EXHIBIT 99.3
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SIXTH SUPPLEMENTAL INDENTURE
dated as of October 20, 2003
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with respect to the:
INDENTURE
Dated as of May 1, 1990
between
THE XXXXXXXX COMPANIES, INC.
and
THE BANK OF NEW YORK
SIXTH SUPPLEMENTAL INDENTURE dated as of October 20, 2003 (this
"Supplemental Indenture") among THE XXXXXXXX COMPANIES, INC., a Delaware
corporation (the "Obligor"), and THE BANK OF NEW YORK, as trustee (the
"Trustee"), for the securities issued under the Indenture dated as of May 1,
1990 between TRANSCO ENERGY COMPANY, a Delaware corporation ("Transco"), and the
Trustee, as supplemented by the First Supplemental Indenture dated as of June
20, 1990, the Second Supplemental Indenture dated as of November 29, 1990, the
Third Supplemental Indenture dated as of April 23, 1991, the Fourth Supplemental
Indenture dated as of August 22, 1991, and the Fifth Supplemental Indenture
dated May 1, 1995 (the "Fifth Supplemental Indenture"; and, as so supplemented
and as further amended, supplemented or otherwise modified from time to time,
the "Indenture").
RECITALS
A. Pursuant to and in accordance with the terms of the Indenture, Transco
established and issued $125,000,000 aggregate principal amount of its 9.875%
Debentures due 2020 (the "Debentures") and pursuant to and in accordance with
the Fifth Supplemental Indenture, the Obligor assumed the obligations of Transco
under or in respect of the Debentures and the Indenture.
B. In accordance with Section 14.02 of the Indenture, the Obligor has
obtained the written consent of the holders of the Debentures representing not
less than a majority in aggregate principal amount of the outstanding Debentures
to the amendments to the Indenture set forth in this Supplemental Indenture.
NOW, THEREFORE, in consideration of the premises herein contained and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, it is mutually covenanted and agreed as follows:
AGREEMENTS
Section 1. Defined Terms. Terms defined in the Indenture and not otherwise
defined herein are used herein as therein defined.
Section 2. Amendments to Indenture. Effective as of the Amendment
Effective Date (as defined below):
(a) The following Sections of the Indenture, and any corresponding
provisions in the Securities, hereby are deleted in their entirety and replaced
with "Intentionally Omitted" and all references made thereto throughout the
Indenture and the Securities hereby are deleted in their entirety:
Existing Section Number Caption
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Section 6.04 Negative Pledge
Section 6.05 Maintenance of Corporate Existence
Section 6.06 Further Assurances
Section 6.08 Statement of Officers as to Default
[Transco Sixth Supplemental Indenture]
(b) Clauses (g), (h), (i) and (j) of the definition of "Event of Default"
set forth in Section 7.01 of the Indenture and any corresponding provisions in
the Securities hereby are deleted in their entirety and replaced with
"Intentionally Omitted" and all references made thereto throughout the Indenture
and the Securities hereby are deleted in their entirety. Clause (f) of the
definition of "Event of Default" is amended and restated in its entirety (and
any corresponding provisions in the Securities hereby are amended) to read as
follows:
"(f) the filing by the Company of a petition or answer seeking relief
under the Federal bankruptcy laws or any other applicable law or statute
of the United States of America."
(c) Section 13.01 of the Indenture is amended and restated in its
entirety to read as follows:
"Section 13.01 Consolidation, Merger or Sale Permitted Under Certain
Conditions. The Company shall not consolidate with or merge into any other
corporation or convey, lease or transfer its properties and assets substantially
as an entirety to any Person, unless:
"(a) the Company is the surviving corporation in any such merger or
the corporation formed by such consolidation or into which the Company is
merged or the Person which acquires by conveyance, lease or transfer the
properties and assets of the Company substantially as an entirety shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any, on) and
interest on and any Additional Amounts payable pursuant to Section 6.09
with respect to all the Securities and the performance of every covenant
of this Indenture on the part of the Company to be performed or observed;
and
"(b) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, lease or transfer and such supplemental
indenture, if any, comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with."
(d) Any definitions used exclusively in the provisions of the Indenture
deleted pursuant to Paragraphs (a), (b) or (c) of this Section 2 hereby are
deleted in their entirety from the Indenture.
Section 3. Indenture Ratified. Except as hereby otherwise expressly
provided, the Indenture is in all respects ratified and confirmed, and all the
terms, provisions and conditions thereof shall be and remain in full force and
effect.
Section 4. Counterparts. This Supplemental Indenture may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
[Transco Sixth Supplemental Indenture]
2
Section 5. Supplemental Indenture is a Supplement to Indenture. This
Supplemental Indenture is executed as and shall constitute an indenture
supplemental to the Indenture and shall be construed in connection with and as
part of the Indenture.
Section 6. Governing Law. This Supplemental Indenture shall be governed by
and construed in accordance with the laws of the State of New York (regardless
of the laws that might otherwise govern under applicable principles of conflicts
of laws) as to all matters, including, without limitation, matters of validity,
construction, effect, performance and remedies.
Section 7. References to Supplemental Indenture. Any and all notices,
requests, certificates and other instruments executed and delivered after the
execution and delivery of this Supplemental Indenture may refer to the Indenture
without making specific reference to this Supplemental Indenture, but
nevertheless all such references shall include this Supplemental Indenture
unless the context otherwise requires.
Section 8. Effect of This Supplemental Indenture. From and after the
Amendment Effective Date, the Indenture shall be deemed to be modified as herein
provided, but except as modified hereby, the Indenture shall continue in full
force and effect. The Indenture as modified hereby shall be read, taken and
construed as one and the same instrument.
Section 9. Severability. In the event that any provisions of this
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 10. Trust Indenture Act. If any provisions hereof limit, qualify
or conflict with any provisions of the Trust Indenture Act of 1939 required
under the Trust Indenture Act of 1939 to be a part of and govern this
Supplemental Indenture, the provisions of the Trust Indenture Act of 1939 shall
control. If any provision hereof modifies or excludes any provision of the Trust
Indenture Act of 1939 that pursuant to the Trust Indenture Act of 1939 may be so
modified or excluded, the provisions of the Trust Indenture Act of 1939 as so
modified or excluded hereby shall apply.
Section 11. Trustee Not Responsible for Recitals. The recitals contained
herein shall be taken as the statements of the Obligor, and the Trustee assumes
no responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Supplemental Indenture.
Section 12. Effectiveness. This Supplemental Indenture shall become
effective upon execution by the Obligor and the Trustee. As used herein, the
"Amendment Effective Date" shall mean the date that the Obligor delivers written
notice to the Trustee and JPMorgan Chase Bank, the Depositary for the
Debentures, that the Debentures tendered and not validly withdrawn pursuant to
the Obligor's Offer to Purchase and Consent Solicitation Statement dated October
8, 2003, as amended, have been accepted for purchase.
[signature page follows]
[Transco Sixth Supplemental Indenture]
3
IN WITNESS WHEREOF, each of the parties hereto have caused this
Supplemental Indenture to be duly executed on its behalf by its duly authorized
officer as of the day and year first above written.
THE XXXXXXXX COMPANIES, INC.
Attest
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxx
Title: Secretary Title: Treasurer
[Transco Sixth Supplemental Indenture]
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: Vice President
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[Transco Sixth Supplemental Indenture]
