EXHIBIT 4
NINTH SUPPLEMENTAL INDENTURE
DATED AS OF JUNE 10, 2003
BETWEEN
THE ▇▇▇▇▇▇▇▇ COMPANIES, INC.,
AS ISSUER
AND
JPMORGAN CHASE BANK,
AS TRUSTEE
ARTICLE 1
DEFINITIONS
Section 1.01. Definition of Terms............................................................. 1
Section 1.02. Rules of Construction........................................................... 25
ARTICLE 2
THE SERIES OF NOTES
Section 2.01. Title of the Securities......................................................... 25
Section 2.02. Form And Dating................................................................. 25
Section 2.03. Aggregate Principal Amount...................................................... 26
Section 2.04. Principal Payment Date.......................................................... 26
Section 2.05. Interest And Interest Dates..................................................... 26
Section 2.06. Optional Redemption............................................................. 26
Section 2.07. Redemption with Proceeds of Public Equity Offering.............................. 27
Section 2.08. Change Of Control Offer......................................................... 27
Section 2.09. Defeasance...................................................................... 30
ARTICLE 3
COVENANTS
Section 3.01. Applicability Of Covenants...................................................... 30
Section 3.02. Commission Reports; Financial Statements........................................ 30
Section 3.03. Limitation On Restricted Payments............................................... 31
Section 3.04. Limitation On Incurrence Of Indebtedness And Issuance Of
Preferred Stock........................................................................ 35
Section 3.05. Limitation On Liens............................................................. 37
Section 3.06. Limitation On Dividend And Other Payment Restrictions
Affecting Subsidiaries................................................................. 38
Section 3.07. Repurchase Of Notes Upon A Change Of Control.................................... 39
Section 3.08. Limit On Asset Sales............................................................ 40
Section 3.09. Limitation On Transactions With Affiliates...................................... 44
Section 3.10. Designation Of Restricted And Unrestricted Subsidiaries......................... 46
Section 3.11. Limitation On Sale And Leaseback Transactions................................... 46
Section 3.12. Business Activities............................................................. 46
Section 3.13. Payments For Consent............................................................ 46
Section 3.14. Limitation On Mergers, Consolidations And Sales Of Assets....................... 47
Section 3.15. Covenant Termination............................................................ 48
ARTICLE 4
EVENTS OF DEFAULT
Section 4.01. Applicability Of Events Of Default.............................................. 48
Section 4.02. Events Of Default Defined....................................................... 48
Section 4.03. Acceleration.................................................................... 51
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Section 4.04. Waiver Of Existing Defaults..................................................... 52
Section 4.05. Conflict with Base Indenture.................................................... 52
ARTICLE 5
EXECUTION OF NOTES
Section 5.01. Execution of Notes.............................................................. 52
ARTICLE 6
MISCELLANEOUS PROVISIONS
Section 6.01. Ratification.................................................................... 53
Section 6.02. Counterparts.................................................................... 53
Section 6.03. Governing Law................................................................... 53
Section 6.04. No Recitals, etc................................................................ 53
Section 6.05. Paying Agent.................................................................... 53
Section 6.06. Liability Of Incorporators, Stockholders, etc................................... 53
Exhibit A. Form of Note....................................................................... A-1
ii
NINTH SUPPLEMENTAL INDENTURE, dated as of June 10, 2003 (the "NINTH
SUPPLEMENTAL INDENTURE"), between The ▇▇▇▇▇▇▇▇ Companies, Inc., a corporation
duly organized and existing under the laws of the State of Delaware (the
"COMPANY"), and JPMorgan Chase Bank, a New York banking corporation (as
successor trustee to Bank One Trust Company, National Association (successor in
interest to the First National Bank of Chicago)), as trustee (the "TRUSTEE").
WHEREAS, the Company executed and delivered the Indenture dated as of
November 10, 1997 (the "BASE INDENTURE") to the Trustee to provide for the
issuance from time to time of the Company's senior, unsecured debentures, notes,
or other evidences of indebtedness (the "SECURITIES"), to be issued in one or
more series as might be determined by the Company under the Base Indenture; and
WHEREAS, pursuant to the terms of the Base Indenture, the Company
desires to provide for the establishment of a new series of its Securities to be
known as its 85/8% Senior Notes due 2010 (the "NOTES"), the form and terms of
such Notes and the terms, provisions and conditions thereof to be set forth as
provided in the Base Indenture and this Ninth Supplemental Indenture (together,
the "INDENTURE"); and
WHEREAS, the Company has requested that the Trustee execute and deliver
this Ninth Supplemental Indenture and all requirements necessary to make this
Ninth Supplemental Indenture a valid, binding and enforceable instrument in
accordance with its terms, and to make the Notes, when executed, authenticated
and delivered by the Company, the valid, binding and enforceable obligations of
the Company, have been done and performed, and the execution and delivery of
this Ninth Supplemental Indenture has been duly authorized in all respects.
NOW THEREFORE, in consideration of the purchase and acceptance of the
Notes by the Holders thereof, and for the purpose of setting forth, as provided
in the Base Indenture, the form and terms of the Notes, the Company covenants
and agrees with the Trustee as follows:
ARTICLE 1
DEFINITIONS
Section 1.01 Definition of Terms. Unless the context otherwise
requires:
(a) except as provided in Section 1.01(c), a term defined
in the Base Indenture has the same meaning when used in this Ninth
Supplemental Indenture;
(b) a term defined anywhere in this Ninth Supplemental
Indenture has the same meaning throughout;
(c) a term defined anywhere in this Ninth Supplemental
Indenture that has a meaning inconsistent with the meaning given such
term in the Base Indenture shall have the meaning given such term in
this Ninth Supplemental Indenture;
(d) the singular includes the plural and vice versa;
(e) headings are for convenience of reference only and do
not affect interpretation; and
(f) the following terms have the meanings given to them
in this :
"ACQUIRED DEBT" means, with respect to any specified 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.
"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 Section 3.07 or Section 3.14 hereof and not by the
provisions of Section 3.08; 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.
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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 $10.0 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;
(8) a Restricted Payment or Permitted Investment that is
permitted by Section 3.03 hereof;
(9) dispositions in the ordinary course of business on
arm's-length terms consummated pursuant to Oil and Gas Agreements; and
(10) (i) dispositions of property acquired after the date
hereof required in connection with operating contracts, joint venture
agreements and lease arrangements entered into after the date hereof in
the ordinary course of business and on arm's-length terms (which
disposition is with the other party to such agreement), the aggregate
value of which shall not exceed $25,000,000 per fiscal year and (ii)
dispositions required in connection with operating contracts, joint
venture agreements and lease agreements existing on the date hereof.
"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.
"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
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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 or any committee of such board authorized to act on
its behalf;
(2) with respect to a partnership, the board of directors
of the general partner of the partnership or any committee of such
board authorized to act on its behalf; and
(3) with respect to any other Person, the board or
committee of such Person serving a similar function.
"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 two years from the date
of acquisition;
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(3) (i) demand deposits, (ii) certificates of deposit and
eurodollar time deposits with maturities of one year or less from the
date of acquisition, (iii) bankers' acceptances with maturities not
exceeding 365 days and (iv) 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 $100.0 million;
(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 rated at least P-2 by Moody's or A-2
by S&P and in each case maturing within 270 days after the date of
acquisition;
(6) short-term tax exempt securities, including municipal
notes, commercial paper, auction rate floaters, and floating rate notes
rated either P-1 by Moody's or A-1 by S&P and maturing within 270 days
of acquisition;
(7) securities with maturities of one year or less from
the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States, by any political
subdivision or taxing authority of any such state, commonwealth or
territory or by any foreign government, the securities of which state,
commonwealth, territory, political subdivision, taxing authority or
foreign government (as the case may be) are rated at least A by Moody's
or A by S&P ;
(8) money market funds the assets of which constitute
primarily Cash Equivalents of the kinds described in clauses (1)
through (7) of this definition; and
(9) 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
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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, 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 trustee or
other fiduciary holding securities under an employee benefit plan of
the Company or any of its Subsidiaries) 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;
(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) 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).
"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
6
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 Related Interest
Rate or Currency ▇▇▇▇▇▇), to the extent that any such expense was
deducted in computing such Consolidated Net Income; plus
(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
items (excluding any such non-cash item to the extent that it
represents an accrual of or reserve for cash expenses in any future
period or amortization of a prepaid cash expense that was paid in a
prior period) of such Person and its Subsidiaries for such period to
the extent that such depreciation, amortization and other non-cash
items 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 losses incurred as a result of EM&T Portfolio
Disposition Transactions, to the extent such losses were deducted in
computing such Consolidated Net Income, minus
(7) all gains as a result of EM&T Portfolio Disposition
Transactions, to the extent such gains were included in computing such
Consolidated Net Income; plus
(8) 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; minus
(9) non-cash items increasing such Consolidated Net
Income for such period, other than the accrual of revenue in the
ordinary course of business,
in each case, on a consolidated basis and determined (where applicable) 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:
7
(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.
"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.
"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
hereof; 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.
"CREDIT AGREEMENT" means the Credit Agreement dated June 6, 2003 by and
among the Company, Northwest Pipeline Corporation and Transcontinental Gas Pipe
Line Corporation as Borrowers and the banks named therein as Banks, the "Issuing
Banks", "Co-Lead Arrangers" and other parties referred to therein, and Citicorp
USA, Inc., as Agent and Collateral Agent, including any related notes,
guarantees, collateral documents, instruments and agreements executed in
8
connection therewith, and in each case as amended, modified, renewed, refunded,
replaced or refinanced from time to time.
"CREDIT FACILITIES" means, one or more debt facilities (including,
without limitation, (1) the Credit Agreement, (2) the New RMT Loan, and (3) 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 between the Company as borrower, on the one hand,
and one or more of its Subsidiaries, on the other (provided that in the case of
such intercompany arrangements with the Company's Subsidiaries that such
arrangements are on terms consistent with practices in existence on the date
hereof) 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.
"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.
"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 3.03 hereof.
"EM&T PORTFOLIO DISPOSITION TRANSACTION" means the sale, buyout,
liquidation or material restructuring, not in the ordinary course of business,
of a tolling or full requirements structured transaction in existence on the
date hereof, and associated Hedging Obligations; provided that in the good faith
belief of an executive officer of the Company, such sale, buyout, liquidation or
restructuring is consistent with the effort to reduce the risk profile and
overall financial commitment of the Company's Energy Marketing & Trading
business.
"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).
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"EQUITY OFFERING" means a primary issuance, after the date hereof, of
Capital Stock (other than Disqualified Stock) of the Company either through an
offering 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 pursuant to a private placement (but excluding in any event any
issuance pursuant to an exemption from the registration requirements of the
Securities Act or any issuance pursuant to employee benefit plans or otherwise
in compensation to officers, directors or employees).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXISTING INDEBTEDNESS" means Indebtedness of the Company and its
Restricted Subsidiaries (other than Indebtedness under the Credit Facilities) in
existence on the date hereof, until such amounts are repaid.
"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) and
including any related financing transactions (including any 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) have 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 or Cash
Equivalents held by such Person or any of its Restricted Subsidiaries)
and any pro forma expense and cost reductions
10
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
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.
"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 Related
Interest Rate or Currency ▇▇▇▇▇▇ ; 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
(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
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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.
"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, all as in effect from time to time.
"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.
"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 or 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;
(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.
"INDEBTEDNESS" means, with respect to any specified Person, any
obligation of such Person, whether or not contingent:
(1) in respect of borrowed money;
12
(2) evidenced by bonds (but not including performance or
surety 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 Related Interest Rate or Currency
▇▇▇▇▇▇, or
(7) under Permitted Receivables Financings;
if and to the extent any of the preceding items (other than letters of
credit and Related Interest Rate or Currency ▇▇▇▇▇▇ 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;
(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 Related Interest Rate or Currency
▇▇▇▇▇▇, the net amount payable if such Related Interest Rate or
Currency ▇▇▇▇▇▇ 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.
"INVESTMENT GRADE DATE" has the meaning set forth in Section 3.15
hereof.
13
"INVESTMENT GRADE RATING" means a rating equal to or higher than Baa3
by Moody's (or its equivalent under any successor rating categories of Moody's)
and BBB- by S&P (or its equivalent under any successor rating categories of
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 Restricted Subsidiaries to the extent permitted by Section
3.04 hereof)), 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 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
paragraph (c) of Section 3.03 hereof. 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 paragraph (c) of Section 3.03 hereof.
"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.
"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. "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 (519), which has become publicly available at least two Business
14
Days prior to the date of the related redemption notice given pursuant to
Section 12.2 of the Base Indenture 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. "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.
"MOODY'S" means ▇▇▇▇▇'▇ 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
15
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.
"NEW RMT LOAN" means the Term Loan Agreement dated as of May 30, 2003
among ▇▇▇▇▇▇▇▇ Production Holdings LLC, ▇▇▇▇▇▇▇▇ Production RMT Company, as
borrower, the "Lenders", "Arrangers", "Co-Syndication Agents" and "Documentation
Agent" referred to therein, and ▇▇▇▇▇▇ Commercial Paper Inc., as Administrative
Agent, including any related notes, guarantees, collateral documents,
instruments and agreements executed in connection therewith, and as the same may
further be amended, modified, renewed, refunded, replaced or refinanced from
time to time.
"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.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"OIL AND GAS AGREEMENTS" means operating agreements, processing
agreements, farm-out and farm-in agreements, development agreements, area of
mutual interest agreements, contracts for the gathering and/or transportation of
oil and natural gas, unitization agreements, pooling arrangements, joint bidding
agreements, joint venture agreements, participation agreements, surface use
agreements, service contracts, tax credit agreements, leases and subleases of
oil and gas properties or other similar customary agreements; transactions,
properties, interests or arrangements, howsoever designated, in each case made
or entered
16
into in the ordinary course of business as conducted by the Company and its
Restricted Subsidiaries.
"PERMITTED BUSINESS" means the lines of business conducted by the
Company and its Restricted Subsidiaries on the date hereof 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 Officers' Certificate delivered to the Trustee.
"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 3.08 hereof, 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 Restricted Subsidiary (other than Indebtedness that
is subordinated to the Notes);
(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;
17
(8) Hedging Obligations incurred in the ordinary course
of business;
(9) Investments in a Securitization Subsidiary that are
necessary or desirable to effect any Permitted Receivables Financing;
(10) Investments by the Company or any Restricted
Subsidiary in the Discovery, Gulfstream, Aux Sable and Accroven joint
ventures existing on the date hereof in an aggregate amount for each
such joint venture (exclusive of equity Investments therein existing on
the date hereof) not in excess of the Company's direct or indirect
equity percentage interest of the total Indebtedness of such joint
venture on the date hereof, together with, in the case of Gulfstream,
such percentage interest of additional Indebtedness incurred in
accordance with expansions thereof that have been publicly announced
prior to the date hereof;
(11) Investments by the Company or any Restricted
Subsidiary in joint ventures operating primarily in a Permitted
Business in an amount which, together with the amount of all other
Investments made after the date hereof in reliance on this clause (11),
does not exceed 3% of Consolidated Net Tangible Assets;
(12) reclassification of any Investment initially made in
the form of equity as a loan or advance, and reclassification of any
Investment initially made in the form of a loan or advance as equity;
provided in each case that the amount of such Investment is not
increased thereby; and
(13) 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 made pursuant to this clause that
are at the time outstanding not to exceed $50 million.
"PERMITTED LIENS" means:
(1) Liens of the Company and any Restricted Subsidiary
securing any Credit Facility that was permitted by the terms of this
Indenture to be incurred and all Obligations and Hedging Obligations
relating to such Indebtedness (but excluding any Credit Facility with
any Subsidiary or other Affiliate of the Company, as lender);
(2) Liens (i) in favor of the Company, or (ii) on
property of a Restricted Subsidiary in favor of another Restricted
Subsidiary;
(3) Liens on property of a Person existing at the time
such Person is merged with or into or consolidated with or acquired by
the Company or any Restricted Subsidiary of the Company or renewals or
18
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, consolidation or acquisition 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) (x) permitted by clause (4) of the second paragraph of
Section 3.04 hereof covering only the assets acquired with such
Indebtedness or similar assets acquired in connection with the
incurrence of such Permitted Refinancing Indebtedness or (y) permitted
by clause (5) of such paragraph, to the extent that such Permitted
Refinancing Indebtedness is in respect of Indebtedness initially
incurred under clause (4) (whether or not subsequently incurred as
Permitted Refinancing Indebtedness);
(7) Liens existing on the date hereof;
(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;
(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;
(11) Liens arising under Oil and Gas Agreements;
(12) any mortgage which is payable, both with respect to
principal and interest, solely out of the proceeds of oil, gas, coal or
other
19
minerals or timber to be produced from the property subject thereto and
to be sold or delivered by the Company or one of its Restricted
Subsidiaries, including any interest of the character commonly referred
to as a "production payment";
(13) any mortgage created or assumed by a Restricted
Subsidiary on oil, gas, coal or other mineral or timber property, owned
or leased by a Restricted Subsidiary to secure loans to such Subsidiary
for the purposes of developing such properties, including any interest
of the character commonly referred to as a "production payment";
provided, however, that neither the Company nor any other Subsidiary
shall assume or guarantee such loans or otherwise be liable in respect
thereto;
(14) Liens granted in cash collateral to support the
issuance of letters of credit in an aggregate face amount not exceeding
$30.0 million;
(15) Liens pursuant to master netting agreements entered
into in the ordinary course of business in connection with Hedging
Obligations; and
(16) Liens with respect to Indebtedness and other
obligations that at the time of incurrence do not exceed in the
aggregate for all such obligations under this clause (16) 15% 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;
20
(2) if such Permitted Refinancing Indebtedness is issued
on or after the first anniversary of the date hereof, 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 such Permitted Refinancing Indebtedness is issued
on or after the first anniversary of the date hereof, and the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is subordinated in right of payment to the Notes, 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, 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
(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.
"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 its Restricted Subsidiaries; 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
▇▇▇▇▇'▇ 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 ▇▇▇▇▇'▇, or if S&P or ▇▇▇▇▇'▇ 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 Company's Board of
Directors), which shall be substituted for S&P or ▇▇▇▇▇'▇, or both, as the case
may be.
"RELATED INTEREST RATE OR CURRENCY HEDGE" means any Hedging Obligation
entered into by the Company and/or any of its Restricted Subsidiaries of the
type referred to in items (i) or (ii) of the definition thereof, and provided
that such Hedging Obligation was entered into with respect to other Indebtedness
of the Company and/or its Restricted Subsidiaries to protect against
fluctuations in interest rates or currency exchange rates with respect to such
other Indebtedness.
"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.
"S&P" means Standard and Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
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.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIZATION SUBSIDIARY" means a Subsidiary of the Company
(1) that is designated a "Securitization Subsidiary" by
the Company's 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,
22
(3) no portion of the Indebtedness 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, and
(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.
"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 hereof.
"STATED MATURITY" means, with respect to any installment of interest or
principal on any 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
23
(b) the only general partners of which are that Person or one or more
Subsidiaries of that Person (or any combination thereof).
"UNRESTRICTED SUBSIDIARY" means (1) any Securitization Subsidiary or
(2) any Subsidiary of the Company that is designated by the Board of Directors
of the Company 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 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 3.03 hereof. 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 3.04 hereof, the
Company will be in default thereunder. The Board of Directors of the Company may
at any 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 3.04 hereof,
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.
24
"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.
Section 1.02. Rules of Construction. For all purposes of this Ninth
Supplemental Indenture:
(a) all references herein to Articles and Sections, unless
otherwise specified, refer to the corresponding Articles and Sections of this
Ninth Supplemental Indenture;
(b) the terms "herein", "hereof', "hereunder" and other words of
similar import refer to this Ninth Supplemental Indenture; and
(c) the terms "this Indenture" and "the Indenture" and other words
of similar import refer to the Base Indenture as supplemented by this Ninth
Supplemental Indenture.
ARTICLE 2
THE SERIES OF NOTES
Section 2.01. Title of the Securities. There shall be established
hereby a series of Securities designated as the "8 5/8% Senior Notes due 2010."
Section 2.02. Form And Dating. General. The Notes and the Trustee's
certificate of authentication shall be substantially in the form of Exhibit A
hereto. The Notes may have notations, legends or endorsements required by law,
stock exchange rule or usage. Each Note shall be dated the date of its
authentication. The Notes shall be in denominations of US$1,000 and integral
multiples thereof.
(b) The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this Ninth Supplemental
Indenture, and the Company and the Trustee, by their execution and delivery of
this Ninth
25
Supplemental Indenture, expressly agree to such terms and provisions and to be
bound thereby. However, to the extent any provision of any Note conflicts with
the express provisions of this Ninth Supplemental Indenture, the provisions of
this Ninth Supplemental Indenture shall govern and be controlling.
(c) The Notes shall be issuable as Registered Securities and
Registered Global Securities. The Company hereby designates The Depository Trust
Company as the initial Depositary for the Notes. References to the "Depositary"
herein shall refer to the Depositary designated in the foregoing sentence.
Section 2.03. Aggregate Principal Amount. The aggregate principal
amount of the Notes shall not initially exceed $800,000,000. The aggregate
principal amount of Notes issuable hereunder may be increased and additional
Notes may be issued up to the maximum aggregate principal amount authorized from
time to time by the Board of Directors of the Company. Such additional Notes (i)
shall have the same terms as the Notes initially issued hereunder, except for
the issue date, issue price, initial Interest Payment Date and the initial
interest accrual date, (ii) shall, together with the Notes initially issued
hereunder, constitute a single series of Securities under the Indenture, (iii)
shall not be issued if at the time of issuance an Event of Default with respect
to the Notes shall have occurred and be continuing and (iv) may only be issued
if permitted by Section 3.04 hereof.
Section 2.04. Principal Payment Date. The Notes will mature and
principal thereof will be due and payable, together with all accrued and unpaid
interest thereon, on June 1, 2010.
Section 2.05. Interest And Interest Dates. Interest on the Notes shall
be payable semi-annually on June 1 and December 1 of each year, beginning (in
the case of Notes initially issued hereunder) on December 1, 2003 (each, an
"INTEREST PAYMENT DATE"); provided, however, that if an Interest Payment Date
would otherwise be a day that is not a Business Day, such Interest Payment Date
shall be the next succeeding Business Day, and no additional interest shall be
paid in respect of such intervening period. Interest will be paid to the Holders
of record on the May 15 or November 15 immediately preceding the applicable
Interest Payment Date. The interest rate borne by the Notes will be 8 5/8% per
annum, until the Notes are paid in full.
The amount of interest payable on the Notes will be computed on the
basis of a 360-day year of twelve 30-day months.
Section 2.06. Optional Redemption.
(a) At any time and from time to time prior to June 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. The
Company shall determine the Make-Whole Price and deliver to the Trustee an
26
Officers' Certificate setting forth such price promptly after the determination
thereof and prior to the time the redemption notice is to be given pursuant to
Section 12.2 of the Base Indenture. The Trustee shall have no responsibility for
determining the Make-Whole Price.
(b) At any time and from time to time on or after June 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 JUNE 1 IN YEAR PERCENTAGE
--------------------------------------------- ----------
2007........................................ 104.313%
2008........................................ 102.156%
2009 and thereafter......................... 100.000%
Any redemption pursuant to this Section 2.06 shall be made, to the
extent applicable, pursuant to the provisions contained in Article Twelve of the
Base Indenture.
Section 2.07. Redemption with Proceeds of Public Equity Offering. At
any time and from time to time prior to June 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 Company from any Equity Offering at a redemption
price equal to 108.625% of the principal amount plus accrued and unpaid interest
to the redemption date; provided that
(a) in each case the redemption takes place not later than 120
days after the closing of the related Equity Offering, and
(b) 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).
(c) The Officers' Certificate required to be delivered to the
Trustee by the Company by the fourth paragraph of Section 12.2 of the Base
Indenture shall, in addition to the other matters required to be stated therein,
state that the Company is entitled under this Section 2.07 to redeem the Notes.
(d) Any redemption pursuant to this Section 2.07 shall be made, to
the extent applicable, pursuant to the provisions of Article Twelve of the Base
Indenture.
Section 2.08. Change Of Control Offer. (a) A "CHANGE OF CONTROL OFFER"
means an offer by the Company to purchase Notes as required by Section 3.07
hereof. A Change of Control Offer must be made by written offer (the "OFFER")
sent to the Holders of the Notes. The Company shall notify the Trustee at least
three Business Days (or such shorter period as is acceptable to the
27
Trustee) prior to sending the offer to such 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 purchase price, including the portion thereof
representing accrued interest;
(iii) a payment date (the "CHANGE OF CONTROL PAYMENT DATE")
not less than 30 days or more than 60 days after the date the offer is
mailed;
(iv) a description of the transaction or transactions
constituting the Change of Control;
(v) 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;
(vi) the place or places where Notes are to be surrendered
for tender pursuant to the Change of Control Offer;
(vii) each Holder electing to tender a Note pursuant to the
offer will be required to surrender such Note, with the form entitled
"Option of Holder to Elect Purchase" attached to the Notes completed,
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);
(viii) interest on any Note not tendered will continue to
accrue;
(ix) 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;
(x) 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 (unless
the Notes are
28
represented by one or more Registered Global Securities) and a
statement that the Holder is withdrawing all or a portion of the
tender;
(xi) the Company will purchase all Notes validly tendered
pursuant to such Change of Control Offer on the Change of Control
Payment Date;
(xii) if any Note is purchased in part, new Notes equal in
principal amount to the unpurchased portion of the Note will be issued;
and
(xiii) 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 Trustee or other
paying agent with respect to the Notes 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:
(i) accept for payment all Notes or portions of Notes
properly tendered pursuant to the Change of Control Offer;
(ii) deposit with the Trustee or other 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.
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(e) The Company will comply with Rule 14e-1 under the
Exchange Act and any other securities laws or regulations thereunder to the
extent such laws or regulations are applicable in connection with the repurchase
of the Notes as a result of a Change of Control, and the above procedures will
be deemed modified as necessary to permit such compliance.
Section 2.09. Defeasance. Section 10.1 of the Base Indenture is hereby
amended with respect to the Notes by adding at the end of subsection (B)
thereof, the following new paragraphs "(f) the Company has delivered to the
Trustee an Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders of the Notes over the other
creditors of the Company with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others." and "(g) no Default or Event of
Default shall have occurred and be 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)."
(a) Section 10.1 of the Base Indenture is hereby amended with
respect to the Notes by (i) adding on the third line of paragraph (b) of
subsection (C) thereof, the following words after the word Securities: "(other
than a Default or Event of Default resulting from the borrowing of funds to be
applied to such deposit)" and (ii) adding at the end of subsection (C) thereof,
the following new paragraph "(i) the Company has delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders of the Notes over the other creditors of
the Company with the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others."
(b) The following covenants and Events of Default shall be subject
to covenant defeasance under Section 10.1(C) of the Base Indenture in lieu of
Sections 3.6 and 9.1 thereof: 2.08, 3.02 through 3.13, 3.14(a)(4), 3.15 and
4.02(a)(iii), (v) and (vi). All references in Section 10.1(C) to Section 5.1 of
the Base Indenture shall be deemed a reference to Section 4.02(a) hereof and all
references in Section 10.1(C) to Section 5.1(d) or (e) of the Base Indenture
shall be deemed a reference to Section 4.02(a)(vii) or (viii) hereof.
ARTICLE 3
COVENANTS
Section 3.01. Applicability Of Covenants. Section 3.6 and Section 9.1
of the Base Indenture will not be applicable to the Notes. Instead, the
provisions of Sections 3.02 through 3.15 will apply to the Notes to the extent
stated below.
Section 3.02. Commission Reports; Financial Statements. (a) Whether or
not required by the Commission, so long as any Notes are outstanding, the
30
Company will furnish to the Trustee, within 30 days after the time periods
specified in the Commission's rules and regulations:
(1) 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", and, with respect to the annual information only, a report on
the annual financial statements by the Company's certified independent
accountants; and
(2) 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 the financial statements or in the
footnotes thereto, of the financial condition and results of operations of
the Company and its Restricted Subsidiaries excluding in all respects the
Unrestricted Subsidiaries of the Company.
(c) On request from the Trustee, 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 pursuant
to the Indenture, if any are so required.
(d) 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 Officers' Certificates).
Section 3.03. Limitation On Restricted Payments. (a) The Company will
not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly:
(1) 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);
31
(2) 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;
(3) 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, except a payment of interest or principal at the
Stated Maturity thereof; or
(4) make any Restricted Investment (all such payments and other actions
set forth in these clauses (1) through (4) 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) The Company would, at the time of such Restricted Payment and after
giving pro forma effect thereto as if such Restricted Payment had been made
at the beginning of the applicable four-quarter period, have been permitted
to incur at least $1.00 of additional Indebtedness pursuant to the Fixed
Charge Coverage Ratio test set forth in the first paragraph of Section 3.04
hereof and
(2) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by the Company and its Restricted
Subsidiaries after the date hereof (excluding Restricted Payments permitted
by clauses (2), (3), (4), (6) and (8) of the next succeeding paragraph), is
less than the sum, without duplication, of:
(A) 50% of the Consolidated Net Income of the Company for the
period (taken as one accounting period) from the beginning of the first
fiscal quarter commencing after the first anniversary of the date hereof
to the end of the Company's most recently ended fiscal quarter for which
internal financial statements are available at the time of such
Restricted Payment (or, if such Consolidated Net Income for such period
is a deficit, less 100% of such deficit), plus
(B) 100% of the aggregate net cash proceeds received by the
Company (including the fair market value of any Permitted Business or
assets used or useful in a Permitted Business to the extent acquired in
consideration of Equity Interests of the Company (other than Disqualified
Stock)) since the date hereof 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
32
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 hereof is sold for cash 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 hereof, 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.
(b) Notwithstanding the foregoing, the preceding provisions of
this Section 3.03 shall not prohibit:
(1) 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;
(2) the redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness of the Company or of any
Equity Interests of the Company in exchange for, or out of the net cash
proceeds of, the substantially concurrent 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 (2)(B) of the preceding
paragraph;
(3) the redemption, repurchase, retirement, defeasance or other
acquisition of the 9-7/8% Cumulative Convertible Preferred Stock of the
Company out of the net cash proceeds of the 5.50% Junior Subordinated
Convertible Debentures issued by the Company on May 28, 2003; 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 (2)(B) of the preceding paragraph;
(4) the defeasance, redemption, repurchase or other acquisition of
subordinated Indebtedness of the Company with the net cash proceeds from an
incurrence of Permitted Refinancing Indebtedness;
33
(5) quarterly dividends paid pro rata on outstanding common stock of
the Company in an amount of up to $0.02 per share, provided that (A) such
per share amount shall be adjusted proportionally upon any
reclassification, split, combination, special distribution of common stock
to holders thereof or similar event such that (x) the per share amount
multiplied by the number of such shares outstanding, in each case
determined immediately before giving effect to such event is equal to (y)
the per share amount multiplied by the number of such shares outstanding,
in each case determined immediately after giving effect to such event and
(B) in no event shall the aggregate quarterly amount payable pursuant to
this clause exceed by 20% the aggregate quarterly amount that would be
payable on all shares of common stock outstanding on the date hereof if a
quarterly dividend payment of $0.02 per share were payable on the date
hereof;
(6) the payment of any distribution or dividend by a Restricted
Subsidiary of the Company, on a pro rata basis to all holders or on a basis
more favorable to the Company and its Restricted Subsidiary, to the holders
of such Restricted Subsidiary's Equity Interests; and
(7) so long as no Default or Event of Default has occurred and is
continuing or would be caused thereby, the repurchase, redemption or
acquisition or retirement for value of any Equity Interests of the Company
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 $5.0 million in any twelve-month
period and provided further that if the amount so paid in any calendar year
is less than $5.0 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 $5.0 million that may otherwise be paid
in each such calendar year;
(8) so long as no Default or Event of Default has occurred and is
continuing or would be caused thereby, any Investment made in exchange for,
or out of the net cash proceeds of, a substantially concurrent offering of
Equity Interests of the Company; provided that the amount of any such net
cash proceeds will be excluded from clause (2)(B) of the preceding
paragraph; and
(9) other Restricted Payments in an aggregate amount since the date
hereof not to exceed $50.0 million.
(c) 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
34
Section 3.03 will be determined, in the case of amounts greater than $10.0
million but less than $75.0 million, by an officer of the Company and, in the
case of $75.0 million or more, by the Board of Directors of the Company.
Section 3.04. 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, that the Company and its
Restricted Subsidiaries 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 Section 3.04 will not prohibit the
incurrence of any of the following items of Indebtedness (collectively,
"PERMITTED DEBT"):
(1) the incurrence by the Company or any Restricted Subsidiary of
Indebtedness and letters of credit under any Credit Facilities to which the
Company or any Restricted Subsidiary is a party in an aggregate principal
amount at any one time outstanding under this clause (1) (with letters of
credit being deemed to have a principal amount equal to the undrawn face
amount thereof) not to exceed $1.3 billion;
(2) the incurrence by the Company and its Restricted Subsidiaries of
the Existing Indebtedness;
(3) the incurrence by the Company of Indebtedness represented by the
Notes issued on the date hereof;
(4) 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 $50.0 million at any time outstanding;
35
(5) 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), including Permitted Refinancing Indebtedness
incurred to finance the purchase price of the replacement properties, that
was permitted to be incurred under paragraph (a) of this Section 3.04 or
clauses (2), (3), (4) or (5) of this paragraph (b);
(6) 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 (a) 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 (b) 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 (6);
(7) the incurrence by the Company or any of its Subsidiaries of Hedging
Obligations;
(8) the Guarantee by the Company of Indebtedness of any of its
Restricted Subsidiaries that was permitted to be incurred by another
provision of this Section 3.04;
(9) 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;
(10) Indebtedness arising from any agreement providing for indemnities,
Guarantees, purchase price adjustments, holdbacks, contingency payment
obligations based on the performance of the acquired or disposed assets or
similar obligations (other than Guarantees of Indebtedness) incurred by any
Person in connection with the acquisition or disposition of assets;
(11) the incurrence by the Company or any of its Restricted
Subsidiaries of Acquired Debt 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 of
incurrence of Acquired Debt (the "RELEVANT FIXED CHARGE COVERAGE RATIO")
determined immediately after giving effect to such incurrence and the
related acquisition (including through a merger, consolidation or
otherwise) is higher than the Relevant
36
Fixed Charge Coverage Ratio determined immediately before giving effect to
such incurrence and the related acquisition; and
(12) 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 (12), not to exceed
$250.0 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 3.04:
(1) 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 (1) through (12) of paragraph (b)
above, or is entitled to be incurred pursuant to paragraph (a) of this
Section 3.04, 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 3.04;
(2) 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 3.04;
provided, in each such case, that the amount thereof is included in the
computation of Fixed Charges of the Company as accrued; and
(3) 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 3.05. 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
the Notes and all payments due under the Indenture with respect to the Notes are
secured on an equal and ratable basis with the obligations so secured until such
37
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, 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 3.06. Limitation On Dividend And Other Payment Restrictions
Affecting 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:
(1) pay dividends or make any other distributions on its Capital Stock
to the Company or any of its Subsidiaries, or with respect to any other
interest or participation in, or measured by, its profits, or pay any
indebtedness owed to the Company or any of its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its Restricted
Subsidiaries; or
(3) 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:
(1) agreements governing Existing Indebtedness and the Credit
Facilities in effect on June 1, 2003 and other customary encumbrances and
restrictions existing on or after the date hereof that are not more
restrictive in any material respect, taken as a whole, with respect to such
dividend and other payment restrictions than those contained in such
agreements on June 1, 2003 (provided that the application of such
restrictions and encumbrances to additional Restricted Subsidiaries not
subject thereto on June 1, 2003 shall not be deemed to make such
restrictions and encumbrances more restrictive);
(2) the Indenture and the Notes and other customary encumbrances and
restrictions existing in indentures and notes after the date hereof that
are not more restrictive, in any material respect, taken as a whole, with
respect to such dividend and other payment restrictions than those
contained in the Indenture;
(3) applicable law (including without limitation, rules, regulations
and agreements with regulatory authorities);
(4) 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
38
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;
(5) customary non-assignment provisions in leases entered into in the
ordinary course of business and consistent with past practices;
(6) 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 (3)
of paragraph (a) of this Section 3.06;
(7) 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;
(8) 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;
(9) Liens securing Indebtedness otherwise permitted to be incurred
under the provisions of Section 3.05 hereof that limit the right of the
debtor to dispose of the assets subject to such Liens;
(10) provisions with respect to the disposition or distribution of
assets or property in joint venture agreements, asset 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
(11) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business.
Section 3.07. 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 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 herein applicable to a Change of Control Offer
made by the
39
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 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 all such outstanding
Indebtedness of the Company (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 3.07. 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 4.02 (a)(iv) but shall not constitute an Event of
Default under Section 4.02(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 3.08. Limit On Asset Sales. (a) The Company will not, and will
not permit any of its Restricted Subsidiaries to, consummate an Asset Sale
unless:
(1) 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;
(2) for any agreement to make an Asset Sale that is entered into after
the date hereof, the fair market value is determined by (a) an executive
officer of the Company if the value is more than $10 million but less than
$75 million or (b) the Company's Board of Directors if the value is $75
million or more, as evidenced by a Board Resolution; and
(3) 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) 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;
40
(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 Restricted 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 (2), (3) or (4)
under paragraph (b) of this Section 3.08.
(b) Within 365 days after the receipt of any Net Proceeds from an Asset
Sale, the Company or any of its Restricted Subsidiaries may apply an amount of
cash equal to the amount of such Net Proceeds at its option:
(1) to repay or prepay senior Indebtedness of the Company or any
Restricted Subsidiary;
(2) to acquire all or substantially all of the assets of, or a majority
of the Voting Stock of, another Permitted Business;
(3) to make a capital expenditure; or
(4) to acquire other long-term assets that are used or useful in a
Permitted Business.
(c) Subject to paragraph (e) of this Section 3.08, to the extent that the
Company and its Restricted Subsidiaries do 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 3.08, the amount not so applied (excluding Net
Proceeds of any Asset Sale to the extent of the amount of acquisitions or
capital expenditures described under clauses (2), (3) or (4) paragraph (b) of
this Section 3.08 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 Section 3.08)) 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 this Section 3.08 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. The offer price in any Asset
Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid
interest 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
41
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 Excess
Proceeds will be allocated by the Company to Notes and such other pari passu
Indebtedness on a pro rata basis (based upon the respective principal amounts of
the Notes and such other pari passu Indebtedness tendered into such Asset Sale
Offer) and the portion of each Note to be purchased will thereafter be
determined by the Trustee on a pro rata basis among the Holders of such Notes
with appropriate adjustments such that the Notes may only be purchased in
integral multiples of $1,000. 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 provisions of
this Section 3.08, the Company will comply with the applicable securities laws
and regulations and will not be deemed to have breached its obligations
hereunder 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 is subject to any agreement evidencing Indebtedness (or
commitments to extend Indebtedness) that prohibits prepayment or repurchase of
the Notes pursuant to an Asset Sale Offer, the Company will either repay all
such outstanding Indebtedness of the Company (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 3.08. 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 3.08. The Company's failure to comply
with this paragraph (e) may (with notice and lapse of time) constitute an Event
of Default under Section 4.02(a)(iv) but shall not constitute an Event of
Default under Section 4.02(a)(iii).
(f) In the event that, pursuant to this Section 3.08, the Company is
required to commence an Asset Sale Offer, it shall follow the procedures
specified below.
The Asset Sale Offer shall be made to all Holders of Notes and to all
holders of other Indebtedness that is pari passu with the Notes to the extent
set forth above in this Section 3.08. The Asset Sale Offer will remain open for
a period of at least 20 Business Days following its commencement and not more
than 30 Business Days, except to the extent that a longer period is required by
applicable law (the "OFFER PERIOD"). No later than three Business Days after the
termination of the Offer Period (the "PURCHASE DATE"), the Company shall apply
42
all Excess Proceeds (the "OFFER AMOUNT") to the purchase of Notes and such other
pari passu Indebtedness (on a pro rata basis, if applicable, as set forth above
in this Section 3.08) or, if less than the Offer Amount has been tendered, all
Notes and other Indebtedness tendered in response to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company will send, by
first class mail, a notice to the Trustee and each of the Holders of the Notes.
The notice will contain all instructions and materials necessary to enable such
Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which will
govern the terms of the Asset Sale Offer, will state:
(1) that the Asset Sale Offer is being made pursuant to
this Section 3.08 and the length of time the Asset Sale Offer will
remain open;
(2) the Offer Amount, the purchase price and the Purchase
Date;
(3) that any Note not tendered or accepted for payment
will continue to accrue interest;
(4) that, unless the Company defaults in making such
payment, any Note accepted for payment pursuant to the Asset Sale Offer
will cease to accrue interest after the Purchase Date;
(5) that Holders electing to have a Note purchased
pursuant to an Asset Sale Offer may elect to have Notes purchased in
integral multiples of $1,000 only;
(6) that Holders electing to have a Note purchased
pursuant to any Asset Sale Offer will be required to surrender the
Note, with the form entitled "Option of Holder to Elect Purchase"
attached to the Note completed, or transfer its interest in such Note
by book-entry transfer, to the Company, a depositary, if appointed by
the Company, or a paying agent at the address specified in the notice
at least three Business Days before the Purchase Date;
(7) that Holders will be entitled to withdraw their
election if the Company, the depositary or the applicable paying agent,
as the case may be, receives, not later than the expiration of the
Offer Period, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Note
the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes and
other pari passu Indebtedness surrendered by Holders exceeds the Offer
Amount, the Company will select the Notes and other pari passu
43
Indebtedness to be purchased on a pro rata basis based on the principal
amount of Notes and such other pari passu Indebtedness surrendered
(with such adjustments as may be deemed appropriate so that only Notes
in denominations of $1,000, or integral multiples thereof, will be
purchased); and
(9) that Holders whose Notes were purchased only in part
will be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered (or transferred by book-entry
transfer).
On or before the Purchase Date, the Company shall, to the extent lawful, accept
for payment, on a pro rata basis to the extent necessary, the Offer Amount of
Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less
than the Offer Amount has been tendered, all Notes tendered, and shall deliver
to the Trustee an Officers' Certificate stating that such Notes or portions
thereof were accepted for payment by the Company in accordance with the terms of
this Section 3.08. The Company, the depositary or the applicable paying agent,
as the case may be, shall promptly (but in any case not later than five Business
Days after the Purchase Date) mail or deliver to each tendering Holder an amount
equal to the purchase price of the Notes tendered by such Holder and accepted by
the Company for purchase, and the Company shall promptly issue a new Note, and
the Trustee, upon written request from the Company will authenticate and mail or
deliver such new Note to such Holder, in a principal amount equal to any
unpurchased portion of the Note surrendered. Any Note not so accepted shall be
promptly mailed or delivered by the Company to the Holder thereof. The Company
will publicly announce the results of the Asset Sale Offer on the Purchase Date.
Section 3.09. 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:
(1) 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
(2) 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
$50 million, a resolution of the Company's Board of Directors set forth
in an
44
Officers' Certificate certifying that such Affiliate Transaction
complies with this Section 3.09 and that such Affiliate Transaction has
been approved by a majority of the disinterested members of such Board
of Directors; and
(b) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of
$75 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 paragraph (a):
(1) 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;
(2) transactions between or among the Company and/or its Restricted
Subsidiaries;
(3) transactions with a Person that is an Affiliate of the Company
solely because the Company owns an Equity Interest in, or controls, such
Person;
(4) 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;
(5) sales of Equity Interests (other than Disqualified Stock) to
Affiliates of the Company;
(6) (A) corporate sharing agreements among the Company and its
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, 2002 (including the exhibits thereto) or the
prospectus relating to the offering of the Notes, all as in effect on the
date hereof, 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 hereof;
(7) transactions entered into as part of a Permitted Receivables
Financing; and
(8) Restricted Payments that are permitted by the provisions of Section
3.03 hereof.
45
Section 3.10. 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 material businesses currently operated by
▇▇▇▇▇▇▇▇ Production Holdings LLC or ▇▇▇▇▇▇▇▇ Gas Pipeline Company LLC 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 an Investment made as
of the time of the designation and will reduce the amount available for
Restricted Payments under any applicable provision of Section 3.03 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 3.11. 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
of its Restricted Subsidiaries may enter into a Sale and Leaseback Transaction
if:
(1) the Company 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 3.04(a) hereof;
(2) 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 its Restricted
Subsidiaries does not exceed 10% of the Consolidated Net Tangible Assets of
the Company; and
(3) the gross cash proceeds of such Sale and Leaseback Transaction are
at least equal to the fair market value, as determined in good faith by the
Board of Directors 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 (1) and (2) shall no longer be
applicable after any Investment Grade Date.
Section 3.12. 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 3.13. 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
46
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 set forth in the solicitation documents relating to such consent,
waiver or agreement.
Section 3.14. Limitation On Mergers, Consolidations And Sales Of
Assets. (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:
(1) 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;
(2) 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 in form satisfactory to the Trustee all the
obligations of the Company under the Notes and the Indenture 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);
(3) immediately after such transaction no Default or Event of Default
exists; and
(4) 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 paragraph (a) of Section 3.04 hereof,
provided, however, that this clause (4) shall no longer be applicable from
and after any Investment Grade Date.
47
(b) Notwithstanding the foregoing, 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.
(c) Clause (4) of paragraph (a) above 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.
Section 3.15. Covenant Termination. From and after the first date
after the date hereof 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 with respect to the Notes (the "INVESTMENT GRADE DATE"), the Company
and its Restricted Subsidiaries will no longer be subject to Sections 3.03,
3.04, 3.06, 3.08, 3.09 and 3.12 hereof. The Company shall give the Trustee
prompt notice in an Officers' Certificate of the occurrence of the Investment
Grade Date.
ARTICLE 4
EVENTS OF DEFAULT
Section 4.01. Applicability Of Events Of Default. Sections 5.1 and
5.10 of the Base Indenture will not be applicable to the Notes. Instead, the
provisions of Section 4.02 to 4.04 will apply to extent specified therein. Any
reference in the Base Indenture to Section 5.1 or 5.10 thereof shall be deemed
for purposes of the Notes to be a reference to Section 4.02, 4.03 or 4.04, as
applicable, of this Ninth Supplemental Indenture.
Section 4.02. Events Of Default Defined. (a) Each of the following
shall be an Event of Default with respect to the Notes.
(i) default for 30 days in the payment when due of interest on
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 3.07 or 3.08 hereof in
accordance with the terms thereof, or failure of the Company to comply with
the provisions of Section 3.14 hereof;
(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
48
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 hereof, if that default:
(A) is caused by a failure of the Company or any
Subsidiary of the Company to pay principal of, or interest or
premium, if any, on 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 $50 million or more;
(vi) failure by the Company or any of its Subsidiaries to pay
final judgments aggregating in excess of $50 million, which judgments are
not paid, discharged or stayed for a period of 60 days;
(vii) 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
Significant Subsidiaries (or any group of Subsidiaries that, taken
together, would constitute a Significant Subsidiary) 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 Significant Subsidiaries (or any group of
Subsidiaries that, taken together, would constitute a Significant
Subsidiary) 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 Significant Subsidiaries (or any
group of Subsidiaries that, taken together, would constitute a Significant
Subsidiary) 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 Significant Subsidiaries (or
any group of Subsidiaries that, taken together, would constitute a
Significant Subsidiary) or of any substantial part of the property of the
Company or any of its Significant Subsidiaries, or ordering the winding up
or liquidation of the affairs of the Company or any of its Significant
49
Subsidiaries (or any group of Subsidiaries that, taken together, would
constitute a Significant Subsidiary), 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
(viii) the commencement by the Company or any of its
Significant Subsidiaries (or any group of Subsidiaries that, taken
together, would constitute a Significant Subsidiary) 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
Significant Subsidiaries (or any group of Subsidiaries that, taken
together, would constitute a Significant Subsidiary) 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 Significant Subsidiaries (or any group of
Subsidiaries that, taken together, would constitute a Significant
Subsidiary) or of any substantial part of the property of the Company or
any of its Significant Subsidiaries (or any group of Subsidiaries that,
taken together, would constitute a Significant Subsidiary), 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 Significant
Subsidiaries (or any group of Subsidiaries that, taken together, would
constitute a Significant Subsidiary) in furtherance of any such action.
(b) The Trustee shall not be deemed to have knowledge of a
Default or Event of Default or of the identity of a Significant Subsidiary
(or any group of Subsidiaries that, taken together, would constitute a
Significant Subsidiary) unless a Responsible Officer assigned to the
Corporate Trust Office of the Trustee has actual knowledge of such Default
or Event of Default or of the identity of such Significant Subsidiary or
the Trustee receives written notice at the Corporate Trust Office of the
Trustee of such Default or Event of Default or of the identity of such
Significant Subsidiary with specific reference to such Default or Event of
Default or Significant Subsidiary and the Notes and this Indenture.
(c) When a Default is cured, or when an Event of Default is
deemed cured pursuant to Section 4.04 hereof, such Default, or Event of
Default, as the case may be, ceases.
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(d) A Default under clause (iv) of this Section 4.02 will not
be an Event of Default until the Trustee or the Holders of at least 25% in
aggregate principal amount of the Notes then Outstanding notify the Company
of the Default and the Company does not cure such Default within the time
specified after receipt of such notice. Such notice must specify the
Default and state that it is a "Notice of Default". Any such notice given
by Holders shall also be given to the Trustee.
Section 4.03. Acceleration. If an Event of Default (other than an
Event of Default specified in clause (vii) or (viii) of Section 4.02(a) hereof
with respect to the Company) 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, if any, on
all then Outstanding Notes to be due and payable immediately. Upon any such
declaration, the principal of, premium, if any, and accrued and unpaid interest,
if any, on all then Outstanding Notes shall be due and payable immediately. If
an Event of Default specified in clause (vii) or (viii) of Section 4.02(a)
occurs with respect to the Company, the principal of and premium, if any, and
accrued and unpaid interest, 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 provided in Article Five of the Base Indenture,
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.
If the maturity of the Notes is accelerated pursuant to this Section 4.03,
100% of the principal amount thereof shall become due and payable plus premium,
if any, and accrued interest, 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
51
avoiding payment of the premium (including, in the case of any such Event of
Default prior to June 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 Section 2.06 hereof, an equivalent premium (or, in the case of any
such Event of Default prior to June 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 4.04. Waiver Of Existing Defaults. Subject to Sections 5.7 and
8.2 of the Base Indenture, 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 on, or the principal of,
the Notes or (2) a continuing default in respect of a provision that under
Section 8.2 of the Base Indenture 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 this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
Section 4.05. Conflict with Base Indenture. Notwithstanding the
foregoing, if any notice, direction, waiver, rescission or cancellation is given
with respect to a Default or Event of Default that, under the terms of the Base
Indenture, requires action by holders of a percentage of the outstanding
principal amount of the Notes and one or more other series of Securities issued
under the Base Indenture, voting together or otherwise as a single class, then
such notice, direction, waiver, rescission or cancellation shall be effective
only if effected with the requisite percentage of the outstanding principal
amount of the Notes and any other such Securities, voting together or otherwise
as a single class.
ARTICLE 5
EXECUTION OF NOTES
Section 5.01. Execution of Notes. The Notes shall be executed as
follows:
Notwithstanding Section 2.5 of the Base Indenture, the Notes shall be
signed on behalf of the Company by its Chairman of the Board, its President, one
of its Vice Presidents or its Treasurer, and its corporate seal may, but need
not, be impressed, affixed, imprinted or otherwise reproduced thereon, and may,
but need not, be attested. Such signatures may be the manual or facsimile
signatures of the present or any future such officers. If any Note is executed
under the Company's corporate seal, such seal may be in the form of a facsimile
thereof. Typographical
52
and other minor errors or defects in any such reproduction of the seal or any
such signature shall not affect the validity or enforceability of any Note that
has been duly authenticated and delivered by the Trustee.
In case any officer of the Company who shall have signed any of the
Notes shall cease to be such officer before the Note so signed shall be
authenticated and delivered by the Trustee or disposed of by the Company, such
Note nevertheless may be authenticated and delivered or disposed of as though
the person who signed such Note had not ceased to be such officer of the
Company; and any Note may be signed on behalf of the Company by such persons as,
at the actual date of the execution of such Note, shall be the proper officers
of the Company, although at the date of the execution and delivery of this Ninth
Supplemental Indenture any such person was not such an officer.
ARTICLE 6
MISCELLANEOUS PROVISIONS
Section 6.01. Ratification. The Indenture, as supplemented and amended
by this Ninth Supplemental Indenture, is in all respects hereby adopted,
ratified and confirmed.
Section 6.02. Counterparts. This Ninth Supplemental Indenture may be
executed in any number of counterparts, each of which when so executed shall be
deemed an original; and all such counterparts shall together constitute but one
and the same instrument.
Section 6.03. Governing Law. THIS NINTH SUPPLEMENTAL INDENTURE AND EACH
NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO THE CHOICE OF LAW PRINCIPLES THEREOF.
Section 6.04. No Recitals, etc. The recitals contained herein shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Ninth Supplemental Indenture.
Section 6.05. Paying Agent. The Trustee is hereby appointed paying
agent for the Notes.
Section 6.06. Liability Of Incorporators, Stockholders, etc. Section
11.1 of the Base Indenture will not be applicable to the Notes. Instead, the
following provisions will apply: No director, officer, employee, incorporator or
stockholder of the Company or any Subsidiary, as such, will 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
53
Holder of the Notes by accepting a Note will be deemed to have waived and
released all such liability. Such waiver and release are part of the
consideration for issuance of the Notes.
54
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the day and year first written above.
THE ▇▇▇▇▇▇▇▇ COMPANIES, INC.,
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
JPMORGAN CHASE BANK, as Trustee
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
[Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("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
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is 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.]
[Unless and until it is exchanged in whole or in part for Securities in
definitive registered form, this Security may not be transferred except as a
whole by the Depositary to the 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.]
No. __
CUSIP: 969457 BQ2
$____________
THE ▇▇▇▇▇▇▇▇ COMPANIES, INC.
8 5/8% Senior Note due 2010
The ▇▇▇▇▇▇▇▇ Companies, Inc., a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company"), for value
received, hereby promises to pay to _________ or registered assigns, the
principal sum of ___________ Dollars ($__________) on June 1, 2010, at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts, and
to pay interest, semiannually on June 1 and December 1 of each year, commencing
December 1, 2003, on said principal sum at said office or agency, in like coin
or currency, at the rate per annum specified in the title of this Note, from the
June 1 or December 1, as the case may be, next preceding the date of this Note
to which interest has been paid or duly provided for, unless the date hereof is
a date to which interest has been paid or duly provided for, in which case from
the date of this Note, or unless no interest has been paid on this Note or duly
provided for, in which case from June 10, 2003, until payment of said principal
sum has been made or duly provided for; provided, that payment of interest may
be made at the option of the Company by check mailed to the address of the
person entitled thereto as such address shall appear on the Security register.
Notwithstanding the foregoing, if the date hereof is after May 15 or November
15, as the case may be, and before the following June 1 or December 1, this Note
shall bear interest from such June 1 or December 1; provided, that if the
Company shall default in the payment of interest due on such June 1 or December
1, then this Note shall bear interest from the next preceding June 1 or December
1, to which interest has been paid or duly provided for or, if no interest has
been paid on this Note or duly provided for, from June 10, 2003. The interest so
payable on any June 1 or December 1, will, subject to certain exceptions
provided in the Indenture referred to on the reverse hereof, be paid to the
person in whose name this Note (or one or more predecessor Notes) is registered
at the close of business on May 15 or November 15 (whether or not a Business
Day), as the case may be, next preceding such June 1 or
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December 1. Reference is made to the further provisions of this Note set forth
on the reverse hereof. Such further provisions shall for all purposes have the
same effect as though fully set forth at this place. This Note shall not be
valid or become obligatory for any purpose until the certificate of
authentication hereon shall have been executed by the Trustee under the
Indenture referred to on the reverse hereof by manual signature.
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IN WITNESS WHEREOF, The ▇▇▇▇▇▇▇▇ Companies, Inc. has caused this
instrument to be duly executed.
THE ▇▇▇▇▇▇▇▇ COMPANIES, INC.,
By: ________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities referred to in the within-mentioned
Indenture.
JPMORGAN CHASE BANK,
as Trustee
By: ______________________
Authorized Officer
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[REVERSE OF NOTE]
THE ▇▇▇▇▇▇▇▇ COMPANIES, INC.
8 5/8% Senior Note due 2010
This Note is one of a duly authorized issue of debentures, notes, bonds
or other evidences of indebtedness of the Company (hereinafter called the
"Securities") of the series hereinafter specified, all issued or to be issued
under and pursuant to an indenture dated as of November 10, 1997, as
supplemented (as supplemented, herein called the "Indenture"), duly executed and
delivered by the Company to JPMorgan Chase Bank, as successor Trustee (herein
called the "Trustee"), to which Indenture reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the Holders of the
Securities. The Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may mature at
different times, may bear interest (if any) at different rates, may be subject
to different redemption provisions (if any), may be subject to different
sinking, purchase or analogous funds (if any) and may otherwise vary as provided
in the Indenture. This Note is one of a series designated as the 8 5/8% Senior
Notes due 2010 (the "Notes") of the Company, initially limited in aggregate
principal amount to $800,000,000. The Company may, from time to time, without
the consent of the existing holders of the Notes, issue additional notes under
the Indenture having the same terms as the Notes in all respects, except for
issue date, issue price, initial interest accrual date and the initial Interest
Payment Date. Any such additional notes will be consolidated with and form a
single series with the Notes under the Indenture.
At any time and from time to time prior to June 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 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.
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"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 (519),
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.
At any time and from time to time on or after June 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 to the redemption date, if redeemed during the twelve-month
period beginning on June 1 of the years indicated below:
Commencing in Year Percentage
------------------ ----------
2007 104.313%
2008 102.156%
2009 and thereafter 100.000%
At any time and from time to time prior to June 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 Equity
Offering (as defined in the Indenture) at a redemption price equal to 108.625%
of their principal amount plus accrued and unpaid interest to the redemption
date; provided that (1) in each case the redemption takes place not later than
120 days after the closing of the related 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).
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.
If the Company deposits with the Trustee money or U.S. Government
Obligations sufficient to pay the then Outstanding principal of, premium, if
any,
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and accrued interest on the Notes to the redemption date or the Maturity Date of
the Notes, 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.
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.
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.
In case an Event of Default with respect to the Notes shall have
occurred and be continuing, the principal hereof may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities of all series issued under the
Indenture then Outstanding and affected, voting as one class, to add any
provisions to, or change in any manner or eliminate any of the provisions of,
such Indenture or modify in any manner the rights of the Holders of the
Securities of each series so affected; provided that the Company and the Trustee
may not, without the consent of the Holder of each outstanding Security affected
thereby, (i) extend the final maturity of the principal of any Security, or
reduce the principal amount thereof or reduce the rate or extend the time of
payment of interest thereon, or reduce the amount payable on redemption thereof
or change the currency in which the principal thereof (including any amount in
respect of original issues discount) or interest thereon is payable or reduce
the amount of any original issue discount security payable upon acceleration or
provable in bankruptcy or impair the right to institute suit for the enforcement
of any payment on any Security when due or (ii) reduce the aforesaid percentage
in principal amount of Securities of any series issued under such Indenture, the
consent of the Holders of which is required for any such modification. It is
also provided in the Indenture that, with respect to certain defaults or Events
of Default regarding the Securities of any series, prior to any declaration
accelerating the maturity of such Securities, the Holders of a majority in
aggregate principal amount Outstanding of the Securities of such series (or, in
the case of certain defaults or Events of Default, all or certain series of the
Securities) may on behalf of the Holders of all the Securities of such series
A-6
(or, in the case of certain defaults or Events of Default, all or certain series
of the Securities, as the case may be) waive any such past default or Event of
Default and its consequences. The preceding sentence shall not, however, apply
to a default in the payment of the principal of or interest on any of the
Securities. Any such consent or waiver by the Holder of this Note (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders and owners of this Note and any Notes which
may be issued in exchange or substitution herefor or on registration of transfer
hereof, irrespective of whether or not any notation thereof is made upon this
Note or such other Notes.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note in
the manner, at the respective times, at the rate and in the coin or currency
herein prescribed.
The Notes are issuable in registered form without coupons in
denominations of $1,000 and any multiple of $1,000 at the office or agency of
the Company in the Borough of Manhattan, The City of New York, and in the manner
and subject to the limitations provided in the Indenture, but without the
payment of any service charge, Notes may be exchanged for a like aggregate
principal amount of Notes of other authorized denominations.
Upon due presentment for registration of transfer of this Note at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, a new Note or Notes of authorized denominations for an equal aggregate
principal amount will be issued to the transferee in exchange therefor, subject
to the limitations provided in the Indenture, without charge except for any tax
or other governmental charge imposed in connection therewith.
The Company, the Trustee and any authorized agent of the Company or the
Trustee may deem and treat the registered Holder hereof as the absolute owner of
this Note (whether or not this Note shall be overdue and notwithstanding any
notation of ownership or other writing hereon), for the purpose of receiving
payment of, or on account of, the principal hereof and subject to the provisions
on the face hereof, interest hereon, and for all other purposes, and none of the
Company, the Trustee or any authorized agent of the Company or the Trustee shall
be affected by any notice to the contrary.
No director, officer, employee, incorporator or stockholder of the
Company or any Subsidiary, as such, will 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 of
the 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.
A-7
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
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Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the Company
pursuant to Section 2.08 or 3.08 of the Ninth Supplemental Indenture to the
Indenture, check the appropriate box below:
Section 2.08 Section 3.08
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 2.08 or Section 3.08 of the Ninth Supplemental
Indenture to the Indenture, state the amount you elect to have purchased ($1,000
or an integral multiple thereof):
$__________________
Date: _______________
Your Signature:_____________________
(Sign exactly as your name appears on the face
of this Note)
Tax Identification No.: ______________________
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor acceptable to the Trustee).
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