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EXHIBIT 4(d)(i)
FIFTEENTH SUPPLEMENTAL INDENTURE
DATED AS OF SEPTEMBER 29, 2004
--------------------
This Fifteenth Supplemental Indenture, dated as of the 29th day
of
September, 2004 between CMS Energy
Corporation, a corporation duly organized and
existing under the laws of the State of
Michigan (hereinafter called the
"Issuer") and having its principal office
at One Energy Plaza, Jackson, Michigan
49201, and J.P. Morgan Trust Company, N.A.,
a national banking association
(hereinafter called the "Trustee") and
having its Corporate Trust Office at 227
W. Monroe Street, Suite 2700, Chicago, IL
60606.
WITNESSETH:
WHEREAS, the Issuer and the Trustee (ultimate successor to NBD
Bank,
National Association) entered into an
Indenture, dated as of September 15, 1992
(the "Original Indenture"), pursuant to
which one or more series of debt
securities of the Issuer (the "Securities")
may be issued from time to time; and
WHEREAS, Section 2.3 of the Original Indenture permits the terms of
any
series of Securities to be established in
an indenture supplemental to the
Original Indenture; and
WHEREAS, Section 8.1(e) of the Original Indenture provides that
a
supplemental indenture may be entered into
by the Issuer and the Trustee without
the consent of any Holders (as defined in
the Original Indenture) of the
Securities to establish the form and terms
of the Securities of any series; and
WHERAS, the Issuer issued its series of "7.75% Senior Notes due
2010
(the "Original 2010 Notes") on July 17,
2003 pursuant to the Fourteenth
Supplemental Indenture dated July 17, 2003
between the Issuer and the Trustee;
and
WHEREAS, the Issuer entered into a registration rights agreement
with
the initial purchasers of the Original 2010
Notes whereby the Issuer agreed to
register a series of notes with the
Securities and Exchange Commission that
would be exchanged pursuant to an exchange
offer to existing holders of the
Original 2010 Notes for their Original 2010
Notes; and
WHEREAS, the Issuer has registered a new series of notes to be
exchanged for the Original 2010 Notes and
has requested the Trustee to join with
it in the execution and delivery of this
Fifteenth Supplemental Indenture in
order to supplement and amend the Original
Indenture by, among other things,
establishing the form and terms of a series
of Securities to be known as the
Issuer's "7.75% Senior Notes due 2010" (the
"2010 Notes"), providing for the
issuance of the 2010 Notes and amending and
adding certain provisions thereof
for the benefit of the Holders of the 2010
Notes such 2010 Notes to be exchanged
for the Original 2010 Notes; and
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WHEREAS, the Issuer and the Trustee desire to enter into this
Fifteenth
Supplemental Indenture for the purposes set
forth in Sections 2.3 and 8.1(e) of
the Original Indenture as referred to
above; and
WHEREAS, the Issuer has furnished the Trustee with a copy of
the
resolutions of its Board of Directors
certified by its Secretary or Assistant
Secretary authorizing the execution of this
Fifteenth Supplemental Indenture;
and
WHEREAS, all things necessary to make this Fifteenth
Supplemental
Indenture a valid agreement of the Issuer
and the Trustee and a valid supplement
to the Original Indenture have been
done;
NOW, THEREFORE,
for and in consideration of the premises and the
purchase of the 2010 Notes to be issued
hereunder by holders thereof, the Issuer
and the Trustee mutually covenant and
agree, for the equal and proportionate
benefit of the respective holders from time
to time of the 2010 Notes, as
follows:
ARTICLE I
STANDARD PROVISIONS; DEFINITIONS
SECTION 1.01. Standard Provisions. The Original Indenture together
with
this Fifteenth Supplemental Indenture and
all previous indentures supplemental
thereto entered into pursuant to the
applicable terms thereof are hereinafter
sometimes collectively referred to as the
"Indenture." All capitalized terms
which are used herein and not otherwise
defined herein are defined in the
Indenture and are used herein with the same
meanings as in the Indenture.
SECTION 1.02.
Definitions.
(a) The following terms have the meanings set forth in the
Sections
hereof set forth below:
<Table>
<Caption>
Term
Section
----
-------
<S>
<C>
Applicable Premium
2.04
Application Period
4.06
Asset Sale
4.06
Change in Control Date
3.01
Change in Control Purchase Notice
3.01(b)
Change in Control Purchase Price
3.01
Company
2.03
Depositary
Article VI
DTC
2.03
Events of Default
5.01
Excess Proceeds
4.06
Global Note
Article VI
Indenture
1.01; 2.04
Interest Payment Date
2.03
</Table>
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<Table>
<Caption>
Term
Section
----
-------
<S>
<C>
Issue
4.04(a)
Issuer
Preamble; 2.03
Lien
4.02(a)
Maturity
2.03
Original Indenture
Recitals
Original Issue Date
2.03
Original 2010 Notes
Recitals
Place of Payment
2.03
Purchase Date
3.01(a)(iii)
Record Date
2.03
Required Repurchase
3.01
Required Repurchase Notice
3.01(a)
Restricted Payment
4.05(a)
Securities
Recitals
Securities Act
2.03
Treasury Rate
2.04
Trustee
Preamble; 2.04
2010 Notes
Recitals; 2.04
</Table>
(b) Section 1.1 of the Original Indenture is amended to insert the
new
definitions applicable to the 2010 Notes,
in the appropriate alphabetical
sequence, as follows:
"Amortization Expense" means, for any period, amounts recognized
during
such period as amortization of capital
leases, depletion, nuclear fuel, goodwill
and assets classified as intangible assets
in accordance with generally accepted
accounting principles.
"Average Life" means, as of the date of determination, with respect
to
any Indebtedness, the quotient obtained by
dividing (i) the sum of the products
of (x) the number of years from the date of
determination to the dates of each
successive scheduled principal payment of
such Indebtedness and (y) the amount
of such principal payment by (ii) the sum
of all such principal payments.
"Capital Lease Obligation" of a Person means any obligation that
is
required to be classified and accounted for
as a capital lease on the face of a
balance sheet of such Person prepared in
accordance with generally accepted
accounting principles; the amount of such
obligation shall be the capitalized
amount thereof, determined in accordance
with generally accepted accounting
principles; the stated maturity thereof
shall be the date of the last payment of
rent or any other amount due under such
lease prior to the first date upon which
such lease may be terminated by the lessee
without payment of a penalty; and
such obligation shall be deemed secured by
a Lien on any property or assets to
which such lease relates.
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"Capital Stock" means any and all shares, interests, rights to
purchase, warrants, options, participations
or other equivalents of or interests
in (however designated) corporate stock,
including any Preferred Stock or Letter
Stock; provided that Hybrid Preferred
Securities shall not be considered Capital
Stock for purposes of this definition.
"Change in Control" means an event or series of events by which:
(i)
the Issuer ceases to own beneficially,
directly or indirectly, at least 80% of
the total voting power of all classes of
Capital Stock then outstanding of
Consumers (whether arising from issuance of
securities of the Issuer or
Consumers, any direct or indirect transfer
of securities by the Issuer or
Consumers, any merger, consolidation,
liquidation or dissolution of the Issuer
or Consumers or otherwise); (ii) any
"person" or "group" (as such terms are used
in Sections 13(d) and 14(d) of the Exchange
Act) becomes the "beneficial owner"
(as such term is used in Rules 13d-3 and
13d-5 under the Exchange Act, except
that a person or group shall be deemed to
have "beneficial ownership" of all
shares that such person or group has the
right to acquire, whether such right is
exercisable immediately or only after the
passage of time), directly or
indirectly, of more than 35% of the Voting
Stock of the Issuer; or (iii) the
Issuer consolidates with or merges into
another corporation or directly or
indirectly conveys, transfers or leases all
or substantially all of its assets
to any Person, or any corporation
consolidates with or merges into the Issuer,
in either event pursuant to a transaction
in which the outstanding Voting Stock
of the Issuer is changed into or exchanged
for cash, securities, or other
property, other than any such transaction
in which (A) the outstanding Voting
Stock of the Issuer is changed into or
exchanged for Voting Stock of the
surviving corporation and (B) the holders
of the Voting Stock of the Issuer
immediately prior to such transaction
retain, directly or indirectly,
substantially proportionate ownership of
the Voting Stock of the surviving
corporation immediately after such
transaction.
"CMS Electric and Gas" means CMS Electric and Gas Company, a
Michigan
corporation and wholly-owned subsidiary of
Enterprises.
"CMS Gas Transmission" means CMS Gas Transmission Company
(formerly
known as CMS Gas Transmission and Storage
Company), a Michigan corporation and
wholly-owned subsidiary of Enterprises.
"CMS Generation" means CMS Generation Co., a Michigan corporation
and
wholly-owned subsidiary of Enterprises.
"CMS MST" means CMS Marketing, Services and Trading Company, a
Michigan
corporation and wholly-owned subsidiary of
Enterprises.
"Consolidated Assets" means, at any date of determination, the
aggregate assets of the Issuer and its
Consolidated Subsidiaries determined on a
consolidated basis in accordance with
generally accepted accounting principles.
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"Consolidated Coverage Ratio" with respect to any period means
the
ratio of (i) the aggregate amount of
Operating Cash Flow for such period to (ii)
the aggregate amount of Consolidated
Interest Expense for such period.
"Consolidated Current Liabilities" means, for any period, the
aggregate
amount of liabilities of the Issuer and its
Consolidated Subsidiaries which may
properly be classified as current
liabilities (including taxes accrued as
estimated), after (i) eliminating all
inter-company items between the Issuer and
any Consolidated Subsidiary and (ii)
deducting all current maturities of
long-term Indebtedness, all as determined
in accordance with generally accepted
accounting principles.
"Consolidated Indebtedness" means, at any date of determination,
the
aggregate Indebtedness of the Issuer and
its Consolidated Subsidiaries
determined on a consolidated basis in
accordance with generally accepted
accounting principles; provided that
Consolidated Indebtedness shall not include
any subordinated debt owned by any Hybrid
Preferred Securities Subsidiary.
"Consolidated Interest Expense" means, for any period, the
total
interest expense in respect of Consolidated
Indebtedness of the Issuer and its
Consolidated Subsidiaries, including,
without duplication, (i) interest expense
attributable to capital leases, (ii)
amortization of debt discount, (iii)
capitalized interest, (iv) cash and noncash
interest payments, (v) commissions,
discounts and other fees and charges owed
with respect to letters of credit and
bankers' acceptance financing, (vi) net
costs under Interest Rate Protection
Agreements (including amortization of
discount) and (vii) interest expense in
respect of obligations of other Persons
deemed to be Indebtedness of the Issuer
or any Consolidated Subsidiaries under
clause (v) or (vi) of the definition of
Indebtedness, provided, however, that
Consolidated Interest Expense shall
exclude (A) any costs otherwise included in
interest expense recognized on early
retirement of debt and (B) any interest
expense in respect of any Indebtedness
of any Subsidiary of Consumers, CMS
Generation, CMS Electric and Gas, CMS Gas
Transmission, CMS MST or any other
Designated Enterprises Subsidiary, provided
that such Indebtedness is without recourse
to any assets of the Issuer,
Consumers, Enterprises, CMS Generation, CMS
Electric and Gas, CMS Gas
Transmission, CMS MST or any other
Designated Enterprises Subsidiary.
"Consolidated Net Income" means, for any period, the net income of
the
Issuer and its Consolidated Subsidiaries
determined on a consolidated basis in
accordance with generally accepted
accounting principles; provided, however,
that there shall not be included in such
Consolidated Net Income:
(i) any net income of any Person if such Person is not a
Subsidiary,
except that (A) the Issuer's equity in the
net income of any such Person for
such period shall be included in such
Consolidated Net Income up to the
aggregate amount of cash actually
distributed by such Person during such period
to the Issuer or a Consolidated Subsidiary
as a dividend or other distribution
and (B) the Issuer's equity in a net loss
of any such Person for such period
shall be included in determining such
Consolidated Net Income;
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(ii) any net income of any Person acquired by the Issuer or a
Subsidiary in a pooling of interests
transaction for any period prior to the
date of such acquisition;
(iii) any gain or loss realized upon the sale or other disposition
of
any property, plant or equipment of the
Issuer or its Consolidated Subsidiaries
which is not sold or otherwise disposed of
in the ordinary course of business
and any gain or loss realized upon the sale
or other disposition of any Capital
Stock of any Person; and
(iv) any net income of any Subsidiary of Consumers, CMS Generation,
CMS
Electric and Gas, CMS Gas Transmission, CMS
MST or any other Designated
Enterprises Subsidiary whose interest
expense is excluded from Consolidated
Interest Expense, provided, however, that
for purposes of this subsection (iv),
any cash, dividends or distributions of any
such Subsidiary to the Issuer shall
be included in calculating Consolidated Net
Income.
"Consolidated Net Tangible Assets" means, for any period, the
total
amount of assets (less accumulated
depreciation or amortization, allowances for
doubtful receivables, other applicable
reserves and other properly deductible
items) as set forth on the most recently
available quarterly or annual
consolidated balance sheet of the Issuer
and its Consolidated Subsidiaries,
determined on a consolidated basis in
accordance with generally accepted
accounting principles, and after giving
effect to purchase accounting and after
deducting therefrom, to the extent
otherwise included, the amounts of: (i)
Consolidated Current Liabilities; (ii)
minority interests in Consolidated
Subsidiaries held by Persons other than the
Issuer or a Restricted Subsidiary;
(iii) excess of cost over fair value of
assets of businesses acquired, as
determined in good faith by the Board of
Directors as evidenced by Board of
Directors resolutions; (iv) any revaluation
or other write-up in value of assets
subsequent to December 31, 1996, as a
result of a change in the method of
valuation in accordance with generally
accepted accounting principles; (v)
unamortized debt discount and expenses and
other unamortized deferred charges,
goodwill, patents, trademarks, service
marks, trade names, copyrights, licenses,
organization or developmental expenses and
other intangible items; (vi) treasury
stock; and (vii) any cash set apart and
held in a sinking or other analogous
fund established for the purpose of
redemption or other retirement of Capital
Stock to the extent such obligation is not
reflected in Consolidated Current
Liabilities.
"Consolidated Net Worth" of any Person means the total of the
amounts
shown on the consolidated balance sheet of
such Person and its consolidated
subsidiaries, determined on a consolidated
basis in accordance with generally
accepted accounting principles, as of any
date selected by such Person not more
than 90 days prior to the taking of any
action for the purpose of which the
determination is being made (and adjusted
for any material events since such
date), as (i) the par or stated value of
all outstanding Capital Stock plus (ii)
paid-in capital or capital surplus relating
to such Capital Stock plus (iii) any
retained earnings or earned surplus less
(A) any accumulated deficit, (B) any
amounts attributable to Redeemable Stock
and (C) any amounts attributable to
Exchangeable Stock.
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<PAGE>
"Consolidated Subsidiary" means any Subsidiary whose accounts are
or
are required to be consolidated with the
accounts of the Issuer in accordance
with generally accepted accounting
principles.
"Consumers" means Consumers Energy Company, a Michigan corporation,
all
of whose common stock is on the date hereof
owned by the Issuer.
"Designated Enterprises Subsidiary" means any wholly-owned
subsidiary
of Enterprises formed after the date of
this Fifteenth Supplemental Indenture
which is designated a Designated
Enterprises Subsidiary by the Board of
Directors.
"Enterprises" means CMS Enterprises Company, a Michigan corporation
and
wholly-owned subsidiary of the Issuer.
"Exchange Act"
means the Securities Exchange Act of 1934, as amended.
"Exchangeable Stock" means any Capital Stock of a corporation that
is
exchangeable or convertible into another
security (other than Capital Stock of
such corporation that is neither
Exchangeable Stock or Redeemable Stock).
"Hybrid Preferred Securities" means any preferred securities issued
by
a Hybrid Preferred Securities Subsidiary,
where such preferred securities have
the following characteristics:
(i) such Hybrid Preferred Securities Subsidiary lends substantially
all
of the proceeds from the issuance of such
preferred securities to the Issuer or
Consumers in exchange for subordinated debt
issued by the Issuer or Consumers
respectively;
(ii) such preferred securities contain terms providing for the
deferral
of distributions corresponding to
provisions providing for the deferral of
interest payments on such subordinated
debt; and
(iii) the Issuer or Consumers (as the case may be) makes
periodic
interest payments on such subordinated
debt, which interest payments are in turn
used by the Hybrid Preferred Securities
Subsidiary to make corresponding
payments to the holders of the Hybrid
Preferred Securities.
"Hybrid Preferred Securities Subsidiary" means any business trust
(or
similar entity) (i) all of the common
equity interest of which is owned (either
directly or indirectly through one or more
wholly-owned Subsidiaries of the
Issuer or Consumers) at all times by the
Issuer or Consumers, (ii) that has been
formed for the purpose of issuing Hybrid
Preferred Securities and (iii)
substantially all of the assets of which
consist at all times solely of
subordinated debt issued by the Issuer or
Consumers (as the case may be) and
payments made from time to time on such
subordinated debt.
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"Indebtedness" of any Person means, without duplication:
(i) the principal of and premium (if any) in respect of (A)
indebtedness of such Person for money
borrowed and (B) indebtedness evidenced by
notes, debentures, bonds or other similar
instruments for the payment of which
such Person is responsible or liable;
(ii) all Capital Lease Obligations of such Person;
(iii) all obligations of such Person issued or assumed as the
deferred
purchase price of property, all conditional
sale obligations and all obligations
under any title retention agreement (but
excluding trade accounts payable
arising in the ordinary course of
business);
(iv) all obligations of such Person for the reimbursement of
any
obligor on any letter of credit, bankers'
acceptance or similar credit
transaction (other than obligations with
respect to letters of credit securing
obligations (other than obligations
described in clauses (i) through (iii)
above) entered into in the ordinary course
of business of such Person to the
extent such letters of credit are not drawn
upon or, if and to the extent drawn
upon, such drawing is reimbursed no later
than the third Business Day following
receipt by such Person of a demand for
reimbursement following payment on the
letter of credit);
(v) all obligations of the type referred to in clauses (i) through
(iv)
above of other Persons and all dividends of
other Persons for the payment of
which, in either case, such Person is
responsible or liable as obligor,
guarantor or otherwise; and
(vi) all obligations of the type referred to in clauses (i) through
(v)
above of other Persons secured by any Lien
on any property or asset of such
Person (whether or not such obligation is
assumed by such Person), the amount of
such obligation being deemed to be the
lesser of the value of such property or
assets or the amount of the obligation so
secured.
"Interest
Rate Protection Agreement" means any interest rate swap
agreement, interest rate cap agreement or
other financial agreement or
arrangement designed to protect the Issuer
or any Subsidiary against
fluctuations in interest rates.
"Letter Stock", as applied to the Capital Stock of any
corporation,
means Capital Stock of any class or classes
(however designated) which is
intended to reflect the separate
performance of certain of the businesses or
operations conducted by such corporation or
any of its subsidiaries.
"Net Cash Proceeds" means, (a) with respect to any Asset Sale,
the
aggregate proceeds of such Asset Sale
including the fair market value (as
determined by the Board of Directors and
net of any associated debt and of any
consideration other than Capital Stock
received in return) of property other
than cash, received by the Issuer, net of
(i) brokerage commissions and other
fees and expenses (including fees and
expenses of
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counsel and investment bankers) related to
such Asset Sale, (ii) provisions for
all taxes (whether or not such taxes will
actually be paid or are payable) as a
result of such Asset Sale without regard to
the consolidated results of
operations of the Issuer and its Restricted
Subsidiaries, taken as a whole,
(iii) payments made to repay Indebtedness
or any other obligation outstanding at
the time of such Asset Sale that either (A)
is secured by a Lien on the property
or assets sold or (B) is required to be
paid as a result of such sale and (iv)
appropriate amounts to be provided by the
Issuer or any Restricted Subsidiary of
the Issuer as a reserve against any
liabilities associated with such Asset Sale
including, without limitation, pension and
other post-employment benefit
liabilities, liabilities related to
environmental matters and liabilities under
any indemnification obligations associated
with such Asset Sale, all as
determined in conformity with generally
accepted accounting principles and (b)
with respect to any issuance or sale or
contribution in respect of Capital
Stock, the aggregate proceeds of such
issuance, sale or contribution, including
the fair market value (as determined by the
Board of Directors and net of any
associated debt and of any consideration
other than Capital Stock received in
return) of property other than cash,
received by the Issuer, net of attorneys'
fees, accountants' fees, underwriters' or
placement agents' fees, discounts or
commissions and brokerage, consultant and
other fees incurred in connection with
such issuance or sale and net of taxes paid
or payable as a result thereof,
provided, however, that if such fair market
value as determined by the Board of
Directors of property other than cash is
greater than $25 million, the value
thereof shall be based upon an opinion from
an independent nationally recognized
firm experienced in the appraisal or
similar review of similar types of
transactions.
"Non-Convertible Capital Stock" means, with respect to any
corporation,
any non-convertible Capital Stock of such
corporation and any Capital Stock of
such corporation convertible solely into
non-convertible Capital Stock other
than Preferred Stock of such corporation;
provided, however, that
Non-Convertible Capital Stock shall not
include any Redeemable Stock or
Exchangeable Stock.
"Operating Cash Flow" means, for any period, with respect to the
Issuer
and its Consolidated Subsidiaries, the
aggregate amount of Consolidated Net
Income after adding thereto Consolidated
Interest Expense (adjusted to include
costs recognized on early retirement of
debt), income taxes, depreciation
expense, Amortization Expense and any
noncash amortization of debt issuance
costs, any nonrecurring, noncash charges to
earnings and any negative accretion
recognition.
"Other Rating Agency" means any one of Fitch, Inc. or Moody's
Investors
Service, Inc., and any successor to any of
these organizations which is a
nationally recognized statistical rating
organization.
"Paying Agent" means any Person authorized by the Issuer to pay
the
principal of (and premium, if any) or
interest on any of the 2010 Notes on
behalf of the Issuer. Initially, the Paying
Agent shall be the Trustee.
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"Predecessor 2010 Note" of any particular 2010 Note means every
previous 2010 Note evidencing all or a
portion of the same debt as that
evidenced by such particular 2010 Note;
and, for the purposes of the definition,
any 2010 Note authenticated and delivered
under Section 2.9 of the Indenture in
exchange for or in lieu of a mutilated,
destroyed, lost or stolen 2010 Note
shall be deemed to evidence the same debt
as the mutilated, destroyed, lost or
stolen 2010 Note.
"Preferred Stock", as applied to the Capital Stock of any
corporation,
means Capital Stock of any class or classes
(however designated) that is
preferred as to the payment of dividends,
or as to the distribution of assets
upon any voluntary or involuntary
liquidation or dissolution of such
corporation, over shares of Capital Stock
of any other class of such
corporation; provided that Hybrid Preferred
Securities shall not be considered
Preferred Stock for purposes of this
definition.
"Redeemable Stock" means any Capital Stock that by its terms or
otherwise is required to be redeemed prior
to the first anniversary of the
Stated Maturity of the outstanding 2010
Notes or is redeemable at the option of
the holder thereof at any time prior to the
first anniversary of the Stated
Maturity of the outstanding 2010 Notes.
"Regulation S" means Regulation S under the Securities Act.
"Restricted Subsidiary" means any Subsidiary (other than Consumers
and
its Subsidiaries) of the Issuer which, as
of the date of the Issuer's most
recent quarterly consolidated balance
sheet, constituted at least 10% of the
total Consolidated Assets of the Issuer and
its Consolidated Subsidiaries and
any other Subsidiary which from time to
time is designated a Restricted
Subsidiary by the Board of Directors;
provided that no Subsidiary may be
designated a Restricted Subsidiary if,
immediately after giving effect thereto,
an Event of Default or event that, with the
lapse of time or giving of notice or
both, would constitute an Event of Default
would exist or the Issuer and its
Restricted Subsidiaries could not incur at
least one dollar of additional
Indebtedness under Section 4.04 hereof, and
(i) any such Subsidiary so
designated as a Restricted Subsidiary must
be organized under the laws of the
United States or any State thereof, (ii)
more than 80% of the Voting Stock of
such Subsidiary must be owned of record and
beneficially by the Issuer or a
Restricted Subsidiary and (iii) such
Restricted Subsidiary must be a
Consolidated Subsidiary.
"Standard & Poor's" means Standard & Poor's Ratings Group,
a division
of The McGraw-Hill Companies, Inc., and any
successor thereto which is a
nationally recognized statistical rating
organization, or if such entity shall
cease to rate the 2010 Notes or shall cease
to exist and there shall be no such
successor thereto, any other nationally
recognized statistical rating
organization selected by the Issuer which
is acceptable to the Trustee.
"Subordinated Indebtedness" means any Indebtedness of the
Issuer
(whether outstanding on the date of this
Fifteenth Supplemental Indenture or
thereafter incurred) which is contractually
subordinated or junior in right of
payment to the 2010 Notes.
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"Support Obligations" means, for any Person, without duplication,
any
financial obligation, contingent or
otherwise, of such Person guaranteeing or
otherwise supporting any debt or other
obligation of any other Person in any
manner, whether directly or indirectly, and
including, without limitation, any
obligation of such Person, direct or
indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or
payment of) such debt or to purchase
(or to advance or supply funds for the
purchase of) any security for the payment
of such debt, (ii) to purchase property,
securities or services for the purpose
of assuring the owner of such debt of the
payment of such debt, (iii) to
maintain working capital, equity capital,
available cash or other financial
statement condition of the primary obligor
so as to enable the primary obligor
to pay such debt, (iv) to provide equity
capital under or in respect of equity
subscription arrangements (to the extent
that such obligation to provide equity
capital does not otherwise constitute
debt), or (v) to perform, or arrange for
the performance of, any non-monetary
obligations or non-funded debt payment
obligations of the primary obligor.
"Tax Sharing Agreement" means the Amended and Restated Agreement
for
the Allocation of Income Tax Liabilities
and Benefits, dated January 1, 1994, as
amended or supplemented from time to time,
by and among Issuer, each of the
members of the Consolidated Group (as
defined therein), and each of the
corporations that become members of the
Consolidated Group.
"Voting Stock" means securities of any class or classes the holders
of
which are ordinarily, in the absence of
contingencies, entitled to vote for
corporate directors (or persons performing
similar functions).
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ARTICLE II
DESIGNATION AND TERMS OF THE 2010 NOTES; FORMS
SECTION 2.01.
Establishment of Series.
(a) There is hereby created a series of Securities to be known
and
designated as the "7.75% Senior Notes due
2010" to be issued in aggregate
principal amount of $300,000,000.
Additional Securities, without limitation as
to amount, having substantially the same
terms as the 2010 Notes (except a
different issue date, issue price and
bearing interest from the last Interest
Payment Date to which interest has been
paid or duly provided for on the 2010
Notes, and, if no interest has been paid,
from September 29, 2004), may also be
issued by the Issuer pursuant to the
Indenture without the consent of the
existing Holders of the 2010 Notes. Such
additional Securities shall be part of
the same series as the 2010 Notes. The
Stated Maturity of the 2010 Notes is
August 1, 2010; the principal amount of the
2010 Notes shall be payable on such
date unless the 2010 Notes are earlier
redeemed or purchased in accordance with
the terms of the Indenture.
(b) The 2010 Notes will bear interest from the Original Issue Date,
or
from the most recent date to which interest
has been paid or duly provided for
on the Original 2010 Notes, at the rate of
7.75% per annum stated therein until
the principal thereof is paid or made
available for payment. Interest will be
payable semiannually on each Interest
Payment Date and at Maturity, as provided
in the form of the 2010 Note in Section
2.03 hereof.
(c) The Record Date referred to in Section 2.3(f)(4) of the
Indenture
for the payment of the interest on any 2010
Note payable on any Interest Payment
Date (other than at Maturity) shall be the
15th day preceding the relevant
Interest Payment Date (whether or not a
Business Day) except that the Record
Date for interest payable at Maturity shall
be the date of Maturity.
(d) The payment of the principal of, premium (if any) and interest
on
the 2010 Notes shall not be secured by a
security interest in any property.
(e) The 2010 Notes shall be redeemable at the option of the Issuer,
in
whole or in part, at any time and from time
to time, or not less than 30 days
notice at a redemption price equal to 100%
of the principal amount of such 2010
Notes being redeemed plus the Applicable
Premium, if any, thereon at the time of
redemption, together with accrued interest,
if any, thereon to the redemption
date. In no event will the redemption price
ever be less than 100% of the
principal amount of the 2010 Notes plus
accrued interest to the redemption date.
The 2010 Notes shall be purchased by the
Issuer at the option of the Holders
thereof as provided in Article III
hereof.
(f) The 2010 Notes shall not be convertible.
(g) The 2010 Notes will not be subordinated to the payment of
Senior
Debt.
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(h) The events specified in Events of Default with respect to the
2010
Notes shall include the events specified in
Article V of this Fifteenth
Supplemental Indenture. In addition to the
covenants set forth in Article Three
of the Original Indenture, the Holders of
the 2010 Notes shall have the benefit
of the covenants of the Issuer set forth in
this Fifteenth Supplemental
Indenture.
SECTION 2.02. Forms Generally. The 2010 Notes and Trustee's
certificates of authentication shall be in
substantially the form set forth in
this Article II, with such appropriate
insertions, omissions, substitutions and
other variations as are required or
permitted by the Indenture, and may have
such letters, numbers or other marks of
identification and such legends or
endorsements placed thereon as may be
required to comply with the rules of any
securities exchange or as may, consistently
herewith, be determined by the
officers executing such 2010 Notes, as
evidenced by their execution thereof.
The definitive 2010 Notes shall be printed, lithographed or
engraved on
steel engraved borders or may be produced
in any other manner, all as determined
by the officers executing such 201
