THE WILLIAMS COMPANIES, INC., AND THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee FIRST SUPPLEMENTAL INDENTURE Dated as of February 1, 2010
Exhibit 4.2
THE XXXXXXXX COMPANIES, INC.,
AND
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of February 1, 2010
Dated as of February 1, 2010
THIS FIRST SUPPLEMENTAL INDENTURE is dated as of February 1, 2010 between The Xxxxxxxx
Companies, Inc., a Delaware corporation (the “Company”) and The Bank of New York Mellon Trust
Company, N.A. (the “Trustee”).
RECITALS
A. The Company has executed and delivered to the Trustee an Indenture, dated as of March 5,
2009 (the “Indenture”), to provide for the issuance by the Company of its 8.75% Senior Notes due
2020 (the “Securities”).
B. The Company has obtained, on or prior to the date hereof, the consent of a majority in
principal amount of the Outstanding Securities to the amendment to the Indenture set forth in this
First Supplemental Indenture.
NOW, THEREFORE, for and in consideration of the foregoing premises, the Company and the
Trustee mutually covenant and agree for the equal and proportionate benefit of the respective
Holders from time to time of the Securities as follows:
ARTICLE I
Section 1.1 Amendment to Section 801 of the Indenture.
The following amendment will become operative upon (i) the Company’s delivery of a written
notice to the Trustee and Global Bondholder Services Corporation (“GBSC”), the depositary for the
Securities in connection with the Company’s Offer to Purchase and Consent Solicitation Statement
dated January 19, 2010 (the “Statement”), confirming the Company’s acceptance for purchase of the
Outstanding Securities validly tendered (and not validly withdrawn) pursuant to the Statement (the
“Accepted Securities”), and (ii) GBSC’s delivery of a written notice to the Trustee confirming
receipt by The Depository Trust Company and/or GBSC from the Company of funds for payment of (a)
the applicable consideration required by the Statement to the Holders of the Accepted Securities
and (b) the Consent Fee to the Holders of Securities validly tendered (and not validly withdrawn)
at or prior to the Expiration Time that were not purchased due to the proration provided for in the
Statement (the terms “Expiration Time” and “Consent Fee” having the meanings ascribed thereto in
the Statement).
Section 801 shall be amended by inserting the following immediately after clause (4) thereof:
Notwithstanding any other provision of this Section 801, the Dropdown shall be deemed not to be a
sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of
the Company’s assets and properties and the assets and properties of its Subsidiaries (taken as a
whole), and shall be exempted from any determination of whether there has occurred a sale,
assignment, transfer, lease, conveyance or other disposition of all or substantially all of the
Company’s assets and properties and the assets and properties of its Subsidiaries (taken as a
whole). For purposes of the immediately preceding sentence, the following terms have the meanings
ascribed to them.
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“Class C Units” means the proposed Class C limited partner units of WPZ, which will be
identical to WPZ’s common limited partner units except that (i) in the first fiscal quarter
in which the Class C Units are outstanding they will receive a quarterly distribution that
is prorated to reflect the fact that the Class C Units were not outstanding during the full
quarterly period, and (ii) they will automatically convert into WPZ’s common limited partner
units following the record date for the distribution with respect to the first fiscal
quarter in which the Class C Units are outstanding.
“Contribution Agreement” means the Contribution Agreement dated as of January 15, 2010,
by and among Xxxxxxxx Gas Pipeline Company, LLC, Xxxxxxxx Energy Services, LLC, WGP
Gulfstream Pipeline Company, L.L.C., Xxxxxxxx Partners GP LLC, WPZ and Xxxxxxxx Partners
Operating LLC, and solely with respect to Section 9.11, the Company.
“Dropdown” means the transactions contemplated in the Contribution Agreement, pursuant
to which the Company (through certain of its Subsidiaries) will contribute to WPZ the
ownership interests in the entities that make up the Company’s Gas Pipeline and Midstream
Gas and Liquids business segments (including its limited and general partner interests in
WMZ, but excluding its Canadian, Venezuelan and olefins operations, and a 25.5% interest in
Gulfstream Natural Gas System, L.L.C.), to the extent not already owned by WPZ and its
subsidiaries, in exchange for aggregate consideration of (i) the Net Cash Consideration,
(ii) 203 million Class C Units and (iii) an increase in the capital account of WPZ’s general
partner to allow it to maintain its 2% general partner interest and the issuance of general
partner units to WPZ’s general partner equal to 2/98th of the number of Class C Units that
will be issued, resulting in the Company holding an approximate 82% limited partner interest
and a 2% general partner interest in WPZ.
“Net Cash Consideration” means $3.5 billion in cash, less all expenses incurred by WPZ
in connection with (i) the transactions contemplated by the Contribution Agreement, (ii) the
Proposed Private Placement, including any initial purchasers’ discount or original issue
discount, (iii) the establishment of the WPZ Credit Facility, (iv) the WMZ Exchange Offer
and (v) one-half of any and all applicable filing fees under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended.
“Proposed Private Placement” means a proposed private placement of WPZ’s senior
unsecured notes to be conducted pursuant to Rule 144A under the Securities Act of 1933, as
amended, in connection with the Dropdown.
“WMZ” refers to Xxxxxxxx Pipeline Partners L.P., a Delaware master limited partnership.
“WMZ Exchange Offer” means a proposed exchange offer to be conducted by WPZ following
the consummation of the Dropdown whereby the outstanding publicly traded common units of WMZ
will be exchanged for WPZ’s common limited partnership units.
“WPZ” refers to Xxxxxxxx Partners L.P., a Delaware master limited partnership.
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“WPZ Credit Facility” means the proposed senior unsecured revolving credit facility to
be established by WPZ in connection with the Dropdown.
ARTICLE II
MISCELLANEOUS
Section 2.1 Definitions.
Capitalized terms used but not defined in this First Supplemental Indenture shall have the
meanings ascribed thereto in the Indenture.
Section 2.2 Confirmation of Indenture.
The Indenture, as supplemented and amended by this First Supplemental Indenture, is in all
respects ratified and confirmed, and the Indenture, this First Supplemental Indenture and all
indentures supplemental thereto shall be read, taken and construed as one and the same instrument.
Section 2.3 Concerning the Trustee.
In carrying out the Trustee’s responsibilities hereunder, the Trustee shall have all of the
rights, protections and immunities which it possesses under the Indenture. The Trustee assumes no
responsibility for the correctness of the recitals contained herein. The Trustee makes no
representations as to the validity or sufficiency of this First Supplemental Indenture.
Section 2.4 Governing Law.
This First Supplemental Indenture shall be governed by and construed in accordance
with the laws of the State of New York applicable to agreements made or instruments entered into
and, in each case, performed in said State.
Section 2.5 Effectiveness.
This First Supplemental Indenture shall become effective upon execution by the Company and the
Trustee; provided, however, that the amendment set forth in Article I hereof shall only become
operative according to the terms of Article I.
Section 2.6 Counterparts.
This First Supplemental Indenture may be executed in several counterparts each of which shall
be an original and all of which shall constitute but one and the same instrument.
Section 2.7 No Benefit.
Nothing in this First Supplemental Indenture, express or implied, shall give to any Person
other than the parties hereto and their successors or assigns, and the Holders of the Securities,
any benefit or legal or equitable rights, remedy or claim under this First Supplemental Indenture
or the Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be
duly executed all as of the day and year first above written.
| THE XXXXXXXX COMPANIES, INC. | ||||||
| By: | /s/ Xxxxxx X. Sailor
|
|||||
| Title: Vice President and Treasurer | ||||||
| THE BANK OF NEW YORK MELLON | ||||||
| TRUST COMPANY, N.A., as Trustee | ||||||
| By: | /s/ Xxxxx Xxxxxxx-Xxxxx
|
|||||
| Title: Senior Associate | ||||||
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