subject of such Asset Sale and any reserve for adjustment in respect of the sale
price of such asset or assets established in accordance with GAAP.
"NON-RECOURSE DEBT" means Indebtedness:
(1) as to which neither the Company nor any of its Restricted
Subsidiaries (a) provides credit support of any kind (including any undertaking,
agreement or instrument that would constitute Indebtedness), (b) is directly or
indirectly liable as a guarantor or otherwise, or (c) constitutes the lender;
(2) no default with respect to which (including any rights that the
holders of the Indebtedness may have to take enforcement action against an
Unrestricted Subsidiary) would permit upon notice, lapse of time or both any
holder of any other Indebtedness (other than the Notes) of the Company or any of
its Restricted Subsidiaries to declare a default on such other Indebtedness or
cause the payment of the Indebtedness to be accelerated or payable prior to its
stated maturity; and
(3) as to which the lenders have been notified in writing that they
will not have any recourse to the stock or assets of the Company or any of its
Restricted Subsidiaries.
16
"NOTES" means the Series A Notes and the Exchange Notes.
"NOTES CUSTODIAN" means the Trustee, as custodian with respect to the
Notes in global form, or any successor entity thereto.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"OFFICER" means the Chairman of the Board, the Chief Executive Officer,
the President, any Vice Chairman of the Board, any Vice President, the Chief
Financial Officer, the Chief Accounting Officer, the Treasurer, any Assistant
Treasurer, the Controller, the Secretary or any Assistant Secretary of a Person.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers of a
Person, one of whom must be the Person's Chief Executive Officer, President,
Chief Financial Officer, Chief Accounting Officer or Treasurer.
"OPINION OF COUNSEL" means a written opinion from legal counsel who is
acceptable to the Trustee. Such counsel may be an employee of or counsel to the
Company or any parent corporation.
"ORIGINAL INITIAL PURCHASERS" means Lehman Brothers Inc., Banc of
America Securities LLC, Credit Lyonnais Securities (USA) Inc., J.P. Morgan
Securities Inc., Salomon Smith Barney Inc., Scotia Capital (USA) Inc., TD
Securities (USA) Inc., and Merrill Lynch, Pierce, Fenner & Smith Incorporated as
initial purchasers of the Series A Notes in the Original Offering.
"ORIGINAL OFFERING" means the offering of the Series A Notes pursuant
to the Original Offering Memorandum.
"ORIGINAL OFFERING MEMORANDUM" means the Offering Memorandum of the
Company, dated February 27, 2003, relating to the offering of the Series A
Notes.
"PERMITTED BUSINESS" means the lines of business conducted by the
Company and its Restricted Subsidiaries on the date of the Indenture and any
business incidental or reasonably related thereto or which is a reasonable
extension thereof as determined in good faith by the Board of Directors of the
Company and set forth in an Officer's Certificate delivered to the Trustee.
17
"PERMITTED INVESTMENTS" means:
(1) any Investment in the Company or in a Restricted Subsidiary of
the Company;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Company or any Subsidiary of the Company in
a Person, if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary of the
Company; or
(b) such Person is merged, consolidated or amalgamated with or
into, or transfers or conveys substantially all of its assets to,
or is liquidated into, the Company or a Restricted Subsidiary of
the Company;
(4) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in compliance
with Section 3.12 or any non-cash consideration that was excluded from the
definition of "Asset Sale" pursuant to clause (1) or (4) (for the sale or lease
of equipment) pursuant to the second paragraph of such definition;
(5) any Investment in any Person solely in exchange for the issuance
of Equity Interests (other than Disqualified Stock) of the Company;
(6) any purchase or other acquisition of senior debt of the Company
or any Guarantor (other than Indebtedness that is subordinated to the Notes or
the Subsidiary Guarantees);
(7) any Investments received in compromise of obligations of such
persons incurred in the ordinary course of trade creditors or customers that
were incurred in the ordinary course of business, including pursuant to any plan
of reorganization or similar arrangement upon the bankruptcy or insolvency of
any trade creditor or customer;
(8) Hedging Obligations permitted to be incurred under Section 3.06;
(9) Investments in a Securitization Subsidiary that are necessary or
desirable to effect any Permitted Receivables Financing; and
(10) other Investments in any Person having an aggregate fair market
value (measured on the date each such Investment was made and without giving
effect to subsequent changes in value), when taken together with all other
Investments
18
made pursuant to this clause (10) that are at the time outstanding not to exceed
$10 million.
"PERMITTED LIENS" means:
(1) Liens of the Company and any Guarantor securing any Credit
Facility that was permitted by the terms of the Indenture to be incurred and all
Obligations and Hedging Obligations relating to such Indebtedness (but excluding
any Credit Facility with Williams or any Williams Group Affiliate, as lender);
(2) Liens in favor of the Company or the Guarantors;
(3) Liens on property of a Person existing at the time such Person is
merged with or into or consolidated with the Company or any Restricted
Subsidiary of the Company or renewals or replacement of such Liens in connection
with the incurrence of Permitted Refinancing Indebtedness to refinance
Indebtedness secured by such Liens; provided that such Liens were in existence
prior to the contemplation of such merger or consolidation and do not extend to
any assets other than those of the Person merged into or consolidated with the
Company or the Restricted Subsidiary;
(4) Liens on property existing at the time of acquisition of the
property by the Company or any Restricted Subsidiary of the Company or renewals
or replacement of such Liens in connection with the incurrence of Permitted
Refinancing Indebtedness to refinance Indebtedness secured by such Liens;
provided that such Liens were in existence prior to the contemplation of such
acquisition;
(5) Liens to secure the performance of tenders, bids, statutory
obligations, surety or appeal bonds, performance bonds or other obligations of a
like nature incurred in the ordinary course of business;
(6) Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by Section 3.06(b)(4) covering only the assets acquired
with such Indebtedness;
(7) Liens existing on the date of the Indenture;
(8) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded; provided
that any reserve or other appropriate provision as is required in conformity
with GAAP has been made therefor;
19
(9) Liens on assets of Unrestricted Subsidiaries that secure
Non-Recourse Debt of Unrestricted Subsidiaries;
(10) Liens on accounts receivable and related assets and proceeds
thereof arising in connection with a Permitted Receivables Financing; and
(11) Liens with respect to Indebtedness that at the time of incurrence
does not exceed 10% of the Consolidated Net Tangible Assets of the Company.
"PERMITTED RECEIVABLES FINANCING" means any receivables financing
facility or arrangement pursuant to which a Securitization Subsidiary purchases
or otherwise acquires accounts receivable of the Company or any Restricted
Subsidiaries and enters into a third party financing thereof on terms that the
Board of Directors has concluded are customary and market terms fair to the
Company and its Restricted Subsidiaries.
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); provided that:
(1) the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal amount (or
accreted value, if applicable) of the Indebtedness extended, refinanced,
renewed, replaced, defeased or refunded (plus all accrued interest on the
Indebtedness and the amount of all expenses and premiums incurred in connection
therewith) and any premiums paid on the Indebtedness so extended, refinanced,
renewed, replaced, defeased or refunded;
(2) such Permitted Refinancing Indebtedness has a final maturity date
later than the final maturity date of, and has a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to Maturity of, the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded;
(3) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to the Notes
and any Subsidiary Guarantees, such Permitted Refinancing Indebtedness has a
final maturity date later than the final maturity date of, and is subordinated
in right of payment to, the Notes and any Subsidiary Guarantees, as the case may
be, on terms at least as favorable to the Holders of Notes as those contained in
the documentation governing the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded; and
20
(4) such Indebtedness is incurred either by the Company or by the
Subsidiary who is the obligor on the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
"PRIVATE EXCHANGE" means the offer by the Company to any of the Initial
Purchasers to issue and deliver to such Initial Purchaser, in exchange for the
Series A Notes held by such Initial Purchaser as part of its initial
distribution, a like aggregate principal amount of Private Exchange Notes.
"PRIVATE EXCHANGE NOTES" means the Exchange Notes to be issued pursuant
to the Indenture to an Initial Purchaser in a Private Exchange.
"PUBLIC EQUITY OFFERING" means an underwritten primary public offering,
after the date of the Indenture, of Capital Stock (other than Disqualified
Stock) of the Company pursuant to an effective registration statement under the
Securities Act other than an issuance registered on Form S-4 or S-8 or any
successor thereto or any issuance pursuant to employee benefit plans or
otherwise in compensation to officers, directors or employees.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"QUALIFYING EXPANSION PROJECT" means any capital expansion project that
has increased or will increase the physical capacity of the pipeline system of
the Company and the Guarantors; provided that such project has been completed
and the assets are in service at or the Company reasonably believes that the
in-service date of the project will be within twelve months after the
Calculation Date.
"QUALIFYING EXPANSION PROJECT AMOUNTS" means with respect to any
calculation of pro forma amounts under the Fixed Charge Coverage Ratio
additional revenues (if any) and related expenses for any Qualifying Expansion
Project for the portion of the four-quarter period prior to the in-service date
of such Qualifying Expansion Project (the "ESTIMATION PERIOD"); provided that
revenues and related expenses anticipated from any Qualifying Expansion Project
during any Estimation Period shall be included in such calculation only to the
extent (1) of the portion of the capacity of such Qualifying Expansion Project
that is committed under a long-term firm transportation contract on customary
terms (as determined in good faith by the Company) with a counterparty that has
an Investment Grade Rating of its long-term debt from at least one of S&P and
Moody's and (2) the aggregate amount of Qualifying Expansion Project Amounts for
all Qualifying Expansion Projects included in any such calculation does not
exceed 25% of the aggregate revenues of the Company and its Restricted
21
Subsidiaries for such period, determined for this purpose on a pro forma basis
but before inclusion of any Qualifying Expansion Project Amounts.
"RATING AGENCY" means each of S&P and Moody's, or if S&P or Moody's or
both shall not make a rating on the Notes publicly available, a nationally
recognized statistical rating agency or agencies, as the case may be, selected
by the Company (as evidenced by a resolution of the Board of Directors), which
shall be substituted for S&P or Moody's, or both, as the case may be.
"REDEMPTION DATE" when used with respect to any Note to be redeemed,
means the date fixed for such redemption by or pursuant to the Indenture.
"REDEMPTION PRICE" shall have the meaning assigned to such term in the
Notes.
"REGISTRATION RIGHTS AGREEMENT" means any registration rights agreement
entered into by the Company relating to any Notes issued hereunder, including
without limitation, the Registration Rights Agreement, dated as of March 4,
2003, among the Company and the Original Initial Purchasers.
"REGULATION S CERTIFICATE" means a letter to be delivered in connection
with transfers pursuant to Regulation S substantially in the form attached to
the Note.
"RESPONSIBLE OFFICER" means, when used with respect to the Trustee, any
vice president, any assistant vice president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, or any trust officer or any
other officer of the Trustee within the Institutional Trust
Services-Conventional Debt Unit (or any successor unit, department or division
of the Trustee) located at the Corporate Trust Office of the Trustee who has
direct responsibility for the administration of this Indenture, and, for the
purposes of Section 6.01(c)(ii) and Section 6.05 hereof, shall also include any
other officer of the Trustee to whom any corporate trust matter is referred
because of such person's knowledge of and familiarity with the particular
subject.
"RESTRICTED INVESTMENT" means an Investment other than a Permitted
Investment.
"RESTRICTED SUBSIDIARY" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
"RULE 144A CERTIFICATE" means a certificate to be completed by a
purchaser of a Note in reliance on Rule 144A substantially in the form attached
to the Note.
22
"S&P" means Standard and Poor's, a division of The McGraw-Hill
Companies, Inc., and its successors.
"SALE AND LEASEBACK TRANSACTION" means any arrangement with any Person
(other than the Company or a Subsidiary), or to which any such Person is a
party, providing for the leasing, pursuant to a capital lease that would at such
time be required to be capitalized on a balance sheet in accordance with GAAP,
to the Company or a Restricted Subsidiary of any property or asset which has
been or is to be sold or transferred by the Company or such Restricted
Subsidiary to such Person or to any other Person (other than the Company or a
Subsidiary), to which funds have been or are to be advanced by such Person.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and any
successor statute.
"SECURITIZATION SUBSIDIARY" means a Subsidiary of the Company (1) that
is designated a "Securitization Subsidiary" by the Board of Directors, (2) that
does not engage in, and whose charter prohibits it from engaging in, any
activities other than Permitted Receivables Financings and any activity
necessary, incidental or related thereto, (3) no portion of the Debt or any
other obligation, contingent or otherwise, of which (A) is Guaranteed by the
Company or any Restricted Subsidiary of the Company, (B) is recourse to or
obligates the Company or any Restricted Subsidiary of the Company in any way, or
(C) subjects any property or asset of the Company or any Restricted Subsidiary
of the Company, directly or indirectly, contingently or otherwise, to the
satisfaction thereof, (4) with respect to which neither the Company nor any
Restricted Subsidiary of the Company (other than an Unrestricted Subsidiary) has
any obligation to maintain or preserve such its financial condition or cause it
to achieve certain levels of operating results other than, in respect of clauses
(3) and (4), pursuant to customary representations, warranties, covenants and
indemnities entered into in connection with a Permitted Receivables Financing.
"SERIES A NOTES" means the Company's 81/8% Series A Notes due 2010, to
be issued pursuant to the Indenture.
"SHELF REGISTRATION STATEMENT" means a registration statement to be
filed by the Company, in connection with the offer and sale of Series A Notes or
Private Exchange Notes, pursuant to a Registration Rights Agreement.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date of the Indenture.
23
"STATED MATURITY" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which the payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and will not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"SUBSIDIARY" means, with respect to any specified Person:
(1) any corporation, association or other business entity of which
more than 50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees of the corporation, association or other
business entity is at the time owned or controlled, directly or indirectly, by
that Person or one or more of the other Subsidiaries of that Person (or a
combination thereof); and
(2) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are that Person or one or more Subsidiaries
of that Person (or any combination thereof).
"SUBSIDIARY GUARANTEE" means each Guarantee of the Notes issued by a
Guarantor pursuant to the Indenture.
"TIA" means the Trust Indenture Act of 1939, as amended (15 U.S.C.
Sections 77aaa-77bbbb), as in effect on the Initial Issue Date.
"TRANSFER RESTRICTED NOTES" with respect to any Notes, has the meaning
given to such term in the Registration Rights Agreement applicable to such
Notes.
"TREASURY RATE" means the yield to maturity (calculated on a
semi-annual bond-equivalent basis) as determined by the Independent Investment
Banker at the time of the computation of United States Treasury securities with
a constant maturity (as compiled by and published in the most recent Federal
Reserve Statistical Release H.15 (510), which has become publicly available at
least two business days prior to the date of the redemption notice or, if such
statistical release is no longer published, any publicly available source of
similar market data) most nearly equal to the then remaining maturity of the
Notes; provided that if the Make-Whole Average Life of such Note is not equal to
the constant maturity of the United States Treasury security for which a weekly
average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given, except that if the Make-Whole Average Life of such Note is less than one
year, the weekly average yield on actually traded
24
United States Treasury securities adjusted to a constant maturity of one year
shall be used.
"TRUSTEE" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of the Indenture and
thereafter means the successor serving hereunder.
"U.S. GOVERNMENT OBLIGATIONS" means direct obligations of the United
States of America for the payment of which the full faith and credit of the
United States of America is pledged.
"UNRESTRICTED SUBSIDIARY" means (1) any Securitization Subsidiary, (2)
NWP Enterprises, LLC, (3) NWP Enterprises, Inc., or (4) any Subsidiary of the
Company that is designated by the Board of Directors as an Unrestricted
Subsidiary pursuant to a Board Resolution, but only to the extent that such
Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary of the Company
unless the terms of any such agreement, contract, arrangement or understanding
are no less favorable to the Company or such Restricted Subsidiary than those
that might be obtained at the time from Persons who are not Affiliates of the
Company;
(3) is a Person with respect to which neither the Company nor any of
its Restricted Subsidiaries has any direct or indirect obligation (a) to
subscribe for additional Equity Interests or (b) to maintain or preserve such
Person's financial condition or to cause such Person to achieve any specified
levels of operating results; and
(4) has not guaranteed or otherwise directly or indirectly provided
credit support for any Indebtedness of the Company or any of its Restricted
Subsidiaries.
Any designation of a Subsidiary of the Company as an Unrestricted
Subsidiary will be evidenced to the Trustee by filing with the Trustee a
certified copy of the Board Resolution giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
preceding conditions and was permitted by Section 3.05. If, at any time, any
Unrestricted Subsidiary would fail to meet the preceding requirements as an
Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted
Subsidiary for purposes of the Indenture and any Indebtedness of such Subsidiary
will be deemed to be incurred by a Restricted Subsidiary of the Company as of
such date and, if such Indebtedness is not permitted to be incurred as of such
date under Section 3.06, the Company will be in default of such covenant. The
Board of Directors of the Company may at any
25
time designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that such designation will be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Company of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation will only be
permitted if (1) such Indebtedness is permitted under Section 3.06, calculated
on a pro forma basis as if such designation had occurred at the beginning of the
four-quarter reference period; and (2) no Default or Event of Default would be
in existence following such designation.
"VOTING STOCK" of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the amount of
each then remaining installment, sinking fund, serial maturity or other required
payments of principal, including payment at final maturity, in respect of the
Indebtedness, by (b) the number of years (calculated to the nearest one-twelfth)
that will elapse between such date and the making of such payment; by
(2) the then outstanding principal amount of such Indebtedness.
"WILLIAMS" means The Williams Companies, Inc.
"WILLIAMS GROUP AFFILIATES" means Williams and its Subsidiaries other
than the Company and its Subsidiaries.
SECTION 1.02. Other Definitions.
TERM DEFINED IN SECTION
Affiliate Transaction................................... 3.13(a)
Agent Members........................................... 2.01(c)
Asset Sale Offer........................................ 3.12(c)
Change of Control Payment............................... 3.11(a)
Change of Control Payment Date.......................... 9.09(b)
Covenant Defeasance..................................... 7.03(a)
DTC..................................................... 2.03
Event of Default........................................ 5.01
Excess Proceeds......................................... 3.12(c)
Global Note............................................. 2.01(b)
Incremental Funds....................................... 3.05(a)
Investment Grade Date................................... 7.04
26
TERM DEFINED IN SECTION
Legal Defeasance........................................ 7.02(a)
Paying Agent............................................ 2.03
Payment Default......................................... 5.01(a)
Permitted Debt.......................................... 3.06(b)
Pipeline Business....................................... 4.01(b)
Purchase Amount......................................... 9.09(b)
Registrar............................................... 2.03
Regulation S............................................ 2.01(b)
Restricted Notes Legend................................. 2.01(a)
Restricted Payments..................................... 3.05(a)
Rule 144A............................................... 2.01(b)
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"COMMISSION" means the Commission.
"INDENTURE SECURITIES" means the Notes.
"INDENTURE SECURITY HOLDER" means a Holder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" on the indenture securities means the Company.
All terms used in this Indenture that are defined by the TIA, defined
by a TIA reference to another statute or defined by an SEC rule under the TIA
have the meanings so assigned to them.
SECTION 1.04. Rules of Construction. Unless the context otherwise
requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(c) "or" is not exclusive;
27
(d) words in the singular include the plural, and in the plural include
the singular; and
(e) provisions apply to successive events and transactions.
ARTICLE 2
THE NOTES
SECTION 2.01. Form and Dating. (a) General. The Notes and the
Trustee's certificate of authentication shall be substantially in the form of
Exhibit A to the Indenture, the terms of which are hereby incorporated into the
Indenture. The Notes may have notations, legends or endorsements required by
law, securities exchange rule, the Company's certificate of incorporation,
memorandum of association, articles of association, other organizational
documents, agreements to which the Company is subject, if any, or usage,
provided that any such notation, legend or endorsement is in a form acceptable
to the Company. The Notes shall be in registered form without coupons and only
in denominations of $1,000 and any integral multiples thereof. The terms and
provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of the Indenture and to the extent applicable, the Company, by its
execution and delivery of the Indenture, expressly agrees to such terms and
provisions and to be bound thereby. The Notes shall be dated the date of their
authentication.
(b) Global Notes. Series A Notes offered and sold (i) to QIBs in
reliance on Rule 144A under the Securities Act ("RULE 144A") shall be issued
initially in the form of one or more permanent global Notes in definitive, fully
registered form without interest coupons with the global securities legend and
restricted securities legend (the "RESTRICTED NOTES LEGEND") set forth in
Section 2.06 (each, a "RULE 144A GLOBAL NOTE") and (ii) in reliance on
Regulation S under the Securities Act ("REGULATION S") shall be issued initially
in the form of one or more permanent global notes with the global securities
legend and restricted securities legend set forth in Section 2.06 (each, a
"REGULATION S GLOBAL NOTE" and, together with the Rule 144A Global Notes, the
"GLOBAL NOTES"). Each Global Note shall be deposited on behalf of the purchasers
of the Series A Notes represented thereby with the Trustee, at its New York
office, as custodian for the Depositary (or with such other custodian as the
Depositary may direct), and registered in the name of the Depositary or a
nominee of the Depositary, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The aggregate principal amount of the Global
Notes may from time to time be increased or decreased by adjustments made on the
records of the Trustee and the Depositary or its nominee as hereinafter
provided.
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(c) Book-entry Provisions. This Section 2.01(c) shall apply only to a
Global Note deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.01(c), authenticate and deliver initially one or more Global
Notes that shall be registered in the name of the Depositary for such Global
Note or Global Notes or the nominee of such Depositary and shall be delivered by
the Trustee to such Depositary or pursuant to such Depositary's instructions or
held by the Trustee as custodian for the Depositary.
Members of, or participants in, the Depositary ("AGENT MEMBERS") shall
have no rights under the Indenture with respect to any Global Note held on their
behalf by the Depositary or by the Trustee as the custodian of the Depositary or
under such Global Note, and the Depositary shall be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of
such Global Note for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depositary or impair, as between the
Depositary and its Agent Members, the operation of customary practices of such
Depositary governing the exercise of the rights of a holder of a beneficial
interest in any Global Note.
(d) Certificated Notes. Except as provided in this Section 2.01 or
Section 2.06 or 2.07, owners of beneficial interests in Global Notes will not be
entitled to receive physical delivery of certificated Notes.
Section 2.02. Execution and Authentication. One Officer of the Company
shall sign the Notes on behalf of the Company by manual or facsimile signature.
The Company's seal may be (but shall not be required to be) impressed, affixed,
imprinted or reproduced on the Notes and may be in facsimile form.
If an Officer of the Company whose signature is on a Note no longer
holds that office at the time the Note is authenticated, the Note shall be valid
nevertheless.
A Note shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose until authenticated by the manual signature
of an authorized signatory of the Trustee, which signature shall be conclusive
evidence that the Note has been authenticated under the Indenture.
The Trustee shall authenticate (i) for original issue on the Initial
Issue Date, Series A Notes in the aggregate principal amount of $175,000,000,
(ii) Exchange Notes for original issue, pursuant to any Exchange Offer or
Private Exchange, for a like principal amount of Series A Notes and (iii) any
amount of additional Notes
29
specified by the Company, in each case, upon a written order of the Company
signed by one Officer of the Company. Such order shall specify (a) the amount of
the Notes to be authenticated and the date of original issue thereof, and (b)
whether the Notes are Series A Notes or Exchange Notes. The aggregate principal
amount of Notes of any series outstanding at any time may not exceed the
aggregate principal amount of Notes of such series authorized for issuance by
the Company pursuant to one or more written orders of the Company, except as
provided in Section 2.08 hereof. Subject to the foregoing, the aggregate
principal amount of Notes of any series that may be issued under the Indenture
shall not be limited.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. Unless limited by the terms of such appointment,
an authenticating agent may authenticate Notes whenever the Trustee may do so.
Each reference in the Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with the Company, or an Affiliate of any of them.
The Series A Notes and the Exchange Notes shall be considered
collectively to be a single class for all purposes of the Indenture, including,
without limitation, waivers, amendments, redemptions and offers to purchase.
SECTION 2.03. Registrar and Paying Agent. The Company shall maintain
an office or agency where Notes may be presented for registration of transfer or
exchange ("REGISTRAR") and an office or agency where Notes may be presented for
payment ("PAYING AGENT"). The Registrar shall keep a register of the Notes and
of their transfer and exchange. The Company may appoint one or more
co-registrars and one or more additional paying agents. The term "Registrar"
includes any co-registrar and the term "Paying Agent" includes any additional
paying agent.
The Company shall enter into an appropriate agency agreement with any
Registrar or Paying Agent not a party to the Indenture. Such agreement shall
implement the provisions of the Indenture that relate to such Agent. The Company
shall notify the Trustee of the name and address of any Agent not a party to the
Indenture. The Company may change any Paying Agent or Registrar without notice
to any Holder. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints the Trustee as Registrar and Paying
Agent.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to each Global Note.
30
SECTION 2.04. Paying Agent to Hold Money in Trust. The Company shall
require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent will hold in trust for the benefit of Holders or the Trustee all
money held by the Paying Agent for the payment of principal of or premium, if
any, or interest or Liquidated Damages, if any, on the Notes, whether such money
shall have been paid to it by the Company and will notify the Trustee of any
default by the Company in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all money held by it to
the Trustee and to account for any funds disbursed. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee and to account
for any funds disbursed. Upon payment over to the Trustee and upon accounting
for any funds disbursed, the Paying Agent (if other than the Company or a
Subsidiary of the Company) shall have no further liability for the money. If the
Company or a Subsidiary of the Company 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.
SECTION 2.05. Holder Lists. The Trustee shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the
names and addresses of Holders and shall otherwise comply with TIA Section
312(a). If the Trustee is not the Registrar, the Company shall furnish to the
Trustee at least seven Business Days before each Interest Payment Date, and at
such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and addresses
of Holders, and the Company shall otherwise comply with TIA Section 312(a).
SECTION 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. (i) The transfer and
exchange of Global Notes or beneficial interests therein shall be effected
through the Depositary, in accordance with the Indenture (including applicable
restrictions on transfer set forth herein, if any) and the procedures of the
Depositary therefor. A transferor of a beneficial interest in a Global Note
(other than a transfer of a beneficial interest in a Global Note for a
beneficial interest in the same Global Note) shall deliver to the Registrar a
written order given in accordance with the Depositary's procedures containing
information regarding the participant account of the Depositary to be credited
with a beneficial interest in the Global Note. The Registrar shall, subject to
this Section 2.06, in accordance with such instructions, instruct the Depositary
to credit to the account of the Person specified in such instructions a
beneficial interest in the Global Note and to debit the account of the Person
making the transfer the beneficial interest in the Global Note being
transferred. The Trustee shall refuse to register any requested transfer or
exchange that does not comply with the preceding sentence.
31
(ii) Notwithstanding any other provisions of the Indenture
(other than the provisions set forth in Section 2.07), a Global Note
may not be transferred as a whole except by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor
Depositary.
(iii) If a Global Note is exchanged for Notes in definitive
registered form pursuant to this Section 2.06 or Section 2.07, prior to
the consummation of an Exchange Offer or prior to or in a transfer made
pursuant to an effective Shelf Registration Statement with respect to
such Notes, such Notes may be exchanged only in accordance with such
procedures as are substantially consistent with the provisions of this
Section 2.06 (including the certification and other requirements set
forth on the reverse of the Series A Notes intended to ensure that such
transfers comply with Rule 144A or Regulation S, as the case may be, or
are otherwise in compliance with the requirements of the Securities
Act) and such other procedures as may from time to time be adopted by
the Company.
(b) Legend. Except as permitted by the following paragraphs (c), (d),
(e) and (f), each Note certificate evidencing the Global Notes (and all Notes
issued in exchange therefor or in substitution thereof) shall bear a legend in
substantially the following form:
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
OTHER SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF SUCH REGISTRATION UNLESS THE TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS
ACQUIRING ITS NOTE IN AN "OFFSHORE TRANSACTION" PURSUANT TO
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (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
32
SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY
PREDECESSOR OF THIS NOTE) OR THE LAST DAY ON WHICH THE COMPANY
OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR
ANY PREDECESSOR OF THIS NOTE) AND (Y) SUCH LATER DATE, IF ANY,
AS MAY BE REQUIRED BY APPLICABLE LAW (THE "RESALE RESTRICTION
TERMINATION DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS
NOTE EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE NOTES 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 INSIDE THE U.S., (D) PURSUANT TO OFFERS
AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE U.S.
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR
(E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES
THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND; PROVIDED THAT THE COMPANY, THE TRUSTEE AND THE
REGISTRAR SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER (I) PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF
THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OF
TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS NOTE
IS COMPLETED AND DELIVERED BY THIS TRANSFEROR TO THE TRUSTEE.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION," "U.S." AND "U.S. PERSON"
33
HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
(c) Certification Requirements. Subject to paragraph (e), the transfer
or exchange of any Note (or a beneficial interest therein) of the type set forth
in column A below for a Note (or a beneficial interest therein) of the type set
forth opposite in column B below may only be made in compliance with the
certification requirements (if any) described in the clause of this paragraph
set forth opposite in column C below.
A B C
Rule 144A Global Note Rule 144A Global Note (i)
Rule 144A Global Note Regulation S Global Note (ii)
Rule 144A Global Note Certificated Note (iii)
Regulation S Global Note Rule 144A Global Note (iv)
Regulation S Global Note Regulation S Global Note (i)
Regulation S Global Note Certificated Note (v)
Certificated Note Rule 144A Global Note (iv)
Certificated Note Regulation S Global Note (ii)
Certificated Note Certificated Note (iii)
(i) No certification is required.
(ii) The Person requesting the transfer or exchange must
deliver or cause to be delivered to the Trustee a duly completed
Regulation S Certificate; provided that if the requested transfer or
exchange is made by the Holder of a Certificated Note that does not
bear the Restricted Notes Legend, then no certification is required.
(iii) The Person requesting the transfer or exchange must
deliver or cause to be delivered to the Trustee (x) a duly completed
Rule 144A Certificate or (y) a duly completed Regulation S Certificate
and/or an Opinion of Counsel and such other certifications and evidence
as the Company may reasonably require in order to determine that the
proposed transfer or exchange is being made in compliance with the
Securities Act and any applicable securities laws of any state of the
United States; provided that if the requested transfer or exchange is
made by the Holder of a certificated Note that does not bear the
Restricted Notes Legend, then no certification is required. In the
event that (i) the requested transfer or exchange takes place after the
Restricted Period and a duly completed Regulation S Certificate is
delivered to the Trustee or (ii) a certificated Note that does not bear
the Restricted Notes Legend is surrendered for
34
transfer or exchange, upon transfer or exchange the Trustee will
deliver a certificated Note that does not bear the Restricted Notes
Legend.
(iv) The Person requesting the transfer or exchange must
deliver or cause to be delivered to the Trustee a duly completed Rule
144A Certificate.
(v) Notwithstanding anything to the contrary contained
herein, no such exchange is permitted if the requested exchange is made
during the Restricted Period. If the requested transfer involves a
beneficial interest in a Regulation S Global Note during the Restricted
Period, the Person requesting the transfer must deliver or cause to be
delivered to the Trustee a duly completed Rule 144A Certificate and/or
an Opinion of Counsel and such other certifications and evidence as the
Company may reasonably require in order to determine that the proposed
transfer is being made in compliance with the Securities Act and any
applicable securities laws of any state of the United States. If the
requested transfer or exchange involves a beneficial interest in a
Regulation S Global Note after the Restricted Period, no certification
is required and the Trustee will deliver a certificated Note that does
not bear the Restricted Notes Legend.
(d) Rule 144A Transfers. Upon any sale or transfer of a Transfer
Restricted Note (including any Transfer Restricted Note represented by a Rule
144A Global Note) pursuant to Rule 144 under the Securities Act, the Registrar
shall permit the Holder thereof to exchange such Transfer Restricted Note for a
Note (or, in the case of any Transfer Restricted Note that is represented by a
Rule 144A Global Note, an interest in a Global Note) that does not bear the
legend set forth above and rescind any restriction on the transfer of such
Transfer Restricted Note, if the Holder certifies in writing to the Registrar
that its request for such exchange was made in reliance on Rule 144 (such
certification to be in the form set forth on the reverse of the Note).
(e) Transfers Pursuant to an Effective Shelf Registration Statement.
After a transfer of any Series A Notes or Private Exchange Notes during the
period of the effectiveness of and pursuant to a Shelf Registration Statement
with respect to such Series A Notes or Private Exchange Notes, as the case may
be, all requirements pertaining to legends on such Note or such Private Exchange
Note will cease to apply.
(f) Transfers Pursuant to a Registered Exchange Offer. Upon the
consummation of a Registered Exchange Offer with respect to the Series A Notes
pursuant to which Holders of such Series A Notes are offered Exchange Notes in
exchange for their Series A Notes, Exchange Notes in certificated or global form
(depending on whether certificated Notes or interests in Global Notes are
35
exchanged), in each case not bearing the Restricted Notes Legend, will be
available to Holders that exchange such Series A Notes in such Exchange Offer.
(g) Private Exchanges. Upon the consummation of a Private Exchange with
respect to the Series A Notes pursuant to which Holders of such Series A Notes
are offered Private Exchange Notes in exchange for their Series A Notes, Private
Exchange Notes in certificated or global form (depending on whether certificated
Notes or interests in Global Notes are exchanged) with the Restricted Notes
Legend will be available to Holders that exchange such Series A Notes in such
Private Exchange.
(h) Cancellation or Adjustment of Global Note. At such time as all
beneficial interests in a Global Note have either been exchanged for
certificated Notes, redeemed, repurchased or canceled, such Global Note shall be
returned to the Depositary for cancellation or retained and canceled by the
Trustee. At any time prior to such cancellation, if any beneficial interest in a
Global Note is exchanged for certificated Notes, redeemed, repurchased or
canceled, the principal amount of Notes represented by such Global Note shall be
reduced and an adjustment shall be made on the books and records of the Trustee
(if it is then the Notes Custodian for such Global Note) with respect to such
Global Note, by the Trustee or the Notes Custodian, to reflect such reduction.
(i) Obligations with Respect to Transfers and Exchanges of Notes.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate certificated
Notes and Global Notes at the Registrar's or co-Registrar's request. No
service charge shall be made for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to
cover any transfer tax, assessments, or similar governmental charge
payable in connection therewith (other than any such transfer taxes,
assessments or similar governmental charge payable upon exchange or
transfer pursuant to Sections 5.11, 8.05 and 9.06).
(ii) The Registrar or co-registrar shall not be required to
register the transfer of or exchange of (a) any certificated Note
selected for redemption in whole or in part pursuant to Article IX,
except the unredeemed portion of any certificated Note being redeemed
in part, or (b) any Note for a period beginning 15 Business Days before
the mailing of a notice of an offer to repurchase or redeem Notes or 15
Business Days before an interest payment date.
(iii) Prior to the due presentation for registration of
transfer of any Note, the Company, the Trustee, the Paying Agent, the
Registrar or any co-Registrar may deem and treat the Person in whose
name a Note is
36
registered as the absolute owner of such Note for the purpose of
receiving payment of principal of, premium, if any, and interest and
Liquidated Damages, if any, on such Note and for all other purposes
whatsoever, whether or not such Note is overdue, and none of the
Company, the Trustee, the Paying Agent, the Registrar or any
co-registrar shall be affected by notice to the contrary.
(iv) All Notes issued upon any transfer or exchange pursuant
to the terms of the Indenture shall evidence the same debt and shall be
entitled to the same benefits under the Indenture as the Notes
surrendered upon such transfer or exchange.
(j) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation
to any beneficial owner of a Global Note, any Agent Member or other
Person with respect to the accuracy of the records of the Depositary or
its nominee or of any participant or member thereof, with respect to
any ownership interest in the Notes or with respect to the delivery to
any participant, member, beneficial owner or other Person (other than
the Depositary) of any notice (including any notice of redemption) or
the payment of any amount, under or with respect to such Notes. All
notices and communications to be given to the Holders and all payments
to be made to Holders under the Notes shall be given or made only to or
upon the order of the registered Holders (which shall be the Depositary
or its nominee in the case of a Global Note). The rights of beneficial
owners in any Global Note shall be exercised only through the
Depositary subject to the applicable rules and procedures of the
Depositary. The Trustee may rely conclusively and shall be fully
protected in relying upon information furnished by the Depositary with
respect to its members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under the Indenture or under applicable law with respect to any
transfer of any interest in any Note (including any transfers between
or among Depositary participants, members or beneficial owners in any
Global Note) other than to require delivery of such certificates and
other documentation or evidence as are expressly required by, and to do
so if and when expressly required by, the terms of the Indenture, and
to examine the same to determine substantial compliance as to form with
the express requirements hereof.
37
SECTION 2.07. Certificated Notes.
(a) A Global Note deposited with the Depositary or with the Trustee as
custodian for the Depositary pursuant to Section 2.01 shall be transferred to
the beneficial owners thereof in the form of certificated Notes in an aggregate
principal amount equal to the principal amount of such Global Note, in exchange
for such Global Note, only if such transfer complies with Section 2.06 and (i)
the Depositary notifies the Company that it is unwilling or unable to continue
as Depositary for such Global Note or if at any time such Depositary ceases to
be a "clearing agency" registered under the Exchange Act and a successor
depositary is not appointed by the Company within 90 days of such notice, (ii)
the Company, in its sole discretion, notifies the Trustee in writing that it
elects to cause the issuance of certificated Notes under the Indenture; or (iii)
there has occurred and is continuing a Default or Event of Default with respect
to the Notes.
(b) Any Global Note that is transferred to the beneficial owners
thereof pursuant to this Section shall be surrendered by the Depositary to the
Trustee at its office located in the Borough of Manhattan, The City of New York,
to be so transferred, in whole or from time to time in part, without charge, and
the Trustee shall authenticate and deliver, upon such transfer of each portion
of such Global Note, an equal aggregate principal amount of certificated Notes
of authorized denominations. Any portion of a Global Note transferred pursuant
to this Section shall be executed, authenticated and delivered only in
denominations of $1,000 and any integral multiple thereof and registered in such
names as the Depositary shall direct. Any certificated Note delivered in
exchange for an interest in the Global Note shall, except as otherwise provided
by Section 2.06(c), bear the restricted securities legend set forth in Section
2.06(b).
(c) Subject to the provisions of Section 2.06(b), the registered Holder
of a Global Note may grant proxies and otherwise authorize any Person, including
Agent Members and Persons that may hold interests through Agent Members, to take
any action which a Holder is entitled to take under the Indenture or the Notes.
(d) If any of the events specified in Section 2.07(a) occurs, the
Company shall promptly make available to the Trustee a reasonable supply of
certificated Notes in definitive, fully registered form without interest
coupons.
(e) If a certificated Note issued pursuant to this Section 2.07 is
exchanged for another certificated Note prior to the consummation of an Exchange
Offer or prior to or in a transfer made pursuant to an effective Shelf
Registration Statement with respect to such Notes, such Notes may be exchanged
only in accordance with such procedures as are substantially consistent with the
provisions of (i) Section 2.06(a)(iii) (including the certification and other
requirements set forth on the reverse of the Series A Notes intended to ensure
that such transfers comply with Rule 144A or Regulation S, as the case may be,
or are otherwise in
38
compliance with the requirements of the Securities Act) and such other
procedures as may from time to time be adopted by the Company and (ii) Section
2.06(b).
SECTION 2.08. Replacement Notes.
If any mutilated Note is surrendered to the Trustee, or the Company and
the Trustee receive evidence to their satisfaction of the destruction, loss or
theft of any Note, the Company shall issue and the Trustee shall authenticate a
replacement Note, but only if the Trustee's requirements are met. If required by
the Trustee or the Company, such Holder must furnish an indemnity bond that is
sufficient in the judgment of the Trustee and the Company to protect the
Company, the Trustee, any Agent or any authenticating agent from any loss which
any of them may suffer if a Note is replaced. The Company and the Trustee may
charge for their expenses in replacing a Note. If, after the delivery of such
replacement Note, a bona fide purchaser of the original Note in lieu of which
such replacement Note was issued presents for payment or registration such
original Note, the Trustee shall be entitled to recover such replacement Note
from the Person to whom it was delivered or any Person taking therefrom, except
a bona fide purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or expense
incurred by the Trustee or the Company in connection therewith.
Every replacement Note is an additional obligation of the Company.
SECTION 2.09. Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee hereunder and those described in this Section 2.09 as not outstanding;
provided, however, that in determining whether the holders of the requisite
principal amount of outstanding Notes are present at a meeting of holders of
Notes for quorum purposes or have consented to or voted in favor of any request,
demand, authorization, direction, notice, consent, waiver, amendment or
modification hereunder, Notes held for the account of the Company, any of its
Subsidiaries or any of their respective Affiliates shall be disregarded and
deemed not to be outstanding, except that in determining whether the Trustee
shall be protected in making such a determination or relying upon any such
quorum, consent or vote, only Notes which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded.
If a Note is replaced pursuant to Section 2.08 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
39
If the principal amount of any Note is considered paid under Section
3.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
A Note does not cease to be outstanding because the Company or any of
its Affiliates holds the Note.
SECTION 2.10. Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company or any of its Affiliates shall be disregarded, except that for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Notes which a Responsible Officer of the
Trustee actually knows are so owned shall be so disregarded.
SECTION 2.11. Temporary Notes.
Until definitive Notes are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of definitive Notes, but may have variations that the
Company considers appropriate for temporary Notes. Without unreasonable delay,
the Company shall prepare and the Trustee shall authenticate definitive Notes in
exchange for temporary Notes. Until so exchanged, the temporary Notes shall in
all respects be entitled to the same benefits under the Indenture as definitive
Notes.
SECTION 2.12. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation. All canceled Notes held by the
Trustee shall be disposed of in accordance with the usual disposal procedures of
the Trustee. The Company may not issue new Notes to replace Notes that have been
paid or that have been delivered to the Trustee for cancellation.
SECTION 2.13. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it shall
pay the defaulted interest in any lawful manner plus, to the extent lawful,
interest on the defaulted interest, in each case at the rate provided in the
Notes and in Section 3.01 hereof. The Company may pay the defaulted interest to
the Persons who are Holders on a subsequent special record date. At least 15
days before any special record date, the Company (or the Trustee, in the name of
and at the expense of the
40
Company) shall mail to Holders a notice that states the special record date, the
related payment date and the amount of such interest to be paid.
SECTION 2.14. Persons Deemed Owners.
The Company, the Trustee, any Agent and any authenticating agent may
treat the Person in whose name any Note is registered as the owner of such Note
for the purpose of receiving payments of principal of or premium, if any, or
interest on such Note and for all other purposes. None of the Company, the
Trustee, any Agent or any authenticating agent shall be affected by any notice
to the contrary.
SECTION 2.15. CUSIP Numbers. The Company in issuing the Notes may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption 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 Notes or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall not
be affected by any defect in or omission of such numbers. The Company shall
promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE 3
COVENANTS
SECTION 3.01. Payment of Notes. The Company shall pay the principal of
and premium, if any, Liquidated Damages, if any, and interest on the Notes on
the dates and in the manner provided in the Notes and in the Indenture.
Principal, premium, if any, Liquidated Damages, if any, and interest shall be
considered paid on the date due if the Paying Agent, other than the Company or a
Subsidiary of the Company, holds by 11:00 a.m., Eastern time, on that date money
deposited by the Company designated for and sufficient to pay all principal,
premium, if any, Liquidated Damages, if any, and interest then due.
To the extent lawful, the Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal, premium, if any, Liquidated Damages, if any, and interest payments
(without regard to any applicable grace period) at a rate equal to the then
applicable interest rate on the Notes.
SECTION 3.02. Maintenance of Office or Agency. The Company shall
maintain, in the Borough of Manhattan, The City of New York, an office or agency
(which may be an office of the Trustee, the Registrar or the Paying Agent) where
Notes may be presented for registration of transfer or exchange, where
41
Notes may be presented for payment and where notices and demands to or upon the
Company in respect of the Notes and the Indenture may be served. Unless
otherwise designated by the Company by written notice to the Trustee, such
office or agency shall be the principal office of the Trustee in the Borough of
Manhattan, The City of New York, which, on the date hereof, is located at the
address set forth in Section 11.02 hereof. The Company shall give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York for such purposes. The Company shall give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency. The Company hereby
designates the Corporate Trust Office of the Trustee as one such office or
agency of the Company in accordance with Section 2.03 hereof.
SECTION 3.03. Commission Reports; Financial Statements. (a) Whether or
not required by the Commission, so long as any Notes are outstanding, the
Company will furnish to the Trustee, within 15 days after the time periods
specified in the Commission's rules and regulations:
(i) all quarterly and annual financial information that
would be required to be contained in a filing with the Commission on
Forms 10-Q and 10-K if the Company were required to file such reports,
including a "Management's Discussion and Analysis of Financial
Condition and Results of Operations" (or, if applicable to the Company
for such filings at such time, or if such filings were required at such
time, a "Management's Narrative and Analysis of Results of
Operations"), and, with respect to the annual information only, a
report on the annual financial statements by the Company's certified
independent accountants; and
(ii) all current reports that would be required to be filed
with the Commission on Form 8-K if the Company were required to file
such reports.
(b) If the Company has designated any of its Subsidiaries as
Unrestricted Subsidiaries, then the quarterly and annual financial information
required by paragraph (a) will include a reasonably detailed presentation,
either on the face of
42
the financial statements or in the footnotes thereto, and in Management's
Discussion and Analysis of Financial Condition and Results of Operations (or, as
applicable, in Management's Narrative and Analysis of Results of Operations), of
the financial condition and results of operations of the Company and its
Restricted Subsidiaries separate from the financial condition and results of
operations of the Unrestricted Subsidiaries of the Company.
(c) In addition, following the consummation of the Exchange Offer,
whether or not required by the Commission, the Company will file a copy of all
of the information and reports referred to in clauses (1) and (2) above with the
Commission for public availability within the time periods specified in the
Commission's rules and regulations (unless the Commission will not accept such a
filing) and make such information available to securities analysts and
prospective investors upon request. In addition, the Company and the Guarantors
will, for so long as any Notes remain outstanding, furnish to the Holders and to
securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
(d) The Company shall provide the Trustee with a sufficient number of
copies of all reports and other documents and information that the Trustee may
be required to deliver to Holders under this Section.
(e) Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer's Certificates).
SECTION 3.04. Compliance Certificate. (a) The Company shall deliver to
the Trustee, on or prior to the last day of the fifth month after the end of
each fiscal year of the Company, a statement signed by two Officers of the
Company (one of whom shall be the principal financial, principal accounting or
principal executive officer of the Company), which statement need not constitute
an Officers' Certificate, complying with TIA Section 314(a)(4) and stating that
in the course of performance by the signing Officers of the Company of their
duties as such Officers, they would normally obtain knowledge of the keeping,
observing, performing and fulfilling by the Company, of its obligations under
the Indenture, and further stating, as to each such Officer signing such
statement, that to his knowledge, the Company has kept, observed, performed and
fulfilled each and every covenant contained in the Indenture and is not in
default in the performance or observance of any of the terms, provisions and
conditions hereof (or, if a Default or Event of Default shall have occurred,
describing all such Defaults or Events of Default of which such Officer may have
knowledge and what action the Company is taking or proposes to take with respect
thereto).
43
SECTION 3.05. Limitation on Restricted Payments. (a) The Company will
not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly:
(i) declare or pay any dividend or make any other payment or
distribution on account of the Company's or any of its Restricted
Subsidiaries' Equity Interests (including, without limitation, any
payment in connection with any merger or consolidation involving the
Company or any of its Restricted Subsidiaries) or to the direct or
indirect holders of the Company's or any of its Restricted
Subsidiaries' Equity Interests in their capacity as such (other than
dividends or distributions payable in Equity Interests (other than
Disqualified Stock) of the Company or to the Company or a Restricted
Subsidiary of the Company);
(ii) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or
consolidation involving the Company) any Equity Interests of the
Company or any direct or indirect parent of the Company;
(iii) make any payment on or with respect to, or purchase,
redeem, defease or otherwise acquire or retire for value any
Indebtedness that is subordinated to the Notes or the Subsidiary
Guarantees, except a payment of interest or principal at the Stated
Maturity thereof; or
(iv) make any Restricted Investment (all such payments and
other actions set forth in these clauses (i) through (iv) above being
collectively referred to as "RESTRICTED PAYMENTS"),
unless, at the time of and after giving effect to such Restricted
Payment, no Default or Event of Default has occurred and is continuing or would
occur as a consequence of such Restricted Payment; and
(1) if the Fixed Charge Coverage Ratio for the Company's four
most recent fiscal quarters for which internal financial statements are
available is not less than 1.75 to 1.0, such Restricted Payment,
together with the aggregate amount of all other Restricted Payments
made by the Company and its Restricted Subsidiaries after the end of
the fiscal year of the Company then most recently ended for which
internal financial statements are available, is less than the sum,
without duplication, of:
(A) Available Cash Flow from Operations for the fiscal
year of the Company then most recently ended for which
internal financial statements are available, plus
(B) 100% of the aggregate net cash proceeds received by
the Company (including the fair market value of any Permitted
44
Business or assets used or useful in a Permitted Business to
the extent acquired in consideration of Equity Interests
(other than Disqualified Stock) of the Company) after the date
of the Indenture as a contribution to its common equity
capital or from the issue or sale of Equity Interests of the
Company (other than Disqualified Stock) or from the issue or
sale of convertible or exchangeable Disqualified Stock or
convertible or exchangeable debt securities of the Company
that have been converted into or exchanged for such Equity
Interests (other than Equity Interests (or Disqualified Stock
or debt securities) sold to a Subsidiary of the Company), plus
(C) to the extent that any Restricted Investment that was
made after the date of the Indenture is sold for cash or Cash
Equivalents or otherwise liquidated or repaid for cash, the
lesser of (i) the cash return of capital with respect to such
Restricted Investment, including without limitation repayment
of principal of any Restricted Investment constituting a loan
or advance (less the cost of disposition, if any) and (ii) the
initial amount of such Restricted Investment, plus
(D) to the extent that any Unrestricted Subsidiary of the
Company is redesignated as a Restricted Subsidiary after the
date of the Indenture, the lesser of (i) the fair market value
of the Company's Investment in such Subsidiary as of the date
of such redesignation or (ii) such fair market value as of the
date on which such Subsidiary was originally designated as an
Unrestricted Subsidiary (the amount determined at any time
pursuant to items (b), (c) and (d) being referred to as the
"INCREMENTAL FUNDS"); minus
(E) the aggregate amount of Restricted Payments previously
made in reliance on Incremental Funds pursuant to this clause
(1) or clause (2) below; or
(2) if the Fixed Charge Coverage Ratio for the Company's four
most recent fiscal quarters for which internal financial statements are
available is less than 1.75 to 1.0, such Restricted Payment, together
with the aggregate amount of all other Restricted Payments made by the
Company and its Restricted Subsidiaries during the period commencing on
the date such internal financial statements are available and ending on
the date the next quarterly internal financial statements are available
(such Restricted Payments for purposes of this clause (2) meaning only
distributions on the Company's common stock and loans and advances to
Williams and its Subsidiaries), is less than the sum, without
duplication, of:
45
(A) $50.0 million less the aggregate amount of all
Restricted Payments made by the Company pursuant to this
clause (2)(A) during the period ending on the last day
immediately preceding the date on which such internal
financial statements are available and beginning on the date
of the Indenture; plus
(B) the aggregate amount of Incremental Funds at such time
minus the aggregate amount of Restricted Payments previously
made in reliance on such Incremental Funds pursuant to this
clause (2) or clause (1) above.
(b) Notwithstanding the foregoing, the preceding provisions will not
prohibit:
(i) the payment of any dividend within 60 days after the date
of declaration of the dividend, if at the date of declaration the
dividend payment would have complied with the provisions of the
Indenture;
(ii) so long as no Default or Event of Default has occurred
and is continuing or would be caused thereby, the redemption,
repurchase, retirement, defeasance or other acquisition of any
subordinated Indebtedness of the Company or any Guarantor or of any
Equity Interests of the Company in exchange for, or out of the net cash
proceeds of, the substantially concurrent (a) contribution (other than
from a Subsidiary of the Company) to the equity capital of the Company
or (b) sale (other than to a Subsidiary of the Company) of, Equity
Interests of the Company (other than Disqualified Stock); provided that
the amount of any such net cash proceeds that are utilized for any such
redemption, repurchase, retirement, defeasance or other acquisition
will be excluded from clause (1) (B) of the preceding paragraph;
(iii) so long as no Default or Event of Default has occurred
and is continuing or would be caused thereby, the defeasance,
redemption, repurchase or other acquisition of subordinated
Indebtedness of the Company or any Guarantor with the net cash proceeds
from an incurrence of Permitted Refinancing Indebtedness;
(iv) the payment of any distribution or dividend by a
Restricted Subsidiary of the Company or to the holders of such
Restricted Subsidiary's Equity Interests on a pro rata basis;
(v) so long as no Default or Event of Default has occurred and
is continuing or would be caused thereby, dividends, distributions or
advances to Williams Group Affiliates, at times and in amounts equal to
amounts expended by Williams for the repurchase, redemption or
46
acquisition or retirement for value of any Equity Interests of Williams
held by any member of the Company's (or any of its Restricted
Subsidiaries') management pursuant to any management equity
subscription agreement, stock option agreement or similar agreement;
provided that the aggregate price paid for all such repurchased,
redeemed, acquired or retired Equity Interests may not exceed $2.0
million in any twelve-month period and provided further that if the
amount so paid in any calendar year is less than $2.0 million, such
shortfall may be used to so repurchase, redeem, acquire or retire
Equity Interests in either of the next two calendar years in addition
to the $2.0 million that may otherwise be paid in each such calendar
year; and
(vi) prior to the Credit Agreement Refinancing Date, the
ability (i) to pay, directly or indirectly, dividends or make any other
distributions in respect of its capital stock or pay any Debt or other
obligation owed to Williams or any of its Subsidiaries, or (ii) to make
loans or advances to Williams or any of its Subsidiaries.
(c) In computing the amount of Restricted Payments previously made for
purposes of the immediately preceding paragraph, Restricted Payments made under
clause (i) (but only if the declaration or such dividend or other distribution
has not been counted in a prior period), clause (iv) (but only to the extent of
amounts paid to Holders other than the Company or any of its Restricted
Subsidiaries), clause (v) and clause (vi) of this paragraph shall be included,
and Restricted Payments made under clauses (ii), (iii) and (iv) (except as noted
above) shall be excluded.
(d) The amount of all Restricted Payments (other than cash) will be the
fair market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The fair market value of any assets or securities that are required to be valued
by this covenant will be determined, in the case of amounts under $5.0 million,
by an Officer of the Company and, in the case of amounts over $5.0 million, by
the Board of Directors of the Company.
SECTION 3.06. Limitation on Incurrence of Indebtedness and Issuance of
Preferred Stock.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "INCUR") any Indebtedness (including Acquired
Debt), and the Company will not issue any Disqualified Stock and will not permit
any of its Restricted Subsidiaries to issue any shares of preferred stock;
provided, however,
47
that the Company and any Guarantor may incur Indebtedness (including Acquired
Debt) or the Company may issue Disqualified Stock, if the Fixed Charge Coverage
Ratio for the Company's most recently ended four full fiscal quarters for which
internal financial statements are available immediately preceding the date on
which such additional Indebtedness is incurred or such Disqualified Stock is
issued would have been at least 2.0 to 1, determined on a pro forma basis
(including a pro forma application of the net proceeds therefrom), as if the
additional Indebtedness had been incurred or Disqualified Stock had been issued,
as the case may be, at the beginning of such four-quarter period.
(b) Paragraph (a) of this covenant will not prohibit the incurrence of
any of the following items of Indebtedness (collectively, "PERMITTED DEBT"):
(i) the incurrence by the Company and any Guarantor of
additional Indebtedness and letters of credit under any Credit
Facilities to which the Company is a party in an aggregate principal
amount at any one time outstanding under this clause (i) (with letters
of credit being deemed to have a principal amount equal to the undrawn
face amount thereof) not to exceed $400 million;
(ii) the incurrence by the Company and its Restricted
Subsidiaries of the Existing Indebtedness;
(iii) the incurrence by the Company of Indebtedness
represented by the Notes issued and sold in this offering and any
Subsidiary Guarantees issued pursuant to the Indenture;
(iv) the incurrence by the Company and any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations,
mortgage financings or purchase money obligations, in each case,
incurred for the purpose of financing all or any part of the purchase
price or cost of construction or improvement of property, plant or
equipment used in the business of the Company or such Restricted
Subsidiary, in an aggregate principal amount not to exceed $5 million
at any time outstanding;
(v) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or
the net proceeds of which are used to refund, refinance or replace
Indebtedness (other than intercompany Indebtedness) that was permitted
by the Indenture to be incurred under paragraph (a) of this Section
3.06 or clauses (ii), (iii), (iv) or (v) of this paragraph (b) of this
Section 3.06;
(vi) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company
and any of its Restricted Subsidiaries; provided, however, that:
48
(A) if the Company or any Guarantor is the obligor on such
Indebtedness, such Indebtedness must be expressly subordinated
to the prior payment in full in cash of all Obligations with
respect to the Notes, in the case of the Company, or the
Subsidiary Guarantee, in the case of a Guarantor; and
(B) (i) any subsequent issuance or transfer of Equity
Interests that results in any such Indebtedness being held by
a Person other than the Company or a Restricted Subsidiary of
the Company and (ii) any sale or other transfer of any such
Indebtedness to a Person that is not either the Company or a
Restricted Subsidiary of the Company, will be deemed, in each
case, to constitute an incurrence of such Indebtedness by the
Company or such Restricted Subsidiary, as the case may be,
that was not permitted by this clause (vi);
(vii) the incurrence by the Company or any of its Subsidiaries
of Hedging Obligations;
(viii) the guarantee by any of the Guarantors of Indebtedness
of the Company or any Guarantor of the Company that was permitted to be
incurred by another provision of this Section 3.06;
(ix) Indebtedness in respect of bankers acceptances, letters
of credit and performance or surety bonds issued for the account of the
Company or any of its Restricted Subsidiaries in the ordinary course of
business in amounts and for the purposes customary in the Company's
industry, in each case only to the extent that such incurrence does not
result in the incurrence of any obligation to repay any borrowed money;
and
(x) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness in an aggregate principal
amount (or accreted value, as applicable) at any time outstanding,
including all Permitted Refinancing Indebtedness incurred to refund,
refinance or replace any Indebtedness incurred pursuant to this clause
(x), not to exceed $25 million.
(c) If any Non-Recourse Debt of an Unrestricted Subsidiary shall at any
time cease to constitute Non-Recourse Debt or such Unrestricted Subsidiary shall
be redesignated a Restricted Subsidiary, such event will be deemed to constitute
an incurrence of Indebtedness by a Restricted Subsidiary.
(d) For purposes of determining compliance with this Section:
49
(i) in the event that an item of proposed Indebtedness
(including Acquired Debt) meets the criteria of more than one of the
categories of Permitted Debt described in clauses (i) through (x) of
paragraph (b) of this Section 3.06, or is entitled to be incurred
pursuant to paragraph (a) of this Section, the Company will be
permitted to classify (or later classify or reclassify in whole or in
part in its sole discretion) such item of Indebtedness in any manner
that complies with this Section;
(ii) the accrual of interest, the accretion or amortization of
original issue discount, the payment of interest on any Indebtedness in
the form of additional Indebtedness with the same terms, and the
payment of dividends on Disqualified Stock in the form of additional
shares of the same class of Disqualified Stock will not be deemed to be
an incurrence of Indebtedness or an issuance of Disqualified Stock for
purposes of this Section, provided, in each such case, that the amount
thereof is included in the computation of Fixed Charges of the Company
as accrued; and
(iii) for the purposes of determining compliance with any
dollar- denominated restriction on the incurrence of Indebtedness
denominated in a foreign currency, the dollar-equivalent principal
amount of such Indebtedness incurred pursuant thereto shall be
calculated based on the relevant currency exchange rate in effect on
the date that such Indebtedness was incurred.
SECTION 3.07. Limitation on Liens. The Company will not, and will not
permit any of its Restricted Subsidiaries to, create, incur, assume or otherwise
cause or suffer to exist or become effective any Lien of any kind securing
Indebtedness, Attributable Debt or trade payables (other than Permitted Liens)
upon any of their property or assets, now owned or hereafter acquired, unless
all payments due under the Indenture and the Notes are secured on an equal and
ratable basis with the obligations so secured until such time as such
obligations are no longer secured by a Lien or, in the case of any obligation so
secured that is expressly subordinated to the Notes or any Subsidiary Guarantee,
as applicable, by a Lien prior to any Liens securing any and all obligations
thereby secured for so long as any such obligations shall be so secured.
SECTION 3.08. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit
any of its Restricted Subsidiaries to, directly or indirectly, create or permit
to exist or become effective any consensual encumbrance or restriction on the
ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions on its
Capital Stock to the Company or any of its Subsidiaries, or with
respect to any
50
other interest or participation in, or measured by, its profits, or pay
any indebtedness owed to the Company or any of its Restricted
Subsidiaries;
(ii) make loans or advances to the Company or any of its
Restricted Subsidiaries; or
(iii) transfer any of its properties or assets to the Company
or any of its Restricted Subsidiaries.
(b) Notwithstanding the foregoing, the preceding restrictions will not
apply to encumbrances or restrictions existing under or by reason of:
(i) agreements governing Existing Indebtedness and the Credit
Agreement as in effect on the date of the Indenture and any amendments,
modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings of those agreements, provided
that the amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacement or refinancings are no more
restrictive in any material respect, taken as a whole, with respect to
such dividend and other payment restrictions than those contained in
the respective agreements on the date of the Indenture, as determined
by the Board of Directors of the Company in their reasonable and good
faith judgment;
(ii) the Indenture, the Notes and the Subsidiary Guarantees;
(iii) applicable law;
(iv) any instrument governing Indebtedness or Capital Stock of
a Person acquired by the Company or any of its Restricted Subsidiaries
as in effect at the time of such acquisition (except to the extent such
Indebtedness or Capital Stock was incurred in connection with or in
contemplation of such acquisition), which encumbrance or restriction is
not applicable to any Person, or the properties or assets of any
Person, other than the Person, or the property or assets of the Person,
so acquired, provided that, in the case of Indebtedness, such
Indebtedness was permitted by the terms of the Indenture to be
incurred;
(v) customary non-assignment provisions in leases entered into
in the ordinary course of business and consistent with past practices;
(vi) Capital Lease Obligations, mortgage financings or
purchase money obligations for property acquired in the ordinary course
of business that impose restrictions on that property of the nature
described in clause (iii) of paragraph (a);
51
(vii) any agreement for the sale or other disposition of a
Restricted Subsidiary that restricts distributions by that Restricted
Subsidiary pending its sale or other disposition;
(viii) Permitted Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more restrictive in any material
respect, taken as a whole, than those contained in the agreements
governing the Indebtedness being refinanced;
(ix) Liens securing Indebtedness otherwise permitted to be
incurred under the provisions of Section 3.07 that limit the right of
the debtor to dispose of the assets subject to such Liens;
(x) provisions with respect to the disposition or distribution
of assets or property in joint venture agreements, assets sale
agreements, stock sale agreements and other similar agreements,
provided that such restrictions apply only to the assets or property
subject to such joint venture or similar agreement or to the assets or
property being sold, as the case may be; and
(xi) restrictions on cash or other deposits or net worth
imposed by customers under contracts entered into in the ordinary
course of business.
SECTION 3.09. Additional Interest. If, at any time and from time to
time after the date of the Indenture but prior to the earlier of (1) the Credit
Agreement Refinancing Date and (2) the Investment Grade Date, the Fixed Charge
Coverage Ratio for the Company's four most recent fiscal quarters for which
internal financial statements are available is less than 1.75 to 1.0, then, from
(A) the date of any such determination until (B) the earliest of (1) the next
date (if any) on which the Fixed Charge Coverage Ratio for the Company's four
most recent fiscal quarters then most recently ended for which internal
financial statements are available is equal to or greater than 1.75 to 1.0, (2)
the Credit Agreement Refinancing Date and (3) the Investment Grade Date, the
interest rate otherwise applicable to the Notes will be increased by a rate of
1.00% per annum. The Company shall give prompt written notice to the Trustee of
any such increase or decrease in the interest rate applicable to the Notes
pursuant to this Section 3.09.
SECTION 3.10. Guaranties by Restricted Subsidiaries. If the Company or
any of its Restricted Subsidiaries acquires or creates another Domestic
Restricted Subsidiary after the date of the Indenture, then that newly acquired
or created Domestic Restricted Subsidiary will become a Guarantor and execute a
Supplemental Indenture in the form of Exhibit B and deliver to the Trustee an
Opinion of Counsel to the effect that the Supplemental Indenture has been duly
52
authorized, executed and delivered by such Domestic Restricted Subsidiary and
constitutes a valid and binding obligation of such Domestic Restricted
Subsidiary, enforceable against such Domestic Restricted Subsidiary in
accordance with its terms (subject to customary exceptions), all within 10
Business Days of the date on which it was acquired or created; provided,
however, that the foregoing shall not apply to Subsidiaries that have properly
been designated as Unrestricted Subsidiaries in accordance with the Indenture
for so long as they continue to constitute Unrestricted Subsidiaries.
SECTION 3.11. Repurchase of Notes upon a Change of Control. (a)
Subject to paragraph (b) of this Section, not later than 30 days following a
Change of Control, the Company will make a Change of Control Offer to purchase
all outstanding Notes at a purchase price (the "CHANGE OF CONTROL PAYMENT")
equal to 101% of the principal amount plus accrued and unpaid interest and
Liquidated Damages, if any, to the date of purchase; provided that the Company
will not be required to make a Change of Control Offer upon a Change of Control
if a third party makes the Change of Control Offer in the manner, at the times
and otherwise in compliance with the requirements set forth in the Indenture
applicable to a Change of Control Offer made by the Company and purchases all
Notes properly tendered and not withdrawn under the Change of Control Offer.
(b) Prior to complying with any of the provisions of this Section, but
in any event within 30 days following a Change of Control, if the Company or any
of its Williams Group Affiliates is subject to any agreement evidencing
Indebtedness (or commitments to extend Indebtedness) that prohibits prepayment
or repurchase of the Notes pursuant to a Change of Control Offer, the Company
will either repay, or cause its Williams Group Affiliates to repay, all such
outstanding Indebtedness of the Company and its Williams Group Affiliates (and
terminate all commitments to extend such Indebtedness), or obtain the requisite
consents, if any, under all agreements governing such Indebtedness or
commitments to permit the repurchase of Notes required by paragraph (a) of this
Section. The Company shall first comply with this paragraph (b) before it shall
be required to make a Change of Control Offer or to repurchase Notes pursuant to
paragraph (a). The Company's failure to comply with paragraph (b) may (with
notice and lapse of time) constitute an Event of Default under Section
5.01(a)(iv) but shall not constitute an Event of Default under Section
5.01(a)(iii).
(c) The Company will publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control Payment
Date.
SECTION 3.12. Limitation on Asset Sales. (a) The Company will not, and
will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale
unless:
53
(i) the Company (or the Restricted Subsidiary, as the case may
be) receives consideration at the time of the Asset Sale at least equal
to the fair market value of the assets or Equity Interests issued or
sold or otherwise disposed of;
(ii) the fair market value is determined by (a) an executive
officer of the Company if the value is less than $10 million or (b) the
Company's Board of Directors if the value is $10 million or more, as
evidenced by a resolution of such Board of Directors;
(iii) at least 75% of the consideration received in the Asset
Sale by the Company or such Restricted Subsidiary is in the form of
cash or Cash Equivalents. For purposes of this provision, each of the
following will be deemed to be cash:
(A) any liabilities, as shown on the Company's or such
Restricted Subsidiary's most recent balance sheet, of the
Company or any Restricted Subsidiary (other than contingent
liabilities and liabilities that are by their terms
subordinated to the Notes or any Subsidiary Guarantee) that
are assumed by the transferee of any such assets pursuant to a
customary novation agreement that releases the Company or such
Subsidiary from further liability;
(B) any securities, notes or other obligations received by
the Company or any such Restricted Subsidiary from such
transferee that are contemporaneously, subject to ordinary
settlement periods, converted by the Company or such
Subsidiary into cash, to the extent of the cash received in
that conversion; and
(C) property or assets received as consideration for such
Asset Sale that would otherwise constitute a permitted
application of Net Proceeds (or other cash in such amount)
under clauses (ii), (iii) or (iv) under paragraph (b) of this
Section.
(b) Within 365 days after the receipt of any Net Proceeds from an Asset
Sale, the Company may apply an amount of cash equal to the amount of such Net
Proceeds at its option:
(i) to repay or prepay senior Indebtedness of the Company
and/or the Guarantors under a Credit Facility;
(ii) to acquire all or substantially all of the assets of, or
a majority of the Voting Stock of, another Permitted Business;
(iii) to make a capital expenditure; or
54
(iv) to acquire other long-term assets that are used or useful
in a Permitted Business.
(c) Subject to paragraph (e) of this Section, to the extent that the
Company does not apply an amount of cash equal to the amount of such Net
Proceeds of any Asset Sale during such period as provided in paragraph (b) of
this Section, the amount not so applied (excluding Net Proceeds of any Asset
Sale of the Gray's Harbor lateral project and excluding Net Proceeds of any
Asset Sale to the extent of the amount of acquisitions or capital expenditures
described under clauses (ii), (iii) or (iv) under paragraph (b) of this Section
made during the 365 days preceding the receipt of such Net Proceeds (other than
any portion of such amount that was funded with Net Proceeds of any other Asset
Sale or that has been allocated to exclude Net Proceeds of any other Asset Sales
under this provision)) will constitute "EXCESS PROCEEDS." When the aggregate
amount of Excess Proceeds exceeds $20.0 million, the Company will make an Asset
Sale Offer to all Holders of Notes and all holders of other Indebtedness that is
pari passu with the Notes containing provisions similar to those set forth in
the Indenture with respect to offers to purchase or redeem with the proceeds of
sales of assets to purchase the maximum principal amount of Notes and such other
pari passu Indebtedness that may be purchased out of the Excess Proceeds (each
such offer an "ASSET SALE OFFER"). The offer price in any Asset Sale Offer will
be equal to 100% of the principal amount plus accrued and unpaid interest and
Liquidated Damages, if any, to the date of purchase, and will be payable in
cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer,
the Company may use those Excess Proceeds for any purpose not otherwise
prohibited by the Indenture. If the aggregate principal amount of Notes and
other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the
amount of Excess Proceeds, the Trustee will select the Notes and such other pari
passu Indebtedness to be purchased on a pro rata basis. Upon completion of each
Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(d) The Company will comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the
extent those laws and regulations are applicable in connection with each
repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with the Asset Sale
provisions of the Indenture, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached its
obligations under this Section 3.12 by virtue of such conflict.
(e) Prior to making any Asset Sale Offer, but in any event within 30
days following the date on which such Asset Sale Offer would otherwise be
required, if the Company or any of its Williams Group Affiliates is subject to
any agreement evidencing Indebtedness (or commitments to extend Indebtedness)
that prohibits
55
prepayment or repurchase of the Notes pursuant to an Asset Sale Offer, the
Company will either repay, or cause its Williams Group Affiliates to repay, all
such outstanding Indebtedness of the Company and its Williams Group Affiliates
(and terminate all commitments to extend such Indebtedness), or obtain the
requisite consents, if any, under all agreements governing such Indebtedness or
commitments to permit the repurchase of Notes required by this Section 3.12. The
Company shall first comply with this paragraph (e) before it shall be required
to make an Asset Sale Offer or to repurchase Notes pursuant to this Section. The
Company's failure to comply with the covenant described in this paragraph may
(with notice and lapse of time) constitute an Event of Default under 5.01(a)(iv)
but shall not constitute an Event of Default under Section 5.01(a)(iii).
SECTION 3.13. Limitation on Transactions with Affiliates. (a) The
Company will not, and will not permit any of its Restricted Subsidiaries to,
make any payment to, or sell, lease, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets from, or enter into
or make or amend any transaction, contract, agreement, understanding, loan,
advance or guarantee with, or for the benefit of, any Affiliate (each, an
"AFFILIATE TRANSACTION"), unless:
(i) the Affiliate Transaction is on terms that are no less
favorable to the Company or the relevant Restricted Subsidiary than
those that would have been obtained in a comparable transaction by the
Company or such Restricted Subsidiary with an unrelated Person; and
(ii) the Company delivers to the Trustee:
(A) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate
consideration in excess of $10 million, a resolution of the
Board of Directors of the Company set forth in an Officers'
Certificate certifying that such Affiliate Transaction
complies with this Section 3.13 and that such Affiliate
Transaction has been approved by a majority of the
disinterested members of the Board of Directors of the
Company; and
(B) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate
consideration in excess of $25 million, an opinion as to the
fairness to the Company of such Affiliate Transaction from a
financial point of view issued by an accounting, appraisal or
investment banking firm of national standing.
(b) The following items will not be deemed to be Affiliate Transactions
and, therefore, will not be subject to the provisions of the prior paragraph:
56
(i) any employment agreement on customary terms entered into
by the Company or any of its Restricted Subsidiaries in the ordinary
course of business of the Company or such Restricted Subsidiary;
(ii) transactions between or among the Company and/or its
Restricted Subsidiaries;
(iii) transactions with a Person that is an Affiliate of the
Company solely because the Company owns an Equity Interest in, or
controls, such Person;
(iv) payment of reasonable directors fees and provision to
directors, officers and employees of customary indemnities and
customary benefits pursuant to employee benefit plans and similar
arrangements;
(v) sales of Equity Interests (other than Disqualified Stock)
to Affiliates of the Company;
(vi) (A) corporate sharing agreements with the Company's
Williams Group Affiliates and their subsidiaries with respect to tax
sharing and general overhead and other administrative matters and (B)
any other intercompany arrangements disclosed or described in the
Company's report on Form 10-K for the fiscal year ended December 31,
2001 (including the exhibits thereto) or the Offering Memorandum, all
as in effect on the date of the Indenture, and any amendment or
replacement of any of the foregoing so long as such amendment or
replacement agreement is not less advantageous to the Company in any
material respect than the agreement so amended or replaced, as such
agreement was in effect on the date of the Indenture;
(vii) transactions entered into as part of a Permitted
Receivables Financing; and
(viii) Restricted Payments that are permitted by the
provisions of Section 3.05.
SECTION 3.14. Designation of Restricted and Unrestricted Subsidiaries.
The Board of Directors of the Company may designate any Restricted Subsidiary to
be an Unrestricted Subsidiary if that designation would not cause a Default;
provided that in no event will the businesses operated by the Company on the
date of this Indenture be transferred to or held by an Unrestricted Subsidiary.
If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the
aggregate fair market value of all outstanding Investments owned by the Company
and its Restricted Subsidiaries in the Subsidiary properly designated will be
deemed to be
57
an Investment made as of the time of the designation and will reduce the amount
available for Restricted Payments under Section 3.05(a) or Permitted
Investments, as determined by the Company. That designation will only be
permitted if the Investment would be permitted at that time and if the
Restricted Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary. The Board of Directors of the Company may redesignate any
Unrestricted Subsidiary to be a Restricted Subsidiary if the redesignation would
not cause a Default.
SECTION 3.15. Limitation on Sale and Leaseback Transactions. The
Company will not, and will not permit any of its Restricted Subsidiaries to,
enter into any Sale and Leaseback Transaction; provided that the Company or any
Guarantor may enter into a Sale and Leaseback Transaction if:
(i) the Company or that Guarantor, as applicable, could have
incurred Indebtedness in an amount equal to the Attributable Debt
relating to such Sale and Leaseback Transaction under the Fixed Charge
Coverage Ratio test in Section 3.06(a);
(ii) immediately after giving effect to such Sale and
Leaseback Transaction, the aggregate outstanding Attributable Debt with
respect to all Sale and Leaseback Transactions by the Company and the
Guarantors does not exceed 10% of the Consolidated Net Tangible Assets
of the Company; and
(iii) the gross cash proceeds of that Sale and Leaseback
Transaction are at least equal to the fair market value, as determined
in good faith by the Board of Directors of the Company and set forth in
an Officers' Certificate delivered to the Trustee, of the property that
is the subject of that Sale and Leaseback Transaction;
provided, however, that the foregoing clauses (i) and (ii) shall no longer be
applicable after any Investment Grade Date.
SECTION 3.16. Business Activities. The Company will not, and will not
permit any Restricted Subsidiary to, engage in any business other than Permitted
Businesses, except to such extent as would not be material to the Company and
its Subsidiaries taken as a whole.
SECTION 3.17. Payments for Consent. The Company will not, and will not
permit any of its Subsidiaries to, directly or indirectly, pay or cause to be
paid any consideration to or for the benefit of any Holder of Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of the Indenture or the Notes unless such consideration is offered to be paid
and is paid to all Holders of the Notes that consent, waive or agree to amend in
the time frame
58
set forth in the solicitation documents relating to such consent, waiver or
agreement.
ARTICLE 4
CONSOLIDATION, MERGER AND SALE
SECTION 4.01. Limitation on Mergers and Consolidations. (a) The
Company may not, directly or indirectly: (1) consolidate or merge with or into
another Person (whether or not the Company is the surviving Person); or (2)
sell, assign, transfer, convey or otherwise dispose of all or substantially all
of the properties or assets of the Company and its Restricted Subsidiaries taken
as a whole, in one or more related transactions, to another Person unless:
(i) either: (a) the Company is the surviving Person; or (b)
the Person formed by or surviving any such consolidation or merger (if
other than the Company) or to which such sale, assignment, transfer,
conveyance or other disposition has been made is a Person organized or
existing under the laws of the United States, any state of the United
States or the District of Columbia;
(ii) the Person formed by or surviving any such consolidation
or merger (if other than the Company) or the Person to which such sale,
assignment, transfer, conveyance or other disposition has been made
expressly assumes by Supplemental Indenture all the obligations of the
Company under the Notes, this Indenture and any Registration Rights
Agreement and delivers to the Trustee an Opinion of Counsel to the
effect that the Supplemental Indenture has been duly authorized,
executed and delivered by such Person and constitutes a valid and
binding obligation of such Person, enforceable against such Person in
accordance with its terms (subject to customary exceptions);
(iii) immediately after such transaction no Default or Event
of Default exists; and
(iv) the Company or the Person formed by or surviving any such
consolidation or merger (if other than the Company), or to which such
sale, assignment, transfer, conveyance or other disposition has been
made will, on the date of such transaction after giving pro forma
effect thereto and any related financing transactions as if the same
had occurred at the beginning of the applicable four-quarter period, be
permitted to incur at least $1.00 of additional Indebtedness pursuant
to the Fixed Charge Coverage Ratio test set forth in Section 3.06(a);
provided, however, that
59
this clause (iv) shall no longer be applicable from and after any
Investment Grade Date.
(b) In addition, the Company may not, directly or indirectly, lease all
or substantially all of its properties or assets, in one or more related
transactions, to any other Person. Clause (iv) under paragraph (a) of this
Section will not apply to a sale, assignment, transfer, conveyance or other
disposition of assets between or among the Company and any of its Restricted
Subsidiaries. Without limitation of the foregoing, in no event shall the
Company, directly or indirectly, (1) consolidate or merge with or into Williams
or any of the Williams Group Affiliates (whether or not the Company is the
surviving Person) or (2) sell, assign, transfer, convey or otherwise dispose of
all or substantially all of the properties or assets of the Company and its
Restricted Subsidiaries taken as a whole, in one or more related transactions,
to Williams or any of the Williams Group Affiliates (other than mergers or
transactions otherwise permitted by this Section 4.01 with (a) Williams Group
Affiliates engaged in no businesses other than being principally engaged in
owning and operating regulated interstate natural gas pipeline systems and any
businesses incidental and reasonably related thereto, including facilities for
mainline transmission and gas storage ("PIPELINE BUSINESS") or (b) a holding
company of the Company engaged in no businesses other than Pipeline Business and
having no Subsidiaries other than Subsidiaries engaged in no businesses other
than Pipeline Business, and in the case of (a) or (b), only if at the time of
such merger or transaction, the Company and such Williams Group Affiliate or
holding company each have an Investment Grade Rating from Moody's and S&P and
the surviving Person will have an Investment Grade Rating from Moody's and S&P).
SECTION 4.02. Successors Substituted. In case of any such
consolidation, merger, sale, lease or conveyance, and following such an
assumption by the successor Person, such successor Person shall succeed to and
be substituted for the Company, with the same effect as if it had been named
herein. Such successor Person may cause to be signed, and may issue either in
its own name or in the name of the Company prior to such succession any or all
of the Notes issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of such successor
Person, instead of the Company, and subject to all the terms, conditions and
limitations in the Indenture prescribed, the Trustee shall authenticate and
shall deliver any Notes which previously shall have been signed and delivered by
the officers of the Company to the Trustee for authentication, and any Notes
which such successor Person thereafter shall cause to be signed and delivered to
the Trustee for that purpose. All of the Notes so issued shall in all respects
have the same legal rank and benefit under the Indenture as the Notes
theretofore or thereafter issued in accordance with the terms of the Indenture
as though all of such Notes had been issued at the date of the execution hereof.
60
In case of any such consolidation, merger, sale, lease or conveyance
such changes in phrasing and form (but not in substance) may be made in the
Notes thereafter to be issued as may be appropriate. In the event of any such
sale or conveyance (other than a conveyance by way of lease) the Company or any
successor Person which shall theretofore have become such in the manner
described in this Article shall be discharged from all obligations and covenants
under the Indenture, and the Notes and may be liquidated and dissolved.
SECTION 4.03. Consolidation, Merger or Sale of Assets by a Guarantor.
(a) No Guarantor may:
(i) consolidate with or merge with or into any Person, or
(ii) sell, convey, transfer or dispose of, all or
substantially all its assets as an entirety or substantially as an
entirety, in one transaction or a series of related transactions, to
any Person, or
(iii) permit any Person to merge with or into the Guarantor
unless
(A) immediately after giving effect to the transaction, no
Default or Event of Default exists; and
(B) either:
(b) (i) the Person acquiring the property in any such sale or
disposition or the Person formed by or surviving any such consolidation or
merger (if other than such Guarantor) assumes all the obligations of that
Guarantor under the Indenture, its Subsidiary Guarantee and any Registration
Rights Agreement pursuant to a Supplemental Indenture satisfactory to the
Trustee; or
(ii) in connection with any sale or other disposition of all
or substantially all of the assets of the Guarantor (including by way
of merger or consolidation) to a Person that is not (either before or
after giving effect to such transaction) a Subsidiary of the Company,
if the sale or other disposition complies with Section 3.12.
ARTICLE 5
DEFAULTS AND REMEDIES
SECTION 5.01. Events of Default. (a) Each of the following is an Event
of Default:
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(i) default for 30 days in the payment when due of interest
on, or Liquidated Damages with respect to, the Notes;
(ii) default in payment when due of the principal of, or
premium, if any, on the Notes;
(iii) failure by the Company to purchase Notes tendered
pursuant to an offer described under Sections 3.11 and 3.12 in
accordance with the terms thereof, or failure of the Company or any
Guarantor to comply with the provisions of Article IV;
(iv) failure by the Company or any of its Restricted
Subsidiaries for 60 days after notice, from the Trustee or the Holders
of at least 25% of the outstanding principal amount of the Notes, to
comply with any of the other agreements in the Indenture;
(v) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its
Restricted Subsidiaries (or the payment of which is guaranteed by the
Company or any of its Restricted Subsidiaries) whether such
Indebtedness or guarantee now exists, or is created after the date of
the Indenture, if that default:
(A) is caused by a failure of the Company or any
Subsidiary of the Company to pay principal of such
Indebtedness prior to the expiration of the grace period
provided in such Indebtedness on the date of such default (a
"PAYMENT DEFAULT"); or
(B) results in the acceleration of such Indebtedness prior
to its express maturity,
and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness under
which there has been a Payment Default or the maturity of which has
been so accelerated, aggregates $15 million or more;
(vi) failure by the Company or any of its Subsidiaries to pay
final judgments aggregating in excess of $15 million, which judgments
are not paid, discharged or stayed for a period of 60 days;
(vii) except as permitted by the Indenture, any Subsidiary
Guarantee shall be held in any judicial proceeding to be unenforceable
or invalid or shall cease for any reason to be in full force and effect
or any
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Guarantor, or any Person acting on behalf of any Guarantor, shall deny
or disaffirm its obligations under its Subsidiary Guarantee; and
(viii) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the Company
or any of its Restricted Subsidiaries in an involuntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or
order adjudging the Company or any of its Restricted Subsidiaries a
bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company or any of its Restricted Subsidiaries under any
applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official
of the Company or any of its Restricted Subsidiaries or of any
substantial part of the property of the Company or any of its
Restricted Subsidiaries, or ordering the winding up or liquidation of
the affairs of the Company or any of its Restricted Subsidiaries, and
the continuance of any such decree or order for relief or any such
other decree or order unstayed and in effect for a period of 90
consecutive days; or
(ix) the commencement by the Company or any of its Restricted
Subsidiaries of a voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or
order for relief in respect of the Company or any of its Restricted
Subsidiaries in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or any of its Restricted Subsidiaries or of any
substantial part of the property of the Company or any of its
Restricted Subsidiaries, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking
of corporate action by the Company or any of its Restricted
Subsidiaries in furtherance of any such action.
(b) The Trustee shall not be deemed to know of a Default or Event of
Default unless a Responsible Officer at the Corporate Trust Office of the
Trustee has actual knowledge of such Default or Event of Default or the Trustee
receives written notice at the Corporate Trust Office of the Trustee of such
Default or
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Event of Default with specific reference to such Default or Event of Default and
the Notes and this Indenture.
(c) When a Default is cured, or when an Event of Default is deemed
cured pursuant to Section 5.04, such Default, or Event of Default, as the case
may be, ceases.
SECTION 5.02. Acceleration. If an Event of Default (other than an
Event of Default specified in clause (viii) or (ix) of Section 5.01(a) hereof
with respect to the Company, any Subsidiary that is a Significant Subsidiary or
any group of Subsidiaries that, taken together, would constitute a Significant
Subsidiary) occurs and is continuing, the Trustee by notice to the Company, or
the Holders of at least 25% in principal amount of the then outstanding Notes by
notice to the Company and the Trustee, may declare the principal of and premium,
if any, and accrued and unpaid interest and Liquidated Damages, if any, on all
then outstanding Notes to be due and payable immediately. Upon any such
declaration the amounts due and payable on the Notes, as determined in
accordance with the next succeeding paragraph, shall be due and payable
immediately. If an Event of Default specified in clause (viii) or (ix) of
Section 5.01(a) with respect to the Company, any Subsidiary that is a
Significant Subsidiary or any group of Subsidiaries that, taken together, would
constitute a Significant Subsidiary, occurs, the principal of and premium, if
any, and accrued and unpaid interest and Liquidated Damages, if any, on all
Notes then outstanding shall ipso facto become and be immediately due and
payable without any declaration, notice or other act on the part of the Trustee
or any Holder.
At any time after such a declaration of acceleration with respect to
the Notes has been made and before a judgment for payment of the money due has
been obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority in principal amount of the outstanding Notes, by written
notice to the Company and the Trustee, may rescind and annul such declaration
and its consequences if:
(i) all existing Events of Default, other than the nonpayment
of the principal of, premium, if any, and interest on the Notes that
have become due solely by the declaration of acceleration, have been
cured or waived, and
(ii) the rescission would not conflict with any judgment or
decree of a court of competent jurisdiction.
No such rescission shall affect any subsequent Default or impair any
right consequent thereon.
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If the maturity of the Notes is accelerated pursuant to this Section
5.02, 100% of the principal amount thereof shall become due and payable plus
premium, if any, and accrued interest and Liquidated Damages, if any, to the
date of payment.
In the case of any Event of Default occurring by reason of any willful
action or inaction taken or not taken by or on behalf of the Company with the
intention of avoiding payment of the premium (including, in the case of any such
Event of Default prior to March 1, 2007, payment of the Make-Whole Price) that
the Company would have had to pay if the Company then had elected to redeem the
Notes pursuant to the optional redemption provisions of the Indenture, an
equivalent premium (or, in the case of any such Event of Default prior to March
1, 2007, the relevant Make-Whole Amount that would apply at such time if the
Notes were optionally redeemed at the Make-Whole Price) will also become and be
immediately due and payable to the extent permitted by law upon the acceleration
of the Notes.
SECTION 5.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of, or premium, if any, Liquidated Damages, if any, or interest on
the Notes or to enforce the performance of any provision of the Notes, the
Indenture or any Registration Rights Agreement.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. All remedies are cumulative
to the extent permitted by law.
SECTION 5.04. Waiver of Existing Defaults. Subject to Sections 5.07
and 8.02 hereof, the Holders of a majority in aggregate principal amount of the
outstanding Notes by notice to the Trustee may waive an existing Default or
Event of Default and its consequences (including waivers obtained in connection
with a purchase of, or tender offer or exchange offer for, the Notes or a
solicitation of consents in respect of the Notes), except (1) a continuing
Default or Event of Default in the payment of interest or Liquidated Damages on,
or the principal of, the Notes or (2) a continuing Default in respect of a
provision that under Section 8.02 hereof cannot be amended without the consent
of each Holder affected. Upon any such waiver, such Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured for every purpose of the Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
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SECTION 5.05. Control by Majority. The Holders of a majority in
principal amount of the Notes then outstanding may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it hereunder. However, the Trustee
may refuse to follow any direction that conflicts with applicable law or the
Indenture, that the Trustee determines may be unduly prejudicial to the rights
of other Holders, or that may involve the Trustee in personal liability;
provided, however, that the Trustee may take any other action deemed proper by
the Trustee that is not inconsistent with such direction. Prior to taking any
action hereunder, the Trustee shall be entitled to indemnification satisfactory
to it in its sole discretion against all losses and expenses caused by taking or
not taking such action.
SECTION 5.06. Limitations on Suits. Subject to Section 5.07 hereof, a
Holder may pursue a remedy with respect to the Indenture or the Notes only if:
(i) such Holder gives to the Trustee written notice of a
continuing Event of Default;
(ii) the Holders of at least 25% in principal amount of the
Notes then outstanding make a written request to the Trustee to pursue
the remedy;
(iii) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(iv) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(v) during such 60-day period the Holders of a majority in
principal amount of the Notes do not give the Trustee a direction
inconsistent with the request.
A Holder may not use the Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over another Holder.
SECTION 5.07. Rights of Holders to Receive Payment. Notwithstanding
any other provision of the Indenture, the right of any Holder of a Note to
receive payment of principal of, and premium, if any, and interest on the Note,
on or after the respective due dates expressed in the Note, or to bring suit for
the enforcement of any such payment on or after such respective dates, is
absolute and unconditional and shall not be impaired or affected without the
consent of such Holder.
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SECTION 5.08. Collection Suit by Trustee. If an Event of Default
specified in clause (i) or (ii) of Section 5.01 hereof occurs and is continuing,
the Trustee is authorized to recover judgment in its own name and as trustee of
an express trust against the Company for the amount of principal and premium, if
any, and interest (and Liquidated Damages, if any) remaining unpaid on the
Notes, and interest on overdue principal, premium, if any, and Liquidated
Damages, if any and, to the extent lawful, interest on overdue interest (and
Liquidated Damages, if any), and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
SECTION 5.09. Trustee May File Proofs of Claim. The Trustee is
authorized to file such proofs of claim and other papers or documents and to
take such actions, including participating as a member, voting or otherwise, of
any committee of creditors, as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Holders allowed in any judicial proceedings relative to the Company or its
creditors or properties and shall be entitled and empowered to collect, receive
and distribute any money or other property payable or deliverable on any such
claims and any Custodian in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 6.07 hereof. To the extent that
the payment of any such compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 6.07 hereof out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a lien on, and shall be
paid out of, any and all distributions, dividends, money, securities and other
properties which the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 5.10. Priorities. If the Trustee collects any money pursuant
to this Article, it shall pay out the money in the following order:
First: to the Trustee (including any Predecessor Trustee) for amounts
due under Section 6.07 hereof;
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Second: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, Liquidated Damages, if any, and interest ratably,
without preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium, if any, Liquidated Damages, if any,
and interest, respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix a record
date and payment date for any payment to Holders pursuant to this Article.
SECTION 5.11. Undertaking for Costs. In any suit for the enforcement
of any right or remedy under the Indenture or in any suit against the Trustee
for any action taken or omitted by it as a trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to
pay the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 5.07 hereof, or a
suit by a Holder or Holders of more than 10% in principal amount of the Notes
then outstanding.
ARTICLE 6
TRUSTEE
SECTION 6.01. Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise such of the rights and
powers vested in it by the Indenture, and use the same degree of care and skill
in such exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee need perform only those duties that are
specifically set forth in the Indenture and no others, and no implied
covenants or obligations shall be read into the Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
the Indenture. However, with respect to certificates or opinions
specifically required by
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any provision hereof to be furnished to it, the Trustee shall examine
such certificates and opinions to determine whether or not, on their
face, they appear to conform substantially to the requirements of the
Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraphs (b)
or (e) of this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 5.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
the Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), (c) and (e) of this Section.
(e) No provision of the Indenture shall require the Trustee to expend
or risk its own funds or incur any liability.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law. All money received by the Trustee shall, until applied
as herein provided, be held in trust for the payment of the principal of, and
premium if any, and interest on the Notes.
SECTION 6.02. Rights of Trustee. (a) The Trustee may rely conclusively
and shall be fully protected in acting or refraining from acting on any document
(whether in its original or facsimile form) believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel of its own selection and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
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(c) The Trustee may act through agents or attorneys and shall not be
responsible for the misconduct or negligence of any agent or attorney appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers conferred upon it by the Indenture.
(e) Unless otherwise specifically provided in the Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee is not required to give any bond or surety with respect
to the performance of its duties or the exercise of its powers under the
Indenture.
(g) The Trustee's immunities and protections from liability and its
right to indemnification in connection with the performance of its duties under
the Indenture shall extend and be enforceable by the Trustee in each of its
capacities hereunder and shall extend to the Trustee's officers, directors,
agents, attorneys and employees. Such immunities and protections and right to
indemnity, together with the Trustee's right to compensation, shall survive the
Trustee's resignation or removal, the discharge of the Indenture and final
payment of the Notes.
(h) The permissive right of the Trustee to take the actions permitted
by the Indenture shall not be construed as an obligation or duty to do so.
(i) Except for information provided by the Trustee concerning the
Trustee, the Trustee shall have no responsibility for any information in any
offering memorandum or other disclosure material distributed with respect to the
Notes, and the Trustee shall have no responsibility for compliance with any
state or federal securities laws in connection with the Notes.
(j) The Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to the Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
(k) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by the Indenture at the request or direction of
any of the Holders pursuant to the Indenture, unless such Holders shall have
offered to the Trustee security or indemnity satisfactory to the Trustee against
the costs,
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expenses and liabilities which might be incurred by it in compliance with such
request or direction.
(l) The Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts.
SECTION 6.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Company or any of its Affiliates with the same
rights it would have if it were not Trustee. Any Agent may do the same with like
rights. However, the Trustee is subject to Sections 6.10 and 6.11 hereof.
SECTION 6.04. Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of the Indenture or the Notes, it
shall not be accountable for the Company's use of the proceeds from the Notes or
any money paid to the Company or upon the Company's direction under any
provision hereof, it shall not be responsible for the use or application of any
money received by any Paying Agent other than the Trustee and it shall not be
responsible for any statement or recital herein or any statement in the Notes
other than its certificate of authentication.
SECTION 6.05. Notice of Defaults. If a Default or Event of Default
occurs and is continuing and it is actually known to a Responsible Officer of
the Trustee, the Trustee shall mail to Holders a notice of the Default or Event
of Default within 90 days after it occurs. Except in the case of a Default or
Event of Default in payment of principal of, or premium, if any, Liquidated
Damages, if any, or interest on any Note, the Trustee may withhold the notice if
and so long as a committee of its Responsible Officers in good faith determines
that withholding the notice is in the interests of Holders.
SECTION 6.06. Reports by Trustee to Holders. On or before May 15 of
each year, beginning with May 15, 2004, the Trustee shall mail to Holders a
brief report dated as of a date convenient to the Trustee no more than 60 nor
less than 45 days prior thereto, that complies with TIA Section 313(a);
provided, however, that if no event described in TIA Section 313(a) has occurred
within the twelve months preceding the reporting date, no report need be
transmitted. The Trustee also shall comply with TIA Section 313(b). The Trustee
shall also transmit by mail all reports as required by TIA Sections 313(c) and
313(d).
A copy of each report at the time of its mailing to Holders shall be
filed with the Commission and each securities exchange, if any, on which the
Notes are listed. The Company shall notify the Trustee if and when the Notes are
listed on any stock exchange or delisted therefrom.
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SECTION 6.07. Compensation and Indemnity. The Company agrees to pay to
the Trustee from time to time such compensation as agreed to by the Company and
the Trustee, for its acceptance of the Indenture and its services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company agrees to reimburse the Trustee upon
request for all reasonable disbursements, advances and expenses incurred by it.
Such expenses shall include the reasonable compensation, disbursements and
expenses of the Trustee's agents and counsel.
The Company agrees to fully indemnify the Trustee or any predecessor
Trustee and their agents for and to hold them harmless against any and all loss,
liability damage, claims, or expense (including taxes, other than taxes based
upon, measured by or determined by the income of the Trustee) incurred by it
arising out of or in connection with the acceptance or administration of its
duties under the Indenture, including the costs and expenses of defending itself
against any claim (whether asserted aby the Company, any Holder or any other
Person), except as set forth in the next paragraph. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. The Company shall
defend the claim and the Trustee shall cooperate in the defense. The Trustee may
have separate counsel, and the Company shall pay the reasonable fees and
expenses of such counsel. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld.
The Company shall not be obligated to reimburse any expense or
indemnify against any loss or liability incurred by the Trustee through its own
negligence or willful misconduct.
To secure the payment obligations of the Company in this Section 6.07,
the Trustee shall have a lien prior to the Notes on all money or property held
or collected by the Trustee, except that held in trust to pay principal of, and
premium, if any, and interest and Liquidated Damages, if any, on particular
Notes. Such lien shall survive the satisfaction and discharge of the Indenture,
the resignation or removal of the Trustee and the termination of this Indenture
for any reason.
Without prejudice to its rights hereunder, when the Trustee incurs
expenses or renders services after an Event of Default specified in Section
5.01(a)(viii) or (ix) hereof occurs, the expenses and the compensation for the
services are intended to constitute expenses of administration under any
Bankruptcy Law.
SECTION 6.08. Replacement of Trustee. A resignation or removal of the
Trustee and appointment of a successor Trustee shall become effective only upon
the successor Trustee's acceptance of appointment as provided in this Section
6.08.
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The Trustee may resign and be discharged from the trust hereby created
by so notifying the Company. The Holders of a majority in principal amount of
the then outstanding Notes may remove the Trustee by so notifying the Trustee
and the Company. The Company may remove the Trustee if:
(i) the Trustee fails to comply with Section 6.10 hereof;
(ii) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(iii) a Custodian or public officer takes charge of the
Trustee or its property; or
(iv) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the Notes then outstanding may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the Notes then outstanding may
petition (at the expense of the Company) any court of competent jurisdiction at
the expense of the Company for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 6.10 hereof, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under the Indenture. The successor Trustee shall mail a notice of its succession
to Holders. The retiring Trustee shall promptly transfer all property held by it
as Trustee to the successor Trustee, subject to the lien provided for in Section
6.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section
6.08 hereof, the obligations of the Company under Section 6.07 hereof shall
continue for the benefit of the retiring Trustee.
SECTION 6.09. Successor Trustee by Merger, Etc. Subject to Section
6.10 hereof, if the Trustee consolidates, merges or converts into, or transfers
all or
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substantially all of its corporate trust business to, another Person, the
successor Person without any further act shall be the successor Trustee.
In case any Notes shall have been authenticated, but not delivered, by
the Trustee then in office, any successor by merger, conversion or consolidation
to such authenticating Trustee may adopt such authentication and deliver the
Notes so authenticated; and in case at that time any of the Notes shall not have
been authenticated, any successor to the Trustee may authenticate such Notes
either in the name of any predecessor hereunder or in the name of the successor
to the Trustee; and in all such cases such certificates shall have the full
force which it is anywhere in the Notes or in the Indenture provided that the
certificate of the Trustee shall have.
SECTION 6.10. Eligibility; Disqualification. There shall at all times
be a Trustee hereunder which shall be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia and authorized under such laws to exercise corporate trust
power, shall be subject to supervision or examination by Federal or State (or
the District of Columbia) authority and shall have, or be a Subsidiary of a bank
or bank holding company having, a combined capital and surplus of at least $50
million as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Sections 310(a)(1), 310(a)(2) and 310(a)(5). The Trustee is
subject to and shall comply with the provisions of TIA Section 310(b) during the
period of time required by the Indenture. For purposes of Section 301(b)(1) of
the TIA and to the extent permitted thereby, the Trustee shall not be deemed to
have a conflicting interest arising from its capacity as trustee in respect of
any series of securities issued under the Indentures dated as of August 1, 1992,
November 30, 1995 and December 8, 1997, each by and between the Company and
JPMorgan Chase Bank (or its predecessor), as trustee, and any other indentures
of the Company pursuant to which JPMorgan Chase Bank acts as trustee. Nothing in
the Indenture shall prevent the Trustee from filing with the SEC the application
referred to in the penultimate paragraph of TIA Section 310(b).
SECTION 6.11. Preferential Collection of Claims Against Company. The
Trustee is subject to and shall comply with the provisions of TIA Section
311(a), excluding any creditor relationship listed in TIA Section 311(b). A
Trustee who has resigned or been removed shall be subject to TIA Section 311(a)
to the extent indicated therein.
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ARTICLE 7
DEFEASANCE AND DISCHARGE
SECTION 7.01. Discharge of Company's Obligations. (a) Subject to
paragraph (b), the Company's obligations under the Notes and the Indenture, and
each Guarantor's obligations under its Subsidiary Guarantee, will terminate if:
(i) either
(A) all Notes that have been authenticated, except lost,
stolen or destroyed Notes that have been replaced or paid and Notes for
whose payment money has been deposited in trust and thereafter repaid
to the Company, have been delivered to the Trustee for cancellation; or
(B) all Notes that have not been delivered to the Trustee for
cancellation have become due and payable by reason of the mailing of a
notice of redemption or otherwise or will become due and payable within
one year and the Company or any Guarantor has irrevocably deposited or
caused to be deposited with the Trustee as trust funds in trust solely
for the benefit of the Holders, cash in U.S. dollars, non-callable
Government Securities, or a combination of cash in U.S. dollars and
noncallable Government Securities, in amounts as will be sufficient
without consideration of any reinvestment of interest, to pay and
discharge the entire indebtedness on the Notes not delivered to the
trustee for cancellation for principal, premium and Liquidated Damages,
if any, and accrued interest to the date of maturity or redemption;
(ii) the Company or any Guarantor has paid or caused to be
paid all sums payable by it under the Indenture; and
(iii) the Company has delivered irrevocable instructions to
the Trustee under the Indenture to apply the deposited money toward the
payment of the Notes at the Maturity Date or the Redemption Date, as
the case may; and
(iv) the Company has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent to satisfaction and
discharge of the Indenture have been complied with, together with an
Opinion of Counsel to the same effect.
(b) After satisfying the conditions in clauses (a)(i)(A),(ii),(iii) and
(iv), only the Company's obligations under Section 6.07 will survive. After
satisfying the conditions in clauses (a)(i)(B), (ii), (iii) and (iv), only the
Company's
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obligations in Article II and Sections 3.01, 3.02, 6.07, 6.08, 7.05 and 7.06
will survive. In either case, the Trustee upon request will acknowledge in
writing the discharge of the Company's obligations under the Notes and the
Indenture other than the surviving obligations.
SECTION 7.02. Legal Defeasance. (a) After the 91st day following the
deposit referred to in clause (i), the Company will be deemed to have paid and
will be discharged from its obligations in respect of the Notes and the
Indenture, other than its obligations in Article II and Sections 3.01, 3.02,
6.07, 6.08, 7.05 and 7.06, and each Guarantor's obligations under its Subsidiary
Guarantee will terminate ("LEGAL DEFEASANCE"), provided the following conditions
have been satisfied:
(i) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders of the Notes, cash in U.S.
dollars, non- callable Government Securities, or a combination of cash
in U.S. dollars and non-callable Government Securities, in amounts as
will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, or interest
and premium and Liquidated Damages, if any, on the outstanding Notes on
the Stated Maturity or on the applicable Redemption Date, as the case
may be, and the Company must specify whether the Notes are being
defeased to Maturity Date or to a particular Redemption Date;
(ii) the Company has delivered to the Trustee an Opinion of
Counsel reasonably acceptable to the Trustee confirming that (a) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (b) since the date of the Indenture, there
has been a change in the applicable federal income tax law, in either
case to the effect that, and based thereon such Opinion of Counsel will
confirm that, the Holders of the outstanding Notes will not recognize
income, gain or loss for federal income tax purposes as a result of
such Legal Defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have
been the case if such Legal Defeasance had not occurred;
(iii) no Default or Event of Default has occurred and is
continuing on the date of such deposit (other than a Default or Event
of Default resulting from the borrowing of funds to be applied to such
deposit);
(iv) such Legal Defeasance will not result in a breach or
violation of, or constitute a default under any material agreement or
instrument (other than the Indenture) to which the Company or any of
its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
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(v) the Company must deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders of Notes over the other creditors
of the Company with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others; and
(vi) the Company must deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the Legal Defeasance have been complied with.
Prior to the end of the 91-day period, none of the Company's
obligations under the Indenture will be discharged. Thereafter, the Trustee upon
request will acknowledge in writing the discharge of the Company's obligations
under the Notes and the Indenture except for the surviving obligations specified
above.
SECTION 7.03. Covenant Defeasance. (a) After the 91st day following
the deposit referred to in clause (i), the Company's obligations set forth in
Sections 3.03 through 3.17, inclusive and clause (iv) of Section 4.01(a), and
each Guarantor's obligations under its Subsidiary Guarantee, will terminate, and
clauses (iii), (iv), (v), (vi) and (vii) of Section 5.01(a) will no longer
constitute Events of Default ("COVENANT DEFEASANCE"), provided the following
conditions have been satisfied:
(i) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders of the Notes, cash in U.S.
dollars, non- callable Government Securities, or a combination of cash
in U.S. dollars and non-callable Government Securities, in amounts as
will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, or interest
and premium and Liquidated Damages, if any, on the outstanding Notes on
the Stated Maturity or on the applicable Redemption Date, as the case
may be, and the Company must specify whether the Notes are being
defeased to Maturity Date or to a particular Redemption Date;
(ii) the Company has delivered to the Trustee an Opinion of
Counsel reasonably acceptable to the Trustee confirming that the
Holders of the outstanding Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such Covenant
Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such Covenant Defeasance had not occurred;
(iii) no Default or Event of Default has occurred and is
continuing on the date of such deposit (other than a Default or Event
of Default resulting from the borrowing of funds to be applied to such
deposit);
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(iv) such Covenant Defeasance will not result in a breach or
violation of, or constitute a default under any material agreement or
instrument (other than the Indenture) to which the Company or any of
its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
(v) the Company must deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders of Notes over the other creditors
of the Company with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others; and
(vi) the Company must deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the Legal Defeasance have been complied with.
Except as specifically stated above, none of the Company's obligations
under the Indenture will be discharged.
SECTION 7.04. Covenant Termination. From and after the first date
after the date of the Indenture on which the Notes have an Investment Grade
Rating from both Rating Agencies and no Default or Event of Default has occurred
and is continuing under the Indenture (the "INVESTMENT GRADE DATE"), the Company
and its Restricted Subsidiaries will no longer be subject to Sections 3.05,
3.06, 3.08, 3.09, 3.12, 3.13 and 3.16 of the Indenture.
SECTION 7.05. Application of Trust Money. The Trustee or a trustee
satisfactory to the Trustee and the Company shall hold in trust money or U.S.
Government Obligations deposited with it pursuant to Section 7.01, 7.02 and 7.03
hereof. It shall apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with the Indenture to the
payment of principal of, premium, if any, Liquidated Damages, if any, and
interest on the Notes.
SECTION 7.06. Repayment to Company. The Trustee and the Paying Agent
shall promptly pay to the Company upon written request any excess money or
securities held by them at any time.
Subject to the requirements of any applicable abandoned property laws,
the Trustee and the Paying Agent shall pay to the Company upon written request
any money held by them for the payment of principal, premium, if any, Liquidated
Damages, if any, or interest that remains unclaimed for two years after the date
upon which such payment shall have become due; provided, however, that the
Company shall have either caused notice of such payment to be mailed to each
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Holder entitled thereto no less than 30 days prior to such repayment or within
such period shall have published such notice in a financial newspaper of
widespread circulation published in The City of New York. After payment to the
Company, Holders entitled to the money must look to the Company for payment as
general creditors unless an applicable abandoned property law designates another
Person, and all liability of the Trustee and the Paying Agent with respect to
such money shall cease.
In the absence of a written request from the Company to return
unclaimed funds to the Company, the Trustee shall from time to time deliver all
unclaimed funds to or as directed by applicable escheat authorities, as
determined by the Trustee in its sole discretion, in accordance with customary
practices and procedures of the Trustee. Any unclaimed funds held by the Trustee
pursuant to this Section 7.06 shall be held uninvested and without any liability
for interest.
SECTION 7.07. Reinstatement. If the Trustee or the Paying Agent is
unable to apply any money or U. S. Government Obligations in accordance with
Section 7.01, 7.02 or 7.03 hereof by reason of any legal proceeding or by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the obligations of the
Company under the Indenture and the Notes shall be revived and reinstated as
though no deposit had occurred pursuant to Section 7.01, 7.02 or 7.03 hereof
until such time as the Trustee or the Paying Agent is permitted to apply all
such money or U. S. Government Obligations in accordance with Section 7.01, 7.02
or 7.03 hereof; provided, however, that if the Company has made any payment of
principal of or interest on any Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money or U.S. Government Obligations
held by the Trustee or the Paying Agent.
ARTICLE 8
AMENDMENTS
SECTION 8.01. Without Consent of Holders. The Company, the Guarantors
and the Trustee may amend or supplement the Indenture or any of the Notes or
waive any provision hereof or thereof without the consent of any Holder:
(i) to cure any ambiguity, omission, defect or
inconsistency;
(ii) to provide for uncertificated Notes in addition to or
in place of certificated Notes;
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(iii) to provide for the assumption of the Company's
obligations to Holders of Notes in the case of a merger or
consolidation or sale of all or substantially all of the Company's
assets;
(iv) to provide for any Guarantee of the Notes, to secure
the Notes or to confirm and evidence the release, termination or
discharge of any Guarantee of or Lien securing the Notes when such
release, termination or discharge is permitted by the Indenture;
(v) to make any change that would provide any additional
rights or benefits to the Holders of Notes or that does not adversely
affect the legal rights under the Indenture of any such Holder; or to
provide for the acceptance of appointment hereunder of a successor
Trustee in compliance with the provisions hereof;
(vi) to comply with requirements of the Commission under the
Securities Act or the Exchange Act or in order to effect or maintain
the qualification of the Indenture under the Trust Indenture Act.
Upon the request of the Company accompanied by a resolution of the
Board of Directors of the Company authorizing the execution of any such
Supplemental Indenture, and upon receipt by the Trustee of the documents
described in and subject to the other terms of Section 8.06 hereof, the Trustee
shall join with the Company in the execution of any Supplemental Indenture
authorized or permitted by the terms of the Indenture and make any further
appropriate agreements and stipulations that may be therein contained. After an
amendment, supplement or waiver under this Section 8.01 becomes effective, the
Company shall mail to the Holders of each Note affected thereby a notice briefly
describing the amendment, supplement or waiver. Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such Supplemental Indenture.
SECTION 8.02. With Consent of Holders.
Except as provided below in this Section 8.02, the Company and the
Trustee may amend or supplement the Indenture or the Notes with the written
consent (including consents obtained in connection with a purchase of, or tender
offer or exchange offer for, the Notes or a solicitation of consents in respect
of the Notes) of the Holders of at least a majority in principal amount of the
Notes then outstanding.
Upon the request of the Company accompanied by a resolution of the
Board of Directors of the Company authorizing the execution of any such
Supplemental Indenture, and upon the filing with the Trustee of evidence of the
consent of the Holders as aforesaid, and upon receipt by the Trustee of the
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documents described in Section 8.06 hereof, the Trustee shall join with the
Company in the execution of such Supplemental Indenture.
It shall not be necessary for the consent of the Holders under this
Section 8.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
The Holders of a majority in principal amount of the Notes then
outstanding may waive compliance in a particular instance by the Company with
any provision of the Indenture or the Notes (including waivers obtained in
connection with a purchase of, tender offer or exchange offer for, the Notes or
a solicitation of consents in respect of the Notes).
Without the consent of each Holder affected, an amendment, supplement
or waiver under this Section may not:
(i) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(ii) reduce the principal of or change the fixed maturity of
any Note or alter the provisions (including without limitation the
amount of any premium or the price therefor) with respect to the
redemption of the Notes (other than provisions relating to Sections
3.11 and 3.12);
(iii) reduce the rate of or change the time for payment of
interest or Liquidated Damages on any Note;
(iv) waive a Default or Event of Default in the payment of
principal of, or interest or premium, or Liquidated Damages, if any, on
the Notes (except a rescission of acceleration of the Notes by the
Holders of at least a majority in aggregate principal amount of the
Notes and a waiver of the payment default that resulted from such
acceleration);
(v) make any Note payable in money other than that stated in
the Notes;
(vi) make any change in the provisions of the Indenture
relating to waivers of past Defaults or the rights of Holders of Notes
to receive payments of principal of, or interest or premium or
Liquidated Damages, if any, on the Notes;
(vii) waive a redemption payment with respect to any Note
(other than a payment required by Sections 3.11 or 3.12);
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(viii) release any Guarantor from any of its obligations under
its Subsidiary Guarantee or the Indenture, except in accordance with
the terms of the Indenture; or
(ix) make any change in the preceding amendment and waiver
provisions.
The right of any Holder to participate in any consent required or
sought pursuant to any provision of the Indenture (and the obligation of the
Company to obtain any such consent otherwise required from such Holder) may be
subject to the requirement that such Holder shall have been the Holder of record
of the Notes with respect to which such consent is required or sought as of a
date identified by the Trustee in a notice furnished to Holders in accordance
with the terms of the Indenture.
SECTION 8.03. Compliance with Trust Indenture Act. Every amendment to
the Indenture or the Notes shall comply in form and substance with the TIA as
then in effect.
SECTION 8.04. Revocation and Effect of Consents. A consent to an
amendment (which includes a supplement) or waiver by a Holder is a continuing
consent by the Holder and every subsequent Holder of a Note or portion of a Note
that evidences the same debt as the consenting Holder's Note, even if notation
of the consent is not made on any Note. However, any such Holder or subsequent
Holder may revoke the consent as to his or her Note or portion of a Note if the
Trustee receives written notice of revocation at any time prior to (but not
after) the date the Trustee receives an Officers' Certificate certifying that
the Holders of the requisite principal amount of Notes have consented (and not
theretofore revoked such consent) to the amendment, supplement or waiver. An
amendment, supplement or waiver becomes effective in accordance with its terms
and thereafter binds every Holder.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment or
waiver or to take any other action under the Indenture. If a record date is
fixed, then notwithstanding the provisions of the immediately preceding
paragraph, those Persons who were Holders at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to consent to
such amendment, supplement or waiver or to revoke any consent previously given,
whether or not such Persons continue to be Holders after such record date. No
consent shall be valid or effective for more than 90 days after such record date
unless consents from Holders of the principal amount of the Notes required
hereunder for such amendment or waiver to be effective shall have also been
given and not revoked within such 90-day period.
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After an amendment, supplement or waiver becomes effective, it shall
bind every Holder, unless it is of the type described in any of clauses (i)
through (ix) of Section 8.02 hereof. In such case, the amendment or waiver shall
bind each Holder who has consented to it and every subsequent Holder that
evidences the same debt as the consenting Holder's Note.
SECTION 8.05. Notation on or Exchange of Notes. If an amendment
changes the terms of a Note, the Trustee may require the Holder of the Note to
deliver it to the Trustee. The Trustee may place an appropriate notation on the
Note regarding the changed terms and return it to the Holder. Alternatively, if
the Company or the Trustee so determines, the Company in exchange for the Note
shall issue and the Trustee shall authenticate a new Note that reflects the
changed terms. Failure to make the appropriate notation or to issue a new Note
shall not affect the validity of such amendment.
SECTION 8.06. Trustee to Sign Amendments, Etc. The Trustee shall sign
any amendment, waiver or Supplemental Indenture authorized pursuant to this
Article if the amendment, waiver or Supplemental Indenture does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it does,
the Trustee may, but need not, sign it. In signing or refusing to sign such
amendment, waiver or Supplemental Indenture, the Trustee shall receive, and
subject to Section 6.01 hereof, shall be fully protected in relying upon, an
Opinion of Counsel and an Officers' Certificate, as conclusive evidence that
such amendment, waiver or Supplemental Indenture is authorized or permitted by
the Indenture, that it is not inconsistent herewith, and that it will be valid
and binding upon the Company in accordance with its terms.
ARTICLE 9
REDEMPTION
SECTION 9.01. Notices to Trustee. If the Company elects to redeem
Notes pursuant to the redemption provisions of Section 9.07, it shall furnish to
the Trustee, at least 45 days but not more than 60 days before a Redemption Date
(unless the Trustee consents in writing to a shorter period of at least 30 days
prior to the Redemption Date), an Officers' Certificate setting forth the
Redemption Date, the principal amount of such Notes to be redeemed and the
Redemption Price.
SECTION 9.02. Selection of Notes to Be Redeemed. (a) If less than all
of the Notes are to be redeemed at any time, the Trustee will select Notes for
redemption as follows:
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(i) if the Notes are listed on any national securities
exchange, in compliance with the requirements of the principal national
securities exchange on which the Notes are listed; or
(ii) if the Notes are not listed on any national securities
exchange, on a pro rata basis, by lot or by such method as the Trustee
deems fair and appropriate.
The particular Notes to be redeemed shall be selected, unless otherwise
provided herein, not less than 30 days nor more than 60 days prior to the
Redemption Date by the Trustee from the outstanding Notes not previously called
for redemption.
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
them selected shall be in amounts of $1,000 or whole multiples of $1,000. Except
as provided in the preceding sentence, provisions of the Indenture that apply to
Notes called for redemption also apply to portions of Notes called for
redemption.
SECTION 9.03. Notices to Holders. (a) At least 30 days but not more
than 60 days before a Redemption Date, the Company shall mail in conformity with
Section 11.02 a notice of redemption to each Holder whose Notes are to be
redeemed, except that redemption notices may be mailed more than 60 days prior
to a redemption date if the notice is issued in connection with a defeasance of
the Notes or a satisfaction and discharge of the Indenture. Notices of
redemption may not be conditional.
The Notice shall identify the Notes to be redeemed (including CUSIP
numbers, if any) and shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) if any Note is being redeemed in part, the portion of
the principal amount of such Note to be redeemed and that, after the
Redemption Date, upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion will be issued;
(iv) the name and address of the Paying Agent;
(v) that Notes called for redemption must be surrendered to
the Paying Agent at the address specified in such notice to collect the
Redemption Price;
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(vi) that unless the Company defaults in making the
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the Redemption Date and the only remaining right of
the Holders is to receive payment of the Redemption Price upon
surrender to the Paying Agent of the Notes; and
(vii) the aggregate principal amount of Notes being redeemed.
If any of the Notes to be redeemed is in the form of a Global Note,
then the Company shall modify such notice to the extent necessary to accord with
the procedures of the Depositary applicable to redemptions.
(b) At the Company's request, the Trustee shall give the notice
required in Section 9.03(a) in the Company's name; provided, however, that the
Company shall deliver to the Trustee, at least 45 days prior to the Redemption
Date (unless the Trustee consents in writing to a shorter period at least 30
days prior to the Redemption Date), an Officers' Certificate requesting that the
Trustee give such notice and setting forth the information to be stated in such
notice as provided in Section 9.03(a).
SECTION 9.04. Effect of Notices of Redemption. Once notice of
redemption is mailed pursuant to Section 9.03, Notes called for redemption
become due and payable on the Redemption Date at the Redemption Price. Upon
surrender to the Paying Agent, such Notes shall be paid out at the Redemption
Price.
SECTION 9.05. Deposit of Redemption Price. At or prior to 11:00 am New
York City time on the Redemption Date, the Company shall deposit with the
Trustee or with the Paying Agent money sufficient to pay the Redemption Price of
all Notes to be redeemed on that date. The Trustee or the Paying Agent shall
return to the Company any money not required for that purpose less the expenses
of the Trustee as provided herein.
If the Company complies with the preceding paragraph, interest on the
Notes or portions thereof to be redeemed (whether or not such Notes are
presented for payment) will cease to accrue on the applicable Redemption Date.
If any Note called for redemption shall not be so paid upon surrender because of
the failure of the Company to comply with the preceding paragraph, then interest
will be paid on the unpaid principal and premium, if any, from the Redemption
Date until such principal and premium are paid and, to the extent lawful, on any
interest not paid on such unpaid principal, in each case at the rate provided in
the Notes and in Section 3.01.
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SECTION 9.06. Notes Redeemed in Part. Upon surrender of a Note that is
redeemed in part, the Company shall issue and the Trustee shall authenticate for
the Holder, at the expense of the Company, a new Note equal in principal amount
to the unredeemed portion of the Note surrendered.
SECTION 9.07. Optional Redemption. (a) At any time and from time to
time prior to March 1, 2007, the Company may, at its option, redeem all or a
portion of the Notes at the Make-Whole Price plus accrued and unpaid interest to
the redemption date.
(b) At any time and from time to time on or after March 1, 2007, the
Company may, at its option, redeem the Notes, in whole or in part, at a
redemption price equal to the percentage of principal amount set forth below
plus accrued and unpaid interest to the redemption date.
TWELVE-MONTH PERIOD
COMMENCING
MARCH 1 IN YEAR PERCENTAGE
- ------------------- -----------
2007 104.063%
2008 102.031%
2009 and thereafter 100.000%
Any redemption pursuant to this Section 9.07 shall be made, to the
extent applicable, pursuant to the provisions of Sections 9.01 through 9.06.
SECTION 9.08. Redemption with Proceeds of Public Equity Offering. (a)
At any time and from time to time prior to March 1, 2006, the Company may, at
its option, redeem up to 35% of the aggregate principal amount of the Notes with
the net cash proceeds received by the Company from any Public Equity Offering
(excluding any net cash proceeds received from Williams or any of its
Affiliates) at a redemption price equal to 108.125% of the principal amount plus
accrued and unpaid interest and liquidated damages, if any, to the redemption
date, provided that
(i) in each case the redemption takes place not later than 90
days after the closing of the related Public Equity Offering, and
(ii) at least 65% of the aggregate principal amount of Notes
remains outstanding immediately after the occurrence of such redemption
(excluding Notes held by the Company and its Subsidiaries).
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Any redemption pursuant to this Section 9.07 shall be made, to the
extent applicable, pursuant to the provisions of Sections 9.01 through 9.06.
SECTION 9.09. Change of Control Offer. (a) A "CHANGE OF CONTROL OFFER"
means an offer by the Company to purchase Notes as required by Section 3.11. A
Change of Control Offer must be made by written offer (the "OFFER") sent to the
Holders. The Company will notify the Trustee at least three Business Days (or
such shorter period as is acceptable to the Trustee) prior to sending the offer
to Holders of its obligation to make a Change of Control Offer, and the offer
will be sent by the Company or, at the Company's request, by the Trustee in the
name and at the expense of the Company.
(b) The offer must include or state the following as to the terms of
the Change of Control Offer:
(i) the provision of the Indenture pursuant to which the
Change of Control Offer is being made;
(ii) the aggregate principal amount of the outstanding Notes
offered to be purchased by the Company pursuant to the Change of
Control Offer (the "PURCHASE AMOUNT");
(iii) the purchase price, including the portion thereof
representing accrued interest;
(iv) a payment date (the "CHANGE OF CONTROL PAYMENT DATE") not
less than 30 days or more than 60 days after the date of the offer;
(v) a description of the transaction or transactions
constituting the Change of Control;
(vi) a Holder may tender all or any portion of its Notes,
subject to the requirement that any portion of a Note tendered must be
in a multiple of $1,000 principal amount;
(vii) the place or places where Notes are to be surrendered
for tender pursuant to the Change of Control Offer;
(viii) each Holder electing to tender a Note pursuant to the
offer will be required to surrender such Note at the place or places
specified in the offer prior to the close of business on the Change of
Control Payment Date (such Note being, if the Company or the Trustee so
requires, duly endorsed or accompanied by a duly executed written
instrument of transfer);
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(ix) interest on any Note not tendered will continue to
accrue;
(x) on the Change of Control Payment Date the purchase price
will become due and payable on each Note accepted for purchase, and
interest on Notes purchased will cease to accrue on and after the
Change of Control Payment Date;
(xi) Holders are entitled to withdraw Notes tendered by giving
notice, which must be received by the Company or the Trustee not later
than the close of business on the Change of Control Payment Date,
setting forth the name of the Holder, the principal amount of the
tendered Notes, the certificate number of the tendered Notes and a
statement that the Holder is withdrawing all or a portion of the
tender;
(xii) if Notes in an aggregate principal amount less than or
equal to the Purchase Amount are duly tendered and not withdrawn
pursuant to the Change of Control Offer, the Company will purchase all
such Notes;
(xiii) if any Note is purchased in part, new Notes equal in
principal amount to the unpurchased portion of the Note will be issued;
and
(xiv) if any Note contains a CUSIP or CINS number, no
representation is being made as to the correctness of the CUSIP or CINS
number either as printed on the Notes or as contained in the offer and
that the Holder should rely only on the other identification numbers
printed on the Notes.
(c) Prior to the Change of Control Payment Date, the Company will
accept tendered Notes for purchase as required by the Change of Control Offer
and deliver to the Trustee all Notes so accepted together with an Officers'
Certificate specifying which Notes have been accepted for purchase. On the
Change of Control Payment Date the purchase price will become due and payable on
each Note accepted for purchase, and interest on Notes purchased will cease to
accrue on and after the Change of Control Payment Date. The Paying Agent will
promptly mail to each Holder of Notes properly tendered the Change of Control
Payment for such Notes, and the Trustee will promptly return to Holders any
Notes not accepted for purchase and send to Holders new Notes equal in principal
amount to any unpurchased portion of any Notes accepted for purchase in part,
provided that each new Note will be in a principal amount of $1,000 or an
integral multiple of $1,000.
(d) On the Change of Control Payment Date, the Company will, to the
extent lawful:
88
(i) accept for payment all Notes or portions of Notes properly
tendered pursuant to the Change of Control Offer;
(ii) deposit with the Paying Agent an amount equal to the
Change of Control Payment in respect of all Notes or portions of Notes
properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the
Notes properly accepted together with an Officers' Certificate stating
the aggregate principal amount of Notes or portions of Notes being
purchased by the Company.
(e) The Company will comply with Rule 14e-1 under the Exchange Act and
all other applicable laws in making any Change of Control Offer, and the above
procedures will be deemed modified as necessary to permit such compliance.
ARTICLE 10
GUARANTIES
SECTION 10.01. The Guaranties. Subject to the provisions of this
Article, each Guarantor hereby irrevocably and unconditionally guarantees,
jointly and severally, on an unsecured basis, the full and punctual payment
(whether at Stated Maturity, upon redemption, purchase pursuant to an Change of
Control Offer or acceleration, or otherwise) of the principal of, premium, if
any, and interest on, and all other amounts payable under, each Note, and the
full and punctual payment of all other amounts payable by the Company under the
Indenture. Upon failure by the Company to pay punctually any such amount, each
Guarantor shall forthwith on demand pay the amount not so paid at the place and
in the manner specified in the Indenture.
SECTION 10.02. Guarantee Unconditional. The obligations of each
Guarantor hereunder are unconditional and absolute and, without limiting the
generality of the foregoing, will not be released, discharged or otherwise
affected by
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of the Company under the Indenture
or any Note, by operation of law or otherwise;
(ii) any modification or amendment of or supplement to the
Indenture or any Note;
89
(iii) any change in the corporate existence, structure or
ownership of the Company, or any insolvency, bankruptcy, reorganization
or other similar proceeding affecting the Company or its assets or any
resulting release or discharge of any obligation of the Company
contained in the Indenture or any Note;
(iv) the existence of any claim, set off or other rights which
the Guarantor may have at any time against the Company, the Trustee or
any other Person, whether in connection with the Indenture or any
unrelated transactions, provided that nothing herein prevents the
assertion of any such claim by separate suit or compulsory
counterclaim;
(v) any invalidity or unenforceability relating to or against
the Company for any reason of the Indenture or any Note, or any
provision of applicable law or regulation purporting to prohibit the
payment by the Company of the principal of or interest on any Note or
any other amount payable by the Company under the Indenture; or
(vi) any other act or omission to act or delay of any kind by
the Company, the Trustee or any other Person or any other circumstance
whatsoever which might, but for the provisions of this paragraph,
constitute a legal or equitable discharge of or defense to such
Guarantor's obligations hereunder.
SECTION 10.03 Discharge; Reinstatement. Each Guarantor's obligations
hereunder will remain in full force and effect until the principal of, premium,
if any, and interest on the Notes and all other amounts payable by the Company
under the Indenture have been paid in full. If at any time any payment of the
principal of, premium, if any, or interest on any Note or any other amount
payable by the Company under the Indenture is rescinded or must be otherwise
restored or returned upon the insolvency, bankruptcy or reorganization of the
Company or otherwise, each Guarantor's obligations hereunder with respect to
such payment will be reinstated as though such payment had been due but not made
at such time.
SECTION 10.04. Waiver by the Guarantors. Each Guarantor irrevocably
waives acceptance hereof, presentment, demand, protest and any notice not
provided for herein, as well as any requirement that at any time any action be
taken by any Person against the Company or any other Person.
SECTION 10.05. Subrogation and Contribution. Upon making any payment
with respect to any obligation of the Company under this Article, the Guarantor
making such payment will be subrogated to the rights of the payee against the
Company with respect to such obligation, provided that the Guarantor may not
enforce either any right of subrogation, or any right to receive payment in the
nature of contribution, or otherwise, from any other Guarantor, with respect to
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such payment so long as any amount payable by the Company hereunder or under the
Notes remains unpaid.
SECTION 10.06. Stay of Acceleration. If acceleration of the time for
payment of any amount payable by the Company under the Indenture or the Notes is
stayed upon the insolvency, bankruptcy or reorganization of the Company, all
such amounts otherwise subject to acceleration under the terms of the Indenture
are nonetheless payable by the Guarantors hereunder forthwith on demand by the
Trustee or the Holders.
SECTION 10.07. Limitation on Amount of Guarantee. Notwithstanding
anything to the contrary in this Article, each Guarantor, and by its acceptance
of Notes, each Holder, hereby confirms that it is the intention of all such
parties that the Subsidiary Guarantee of such Guarantor not constitute a
fraudulent conveyance under applicable fraudulent conveyance provisions of the
United States Bankruptcy Code or any comparable provision of state law. To
effectuate that intention, the Trustee, the Holders and the Guarantors hereby
irrevocably agree that the obligations of each Guarantor under its Subsidiary
Guarantee are limited to the maximum amount that would not render the
Guarantor's obligations subject to avoidance under applicable fraudulent
conveyance provisions of the United States Bankruptcy Code or any comparable
provision of state law.
SECTION 10.08. Execution and Delivery of Guarantee. The execution by
each Guarantor of the Indenture (or a Supplemental Indenture in the form of
Exhibit B) evidences the Subsidiary Guarantee of such Guarantor, whether or not
the person signing as an officer of the Guarantor still holds that office at the
time of authentication of any Note. The delivery of any Note by the Trustee
after authentication constitutes due delivery of the Subsidiary Guarantee set
forth in the Indenture on behalf of each Guarantor.
SECTION 10.09. Release of Guarantee. The Subsidiary Guarantee of a
Guarantor will terminate upon
(i) any sale or other disposition of all or substantially all
of the assets of that Guarantor (including by way of merger or
consolidation) to a Person that is not (either before or after giving
effect to such transaction) a Subsidiary of the Company, if the sale or
other disposition complies with Section 3.12; or
(ii) the sale or other disposition of all of the Capital Stock
of a Guarantor to a Person that is not (either before or after giving
effect to such transaction) a Subsidiary of the Company, if the sale or
other disposition complies with Section 3.12; or
91
(iii) the Company designating any Restricted Subsidiary that
is a Guarantor as an Unrestricted Subsidiary in accordance with the
applicable provisions of the Indenture; or
(iv) defeasance or discharge of the Notes, as provided in
Article
VII.
Upon delivery by the Company to the Trustee of an Officers' Certificate
and an Opinion of Counsel to the foregoing effect, the Trustee will execute any
documents reasonably required in order to evidence the release of the Guarantor
from its obligations under its Subsidiary Guarantee.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls. If any provision of the
Indenture limits, qualifies or conflicts with another provision which is
required to be included in the Indenture by the TIA, the required provision
shall control. If the Indenture excludes any provision of the TIA that is
required to be included, such provision shall be deemed included herein.
SECTION 11.02. Notices. Any notice or communication by the Company or
the Trustee to the other is duly given if in writing and delivered in person or
mailed by mail (registered or certified, return receipt requested), telecopier
or overnight air courier guaranteeing next day delivery, to the other's address:
If to the Company:
Northwest Pipeline Corporation
295 Chipeta Way
Salt Lake City, Utah 84108
Telecopier No.: (801) 584-7862
Attention: Legal Department
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If to the Trustee:
JPMorgan Chase Bank
Institutional Trust Services
4 New York Plaza-15th Floor
New York, New York 10004
Telecopier No.: (212) 623-6167
Attention: Joanne Adamis
Each of the Company and the Trustee by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications shall be deemed to have been duly given:
at the time delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed by registered or
certified mail; when receipt acknowledged, if telecopied; and the next Business
Day after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery. Notwithstanding the foregoing, notices to the
Trustee shall be effective only upon receipt.
Any notice or communication to a Holder shall be mailed by first-class
mail, postage prepaid, to the Holder's address shown on the register kept by the
Registrar. Failure to mail a notice or communication to a Holder or any defect
in it shall not affect its sufficiency with respect to other Holders.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
All notices or communications, including without limitation notices to
the Trustee or the Company by Holders, shall be in writing, except as set forth
below, and in the English language.
In case by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice required by
the Indenture, then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing of such notice.
SECTION 11.3. Communication by Holders with Other Holders. Holders may
communicate pursuant to TIA Section 312(b) with other Holders with respect to
their rights under the Indenture or the Notes. The Company, the Trustee, the
Registrar and anyone else shall have the protection of TIA Section 312(c).
93
SECTION 11.4. Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company to the Trustee to take any action
under the Indenture, the Company shall furnish to the Trustee:
(i) an Officers' Certificate (which shall include the
statements set forth in Section 11.05 hereof) stating that, in the
opinion of the signers, all conditions precedent and covenants, if any,
provided for in the Indenture relating to the proposed action have been
complied with; and
(ii) an Opinion of Counsel (which shall include the
statements set forth in Section 11.05 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants
have been complied with.
Notwithstanding the foregoing, no such Opinion of Counsel shall be
required in connection with the issuance of the Series A Notes pursuant to the
Original Offering.
SECTION 11.5. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in the Indenture shall include:
(i) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(ii) 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;
(iii) a statement that, in the opinion of such Person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
SECTION 11.6. Rules by Trustee and Agents. The Trustee may make
reasonable rules for action by or at a meeting of Holders. The Registrar or the
Paying Agent may make reasonable rules and set reasonable requirements for its
functions.
SECTION 11.7. Legal Holidays. If a payment date is a Legal Holiday at
a place of payment, payment may be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue for the intervening
period.
94
SECTION 11.8. No Recourse Against Others. No director, officer,
employee, incorporator or stockholder of the Company or any Guarantor, as such,
will have any liability for any obligations of the Company or the Guarantors
under the Notes, the Indenture, the Subsidiary Guarantees, or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder of Notes by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for issuance of the Notes.
SECTION 11.9. Governing Law. This Indenture and the Notes shall be
governed by and constructed in accordance with the laws of the State of New York
(including without limitation Section 5-1401 of the New York General Obligations
Law or any successor to such statute).
SECTION 11.10. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company, or any other Subsidiary of the Company. Any such indenture, loan
or debt agreement may not be used to interpret the Indenture.
SECTION 11.11. Successors. All agreements of the Company in the
Indenture and the Notes shall bind its successors. All agreements of the Trustee
in the Indenture shall bind its successors.
SECTION 11.12. Severability. In case any provision in the Indenture or
in the Notes shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 11.13. Counterpart Originals. The parties may sign any number
of copies of the Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
SECTION 11.14. Table of Contents, Headings, Etc. The Table of Contents,
Cross-Reference Table and Headings of the Articles and Sections of the Indenture
have been inserted for convenience of reference only, are not to be considered a
part hereof and shall in no way modify or restrict any of the terms or
provisions hereof.
95
IN WITNESS WHEREOF, the parties hereto have caused the Indenture to be
duly executed as of the day and year first above written.
Company:
NORTHWEST PIPELINE
CORPORATION
By: __________________________
Name:
Title:
Trustee:
JPMORGAN CHASE BANK
By: __________________________
Name:
Title:
EXHIBIT A
[FACE OF SECURITY]
[Global Notes Legend]
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. THE DEPOSITORY TRUST COMPANY SHALL ACT AS THE DEPOSITARY UNTIL A
SUCCESSOR SHALL BE APPOINTED BY THE COMPANY AND THE REGISTRAR. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), 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.]*
[Transfer Restricted Notes Legend]
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR OTHER SECURITIES
LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS THE TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT
IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING ITS NOTE IN AN
"OFFSHORE TRANSACTION" PURSUANT TO RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT, (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 NOTE) OR THE LAST DAY ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY
PREDECESSOR OF THIS NOTE) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY
APPLICABLE LAW (THE "RESALE RESTRICTION TERMINATION DATE"), OFFER, SELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE NOTES 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 INSIDE THE U.S., (D)
PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE U.S.
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO
ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE
IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED
THAT THE COMPANY, THE TRUSTEE AND THE REGISTRAR SHALL HAVE THE RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE FOREGOING CASES, TO
REQUIRE THAT A CERTIFICATION OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE
OF THIS NOTE IS COMPLETED AND DELIVERED BY THIS TRANSFEROR TO THE TRUSTEE. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"U.S." AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT.
NORTHWEST PIPELINE CORPORATION
8 1/8% Series [A/Exchange] Note due 2010
CUSIP [__________]
No. ___ $___________
- ---------------------------
* This paragraph should be included only if the Note is a Global Note.
A-1
Northwest Pipeline Corporation, a Delaware corporation (the "Company"),
for value received promises to pay to ___________________________ or registered
assigns, the principal sum of _________ United States Dollars [or such greater
or lesser amount as is indicated on the Schedule of Exchanges of Notes on the
other side of this Note]* on March 1, 2010.
Interest Payment Dates: March 1 and September 1
Record Dates: February 15 and August 15
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
- ---------------------------
* This paragraph should be included only if the Note is a Global Note.
A-2
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officer.
Dated: March 4, 2003
NORTHWEST PIPELINE CORPORATION
By: __________________________
Name:
Title:
Certificate of Authentication:
JPMORGAN CHASE BANK,
as Trustee, certifies that this is one of the Notes
referred to in the within-mentioned
Indenture.
By: __________________________
Authorized Signatory
A-3
[REVERSE OF SECURITY]
NORTHWEST PIPELINE CORPORATION
8 1/8% Series [A/Exchange] Senior Note due 2010
This Note is one of a duly authorized issue of 8 1/8% Series
[A/Exchange] Senior Notes due 2010 (the "Notes") of Northwest Pipeline
Corporation, a Delaware corporation (the "Company").
1. Interest. The Company promises to pay interest on the
principal amount of this Note at 8 1/8% per annum from March 4, 2003 until
maturity. The Company will pay interest semiannually on March 1 and September 1
of each year (each an "Interest Payment Date"), or if any such day is not a
Business Day, on the next succeeding Business Day, to the holder of record at
the close of business on February 15 or August 15 immediately preceding such
Interest Payment Date. Interest on the Notes will accrue from the most recent
Interest Payment Date on which interest has been paid or, if no interest has
been paid, from March 4, 2003; provided that if there is no existing Default in
the payment of interest, and if this Note is authenticated between a record date
referred to on the face hereof and the next succeeding Interest Payment Date,
interest shall accrue from such next succeeding Interest Payment Date; provided,
further, that the first Interest Payment Date shall be September 1, 2003.
Further, the Company shall pay interest on overdue principal and premium, if
any, from time to time on demand at a rate equal to the interest rate then in
effect; it shall pay interest on overdue installments of interest (without
regard to any applicable grace periods) from time to time on demand at the same
rate to the extent lawful. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
[The Holder of this Note is entitled to the benefits of a registration
rights agreement, dated as of March 4, 2003, between the Company and the Initial
Purchasers named therein (the "Registration Rights Agreement"). In the event
that a Registration Default (as defined in the Registration Rights Agreement)
occurs, liquidated damages ("Liquidated Damages") will accrue on the affected
Transfer Restricted Notes and the affected Private Exchange Notes, as
applicable. The rate of Liquidated Damages will be $0.05 per week per $1,000
principal amount of Transfer Restricted Notes and affected Private Exchange
Notes held by such Holder for the first 90-day period immediately following the
occurrence of a Registration Default, increasing by an additional $0.05 per week
per $1,000 principal amount of Transfer Restricted Notes and affected Private
Exchange Notes with respect to each subsequent 90-day period thereafter up to a
maximum amount of Liquidated Damages for all Registration Defaults of $0.50 per
week per $1,000 principal amount of Transfer Restricted Notes and affected
Exchange Notes, from and including the date on which any such Registration
Default shall occur to, but excluding, the earlier of (1) the date on which all
Registration Defaults have been cured or (2) the date on which all Transfer
Restricted Notes and Private Exchange Notes otherwise become freely
transferrable by Holders
A-4
other than affiliates of the Company without further registration under the
Securities Act.]**
2. Ranking. The Notes are senior unsecured obligations of the
Company.
3. Redemption and Repurchase; Discharge Prior to Redemption or
Maturity. (a) At any time and from time to time prior to March 1, 2007, the
Company may, at its option, redeem the Notes, in whole or in part, at the
Make-Whole Price plus accrued and unpaid interest and Liquidated Damages, if
any, to the Redemption Date.
"Make-Whole Amount" with respect to a Note means an amount equal to the
excess, if any, of (1) the present value of the remaining interest, premium and
principal payments due on such Note (excluding any portion of such payments of
interest accrued as of the Redemption Date), computed using a discount rate
equal to the Treasury Rate plus 50 basis points, over (2) the outstanding
principal amount of such Note.
"Make-Whole Average Life" means the number of years (calculated to the
nearest one-twelfth) between the Redemption Date and the Stated Maturity of the
Notes.
"Make-Whole Price" means the sum of the outstanding principal amount of
the Notes to be redeemed plus the Make-Whole Amount for such Notes.
"Treasury Rate" is defined as the yield to maturity (calculated on a
semi-annual bond-equivalent basis) at the time of the computation of United
States Treasury securities with a constant maturity (as compiled by and
published in the most recent Federal Reserve Statistical Release H.15 (510),
which has become publicly available at least two business days prior to the date
of the redemption notice or, if such Statistical Release is no longer published,
any publicly available source of similar market data) most nearly equal to the
then remaining maturity of the Notes; provided that if the Make-Whole Average
Life of such note is not equal to the constant maturity of the United States
Treasury security for which a weekly average yield is given, the Treasury Rate
shall be obtained by linear interpolation (calculated to the nearest one-twelfth
of a year) from the weekly average yields of United States Treasury securities
for which such yields are given, except that if the Make-Whole Average Life of
such Note is less than one year, the weekly average yield on actually traded
United States Treasury securities adjusted to a constant maturity of one year
shall be used.
(b) At any time and from time to time on or after March 1, 2007, the
Company may, at its option, redeem the Notes, in whole or in part, at a
redemption price equal to the percentage of their principal amount set forth
below plus accrued and unpaid interest and Liquidated Damages, if any, to the
- ---------------------------
** Include only for the Transfer Restricted Notes and Private Exchange Notes.
A-5
Redemption Date, if redeemed during the twelve-month period beginning on March 1
of the years indicated below:
Twelve-Month Period
Commencing in Year Percentage
- ------------------- ----------
2007 104.063%
2008 102.031%
2009 and thereafter 100.000%
(c) At any time and from time to time prior to March 1, 2006, the
Company may, at its option, redeem up to 35% of the aggregate principal amount
of the notes with the net cash proceeds received by the Company from any Public
Equity Offering (excluding any net cash proceeds received from Williams or any
of its Affiliates) at a redemption price equal to 108.125% of their principal
amount plus accrued and unpaid interest and Liquidated Damages, if any, to the
Redemption Date; provided that (1) in each case the redemption takes place not
later than 90 days after the closing of the related Public Equity Offering, and
(2) at least 65% of the aggregate principal amount of Notes remains outstanding
immediately after the occurrence of such redemption (excluding Notes held by the
Company and its Subsidiaries).
(d) This Note may be the subject of a Change of Control Offer and/or an
Asset Sale Offer, each as further described in the Indenture.
(e) If the Company deposits with the Trustee money or U.S. Government
Obligations sufficient to pay the then outstanding principal of, premium, if
any, and accrued interest and Liquidated Damages on the Notes to the Redemption
Date or the Maturity Date, as the case may be, the Company may in certain
circumstances specified in the Indenture be discharged from the Indenture and
the Notes or may be discharged from certain of its obligations under the
Indenture.
(f) Periodic interest installments with respect to which the Interest
Payment Date is on or prior to any Redemption Date will be payable to Holders of
record at the close of business on the relevant record dates referred to herein,
all as provided in the Indenture.
(g) Notice of redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each Holder of Notes to be redeemed
at his registered address. Notes in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000. On or after the
Redemption Date interest will cease to accrue on Notes or on the portions
thereof called for redemption, as the case may be.
4. Paying Agent and Registrar. Initially, JPMorgan Chase Bank, the
Trustee under the Indenture, will act as Paying Agent and Registrar. The Company
may change any Paying Agent, Registrar, co-registrar or additional
A-6
paying agent without notice to any Holder. The Company or any of its
subsidiaries may act in any such capacity.
5. Indenture. The Company issued the Notes under an Indenture
dated as of March 4, 2003 (as amended, supplemented or otherwise modified form
time to time, the "Indenture") between the Company and the Trustee. The terms of
the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code Sections 77aaa-77bbbb), as in effect on the date of execution of the
Indenture (the "TIA"). The Notes are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms.
Capitalized terms used but not defined in this Note have the respective meanings
given to such terms in the Indenture.
6. Denominations, Transfer, Exchange. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or permitted by the Indenture. The
Registrar need not exchange or register the transfer of any Notes during the
period between a record date and the corresponding Interest Payment Date.
7. Persons Deemed Owners. The registered Holder of a Note shall
be treated as its owner for all purposes.
8. Amendments and Waivers. Subject to certain exceptions and
limitations, the Indenture or the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the then
outstanding Notes, and compliance in a particular instance by the Company with
any provision of the Indenture may be waived (other than certain provisions,
including any continuing Default or Event of Default in the payment of the
principal of, or premium, if any, or interest on the Notes) by the Holders of at
least a majority in principal amount of the Notes then outstanding in accordance
with the terms of the Indenture. Without the consent of any Holder, the Company
and the Trustee may amend or supplement the Indenture or the Notes (i) to cure
any ambiguity, omission, defect or inconsistency; (ii) to provide for the
assumption of the Company's obligations to Holders of Notes in the case of a
merger, consolidation or sale of all or substantially all of the assets of the
Company; (iii) to provide for uncertificated Notes in addition to or in place of
certificated Notes; (iv) to provide for any Guarantee of the Notes, to secure
the Notes or to confirm and evidence the release, termination or discharge of
any Guarantee of or Lien securing the Notes when such release, termination or
discharge is permitted by the Indenture; (v) to make any change that would
provide any additional rights or benefits to the Holders of Notes or that does
not adversely affect the legal rights under the Indenture of any such Holder;
(vi) to provide for the acceptance of appointment under the Indenture of a
successor Trustee in compliance with the provisions of the Indenture; or (vii)
to comply with any requirements of the
A-7
Commission under the Securities Act or the Exchange Act or in order to effect or
maintain the qualification of the Indenture under the TIA.
The right of any Holder to participate in any consent required or
sought pursuant to any provision of the Indenture (and the obligation of the
Company to obtain any such consent otherwise required from such Holder) may be
subject to the requirement that such Holder shall have been the Holder of record
of any Notes with respect to which such consent is required or sought as of a
date identified by the Trustee in a notice furnished to Holders in accordance
with the terms of the Indenture.
Without the consent of each Holder affected, an amendment, supplement
or waiver under the Indenture may not (i) reduce the principal amount of Notes
whose Holders must consent to an amendment, supplement or waiver, (ii) reduce
the rate of or change the time for payment of interest or Liquidated Damages on
any Note, (iii) reduce the principal of or change the fixed maturity of any Note
or alter the provisions (including, without limitation, the amount of any
premium or the price thereunder) with respect to the redemption of the Notes
(other than as specified in Section 8.02 of the Indenture), (iv) make any Note
payable in money other than that stated in the Note, (v) make any change in the
provisions of the Indenture relating to waivers of past Defaults or the rights
of Holders of Notes to receive payments of principal of, or interest or premium
or Liquidated Damages, if any, on the Notes, (vi) waive a redemption payment
with respect to any Note (other than as specified in Section 8.02 of the
Indenture); (vii) release any Guarantor from any of its obligations under its
Subsidiary Guarantee or the Indenture, except in accordance with the terms of
the Indenture; or (viii) waive a Default or Event of Default in the payment of
principal of, or interest or premium, or Liquidated Damages, if any, on the
Notes (except a rescission of acceleration of the Notes by the Holders of at
least a majority in aggregate principal amount of the Notes and a waiver of the
payment default that resulted from such acceleration) or (ix) make any change in
the preceding amendment and waiver provisions.
9. Defaults and Remedies. Events of Default include: (i) default
in payment when due of interest or Liquidated Damages, if any, on the Notes for
30 days; (ii) default in payment when due of principal of, or premium, if any,
on the Notes; (iii) failure by the Company to purchase Notes tendered pursuant
to a Change of Control Offer or an Asset Sale Offer as described under and in
accordance with the terms of Sections 3.11 and 3.12 of the Indenture, or failure
of the Company or any Guarantor to comply with the provisions of Article IV of
the Indenture relating to mergers and consolidations, (iv) failure by the
Company or any of its Restricted Subsidiaries for 60 days after notice from the
Trustee or the Holders of at least 25% of the outstanding principal amount of
the Notes, to comply with any of the other agreements in the Indenture; (v)
certain defaults specified in Section 5.01(a)(v) of the Indenture under any
mortgage, indenture or instrument evidencing Indebtedness for money borrowed by
the Company or any of its Restricted Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Restricted Subsidiaries); (vi) failure
by the Company or any of its Subsidiaries to pay final judgments aggregating in
excess of $15 million,
A-8
which judgments are not paid, discharged or stayed for a period of 60 days;
(vii) except as permitted by the Indenture, any Subsidiary Guarantee being held
in any judicial proceeding to be unenforceable or invalid or ceasing for any
reason to be in full force and effect or any Guarantor, or any Person acting on
behalf of any Guarantor, denying or disaffirming its obligations under its
Subsidiary Guarantee; and (viii) certain voluntary or involuntary events
specified in Sections 5.01(a)(viii) and 5.01(a)(ix) of the Indenture involving
bankruptcy, insolvency or reorganization of the Company. If an Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Notes may declare the principal of, and
premium, if any, and accrued and unpaid interest and Liquidated Damages, if any,
on all the Notes to be immediately due and payable, except that in the case of
an Event of Default arising from certain events of bankruptcy, insolvency or
reorganization of the Company, any Subsidiary that is a Significant Subsidiary
or any group of Subsidiaries that, taken together, would constitute a
Significant Subsidiary specified in Sections 5.01(a)(viii) and 5.01(a)(ix) of
the Indenture, all outstanding Notes will become due and payable immediately
without further action or notice. Holders may not enforce the Indenture or the
Notes except as provided in the Indenture. The Trustee may require indemnity
reasonably satisfactory to it before it enforces the Indenture or the Notes.
Subject to certain limitations, Holders of a majority in principal amount of the
then outstanding Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on it under the Indenture. The Trustee may withhold from Holders
notice of any continuing default (except a default in payment of principal or
premium, if any, or interest) if and so long as it determines that withholding
notice is in their interests. The Company must furnish an annual compliance
certificate to the Trustee.
10. Trustee Dealings with the Company. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not Trustee.
11. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Notes or the Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. Each
Holder by accepting a Note waives and releases all such liability. The waiver
and release are part of the consideration for the issuance of the Notes.
12. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
13. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Note Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes as a convenience to the Holders of the
Notes. No representation is made as to the accuracy of such numbers as printed
A-9
on the Notes and reliance may be placed only on the other identification numbers
printed thereon.
14. Abbreviations. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
15. Governing Law. The Indenture and the Notes shall be governed
by and constructed in accordance with, the laws of the State of New York.
16. [Additional Rights and Obligations of Holders of Transfer
Restricted Notes. In addition to the rights provided to Holders of Notes under
the Indenture, Holders of Transfer Restricted Notes and Private Exchange Notes
shall have all the rights set forth in the Registration Rights Agreement
applicable to such Notes. Each Holder of a Transfer Restricted Note or a Private
Exchange Note, by his acceptance thereof, acknowledges and agrees to the
provisions of such Registration Rights Agreement, including without limitation
the obligations of the Holders with respect to a registration and the
indemnification of the Company to the extent provided therein.]***
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Request may be made to:
Northwest Pipeline Corporation
295 Chipeta Way
Salt Lake City, Utah 84108
Telephone No.: (801) 583-8800
Attention: Legal Department
- ---------------------------
*** This paragraph should be included only if the Note is a Transfer Restricted
Note or a Private Exchange Note.
A-10
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to
_______________________
________________________________________________________________________________
(Insert assignee's social security or tax I.D. number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint __________________________________________________as
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Date: ____________
Your Signature: ________________________________________________________________
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee: ___________________________________________________________
(Participant in a Recognized Signature Guaranty Medallion Program)
In connection with any transfer of any of the Notes evidenced by this
certificate occurring prior to the expiration of the later of (i) the period
referred to in Rule 144(k) under the Securities Act after the later of the date
of original issuance of such Notes and the last date, if any, on which such
Notes were owned by the Company or any Affiliate of the Company, and (ii) such
later date, if any, as may be required by applicable law, the undersigned
confirms that such Notes are being transferred as specified below:
CHECK ONE
(1) [ ] to the Company; or
(2) [ ] to a "qualified institutional buyer" (as defined in Rule 144A under
the Securities Act of 1933) that purchases for its own account or for
the account of a qualified institutional buyer to whom notice is given
that such transfer is being made in reliance on Rule 144A, in each case
pursuant to and in compliance with Rule 144A under the Securities Act
of 1933; or
A-11
(3) [ ] outside the United States to a "foreign person" in compliance with
Rule 904 of Regulation S under the Securities Act of 1933; or
(4) [ ] pursuant to an effective registration statement under the Securities
Act of 1933; or
(5) [ ] pursuant to an exemption from, or a transaction not subject to, the
registration requirements of the Securities Act of 1933, provided by
Rule 144 thereunder.
and unless the box below is checked, the undersigned confirms that such Note is
not being transferred to an "affiliate" of the Company as defined in Rule 144
under the Securities Act of 1933 (an "Affiliate"):
[ ] The transferee is an Affiliate of the Company.
Unless one of items (1) through (5) above is checked, the Trustee will
refuse to register any of the Notes evidenced by this certificate in the name of
any person other than the registered Holder thereof; provided, however, that if
item (3) or (5) is checked, the Company or the Trustee may require, prior to
registering any such transfer of the Notes, in their sole discretion, such
written legal opinions, certifications (including an investment letter, and in
the case of a transfer pursuant to item (3), a Regulation S Letter in
substantially the form set forth below) and other information as the Trustee or
the Company have reasonably requested to confirm that such transfer is being
made pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933.
If none of the foregoing items are checked, the Trustee or Registrar
shall not be obligated to register this Note in the name of any person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.06 of the Indenture shall have
been satisfied.
Signed: __________________________
(Sign exactly as your name appears on the
other side of this Note)
Signature Guarantee: _________________________________________________
A-12
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this Note
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933 and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated: __________________________ _________________________________________
Notice: to be executed by an executive
officer****
- ---------------------------
**** These paragraphs should be included only if the Note is Transfer
Restricted Note.
A-13
FORM OF REGULATION S LETTER TO BE DELIVERED
IN CONNECTION WITH TRANSFERS PURSUANT TO REGULATION S
__________________,____
JPMorgan Chase Bank, as Trustee.
Four New York Plaza, 15th Floor
New York, New York 10004
Telecopier No.: (212) 623-6167
Attention: Joanne Adamis
Re: 8 1/8% Series A Senior Notes due 2010 of Northwest Pipeline
Corporation.
Ladies and Gentlemen:
In connection with our proposed sale of $________________ principal
amount of the above referenced Notes (the "Notes"), we confirm that such sale
has been effected pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we
represent that:
(1) the offer of the Notes was not made to a person in the United
States of America;
(2) at the time the buy order was originated, the transferee was
outside the United States of America or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States of
America;
(3) no directed selling efforts have been made by us, any of our
affiliates or any person acting on our or their behalf in the United States of
America in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
You and Northwest Pipeline Corporation are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof to
any interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby. Terms used but not defined
in this letter have the meanings set forth in Regulation S under the Securities
Act.
Very truly yours,
[Name of Transferor]
By_________________________
Authorized Signature
A-14
SCHEDULE OF EXCHANGES OF NOTES****
The following exchanges, redemptions or repurchases of a part of this
Global Note have been made:
Principal Amount of
Global Note Signature of
Amount of decrease Amount of increase following such authorized Officer,
Date of in Principal Amount in Principal Amount decrease (or Trustee or Notes
Transaction of Global Note of Global Note increase) Custodian
- ----------- -------------- -------------- --------- ---------
- ---------------------------
**** This Schedule should be included only if the Note is a Global Note.
A-15
EXHIBIT B
SUPPLEMENTAL INDENTURE
dated as of __________, ____
among
NORTHWEST PIPELINE CORPORATION,
[The Guarantor(s) Party Hereto]
and
JPMORGAN CHASE BANK,
as Trustee
8 1/8%
Senior Notes due
2010
B-1
THIS SUPPLEMENTAL INDENTURE (this "SUPPLEMENTAL INDENTURE"), entered
into as of __________, ____, among Northwest Pipeline Corporation, a Delaware
corporation (the "COMPANY"), [insert each Guarantor executing this Supplemental
Indenture and its jurisdiction of incorporation] (each an "UNDERSIGNED") and
JPMorgan Chase Bank, as trustee (the "TRUSTEE").
RECITALS
WHEREAS, the Company, the Guarantors party thereto and the Trustee
entered into the Indenture, dated as of March 4, 2003 (the "INDENTURE"),
relating to the Company's 8 1/8% Senior Notes due 2010 (the "NOTES");
WHEREAS, as a condition to the Trustee entering into the Indenture and
the purchase of the Notes by the Holders, the Company agreed pursuant to the
Indenture to cause any newly acquired or created Domestic Restricted
Subsidiaries to provide Guaranties.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained and intending to be legally bound, the parties to this
Supplemental Indenture hereby agree as follows:
SECTION 1. Capitalized terms used herein and not otherwise defined
herein are used as defined in the Indenture.
SECTION 2. Each Undersigned, by its execution of this Supplemental
Indenture, agrees to be a Guarantor under the Indenture and to be bound by the
terms of the Indenture applicable to Guarantors, including, but not limited to,
Article 10 thereof.
SECTION 3. This Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 4. This Supplemental Indenture may be signed in various
counterparts which together will constitute one and the same instrument.
SECTION 5. This Supplemental Indenture is an amendment supplemental to
the Indenture and the Indenture and this Supplemental Indenture will henceforth
be read together.
B-2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
NORTHWEST PIPELINE
CORPORATION, as Issuer
By: _______________________
Name:
Title:
[GUARANTOR]
By: _______________________
Name:
Title:
JPMORGAN CHASE BANK, as Trustee
By: _______________________
Name:
Title:
B-3