1
EXHIBIT 4(i)
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AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
CMS ENERGY CORPORATION
AS SPONSOR,
THE BANK OF NEW YORK
AS PROPERTY TRUSTEE,
THE BANK OF NEW YORK (DELAWARE)
AS DELAWARE TRUSTEE,
AND
THE REGULAR TRUSTEES NAMED HEREIN
DATED AS OF _________, 1997
CMS ENERGY TRUST I
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TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINED TERMS
SECTION 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2
ESTABLISHMENT OF THE TRUST
SECTION 2.1. Name . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.2. Office of the Delaware Trustee; Principal
Place of Business . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.3. Organizational Expenses . . . . . . . . . . . . . . . . . . 16
SECTION 2.4. Issuance of the Preferred Securities . . . . . . . . . . . 16
SECTION 2.5. Subscription and Purchase of Debentures; Issuance of the
Common Securities . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.6. Declaration of Trust . . . . . . . . . . . . . . . . . . . 17
SECTION 2.7. Authorization to Enter into Certain Transactions . . . . . 17
SECTION 2.8. Assets of Trust . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.9. Title to Trust Property . . . . . . . . . . . . . . . . . . 23
ARTICLE 3
PAYMENT ACCOUNT
SECTION 3.1. Payment Account . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE 4
DISTRIBUTIONS; REDEMPTION; EXCHANGE; CONVERSION
SECTION 4.1. Distributions . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 4.2. Redemption . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 4.3. Conversion . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 4.4. Special Event Exchange or Redemption . . . . . . . . . . . 32
SECTION 4.5. Subordination of Common Securities . . . . . . . . . . . . 35
SECTION 4.6. Payment Procedures . . . . . . . . . . . . . . . . . . . . 35
SECTION 4.7. Tax Returns and Reports . . . . . . . . . . . . . . . . . . 36
SECTION 4.8. Payment of Taxes, Duties, Etc. of the Trust . . . . . . . . 36
SECTION 4.9. Payments under Indenture . . . . . . . . . . . . . . . . . 36
ARTICLE 5
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership . . . . . . . . . . . . . . . . . . . . . 37
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PAGE
SECTION 5.2. The Trust Securities Certificates . . . . . . . . . . . . 37
SECTION 5.3. Delivery of Trust Securities Certificates . . . . . . . . 37
SECTION 5.4. Registration of Transfer and Exchange of Preferred
Securities . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 5.6. Persons Deemed Securityholders . . . . . . . . . . . . . . 40
SECTION 5.7. Access to List of Securityholders' Names and
Addresses . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 5.8. Maintenance of Office or Agency . . . . . . . . . . . . . 41
SECTION 5.9. Appointment of Paying Agent . . . . . . . . . . . . . . . 41
SECTION 5.10. Ownership of Common Securities by Sponsor . . . . . . . . 42
SECTION 5.11. Global Securities; Non-Global Securities; Common
Securities Certificate . . . . . . . . . . . . . . . . . 42
SECTION 5.12. Notices to Clearing Agency . . . . . . . . . . . . . . . . 44
SECTION 5.13. Definitive Preferred Securities Certificates . . . . . . . 44
SECTION 5.14. Rights of Securityholders . . . . . . . . . . . . . . . . 45
ARTICLE 6
ACT OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights . . . . . . . . . . . . . . . 45
SECTION 6.2. Notice of Meetings . . . . . . . . . . . . . . . . . . . 48
SECTION 6.3. Meetings of Preferred Security- holders . . . . . . . . . 48
SECTION 6.4. Voting Rights . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 6.5. Proxies, Etc. . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 6.6. Securityholder Action by Written Consent . . . . . . . . . 50
SECTION 6.7. Record Date for Voting and Other Purposes . . . . . . . . 50
SECTION 6.8. Acts of Securityholders . . . . . . . . . . . . . . . . . 50
SECTION 6.9. Inspection of Records . . . . . . . . . . . . . . . . . . 52
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property
Trustee and the Delaware Trustee . . . . . . . . . . . . . 53
SECTION 7.2. Representations and Warranties of Sponsor . . . . . . . . . 54
ARTICLE 8
THE TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities . . . . . . . . . . . . 55
SECTION 8.2. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . 57
SECTION 8.3. Certain Rights of Property Trustee . . . . . . . . . . . . . 60
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SECTION 8.4. Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 8.5. May Hold Securities . . . . . . . . . . . . . . . . . . . . 63
SECTION 8.6. Compensation; Indemnity; Fees . . . . . . . . . . . . . . . 63
SECTION 8.7. Property Trustee Required; Eligibility of Trustees . . . . . 64
SECTION 8.8. Conflicting Interests . . . . . . . . . . . . . . . . . . . 65
SECTION 8.9. Resignation and Removal; Appointment of Successor . . . . . 65
SECTION 8.10. Acceptance of Appointment by Successor . . . . . . . . . . . 67
SECTION 8.11. Merger, Conversion, Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 8.12. Preferential Collection of Claims Against
Sponsor or Trust . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 8.13. Reports by Property Trustee . . . . . . . . . . . . . . . . 69
SECTION 8.14. Reports to the Property Trustee . . . . . . . . . . . . . . 70
SECTION 8.15. Evidence of Compliance with Conditions Precedent . . . . . . 70
SECTION 8.16. Number of Trustees . . . . . . . . . . . . . . . . . . . . . 70
SECTION 8.17. Delegation of Power . . . . . . . . . . . . . . . . . . . . 71
ARTICLE 9
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Termination upon Expiration Date . . . . . . . . . . . . . 71
SECTION 9.2. Early Termination . . . . . . . . . . . . . . . . . . . . . 71
SECTION 9.3. Termination . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 9.4. Liquidation . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 9.5. Mergers, Consolidations, Amalgamations or
Replacements of the Trust . . . . . . . . . . . . . . . . 74
ARTICLE 10
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Securityholders . . . . . . . . . . 76
SECTION 10.2. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 10.3. Separability . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 10.4. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 10.5. Payments Due on Non-Business Day . . . . . . . . . . . . . 78
SECTION 10.6. Successors . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 10.7. Headings . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 10.8. Reports, Notices and Demands . . . . . . . . . . . . . . . 79
SECTION 10.9. Agreement Not to Petition . . . . . . . . . . . . . . . . . 80
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act . . . 80
SECTION 10.11. ACCEPTANCE OF TERMS OF TRUST AGREEMENT,
GUARANTEE AND INDENTURE . . . . . . . . . . . . . . . . . . 81
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PAGE
ARTICLE 1
DEFINED TERMS
SECTION 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2
ESTABLISHMENT OF THE TRUST
SECTION 2.1. Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.2. Office of the Delaware Trustee; Principal Place
of Business . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.3. Organizational Expenses . . . . . . . . . . . . . . . . . . . 17
SECTION 2.4. Issuance of the Preferred Securities . . . . . . . . . . . . 17
SECTION 2.5. Subscription and Purchase of Debentures; Issuance
of the Common Securities . . . . . . . . . . . . . . . . . . 17
SECTION 2.6. Declaration of Trust . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.7. Authorization to Enter into Certain Transactions . . . . . . 18
SECTION 2.8. Assets of Trust . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.9. Title to Trust Property . . . . . . . . . . . . . . . . . . . 24
ARTICLE 3
PAYMENT ACCOUNT
SECTION 3.1. Payment Account . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE 4
DISTRIBUTIONS; REDEMPTION; EXCHANGE; CONVERSION
SECTION 4.1. Distributions . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 4.2. Redemption . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 4.3. Conversion . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 4.4. Special Event Exchange or Redemption . . . . . . . . . . . . 33
SECTION 4.5. Subordination of Common Securities . . . . . . . . . . . . . 36
SECTION 4.6. Payment Procedures . . . . . . . . . . . . . . . . . . . . . 37
SECTION 4.7. Tax Returns and Reports . . . . . . . . . . . . . . . . . . . 37
SECTION 4.8. Payment of Taxes, Duties, Etc. of the Trust . . . . . . . . . 37
SECTION 4.9. Payments under Indenture . . . . . . . . . . . . . . . . . . 38
ARTICLE 5
TRUST SECURITIES CERTIFICATES
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PAGE
SECTION 5.1. Initial Ownership . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.2. The Trust Securities Certificates . . . . . . . . . . . . . . 38
SECTION 5.3. Delivery of Trust Securities Certificates . . . . . . . . . . 39
SECTION 5.4. Registration of Transfer and Exchange of
Preferred Securities; . . . . . . . . . . . . . . . . . . . 40
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates . . . . . . . . . . . . . . . . . . 47
SECTION 5.6. Persons Deemed Securityholders . . . . . . . . . . . . . . . 47
SECTION 5.7. Access to List of Securityholders' Names and
Addresses . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 5.8. Maintenance of Office or Agency . . . . . . . . . . . . . . . 48
SECTION 5.9. Appointment of Paying Agent . . . . . . . . . . . . . . . . . 49
SECTION 5.10. Ownership of Common Securities by Sponsor . . . . . . . . . . 49
SECTION 5.11. Global Securities; Non-Global Securities; Common
Securities Certificate . . . . . . . . . . . . . . . . . . . 50
SECTION 5.12. Notices to Clearing Agency . . . . . . . . . . . . . . . . . 51
SECTION 5.13. Definitive Preferred Securities Certificates . . . . . . . . 52
SECTION 5.14. Rights of Securityholders . . . . . . . . . . . . . . . . . . 52
ARTICLE 6
ACT OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights . . . . . . . . . . . . . . . . 54
SECTION 6.2. Notice of Meetings . . . . . . . . . . . . . . . . . . . . . 57
SECTION 6.3. Meetings of Preferred Security-holders . . . . . . . . . . . 57
SECTION 6.4. Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 6.5. Proxies, Etc. . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 6.6. Securityholder Action by Written Consent . . . . . . . . . . 58
SECTION 6.7. Record Date for Voting and Other Purposes . . . . . . . . . . 59
SECTION 6.8. Acts of Securityholders . . . . . . . . . . . . . . . . . . . 59
SECTION 6.9. Inspection of Records . . . . . . . . . . . . . . . . . . . . 61
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PAGE
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee
and the Delaware Trustee . . . . . . . . . . . . . . . . . . 61
SECTION 7.2. Representations and Warranties of Sponsor . . . . . . . . . . 63
ARTICLE 8
THE TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities . . . . . . . . . . . . . 63
SECTION 8.2. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . 66
SECTION 8.3. Certain Rights of Property Trustee . . . . . . . . . . . . . 69
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities . . . 71
SECTION 8.5. May Hold Securities . . . . . . . . . . . . . . . . . . . . . 72
SECTION 8.6. Compensation; Indemnity; Fees . . . . . . . . . . . . . . . . 72
SECTION 8.7. Property Trustee Required; Eligibility of Trustees . . . . . 73
SECTION 8.8. Conflicting Interests . . . . . . . . . . . . . . . . . . . . 73
SECTION 8.9. Resignation and Removal; Appointment of Successor . . . . . . 74
SECTION 8.10. Acceptance of Appointment by Successor . . . . . . . . . . . 76
SECTION 8.11. Merger, Conversion, Consolidation or Succession to Business . 77
SECTION 8.12. Preferential Collection of Claims Against Sponsor or Trust . 78
SECTION 8.13. Reports by Property Trustee . . . . . . . . . . . . . . . . . 78
SECTION 8.14. Reports to the Property Trustee . . . . . . . . . . . . . . . 79
SECTION 8.15. Evidence of Compliance with Conditions Precedent . . . . . . 79
SECTION 8.16. Number of Trustees . . . . . . . . . . . . . . . . . . . . . 79
SECTION 8.17. Delegation of Power . . . . . . . . . . . . . . . . . . . . . 80
ARTICLE 9
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Termination upon Expiration Date . . . . . . . . . . . . . . 80
SECTION 9.2. Early Termination . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 9.3. Termination . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 9.4. Liquidation . . . . . . . . . . . . . . . . . . . . . . . . . 81
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PAGE
SECTION 9.5. Mergers, Consolidations,
Amalgamations or Replacements of
the Trust . . . . . . . . . . . . . . . . . . . . . . . . . 83
ARTICLE 10
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Securityholders. . . . . . . . . . . 85
SECTION 10.2. Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 10.3. Separability . . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 10.4. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 10.5. Payments Due on Non-Business Day . . . . . . . . . . . . . . 87
SECTION 10.6. Successors . . . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 10.7. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . 88
SECTION 10.8. Reports, Notices and Demands . . . . . . . . . . . . . . . . 88
SECTION 10.9. Agreement Not to Petition. . . . . . . . . . . . . . . . . . 89
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act . . . 89
SECTION 10.11. Acceptance of Terms of Trust Agreement,
Guarantee and Indenture . . . . . . . . . . . . . . . . . . 90
EXHIBIT A Certificate of Trust of CMS Energy Trust I
EXHIBIT B Form of Common Securities of CMS Energy Trust I
EXHIBIT C Form of Preferred Securities of CMS Energy Trust I
EXHIBIT D Notice of Conversion
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FINANCIAL TRUST*
Certain Sections of this Trust Agreement
relating to Sections 310 through 318
of the Trust Indenture Act of 1939:
TRUST INDENTURE TRUST AGREEMENT
ACT SECTION SECTION
Section 310 (a)(1) . . . . . . . . . . . . . . . . . . . . 8.7
(a)(2) . . . . . . . . . . . . . . . . . . . . 8.7
(a)(4) . . . . . . . . . . . . . . . . . . . . 2.7(a)(ii)
(b) . . . . . . . . . . . . . . . . . . . . 8.8
Section 311 (a) . . . . . . . . . . . . . . . . . . . . 8.12
(b) . . . . . . . . . . . . . . . . . . . . 8.12
Section 312 (a) . . . . . . . . . . . . . . . . . . . . 5.7
(b) . . . . . . . . . . . . . . . . . . . . 5.7
(c) . . . . . . . . . . . . . . . . . . . . 5.7
Section 313 (a) . . . . . . . . . . . . . . . . . . . . 8.13(a)
(c) . . . . . . . . . . . . . . . . . . . . 10.8
(d) . . . . . . . . . . . . . . . . . . . . 8.13(c)
(a)(4) . . . . . . . . . . . . . . . . . . . . 8.13(b)
(b) . . . . . . . . . . . . . . . . . . . . 8.13(b)
Section 314 (a) . . . . . . . . . . . . . . . . . . . . 8.14
(b) . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . 8.15
(c)(2) . . . . . . . . . . . . . . . . . . . . 8.15
(c)(3) . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . 1.1, 8.15
Section 315 (a) . . . . . . . . . . . . . . . . . . . . 8.1(a), 8.3(a)
(b) . . . . . . . . . . . . . . . . . . . . 8.2, 10.8
(c) . . . . . . . . . . . . . . . . . . . . 8.1(a)
(d) . . . . . . . . . . . . . . . . . . . . 8.1, 8.3
(e) . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 316 (a) . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . . . . . 6.7
Section 317 (a)(1) . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . 5.9
Section 318 (a) . . . . . . . . . . . . . . . . . . . . 10.10
- --------------------------
* Note: This reconciliation and tie sheet shall not, for any purpose,
be deemed to be a part of the Trust Agreement.
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of _________,
1997 among (i) CMS Energy Corporation, a Michigan corporation (including any
successors or assigns, "the Sponsor"), (ii) The Bank of New York, a New York
banking corporation, as property trustee (in such capacity, the "Property
Trustee" and, in its personal capacity and not in its capacity as Property
Trustee, the "Bank"), (iii) The Bank of New York (Delaware), a corporation duly
organized and existing under the laws of the State of Delaware, as Delaware
trustee (in such capacity, the "Delaware Trustee"), (iv) Alan M. Wright, an
individual, and Thomas A. McNish, an individual, each of whose address is c/o
CMS Energy Corporation, Fairlane Plaza South 330 Town Center Drive, Suite 1100,
Dearborn, Michigan 48126, each, an "Regular Trustee" and, collectively, the
"Regular Trustees" and, collectively with the Property Trustee and Delaware
Trustee, the "Trustees") and (iv) the several Holders as hereinafter defined.
W I T N E S S E T H:
WHEREAS, the Sponsor and certain of the Trustees have
heretofore duly declared and established a business trust pursuant to the
Delaware Business Trust Act by the entering into of that certain Declaration of
Trust, dated as of May 22, 1997 (the "Original Trust Agreement"), and by the
execution and filing by certain of the Trustees with the Secretary of State of
the State of Delaware of the Certificate of Trust, filed on May 22, 1997,
attached as Exhibit A, for the sole purpose of issuing and selling certain
securities representing undivided beneficial interests in the assets of the
Trust and investing the proceeds thereof in the Debentures (as defined herein);
WHEREAS, as of the date hereof, no interests in the Trust
have been issued; and
WHEREAS, the Sponsor and the Trustees desire to amend and
restate the Original Trust Agreement in its entirety as set forth herein to
provide for, among other things, (i) the issuance and sale of the Common
Securities by the Trust to the Sponsor, (ii) the issuance and sale of the
Preferred Securities by the Trust pursuant to the Underwriting Agreement and
(iii) the acquisition by the Trust from the Sponsor of all of the right, title
and interest in the Debentures;
11
NOW THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, each party, for the benefit of the
other party and for the benefit of the Holders of the Preferred Securities,
hereby amends and restates the Original Trust Agreement in its entirety and
agrees as follows:
ARTICLE 1
DEFINED TERMS
SECTION 1.1. Definitions. For all purposes of this Trust
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(b) all other terms used herein that are defined in the
Trust Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) unless the context otherwise requires, any reference
to an "Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Trust Agreement as a whole and not
to any particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to the Trust
Securities, the amount of Additional Interest (as defined in the Indenture)
paid by the Sponsor on the Debentures.
"Additional Sums" means, with respect to the Trust Securities,
the amount of Additional Sums (as
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12
defined in the Indenture) paid by the Sponsor on the Debentures.
"Regular Trustee" means each of Alan M. Wright and Thomas A.
McNish, each solely in his capacity as Regular Trustee of the Trust formed and
continued hereunder and not in his individual capacity, or such Regular
Trustee's successor in interest in such capacity, or any successor in interest
in such capacity, or any successor Regular Trustee appointed as herein
provided.
"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, provided, however that an Affiliate
of the Sponsor shall not be deemed to include the Trust. For the purposes of
this definition, "control" when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Certificate or beneficial interest therein, the
rules and procedures of the Clearing Agency for such security to the extent
applicable to such transaction and as in effect from time to time.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having
jurisdiction in the premises judging such Person as bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of such Person under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of such Person or of any substan-
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tial part of its property or ordering the winding-up or liquidation of
its affairs, and the continuance of any such decree or order unstayed
and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be
adjudicated as bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law, or the consent by it
to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or similar
official) of such Person or of any substantial part of its property,
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 and its willingness to be adjudicated a
bankrupt, or the taking of corporate action by such Person in
furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board of Directors" means either the board of directors of
the Sponsor or any committee of that board duly authorized to act hereunder.
"Book-Entry Preferred Securities Certificates" means a
beneficial interest in the Preferred Securities Certificates, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 5.11.
"Business Day" means any day other than a Saturday or Sunday
or a day on which banking institutions in The City of New York are authorized
or required by law or executive order to remain closed or a day on which the
Corporate Trust Office of the Property Trustee or the corporate trust office of
the Debenture Trustee, is closed for business.
"Certificate Depository Agreement" means the agreement among
the Trust, the Sponsor and The Depository
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14
Trust Company, as the initial Clearing Agency, dated as of the Closing Date,
relating to the Trust Securities Certificates, as the same may be amended and
supplemented from time to time.
"Certificated Preferred Security" has the meaning specified in
Section 5.2.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities Exchange Act of
1934, as amended. The Depository Trust Company will be the initial Clearing
Agency.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities
deposited with the Clearing Agency.
"Closing Date" means the first Time of Delivery (as defined in
the Underwriting Agreement), which date is also the date of execution and
delivery of this Trust Agreement.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this instrument
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at such
time.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit
B.
"Common Security" means an undivided beneficial interest in
the assets of the Trust, having a Liquidation Amount with respect to the assets
of the Trust of $50 and having the rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a Liquidation
Distribution as provided herein.
"Common Stock" means common stock, $.01 par value per share,
of the Sponsor.
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"Conversion Agent" has the meaning specified in Section 4.3.
"Conversion Date" has the meaning specified in Section 4.3.
"Conversion Expiration Date" means the date selected by the
Sponsor not less than 30 days nor more than 60 days after the date on which the
Sponsor issues a press release announcing its intention to terminate the
conversion rights of the Holders.
"Conversion Price" has the meaning specified in Section 4.3.
"Corporate Trust Office" means the principal corporate trust
office of the Property Trustee at which at any particular time its corporate
trust business shall be administered, which office at the date hereof is
located at 101 Barclay Street, Floor 21W, New York, New York 10286, Attention:
______________.
"Current Market Price", with respect to Common Stock, means
for any day the last reported sale price, regular way, on such day, or, if no
sale takes place on such day, the average of the reported closing bid and asked
prices on such day, regular way, in either case as reported on the New York
Stock Exchange Composite Transactions Tape, or, if Common Stock is not listed
or admitted to trading on the New York Stock Exchange on such day, on the
principal national securities exchange on which Common Stock is listed or
admitted to trading, if Common Stock is listed on a national securities
exchange, or the Nasdaq National Market, or, if Common Stock is not quoted or
admitted to trading on such quotation system, on the principal quotation system
on which Common Stock may be listed or admitted to trading or quoted, or, if
not listed or admitted to trading or quoted on any national securities exchange
or quotation system, the average of the closing bid and asked prices of Common
Stock in the over-the-counter market on the day in question as reported by the
National Quotation Bureau Incorporated, or a similar generally accepted
reporting service, or, if not so available in such manner, as furnished by any
New York Stock Exchange member firm selected from time to time by the Board of
Directors for that
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purpose or, if not so available in such manner, as otherwise
determined in good faith by the Board of Directors.
"Debenture Event of Default" means an "Event of Default" as
defined in the Indenture.
"Debenture Redemption Date" means, with respect to any
Debentures to be redeemed under the Indenture, the date fixed for redemption
thereof under the Indenture.
"Debenture Trustee" means The Bank of New York, a New York
banking corporation, as trustee under the Indenture.
"Debentures" means $__________ aggregate principal amount of
the Sponsor's 6 3/4% convertible subordinated debentures issued pursuant to the
Indenture.
"Definitive Preferred Securities Certificates" means either or
both (as the context requires) of (a) Preferred Securities Certificates issued
in certificated, fully registered form as provided in Section 5.11(a) and (b)
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. (Section ) 3801, et. seq., as it may be amended
from time to time.
"Delaware Trustee" means the Person identified as the
"Delaware Trustee" in the preamble to this Trust Agreement solely in its
capacity as Delaware Trustee of the Trust formed and continued hereunder and
not in its individual capacity, or its successor in interest in such capacity,
or any successor Delaware trustee appointed as herein provided.
"Sponsor" has the meaning specified in the preamble to this
Trust Agreement.
"Direct Action" has the meaning specified in Section 6.8.
"Distribution Date" has the meaning specified in Section
4.1(a).
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"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"Early Termination Event" has the meaning specified in Section
9.2.
"Event of Default" means the occurrence of a Debenture Event
of Default, whatever the reason for such Debenture Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body.
"Exchange Notice" has the meaning specified in Section 4.4(b).
"Expiration Date" has the meaning specified in Section 9.1.
"Global Certificate" means a Preferred Security that is
registered in the Securities Register in the name of a Clearing Agency or a
nominee thereof.
"Guarantee" means the Guarantee Agreement executed and
delivered by the Sponsor and The Bank of New York, a New York banking
corporation, as guarantee trustee, contemporaneously with the execution and
delivery of this Trust Agreement, for the benefit of the Holders of the
Preferred Securities, as amended from time to time.
"Holder" means a Person in whose name a Trust Securities
Certificate representing a Trust Security is registered, such Person being a
beneficial owner within the meaning of the Delaware Business Trust Act.
"Indenture" means the Indenture, dated as of _________, 1997
between the Sponsor and the Debenture Trustee as amended by the First
Supplemental Indenture, as amended or supplemented from time to time.
"Investment Company Event" means the receipt by the Property
Trustee, on behalf of the Trust, of an Opinion of Counsel, rendered by a law
firm having a national tax and securities practice (which Opinion of Counsel
shall not have been rescinded by such law firm), to the effect that, as a
result of the occurrence of a
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change in law or regulation or a change in interpretation or application of law
or regulation by any legislative body, court, governmental agency or regulatory
authority (a "Change in 1940 Act Law") that there is more than an insubstantial
risk that the Trust is or will be considered an "investment company" that is
required to be registered under the 1940 Act, which Change in 1940 Act Law
becomes effective on or after the date of original issuance of the Preferred
Securities under this Trust Agreement.
"Lien" means any lien, pledge, charge, encumbrance, mortgage,
deed of trust, adverse ownership interest, hypothecation, assignment, security
interest or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever.
"Liquidation Amount" means an amount with respect to the
assets of the Trust equal to $50 per Trust Security.
"Liquidation Date" means each date on which Debentures or cash
are to be distributed to Holders of Trust Securities in connection with a
termination and liquidation of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in
Section 9.4(d).
"1940 Act" means the Investment Company Act of 1940, as
amended.
"Notice of Conversion" means the notice given by a holder of
Preferred Securities to the Conversion Agent directing the Conversion Agent to
exchange such Preferred Security for Debentures and to convert such Debentures
into Common Stock on behalf of such holder. Such notice is substantially in
the form set forth in Exhibit D.
"Officers' Certificate" means a certificate signed by (i) the
Chairman of the Board, a Vice Chairman, the President or a Vice President, and
by (ii) the Treasurer, an Assistant Treasurer, the Controller, the Secretary or
an Assistant Secretary, of the Sponsor, and delivered to the Trustee. One of
the officers signing an
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Officers' Certificate given pursuant to Section 8.15 shall be the principal
executive, financial or accounting officer of the Sponsor. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant of condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(c) a statement that each officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Trust, the Property Trustee or the Sponsor, and who may
be an employee of any thereof, and who shall be acceptable to the Property
Trustee. Any Opinion of Counsel delivered with respect to compliance with a
condition or covenant provided for in this Trust Agreement shall include:
(a) a statement that each individual signing the Opinion
of Counsel has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each individual in
rendering the Opinion of Counsel;
(c) a statement that each individual has made such
examination or investigation as is necessary to enable such individual
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
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(d) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
"Optional Redemption Price" means, except as set forth below,
with respect to the Preferred Securities, the following percentages of the
Liquidation Amounts thereof, and accumulated and unpaid Distributions, if any,
to the date fixed for redemption if redeemed during the twelve-month period
commencing ________ in each of the following years indicated:
Year Redemption Price Year Redemption Price
---- ---------------- ---- ----------------
2000 2004
2001 2005
2002 2006
2003 2007 and
thereafter
In the event of a redemption of Trust Securities upon the
occurrence of a Tax Event, Trust Securities shall be redeemed at the redemption
price of $50 per Trust Security and all accumulated and unpaid Distributions,
if any to the date fixed for redemption.
In the event of a redemption of Trust Securities pursuant to
Section 4.2(a)(ii), Trust Securities shall be redeemed as the redemption price
specified therein.
"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding", when used with respect to Trust Securities,
means, as of the date of determination, all Trust Securities theretofore
executed and delivered under this Trust Agreement, except:
(a) Trust Securities theretofore cancelled by the
Securities Registrar or delivered to the Securities Registrar for
cancellation or tendered for conversion;
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(b) Trust Securities for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Property Trustee or any Paying Agent for the Holders of such Trust
Securities; provided that, if such Trust Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Trust Agreement; and
(c) Trust Securities which have been paid or in exchange
for or in lieu of which other Trust Securities have been executed and
delivered pursuant to Section 5.5:
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Trust Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Trust
Securities owned by the Sponsor, any Trustee or any Affiliate of the Sponsor or
any Trustee shall be disregarded and deemed not to be Outstanding, except that
(a) in determining whether any Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Trust Securities that such Trustee knows to be so owned shall be so disregarded
and (b) the foregoing shall not apply at any time when all of the Outstanding
Trust Securities are owned by the Sponsor, one or more of the Trustees and/or
any such Affiliate. Trust Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Securities Registrar the pledgee's right so to act with
respect to such Trust Securities and that the pledgee is not the Sponsor or any
Affiliate of the Sponsor.
"Owner" means each Person who is the beneficial owner of a
Book-Entry Preferred Securities Certificate as reflected in the records of the
Clearing Agency or, if a Clearing Agency Participant is not the Owner, then as
reflected in the records of a Person maintaining an account with such Clearing
Agency (directly or indirectly, in accordance with the rules of such Clearing
Agency).
"Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 5.9.
"Payment Account" means a segregated non-interest bearing
corporate trust account maintained by the Property Trustee with the Bank in its
trust department for the bene-
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fit of the Securityholders in which all amounts paid in respect of the
Debentures will be held and from which the Property Trustee shall make payments
to the Securityholders in accordance with Section 4.1.
"Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.
"Preferred Securities Certificate" means a certificate
evidencing ownership of Preferred Securities, substantially in the form
attached as Exhibit C.
"Preferred Security" means an undivided beneficial interest in
the assets of the Trust, having a Liquidation Amount with respect to the assets
of the Trust of $50 and having the rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a Liquidation
Distribution as provided herein.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Trust Agreement
solely in its capacity as Property Trustee of the Trust heretofore formed and
continued hereunder and not in its individual capacity, or its successor in
interest in such capacity, or any successor property trustee appointed as
herein provided.
"Redemption Date" means, with respect to any Trust Security to
be redeemed, each Debenture Redemption Date.
"Redemption Price" means, with respect to any Trust Security,
$50 per Trust Security, plus accumulated and unpaid Distributions (including
any Additional Sums) to the date of redemption.
"Relevant Trustee" has the meaning specified in Section 8.9.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 5.4.
"Securityholder" or "Holder" means a Person in whose name a
Trust Security or Securities is registered in the Securities Register; any such
Person shall be deemed to
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be a beneficial owner within the meaning of the Delaware Business Trust Act.
"Special Event" means a Tax Event or an Investment Company
Event.
"Successor Property Trustee" has the meaning specified in
Section 8.9.
"Successor Delaware Trustee" has the meaning specified in
Section 8.9.
"Successor Securities" has the meaning specified in Section
9.5.
"Tax Event" means the receipt by the Property Trustee, on
behalf of the Trust, of an Opinion of Counsel, rendered by a law firm having a
national tax and securities practice (which Opinion of Counsel shall not have
been rescinded by such law firm), to the effect that, as a result of any
amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein affecting taxation, or as a
result of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or such pronouncement or decision is announced on or after the date
of issuance of the Preferred Securities under this Trust Agreement, there is
more than an insubstantial risk in each case after the date thereof that (i)
the Trust is, or will be within 90 days after the date thereof, subject to
United State Federal income tax with respect to income received or accrued on
the Debentures, (ii) interest payable by the Sponsor on the Debentures is not,
or will not be, within 90 days after the date hereof, deductible, in whole or
in part, for United States Federal income tax purposes or (iii) the Trust is,
or will be within 90 days after the date thereof, subject to more than de
minimus amount of other taxes, duties, assessments or other governmental
charges.
"Trust" means the Delaware business trust continued hereby and
identified on the cover page of this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, as the same may be modified, amended or
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supplemented in accordance with the applicable provisions hereof, including all
exhibits hereto, including, for all purposes of this Trust Agreement any such
modification, amendment or supplement, the provisions of the Trust Indenture
Act that are deemed to be a part of and govern this Trust Agreement and any
such modification, amendment or supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after
such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) any cash on
deposit in, or owing to, the Payment Account and (c) all proceeds and rights in
respect of the foregoing to be held by the Property Trustee pursuant to the
terms of this Trust Agreement for the benefit of the Securityholders.
"Trust Security" means any one of the Common Securities or
the Preferred Securities.
"Trust Securities Certificate" means any one of the Common
Securities Certificates, the Global Certificates or the Certificated Preferred
Securities.
"Trustees" means, collectively, the Property Trustee, the
Delaware Trustee and the Regular Trustees.
"Underwriting Agreement" means the Underwriting Agreement,
dated as of _________, 1997 among the Trust, the Sponsor and the Underwriter
named therein.
ARTICLE 2
ESTABLISHMENT OF THE TRUST
SECTION 2.1. Name. The Trust continued hereby shall be known
as "CMS Energy Trust I", as such name may be modified from time to time by the
Regular Trustees following written notice to the Holders of Trust Securities
and the other Trustees, in which name the Trustees may conduct the business of
the Trust, make and execute contracts and other instruments on behalf of the
Trust and sue and be sued.
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SECTION 2.2. Office of the Delaware Trustee; Principal Place
of Business. The address of the Delaware Trustee in the State of Delaware is
White Clay Center, Route 273, Newark, Delaware 19711: Corporate Trust, or such
other address in the State of Delaware as the Delaware Trustee may designate by
written notice to the Securityholders and the Sponsor. The principal executive
office of the Trust is Fairlane Plaza South 330 Town Center Drive, Suite 1100
Dearborn, Michigan 48126.
SECTION 2.3. Organizational Expenses. The Sponsor shall pay
organizational expenses of the Trust as they arise or shall, upon request of
any Trustee, promptly reimburse such Trustee for any such expenses paid by such
Trustee. The Sponsor shall make no claim upon the Trust Property for the
payment of such expenses.
SECTION 2.4. Issuance of the Preferred Securities. On
_________, 1997 the Sponsor and a Regular Trustee on behalf of the Trust
executed and delivered the Underwriting Agreement. Contemporaneously with the
execution and delivery of this Trust Agreement, a Regular Trustee, on behalf of
the Trust, shall execute in accordance with Section 5.2 and deliver to the
Purchasers named therein Preferred Securities Certificates, in an aggregate
amount of _________ Preferred Securities having an aggregate Liquidation Amount
of $__________, against receipt of the aggregate purchase price of such
Preferred Securities of $__________, which amount the Regular Trustees shall
promptly deliver to the Property Trustee.
SECTION 2.5. Subscription and Purchase of Debentures;
Issuance of the Common Securities. Contemporaneously with the execution and
delivery of this Trust Agreement, the Regular Trustees, on behalf of the Trust,
shall subscribe to and purchase from the Sponsor Debentures, registered in the
name of the Property Trustee (in its capacity as such) and having an aggregate
principal amount equal to $__________, and, in satisfaction of the purchase
price for such Debentures, the Property Trustee, on behalf of the Trust, shall
deliver to the Sponsor the sum of $__________. Contemporaneously therewith, a
Regular Trustee, on behalf of the Trust, shall execute in accordance with
Section 5.2 and deliver to the Sponsor Common Securities Certificates
registered in the name of the Sponsor, in an aggregate amount of _______ Common
Securities having an aggregate Liquidation Amount of $_________ against receipt
of the aggregate pur-
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chase price of such Common Securities from the Sponsor of the sum of
$_________.
SECTION 2.6. Declaration of Trust. The exclusive purposes
and functions of the Trust are (a) to issue and sell Trust Securities and use
the proceeds from such sale to acquire the Debentures, (b) to distribute the
Trust's income as provided in this Trust Agreement and (c) to engage in only
those other activities necessary or incidental thereto. The Trust shall not
borrow money, issue debt or reinvest proceeds derived from investments, pledge
any of its assets or otherwise undertake (or permit to be undertaken) any
activity that would cause the Trust not to be classified for United States
Federal income tax purposes as a grantor trust. The Sponsor hereby appoints
the Trustees as trustees of the Trust, to have all the rights, powers and
duties to the extent set forth herein, and the Trustees hereby accept such
appointment. The Property Trustee hereby declares that it will hold the Trust
Property in trust upon and subject to the conditions set forth herein for the
benefit of the Trust and the Securityholders. The Regular Trustees shall have
all rights, powers and duties set forth herein and in accordance with
applicable law with respect to accomplishing the purposes of the Trust. The
Delaware Trustee shall not be entitled to exercise any powers, nor shall the
Delaware Trustee have any of the duties and responsibilities, of the Property
Trustee or the Regular Trustees set forth herein. The Delaware Trustee shall
be one of the Trustees of the Trust for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Delaware Business Trust Act.
SECTION 2.7. Authorization to Enter into Certain
Transactions. (a) The Trustees shall conduct the affairs of the Trust in
accordance with the terms of this Trust Agreement. Subject to the limitations
set forth in Section 2.6 and paragraph (b) of this Section, and in accordance
with the following provisions (i) and (ii), the Trustees shall have the
exclusive power, duty and the authority to cause the Trust to engage in the
following activities:
(i) As among the Trustees, each Regular Trustee shall have
the power and authority to act on behalf of the Trust with respect to
the following matters:
(A) to issue and sell the Trust Securities,
provided, however, that the Trust may issue
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no more than one series of Preferred Securities and no more
than one series of Common Securities, and, provided, further,
that there shall be no interests in the Trust other than the
Trust Securities, and the issuance of Trust Securities shall
be limited to simultaneous issuance of both Preferred
Securities and Common Securities on the Closing Date and any
other date Preferred Securities and Common Securities are sold
pursuant to the over-allotment option granted to the initial
purchasers in the Underwriting Agreement, subject to the
issuance of Trust Securities pursuant to Section 5.5 and
Successor Securities pursuant to Section 9.5;
(B) to cause the Trust to enter into,
and to execute, deliver and perform on behalf of the Trust,
the Underwriting Agreement and the Certificate Depository
Agreement and such other agreements as may be necessary or
incidental to the purposes and function of the Trust;
(C) to assist in the registration of the
Preferred Securities under the Securities Act of 1933, as
amended, and under state securities or blue sky laws, and the
qualification of this Trust Agreement as a trust indenture
under the Trust Indenture Act;
(D) to assist in the listing of the
Preferred Securities upon such securities exchange or
exchanges as shall be determined by the Sponsor and the
registration of the Preferred Securities under the Securities
Exchange Act of 1934, as amended, and the preparation and
filing of all periodic and other reports and other documents
pursuant to the foregoing (only to the extent that such
listing or registration is requested by the Sponsor);
(E) to appoint a Paying Agent, a
Securities Registrar and an authenticating agent in accordance
with this Trust Agreement;
(F) to the extent provided in this Trust
Agreement, to wind up the affairs of and liquidate the Trust
and prepare, execute and file
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the certificate of cancellation with the Secretary of State of
the State of Delaware;
(G) unless otherwise determined by the
Sponsor, the Property Trustee or the Regular Trustees, or as
otherwise required by the Delaware Business Trust Act or the
Trust Indenture Act, to execute on behalf of the Trust (either
acting alone or together with any other Regular Trustees) any
documents that the Regular Trustees have the power to execute
pursuant to this Trust Agreement; and
(H) to take any action incidental to the
foregoing as the Trustees may from time to time determine is
necessary or advisable to give effect to the terms of this
Trust Agreement including, but not limited to:
(i) causing the Trust not to be deemed to be
an Investment Company required to be registered under
the 1940 Act;
(ii) causing the Trust to be classified for
United States Federal income tax purposes as a
grantor trust; and
(iii) cooperating with the Sponsor to ensure
that the Debentures will be treated as indebtedness
of the Sponsor for United States Federal income tax
purposes;
provided that such action does not adversely affect in any
material respect the interests of Securityholders except as
otherwise provided in Section 10.2(a).
(ii) As among the Trustees, the Property Trustee shall have
the power, duty and authority to act on behalf of the Trust with
respect to the following matters:
(A) the establishment of the Payment
Account;
(B) the receipt of and taking title to the
Debentures;
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(C) the collection of interest,
principal and any other payments made in respect of the
Debentures in the Payment Account;
(D) the distribution from the Trust
Property of amounts owed to the Securityholders in respect of
the Trust Securities;
(E) the exercise of all of the rights,
powers and privileges of a holder of the Debentures;
(F) the sending of notices of default,
other notices and other information regarding the Trust
Securities and the Debentures to the Securityholders in
accordance with this Trust Agreement;
(G) the distribution of the Trust Property
in accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust
Agreement, the winding up of the affairs of and liquidation of
the Trust and the preparation, execution and filing of the
certificate of cancellation with the Secretary of State of the
State of Delaware;
(I) after an Event of Default, the
taking of any action incidental to the foregoing as the
Property Trustee may from time to time determine is necessary
or advisable to give effect to the terms of this Trust
Agreement and protect and conserve the Trust Property for the
benefit of the Securityholders (without consideration of the
effect of any such action on any particular Securityholder);
(J) subject to this Section 2.7(a)(ii),
the Property Trustee shall have none of the duties,
liabilities, powers or the authority of the Regular Trustees
set forth in Section 2.7(a)(i); and
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(K) to act as Paying Agent and/or
Securities Registrar to the extent appointed as such hereunder.
(b) So long as this Trust Agreement remains in effect,
the Trust (or the Trustees acting on behalf of the Trust) shall not undertake
any business, activities or transaction except as expressly provided herein or
contemplated hereby. In particular, the Trust shall not, and the Trustees
shall not and shall cause the Trust not to (i) invest any proceeds received by
the Trust from holding the Debentures (rather, the Trustees shall distribute
all such proceeds to the Securityholders pursuant to the terms of this Trust
Agreement and the Trust Securities), acquire any investments or engage in any
activities not authorized by this Trust Agreement, (ii) sell, assign, transfer,
exchange, mortgage, pledge, set-off or otherwise dispose of any of the Trust
Property or interests therein, including to Securityholders, except as
expressly provided herein, (iii) take any action that would cause the Trust to
fail or cease to qualify as a "grantor trust" for United States Federal income
tax purposes, (iv) make any loans or incur any indebtedness for borrowed money
or issue any other debt, (v) take or consent to any action that would result in
the placement of a Lien on any of the Trust Property, (vi) possess any power or
otherwise act in such a way as to vary the Trust assets or the terms of the
Trust Securities in any way whatsoever except as permitted by the terms of this
Trust Agreement, or (vii) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the Trust
Securities. The Regular Trustees shall defend all claims and demands of all
Persons at any time claiming any Lien on any of the Trust Property adverse to
the interest of the Trust or the Securityholders in their capacity as
Securityholders.
(c) In connection with the issue and sale of the
Preferred Securities, the Sponsor shall have the right and responsibility to
assist the Trust with respect to, or effect on behalf of the Trust, with the
following actions (and any actions taken by the Sponsor in furtherance of the
following prior to the date of this Trust Agreement are hereby ratified and
confirmed in all respects):
(i) to file by the Trust with the Commission and to execute
on behalf of the Trust a registration state-
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ment on the appropriate form in relation to the Preferred Securities,
including any amendments thereto;
(ii) to determine the States in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions which
must be taken by or on behalf of the Trust, and advise the Trustees of
actions they must take on behalf of the Trust, and prepare for
execution and filing any documents to be executed and filed by the
Trust or on behalf of the Trust, as the Sponsor deems necessary or
advisable in order to comply with the applicable laws of any such
States;
(iii) to the extent necessary, to prepare for filing by the
Trust with the Commission and to execute on behalf of the Trust a
registration statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) or 12(g) of the Securities
Exchange Act of 1934, as amended, including any amendments thereto;
(iv) any other actions necessary or incidental to carry out
any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Regular Trustees are authorized and directed to conduct the affairs of the
Trust and to operate the Trust so that the Trust will not be deemed to be an
"investment company" required to be registered under the 1940 Act, or taxed as
a corporation for United States Federal income tax purposes and so that the
Debentures will be treated as indebtedness of the Sponsor for United States
Federal income tax purposes. In this connection, the Sponsor and the Regular
Trustees are authorized to take any action, not inconsistent with applicable
law, the Certificate of Trust or this Trust Agreement, that each of the Sponsor
and the Regular Trustees determines in their discretion to be necessary or
desirable for such purposes, so long as such action does not adversely affect
in any material respect the interests of the Holders of the Preferred
Securities except as otherwise provided in Section 10.2(a).
SECTION 2.8. Assets of Trust. The assets of the Trust shall
consist of only the Trust Property.
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SECTION 2.9. Title to Trust Property. Legal title to all
Trust Property shall be vested at all times in the Property Trustee (in its
capacity as such) and shall be held and administered by the Property Trustee
for the benefit of the Trust and the Securityholders in accordance with this
Trust Agreement. The Securityholder shall not have legal title to any part of
the assets of the Trust, but shall have an undivided beneficial interest in the
assets of the Trust.
ARTICLE 3
PAYMENT ACCOUNT
SECTION 3.1. Payment Account. (a) On or prior to the
Closing Date, the Property Trustee shall establish the Payment Account. The
Property Trustee and any agent of the Property Trustee shall have exclusive
control and sole right of withdrawal with respect to the Payment Account for
the purpose of making deposits in and withdrawals from the Payment Account in
accordance with this Trust Agreement. All monies and other property deposited
or held from time to time in the Payment Account shall be held by the Property
Trustee in the Payment Account for the exclusive benefit of the Securityholders
and for distribution as herein provided, including (and subject to) any
priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment
Account, promptly upon receipt, all payments of principal of or interest on,
and any other payments or proceeds with respect to, the Debentures. Amounts
held in the Payment Account shall not be invested by the Property Trustee
pending distribution thereof.
ARTICLE 4
DISTRIBUTIONS; REDEMPTION; EXCHANGE; CONVERSION
SECTION 4.1. Distributions. (a) Distributions on the Trust
Securities shall be cumulative, and shall accrue from the date of original
issuance, or the most recent Distribution Date (as defined herein) and, except
in the event that the Sponsor exercises its right to defer the payment of
interest on the Debentures pursuant to the Indenture, shall be payable
quarterly in arrears on ________, ________, ________ and ________ of each year,
commencing on
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________, 1997 (which dates correspond to the interest payment dates on the
Debentures), when, as and if available for payment by the Property Trustee, as
further described in paragraph (c) of this Section 4.1. If any date on which
Distributions are otherwise payable on the Trust Securities is not a Business
Day, then the payment of such Distributions shall be made on the next
succeeding day which is a Business Day (and no interest shall accrue for the
period from and after such date until the next succeeding Business Day) with
the same force and effect as if made on such date (each date on which
Distributions are payable in accordance with this Section 4.1(a), a
"Distribution Date").
(b) The Trust Securities represent undivided beneficial
interests in the Trust Property, and the Distributions on the Trust Securities
shall be payable at a rate of 6 3/4% per annum of the Liquidation Amount of the
Trust Securities, such rate being the rate of interest payable on the
Debentures to be held by the Property Trustee. The amount of Distributions
payable for any period shall be computed on the basis of a 360-day year of
twelve 30-day months. For periods less than a full quarter, Distributions
shall reflect interest on Debentures computed on the basis of the actual number
of elapsed days for any period based on a 360-day year of 12 30-day months.
The amount of Distributions payable for any period shall include the Additional
Amounts, if any.
(c) Distributions on the Trust Securities shall be made by
the Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then on hand and
available in the Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust Securities on the relevant record date, which
shall be the date which is the fifteenth day (whether or not a Business Day)
next preceding such Distribution Date.
SECTION 4.2. Redemption. (a) (i) Upon an optional
redemption (as set forth in the Indenture) of Debentures, the proceeds from
such redemption shall be applied to redeem Trust Securities having an aggregate
Liquidation Amount equal to the aggregate principal amount
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of the Debentures so redeemed by the Sponsor, including pursuant to Section
4.4, at the Optional Redemption Price, and upon a mandatory redemption (as set
forth in the Indenture) of Debentures, the proceeds from such redemption shall
be applied to redeem Trust Securities, having an aggregate Liquidation Amount
equal to the aggregate principal amount of the Debentures so redeemed by the
Sponsor, at the Redemption Price.
(ii) If at any time following the Conversion
Expiration Date, less than five percent (5%) in principal
amount of the Debentures originally issued by the Sponsor
remain outstanding, such Debentures are redeemable, at the
option of the Sponsor, in whole but not in part, at a
redemption price equal to the aggregate principal amount
thereof, and all accrued and unpaid interest; in such event,
the proceeds from such redemption shall be applied to redeem
the Outstanding Trust Securities.
(b) Notice of redemption (which notice will be irrevocable)
shall be given by the Property Trustee by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date to
the Sponsor and each Holder of Trust Securities to be redeemed, at such
Holder's address as it appears in the Securities Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price or the Optional Redemption
Price, as the case may be;
(iii) the CUSIP number;
(iv) if less than all of the Outstanding Trust
Securities are to be redeemed, the identification and the
aggregate Liquidation Amount of the particular Trust
Securities to be redeemed;
(v) If the Preferred Securities are convertible, (A)
that a Holder of Preferred Securities who desires to convert
such Preferred Securities called for redemption must satisfy
the requirements for conversion contained in Section 4.3
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below, (B) the Conversion Price and (C), if previously
determined, the Conversion Expiration Date;
(vi) that on the Redemption Date the Redemption
Price or the Optional Redemption Price, as the case may be,
will become due and payable upon each such Trust Security to
be redeemed and that Distributions thereon will cease to
accrue on and after said date; and
(vii) the place or places where such Trust
Securities are to be surrendered for payment of the Redemption
Price or the Optional Redemption Price, as the case may be.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price or the Optional Redemption Price, as
the case may be, with the proceeds from the contemporaneous redemption of
Debentures. Redemptions of the Trust Securities shall be made and the
Redemption Price or the Optional Redemption Price, as the case may be, shall be
payable on each Redemption Date only to the extent that the Trust has funds
then on hand and available in the Payment Account for the payment of such
Redemption Price or the Optional Redemption Price, as the case may be.
(d) If the Property Trustee gives a notice of redemption in
respect of any Preferred Securities, then, by 12:00 noon, New York City time,
on the Redemption Date, subject to Section 4.2(c), the Property Trustee will,
so long as and to the extent the Preferred Securities are in book-entry-only
form, irrevocably deposit with the Clearing Agency for the Preferred Securities
funds sufficient to pay the applicable Redemption Price. If the Preferred
Securities are no longer in book-entry only form, the Property Trustee, subject
to Section 4.2(c), will irrevocably deposit with the Paying Agent funds
sufficient to pay the applicable Redemption Price or Optional Redemption Price,
as the case may be, on such Preferred Securities held in certificated form and
will give the Paying Agent irrevocable instructions and authority to pay the
Redemption Price or the Optional Redemption Price, as the case may be, to the
Holders thereof upon surrender of their Preferred Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be payable
to the Holders of such Trust
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Securities as they appear on the Securities Register for the Trust Securities
on the relevant record dates for the related Distribution Dates. If notice of
redemption shall have been given and funds deposited as required, then, upon
the date of such deposit, all rights of Securityholders holding Trust
Securities so called for redemption will cease, except the right of such
Securityholders to receive the Redemption Price or the Optional Redemption
Price, as the case may be, but without interest, and such Trust Securities will
cease to be Outstanding. In the event that any date on which any Redemption
Price or the Optional Redemption Price, as the case may be, is payable is not a
Business Day, then payment of the Redemption Price or the Optional Redemption
Price, as the case may be, payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), with the same force and effect as if
made on such date.
(e) If less than all the Outstanding Trust Securities are to
be redeemed on a Redemption Date, then the aggregate Liquidation Amount of
Trust Securities to be redeemed shall be allocated on a pro rata basis (based
on Liquidation Amounts) among the Common Securities and the Preferred
Securities that are to be redeemed. The particular Preferred Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date
by the Property Trustee from the Outstanding Preferred Securities not
previously called for redemption, by lot or by such other method as the
Property Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to $50 or an integral multiple of
$50 in excess thereof) of the liquidation amount of the Preferred Securities.
The Property Trustee shall promptly notify the Securities Registrar and the
Conversion Agent in writing of the Preferred Securities selected for redemption
and, in the case of any Preferred Securities selected for partial redemption,
the Liquidation Amount thereof to be redeemed; it being understood that, in the
case of Preferred Securities registered in the name of and held of record by
the Clearing Agency (or any successor) or any nominee, the distribution of the
proceeds of such redemption will be made in accordance with the procedures of
the Clearing Agency or its nominee. For all purposes of this Trust Agreement,
unless the context otherwise requires, all provisions relating to the
redemption of Preferred Securities shall relate, in the case of any Preferred
Securities redeemed or to be redeemed only in part, to the portion of the
Liquidation
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Amount of Preferred Securities which has been or is to be redeemed. In the
event of any redemption in part, the Trust shall not be required to (i) issue,
register the transfer of or exchange of any Preferred Security during a period
beginning at the opening of business 15 days before any selection for
redemption of Preferred Securities and ending at the close of business on the
earliest date in which the relevant notice of redemption is deemed to have been
given to all holders of Preferred Securities to be so redeemed or (ii) register
the transfer of or exchange of any Preferred Securities so selected for
redemption, in whole or in part, except for the unredeemed portion of any
Preferred Securities being redeemed in part.
SECTION 4.3. Conversion. The Holders of Trust Securities,
subject to the limitations set forth in this Section, shall have the right at
any time prior to the Conversion Expiration Date, at their option, to cause the
Conversion Agent to convert Trust Securities, on behalf of the converting
Holders, into shares of Common Stock in the manner described herein on and
subject to the following terms and conditions:
(i) The Trust Securities will be convertible into
fully paid and nonassessable shares of Common Stock pursuant
to the Holder's direction to the Conversion Agent to exchange
such Trust Securities for a portion of the Debentures, and
immediately convert such amount of Debentures into fully paid
and nonassessable shares of Common Stock at an initial rate of
_________ shares of Common Stock for each Trust Security
(which is equivalent to a conversion price of $________ per
$50 principal amount of Debentures), subject to certain
adjustments set forth in the Indenture (as so adjusted,
"Conversion Price").
(ii) In order to convert Trust Securities into
Common Stock, the Holder of such Trust Securities shall submit
to the Conversion Agent an irrevocable Notice of Conversion to
convert Trust Securities on behalf of such Holder, together,
if the Trust Securities are in certificated form, with such
certificates. The Notice of Conversion shall (i) set forth
the number of Trust Securities to be converted and the name or
names, if other than the Holder, in which the shares of Common
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Stock should be issued and (ii) direct the Conversion Agent (a) to
exchange such Trust Securities for a portion of the Debentures held by
the Property Trustee (at the rate of exchange specified in the
preceding paragraph) and (b) to immediately convert such Debentures,
on behalf of such Holder, into Common Stock (at the conversion rate
specified in the preceding paragraph). The Conversion Agent shall
notify the Property Trustee of the Holder's election to exchange Trust
Securities for a portion of the Debentures held by the Property
Trustee and the Property Trustee shall, upon receipt of such notice,
deliver to the Conversion Agent the appropriate principal amount of
Debentures for exchange in accordance with this Section. The
Conversion Agent shall thereupon notify the Sponsor of the Holder's
election to convert such Debentures into shares of Common Stock.
Holders of Trust Securities at the close of business on a Dis-
tribution payment record date will be entitled to receive the
Distribution paid on such Trust Securities on the corresponding
Distribution Date notwithstanding the conversion of such Trust
Securities following such record date but prior to such Distribution
Date. Except as provided above, neither the Trust nor the Sponsor
will make, or be required to make, any payment, allowance or
adjustment upon any conversion on account of any accumulated and
unpaid Distributions whether or not in arrears accrued on the Trust
Securities surrendered for conversion, or on account of any
accumulated and unpaid dividends on the shares of Common Stock issued
upon such conversion. Trust Securities shall be deemed to have been
converted immediately prior to the close of business on the day on
which an irrevocable Notice of Conversion relating to such Trust
Securities is received by the Conversion Agent in accordance with the
foregoing provision (the "Conversion Date"). The Person or Persons
entitled to receive the Common Stock issuable upon conversion of the
Debentures shall be treated for all purposes as the record holder or
holders of such Common Stock on the date of conversion. As promptly
as practicable on or after the Conversion Date, the Sponsor shall
issue and deliver at the office of the Conversion Agent a certificate
or certificates for the number of
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full shares of Common Stock issuable upon such conversion,
together with the cash payment, if any, in lieu of any fraction
of any share to the Person or Persons entitled to receive the
same, unless otherwise directed by the Holder in the notice of
conversion and the Conversion Agent shall distribute such
certificate or certificates to such Person or Persons.
(iii) On and after _________, ____, the Sponsor may,
at its option, cause the conversion rights of holders of the
Debentures (and the corresponding conversion rights of Holders
of Trust Securities) to expire; provided, however, that the
Sponsor may exercise this option only if for 20 trading days
within any period of 30 consecutive trading days, including
the last trading day of such period, the Current Market Price
of Common Stock exceeds 120% of the Conversion Price.
In order to exercise its option to terminate the
conversion rights of the Debentures, the Sponsor must issue a
press release for publication on the Dow Jones News Service
announcing the Conversion Expiration Date prior to the opening
of business on the second trading day after any period in
which the condition in the preceding sentence has been met,
but in no event prior to __________, ____. The press release
shall announce the Conversion Expiration Date (which may not
occur sooner than 30 nor more than 60 days after the Sponsor
issues the press release announcing its intention to terminate
the conversion rights of the Debentures) and provide the
current Conversion Price and Current Market Price of Common
Stock, in each case as of the close of business on the trading
day next preceding the date of the press release. Conversion
rights will terminate at the close of business on the
Conversion Expiration Date.
The Sponsor, or at the request of the Sponsor, the
Property Trustee shall send notice of the expiration of
conversion rights by first-class mail to the Holders of the
Trust Securities and the holders of the Debentures not more
than four Business Days after the Sponsor issues the press
release or, if the Property Trustee is requested
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to send such notice, which shall be on the date of such press
release, after the Sponsor delivers written instructions to the
Property Trustee containing the information required by the
next sentence to be in the notice. Such mailed notice of the
expiration of the conversion rights of the Holders shall
state: (A) the Conversion Expiration Date; (B) the Conversion
Price of the Trust Securities and the Current Market Price of
the Common Stock, in each case as of the close of business on
the Business Day next preceding the date of the notice of
expiration of the conversion rights of the Holders; (C) the
place or places at which Trust Securities may be surrendered
prior to the Conversion Expiration Date for certificates
representing shares of Common Stock; and (D) such other
information or instructions as the Sponsor deems necessary or
advisable to enable a Holder to exercise its conversion right
hereunder. No defect in the notice of expiration of the
conversion rights of the Holders or in the mailing thereof with
respect to any Trust Security shall affect the validity of such
notice with respect to any other Trust Security. As of the
close of business on the Conversion Expiration Date, the
Debentures (and correspondingly, the Trust Securities) shall no
longer be convertible into Common Stock. In the event that the
Sponsor does not exercise its option to terminate the
conversion rights of the Debentures, the Conversion Expiration
Date with respect to the Trust Securities will be the close of
business two Business Days preceding the date set for
redemption of the Trust Securities upon the mandatory or
optional redemption of the Debentures.
(iv) Each Holder of a Trust Security by its
acceptance thereof initially appoints The Bank of New York not
in its individual capacity but solely as conversion agent (the
"Conversion Agent") for the purpose of effecting the
conversion of Trust Securities in accordance with this
Section. In effecting the conversion and transactions
described in this Section, the Conversion Agent shall be
acting as agent of the Holders of Trust Securities directing
it to effect such conversion transactions. The Conversion
Agent is hereby au-
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thorized (i) to exchange Trust Securities from time to time for
Debentures held by the Trust in connection with the conversion
of such Trust Securities in accordance with this Section and
(ii) to convert all or a portion of the Debentures into Common
Stock and thereupon to deliver such shares of Common Stock in
accordance with the provisions of this Section and to deliver
to the Property Trustee any new Debenture or Debentures for any
resulting unconverted principal amount delivered to the
Conversion Agent by the Debenture Trustee.
(v) No fractional shares of Common Stock will be
issued as a result of conversion, but, in lieu thereof, such
fractional interest will be paid in cash by the Sponsor to the
Conversion Agent in an amount equal to the Current Market
Price of the fractional share of the Common Stock, and the
Conversion Agent will in turn make such payment to the Holder
or Holders of Trust Securities so converted.
(vi) Nothing in this Section 4.3 shall limit the
requirement of the Trust to withhold taxes pursuant to the
terms of the Trust Securities or as set forth in this
Agreement or otherwise required of the Property Trustee or the
Trust to pay any amounts on account of such withholdings.
SECTION 4.4. Special Event Exchange or Redemption. (a) If a
Special Event shall occur and be continuing, the Property Trustee shall direct
the Conversion Agent to exchange all Outstanding Trust Securities for
Debentures having a principal amount equal to the aggregate Liquidation Amount
of the Trust Securities to be exchanged and with accrued interest in an amount
equal to any unpaid Distribution (including any Additional Amounts) on the
Trust Securities; provided, however, that, in the case of a Tax Event, the
Sponsor shall have the right to (i) direct that less than all, or none, as
appropriate, of the Trust Securities be so exchanged if and for so long as the
Sponsor shall have elected to pay any Additional Sums (as defined in the
Indenture) such that the amount received by Holders of Trust Securities not so
exchanged in respect of Distributions and other distributions are not reduced
as a result of such Tax Event, and shall not have revoked any such election or
failed to make such payments or (ii) cause the Trust Securi-
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ties to be redeemed in the manner set forth below. If a Tax Event shall occur
or be continuing, the Sponsor shall have the right, upon not less than 30 nor
more than 60 days' notice, to redeem the Debentures, in whole or in part, for
cash upon the later of (i) 90 days following the occurrence of such Tax Event
or (ii) _________, ____. Promptly following such redemption, Trust Securities
with an aggregate liquidation amount equal to the aggregate principal amount of
the Debentures so redeemed will be redeemed by the Trust at the Optional
Redemption Price on a pro rata basis.
(b) Notice of any exchange pursuant to this Section 4.4 (an
"Exchange Notice") of the Trust Securities, which Exchange Notice shall be
irrevocable, will be given by the Property Trustee by first-class mail to the
Sponsor and to each record Holder of Trust Securities to be exchanged not fewer
than 30 nor more than 60 days prior to the date fixed for exchange thereof.
For purposes of the calculation of the date of exchange and the dates on which
notices are given pursuant to this paragraph (b), an Exchange Notice shall be
deemed to be given on the day such notice is first mailed by first-class mail,
postage prepaid, to each Holder. Each Exchange Notice shall be addressed to
each Holder of Trust Securities at the address of such Holder appearing in the
books and records of the Trust. Each Exchange Notice shall state: (A) the
exchange date; (B) the aggregate Liquidation Amount and any unpaid
Distributions (including any Additional Amounts) on the Trust Securities to be
exchanged and the aggregate principal amount and any accrued interest on the
Debentures to be exchanged therefor; (C) that on the exchange date the Trust
Securities to be so exchanged shall be exchanged for Debentures and that
Distributions on the Trust Securities so exchanged will cease to accumulate on
and after said date; and (D) the identity of the Conversion Agent, if any, and
the place or places where each Trust Certificate to be exchanged is to be
surrendered in exchange for Debentures. No defect in the Exchange Notice or in
the mailing thereof with respect to any Trust Security shall affect the
validity of the exchange proceedings for any other Trust Security.
(c) In the event that fewer than all the Outstanding
Preferred Securities are to be exchanged, then, on the exchange date, (i) if
all of the Outstanding Preferred Securities are represented by Definitive
Preferred Securities Certificates, the particular Preferred Securities to be
exchanged will be selected by the Property Trustee from the
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Outstanding Preferred Securities not previously called for redemption or
exchange on a pro rata basis, (ii) if all of the Outstanding Preferred
Securities are represented by Book-Entry Preferred Securities Certificates, the
Property Trustee shall provide for the selection for exchange of a portion of
the Global Certificate representing the Book-Entry Preferred Securities
Certificates on a pro rata basis and (iii) if Outstanding Trust Securities are
represented by both Definitive Preferred Securities Certificates and Book-Entry
Preferred Securities Certificates, the Property Trustee shall select the
portion of the Global Certificate representing the Book-Entry Preferred
Securities Certificates and the particular Outstanding Preferred Securities
represented by Definitive Preferred Securities Certificates to be exchanged on
a pro rata basis. In the case of clause (ii) or (iii) above, the particular
Book-Entry Preferred Securities Certificates to be exchanged shall be selected
in accordance with the applicable rules and procedures for the Clearing Agency
in whose name, or whose nominee's name, such global certificate is then held.
Any Preferred Securities Certificate that is to be exchanged only in part shall
be surrendered with due endorsement or by a written instrument of transfer
fully executed by the Holder thereof (or its attorney duly authorized in
writing) and the Trust shall prepare and deliver to such Holder, without
service charge, a new Preferred Securities Certificate or Certificates in
aggregate stated Liquidation Amount equal to, and in exchange for, the
unredeemed portion of the Preferred Securities Certificate so surrendered. The
Common Securities shall be exchanged in a similar manner.
(d) In the event of an exchange pursuant to this Section 4.4,
on the date fixed for any such exchange, (i) if the Preferred Securities are
represented by Book-Entry Preferred Securities Certificates, the Clearing
Agency of its nominee, as the record Holder of the Preferred Securities, will
exchange through the Conversion Agent the Global Certificate representing the
Preferred Securities to be exchanged for a registered Global Certificate or
certificates representing the Debentures to be delivered upon such exchange,
(ii) if the Preferred Securities are represented by Definitive Preferred
Securities Certificates, the certificates representing the Preferred Securities
to be so exchanged will be deemed to represent Debentures having a principal
amount equal to the aggregate stated Liquidation Amount of such Preferred
Securities until such certificates are presented to the Conversion Agent for
exchange for
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definitive certificates representing Debentures and (iii) all rights of the
Holders of the Preferred Securities so exchanged will cease, except for the
right of such Holders to receive Debentures. The Common Securities shall be
exchanged in a similar manner
(e) Each Holder, by becoming a party to this Agreement
pursuant to Section 10.11 of this Agreement, will be deemed to have agreed to
be bound by these exchange provisions in regard to the exchange of Trust
Securities for Debentures pursuant to the terms described above.
(f) Nothing in this Section 4.4 shall limit the requirement
of the Trust to withhold taxes pursuant to the terms of the Trust Securities or
as set forth in this Agreement or otherwise require the Property Trustee or the
Trust to pay any amounts on account of such withholdings.
SECTION 4.5. Subordination of Common Securities. Payment of
Distributions (including Additional Amounts, if applicable) on, and the
Redemption Price of, the Trust Securities, as applicable, shall be made pro
rata based on the Liquidation Amount of the Trust Securities; provided,
however, that if on any Distribution Date or Redemption Date an Event of
Default shall have occurred and be continuing, no payment of any Distribution
(including Additional Amounts, if applicable) on, or the Redemption Price of,
any Common Security, and no other payment on account of the redemption,
liquidation or other acquisition of Common Securities, shall be made unless
payment in full in cash of all accumulated and unpaid Distributions (including
Additional Amounts, if applicable) on all Outstanding Preferred Securities for
all Distribution periods terminating on or prior thereto, or in the case of
payment of the Redemption Price the full amount of such Redemption Price on all
Outstanding Preferred Securities, shall have been made or provided for, and all
funds immediately available to the Property Trustee shall first be applied to
the payment in full in cash of all Distributions (including Additional Amounts,
if applicable) on, or the Redemption Price of, Preferred Securities then due
and payable.
SECTION 4.6. Payment Procedures. Payments in respect of the
Preferred Securities shall be made by check mailed to the address of the Person
entitled thereto as such address shall appear on the Securities Register or, if
the Preferred Securities are held by a Clearing Agency, such
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Distributions shall be made to the Clearing Agency in immediately available
funds, in accordance with the Certificate Depositary Agreement on the
applicable Distribution Dates. Payments in respect of the Common Securities
shall be made in such manner as shall be mutually agreed between the Property
Trustee and the Holder of the Common Securities.
SECTION 4.7. Tax Returns and Reports. The Regular Trustees
shall prepare (or cause to be prepared), at the Sponsor's expense, and file all
United States Federal, State and local tax and information returns and reports
required to be filed by or in respect of the Trust. In this regard, the
Regular Trustees shall (a) prepare and file (or cause to be prepared or filed)
Form 1041 or the appropriate Internal Revenue Service form required to be filed
in respect of the Trust in each taxable year of the Trust and (b) prepare and
furnish (or cause to be prepared and furnished) to each Securityholder a Form
1099 or the appropriate Internal Revenue Service form required to be furnished
to such Securityholder or the information required to be provided on such form.
The Regular Trustees shall provide the Sponsor and the Property Trustee with a
copy of all such returns, reports and schedules promptly after such filing or
furnishing. The Trustees shall comply with United States Federal withholding
and backup withholding tax laws and information reporting requirements with
respect to any payments to Securityholders under the Trust Securities.
SECTION 4.8. Payment of Taxes, Duties, Etc. of the Trust.
Upon receipt under the Debentures of Additional Sums, the Property Trustee,
upon receipt of written notice from the Sponsor or the Regular Trustees, shall
promptly pay from such Additional Sums any taxes, duties or governmental
charges of whatsoever nature (other than withholding taxes) imposed on the
Trust by the United States or any other taxing authority.
SECTION 4.9. Payments under Indenture. Any amount payable
hereunder to any Holder of Preferred Securities (and any Owner with respect
thereto) shall be reduced by the amount of any corresponding payment such
Holder (or Owner) has directly received pursuant to Section 5.7 of the
Indenture in accordance with the terms of Section 6.8 hereof.
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ARTICLE 5
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership. Upon the formation of the
Trust and until the issuance of the Trust Securities, and at any time during
which no Trust Securities are Outstanding, the Sponsor shall be the sole
beneficial owner of the Trust.
SECTION 5.2. The Trust Securities Certificates. The
Preferred Securities Certificates shall be issued in minimum denominations of
$50 Liquidation Amount and integral multiples of $50 in excess thereof, and the
Common Securities Certificates shall be issued in denominations of $50
Liquidation Amount and integral multiples thereof. The consideration received
by the Trust for the issuance of the Trust Securities shall constitute a
contribution to the capital of the Trust and shall not constitute a loan to the
Trust. Initially the Preferred Securities will be represented by one or more
certificates in registered, global form (the "Global Certificate"). The Trust
Securities Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of at least one Regular Trustee and authenti- cated by the
Property Trustee. Trust Securities Certificates bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust, shall be
validly issued and entitled to the benefit of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Trust Securities Certificates or did
not hold such offices at the date of delivery of such Trust Securities
Certificates. A transferee of a Trust Securities Certificate shall become a
Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Section 5.4.
SECTION 5.3. Delivery of Trust Securities Certificates. On
the Closing Date, the Regular Trustees shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as provided in Sections 2.4
and 2.5, to be executed on behalf of the Trust and delivered to or upon the
written order of the Sponsor, signed by its Chairman of the Board, any Vice
Chairman, its President, any Senior Vice President or any Vice President,
Treasurer or Assistant
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Treasurer or Controller without further corporate action by the Sponsor, in
authorized denominations.
A Trust Security Certificate shall not be valid until
authenticated by the manual signature of an authorized signatory of the
Property Trustee. The signature shall be conclusive evidence that the Trust
Security Certificate has been authenticated under this Trust Agreement. Upon a
written order of the Trust signed by one Regular Trustee, the Property Trustee
shall authenticate the Trust Security Certificates for original issue.
The Property Trustee may appoint an authenticating agent
acceptable to the Regular Trustees to authenticate Trust Security Certificates.
An authenticating agent may authenticate Trust Security Certificates whenever
the Property Trustee may do so. Each reference in this Trust Agreement to
authentication by the Property Trustee includes authentication by such agent.
An authenticating agent has the same rights as the Property Trustee to deal
with the Sponsor or an Affiliate with respect to the authentication of Trust
Securities.
SECTION 5.4. Registration of Transfer and Exchange of
Preferred Securities. The Securities Registrar shall keep or cause to be kept,
at the office or agency maintained pursuant to Section 5.8, a Securities
Register in which, subject to such reasonable regulations as it may prescribe,
the Securities Registrar shall provide for the registration of Preferred
Securities Certificates and Common Securities Certificates (subject to Section
5.10 in the case of the Common Securities Certificates) and registration of
transfers and exchanges of Preferred Securities Certificates as herein
provided. The Property Trustee shall be the initial Securities Registrar.
Upon surrender for registration of transfer of any Preferred
Security at an office or agency of the Sponsor designated pursuant to Section
5.8 for such purpose, the Sponsor shall execute, and the Property Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Preferred Securities of any authorized
denominations and of a like aggregate principal amount and bearing such
restrictive legends as may be required by this Trust Agreement.
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At the option of the Holder, and subject to the other
provisions of this Section 5.4, Preferred Securities may be exchanged for other
Preferred Securities of any authorized denomination and of a like Liquidation
Amount, upon surrender of the Preferred Securities to be exchanged at any such
office or agency. Whenever any Preferred Securities are so surrendered for
exchange, the Sponsor shall execute, and the Property Trustee shall
authenticate and deliver, the Preferred Securities which the Holder making the
exchange is entitled to receive.
All Preferred Securities issued upon any registration of
transfer or exchange of Preferred Securities shall be the valid obligations of
the Sponsor, evidencing the same debt, and entitled to the same benefits under
this Trust Agreement, as the Securities surrendered upon such registration of
transfer or exchange.
Every Preferred Security presented or surrendered for
registration of transfer or for exchange shall (if so requested by the Sponsor
or the Securities Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Sponsor and the Securities
Registrar duly executed, by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of
transfer or exchange of Preferred Securities Certificates, but the Securities
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Preferred Securities Certificates.
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates. If (a) any mutilated Trust Securities Certificate
shall be surrendered to the Securities Registrar, or if the Securities
Registrar shall receive evidence to its satisfaction of the destruction, loss
or theft of any Trust Securities Certificate and (b) there shall be delivered
to the Securities Registrar and the Regular Trustees such security or indemnity
as may be required by them to save each of them harmless, then in the absence
of notice that such Trust Securities Certificate shall have been acquired by a
bona fide purchaser, the Regular Trustees, or any one of them, on behalf of the
Trust shall execute and make available for authentication and delivery, in
exchange for or in lieu of any such mutilated,
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destroyed, lost or stolen Trust Securities Certificate, a new Trust Securities
Certificate of like denomination. In connection with the issuance of any new
Trust Securities Certificate under this Section, the Securities Registrar may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith. Any duplicative Trust
Securities Certificate issued pursuant to this Section shall constitute
conclusive evidence of an undivided beneficial interest in the assets of the
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Trust Securities Certificate shall be found at any time.
SECTION 5.6. Persons Deemed Securityholders. The Property
Trustee and the Securities Registrar shall treat the Person in whose name any
Trust Securities Certificate shall be registered in the Securities Register as
the owner of such Trust Securities Certificate for the purpose of receiving
Distributions and for all other purposes whatsoever, and neither the Property
Trustee nor the Securities Registrar shall be bound by any notice to the
contrary.
SECTION 5.7. Access to List of Securityholders' Names and
Addresses. The Regular Trustees or the Sponsor shall furnish or cause to be
furnished (unless the Property Trustee is acting as Securities Registrar with
respect to the Trust Securities under the Trust Agreement) a list, in such form
as the Property Trustee may reasonably require, of the names and addresses of
the Securityholders as of the most recent record date (a) to the Property
Trustee, quarterly at least 5 Business Days before each Distribution Date, and
(b) to the Property Trustee, promptly after receipt by the Sponsor of a request
therefor from the Property Trustee in order to enable the Property Trustee to
discharge its obligations under this Trust Agreement, in each case to the
extent such information is in the possession or control of the Regular Trustees
or the Sponsor and is not identical to a previously supplied list or has not
otherwise been received by the Property Trustee in its capacity as Securities
Registrar. The rights of Securityholders to communicate with other
Securityholders with respect to their rights under this Trust Agreement or
under the Trust Securities, and the corresponding rights of the Trustee shall
be as provided in the Trust Indenture Act, except to the extent Section 3819 of
the Delaware Business Trust Act would require greater access to such
information, in which case the latter shall apply. Each Holder, by receiving
and holding a
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Trust Securities Certificate, and each Owner shall be deemed to have agreed not
to hold the Sponsor, the Property Trustee or the Regular Trustees accountable
by reason of the disclosure of its name and address, regardless of the source
from which such information was derived.
SECTION 5.8. Maintenance of Office or Agency. The Securities
Registrar shall maintain in The City of New York an office or offices or agency
or agencies where Preferred Securities Certificates may be surrendered for
registration of transfer, exchange or conversion and where notices and demands
to or upon the Trustees in respect of the Trust Securities Certificates may be
served. The Securities Registrar initially designates 101 Barclay Street,
Floor 21W, New York, New York 10286, Attention: _______________, as its
principal corporate trust office for such purposes. The Securities Registrar
shall give prompt written notice to the Sponsor and to the Securityholders of
any change in the location of the Securities Register or any such office or
agency.
SECTION 5.9. Appointment of Paying Agent. In the event that
the Preferred Securities are not in book-entry form only, the Trust shall
maintain in the Borough of Manhattan, City of New York, an office or agency
(the "Paying Agent") where the Preferred Securities may be presented for
payment. The Paying Agent shall make Distributions to Securityholders from the
Payment Account and shall report the amounts of such Distributions to the
Property Trustee and the Regular Trustees. Any Paying Agent shall have the
revocable power to withdraw funds from the Payment Account for the purpose of
making the Distributions referred to above. The Regular Trustees may revoke
such power and remove the Paying Agent if such Trustees determine in their sole
discretion that the Paying Agent shall have failed to perform its obligations
under this Trust Agreement in any material respect. The Paying Agent shall
initially be the Property Trustee, and any co-paying agent chosen by the
Property Trustee and acceptable to the Regular Trustees and the Sponsor. Any
Person acting as Paying Agent shall be permitted to resign as Paying Agent upon
30 days' written notice to the Property Trustee and the Sponsor. In the event
that the Property Trustee shall no longer be the Paying Agent or a successor
Paying Agent shall resign or its authority to act be revoked, the Regular
Trustees shall appoint a successor that is acceptable to the Property Trustee
and the Sponsor to act as Paying Agent (which shall
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be a bank or trust company). Each successor Paying Agent or any additional
Paying Agent shall agree with the Trustees that, as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all sums, if any,
held by it for payment to the Securityholders in trust for the benefit of the
Securityholders entitled thereto until such sums shall be paid to each
Securityholder. The Paying Agent shall return all unclaimed funds to the
Property Trustee and upon removal of a Paying Agent such Paying Agent shall
also return all funds in its possession to the Property Trustee. The
provisions of Sections 8.1, 8.3 and 8.6 shall apply to the Property Trustee
also in its role as Paying Agent, for so long as the Property Trustee shall act
as Paying Agent and, to the extent applicable, to any other paying agent
appointed hereunder. Any reference in this Agreement to the Paying Agent shall
include any co-paying agent unless the context requires otherwise.
SECTION 5.10. Ownership of Common Securities by Sponsor. On
the Closing Date provided for in Section 2.5, the Sponsor shall acquire and
retain beneficial and record ownership of the Common Securities. To the
fullest extent permitted by law, any attempted transfer of the Common
Securities shall be void. The Regular Trustees shall cause each Common
Securities Certificate issued to the Sponsor to contain a legend stating "THIS
CERTIFICATE IS NOT TRANSFERABLE".
SECTION 5.11. Global Securities; Non-Global Securities;
Common Securities Certificate. (a) Each Global Certificate authenticated
under this Trust Agreement shall be registered in the name of the Clearing
Agency designated by the Sponsor for such Global Certificate or a nominee
thereof and delivered to such Clearing Agency or a nominee thereof or custodian
therefor, and each such Global Certificate shall constitute a Preferred
Security for all purposes of this Trust Agreement.
(b) If a Global Certificate is to be exchanged for
Certificated Preferred Securities or canceled in whole, it shall be surrendered
by or on behalf of the Clearing Agency, its nominee or custodian to the
Property Trustee, as Securities Registrar, for exchange or cancellation as
provided in this Article 5. If any Global Certificate is to be exchanged for
Certificated Preferred Securities or cancelled in part, or if another Preferred
Security is to be exchanged in whole or in part for a beneficial interest in
any Global
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Certificate, in each case, as provided in Section 5.4, then either (i) such
Global Certificate shall be so surrendered for exchange or cancellation as
provided in this Article 5 or (ii) the principal amount thereof shall be
reduced or increased by an amount equal to the portion thereof to be so
exchanged or cancelled, or equal to the principal amount of such Certificated
Preferred Security to be so exchanged for a beneficial interest therein, as the
case may be, by means of an appropriate adjustment made on the records of the
Property Trustee, as Securities Registrar, whereupon the Property Trustee, in
accordance with the Applicable Procedures, shall instruct the Clearing Agency
or its authorized representative to make a corresponding adjustment to its
records. Upon any such surrender or adjustment of a Global Certificate, the
Property Trustee shall, subject to Section 5.4 and as otherwise provided in
this Article 5, authenticate and deliver any Preferred Securities issuable in
exchange for such Global Certificate (or any portion thereof) to or upon the
order of, and registered in such names as may be directed by, the Clearing
Agency or its authorized representative. Upon the request of the Property
Trustee in connection with the occurrence of any of the events specified in the
preceding paragraph, the Sponsor shall promptly make available to the Property
Trustee a reasonable supply of Preferred Securities that are not in the form of
Global Certificates. The Property Trustee shall be entitled to rely upon any
order, direction or request of the Clearing Agency or its authorized
representative which is given or made pursuant to this Article 5 if such order,
direction or request is given or made in accordance with the Applicable
Procedures.
(c) Every Preferred Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Certificate or any portion thereof, whether pursuant to this Article 5 or
otherwise, shall be authenticated and delivered in the form of, and shall be, a
Global Certificate, unless such Preferred Security is registered in the name of
a Person other than the Clearing Agency for such Global Certificate or a
nominee thereof.
(d) The Clearing Agency or its nominee, as registered owner
of a Global Certificate, shall be the holder of such Global Certificate for all
purposes under the Trust Agreement and the Preferred Securities, and owners of
beneficial interests in a Global Certificate shall hold such
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interests pursuant to the Applicable Procedures. Accordingly, any such Owner's
beneficial interest in a Global Certificate will be shown only on, and the
transfer of such interest shall be effected only through, records maintained by
the Clearing Agency or its nominee or its participants and such owners of
beneficial interests in a Global Certificate will not be considered the owners
or holders of such Global Certificate for any purpose of this Trust Agreement
or the Preferred Securities.
(e) A single Common Securities Certificate representing the
Common Securities shall be issued to the Sponsor in the form of a definitive
Common Securities Certificate.
SECTION 5.12. Notices to Clearing Agency. To the extent that
a notice or other communication to the Owners is required under this Trust
Agreement, unless and until Definitive Preferred Securities Certificates shall
have been issued to Owners pursuant to Section 5.13, the Trustees shall give
all such notices and communications specified herein to be given to Owners to
the Clearing Agency, and shall have no obligations to provide notices directly
to the Owners.
SECTION 5.13. Definitive Preferred Securities Certificates.
Notwithstanding any other provision in this Trust Agreement other than as
provided for in Section 5.4(b)(vi), no Global Certificate may be exchanged in
whole or in part for Preferred Securities registered, and no transfer of a
Global Certificate in whole or in part may be registered, in the name of any
Person other than the Clearing Agency for such Global Certificate or a nominee
thereof unless (i) such Clearing Agency (A) has notified the Sponsor that it is
unwilling or unable to continue as Clearing Agency for such Global Certificate
or (B) has ceased to be a clearing agency registered as such under the
Securities Exchange Act of 1934, as amended, and in either case the Trust and
the Sponsor thereupon fails to appoint a successor Clearing Agency, (ii) the
Trust and the Sponsor, at their option, notify the Property Trustee in writing
that it elects to cause the issuance of the Preferred Securities in
certificated form or (iii) there shall have occurred and be continuing an Event
of Default or any event which after notice or lapse of time or both would be an
Event of Default. In all cases, Certificated Preferred Securities delivered in
exchange for any Global Certificate or beneficial interests therein will be
registered in the names, and
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issued in any approved denominations, requested by or on behalf of the Clearing
Agency (in accordance with its customary procedures).
SECTION 5.14. Rights of Securityholders. The legal title to
the Trust Property is vested exclusively in the Property Trustee (in its
capacity as such) in accordance with Section 2.9, and the Securityholders shall
not have any right or title therein other than the undivided beneficial
interest in the assets of the Trust conferred by their Trust Securities and
they shall have no right to call for any partition or division of property,
profits or rights of the Trust except as described below. The Trust Securities
shall be personal property giving only the rights specifically set forth
therein and in this Trust Agreement. The Trust Securities shall have no
preemptive or similar rights and, when issued and delivered to Securityholders
against payment of the purchase price therefor, will be fully paid and
nonassessable by the Trust. The Holders of the Trust Securities, in their
capacities as such, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
ARTICLE 6
ACT OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights. (a) Except as
provided in this Section, in Section 8.9 and 10.2 and in the Indenture and as
otherwise required by law, no Holder of Preferred Securities shall have any
right to vote or in any manner otherwise control the administration, operation
and management of the Trust or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Trust Securities
Certificates, be construed so as to constitute the Securityholders from time to
time as partners or members of an association.
(b) Subject to Section 8.2 hereof, if an Event of Default
with respect to the Preferred Securities has occurred and been subsequently
cured, waived or otherwise eliminated, the provisions of Section 6.1(b)(ii)
hereof shall apply. During (x) the period commencing on the date of the
occurrence of an Event of Default with respect to the Preferred Securities and
ending on the date when such Event of Default is cured, waived or otherwise
eliminated, or (y)
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any period not described in either the preceding sentence or the preceding
clause (x), the provisions of Section 6.1(b)(i) shall apply.
(i) The holders of a majority in aggregate
liquidation amount of the Preferred Securities will have the right to
direct the time, method and place of conducting any proceeding for any
remedy available to the Property Trustee or to exercise any trust or
power conferred upon the Property Trustee under the Trust Agreement,
including the right to direct the Property Trustee to exercise the
remedies available to it as a holder of the Debentures but excluding
the right to direct the Property Trustee to consent to an amendment,
modification or termination of the Indenture (which shall be as
provided below). So long as any Debentures are held by the Property
Trustee, the Trustees shall not (A) direct the time, method and place
of conducting any proceeding for any remedy available to the Debenture
Trustee, or executing any trust or power conferred on the Debenture
Trustee with respect to such Debentures, (B) waive any past default
which is waivable under Section 5.10 of the Indenture, (C) exercise
any right to rescind or annul a declaration that the principal of
all the Debentures shall be due and payable or (D) consent to any
amendment, modification or termination of the Indenture or the
Debentures, where such consent shall be required, without, in each
case, obtaining the prior approval of the Holders of a majority in
aggregate Liquidation Amount of all Outstanding Preferred Securities
(except in the case of clause (D), which consent, in the event that no
Event of Default shall occur and be continuing, shall be of the
Holders of all Trust Securities, voting together as a single class);
provided, however, that where a consent under the Indenture would
require the consent of each holder of Debentures affected thereby, no
such consent shall be given by the Property Trustee without the prior
written consent of each Holder of Preferred Securities. The Trustees
shall not revoke any action previously authorized or approved by a
vote of the Holders of the Preferred Securities, except by a
subsequent vote of the Holders of the Preferred Securities. The
Property Trustee shall notify all Holders of record of the Preferred
Securities of any notice of default received from the Debenture
Trustee with respect to the Debentures. In addition to obtaining the
foregoing approv-
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als of the Holders of the Preferred Securities, prior to taking any of
the foregoing actions, the Trustees shall, at the expense of the
Sponsor, obtain an Opinion of Counsel experienced in such matters to
the effect that the Trust will not be classified as an association
taxable as a corporation or partnership for United States Federal
income tax purposes on account of such action.
(ii) Subject to Section 8.2 of this Trust Agreement
and only after the Event of Default with respect to the Preferred
Securities has been cured, waived, or otherwise eliminated the holders
of a majority in aggregate liquidation amount of the Common Securities
will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Property Trustee or to
exercise any trust or power conferred upon the Property Trustee under
the Trust Agreement, including the right to direct the Property
Trustee to exercise the remedies available to it as a holder of the
Debentures but excluding the right to direct the Property Trustee to
consent to an amendment, modification or termination of the Indenture
(which shall be as provided below). So long as any Debentures are
held by the Property Trustee, the Trustees shall not (A) direct the
time, method and place of conducting any proceeding for any remedy
available to the Debenture Trustee, or executing any trust or power
conferred on the Debenture Trustee with respect to such Debentures,
(B) waive any past default which is waivable under Section 5.10 of the
Indenture, (C) exercise any right to rescind or annul a declaration
that the principal of all the Debentures shall be due and payable or
(D) consent to any amendment, modification or termination of the
Indenture or the Debentures, where such consent shall be required,
without, in each case, obtaining the prior approval of the Holders of
a majority in aggregate Liquidation Amount of all Common Securities
(except in the case of clause (D), which consent, in the event that no
Event of Default shall occur and be continuing, shall be of the
Holders of all Trust Securities, voting together as a single class);
provided, however, that where a consent under the Indenture would
require the consent of each holder of Debentures affected thereby, no
such consent shall be given by the Property Trustee without the prior
written consent of each Holder of Common Securi-
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ties. The Trustees shall not revoke any action previously authorized
or approved by a vote of the Holders of the Common Securities, except
by a subsequent vote of the Holders of the Common Securities. The
Property Trustee shall notify all Holders of record of the Common
Securities of any notice of default received from the Debenture Trustee
with respect to the Debentures. In addition to obtaining the foregoing
approvals of the Holders of the Common Securities, prior to taking any
of the foregoing actions, the Trustees shall, at the expense of the
Sponsor, obtain an Opinion of Counsel experienced in such matters to
the effect that the Trust will not be classified as an association
taxable as a corporation or partnership for United States Federal
income tax purposes on account of such action.
(c) If any proposed amendment to the Trust Agreement provides
for, or the Trustees otherwise propose to effect the dissolution, winding-up or
termination of the Trust, other than pursuant to the terms of this Trust
Agreement, then the Holders of Outstanding Preferred Securities as a class will
be entitled to vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of the Holders of a
majority in aggregate Liquidation Amount of the Outstanding Preferred
Securities.
SECTION 6.2. Notice of Meetings. Notice of all meetings of
the Holders of the Preferred Securities, stating the time, place and purpose of
the meeting, shall be given by the Property Trustee pursuant to Section 10.8 to
each Preferred Securityholder of record, at its registered address, at least 15
days and not more than 90 days before the meeting. At any such meeting, any
business properly before the meeting may be so considered whether or not stated
in the notice of the meeting. Any adjourned meeting may be held as adjourned
without further notice.
SECTION 6.3. Meetings of Preferred Securityholders. No
annual meeting of Securityholders is required to be held. The Regular
Trustees, however, shall call a meeting of Securityholders to vote on any
matter upon the written request of the Preferred Securityholders of record of
25% of the Preferred Securities (based upon their Liquidation Amount) and the
Regular Trustees or the Property Trustee may, at any time in their discretion,
call a meeting
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of the Holders of Preferred Securities to vote on any matters as to which such
Holders are entitled to vote.
Holders of record of 50% of the Preferred Securities (based
upon their Liquidation Amount), present in person or by proxy, shall constitute
a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by
the Holders of record of Preferred Securities present, in person or by proxy,
holding more than a majority of the Preferred Securities (based upon their
Liquidation Amount) held by Holders of record of Preferred Securities present,
either in person or by proxy, at such meeting shall constitute the action of
the Securityholders, unless this Trust Agreement requires a greater number of
affirmative votes.
SECTION 6.4. Voting Rights. Securityholders shall be
entitled to one vote for each $50 of Liquidation Amount represented by their
Trust Securities in respect of any matter as to which such Securityholders are
entitled to vote. Notwithstanding that holders of Preferred Securities are
entitled to vote or consent under any of the circumstances described above, any
of the Preferred Securities that are owned at such time by the Sponsor, the
Trustees or any affiliate of any Trustee shall, for purposes of such vote or
consent, be treated as if such Preferred Securities were not outstanding.
SECTION 6.5. Proxies, Etc. At any meeting of
Securityholders, any Securityholders entitled to vote thereat may vote by
proxy, provided that no proxy shall be voted at any meeting unless it shall
have been placed on file with the Regular Trustees, or with such other officer
or agent of the Trust as the Regular Trustees may direct, for verification
prior to the time at which such vote shall be taken. Pursuant to a resolution
of the Property Trustee, proxies may be solicited in the name of the Property
Trustee or one or more officers of the Property Trustee. Only Securityholders
of record shall be entitled to vote. When Trust Securities are held jointly by
several Persons, any one of them may vote at any meeting in person or
represented by proxy in respect of such Trust Securities, but if more than one
of them shall be present at such meeting in person or by proxy, and such joint
owners or their proxies so present disagree as to any vote to be cast, such
vote shall not
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be received in respect of such Trust Securities. A proxy purporting to be
executed by or on behalf of a Securityholder shall be deemed valid unless
challenged at or prior to its exercise, and the burden of proving invalidity
shall rest on the challenger. No proxy shall be valid more than three years
after its date of execution.
SECTION 6.6. Securityholder Action by Written Consent. Any
action which may be taken by Securityholders at a meeting may be taken without
a meeting if Securityholders holding more than a majority of all Outstanding
Trust Securities (based upon their Liquidation Amount) entitled to vote in
respect of such action (or such larger proportion thereof as shall be required
by any express provision of this Trust Agreement) shall consent to the action
in writing.
SECTION 6.7. Record Date for Voting and Other Purposes. For
the purposes of determining the Securityholders who are entitled to notice of
and to vote at any meeting or by written consent, or to participate in any
Distribution on the Trust Securities in respect of which a record date is not
otherwise provided for in this Trust Agreement, or for the purpose of any other
action, the Property Trustee may from time to time fix a date, not more than 90
days prior to the date of any meeting of Securityholders or the payment of
Distributions or other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record for such
purposes.
SECTION 6.8. Acts of Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Trust Agreement to be given, made or taken by Securityholders
or Owners may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Securityholders or Owners in person
or by an agent duly appointed in writing; and, except as otherwise expressly
provided herein, such action shall become effective when such instrument or
instruments are delivered to a Regular Trustee. Such instrument or instruments
(and the action embodied therein and evidence thereby) are herein sometimes
referred to as the "Act" of the Securityholders or Owners signing such
instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Trust Agreement and (subject to Section 8.1) conclusive in favor
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of the Trustees, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgements of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee receiving the same deems sufficient.
The ownership of Preferred Securities shall be proved by the
Securities Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust Security shall
bind every future Securityholder of the same Trust Security and the
Securityholder of every Trust Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustees or the Trust in reliance
thereon, whether or not notation of such action is made upon such Trust
Security.
Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any particular Trust
Security may do so with regard to all or any part of the Liquidation Amount of
such Trust Security or by one or more duly appointed agents each of which may
do so pursuant to such appointment with regard to all or any part of such
Liquidation Amount.
If any dispute shall arise between the Securityholders and the
Regular Trustees or among such Securityholders or Trustees with respect to the
authenticity, validity or binding nature of any request, demand, authorization,
direction, consent, waiver or other Act of such Securityholder or Trustee under
this Article 6, then
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the determination of such matter by the Property Trustee shall be conclusive
with respect to such matter.
Upon the occurrence and continuation of an Event of Default,
the holders of Preferred Securities shall rely on the enforcement by the
Property Trustee of its rights as holder of the Debentures against the Sponsor.
If the Property Trustee fails to enforce its rights as holder of the Debentures
after a request therefor by a holder of Preferred Securities, such holder may
proceed to enforce such rights directly against the Sponsor. Notwithstanding
the foregoing, if an Event of Default has occurred and is continuing and such
event is attributable to the failure of the Sponsor to pay interest or
principal on the Debentures on the date such interest or principal is otherwise
payable (or in the case of redemption, on the Redemption Date), then a holder
of Preferred Securities shall have the right to institute a proceeding directly
against the Sponsor, for enforcement of payment to such holder of the principal
amount of or interest on Debentures having a principal amount equal to the
aggregate Liquidation Amount of the Preferred Securities of such holder after
the respective due date specified in the Debentures (a "Direct Action"). In
connection with any such Direct Action, the rights of the Sponsor will be
subrogated to the rights of any holder of the Preferred Securities to the
extent of any payment made by the Sponsor to such holder of Preferred
Securities as a result of such Direct Action.
A Securityholder may institute a legal proceeding directly
against the Sponsor under the Guarantee to enforce its rights under the
Guarantee without first instituting a legal proceeding against the Guarantee
Trustee (as defined in the Guarantee), the Trust or any Person or entity.
SECTION 6.9. Inspection of Records. Upon reasonable
notice to the Regular Trustees and the Property Trustee, the records of the
Trust shall be open to inspection by Securityholders during normal business
hours for any purpose reasonably related to such Securityholder's interest as a
Securityholder.
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ARTICLE 7
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property
Trustee and the Delaware Trustee. The Property Trustee and the Delaware
Trustee, each severally on behalf of and as to itself, hereby represents and
warrants for the benefit of the Sponsor and the Securityholders that (each such
representation and warranty made by the Property Trustee and the Delaware
Trustee being made only with respect to itself):
(a) the Property Trustee is a banking corporation duly
organized, validly existing and in good standing under the laws of the State of
New York;
(b) the Delaware Trustee is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware;
(c) each of the Property Trustee and the Delaware Trustee has
full corporate power, authority and legal right to execute, deliver and perform
its obligations under this Trust Agreement and has taken all necessary action
to authorize the execution, delivery and performance by it of this Trust
Agreement;
(d) this Trust Agreement has been duly authorized, executed
and delivered by each of the Property Trustee and the Delaware Trustee and
constitutes the valid and legally binding agreement of the Property Trustee and
the Delaware Trustee enforceable against it in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(e) the execution, delivery and performance by each of the
Property Trustee and the Delaware Trustee of this Trust Agreement have been
duly authorized by all necessary corporate or other action on the part of the
Property Trustee and the Delaware Trustee and does not require any approval of
stockholders of the Property Trustee or the Delaware Trustee and such
execution, delivery and performance will not (i) violate either of the Property
Trustee's or the Delaware Trustee's charter or by-laws, (ii) violate any
provision of, or constitute, with or without notice or
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lapse of time, a default under, or result in the creation or imposition of any
Lien on any properties included in the Trust Property pursuant to the
provisions of, any indenture, mortgage, credit agreement, license or other
agreement or instrument to which the Property Trustee or the Delaware Trustee
is a party or by which it is bound, or (iii) violate any law, governmental rule
or regulation of the United States or the State of Delaware, as the case may
be, governing the banking, corporate, or trust powers of the Property Trustee
or the Delaware Trustee (as appropriate in context) or any order, judgment or
decree applicable to the Property Trustee or the Delaware Trustee;
(f) neither the authorization, execution or delivery by the
Property Trustee or the Delaware Trustee of this Trust Agreement nor the
consummation of any of the transactions by the Property Trustee or the Delaware
Trustee (as appropriate in context) contemplated herein or therein requires the
consent or approval of, the giving of notice to, the registration with or the
taking of any other action with respect to, any governmental authority or
agency under any existing Federal law governing the banking, corporate or trust
powers of the Property Trustee or the Delaware Trustee, as the case may be,
under the laws of the United States or the State of Delaware;
(g) there are no proceedings pending or, to the best of each
of the Property Trustee's and the Delaware Trustee's knowledge, threatened
against or affecting the Property Trustee or the Delaware Trustee in any court
or before any governmental authority, agency or arbitration board or tribunal
which, individually or in the aggregate, would materially and adversely affect
the Trust or would question the right, power and authority of the Property
Trustee or the Delaware Trustee, as the case may be, to enter into or perform
its obligations as one of the Trustees under this Trust Agreement.
SECTION 7.2. Representations and Warranties of Sponsor. The
Sponsor hereby represents and warrants for the benefit of the Securityholders
that:
(a) the Trust Securities Certificates issued on the Closing
Date on behalf of the Trust have been duly authorized and will have been duly
and validly executed, issued and delivered by the Trustees pursuant to the
terms and provisions of, and in accordance with the requirements
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of, this Trust Agreement and the Securityholders will be, as of such date,
entitled to the benefits of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges
payable by the Trust (or the Trustees on behalf of the Trust) under the laws of
the State of Delaware or any political subdivision thereof in connection with
the execution, delivery and performance by the Property Trustee or the Delaware
Trustee, as the case may be, of this Trust Agreement.
ARTICLE 8
THE TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities. (a) The
duties and responsibilities of the Trustees shall be as provided by this Trust
Agreement and, in the case of the Property Trustee, by the Trust Indenture Act.
The Property Trustee, before the occurrence of any Event of Default and after
the curing or waiving of all Events of Default that may have occurred, shall
undertake to perform only such duties and obligations as are specifically set
forth in this Trust Agreement and the Trust Indenture Act and no implied
covenants shall be read into this Trust Agreement against the Property Trustee.
In case an Event of Default has occurred (that has not been cured or waived
pursuant to Section 8.2) of which a responsible officer of the Property Trustee
has actual knowledge, the Property Trustee shall exercise such rights and
powers vested in it by this Trust Agreement and the Trust Indenture Act, and
use the same degree of care and skill in its exercise, as a prudent individual
would exercise or use under the circumstances in the conduct of his or her own
affairs. Notwithstanding the foregoing, no provision of this Trust Agreement
shall require the Trustees to expend or risk their own funds or otherwise incur
any financial liability in the performance of any of their duties hereunder, or
in the exercise of any of their rights or powers, if they shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it. Whether or not
therein expressly so provided, every provision of this Trust Agreement relating
to the conduct or affecting the liability of or affording protection to the
Trustees shall be subject to the provisions of this Section. Nothing in this
Trust Agreement
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shall be construed to release the Regular Trustees from liability for their own
grossly negligent action, their own grossly negligent failure to act, or their
own willful misconduct. To the extent that, at law or in equity, a Regular
Trustee has duties (including fiduciary duties) and liabilities relating
thereto to the Trust or to the Securityholders, such Regular Trustee shall not
be liable to the Trust or to any Securityholder for such Regular Trustee's good
faith reliance on the provisions of this Trust Agreement. The provisions of
this Trust Agreement, to the extent that they restrict the duties and
liabilities of the Regular Trustees otherwise existing at law or in equity, are
agreed by the Sponsor and the Securityholders to replace such other duties and
liabilities of the Regular Trustees.
(b) All payments made by the Property Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from the revenue
and proceeds from the Trust Property and only to the extent that there shall be
sufficient revenue or proceeds from the Trust Property to enable the Property
Trustee or a Paying Agent to make payments in accordance with the terms hereof.
Each Securityholder, by its acceptance of a Trust Security, agrees that it will
look solely to the revenue and proceeds from the Trust Property to the extent
legally available for distribution to it as herein provided and that the
Trustees are not personally liable to it for any amount distributable in
respect of any Trust Security or for any other liability in respect of any
Trust Security. This Section 8.1(b) does not limit the liability of the
Trustees expressly set forth elsewhere in this Trust Agreement or, in the case
of the Property Trustee, in the Trust Indenture Act.
(c) No provision of this Trust Agreement shall be construed
to relieve the Property Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of
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the Holders of a majority Liquidation Amount of the Trust Securities
relating to the time, method and place of conducting any proceeding
for any remedy available to the Property Trustee, or exercising any
trust or power conferred upon the Property Trustee under this Trust
Agreement;
(iii) the Property Trustee's sole duty with respect to the
custody, safekeeping and physical preservation of the Debentures and
the Payment Account shall be to deal with such property as fiduciary
assets, subject to the protections and limitations on liability
afforded to the Property Trustee under this Trust Agreement and the
Trust Indenture Act;
(iv) The Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree
with the Sponsor and money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Payment Account maintained by the Property Trustee pursuant to Section
3.1 and except to the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees or the Sponsor with
their respective duties under this Trust Agreement, nor shall the
Property Trustee be liable for the default or misconduct of the
Regular Trustees or the Sponsor.
SECTION 8.2. Notice of Defaults. (a) Within ten days after
the occurrence of any Event of Default actually known to the Property Trustee,
the Property Trustee shall transmit, in the manner and to the extent provided
in Section 10.8, notice of such Event of Default to the holders of Preferred
Securities, the Regular Trustees and the Sponsor, unless such Event of Default
shall have been cured or waived, provided that, except for a default in the
payment of principal of (or premium, if any) or interest on any of the
Debentures, the Property Trustee shall be protected in withholding such notice
if and so long as the Board of Directors, the executive committee, or a trust
committee of directors and/or responsible officers of the Property Trustee in
good faith determines that the withholding of such notice is in the interests
of the Holders of the Preferred Securities.
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(b) Within ten days after the receipt of notice of the
Sponsor's exercise of its right to extend the interest payment period for the
Debentures pursuant to the Indenture, the Property Trustee shall transmit, in
the manner and to the extent provided in Section 10.8, notice of such exercise
to the Securityholders, unless such exercise shall have been revoked.
(c) The Holders of a majority in liquidation amount of
Preferred Securities may, by vote, on behalf of the Holders of all of the
Preferred Securities, waive any past Event of Default in respect of the
Preferred Securities and its consequences, provided that, if the underlying
Debenture Event of Default:
(i) is not waivable under the Indenture, the
Event of Default under the Trust Agreement shall also not be waivable;
or
(ii) requires the consent or vote of greater than
a majority in principal amount of the holders of the Debentures (a
"Super Majority") to be waived under the Indenture, the Event of
Default under the Trust Agreement may only be waived by the vote of
the Holders of the same proportion in liquidation amount of the
Preferred Securities that the relevant Super Majority represents of
the aggregate principal amount of the Debentures outstanding.
The provisions of Section 6.1(b) and this Section 8.2(c) shall
be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this
Trust Agreement and the Preferred Securities, as permitted by the Trust
Indenture Act. Upon such waiver, any such default shall cease to exist, and
any Event of Default with respect to the Preferred Securities arising therefrom
shall be deemed to have been cured, for every purpose of this Trust Agreement,
but no such waiver shall extend to any subsequent or other default or an Event
of Default with respect to the Preferred Securities or impair any right
consequent thereon. Any waiver by the Holders of the Preferred Securities of
an Event of Default with respect to the Preferred Securities shall also be
deemed to constitute a waiver by the Holders of the Common Securities of any
such Event of Default with respect to the Common Securities for all purposes of
this
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Trust Agreement without any further act, vote, or consent of the Holders of the
Common Securities.
(d) The Holders of a majority in liquidation amount of the
Common Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Debenture
Event of Default:
(i) is not waivable under the Indenture, except
where the Holders of the Common Securities are deemed to have waived
such Event of Default under the Trust Agreement as provided below in
this Section 8.2(d), the Event of Default under the Trust Agreement
shall also not be waivable; or
(ii) requires the consent or vote of a Super
Majority to be waived, except where the Holders of the Common
Securities are deemed to have waived such Event of Default under the
Trust Agreement as provided below in this Section 8.2(d), the Event of
Default under the Trust Agreement may only be waived by the vote of
the Holders of the same proportion in liquidation amount of the Common
Securities that the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding;
provided further, that each Holder of Common Securities will be deemed to have
waived any such Event of Default and all Events of Default with respect to the
Common Securities and its consequences until all Events of Default with respect
to the Preferred Securities have been cured, waived or otherwise eliminated,
and until such Events of Default have been so cured, waived or otherwise
eliminated, the Property Trustee will be deemed to be acting solely on behalf
of the Holders of the Preferred Securities and only the Holders of the
Preferred Securities will have the right to direct the Property Trustee in
accordance with the terms of the Securities. The provisions of Section 6.1(b)
and this Section 8.2(d) shall be in lieu of Section 316(a)(1)(B) of the Trust
Indenture Act and such Section 316(a)(1)(B) of the Trust Indenture Act is
hereby expressly excluded from this Trust Agreement and the Preferred
Securities, as permitted by the Trust Indenture Act. Subject to the foregoing
provisions of this Section 8.2(d), upon such waiver, any such default shall
cease to exist and any Event of Default with respect to the
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Common Securities arising therefrom shall be deemed to have been cured for
every purpose of this Trust Agreement, but no such waiver shall extend to any
subsequent or other default or Event of Default with respect to the Common
Securities or impair any right consequent thereon.
(e) A waiver of an Event of Default under the Indenture by
the Property Trustee at the direction of the Holders of the Preferred
Securities, constitutes a waiver of the corresponding Event of Default under
this Trust Agreement. The foregoing provisions of this Section 8.2(e) shall be
in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this
Trust Agreement and the Preferred Securities, as permitted by the Trust
Indenture Act.
SECTION 8.3. Certain Rights of Property Trustee. Subject to
the provisions of Section 8.1:
(a) the Property Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any resolution, Opinion of
Counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) if no Event of Default has occurred and is continuing
and, (i) in performing its duties under this Trust Agreement the Property
Trustee is required to decide between alternative courses of action or (ii) in
construing any of the provisions in this Trust Agreement the Property Trustee
finds the same ambiguous or inconsistent with any other provisions contained
herein or (iii) the Property Trustee is unsure of the application of any
provision of this Trust Agreement, then, except as to any matter as to which
the Holders of Preferred Securities are entitled to vote under the terms of
this Trust Agreement, the Property Trustee shall deliver a notice to the
Sponsor requesting written instructions of the Sponsor as to the course of
action to be taken and the Property Trustee shall take such action, or refrain
from taking such action, as the Property Trustee shall be instructed in writing
to take, or to refrain from taking, by the Sponsor; provided, however, that
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if the Property Trustee does not receive such instructions of the Sponsor
within ten Business Days after it has delivered such notice, or such reasonably
shorter period of time set forth in such notice (which to the extent
practicable shall not be less than two Business Days), it may, but shall be
under no duty to, take or refrain from taking such action not inconsistent with
this Trust Agreement as it shall deem advisable and in the best interests of
the Securityholders, in which event the Property Trustee shall have no
liability except for its own bad faith, negligence or willful misconduct;
(c) any direction or act of the Sponsor or the Regular
Trustees contemplated by this Trust Agreement shall be sufficiently evidenced
by an Officers' Certificate;
(d) whenever in the administration of this Trust Agreement,
the Property Trustee shall deem it desirable that a matter be established
before undertaking, suffering or omitting any action hereunder, the Property
Trustee (unless other evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and rely upon an Officers'
Certificate and an Opinion of Counsel which, upon receipt of such request,
shall be promptly delivered by the Sponsor or the Regular Trustees;
(e) the Property Trustee shall have no duty to accomplish any
recording, filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel (which
counsel may be counsel to the Sponsor or any of its Affiliates, and may include
any of its employees) and the advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon and in accordance with such advice; and the Property Trustee shall have
the right at any time to seek instructions concerning the administration of
this Trust Agreement from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust Agreement at
the request or direction of any
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of the Securityholders pursuant to this Trust Agreement, unless such
Securityholders shall have offered to the Property Trustee reasonable security
or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolutions, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond, debenture, note or other evidence of indebtedness or other
paper or document, unless requested in writing to do so by Holders of record of
25% or more of the Preferred Securities (based upon their Liquidation Amount),
but the Property Trustee may make such further inquiry or investigation into
such facts or matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through its agents or attorneys or an Affiliate, provided that the Property
Trustee shall be responsible for its own negligence or recklessness with
respect to selection of any agent or attorney appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement
the Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action hereunder,
the Property Trustee (i) may request instructions from the Holders of the Trust
Securities, which instructions may only be given by the Holders of the same
proportion in Liquidation Amount of the Trust Securities as would be entitled
to direct the Property Trustee under the terms of the Trust Securities in
respect of such remedy, right or action, (ii) may refrain from enforcing such
remedy or right or taking such other action until such instructions are
received, and (iii) shall be protected in acting in accordance with such
instructions; and
(k) except as otherwise expressly provided by this Trust
Agreement, the Property Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this Trust Agreement.
No provision of this Trust Agreement shall be deemed to impose
any duty or obligation on the Property
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Trustee to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it, in any jurisdiction in which it shall be
illegal, or in which the Property Trustee shall be unqualified or incompetent
in accordance with applicable law, to perform any such act or acts, or to
exercise any such right, power, duty or obligation. No permissive power or
authority available to the Property Trustee shall be construed to be a duty.
SECTION 8.4. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Trust Securities
Certificates shall not be taken as the statements of the Trustees, and the
Trustees do not assume any responsibility for their correctness. The Trustees
shall not be accountable for the use or application by the Sponsor of the
proceeds of the Debentures.
SECTION 8.5. May Hold Securities. Except as provided in the
definition of the term "Outstanding" in Article 1, any Trustee or any other
agent of any Trustee or the Trust, in its individual or any other capacity, may
become the owner or pledgee of Trust Securities and, subject to Section 8.8 and
8.12, may otherwise deal with the Trust with the same rights it would have if
it were not a Trustee or such other agent.
SECTION 8.6. Compensation; Indemnity; Fees.
The Sponsor agrees:
(a) to pay the Trustees from time to time such compensation
as the parties shall agree in writing from time to time for all services
rendered by them hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses, disbursements
and advances incurred or made by the Trustees in accordance with any provision
of this Trust Agreement (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
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(c) to the fullest extent permitted by applicable law, to
indemnify and hold harmless (i) each Trustee, (ii) any Affiliate of any
Trustee, (iii) any officer, director, shareholder, employee, representative or
agent of any Trustee, and (iv) any employee or agent of the Trust or its
Affiliates (referred to herein as an "Indemnified Person") from and against any
loss, damage, liability, tax, penalty, expense or claim of any kind or nature
whatsoever incurred by such Indemnified Person by reason of the creation,
operation or termination of the Trust or any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in
a manner such Indemnified Person reasonably believed to be within the scope of
authority conferred on such Indemnified Person by this Trust Agreement, except
that no Indemnified Person shall be entitled to be indemnified in respect of
any loss, damage or claim incurred by such Indemnified Person by reason of
negligence or willful misconduct with respect to such acts or omissions; and
(d) no Trustee may claim any lien or charge on any Trust
Property as a result of any amount due pursuant to this Section 8.6.
SECTION 8.7. Property Trustee Required; Eligibility of
Trustees. (a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that
is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Property Trustee with
respect to the Trust Securities shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
(b) There shall at all times be one or more Regular Trustees
hereunder with respect to the Trust Securities. Each Regular Trustee shall be
either a natural person who is at least 21 years of age or a legal entity that
shall
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act through one or more persons authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee with
respect to the Trust Securities. The Delaware Trustee shall either be (i) a
natural person who is at least 21 years of age and a resident of the State of
Delaware or (ii) a legal entity with its principal place of business in the
State of Delaware and that otherwise meets the requirements of applicable
Delaware law that shall act through one or more persons authorized to bind such
entity.
SECTION 8.8. Conflicting Interests. If the Property Trustee
has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Property Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Trust Agreement.
SECTION 8.9. Resignation and Removal; Appointment of
Successor. (a) Subject to Sections 8.9(b) and 8.9(c), Trustees (the "Relevant
Trustee") may be appointed or removed without cause at any time:
(i) until the issuance of any Trust Securities,
by written instrument executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote
of the Holders of a majority in liquidation amount of the Common
Securities voting as a class.
(b) The Trustee that acts as Property Trustee shall not be
removed in accordance with Section 8.9(a) until a successor possessing the
qualifications to act as a Property Trustee under Section 8.7 (a "Successor
Property Trustee") has been appointed and has accepted such appointment by
instrument executed by such Successor Property Trustee and delivered to the
Trust, the Sponsor and the removed Property Trustee.
(c) The Trustee that acts as Delaware Trustee shall not be
removed in accordance with Section 8.9(a) until a successor possessing the
qualifications to act as Delaware Trustee under Section 8.7 (a "Successor
Delaware Trustee") has been appointed and has accepted such appointment by
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instrument executed by such Successor Delaware Trustee and delivered to the
Trust, the Sponsor and the removed Delaware Trustee.
(d) A Trustee appointed to office shall hold office until
his, her or its successor shall have been appointed or until his, her or its
death, removal, resignation, dissolution or liquidation. Any Trustee may
resign from office (without need for prior or subsequent accounting) by an
instrument in writing signed by the Trustee and delivered to the Sponsor and
the Trust, which resignation shall take effect upon such delivery or upon such
later date as is specified therein; provided, however, that:
(i) No such resignation of the Trustee that acts
as the Property Trustee shall be effective:
(1) until a Successor Property Trustee
has been appointed and has accepted such appointment
by instrument executed by such Successor Property
Trustee and delivered to the Trust, the Sponsor and
the resigning Property Trustee; or
(2) until the assets of the Trust have
been completely liquidated and the proceeds thereof
distributed to the holders of the Securities; and
(ii) no such resignation of the Trustee that acts
as the Delaware Trustee shall be effective until a Successor Delaware
Trustee has been appointed and has accepted such appointment by
instrument executed by such Successor Delaware Trustee and delivered
to the Trust, the Sponsor and the resigning Delaware Trustee.
(e) The Holders of the Common Securities shall use their best
efforts to promptly appoint a Successor Property Trustee or Successor Delaware
Trustee, as the case may be, if the Property Trustee or the Delaware Trustee
delivers an instrument of resignation in accordance with Section 8.9(d).
(f) If no Successor Property Trustee or Successor Delaware
Trustee shall have been appointed and accepted appointment as provided in this
Section 8.9 within 60 days after delivery pursuant to this Section 8.9 of an
instrument
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of resignation or removal, the Property Trustee or Delaware Trustee resigning
or being removed, as applicable, may petition any court of competent
jurisdiction for appointment of a Successor Property Trustee or Successor
Delaware Trustee. Such court may thereupon, after prescribing such notice, if
any, as it may deem proper and prescribe, appoint a Successor Property Trustee
or Successor Delaware Trustee, as the case may be.
(g) No Property Trustee or Delaware Trustee shall be liable
for the acts or omissions to act of any Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
(h) The Property Trustee shall give notice of each
resignation and each removal of a Trustee and each appointment of a successor
Trustee to all Securityholders in the manner provided in Section 10.8 and shall
give notice to the Sponsor. Each notice shall include the name of the
successor Relevant Trustee and the address of its Corporate Trust Office if it
is the Property Trustee.
(i) Notwithstanding the foregoing or any other provision of
this Trust Agreement, in the event any Regular Trustee or a Delaware Trustee
who is a natural person dies or becomes, in the opinion of the Sponsor,
incompetent or incapacitated, the vacancy created by such death, incompetence
or incapacity may be filled by (a) the unanimous act of the remaining Regular
Trustees if there are at least two of them or (b) otherwise by the Sponsor
(with the successor in each case being a Person who satisfies the eligibility
requirement for Regular Trustees or the Delaware Trustee, as the case may be,
set forth in Section 8.7).
(j) The indemnity provided to a Trustee under Section 8.6
shall survive any Trustee's resignation or removal.
SECTION 8.10. Acceptance of Appointment by Successor. In
case of the appointment hereunder of a successor Trustee, such successor
Trustee so appointed shall execute, acknowledge and deliver to the Trust and to
the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee; but, on the request of the
Sponsor or the successor Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested
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with all the rights, powers, trusts and duties of the retiring Trustee; but, on
the request of the Sponsor or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and if the Property Trustee is the resigning Trustee shall
duly assign, transfer and deliver to the successor Trustee all property and
money held by such retiring Property Trustee hereunder.
In case of the appointment hereunder of a successor Relevant
Trustee, the retiring Relevant Trustee and each successor Relevant Trustee
shall execute and deliver an amendment hereto wherein each successor Relevant
Trustee shall accept such appointment and which (a) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and
to vest in, each successor Relevant Trustee all the rights, powers, trusts and
duties of the retiring Relevant Trustee and (b) shall add to or change any of
the provisions of this Trust Agreement as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Relevant
Trustee, it being understood that nothing herein or in such amendment shall
constitute such Relevant Trustees co-trustees and upon the execution and
delivery of such amendment the resignation or removal of the retiring Relevant
Trustee shall become effective to the extent provided therein and each such
successor Relevant Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Relevant Trustee; but, on request of the Trust or any successor Relevant
Trustee, such retiring Relevant Trustee shall duly assign, transfer and deliver
to such successor Relevant Trustee all Trust Property, all proceeds thereof and
money held by such retiring Relevant Trustee hereunder.
Upon request of any such successor Relevant Trustee, the Trust
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Relevant Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the case may
be.
No successor Relevant Trustee shall accept its appointment
unless at the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article.
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SECTION 8.11. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Property Trustee, the Delaware
Trustee or any Regular Trustee that is not a natural person may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Relevant Trustee
shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
SECTION 8.12. Preferential Collection of Claims Against
Sponsor or Trust. If and when the Property Trustee shall be or become a
creditor of the Sponsor or the Trust (or any other obligor upon the Debentures
or the Trust Securities), the Property Trustee shall be subject to and shall
take all actions necessary in order to comply with the provisions of the Trust
Indenture Act regarding the collection of claims against the Sponsor or Trust
(or any such other obligor).
SECTION 8.13. Reports by Property Trustee. (a) To the
extent required by the Trust Indenture Act, within 60 days after December 31 of
each year commencing with __________, 1997 the Property Trustee shall transmit
to all Securityholders in accordance with Section 10.8 and to the Sponsor, a
brief report dated as of such December 31 with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if
to the best of its knowledge it has continued to be eligible under
said Section, a written statement to such effect;
(ii) a statement that the Property Trustee has complied with
all of its obligations under this Trust Agreement during the
twelve-month period (or, in the case of the initial report, the period
since the Closing Date) ending with such December 31 or, if the
Property Trustee has not complied in any material respects with such
obligations, a description of such noncompliance; and
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(iii) any change in the property and funds in its possession
as Property Trustee since the date of its last report and any action
taken by the Property Trustee in the performance of its duties
hereunder which it has not previously reported and which in its
opinion materially affects the Trust Securities.
(b) In addition, the Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and its actions
under this Trust Agreement as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant thereto.
(c) A copy of such report shall, at the time of such
transmissions to Holders, be filed by the Property Trustee with each national
securities exchange or self-regulatory organization upon which the Trust
Securities are listed, with the Commission and with the Sponsor.
SECTION 8.14. Reports to the Property Trustee. The Sponsor
and the Regular Trustees on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information as required by Section 314 of
the Trust Indenture Act (if any) and the compliance certificate required by
Section 314(a) of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act.
SECTION 8.15. Evidence of Compliance with Conditions
Precedent. Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement that relate
to any of the matters set forth in Section 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
SECTION 8.16. Number of Trustees. (a) The number of Trustees
shall be four, provided that the Holder of all of the Common Securities by
written instrument may increase or decrease the number of Regular Trustees.
The Property Trustee and the Delaware Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the
number of Regular Trustees is not reduced
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pursuant to Section 8.16(a), or if the number of Trustees is increased pursuant
to Section 8.16(a), a vacancy shall occur.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Regular Trustees shall
occur, until such vacancy is filled by the appointment of a Regular Trustee in
accordance with Section 8.9, the Regular Trustees in office, regardless of
their number (and notwithstanding any other provision of this Agreement), shall
have all the powers granted to the Regular Trustees and shall discharge all the
duties imposed upon the Regular Trustees by this Trust Agreement.
SECTION 8.17. Delegation of Power. (a) Any Regular Trustee
may, by power of attorney consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power for the purpose of executing
any documents contemplated in Section 2.7(a), including any registration
statement or amendment thereof filed with the Commission, or making any other
governmental filing.
(b) The Regular Trustees shall have power to delegate from
time to time to such of their number or to the Sponsor the doing of such things
and the execution of such instruments either in the name of the Trust or the
names of the Regular Trustees or otherwise as the Regular Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
ARTICLE 9
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Termination upon Expiration Date. Unless
earlier terminated, the Trust shall automatically terminate on _________, ____
(the "Expiration Date"), following the distribution of the Trust Property in
accordance with Section 9.4.
SECTION 9.2. Early Termination. The first to occur of any of
the following events is an "Early Termination Event":
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(a) the occurrence of a Bankruptcy Event in respect of, or
the dissolution or liquidation of, the Sponsor;
(b) the occurrence of a Special Event except in the case of a
Tax Event following which the Sponsor has elected (i) to pay any Additional
Sums (in accordance with Section 4.4) such that the net amount received by
Holders of Preferred Securities in respect of Distributions are not reduced as
a result of such Tax Event and the Sponsor has not revoked any such election or
failed to make such payments or (ii) to redeem all or some of the Debentures
pursuant to Section 4.4(a);
(c) the redemption, conversion or exchange of all of the
Trust Securities;
(d) an order for dissolution of the Trust shall have been
entered by a court of competent jurisdiction and
(e) receipt by the Property Trustee of written notice from
the Sponsor at any time (which direction is optional and wholly within the
discretion of the Sponsor) of its intention to terminate the Trust and
distribute the Debentures in exchange for the Preferred Securities.
SECTION 9.3. Termination. The respective obligations and
responsibilities of the Trustees and the Trust created and continued hereby
shall terminate upon the latest to occur of the following: (a) the
distribution by the Property Trustee to Securityholders upon the liquidation of
the Trust pursuant to Section 9.4, or upon the redemption of all of the Trust
Securities pursuant to Section 4.2, of all amounts required to be distributed
hereunder upon the final payment of the Trust Securities; (b) the payment of
all expenses owed by the Trust; and (c) the discharge of all administrative
duties of the Regular Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
SECTION 9.4. Liquidation. (a) If an Early Termination Event
specified in clause (a), (b), (d) or (e) of Section 9.2 occurs or upon the
Expiration Date, the Trust shall be liquidated by the Trustees as expeditiously
as the Trustees determine to be possible by distributing, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, to each
Securityholder an aggregate principal amount of Debentures equal to the
aggregate
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Liquidation Amount of Trust Securities held by such Holder, subject to Section
9.4(d). Notice of liquidation shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not later than 30 nor more than 60
days prior to the Liquidation Date to each Holder of Trust Securities at such
Holder's address as it appears in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that, from and after the Liquidation Date, the
Trust Securities will no longer be deemed to be Outstanding and any
Trust Securities Certificates not surrendered for exchange will be
deemed to represent an aggregate principal amount of Debentures equal
to the aggregate Liquidation Amount of Preferred Securities held by
such Holder; and
(iii) provide such information with respect to the mechanics
by which Holders may exchange Trust Securities Certificates for
Debentures, or, if Section 9.4(d) applies, receive a Liquidation
Distribution, as the Regular Trustees or the Property Trustee shall
deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order
to effect the liquidation of the Trust and distribution of the Debentures to
Securityholders, the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the appointment of
a separate exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Debentures in exchange for the
Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) the Clearing Agency or its nominee, as the record holder of
such Trust Securities, will receive a registered global certificate or
certificates representing the Debentures to be delivered upon such distribution
and (iii) any Trust Securities Certificates not held by the Clearing Agency
will be deemed to represent an aggregate principal amount of Debentures equal
to the aggregate Liquidation Amount of Preferred Securities held by such
Holders, and bearing accrued and
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unpaid interest in an amount equal to the accrued and unpaid Distributions on
such Trust Securities until such certificates are presented to the Property
Trustee for transfer or reissuance.
(d) In the event that, notwithstanding the other provisions
of this Section 9.4, whether because of an order for dissolution entered by a
court of competent jurisdiction or otherwise, distribution of the Debentures in
the manner provided herein is determined by the Property Trustee not to be
practicable, the Trust Property shall be liquidated, and the Trust shall be
dissolved, wound-up or terminated, by the Property Trustee in such manner as
the Property Trustee determines. In such event, on the date of the
dissolution, winding up or other termination of the Trust, Securityholders will
be entitled to receive out of the assets of the Trust available for
distribution to Securityho- lders, after satisfaction of liabilities to
creditors of the Trust as provided by applicable law, an amount equal to the
Liquidation Amount per Trust Security plus accrued and unpaid Distributions
thereon to the date of payment (such amount being the "Liquidation
Distribution"). If, upon any such dissolution, winding-up or termination, the
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts
payable by the Trust on the Trust Securities shall be paid on a pro rata basis
(based upon Liquidation Amounts). The Holder of the Common Securities will be
entitled to receive Liquidation Distributions upon any such dissolution,
winding-up or termination pro rata (determined as aforesaid) with Holders of
Preferred Securities, except that, if a Debenture Event of Default has occurred
and is continuing, the Preferred Securities shall have a priority over the
Common Securities.
SECTION 9.5. Mergers, Consolidations, Amalgamations or
Replacements of the Trust. The Trust may not merge with or into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any corporation or other body, except
pursuant to this Section 9.5. At the request of the Sponsor, with the consent
of the Regular Trustees and without the consent of the Property Trustee, the
Delaware Trustee or the Holders of the Preferred Securities, the Trust may
merge with or into, consolidate, amalgamate, be replaced by or convey, transfer
or lease its properties
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and assets substantially as an entirety to a trust organized as such under the
laws of any State; provided, that (i) such successor entity either (a)
expressly assumes all of the obligations of the Trust with respect to the
Preferred Securities or (b) substitutes for the Preferred Securities other
securities having substantially the same terms as the Preferred Securities (the
"Successor Securities") so long as the Successor Securities rank the same as
the Preferred Securities rank in priority with respect to Distributions and
payments upon liquidation, redemption and otherwise, (ii) the Sponsor expressly
appoints a trustee of such successor entity possessing the same powers and
duties as the Property Trustee as the holder of the Debentures, (iii) the
Successor Securities are listed, or any Successor Securities will be listed
upon notification of issuance, on any national securities exchange or other
organization on which the Preferred Securities are then listed, if any, (iv)
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not cause the Preferred Securities (including any Successor
Securities) to be downgraded by any nationally recognized statistical rating
organization, (v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the Holders of the Preferred Securities (including any
Successor Securities) in any material respect, (vi) such successor entity has a
purpose identical to that of the Trust, (vii) prior to such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease the
Sponsor has received an Opinion of Counsel to the effect that (a) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does
not adversely affect the rights, preferences and privileges of the Holders of
the Preferred Securities (including any Successor Securities) in any material
respect (other than with respect to any dilution of the Holder's interest in
the new entity), (b) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease neither the Trust nor such successor
entity will be required to register as an investment company under the 1940
Act, and (c) following such merger, consolidation, amalgamation or replacement,
the Trust or such successor entity will be treated as a grantor trust for
United States Federal income tax purposes and (viii) the Sponsor or any
permitted successor or assignee owns all of the Common Securities of such
successor entity and guarantees the obligations of such successor entity under
the Successor Securities at least to the extent provided by the
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Guarantee. Notwithstanding the foregoing, the Trust shall not, except with the
consent of Holders of 100% in aggregate Liquidation Amount of the Preferred
Securities, consolidate, amalgamate, merge with or into, be replaced by or
convey, transfer or lease its properties and assets substantially as an
entirety to any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause
the Trust or the successor entity to be classified as other than a grantor
trust for United States Federal income tax purposes.
ARTICLE 10
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Securityholders. The
death or incapacity of any person having an interest, beneficial or otherwise,
in Trust Securities shall not operate to terminate this Trust Agreement, nor
entitle the legal representatives or heirs of such person or any Securityholder
for such person to claim an accounting, take any action or bring any proceeding
in any court for a partition or winding-up of the arrangements contemplated
hereby, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
SECTION 10.2. Amendment. (a) This Trust Agreement may be
amended from time to time by the Trustees and the Sponsor, without the consent
of any Securityholders, (i) to cure any ambiguity, correct or supplement any
provision herein which may be inconsistent with any other provision herein, or
to make any other provisions with respect to matters or questions arising under
this Trust Agreement, which shall not be inconsistent with the other provisions
of this Trust Agreement, (ii) to modify, eliminate or add to any provisions of
this Trust Agreement to such extent as shall be necessary to ensure that the
Trust will be classified for United States Federal income tax purposes as a
grantor trust at all times that any Trust Securities are Outstanding or to
ensure that the Trust will not be required to register as an "investment
company" under the 1940 Act, or be classified as other than a grantor trust for
United States Federal income tax purposes, or (iii) to comply with the
requirements of the Commission in order to maintain the qualification of this
Trust Agreement under the Trust Inden-
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ture Act; provided, however, that in the case of clause (i), such action shall
not adversely affect in any material respect the interests of any
Securityholder, and any amendments of this Trust Agreement shall become
effective when notice thereof is given to the Securityholders.
(b) Except as provided in Section 10.2(c) hereof, any
provision of this Trust Agreement may be amended by the Trustees and the
Sponsor with (i) the consent of Holders representing not less than a majority
(based upon Liquidation Amounts) of the Trust Securities then Outstanding,
acting as a single class, and (ii) receipt by the Trustees of an Opinion of
Counsel to the effect that such amendment or the exercise of any power granted
to the Trustees in accordance with such amendment will not affect the Trustee's
status as a grantor trust for United States Federal income tax purposes or the
Trust's exemption from the status of an "investment company" under the 1940
Act, provided, however, if any amendment or proposal that would adversely
affect the powers, preferences or special rights of the Trust Securities,
whether by way of amendment or otherwise, would adversely affect only the
Preferred Securities or only the Common Securities, then only the affected
class will be entitled to vote on such amendment or proposal and such amendment
or proposal shall not be effective except with the approval of a majority in
liquidation amount of such class of Trust Securities.
(c) In addition to and notwithstanding any other provision in
this Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.3 or 6.6 hereof), this
Trust Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount
of any Distribution required to be made in respect of the Trust Securities as
of a specified date or (ii) restrict the right of a Securityholder to institute
suit for the enforcement of any such payment on or after such date;
notwithstanding any other provision herein, without the unanimous consent of
the Securityholders (such consent being obtained in accordance with Section 6.3
or 6.6 hereof), this paragraph (c) of this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any amendment to this
Trust Agreement which would cause the
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Trust to fail or cease to qualify for the exemption from the status of an
"investment company" under the 1940 Act or be classified as other than a
grantor trust for United States Federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Sponsor, this Trust Agreement may not be
amended in a manner which imposes any additional obligation on the Sponsor.
(f) In the event that any amendment to this Trust Agreement
is made, the Regular Trustees shall promptly provide to the Sponsor a copy of
such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee
shall be required to enter into any amendment to this Trust Agreement which
affects its own rights, duties or immunities under this Trust Agreement. The
Property Trustee shall be entitled to receive an Opinion of Counsel and an
Officers' Certificate stating that any amendment to this Trust Agreement is in
compliance with this Trust Agreement.
SECTION 10.3. Separability. In case any provision in this
Trust Agreement or in the Trust Securities Certificates 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 10.4. GOVERNING LAW. THIS TRUST AGREEMENT AND THE
RIGHTS AND OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND TRUSTEES
WITH RESPECT TO THIS TRUST AGREEMENT IN THE TRUST SECURITIES SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT
REGARD TO ITS CONFLICT OF LAWS PRINCIPLES AND EXCLUDING SECTIONS 3540 AND 3561
OF TITLE 12 THEREOF.
SECTION 10.5. Payments Due on Non-Business Day. If the date
fixed for any payment on any Trust Security shall be a day which is not a
Business Day, then such payment need not be made on such date but may be made
on the next succeeding day which is a Business Day except as otherwise provided
in Section 4.1(a) and Section 4.2(d)), with the same force and effect as though
made on the date fixed for such payment, and no interest shall accrue thereon
for the period after such date.
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SECTION 10.6. Successors. This Trust Agreement shall be
binding upon and shall inure to the benefit of any successor to the Sponsor,
the Trust or the Relevant Trustee, including any successor by operation of law.
Except in connection with a consolidation, merger or sale involving the Sponsor
that is permitted under Article 9 of the Indenture and pursuant to which the
assignee agrees in writing to perform the Sponsor's obligations hereunder, the
Sponsor shall not assign its obligations hereunder.
SECTION 10.7. Headings. The Article and Section headings are
for convenience only and shall not affect the construction of this Trust
Agreement.
SECTION 10.8. Reports, Notices and Demands. Any report,
notice, demand or other communications which by any provision of this Trust
Agreement is required or permitted to be given or served to or upon any
Securityholder or the Sponsor may be given or served in writing by deposit
thereof, first-class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a Holder
of Preferred Securities, to such Holder as such Holder's name and address may
appear on the Securities Register; and (b) in the case of the Holder of the
Common Securities.
Any notice to Preferred Securityholders shall also be given to
such Owners as have, within two years preceding the giving of such notice,
filed their names and addresses with the Property Trustee for that purpose.
Such notice, demand or other communication to or upon a Securityholder shall be
deemed to have been sufficiently given, or made, for all purposes, upon hand
delivery, mailing or transmission.
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or
served to or upon the Trust, the Property Trustee, the Delaware Trustee or the
Regular Trustees shall be given in writing addressed (until another address is
published by the Trust) as follows: (a) with respect to the Property Trustee,
to The Bank of New York, 101 Barclay Street, Floor 21W, New York, New York
10286, Attention: ______________, (b) with respect to the Delaware Trustee, to
The Bank of New York (Delaware), White Clay Center, Route 273, Newark, Delaware
19711, with a copy of any such notice to the Property Trustee at its address
above, and (c) with
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respect to the Regular Trustees, to them at the address for notices to the
Sponsor, marked "Attention: Secretary". Such notice, demand or other
communication to or upon the Trust or the Property Trustee shall be deemed to
have been sufficiently given or made only upon actual receipt of the writing by
the Trust or the Property Trustee.
SECTION 10.9. Agreement Not to Petition. Each of the
Trustees and the Sponsor agrees for the benefit of the Securityholders that,
until at least one year and one day after the Trust has been terminated in
accordance with Article 9, it shall not file, or join in the filing of, a
petition against the Trust under any bankruptcy, insolvency, reorganization or
other similar law (including, without limitation, the United States Bankruptcy
Code) (collectively, "Bankruptcy Laws") or otherwise join in the commencement
of any proceeding against the Trust under any Bankruptcy Law. In the event the
Sponsor takes action in violation of this Section 10.9, the Property Trustee
agrees, for the benefit of Securityholders, that, at the expense of the
Sponsor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Sponsor against the Trust
or the commencement of such action and raise the defense that the Sponsor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the
Trust may assert. The provisions of this Section 10.9 shall survive the
termination of this Trust Agreement.
SECTION 10.10. Trust Indenture Act; Conflict with Trust
Indenture Act. (a) This Trust Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this Trust Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is
the trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts
with another provision hereof which is required to be included in this Trust
Agreement by any of the provisions of the Trust Indenture Act, such required
provision shall control. If any provision of this Trust Agreement modifies or
excludes any provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall
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be deemed to apply to this Trust Agreement as so modified or to be excluded, as
the case may be.
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Trust Securities as equity
securities representing undivided beneficial interests in the assets of the
Trust.
SECTION 10.11. ACCEPTANCE OF TERMS OF TRUST AGREEMENT,
GUARANTEE AND INDENTURE. THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY
INTEREST THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR BENEFICIAL OWNER,
WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE
UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A
BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF
THIS TRUST AGREEMENT AND AGREEMENT TO SUBORDINATION PROVISIONS AND OTHER TERMS
OF THE GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE
TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF
THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS THE TRUST AND
SUCH SECURITYHOLDER AND SUCH OTHERS.
SECTION 10.12. Counterparts. This Trust Agreement may
contain more than one counterpart of the signature page and this Trust
Agreement may be executed by the affixing of the signature of each of the
Trustees to one of such counterpart signature pages. All of such counterpart
signature pages shall be read as though one, and they shall have the same force
and effect as though all of the signers had signed a single signature page.
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91
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
CMS ENERGY CORPORATION,
as Sponsor
By:
------------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Property Trustee
By:
------------------------------------------
Name:
Title:
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:
------------------------------------------
Name:
Title:
------------------------------------------
Alan M. Wright,
as Regular Trustee
------------------------------------------
Thomas A. McNish,
as Regular Trustee
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92
EXHIBIT A
CERTIFICATE OF TRUST
OF
CMS ENERGY TRUST I
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93
EXHIBIT B
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
CMS Energy Trust I
Common Securities
(liquidation amount $50 per Common Security)
CMS Energy Trust I, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that CMS
Energy Corporation (the "Holder") is the registered owner of ______________
common securities of the Trust representing undivided beneficial interests in
the assets of the Trust (the "Common Securities"). In accordance with Section
5.10 of the Trust Agreement (as defined below) the Common Securities are not
transferable and any attempted transfer hereof shall be void. The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth in, and this certificate and
the Common Securities represented hereby are issued and shall in all respects
be subject to the terms and provisions of, the Amended and Restated Trust
Agreement of the Trust dated as of _________, 1997, as the same may be amended
from time to time (the "Trust Agreement") including the designation of the
terms of the Common Securities as set forth therein. The Holder is entitled to
the benefits of the Common Securities Guarantee Agreement entered into by CMS
Energy Corporation, a Delaware corporation, and The Bank of New York, as
Guarantee Trustee, dated as of _________, 1997 (the "Guarantee"), to the extent
provided therein. The Trust will furnish a copy of the Trust Agreement and the
Guarantee to the Holder without charge upon written request to the Trust at its
principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
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94
IN WITNESS WHEREOF, one of the Regular Trustees of the Trust has executed this
certificate this _____ day of June 1997.
CMS ENERGY TRUST I
By:_________________________________
Name:
As Regular Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Common Securities referred to in the
within-mentioned Trust Agreement.
Dated:
THE BANK OF NEW YORK,
as Property Trustee
By:_________________________________
Authorized Signatory
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95
EXHIBIT C
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE,
INSERT - This Preferred Security is a Book-Entry Preferred Securities
Certificate within the meaning of the Trust Agreement hereinafter referred to
and is registered in the name of The Depository Trust Company ("DTC") or a
nominee of DTC. This Preferred Security is exchangeable for Preferred
Securities registered in the name of a person other than DTC or its nominee
only in the limited circumstances described in the Trust Agreement and no
transfer of this Preferred Security (other than a transfer of this Preferred
Security as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or
another nominee of DTC) may be registered except in limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of DTC (55 Water Street, New York), to CMS Energy Trust I or its
agent for registration of transfer, exchange or payment, and any Preferred
Security issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of DTC and any payment hereon 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 A PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede
& Co., has an interest herein.]
Certificate Number Number of Preferred Securities
--- CUSIP NO.
Certificate Evidencing Preferred Securities
of
CMS Energy Trust I
% Convertible Preferred Securities
(liquidation amount $50 per Preferred Security)
CMS Energy Trust I, a statutory business trust formed under the
laws of the State of Delaware (the
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96
"Trust"), hereby certifies that __________________ (the "Holder") is the
registered owner of _______ preferred securities of the Trust representing an
undivided beneficial interest in the assets of the Trust and designated the CMS
Energy Trust I % Convertible Preferred Securities (liquidation amount $50 per
Preferred Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer as provided in Section 5.4 of the Trust Agreement (as
defined below). The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred Securities are set
forth in, and this certificate and the Preferred Securities represented hereby
are issued and shall in all respects be subject to the terms and provisions of,
the Amended and Restated Trust Agreement of the Trust dated as of _________,
1997 as the same may be amended from time to time (the "Trust Agreement")
including the designation of the terms of Preferred Securities as set forth
therein. The Holder is entitled to the benefits of the Guarantee Agreement
entered into by CMS Energy Corporation, a Delaware corporation, and The Bank of
New York, as Guarantee Trustee, dated as of _________, 1997 (the "Guarantee"),
to the extent provided therein. The Trust will furnish a copy of the Trust
Agreement and the Guarantee to the Holder without charge upon written request
to the Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the
Trust Agreement and is entitled to the benefits thereunder.
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97
IN WITNESS WHEREOF, one of the Regular Trustees of the Trust
has executed this certificate this _____day of June 1997.
CMS ENERGY TRUST I
By:_________________________________
Name:
A Regular Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
within-mentioned Trust Agreement.
Dated:
THE BANK OF NEW YORK,
as Property Trustee
By:_________________________________
Authorized Signatory
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98
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
- --------------------------------------------------------
- --------------------------------------------------------
- --------------------------------------------------------
(Insert assignee's social security or tax identification
number)
- --------------------------------------------------------
- --------------------------------------------------------
- --------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------
- --------------------------------------------------------
- --------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:
---------------------
Signature:
-----------------------
(Sign exactly as our name appears on the other side of this Preferred Security
Certificate)
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99
EXHIBIT D
NOTICE OF CONVERSION
To: The Bank of New York
as Property Trustee of
CMS Energy Trust I
The undersigned owner of these Preferred Securities hereby
irrevocably exercises the option to convert these Preferred Securities, or the
portion below designated, into Common Stock, $.01 par value, of CMS ENERGY
CORPORATION (the "CMS Energy Common Stock") in accordance with the terms of the
Amended and Restated Trust Agreement (the "Trust Agreement"), dated as of
_________, 1997, by Alan M. Wright and Thomas A. McNish, as Regular Trustees,
The Bank of New York (Delaware), as Delaware Trustee, The Bank of New York, as
Property Trustee, CMS Energy Corporation, as Depositor, and by the Holders,
from time to time, of individual beneficial interests in the Trust to be issued
pursuant to the Trust Agreement. Pursuant to the aforementioned exercise of
the option to convert these Preferred Securities, the undersigned hereby
directs the Conversion Agent (as that term is defined in the Trust Agreement)
to (i) exchange such Preferred Securities for a portion of the Debentures (as
that term is defined in the Trust Agreement) held by the Trust (at the rate of
exchange specified in the terms of the Preferred Securities set forth in the
Trust Agreement) and (ii) immediately convert such Debentures on behalf of the
undersigned, into CMS Energy Common Stock (at the conversion rate specified in
the terms of the Preferred Securities set forth in the Trust Agreement).
The undersigned does also hereby direct the Conversion Agent
that the shares issuable and deliverable upon conversion, together with any
check in payment for fractional shares, be issued in the name of and delivered
to the undersigned, unless a different name has been indicated in the
assignment below. If shares are to be issued in the name of a person other than
the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto.
Any holder, upon the exercise of its conversion rights in
accordance with the terms of the Trust Agreement
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100
and the Preferred Securities, agrees to be bound by the terms of the
Registration Rights Agreement relating to the
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101
CMS Energy Common Stock issuable upon conversion of the Preferred Securities.
Date: ____________, ____
in whole __ in part __
Number of Preferred
Securities to be converted:
___________________
If a name or names other than
the undersigned, please
indicate in the spaces below
the name or names in which the
shares of CMS Energy Common
Stock are to be issued, along
with the address or addresses
of such person or persons
____________________________________
____________________________________
____________________________________
____________________________________
____________________________________
____________________________________
____________________________________
Signature (for conversion only)
Please Print or Typewrite
Name and Address, Including
Zip Code, and Social Security
or Other Identifying Number
____________________________________
____________________________________
____________________________________
Signature Guarantee:* ______________
__________________________________
* (Signature must be guaranteed by an institution which is a member of
the following recognized Signature Guaranty Programs: (i) The
Securities Transfer Agent Medallion Program (STAMP); (ii) The New York
Stock Exchange Medallion Program (MSP); (iii) The Stock Exchange
Medallion Program (SEMP); or (iv) in such other guarantee programs
acceptable to the Trustee.)
D-3