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EXHIBIT 4(e)
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AMENDED AND RESTATED
PASS THROUGH TRUST AGREEMENT
Dated as of ___________ __, 199_
among
CMS ENERGY CORPORATION
and
WILMINGTON TRUST COMPANY
as Trustee
and
CERTIFICATE HOLDERS
CMS Energy X-TRAS Pass Through Trust I
____% Series I Pass Through Certificates
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Reconciliation and tie between CMS Energy X-TRAS Pass Through Trust Agreement,
dated as of ___________ __, 1998, and the Trust Indenture Act of 1939. This
reconciliation does not constitute part of the Pass Through Trust Agreement.
Trust Indenture Act Pass Through Trust
of 1939 Section Agreement Section
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310(a)(1) 7.08
(a)(2) 7.08
312(a) 3.05; 8.01; 8.02
313(a) 8.03
314(a) 8.04(a) - (c)
(a)(4) 8.04(d)
(c)(1) 1.02
(c)(2) 1.02
(d)(1) 7.13; 11.01
(d)(2) 7.13; 11.01
(d)(3) 2.01
(e) 1.02
315(b) 7.02
316(a)(last sentence) 1.04(c)
(a)(1)(A) 6.04
(a)(1)(B) 6.05
(b) 6.06
(c) 1.04(d)
317(a)(1) 6.03
(b) 7.13
318(a) 12.06
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TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS
1.01. Interpretation and Definitions 2
1.02. Compliance Certificates and Opinions 11
1.03. Form of Documents Delivered to Trustee 12
1.04. Directions of Certificateholders 12
ARTICLE II
ESTABLISHMENT OF THE TRUST,
ORIGINAL ISSUANCE OF CERTIFICATES,
ACQUISITION OF X-TRAS, SALE OF EXTENSION OPTION
2.01. Name 14
2.02. Office of the Trustee; Principal Place of Business 14
2.03. Issuance of Certificates; Acquisition of X-TRAS; Sale of Extension
Option 14
2.04. Declaration of Trust 15
2.05. Authorization to Enter Into Certain Transactions 15
ARTICLE III
THE CERTIFICATES
3.01. Title, Form, Denomination and Execution of Certificates 19
3.02. Restrictive Legends 19
3.03. Authentication of Certificates 20
3.04. Transfer and Exchange 21
3.05. Book-Entry Provisions for the Global Certificate 21
3.06. Special Transfer Provisions 22
3.07. Mutilated, Destroyed, Lost or Stolen Certificates 23
3.08. Persons Deemed Owners 24
3.09. Cancellation 24
3.10. Temporary Certificates 24
3.11. Limitation of Liability for Payments 25
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Section Page
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ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS; PAYMENTS TO EXTENSION OPTION BUYER
4.01. Certificate Account and Special Payments Account 25
4.02. Distributions from Certificate Account and Special Payments Account 26
4.03. Statements to Certificateholders 28
4.04. Investment of Special Payment Moneys 29
4.05. Payments from ISDA Payment Account 29
ARTICLE V
THE COMPANY
5.01. Maintenance of Corporate Existence 29
5.02. Consolidation, Merger, Etc. 29
5.03. Change in Control 30
5.04 Excess Proceeds of Asset Sales 33
ARTICLE VI
DEFAULT
6.01. Events of Default 35
6.02. Incidents of Sale of the X-TRAS 36
6.03. Judicial Proceedings Instituted by Trustee 37
6.04. Control by Certificateholders 37
6.05. Waiver of Past Defaults 38
6.06. Right of Certificateholders to Receive Payments Not to Be Impaired 39
6.07. Certificateholders May Not Bring Suit Except Under Certain Conditions 39
6.08. Remedies Cumulative 39
ARTICLE VII
THE TRUSTEE
7.01. Certain Duties and Responsibilities 40
7.02. Notice of Defaults 40
7.03. Certain Rights of Trustee 41
7.04. Not Responsible for Recitals or Issuance of Certificates 42
7.05. May Hold Certificates 42
7.06. Money Held in Trust 42
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Section Page
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7.07. Compensation and Reimbursement 43
7.08. Corporate Trustee Required; Eligibility 43
7.09. Resignation and Removal; Appointment of Successor 44
7.10. Acceptance of Appointment by Successor 45
7.11. Merger, Conversion, Consolidation or Succession to Business 46
7.12. Maintenance of Agencies 46
7.13. Money for Certificate Payments to Be Held in Trust 47
7.14. [Intentionally Omitted] 48
7.15. Representations and Warranties of Trustee 48
7.16. Withholding Taxes; Information Reporting 49
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
8.01. The Company to Furnish Trustee with Names and Addresses of
Certificateholders 49
8.02. Preservation of Information; Communications to Certificateholders 50
8.03. Reports by Trustee 50
8.04. Reports by the Company 50
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
9.01. Supplemental Agreements Without Consent of Certificateholders 51
9.02. Supplemental Agreements with Consent of Certificateholders 52
9.03. Documents Affecting Immunity or Indemnity 53
9.04. Execution of Supplemental Agreements 53
9.05. Effect of Supplemental Agreements 54
9.06. Conformity with Trust Indenture Act 54
9.07. Reference in Certificates to Supplemental Agreements 54
ARTICLE X
AMENDMENTS TO INDENTURE
10.01. Amendments and Supplements to Indentures 54
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Section Page
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ARTICLE XI
PAYMENT OF FINAL DISTRIBUTION; TERMINATION OF TRUST
11.01. Payment of Final Distribution 55
11.02. Termination of the Trust 59
ARTICLE XII
MISCELLANEOUS PROVISIONS
12.01. Limitation on Rights of Certificateholders 60
12.02. Certificates Nonassessable and Fully Paid 60
12.03. Notices 60
12.04. Governing Law 62
12.05. Severability of Provisions 62
12.06. Trust Indenture Act Controls 62
12.07. Effect of Headings and Table of Contents 62
12.08. Successors and Assigns 62
12.09. Benefits of Agreement 62
12.10. Legal Holidays 62
12.11. Counterparts 63
12.12. Acceptance of Terms of This Agreement and Indenture 63
Exhibit A - Form of Certificate
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AMENDED AND RESTATED
PASS THROUGH TRUST AGREEMENT
This AMENDED AND RESTATED PASS THROUGH TRUST AGREEMENT, dated as of
_______ __, 1998, among CMS ENERGY CORPORATION, a Michigan corporation,
WILMINGTON TRUST COMPANY, a Delaware banking corporation, and the several
Certificateholders, as hereinafter defined, is made with respect to the
formation of CMS Energy X-TRAS_ Pass Through Trust I and the issuance of ____%
CMS Energy X-TRAS_ Pass Through Certificates representing fractional undivided
interests in the Assigned Trust Property (as defined herein).
WITNESSETH:
WHEREAS, the Company will issue pursuant to an Indenture X-TRAS (as
defined herein) in an aggregate principal amount of [$150,000,000];
WHEREAS, CMS Energy X-TRAS Pass Through Trust I, a business trust under
the Business Trust Act, has been established pursuant to a Trust Agreement dated
as of November 21, 1997 between the Company and the Trustee and a Certificate of
Trust filed with the Secretary of State of the State of Delaware on November 21,
1997;
WHEREAS, all Certificates to be issued by the Trust will evidence
fractional undivided interests in the Trust, will convey rights, benefits or
interests in respect of the Assigned Trust Property and will convey no rights,
benefits or interests in respect of the Excluded Trust Property;
WHEREAS, pursuant to the terms and conditions of this Agreement, the
Trust shall purchase X-TRAS having the same interest rate as, and initial
maturity date not later than the final Regular Distribution Date of, the
Certificates issued hereunder and shall hold such X-TRAS in trust for the
benefit of the Certificateholders;
WHEREAS, to facilitate the sale of X-TRAS to, and the purchase of
X-TRAS by, the Trust, the Company has duly authorized the execution and delivery
of this Agreement as the "issuer", as such term is defined in and solely for
purposes of the Securities Act of 1933, as amended, of the Certificates to be
issued pursuant hereto and as the "obligor", as such term is defined in and
solely for purposes of the Trust Indenture Act of 1939, as amended, with respect
to all such Certificates and is undertaking to perform certain administrative
and ministerial duties hereunder and is also undertaking to pay the ongoing fees
and expenses of the Trustee;
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WHEREAS, all of the conditions and requirements necessary to make this
Agreement, when duly executed and delivered, a valid, binding and legal
instrument, enforceable in accordance with its terms and for the purposes herein
expressed, have been done, performed and fulfilled, and the execution and
delivery of this Agreement in the form and with the terms hereof have been in
all respects duly authorized;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Interpretation and Definitions. For all purposes of
this Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the terms used herein that are defined in this Article have the
meanings assigned to them in this Article, and include the plural as well
as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, or by the rules
promulgated under the Trust Indenture Act, have the meanings assigned to
them therein;
(3) all references in this Agreement to designated "Articles",
"Sections", "Subsections" and other subdivisions are to the designated
Articles, Sections, Subsections and other subdivisions of this Agreement;
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any
particular Article, Section, Subsection or other subdivision; and
(5) unless the context otherwise requires, whenever the words
"including", "include" or "includes" are used herein, it shall be deemed
to be followed by the phrase "without limitation".
Affiliate: Means, with respect to any Person, any other Person
directly or indirectly controlling or controlled by or under common
control with such Person. For purposes of this definition, "control"
means the power, directly or indirectly, to direct the management and
policies of such Person, whether through the ownership of
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voting securities or by contract or otherwise, and the terms "controlling"
and "controlled" have meanings correlative to the foregoing.
Agent Members: Has the meaning specified in Section 3.05.
Applicable Discount: [Means the discount from par at which the
Certificates are sold, determined on the basis of the number of basis
points used in calculating the option premium paid by the Extension
Option Buyer pursuant to the ISDA Master Agreement.]
Assigned Trust Property: Means (i) the X-TRAS held as the property
of the Trust and all monies at any time paid thereon and all monies due
and to become due thereunder (other than any monies paid thereon or due
or to become due thereunder in respect of the ISDA Amount) and (ii) funds
from time to time deposited in the Certificate Account and the Special
Payments Account.
Authorized Agent: Means any Paying Agent or Registrar for the
Certificates.
Avoidable Tax: Means a state or local tax (i) upon (w) the Trust,
(x) the Assigned Trust Property, (y) Certificateholders or (z) the
Trustee for which the Trustee is entitled to seek reimbursement from the
Company, and (ii) which would be avoided if the Trustee were located in
another state, or jurisdiction within a state, within the United States.
A tax shall not be an Avoidable Tax if the Company shall agree to pay,
and shall pay, such tax.
Business Day: Means any day other than a Saturday, a Sunday or a
day on which commercial banks are required or authorized to close in
______, ______, New York, New York, or, so long as any Certificate is
outstanding, the city and state in which the Trustee or the Indenture
Trustee maintains its Corporate Trust Office or receives and disburses
funds.
Business Trust Act: Means Chapter 38 of Title XII of the Delaware
Code, 12 Del. C. Section 3801 et seq. as it many be amended from time to
time, or any successor legislation.
Calculation Agent: Means the Calculation Agent under the ISDA
Master Agreement, which initially shall be Morgan Stanley Capital
Services, Inc., and shall include any successor thereunder.
Certificate: Means any one of the Certificates and any such
Certificates issued in exchange therefor or replacement thereof pursuant
to this Agreement.
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Certificate Account: Means the account or accounts created and
maintained pursuant to Section 4.01(a).
Certificateholder or Holder: Means the Person in whose name a
Certificate is registered in the Register.
Certificates: Means the certificates issued and authenticated
hereunder substantially in the form of Exhibit A hereto.
Change in Control: Shall have the meaning set forth in the Indenture.
Change in Control Purchase Date: Shall have the meaning set forth
in Section 5.03 of this Agreement.
Code: Mean the Internal Revenue Code of 1986, as amended.
Company: Means CMS Energy Corporation, a Michigan corporation, or
its successor in interest pursuant to Section 5.02, or any other obligor
(within the meaning of the Trust Indenture Act) with respect to the
Certificates.
Corporate Trust Office: With respect to the Trustee or the
Indenture Trustee, means the office of such trustee in the city at which
at any particular time its corporate trust business shall be principally
administered.
Depositary: Means The Depository Trust Company, its nominees and
their respective successors.
Direction: Has the meaning specified in Section 1.04(a).
Distribution Date: Means any Regular Distribution Date or Special
Distribution Date.
ERISA: Means the Employee Retirement Income Security Act of 1974,
as amended from time to time, or any successor federal statute.
Event of Default: Means an Indenture Default under the Indenture
pursuant to which X-TRAS held by the Trust were issued.
Excess Proceeds: Shall have the meaning set forth in the Indenture.
Excess Proceeds Offer: Means an offer made by the Company under
Section 4.05 of the Indenture.
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Exchange Act: Means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
Excluded Trust Property: Means all rights of the Trust and the
Trustee under the ISDA Master Agreement and (solely with respect to
obligations relating to payment of the ISDA Amount) as a holder of X-TRAS
under the Indenture, including, without limitation, (i) all rights to
receive certain payments under the ISDA Master Agreement and (solely with
respect to obligations relating to payment of the ISDA Amount) as a
holder of X-TRAS under the Indenture and (ii) all monies paid to the
Trustee on behalf of the Trust by the Extension Option Buyer pursuant to
the ISDA Master Agreement and by the Company (solely with respect to
obligations relating to payment of the ISDA Amount) pursuant to the
Indenture.
Exercise Date: Means the 90th day prior to the Final Distribution
Date.
Extension Notice: Means the notice required to be delivered by the
Extension Option Buyer to the Company, the Trustee and the Indenture
Trustee in the event that the Extension Option is exercised.
Extension Option: Means the option sold by the Trust and purchased
by the Extension Option Buyer under the ISDA Master Agreement.
Extension Option Buyer: Means Morgan Stanley Capital Services, Inc.
Final Distribution: Means, with respect to the X-TRAS, the final
distribution paid to Certificateholders in respect of the principal and
accrued interest on the X-TRAS in accordance with Section 11.01.
Final Distribution Date: Means the date on which the Final
Distribution is paid to Certificateholders pursuant to Section 11.01.
Fractional Undivided Interest: Means the fractional undivided
interest in the Trust (to the extent of the Assigned Trust Property) that
is evidenced by a Certificate.
Global Certificate: Has the meaning specified in Section 3.01.
Global Certificates: Has the meaning assigned to such term in
Section 3.01.
ISDA Amount: Means such amount as is required to be paid under the
ISDA Master Agreement in accordance with the terms thereof.
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ISDA Master Agreement: Means the ISDA Master Agreement, Schedule
and Confirmation dated as of ______ __, 1998 entered into by the Trust
and the Extension Option Buyer, as amended from time to time.
ISDA Payment: Means any payment made by the Company under the
Indenture in respect of any ISDA Amount which may be due under the
provisions thereof.
ISDA Payment Account: Means the account or accounts created and
maintained pursuant to Section 4.01(d).
ISDA Stated Maturity: Shall have the meaning set forth in the
Indenture.
Indenture: Means the Indenture dated as of September 15, 1992 as
supplemented by the Sixth Supplemental Indenture, dated as of ________
__, 1998, between the Company and NBD Bank, a Michigan banking
corporation (formerly known as NBD Bank, National Association), as
Indenture Trustee, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with its terms in respect of the
series of securities issued thereunder known as X-TRAS.
Indenture Default: With respect to any Indenture, means any Event
of Default (as such term is defined in such Indenture).
Indenture Trustee: With respect to any X-TRAS or the Indenture,
means the bank or trust company designated as indenture trustee under
such Indenture, together with any successor to such Indenture Trustee
appointed pursuant thereto.
Initial Regular Distribution Date: Means the first Regular
Distribution Date on which a Scheduled Payment is to be made.
Initial Stated Maturity: Shall have the meaning set forth in the
Indenture.
Institutional Accredited Investor: Means an institutional investor
that is an "accredited investor" within the meaning set forth in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act.
Issuance Date: Means the date of the issuance of the Certificates.
1940 Act: Means the Investment Company Act of 1940, as amended from
time to time, or any successor legislation.
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Officer's Certificate: Means a certificate signed (a) in the case
of the Company, by (i) the Chairman or Vice Chairman of the Board of
Directors, the President, any Executive Vice President, any Senior Vice
President or the Treasurer of the Company, signing alone, or (ii) any
Vice President of the Company signing together with the Secretary, the
Assistant Secretary, the Treasurer or any Assistant Treasurer of the
Company or (b) in the case of the Indenture Trustee, by a Responsible
Officer of such Indenture Trustee, as the case may be.
Opinion of Counsel: Means a written opinion of legal counsel who
(a) in the case of counsel for the Company, may be (i) a senior attorney
of the Company one of whose principal duties is furnishing advice as to
legal matters or (ii) such other counsel designated by the Company and
reasonably acceptable to the Trustee and (b) in the case of counsel for
the Indenture Trustee, may be such counsel as may be designated by it
whether or not such counsel is its employee, and who shall be reasonably
acceptable to the Trustee.
Outstanding: When used with respect to Certificates, means, as of
the date of determination, all Certificates theretofore authenticated and
delivered under this Agreement, except:
(i) Certificates theretofore cancelled by the Registrar or
delivered to the Trustee or the Registrar for cancellation;
(ii) Certificates for which money in the full amount required
to make the final distribution with respect to such Certificates
pursuant to Section 11.01 hereof has been theretofore deposited
with the Trustee in trust for the Holders of such Certificates as
provided in Section 4.01 pending distribution of such money to such
Certificateholders pursuant to payment of such final distribution;
and
(iii) Certificates in exchange for or in lieu of which other
Certificates have been authenticated and delivered pursuant to this
Agreement.
Paying Agent: Means the paying agent maintained and appointed for
the Certificates pursuant to Section 7.12.
Permitted Investments: Means obligations of the United States of
America or agencies or instrumentalities thereof the payment of which is
backed by the full faith and credit of the United States of America and
which mature in not more than 60 days after the date of acquisition
thereof or such lesser time as is required for the distribution of any
Special Payments on a Special Distribution Date or the Final Distribution
on the Final Distribution Date.
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Person: Means any person, including any individual, corporation,
partnership, joint venture, association, joint-stock company, trust,
trustee, unincorporated organization, or government or any agency or
political subdivision thereof.
Purchase Agreement: Means the Purchase Agreement dated as of
__________, 1998 by and among the Underwriters, the Company and the
Trust.
Purchase Date: Means the date of purchase of the X-TRAS by the
Trust and of the Certificates by the Underwriters.
QIB: Means a qualified institutional buyer as defined in Rule 144A.
Record Date: Means (i) for Scheduled Payments to be distributed on
any Regular Distribution Date, other than the final distribution, the
first day of the calendar month in which such Regular Distribution Date
occurs (whether or not a Business Day) preceding such Regular
Distribution Date, and (ii) for Special Payments to be distributed on any
Special Distribution Date, other than the final distribution, the 15th
day (whether or not a Business Day) preceding such Special Distribution
Date.
Register and Registrar: Mean the register maintained and the
registrar appointed pursuant to Sections 3.04 and 7.12.
Regular Distribution Date: With respect to distributions of
Scheduled Payments in respect of the Certificates, means each date
designated as a Regular Distribution Date in this Agreement, until
payment of all the Scheduled Payments to be made under the X-TRAS held in
the Trust have been made; provided, however, that, if any such day shall
not be a Business Day, the related distribution shall be made on the next
succeeding Business Day without additional interest.
Remarketing Agent: Means Morgan Stanley & Co. Incorporated or such
other investment banking institution as shall be selected in accordance
with Section 10.02 of the Indenture in connection with a remarketing of
the X-TRAS.
Remarketing Deadline: Means the fifteenth day prior to the Final
Distribution Date or such earlier date as may be mutually agreed by the
Company, the Indenture Trustee, the Trustee and the Extension Option
Buyer.
Remarketing Procedure: Shall have the meaning set forth in Section
11.01(a) hereof.
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Required Remarketing Proceeds: Shall have the meaning set forth in
Section 11.01(a) hereof.
Responsible Officer: With respect to the Trustee and the Indenture
Trustee means any officer in the Corporate Trust Office of the Trustee
or Indenture Trustee or any other officer customarily performing
functions similar to those performed by the persons who at the time shall
be such officers, respectively, or to whom any corporate trust matter is
referred because of his knowledge of and familiarity with a particular
subject.
Rule 3a-7: Means Rule 3a-7 under the 1940 Act and any successor
rule thereto.
Rule 144A: Means Rule 144A under the Securities Act and any
successor rule thereto.
Scheduled Payment: With respect to any X-TRAS, means any payment of
principal and interest on such X-TRAS (other than any such payment which
is not in fact received by the Trustee within five Business Days of the
date on which such payment is scheduled to be made) due from the obligor
thereon, which payment represents the repayment of principal at the
stated maturity of such repayment of principal on such X-TRAS, the
payment of regularly scheduled interest accrued on the unpaid principal
amount of such X-TRAS, or both; provided that any payment of principal,
premium, if any, or interest resulting from (i) the redemption or
purchase of any X-TRAS (other than pursuant to the FD Redemption Option)
or (ii) the acceleration of the X-TRAS pursuant to the terms of the
Indenture shall not constitute a Scheduled Payment.
SEC: Means the Securities and Exchange Commission, as from time to
time constituted or 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 on
such date.
Securities Act: Means the United States Securities Act of 1933, as
amended from time to time, or any successor thereto.
Settlement Date: Means the settlement date under the ISDA Master
Agreement.
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Special Distribution Date: Means each date on which a Special
Payment made under clause (i) (to the extent of a redemption of all of
the X-TRAS) and (iv) of the definition thereof is to be distributed to
the Certificateholders as specified in this Agreement; provided, however,
that, if any such day shall not be a Business Day, the related
distribution shall be made on the next succeeding Business Day without
additional interest.
Special Payment: With respect to any X-TRAS, means (i) any payment
of principal, the Applicable Premium and interest resulting from the
redemption of any X-TRAS by the Company pursuant to its exercise of the
Early Redemption Option pursuant to Section 7.01(b) of the Indenture,
(ii) any payment of principal, premium, if any, and interest resulting
from the repurchase of any X-TRAS by the Company pursuant to a
Certificateholder's exercise of its right, in the event of a Change in
Control, to direct the Trustee to require the Company to repurchase all
or any part of the X-TRAS beneficially owned by such Certificateholder,
(iii) any payment of principal and interest resulting from the repurchase
by the Company of any X-TRAS beneficially owned by a Certificateholder
that has presented for cancellation all or a portion of its Certificates
within the time period required to accept an Excess Proceeds Offer made
in compliance with Section 4.05 under the Indenture, (iv) any payment of
principal and interest resulting from the acceleration of the stated
maturity of the X-TRAS following an Indenture Event of Default, and (v)
any other payment (other than a Scheduled Payment) in respect of, or any
proceeds of, any X-TRAS.
Special Payments Account: Means the account or accounts created and
maintained pursuant to Section 4.01(b).
Specified Investments: Means (i) obligations of, or guaranteed by,
the United States Government or agencies thereof, (ii) open market
commercial paper of any corporation incorporated under the laws of the
United States of America or any State thereof rated at least P-2 or its
equivalent by Moody's Investors Service, Inc. or at least A-2 or its
equivalent by Standard & Poor's Ratings Group, (iii) certificates of deposit
issued by commercial banks organized under the laws of the United States or
of any political subdivision thereof having a combined capital and surplus
in excess of $100,000,000, which banks or their holding companies have a
short-term deposit rating of P1 by Moody's Investors Service, Inc. or its
equivalent by Standard & Poor's Ratings Group; provided, however, that the
aggregate amount at any one time so invested in certificates of deposit
issued by any one bank shall not exceed 5% of such bank's capital and
surplus, (iv) U.S. dollar denominated offshore certificates of deposit
issued by, or offshore time deposits with, any commercial bank described in
clause (iii) above or any subsidiary thereof and (v) repurchase agreements
with any financial institution having combined capital and surplus of at
least $100,000,000 with respect to any of the obligations described in
clauses (i) through (iv) above as
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collateral; provided further that if all of the above investments are
unavailable, all amounts to be invested may be used to purchase Federal
Funds from an entity described in clause (iii) above.
Subsidiary: Means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or
by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For the purposes of this definition, "voting stock"
means stock which ordinarily has voting power for the election of
directors, whether at all times or only so long as no senior class of
stock has such voting power by reason of any contingency.
Trust: Means the Delaware business trust created by this Agreement,
the estate of which consists of the Assigned Trust Property and the
Excluded Trust Property.
Trust Indenture Act: Except as otherwise provided in Section 9.06,
means the United States Trust Indenture Act of 1939 as in force at the
date hereof.
Trustee: Means Wilmington Trust Company, or its successor in
interest, and any successor or other trustee appointed as provided
herein.
Underwriters: Means Morgan Stanley & Co. Incorporated, Salomon
Brothers Inc, Donaldson Lufkin & Jenrette Securities Corporation and
Goldman Sachs & Co.
X-TRAS: Means Extendible Tenor Rate-Adjusted Securities, as issued
by the Company pursuant to the Indenture.
X-TRAS Paying Agent: Means the paying agent maintained and
appointed for the X-TRAS pursuant to the Indenture (which initially shall
be the Indenture Trustee).
Certain terms, used principally in Articles V and XI of this Agreement,
are defined in those Articles.
Section 1.02. Compliance Certificates and Opinions. Upon any
application or request by the Company or the Indenture Trustee to the Trustee to
take any action under any provision of this Agreement, the Company or the
Indenture Trustee, as the case may be, shall furnish to the Trustee (i) an
Officer's Certificate stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Agreement relating to the
proposed action have been complied with and (ii) an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any, have
been complied with, except that in the case of any such application or request
as to which the furnishing of such
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documents is specifically required by any provision of this Agreement relating
to such particular application or request, no additional certificate or opinion
need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement (other than a certificate
provided pursuant to Section 8.04(d)) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions in this
Agreement relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters and any such Person may certify or give an opinion as to
such matters in one or several documents.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement or, in respect of the Certificates, this
Agreement, they may, but need not, be consolidated and form one instrument.
Section 1.04. Directions of Certificateholders. (a) Any direction,
consent, request, demand, authorization, notice, waiver or other action provided
by this Agreement to be given or taken by Certificateholders (a "Direction") may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Certificateholders in person or by an agent or proxy duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required pursuant to this
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Agreement, to the Company or the Indenture Trustee. Proof of execution of any
such instrument or of a writing appointing any such agent or proxy shall be
sufficient for any purpose of this Agreement and conclusive in favor of the
Trustee, the Company and the Indenture Trustee, if made in the manner provided
in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the certificate of any notary public or
other officer of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the Person executing such instrument acknowledged to him
the execution thereof, or by an affidavit of a witness to such execution sworn
to before any such notary or such other officer and where such execution is by
an officer of a corporation or association or a member of a partnership, on
behalf of such corporation, association or partnership, 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 reasonable manner
which the Trustee deems sufficient.
(c) In determining whether the Certificateholders of the requisite
Fractional Undivided Interests of Certificates Outstanding have given any
Direction under this Agreement, Certificates owned by the Company or any
Affiliate thereof shall be disregarded and deemed not to be Outstanding for
purposes of any such determination. In determining whether the Trustee shall be
protected in relying upon any such Direction, only Certificates which the
Trustee knows to be so owned shall be so disregarded. Notwithstanding the
foregoing, (i) if any such Person owns 100% of the Certificates Outstanding,
such Certificates shall not be so disregarded, and (ii) if any amount of
Certificates so owned by any such Person have been pledged in good faith, such
Certificates shall not be disregarded if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Certificates and that the pledgee is not the Company or any Affiliate thereof.
(d) The Company may at its option, by delivery of an Officer's
Certificate to the Trustee, set a record date to determine the
Certificateholders entitled to give any Direction. Notwithstanding Section
316(c) of the Trust Indenture Act, such record date shall be the record date
specified in such Officer's Certificate, which shall be a date not more than 30
days prior to the first solicitation of Certificateholders in connection
therewith. If such a record date is fixed, such Direction may be given before
or after such record date, but only the Certificateholders of record at the
close of business on such record date shall be deemed to be Certificateholders
for the purposes of determining whether Certificateholders of the requisite
proportion of Outstanding Certificates have authorized or agreed or consented to
such Direction, and for that purpose the Outstanding Certificates shall be
computed as of such record date; provided that no such Direction by the
Certificateholders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Agreement not later than one
year after such record date.
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(e) Any Direction by the Holder of any Certificate shall bind the
Holder of every Certificate issued upon the transfer thereof or in exchange
therefor or in lieu thereof, whether or not notation of such Direction is made
upon such Certificate.
(f) Except as otherwise provided in Section 1.04(c), Certificates
owned by or pledged to any Person shall have an equal and proportionate benefit
under the provisions of this Agreement, without preference, priority, or
distinction as among all of the Certificates.
ARTICLE II
ESTABLISHMENT OF THE TRUST,
ORIGINAL ISSUANCE OF CERTIFICATES,
ACQUISITION OF X-TRAS, SALE OF EXTENSION OPTION
Section 2.01. Name. The Trust created hereby shall be known as CMS
Energy X-TRAS Pass Through Trust Series I, as such name may be modified from
time to time by the Trustee following written notice to the Holders, in which
name the Trustee may conduct the business of the Trust, make and execute
contracts and other instruments on behalf of the Trust and sue and be sued.
Section 2.02. Office of the Trustee; Principal Place of Business.
The address of the Trustee in the State of Delaware is c/o Wilmington Trust
Company, 1100 North Market Street, Wilmington, Delaware 19801-0001, Attention:
Corporate Trust Administration, or at such other address in the State of
Delaware as the Trustee may designate by written notice to the Holders and the
Company. The principal executive office of the Trust is c/o CMS Energy
Corporation, Fairlane Plaza South, Suite 1100, Dearborn, Michigan 48126.
Section 2.03. Issuance of Certificates; Acquisition of X-TRAS; Sale of
Extension Option. (a) Upon request of the Company and the satisfaction of the
closing conditions specified in the Purchase Agreement, the Trust shall, on the
Purchase Date, execute, deliver and authenticate Certificates equalling in the
aggregate the aggregate principal amount of the X-TRAS to be purchased by the
Trust pursuant to the Purchase Agreement and evidencing the entire ownership
interest in the Assigned Trust Property. The Trust shall issue and sell such
Certificates, in authorized denominations and in such Fractional Undivided
Interests, so as to result in the receipt by the Trustee of consideration in an
amount equal to the aggregate face amount of such Certificates less the
Applicable Discount and, concurrently therewith, the Trust shall purchase the
X-TRAS from the Company at a purchase price equal to the sum of (x) the amount
of such consideration so received for the sale of the Certificates and (y) the
amount of consideration received by the
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Trust for the sale of Extension Option to the Extension Option Buyer. Except
as provided in Sections 3.04 and 3.07 hereof, the Trust shall not execute,
authenticate or deliver Certificates in excess of the aggregate amount
specified in this paragraph.
(b) Concurrently with the execution of the Purchase Agreement, the
Trust shall enter into the ISDA Master Agreement with the Extension Option
Buyer. On the Issuance Date, the Trust shall issue and sell to the Extension
Option Buyer the Extension Option pursuant to the terms of the ISDA Master
Agreement for consideration in the amount provided thereunder. The
consideration so received by the Trust for the sale of the Extension Option
shall be paid by the Trust to the Company in partial consideration for the
X-TRAS, as provided under subsection (a) above. The Trust's rights under the
ISDA Master Agreement and the monies received by the Trust under the ISDA
Master Agreement (whether from the Extension Option Buyer or the Company) shall
constitute Excluded Trust Property which shall not be assigned for the benefit
of Certificateholders.
Section 2.04. Declaration of Trust. The exclusive purposes and
functions of the Trust are: (a) to issue and sell Certificates and use the
proceeds from such sales to acquire the X-TRAS and (b) to engage in those
activities necessary or incidental thereto. The Company hereby appoints the
Trustee as trustee of the Trust, to have all the rights, powers and duties to
the extent set forth herein, and the Trustee hereby accepts such appointment.
The Trustee hereby declares that it will hold the Assigned Trust Property in
trust upon and subject to the conditions set forth herein for the benefit of
the Trust and the Holders. The Trustee 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.
Section 2.05. Authorization to Enter Into Certain Transactions. (a)
The Trustee shall conduct the affairs of the Trust in accordance with the terms
of this Agreement. Subject to the limitations set forth in paragraph (b) of
this section, and in accordance with the following provisions, the Trustee
shall have the authority to enter into all transactions and agreements
determined by the Trustee to be appropriate in exercising the authority,
express or implied, otherwise granted to the Trustee under this Trust
Agreement, and to perform all acts in furtherance thereof, including, without
limitation, the following:
(i) to execute and file the Certificate of Trust filed with the
Secretary of State of the State of Delaware on November 21, 1997;
(ii) the issuance and sale of the certificates;
(iii) to cause the Trust to enter into, and to execute, deliver and
perform on behalf of the Trust, the ISDA Master Agreement;
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(iv) assist in the registration of the Certificates under the
Securities Act of 1933, as amended, and under state securities or blue
sky laws and the qualification of this Agreement as a trust indenture
under the Trust Indenture Act;
(v) assist in the listing, if any, of the Certificates upon such
securities exchange or exchanges or automated quotation system or systems
as shall be determined by the Company and the registration of the
Certificates under the Exchange Act and the preparation and filing of all
periodic and other reports and other documents pursuant to the foregoing;
(vi) the establishment of the Certificate Account, the Special
Payments Account and the ISDA Payment Account;
(vii) the receipt of the X-TRAS;
(viii) the collection of interest, principal and any other payment
made in respect of the X-TRAS in the Certificate Account;
(ix) the distribution through the Paying Agent of amounts owed to
the Certificate Holders in respect of the Certificates;
(x) the exercise of all the rights, powers and privileges of a
Holder of X-TRAS;
(xi) the sending of notices and other information regarding the
Certificates and the X-TRAS to the Certificateholders in accordance with
this Agreement;
(xii) the appointment of a Paying Agent, Authenticating Agent and
Securities Registrar in accordance with this Agreement;
(xiii) registering transfer of the Certificates in accordance with
this Agreement;
(xiv) to the extent provided in this 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;
(xv) the distribution of the Assigned Trust Property in accordance
with the terms of this Agreement;
(xvi) after an Event of Default, the taking of any action incidental
to the foregoing (A) as the Trustee may from time to time determine is
necessary or
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advisable, or as the Trustee may be directed by the Certificateholders to
take, in order to give effect to the terms of the Agreement and protect and
conserve the Assigned Trust Property for the benefit of the
Certificateholders (without consideration of the effect of any such action
on any particular Certificateholder) or (B) as the Trustee may from time to
time determine is necessary or advisable, or as the Trustee may be directed
by the Extension Option Buyer to take, in order to give effect to the terms
of the ISDA Master Agreement and enforce the rights of the Extension Option
Buyer;
(xvii) unless otherwise determined by the Company or is otherwise
required by the Business Trust Act or the Trust Indenture Act, to execute
on behalf of the Trust any documents that the Trustee has the power to
execute pursuant to this Agreement; and
(xviii) the taking of any action incidental to the foregoing as the
Trustee may from time to time determine is necessary or advisable to give
effect to the terms of this Agreement for the benefit of the
Certificateholders (without consideration of the effect of any such
action on any particular Certificateholder).
(b) So long as this Agreement remains in effect, the Trust (or the
Trustee 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 Trustee shall not:
(i) acquire any investments or engage in any activities not
authorized by this Agreement;
(ii) sell, assign, transfer, exchange, mortgage, pledge, set off or
otherwise dispose of any of the Assigned Trust Property or interests
therein, including to Certificateholders, except as expressly provided
herein;
(iii) take any action that would cause the Trust to be classified as
an association taxable as a corporation or as other than a grantor trust
for United States federal income tax purposes;
(iv) incur any indebtedness for borrowed money or issue any other
debt; or
(v) take or consent to any action that would result in the
placement of a Lien on any of the Assigned Trust Property. The Trustee
shall defend all claims and demands of all Persons at any time claiming any
Lien on any of the Assigned Trust Property adverse to the interest of the
Trust or the Certificateholders in their capacities as Certificateholders.
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(c) In connection with the issue and sale of the Certificates, the
Company shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (any such actions
taken by the Company in furtherance of the following prior to the date of this
Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Trust with the SEC and the
execution on behalf of the Trust of a Registration Statement on the
appropriate form in relation to the Certificates, including any
amendments thereto;
(ii) the determination of the States in which to take appropriate
action to qualify or register for sale all or part of the Certificates,
and the determination of any and all such acts, other than such actions
which must be taken by or on behalf of the Trust, and the advice to the
Trustee of actions it must take on behalf of the Trust, and the
preparation for execution and filing of any documents to be executed and
filed by the Trust or on behalf of the Trust, as the Company deems
necessary or advisable in order to comply with the applicable laws of any
such states;
(iii) the preparation for filing by the Trust and the execution on
behalf of the Trust of an application to the New York Stock Exchange or
any other national stock exchange or the NASDAQ National Market or any
other automated quotation system for listing upon notice of issuance of
any Certificates and filing with such exchange or self-regulatory
organization such notifications and documents as may be necessary from
time to time to maintain such listing;
(iv) the preparation for filing by the Trust with the SEC and the
execution on behalf of the Trust of a Registration Statement on Form 8-A
relating to the registration of the Certificates under Section 12(b) or
12(g) of the Exchange Act, including any amendments thereto;
(v) the negotiation of the terms of, and the execution and delivery
of, the Purchase Agreement on behalf of the Trust providing for the sale
of the Certificates; and
(vi) the taking of any other actions necessary or desirable to carry
out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Trustee is
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" or
required to be registered under the 1940 Act, or to be classified as an
association taxable as a corporation or is other than a grantor trust for
United States federal income tax purposes and so that the Certificates will be
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treated as indebtedness of the Company for United States federal income tax
purposes. In this connection, the Company and the Trustee are authorized to
take any action, not inconsistent with applicable law, the Certificate of Trust
or this Agreement, that each of the Company and the Trustee determines in its
discretion to be necessary or desirable for such purposes, as long as such
action does not adversely affect in any material respect the interests of the
Certificateholders.
ARTICLE III
THE CERTIFICATES
Section 3.01. Title, Form, Denomination and Execution of Certificates.
(a) The Certificates shall be known as the " % Pass Through Certificates
Series I" of the Trust. Each Certificate will represent a fractional undivided
interest in the Assigned Trust Property and shall be substantially in the form
set forth as Exhibit A hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Agreement and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Certificates, as evidenced by their
execution of the Certificates. Any portion of the text of any Certificate may
be set forth on the reverse thereof, with an appropriate reference thereto on
the face of the Certificate.
(b) The Certificates shall be issued only in fully registered form
without coupons and only in denominations of $[250,000] or integral multiples
of $1,000 in excess thereof. Each Certificate shall be dated the date of its
authentication. The aggregate Fractional Undivided Interest of Certificates
shall not at any time exceed $[150,000,000].
(c) Certificates offered and sold to QIBs and to Institutional
Accredited Investors in reliance on Rule 3a-7 shall be issued in the form of a
single permanent global Certificate in registered form, substantially in the
form set forth as Exhibit A hereto (the "Global Certificate"), duly executed
and authenticated by the Trustee as hereinafter provided. The Global
Certificate will be registered in the name of a nominee for the Depositary and
deposited with the Trustee, as custodian for the Depositary. The aggregate
principal amount of the Global Certificate may from time to time be increased
or decreased by adjustments made on the records of the Depositary or its
nominee, or of the Trustee, as custodian for the Depositary or its nominee, as
hereinafter provided.
(d) Definitive Certificates shall be in registered form and shall be
typed, printed, lithographed or engraved or produced by any combination of
these methods or may be produced in any other manner, all as determined by the
officers executing such Certificates, as evidenced by their execution of such
Certificates.
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Section 3.02. Restrictive Legends. (a) The Global Certificate shall
bear the following legend (the "Permanent Legend") on the face thereof:
THIS CERTIFICATE MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN
THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE CERTIFICATEHOLDER
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT")) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR"), (2)
AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS CERTIFICATE
EXCEPT (A) TO THE COMPANY, (B) TO A QUALIFIED INSTITUTIONAL BUYER, OR (C)
TO AN INSTITUTIONAL ACCREDITED INVESTOR, AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS CERTIFICATE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
(b) The Global Certificate shall also bear the following legend on the
face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
TRUSTEE OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS 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 OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN SECTIONS 3.05 AND 3.06 OF THE PASS THROUGH
TRUST AGREEMENT REFERRED TO HEREIN.
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Section 3.03. Authentication of Certificates. (a) The Trustee shall
duly execute, authenticate and deliver Certificates in authorized denominations
equalling in the aggregate the aggregate principal amount of the X-TRAS to be
purchased by the Trustee pursuant to the Purchase Agreement and evidencing the
entire ownership of the Trust.
(b) No Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose, unless there appears on
such Certificate a certificate of authentication substantially in the form
provided for herein executed by the Trustee by the manual signature of one of
its authorized signatories, and such certificate upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder.
Section 3.04. Transfer and Exchange. (a) The Trustee shall cause to
be kept at the office or agency to be maintained by it in accordance with the
provisions of Section 7.12 of this Agreement a register (the "Register") for
the Certificates in which, subject to such reasonable regulations as it may
prescribe, the Trustee shall provide for the registration of the Certificates
and of transfers and exchanges of the Certificates as herein provided. The
Trustee shall initially be the registrar (the "Registrar") for the purpose of
registering the Certificates and transfers and exchanges of the Certificates as
herein provided. A Certificateholder may transfer a Certificate by written
application to the Registrar stating the name of the proposed transferee and
otherwise complying with the terms of this Agreement, including providing a
written certificate or other evidence of compliance with any restrictions on
transfer. No such transfer shall be effected until, and such transferee shall
succeed to the rights of a Certificateholder only upon, final acceptance and
registration of the transfer by the Registrar in the Register. Prior to the
registration of any transfer by a Certificateholder as provided herein, the
Trustee shall treat the person in whose name the Certificate is registered as
the owner thereof for all purposes, and the Trustee shall not be affected by
notice to the contrary. Furthermore, the Depositary shall, by acceptance of a
Global Certificate, agree that transfers of beneficial interests in such Global
Certificate may be effected only through a book-entry system maintained by the
Depositary (or its agent), and that ownership of a beneficial interest in the
Certificate shall be required to be reflected in a book entry. When
Certificates are presented to the Registrar with a request to register the
transfer or to exchange them for an equal face amount of Certificates of other
authorized denominations, the Registrar shall register the transfer or make the
exchange as requested if its requirements for such transactions are met. To
permit registrations of transfers and exchanges in accordance with the terms,
conditions and restrictions hereof, the Trustee shall execute and authenticate
Certificates at the Registrar's request. No service charge shall be made for
any registration of transfer or exchange of the Certificates, but the Trustee
may require payment by the transferor of a sum sufficient to cover any transfer
tax or similar governmental charge payable in connection therewith (other than
any such transfer taxes or other similar governmental charges payable upon
exchanges pursuant to Section 3.10 or 9.07).
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Section 3.05. Book-Entry Provisions for the Global Certificate. (a)
Members of, or participants in, the Depositary ("Agent Members") shall have no
rights under this Agreement with respect to the Global Certificate held on
their behalf by the Depositary, or the Trustee as its custodian, and the
Depositary may be treated by the Trustee and any agent of the Trustee as the
absolute owner of such Global Certificate for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Trustee or any
agent of the Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depositary or shall impair, as between the
Depositary and its Agent Members, the operation of customary practices
governing the exercise of the rights of a holder of any Certificate. Upon the
issuance of any Global Certificate, the Registrar or its duly appointed agent
shall record a nominee of the Depositary as the registered holder of such
Global Certificate.
(b) Transfers of any Global Certificate shall be limited to transfers
of such Global Certificate in whole, but not in part, to nominees of the
Depositary, its successor or such successor's nominees. Beneficial interests
in the Global Certificate may be transferred in accordance with the rules and
procedures of the Depositary and the provisions of Section 3.06. Beneficial
interests in the Global Certificate shall be delivered to all beneficial owners
in the form of definitive Certificates if (i) the Depositary notifies the
Trustee that it is unwilling or unable to continue as Depositary for the Global
Certificate and a successor depositary is not appointed by the Trustee within
90 days of such notice or (ii) an Event of Default has occurred and is
continuing and the Registrar has received a request from the Depositary to
issue definitive Certificates.
(c) In connection with the transfer of the entire Global Certificate to
the beneficial owners thereof pursuant to paragraph (b) of this Section 3.05,
the Global Certificate shall be deemed to be surrendered to the Trustee for
cancellation, and the Trustee shall execute, authenticate and deliver, to each
beneficial owner identified by the Depositary in exchange for its beneficial
interest in the Global Certificate an equal aggregate principal amount of
definitive Certificates of authorized denominations.
(d) Any Physical Certificate delivered in exchange for an interest in
the Global Certificate pursuant to paragraph (b) of this Section 3.05 shall,
except as otherwise provided by paragraph (f) of Section 3.06, bear the
Permanent Legend.
(e) The registered holder of the Global Certificate may grant proxies
and otherwise authorize any Person, including Agent Members and Persons that
may hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Agreement or the Certificates.
Section 3.06. Special Transfer Provisions. The following provisions
shall apply to the Certificates:
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(a) Transfers to Non-QIB Institutional Accredited Investors. The
Registrar shall register the transfer of any Certificate to any Institutional
Accredited Investor.
(b) Transfers to QIBs. The Registrar shall register the transfer of
any Certificate to any QIB.
(c) Permanent Legend. Upon the transfer, exchange or replacement of
Certificates bearing the Permanent Legend, the Registrar shall deliver only
Certificates that bear the Permanent Legend unless there is delivered to the
Registrar an Opinion of Counsel to the effect that neither such legend nor the
related restrictions on transfer are required in order to maintain compliance
with the provisions of the 1940 Act.
(d) General. By its acceptance of any Certificate bearing the
Permanent Legend, each Holder of such a Certificate acknowledges the
restrictions on transfer of such Certificate set forth in this Agreement and
agrees that it will transfer such Certificate only as provided in this
Agreement. The Registrar shall not register a transfer of any Certificate
unless such transfer complies with the restrictions on transfer of such
Certificate set forth in this Agreement. In connection with any transfer of
Certificates, each Certificateholder agrees by its acceptance of the
Certificates to furnish the Registrar or the Trustee such certifications or
other information as either of them may reasonably require; provided that the
Registrar shall not be required to determine the sufficiency of any such
certifications, legal opinions or other information.
Until such time as no Certificates remain Outstanding, the Registrar
shall retain copies of all letters, notices and other written communications
received pursuant to Section 3.05 or this Section 3.06. The Trustee, if not
the Registrar at such time, shall have the right to inspect and make copies of
all such letters, notices or other written communications at any reasonable
time upon the giving of reasonable written notice to the Registrar.
Section 3.07. Mutilated, Destroyed, Lost or Stolen Certificates. If
(a) any mutilated Certificate is surrendered to the Registrar or the Registrar
receives evidence to its satisfaction of the mutilation, destruction, loss or
theft of any Certificate and (b) there is delivered to the Registrar and the
Trustee such security, indemnity or bond, as may be required by them to save
each of them and any Paying Agent harmless, then, in the absence of notice to
the Registrar or the Trustee that such destroyed, lost or stolen Certificate
has been acquired by a bona fide purchaser, and provided that the requirements
of Section 8-405 of the Uniform Commercial Code in effect in any applicable
jurisdiction are met, then, upon payment by the Certificateholder of any
applicable expenses, the Trustee shall execute, authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate or Certificates, in authorized denominations and
of like Fractional Undivided Interest and bearing a number not
contemporaneously outstanding.
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In connection with the issuance of any new Certificate under this
Section 3.07, the Trustee may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the Trustee and the
Registrar) connected therewith.
Any duplicate Certificate issued pursuant to this Section 3.07 shall
constitute conclusive evidence of the appropriate Fractional Undivided Interest
in the Trust, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Certificates.
Section 3.08. Persons Deemed Owners. Prior to due presentment of a
Certificate for registration of transfer, the Trustee, the Registrar and any
Paying Agent may treat the Person in whose name any Certificate is registered
(as of the day of determination) as the owner of such Certificate for the
purpose of receiving distributions pursuant to Article IV and for all other
purposes whatsoever, and none of the Trustee, the Registrar or any Paying Agent
shall be affected by any notice to the contrary.
Section 3.09. Cancellation. All Certificates surrendered for payment
or transfer or exchange shall, if surrendered to the Trustee or any agent of
the Trustee other than the Registrar, be delivered to the Registrar for
cancellation and shall promptly be cancelled by it. No Certificates shall be
authenticated in lieu of or in exchange for any Certificates cancelled as
provided in this Section, except as expressly permitted by this Agreement. All
cancelled Certificates held by the Registrar shall be destroyed and a
certification of their destruction delivered to the Trustee.
Section 3.10. Temporary Certificates. Until definitive Certificates
are ready for delivery, the Trustee shall authenticate temporary Certificates.
Temporary Certificates shall be substantially in the form of definitive
Certificates but may have insertions, substitutions, omissions and other
variations determined to be appropriate by the officers executing the temporary
Certificates, as evidenced by their execution of such temporary Certificates.
If temporary Certificates are issued, the Trustee will cause definitive
Certificates to be prepared without unreasonable delay. After the preparation
of definitive Certificates, the temporary Certificates shall be exchangeable
for definitive Certificates upon surrender of the temporary Certificates at the
office or agency of the Trustee designated for such purpose pursuant to Section
7.12, without charge to the Certificateholder. Upon surrender for cancellation
of any one or more temporary Certificates, the Trustee shall execute,
authenticate and deliver in exchange therefor a like face amount of definitive
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Certificates of authorized denominations. Until so exchanged, the temporary
Certificates shall be entitled to the same benefits under this Agreement as
definitive Certificates.
Section 3.11. Limitation of Liability for Payments. All payments and
distributions made to Certificateholders shall be made only from the Assigned
Trust Property and only to the extent that the Trustee shall have sufficient
income or proceeds from the Assigned Trust Property to make such payments in
accordance with the terms of Article IV of this Agreement. Each
Certificateholder, by its acceptance of a Certificate, agrees that it will look
solely to the income and proceeds from the Assigned Trust Property for any
payment or distribution due to such Certificateholder pursuant to the terms of
this Agreement and that it will not have any recourse to the Company, the
Trustee or the Indenture Trustee except as otherwise expressly provided.
The Company is a party to this Agreement solely for purposes of meeting
the requirements of the Trust Indenture Act, and therefore shall not have any
right, obligation or liability hereunder (except as otherwise expressly
provided herein).
ARTICLE IV
DISTRIBUTIONS; STATEMENTS TO
CERTIFICATEHOLDERS; PAYMENTS TO EXTENSION OPTION BUYER
Section 4.01. Certificate Account, Special Payments Account and ISDA
Payment Account . (a) The Trustee shall establish and maintain on behalf of
the Certificateholders a Certificate Account as one or more
non-interest-bearing accounts. The Trustee shall hold the Certificate Account
in trust for the benefit of the Certificateholders, and shall make or permit
withdrawals therefrom only as provided in this Agreement. On each day when a
Scheduled Payment is made to the Trustee under the Indenture, the Trustee upon
receipt thereof shall immediately deposit the aggregate amount of such
Scheduled Payment in the Certificate Account.
(b) The Trustee shall establish and maintain on behalf of the
Certificateholders a Special Payments Account as one or more accounts, which
shall be non-interest bearing except as provided in Section 4.04. The Trustee
shall hold the Special Payments Account in trust for the benefit of the
Certificateholders and shall make or permit withdrawals therefrom only as
provided in this Agreement. On each day when one or more Special Payments are
made to the Trustee, the Trustee, upon receipt thereof, shall immediately
deposit the aggregate amount of such Special Payments in the Special Payments
Account.
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(c) The Trustee shall present to the Indenture Trustee the X-TRAS on
the date of their stated final maturity or, in the case of any X-TRAS which are
to be redeemed in whole pursuant to the Indenture, on the applicable redemption
date under such Indenture.
(d) The Trustee shall establish and maintain on behalf of the Extension
Option Buyer an ISDA Payment Account as one or more accounts, which shall be
non-interest bearing. The Trustee shall hold the ISDA Payment Account in trust
for the benefit of the Extension Option Buyer and shall make withdrawals
therefrom as provided in the ISDA Master Agreement. On each day when an ISDA
Payment is made to the Trustee by the Company pursuant to the Indenture, the
Trustee, upon receipt thereof, shall immediately deposit such ISDA Payment in
the ISDA Payment Account.
Section 4.02. Distributions from Certificate Account and Special
Payments Account. (a) On each Regular Distribution Date, the Trustee shall
distribute out of the Certificate Account to the Certificateholders all
Scheduled Payments the receipt of which is confirmed by the Trustee on such
date. There shall be so distributed to each Certificateholder of record on the
Record Date with respect to such Regular Distribution Date (other than as
provided in Section 11.01 concerning the final distribution) by check mailed to
such Certificateholder, at the address appearing in the Register, such
Certificateholder's pro rata share (based on the Fractional Undivided Interest
in the Assigned Trust Property held by such Certificateholder) of the total
amount in the Certificate Account, except that, with respect to Certificates
registered on the Record Date in the name of the nominee of the Depositary
(initially, such nominee to be Cede & Co.), such distribution shall be made by
wire transfer in immediately available funds to the account designated by such
nominee. If a Scheduled Payment is not received by the Trustee on the Register
Distribution Date but is received within [five] Business Days thereafter, it
will be distributed on the date so received by the Trustee to such holders of
record. If it is received after such [five] day period, it will be treated as
a Special Payment and distributed as described in paragraph (b) below.
(b) With respect to any Special Payment made under clause (i) of the
definition thereof (to the extent redemption of less than all of the X-TRAS is
made), the Trustee shall select, in such a manner as it shall deem appropriate
and fair, the particular Certificates or portions thereof representing
beneficial ownership of the X-TRAS to be redeemed. Notice of redemption shall
be given by mail not less than 20 nor more than 60 days prior to the date fixed
for redemption of the X-TRAS to the Certificateholders whose Certificates
represent beneficial ownership of the X-TRAS to be redeemed. Upon a redemption
of less than all of the X-TRAS, Certificates representing beneficial ownership
of the X-TRAS selected for redemption will be required to be presented to the
Trustee for cancellation. Upon such presentation, all payments of principal
of, Applicable Premium, and interest on the X-TRAS paid by the Company to the
Trust will be paid to the holders of such Certificates. With respect to any
Special Payment made under clause (ii) or (iii) of the
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definition thereof, there shall be paid to each Certificateholder who has duly
presented for cancellation and not withdrawn its Certificates in compliance
with the provisions of Sections 5.03 and 5.04 an amount equal to the aggregate
purchase price applicable to the X-TRAS beneficially owned by such
Certificateholder in respect of which it has tendered its Certificates. With
respect to any Special Payment made under clauses (i) (to the extent of a
redemption of all of the X-TRAS), (ii) and (iv) of the definition thereof, the
entire amount of such Special Payment deposited in the Special Payments Account
pursuant to Section 4.01(b) will be distributed on, in the case of an early
redemption of all of the X-TRAS, the date of such early redemption, which shall
be a Business Day, and otherwise 20 days after the Trustee has confirmed
receipt of the funds for such Special Payment (or the next Business Day after
such 20th day if such date is not a Business Day). With respect to any such
Special Payment, there shall be distributed to each Certificateholder of record
on the Record Date with respect to such Special Distribution Date (other than
as provided in Section 11.01 concerning the final distribution) by check mailed
to such Certificateholder, at the address appearing in the Register, such
Certificateholder's pro rata share (based on the Fractional Undivided Interest
in the Trust held by such Certificateholder) of the total amount in the Special
Payments Account on account of such Special Payment, except that, with respect
to Certificates registered on the Record Date in the name of the nominee of the
Depositary (initially, such nominee to be Cede & Co.), such distribution shall
be made by wire transfer in immediately available funds to the account
designated by such nominee. The Trustee will mail notice to the
Certificateholders not less than 20 days prior to the Special Distribution Date
on which any Special Payment is scheduled to be distributed by the Trustee
stating such anticipated Special Distribution Date. Each distribution of a
Special Payment, other than the Final Distribution, on a Special Distribution
Date will be made by the Trustee to Certificateholders of record on the 15th
day next preceding such Special Distribution Date.
(c) The Trustee shall, at the expense of the Company, cause notice of
each Special Payment to be mailed to each Certificateholder at his address as
it appears in the Register. In the event of redemption or purchase of X-TRAS
held in the Trust, such notice shall be mailed not less than 20 days prior to
the Special Distribution Date for the Special Payment resulting from such
redemption or purchase, which Special Distribution Date shall be the date of
such redemption or purchase. In the case of any other Special Payments, such
notice shall be mailed as soon as practicable after the Trustee has confirmed
that it has received funds for such Special Payment, stating the Special
Distribution Date for such Special Payment which shall occur not less than 20
days after the date of such notice and as soon as practicable thereafter.
Notices mailed by the Trustee shall set forth:
(i) the Special Distribution Date and the Record Date therefor
(except as otherwise provided in Section 11.01),
(ii) the amount of the Special Payment for each $1,000 face amount
Certificate (taking into account any payment to be made by the Company
pursuant to
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Section 2.03(b)) and the amount thereof constituting principal, premium, if
any, and interest,
(iii) the reason for the Special Payment, and
(iv) if the Special Distribution Date is the same date as a Regular
Distribution Date, the total amount to be received on such date for each
$1,000 face amount Certificate.
If the amount of premium, if any, payable upon the redemption or
purchase of an X-TRAS has not been calculated at the time that the Trustee
mails notice of a Special Payment, it shall be sufficient if the notice sets
forth the other amounts to be distributed and states that any premium received
will also be distributed.
If any redemption of the X-TRAS held in the Trust is cancelled, the
Trustee, as soon as possible after learning thereof, shall cause notice thereof
to be mailed to each Certificateholder at its address as it appears on the
Register.
Section 4.03. Statements to Certificateholders. (a) On each
Distribution Date, the Trustee will include with each distribution to
Certificateholders of a Scheduled Payment or Special Payment, as the case may
be, a statement setting forth the following information (per $1,000 face amount
Certificate as to (i) and (ii) below):
(i) the amount of such distribution allocable to principal and the
amount allocable to premium, if any; and
(ii) the amount of such distribution allocable to interest.
With respect to the Certificates registered in the name of Cede & Co.,
as nominee for the Depositary, on the Record Date prior to each Distribution
Date, the Trustee will request from the Depositary a Securities Position
Listing setting forth the names of all Agent Members reflected on the
Depositary's books as holding interests in the Certificates on such Record
Date. On each Distribution Date, the Trustee will mail to each such Agent
Member the statement described above and will make available additional copies
as requested by such Agent Member for forwarding to holders of interests in the
Certificates.
(b) Within a reasonable period of time after the end of each calendar
year but not later than the latest date permitted by law, the Trustee shall
furnish to each Person who at any time during such calendar year was a
Certificateholder of record a statement containing the sum of the amounts
determined pursuant to clauses (a)(i) and (a)(ii) above with respect to the
Trust for such calendar year or, in the event such Person was a
Certificateholder of record during a portion of such calendar year, for such
portion of such
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year, and such other items as are readily available to the Trustee and which a
Certificateholder shall reasonably request as necessary for the purpose of such
Certificateholder's preparation of its federal income tax returns. Such
statement and such other items shall be prepared on the basis of information
supplied to the Trustee by the Agent Members and shall be delivered by the
Trustee to such Agent Members to be available for forwarding by such Agent
Members to the holders of interests in the Certificates in the manner described
in Section 4.03(a).
Section 4.04. Investment of Special Payment Moneys. Any money
received by the Trustee pursuant to Section 4.01(b) representing a Special
Payment which is not to be promptly distributed shall, to the extent
practicable, be invested in Permitted Investments by the Trustee pending
distribution of such Special Payment pursuant to Section 4.02. Any investment
made pursuant to this Section 4.04 shall be in such Permitted Investments
having maturities not later than the date that such moneys are required to be
used to make the payment required under Section 4.02 on the applicable Special
Distribution Date and the Trustee shall hold any such Permitted Investments
until maturity. The Trustee shall have no liability with respect to any
investment made pursuant to this Section 4.04, other than by reason of the
willful misconduct or negligence of the Trustee. All income and earnings from
such investments shall be distributed on such Special Distribution Date as part
of such Special Payment.
Section 4.05. Payments from ISDA Payment Account. With respect to an
ISDA Payment received by the Trust on the Final Distribution Date and deposited
in the ISDA Payment Account, the Trustee shall withdraw such ISDA Payment from
the ISDA Payment Account and pay such amount by wire transfer on the Final
Distribution Date to the Extension Option Buyer to an account designated by it
pursuant to the ISDA Master Agreement. With respect to all other ISDA Payments
deposited in the ISDA Payment Account, the Trustee shall withdraw such ISDA
Payment from the ISDA Payment Account and pay such amount by wire transfer to
the Extension Option Buyer to the account designated by it pursuant to the ISDA
Master Agreement on the following dates: (i) in the event of an ISDA Payment
made pursuant to the Company's exercise of its right of redemption pursuant to
Section 7.01(b) of the Indenture, on the date of payment of the redemption
price thereunder; (ii) in the event of an ISDA Payment made pursuant to Section
5.03 of this Agreement, on the Change of Control Purchase Date; (iii) in the
event of an ISDA Payment made pursuant to Section 5.04 of this Agreement, on
the Excess Proceeds Purchase Date; (iv) in the event of an ISDA Payment made
pursuant to Sections 6.02, 6.03 or 6.04 of the Indenture, on the date of
deposit referred to therein; and (v) in the event of an ISDA Payment made
pursuant to Section 5.03 of the Indenture, on the date of deposit of such
payment with the Trust.
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ARTICLE V
THE COMPANY
Section 5.01. Maintenance of Corporate Existence. The Company, at its
own cost and expense, will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, rights and
franchises, except as otherwise specifically permitted in Section 5.02;
provided, however, that the Company shall not be required to preserve any right
or franchise if the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company.
Section 5.02. Covenant of the Company Not to Merger, Consolidate, Sell
or Convey Property Except Under Certain Conditions. Nothing contained in this
Agreement or in any of the Certificates shall prevent any consolidation of the
Company with, or merger of the Company into, any other corporation or
corporations (whether or not affiliated with the Company), or successive
consolidations or mergers to which the Company or its successor or successors
shall be a party or parties, shall prevent any sale, lease or conveyance of the
property of the Company as an entirety or substantially as an entirety, shall
prevent any consolidation of any Person with, or the merger of any Person into,
the Company or shall prevent any sale, lease or conveyance of the property of
any Person as an entirety or substantially as an entirety to the Company;
provided that, and the Company hereby covenants and agrees, upon any such
consolidation, merger, sale, lease or conveyance, the due and punctual
performance and observance of each covenant and condition of this Agreement to
be performed or observed by the Company, shall be expressly assumed, by an
agreement in form and substance reasonably satisfactory to the Trustee, duly
authorized, executed and delivered to the Trustee by the corporation formed by
such consolidation, or into which the Company shall have been merged, or which
shall have acquired such property; provided further that the corporation formed
by such consolidation or into which the Company merged or the Person which
acquired by conveyance or sale, or which leases, the properties and assets of
the Company as an entirety or substantially as an entirety shall be a
corporation organized and existing under the laws of the United States of
America, any State thereof or the District of Columbia; provided further that
immediately after giving effect to such transaction, and treating any
indebtedness which becomes an obligation of the Company or a Subsidiary as a
result of such transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of Default,
shall have happened and be continuing.
In case of any consolidation, merger, sale, lease or conveyance
referred to in, and in accordance with, Section 5.02, and following such an
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it
had been named herein as Company.
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The Trustee, subject to the provisions of Sections 7.1 and 7.3, may
receive an Opinion of Counsel from the Company as conclusive evidence that any
such consolidation, merger, sale, lease or conveyance, and any such assumption,
and any such liquidation or dissolution, complies with the applicable
provisions of this Agreement and that all conditions precedent herein provided
for relating to such transactions have been complied with.
Section 5.03. Change in Control. Upon the occurrence of a Change in
Control (the effective date of such Change in Control being the "Change in
Control Date"), each Certificateholder shall have the right to direct the
Trustee to require the Company to repurchase (a "Required Repurchase") all or
any part of the X-TRAS beneficially owned by such Certificateholder at a
repurchase price payable in cash equal to 101% of the principal amount of such
X-TRAS together with accrued interest to the Change in Control Purchase Date
(as defined below) (the "Change in Control Purchase Price"), plus (in the
aggregate with all other beneficially owned X-TRAS repurchased pursuant to this
Section 5.03) the ISDA Amount, if any, as of the Change in Control Purchase
Date as determined by the Extension Option Buyer and notified to the Company,
the Indenture Trustee and the Trustee by 10:00 a.m., New York City time, on
such date.
(a) Within 30 days following the Change in Control Date, the Company
shall mail a notice (the "Required Repurchase Notice") to each
Certificateholder with copies to the Indenture Trustee, the Trust and the
Extension Option Buyer stating:
(i) that a Change in Control has occurred and that such
Certificateholder has the right to direct the Trustee to require the
Company to repurchase all or any part of the X-TRAS beneficially owned by
such Certificateholder at the Change in Control Purchase Price upon
presentation for cancellation of the related Certificates;
(ii) the Change in Control Purchase Price;
(iii) the date on which any Required Repurchase shall be made (which
shall be no earlier than 60 days nor later than 90 days from the date
such notice is mailed) (the "Change in Control Purchase Date");
(iv) the name and address of the Paying Agent; and
(v) the procedures that Certificateholders must follow to cause the
X-TRAS beneficially owned by them to be repurchased, which shall be
consistent with this Section and the Indenture.
(b) Certificateholders electing to have X-TRAS beneficially owned by
them repurchased must deliver a written notice (the "Change in Control Purchase
Notice") to the X-TRAS Paying Agent (initially the Indenture Trustee) at its
corporate trust office in Detroit,
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Michigan, or any other office of the X-TRAS Paying Agent maintained for such
purposes, not later than 30 days prior to the Change in Control Purchase Date.
The Change in Control Purchase Notice shall state: (i) the portion of the
principal amount of any X-TRAS beneficially owned by the Certificateholder to
be repurchased, which portion must be $1,000 or an integral multiple thereof;
(ii) that such X-TRAS are to be repurchased by the Company pursuant to the
change in control provisions of the Indenture and the Trust Agreement; and
(iii) unless the Certificates evidencing beneficial ownership of the X-TRAS to
be repurchased are represented by one or more Global Certificates, the
certificate numbers of the Certificates to be delivered by the
Certificateholder thereof the X-TRAS in respect of which are to be repurchased
by the Company. Any Change in Control Purchase Notice may be withdrawn by the
Certificateholder by a written notice of withdrawal delivered to the Paying
Agent not later than three Business Days prior to the Change in Control
Purchase Date. The notice of withdrawal shall state the principal amount of
beneficially owned X-TRAS as to which the withdrawal notice relates and the
principal amount of such beneficially owned X-TRAS, if any, which remains
subject to a Change in Control Purchase Notice.
If Certificates are represented by a Global Note (as described in
Section 3.05), the Depositary or its nominee will be the Holder of such
Certificates and therefore will be the only entity that may elect a Required
Repurchase of the beneficially owned X-TRAS in respect of such Certificates.
To obtain repayment pursuant to this Section 5.03 with respect to the X-TRAS in
respect of such Certificates, the beneficial owner of such Certificates must
provide to the broker or other entity through which it holds the beneficial
interest in such Certificates (i) the Change in Control Purchase Notice signed
by such beneficial owner, and such signature must be guaranteed by a member
firm of a registered national securities exchange or of the National
Association of Securities Dealers, Inc. or a commercial bank or trust company
having an office or correspondent in the United States, and (ii) instructions
to such broker or other entity to notify the Depositary of such beneficial
owner's desire to obtain repayment pursuant to this Section 5.03. Such broker
or other entity will provide to the Paying Agent (i) the Change in Control
Purchase Notice received from such beneficial owner and (ii) a certificate
satisfactory to the X-TRA Paying Agent from such broker or other entity stating
that it represents such beneficial owner. Such broker or other entity will be
responsible for disbursing any payments it receives pursuant to this Section
3.01 to such beneficial owner.
(c) Payment to a Certificateholder of the Change in Control Purchase
Price for X-TRAS beneficially owned by it for which a Change in Control
Purchase Notice has been delivered and not withdrawn is conditioned (except in
the case of Certificates represented by one or more Global Certificates) upon
presentation for cancellation of the Certificates in respect of such X-TRAS
(together with necessary endorsements) to the X-TRAS Paying Agent at its office
in Detroit, Michigan, or any other office of the X-TRAS Paying Agent maintained
for such purpose, at any time (whether prior to, on or after the Change in
Control Purchase Date) after the delivery of such Change in Control Purchase
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Notice. Payment of the Change in Control Purchase Price for the Certificates
in respect of such X-TRAS will be made promptly following the later of the
Change in Control Purchase Date or the time of presentation for cancellation of
such Certificates. If the X-TRAS Paying Agent holds, in accordance with the
terms of the Indenture, money sufficient to pay the Change in Control Purchase
Price of the Certificates in respect of such X-TRAS on the Business Day
following the Change in Control Purchase Date, then, on and after such date,
interest will cease accruing on such X-TRAS, whether or not such Certificates
are delivered to the X-TRAS Paying Agent, and all other rights of the
Certificateholder shall terminate (other than the right to receive the Change
in Control Purchase Price upon delivery of the Certificates in respect of such
X-TRAS).
(d) The Company shall comply with the provisions of Regulation 14E
and any other tender offer rules under the Exchange Act which may then be
applicable in connection with any offer by the Company to repurchase X-TRAS
beneficially owned by a Certificateholder at the option of Certificateholder
upon a Change in Control.
(e) No beneficially owned X-TRAS may be repurchased by the Company
as a result of a Change in Control if there has occurred and is continuing an
Event of Default (other than a default in the Payment of the Change in Control
Purchase Price with respect to the X-TRAS).
(f) Upon receipt by the Trustee of the ISDA Amount payable pursuant
to the first sentence of this Section 5.03, such amount shall be deposited in
the ISDA Payment Account and thereafter promptly paid to the Extension Option
Buyer.
Section 5.04 Excess Proceeds of Asset Sales. In the event that the
Company is required under Section 4.05 of the Indenture to make an offer to
purchase from holders of X-TRAS on a pro rata basis an aggregate principal
amount of X-TRAS equal to the Excess Proceeds resulting from an Asset Sale,
each Certificateholder shall have the right to direct the Trustee to require
the Company to repurchase a pro rata portion of the X-TRAS beneficially owned
by such Certificateholder at a repurchase price payable in cash equal to 100%
of the principal amount or portion thereof of X-TRAS to be repurchased together
with accrued and unpaid interest, if any, to the Excess Proceeds Purchase Date
(as defined herein), plus the ISDA Amount, if any, as of the Excess Proceeds
Purchase Date as determined by the Extension Option Buyer as of such date and
notified to the Company, the Indenture Trustee and the Trustee by 10 a.m., New
York City time, on such date.
(a) Within 30 days after the end of the Application Period, the
Company shall mail a notice (the "Excess Proceeds Repurchase Notice") to
each Holder with copies to the Indenture Trustee, Pass Through Trustee
and Extension Option Buyer stating:
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(i) that the Company is making an Excess Proceeds Offer
pusuant to Section 3.01 of the Sixth Supplemental Indenture;
(ii) the Excess Proceeds Purchase Price;
(iii) the date on which any Exceeds Proceeds Repurchase shall
be made (which shall be no earlier than 60 days nor later than 90
days from the date such notice is mailed) (the "Excess Proceeds
Purchase Date");
(iv) the name and address of the X-TRAS Paying Agent; and
(v) the procedures that Holders must follow to cause the
X-TRAS to be repurchased, which shall be consistent with this
Section and the Indenture.
(b) Certificateholders electing to have X-TRAS beneficially owned by
them repurchased must deliver a written notice (the "Excess Proceeds
Purchase Notice") to the X-TRAS Paying Agent at its corporate trust
office in Detroit, Michigan, or any other office of the X-TRAS Paying
Agent maintained for such purposes, not later than 30 days prior to the
Excess Proceeds Purchase Date. The Excess Proceeds Purchase Notice shall
state: (i) the portion of the principal amount of any beneficially owned
X-TRAS of the Certificateholder to be repurchased, which portion must be
$1,000 or an integral multiple thereof; (ii) that such X-TRAS are to be
repurchased by the Company pursuant to the Exceeds Proceeds Offer
provisions of the Indenture; and (iii) unless the Certificates evidencing
beneficial ownership of the X-TRAS to be repurchased are represented by
one or more Global Certificates, the certificate numbers of the
Certificates to be delivered by the Certificateholder thereof for
repurchase by the Company. Any Excess Proceeds Purchase Notice may be
withdrawn by the Certificateholder by a written notice of withdrawal
delivered to the X-TRAS Paying Agent not later than three Business Days
prior to the Excess Proceeds Purchase Date. The notice of withdrawal
shall state the principal amount of beneficially owned X-TRAS as to which
the withdrawal notice relates and the principal amount of such beneficially
owned X-TRAS, if any, which remains subject to a Excess Proceeds Purchase
Notice.
If Certificates are represented by a Global Note (as described in
Section 3.05), the Depositary or its nominee will be the Holder of such
Certificates and therefore will be the only entity that may elect an
Excess Proceeds Repurchase of the beneficially owned X-TRAS in respect of
such Certificates. To obtain repayment pursuant to this Section 5.04
with respect to the X-TRAS in respect of such Certificates, the
beneficial owner of such Certificates must provide to the broker or other
entity through which it holds the beneficial interest in such
Certificates (i) the Excess Proceeds Purchase Notice signed by such
beneficial owner, and such signature
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must be guaranteed by a member firm of a registered national securities
exchange or of the National Association of Securities Dealers, Inc. or a
commercial bank or trust company having an office or correspondent in the
United States, and (ii) instructions to such broker or other entity to
notify the Depositary of such beneficial owner's desire to obtain repayment
pursuant to this Section 5.04. Such broker or other entity will provide to
the X-TRAS Paying Agent (i) the Excess Proceeds Purchase Notice received
from such beneficial owner and (ii) a certificate satisfactory to the
X-TRAS Paying Agent from such broker or other entity stating that it
represents such beneficial owner. Such broker or other entity will be
responsible for disbursing any payments it receives pursuant to this
Section 3.01 to such beneficial owner.
(c) Payment to a Certificateholder of the Excess Proceeds Purchase
Price for beneficially owned X-TRAS for which a Excess Proceeds Purchase
Notice has been delivered and not withdrawn is conditioned (except in the
case of Certificates represented by one or more Global Certificates) upon
presentation for cancellation of the Certificates in respect of such
X-TRAS (together with necessary endorsements) to the X-TRAS Paying Agent
at its office in Detroit, Michigan, or any other office of the X-TRAS
Paying Agent maintained for such purpose, at any time (whether prior to,
on or after the Excess Proceeds Purchase Date) after the delivery of such
Excess Proceeds Purchase Notice. Payment of the Excess Proceeds Purchase
Price for the Certificates in respect of such X-TRAS will be made
promptly following the later of the Excess Proceeds Purchase Date or the
time of delivery of such Certificates. If the X-TRAS Paying Agent
holds, in accordance with the terms of the Indenture, money sufficient to
pay the Excess Proceeds Purchase Price of the Certificates in respect of
such X-TRAS on the Business Day following the Excess Proceeds Purchase
Date, then, on and after such date, interest will cease accruing, and all
other rights of the Holder shall terminate (other than the right to
receive the Excess Proceeds Purchase Price upon delivery of the X-TRAS).
(d) The Company shall comply with the provisions of Regulation 14E
and any other tender offer rules under the Exchange Act, which may then
be applicable in connection with any Excess Proceeds Offer.
(e) Upon receipt by the Trustee of the ISDA Amount payable pursuant
to the first sentence of this Section 5.04, such amount shall be
deposited in the ISDA Payment Account and thereafter promptly paid to the
Extension Option Buyer.
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ARTICLE VI
DEFAULT
Section 6.01. Events of Default. If any Indenture Default under the
Indenture (an "Event of Default") shall occur and be continuing, then, and in
each and every case, so long as such Event of Default shall be continuing, the
Trustee may vote the X-TRAS, and upon the direction of Certificateholders
evidencing Fractional Undivided Interests aggregating not less than a majority
in interest in the Assigned Trust Property, the Trustee shall vote, in favor of
directing the Indenture Trustee to declare the unpaid principal amount of the
X-TRAS then outstanding and accrued interest thereon to be due and payable
under, and in accordance with the provisions of, the Indenture. In addition,
if an Indenture Default shall have occurred and be continuing under the
Indenture, the Trustee may in accordance with the Indenture vote the X-TRAS to
direct the Indenture Trustee regarding the exercise of remedies provided in
Article IV of the Indenture. Notwithstanding the provisions of Section 4.02,
if in connection with any Event of Default as to which moneys are collected by
the Trustee the amounts paid by the Company are less than the amounts due in
respect of (i) the principal of and interest on the X-TRAS and (ii) the ISDA
Amount, if any, the amounts received by the Trustee will be distributed on a
pro rata basis to the Certificateholders, on the one hand, and the Extension
Option Buyer, on the others; provided that no such distribution shall affect
the rights of the Trustee to demand and receive payment in full of all amounts
due from the Company.
In addition, after an Event of Default shall have occurred and be
continuing with respect to the X-TRAS, the Trustee may in its discretion, and
upon the direction of the Certificateholders evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Assigned
Trust Property shall, by such officer or agent as it may appoint, sell, convey,
transfer and deliver the X-TRAS, without recourse to or warranty by the Trustee
or any Certificateholder, to any Person. In any such case, the Trustee shall
sell, assign, contract to sell or otherwise dispose of and deliver the X-TRAS
at public or private sale, at any location at the option of the Trustee, all
upon such terms and conditions as it may reasonably deem advisable and at such
prices as it may reasonably deem advisable, for cash. If the Trustee so decides
or is required to sell or otherwise dispose of the X-TRAS pursuant to this
Section, the Trustee shall take such of the actions described above as it may
reasonably deem most effectual to complete the sale or other disposition of the
X-TRAS, so as to provide for the payment in full of all amounts due on the
Certificates. The Trustee shall give notice to the Company promptly after any
such sale. Notwithstanding the foregoing, any action taken by the Trustee
under this Section shall not, in the reasonable judgment of the Trustee, be
adverse to the best interests of the Certificateholders.
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Section 6.02. Incidents of Sale of the X-TRAS. Upon any sale of the
X-TRAS made either under the power of sale given under this Trust Agreement or
otherwise for the enforcement of this Trust Agreement, the following shall be
applicable:
(1) Certificateholders and Trustee May Purchase the X-TRAS. Any
Certificateholder, the Trustee in its individual or any other capacity or
any other Person may bid for and purchase the X-TRAS, and upon compliance
with the terms of sale, may hold, retain, possess and dispose of the
X-TRAS in their or its or his own absolute right without further
accountability.
(2) Receipt of Trustee Shall Discharge Purchaser. The receipt of
the Trustee or of the officer making such sale shall be a sufficient
discharge to any purchaser for his purchase money, and, after paying such
purchase money and receiving such receipt, such purchaser or his personal
representative or assigns shall not be obliged to see to the application
of such purchase money, or be in any way answerable for any loss,
misapplication or non-application thereof.
(3) Application of Moneys Received upon Sale. Any moneys collected
by the Trustee upon any sale made either under the power of sale given by
this Agreement or otherwise for the enforcement of this Agreement, shall
be applied as provided in Section 4.02. If in connection with any Event
of Default as to which moneys are collected by the Trustee the amounts
collected are less than the amounts due in respect of (i) the principal
of and interest on the X-TRAS and (ii) the ISDA Amount, if any, the
amounts received by the Trustee will be distributed on a pro rata basis
to the Certificateholders, on the one hand, and the Extension Option
Buyer, on the others; provided that no such distribution shall affect the
rights of the Trustee to demand and receive payment in full of all
amounts due from the Company.
Section 6.03. Judicial Proceedings Instituted by Trustee. (a)
Trustee May Bring Suit. If there shall be a failure to make payment of the
principal of, premium, if any, or interest on any X-TRAS, then the Trustee, as
holder of such X-TRAS, to the extent permitted by and in accordance with the
terms of the Indenture, shall be entitled and empowered to institute any suits,
actions or proceedings at law, in equity or otherwise, for the collection of
the sums so due and unpaid on such X-TRAS and may prosecute any such claim or
proceeding to judgment or final decree with respect to the whole amount of any
such sums so due and unpaid.
(b) Trustee May File Proofs of Claim; Appointment of Trustee as
Attorney-in-Fact in Judicial Proceedings. The Trustee in the name of the Trust
or as attorney-in-fact for the Certificateholders, or in any one or more of
such capacities (irrespective of whether distributions on the Certificates
shall then be due and payable, or the payment of the principal on the X-TRAS
shall then be due and payable, as therein expressed
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or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand to the Indenture Trustee for the payment of overdue
principal, premium (if any) or interest on the X-TRAS), shall be entitled and
empowered to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trust and of the
Certificateholders allowed in any receivership, insolvency, bankruptcy,
liquidation, readjustment, reorganization or any other judicial proceedings
relative to the Company, its creditors or property. Any receiver, assignee,
trustee, liquidator, sequestrator (or similar official) in any such judicial
proceeding is hereby authorized by each Certificateholder to make payments in
respect of such claim to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Certificateholders, to
pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
Nothing contained in this Agreement shall be deemed to give to the Trustee any
right to accept or consent to any plan of reorganization or otherwise by action
of any character in any such proceeding to waive or change in any way any right
of any Certificateholder.
Section 6.04. Control by Certificateholders. Subject to Section 6.03
and the Indenture, the Certificateholders holding Certificates evidencing
Fractional Undivided Interests aggregating not less than a majority in interest
in the Assigned Trust Property shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
with respect to the Trust or pursuant to the terms of the Indenture, or
exercising any trust or power conferred on the Trustee under this Agreement or
the Indenture, including any right of the Trustee as holder of the X-TRAS,
provided that
(1) such Direction shall not be in conflict with any rule of law or
with this Agreement and would not involve the Trustee in personal
liability or expense,
(2) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to the Certificateholders not taking part
in such Direction, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such Direction.
Section 6.05. Waiver of Past Defaults. Subject to the Indenture, the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Assigned
Trust Property (i) may on behalf of all of the Certificateholders waive any
past Event of Default hereunder and its consequences or (ii) may direct the
Trustee to instruct the Indenture Trustee to waive any past Indenture Default
under the Indenture and its consequences and thereby annul any Direction given
by such Certificateholders or the Trustee to the Indenture Trustee with respect
thereto, except a default:
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(1) in the deposit of any Scheduled Payment or Special Payment under
Section 4.01 or in the distribution of any payment under Section 4.02 on
the Certificates, or
(2) in the payment of the principal of (premium, if any) or interest
on the X-TRAS, or
(3) in respect of a covenant or provision hereof which under Article
X cannot be modified or amended without the consent of each
Certificateholder holding an Outstanding Certificate affected thereby or
the Extension Option Buyer.
Upon any such waiver, such default shall cease to exist with respect to
the Certificates and any Event of Default arising therefrom shall be deemed to
have been cured for every purpose and any direction given by the Trustee on
behalf of the Certificateholders to the Indenture Trustee shall be annulled
with respect thereto; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon. Upon
any such waiver, the Trustee shall vote the X-TRAS issued under the relevant
Indenture to waive the corresponding Indenture Default.
Section 6.06. Right of Certificateholders to Receive Payments Not to
Be Impaired. Anything in this Agreement to the contrary notwithstanding,
including, without limitation, Section 6.07 hereof, but subject to the
Indenture, the right of any Certificateholder to receive distributions of
payments required pursuant to Section 4.02 hereof on the Certificates when due,
or to institute suit for the enforcement of any such payment on or after the
applicable Regular Distribution Date or Special Distribution Date, shall not be
impaired or affected without the consent of such Certificateholder.
Section 6.07. Certificateholders May Not Bring Suit Except Under
Certain Conditions. A Certificateholder shall not have the right to institute
any suit, action or proceeding at law or in equity or otherwise with respect to
this Agreement, for the appointment of a receiver or for the enforcement of any
other remedy under this Agreement, unless:
(1) such Certificateholder previously shall have given written
notice to the Trustee of a continuing Event of Default;
(2) Certificateholders holding Certificates evidencing Fractional
Undivided Interests aggregating not less than 25% of the Assigned Trust
Property shall have requested the Trustee in writing to institute such
action, suit or proceeding and shall have offered to the Trustee
indemnity as provided in Section 7.03(e);
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(3) the Trustee shall have refused or neglected to institute such an
action, suit or proceeding for 60 days after receipt of such notice,
request and offer of indemnity; and
(4) no direction inconsistent with such written request shall have
been given to the Trustee during such 60-day period by Certificateholders
holding Certificates evidencing Fractional Undivided Interests
aggregating not less than a majority in interest in the Assigned Trust
Property.
It is understood and intended that no one or more of the
Certificateholders shall have any right in any manner whatsoever hereunder or
under the Certificates to (i) surrender, impair, waive, affect, disturb or
prejudice any property in the Assigned Trust Property or the lien of any
Indenture on any property subject thereto, or the rights of the
Certificateholders or the holders of the X-TRAS, (ii) obtain or seek to obtain
priority over or preference with respect to any other such Certificateholder or
(iii) enforce any right under this Agreement, except in the manner herein
provided and for the equal, ratable and common benefit of all the
Certificateholders subject to the provisions of this Agreement.
Section 6.08. Remedies Cumulative. Every remedy given hereunder to
the Trustee or to any of the Certificateholders shall not be exclusive of any
other remedy or remedies, and every such remedy shall be cumulative and in
addition to every other remedy given hereunder or now or hereafter given by
statute, law, equity or otherwise.
ARTICLE VII
THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities. (a) Except during
the continuance of an Event of Default, the Trustee undertakes to perform such
duties as are specifically set forth in this Agreement, and no implied
covenants or obligations shall be read into this Agreement against the Trustee.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of its
own affairs.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
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(1) this Subsection shall not be construed to limit the effect of
subsection (a) of this Section; and
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent
facts.
(d) Whether or not herein expressly so provided, every provision of
this Trust Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
Section 7.02. Notice of Defaults. As promptly as practicable after,
and in any event within 90 days after, the occurrence of any default (as such
term is defined below) hereunder, the Trustee shall transmit by mail to the
Company, the Indenture Trustee and the Certificateholders in accordance with
Section 313(c) of the Trust Indenture Act, notice of such default hereunder
known to the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default on the payment of the
principal, premium, if any, or interest on any X-TRAS, the 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 Trustee in good faith determine that the withholding of such
notice is in the interests of the Certificateholders. For the purpose of this
Section, the term "default" means any event that is, or after notice or lapse
of time or both would become, an Event of Default.
Section 7.03. Certain Rights of Trustee. Subject to the provisions of
Section 315 of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting in reliance upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture 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) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a written description of the subject matter
thereof accompanied by an Officer's Certificate and an Opinion of Counsel
as provided in Section 1.02 of this Agreement;
(c) whenever in the administration of this Agreement the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein
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specifically prescribed) may, in the absence of bad faith on its part, rely
upon an Officer's Certificate of the Company or the Indenture Trustee;
(d) the Trustee may consult with counsel 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;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement at the Direction of any
of the Certificateholders pursuant to this Agreement, unless such
Certificateholders shall have offered to the Trustee reasonable security
or indemnity against the cost, expenses and liabilities which might be
incurred by it in compliance with such Direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture or other paper or document;
(g) the Trustee may execute any of the trusts or powers under this
Agreement or perform any duties under this Agreement either directly or
by or through agents or attorneys, and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it under this Agreement;
(h) the 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 the Certificateholders holding Certificates evidencing
Fractional Undivided Interests aggregating not less than a majority in
interest in the Assigned Trust Property relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Agreement; and
(i) the Trustee shall not be required to expend or risk its own
funds in the performance of any of its duties under this Agreement, or in
the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk is not reasonably assured to it.
Section 7.04. Not Responsible for Recitals or Issuance of
Certificates. The recitals contained herein and in the Certificates, except the
certificates of authentication, shall not be taken as the statements of the
Trustee, and the Trustee assumes no responsibility for their correctness.
Subject to Section 7.15, the Trustee makes no representations as to the
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validity or sufficiency of this Agreement, any X-TRAS or the Certificates,
except that the Trustee hereby represents and warrants that this Agreement has
been [and the Registration Rights Agreement] and each Certificate will be,
executed, authenticated and delivered by one of its officers who is duly
authorized to execute, authenticate and deliver such document on its behalf.
Section 7.05. May Hold Certificates. The Trustee, any Paying Agent,
Registrar or any of their Affiliates or any other agent in their respective
individual or any other capacity may become the owner or pledgee of
Certificates and, subject to Sections 310(b) and 311 of the Trust Indenture
Act, if applicable, may otherwise deal with the Company or the Indenture
Trustee with the same rights it would have if it were not Trustee, Paying
Agent, Registrar or such other agent.
Section 7.06. Money Held in Trust. Money held by the Trustee or the
Paying Agent in trust hereunder need not be segregated from other funds except
to the extent required herein or by law and neither the Trustee nor the Paying
Agent shall have any liability for interest upon any such moneys except as
provided for herein.
Section 7.07. Compensation and Reimbursement. The Company agrees:
(a) to pay, or cause to be paid, to the Trustee from time to time
reasonable compensation for all services rendered by it hereunder as the
Company and the Trustee shall agree in writing (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust); and
(b) except as otherwise expressly provided herein, to reimburse, or
cause to be reimbursed, the Trustee upon its request for all reasonable
out-of-pocket expenses, disbursements and advances incurred or made by
the Trustee in accordance with any provision of this 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, willful misconduct or bad faith or
as may be incurred due to the Trustee's breach of its representations and
warranties set forth in Section 7.15; and
(c) to the fullest extent permitted by law, to indemnify the Trustee
or any predecessor Trustee for, and to hold the Trustee harmless against,
any loss, damage, claim, liability, penalty or reasonable expenses
incurred without negligence, bad faith or willful misconduct on its part,
arising out of or in connection with the acceptance or administration of
this Agreement, the Certificates, the ISDA Master Agreement or the
Purchase Agreement, including the reasonable costs and expenses
(including reasonable counsel fees and expenses) of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties
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hereunder, except any such cost or expense as may be attributable to the
Trustee's negligence, bad faith or willful misconduct.
The Trustee shall be entitled to reimbursement from the Company for any
tax incurred without negligence, bad faith or willful misconduct, on its part,
arising out of or in connection with the acceptance or administration of such
Trust (other than any tax attributable to the Trustee's compensation for
serving as such), including any reasonable costs and expenses incurred in
contesting the imposition of any such tax.
Section 7.08. Corporate Trustee Required; Eligibility. There shall
at all times be a Trustee hereunder which shall be eligible to act as a trustee
under Section 310(a) of the Trust Indenture Act and shall have a combined
capital and surplus of at least $75,000,000 (or a combined capital and surplus
in excess of $5,000,000 and the obligations of which, whether now in existence
or hereafter incurred, are fully and unconditionally guaranteed by a
corporation organized and doing business under the laws of the United States,
any state or territory thereof or of the District of Columbia and having a
combined capital and surplus of at least $75,000,000). If such corporation
publishes reports of conditions at least annually, pursuant to law or to the
requirements of federal, state, territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section 7.08, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
conditions so published.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.08 to act as Trustee, the
Trustee shall resign immediately as Trustee in the manner and with the effect
specified in Section 7.09.
Section 7.09. Resignation and Removal; Appointment of Successor. (a)
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 7.10.
(b) The Trustee may resign at any time as trustee by giving prior
written notice thereof to the Company, the Authorized Agents and the Indenture
Trustee. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Company, the Authorized Agents, the Indenture Trustee and
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Direction of the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Assigned
Trust Property delivered to the Trustee, the Company and the Indenture
Trustee.
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(d) If at any time:
(1) the Trustee shall fail to comply with Section 310 of the Trust
Indenture Act, if applicable, after written request therefor by the
Company or by any Certificateholder who has been a bona fide
Certificateholder for at least six months; or
(2) the Trustee shall cease to be eligible under Section 7.08 and
shall fail to resign after written request therefor by the Company or by
any such Certificateholder; or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any case, (i) the Company may remove the Trustee or (ii) any
Certificateholder who has been a bona fide Certificateholder for at least six
months may, on behalf of itself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
(e) If a Responsible Officer of the Trustee shall obtain actual
knowledge of an Avoidable Tax which has been or is likely to be asserted, the
Trustee shall promptly notify the Company and shall, within 30 days of such
notification, resign hereunder unless within such 30-day period the Trustee
shall have received notice that the Company has agreed to pay such tax. The
Company shall promptly appoint a successor Trustee in a jurisdiction where
there are no Avoidable Taxes.
(f) If the Trustee shall resign, be removed or become incapable of
acting or if a vacancy shall occur in the office of the Trustee for any cause,
the Company shall promptly appoint a successor Trustee. If, within one year
after such resignation, removal or incapability, or other occurrence of such
vacancy, a successor Trustee shall be appointed by Direction of the
Certificateholders holding Certificates evidencing Fractional Undivided
Interests aggregating not less than a majority in interest in the Assigned
Trust Property delivered to the Company, the Indenture Trustee and the
retiring Trustee, and the Company approves such appointment, which approval
shall not be unreasonably withheld, then the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment, become the successor
Trustee and supersede the successor Trustee appointed as provided above. If no
successor Trustee shall have been so appointed as provided above and accepted
appointment in the manner hereinafter provided, any Certificateholder who has
been a bona fide Certificateholder for at least six months may, on behalf of
himself and all others
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similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(g) The successor Trustee shall give notice of the resignation and
removal of the Trustee and appointment of the successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
Certificateholders as their names and addresses appear in the Register. Each
notice shall include the name of such successor Trustee and the address of its
Corporate Trust Office.
Section 7.10. Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute and deliver to the Company, the
Authorized Agents and the Indenture Trustee and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall execute and
deliver an instrument transferring to such successor Trustee all such rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all Assigned Trust Property held by such
retiring Trustee hereunder, subject nevertheless to its lien, if any, provided
for in Section 7.07. Upon request of any such successor Trustee, the Company,
the retiring Trustee and such successor Trustee shall execute and deliver any
and all instruments containing such provisions as shall be necessary or
desirable to transfer and confirm to, and for more fully and certainly vesting
in, such successor Trustee all such rights, powers and trusts.
No institution shall accept its appointment as a Trustee hereunder
unless at the time of such acceptance such institution shall be qualified and
eligible under this Article VII.
Section 7.11. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article VII, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Certificates shall have
been executed or authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such execution or authentication and deliver
the Certificates so executed or authenticated with the same effect as if such
successor Trustee had itself executed or authenticated such Certificates.
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Section 7.12. Maintenance of Agencies. (a) There shall at all times
be maintained an office or agency in the location set forth in Section 12.03
where Certificates may be presented or surrendered for registration of transfer
or for exchange, and for payment thereof and where notices and demands to or
upon the Trustee in respect of such certificates or this Agreement may be
served; provided, however, that, if it shall be necessary that the Trustee
maintain an office or agency in another location (e.g., the Certificates shall
be represented by definitive Certificates and shall be listed on a national
securities exchange), the Trustee will make all reasonable efforts to establish
such an office or agency. Written notice of the location of each such other
office or agency and of any change of location thereof shall be given by the
Trustee to the Company, the Indenture Trustee (at its address as may be
notified to the Trustee) and the Certificateholders. In the event that no such
office or agency shall be maintained or no such notice of location or of change
of location shall be given, presentations and demands may be made and notices
may be served at the Corporate Trust Office of the Trustee.
(b) There shall at all times be a Registrar and a Paying Agent
hereunder with respect to the Certificates. Each such Authorized Agent shall
be a bank or trust company, shall be a corporation organized and doing business
under the laws of the United States or any state, with a combined capital and
surplus of at least $75,000,000, or, if the Trustee shall be acting as the
Registrar or Paying Agent hereunder, a corporation having a combined capital
and surplus in excess of $5,000,000, the obligations of which are guaranteed by
a corporation organized and doing business under the laws of the United States
or any state, with a combined capital and surplus of at least $75,000,000, and
shall be authorized under such laws to exercise corporate trust powers, subject
to supervision by federal or state authorities. The Trustee shall initially be
the Paying Agent and, as provided in Section 3.04, Registrar hereunder with
respect to the Certificates. Each Registrar shall furnish to the Trustee, at
stated intervals of not more than six months, and at such other times as the
Trustee may request in writing, a copy of the Register maintained by such
Registrar.
(c) Any corporation into which any Authorized Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authorized Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authorized Agent, shall be the successor of such Authorized Agent
hereunder, if such successor corporation is otherwise eligible under this
Section, without the execution or filing of any paper or any further act on the
part of the parties hereto or such Authorized Agent or such successor
corporation.
(d) Any Authorized Agent may at any time resign by giving written
notice of resignation to the Trustee, the Company and the Indenture Trustee.
The Company may, and at the request of the Trustee shall, at any time terminate
the agency of any Authorized Agent by giving written notice of termination to
such Authorized Agent and to the Trustee.
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Upon the resignation or termination of an Authorized Agent or in case at any
time any such Authorized Agent shall cease to be eligible under this Section
(when, in either case, no other Authorized Agent performing the functions of
such Authorized Agent shall have been appointed), the Company shall promptly
appoint one or more qualified successor Authorized Agents, reasonably
satisfactory to the Trustee, to perform the functions of the Authorized Agent
which has resigned or whose agency has been terminated or who shall have ceased
to be eligible under this Section. The Company shall give written notice of
any such appointment made by it to the Trustee and the Indenture Trustee; and
in each case the Trustee shall mail notice of such appointment to all
Certificateholders as their names and addresses appear on the Register.
(e) The Company agrees to pay, or cause to be paid, from time to time
to each Authorized Agent reasonable compensation for its services and to
reimburse it for its reasonable expenses.
Section 7.13. Money for Certificate Payments to Be Held in Trust. All
moneys deposited with any Paying Agent for the purpose of any payment on
Certificates shall be deposited and held in trust for the benefit of the
Certificateholders entitled to such payment, subject to the provisions of this
Section. Moneys so deposited and held in trust shall constitute a separate
trust fund for the benefit of the Certificateholders with respect to which such
money was deposited.
The Trustee may at any time, for the purpose of obtaining the
satisfaction and discharge of this Agreement or for any other purpose, direct
any Paying Agent to pay to the Trustee all sums held in trust by such Paying
Agent, such sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Section 7.14. [Intentionally Omitted].
Section 7.15. Representations and Warranties of Trustee. The Trustee
hereby represents and warrants that:
(a) the Trustee is a Delaware banking corporation organized and
validly existing in good standing under the laws of the State of
Delaware;
(b) the Trustee has full power, authority and legal right to
execute, deliver, and perform this Agreement and has taken all necessary
action to authorize the execution, delivery, and performance by it of
this Agreement;
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(c) the execution, delivery and performance by the Trustee of this
Agreement (i) will not violate any provision of United States federal law
or the law of the state of the United States where it is located
governing the banking and trust powers of the Trustee or any order, writ,
judgment, or decree of any court, arbitrator or governmental authority
applicable to the Trustee or any of its assets, (ii) will not violate any
provision of the articles of association or by-laws of the Trustee, or
(iii) will not violate any provision of, or constitute, with or without
notice or lapse of time, a default under, or result in the creation or
imposition of any lien on any properties included in the Assigned Trust
Property pursuant to the provisions of any mortgage, indenture, contract,
agreement or other undertaking to which it is a party, which violation,
default or lien could reasonably be expected to have an adverse effect on
the Trustee's performance or ability to perform its duties hereunder or
thereunder or on the transactions contemplated herein or therein;
(d) the execution and delivery by the Trustee of this Agreement will
not require the authorization, consent, or approval of, the giving of
notice to, the filing or registration with, or the taking of any other
action in respect of, any governmental authority or agency of the United
States or the state of the United States where it is located regulating
the banking and corporate trust activities of the Trustee; and
(e) this Agreement has been duly executed and delivered by the
Trustee and, assuming due execution and delivery thereof by the other
parties thereto, constitutes the legal, valid, and binding agreement of
the Trustee, enforceable against it in accordance with its terms,
provided that enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or similar
laws affecting the rights of creditors generally and (ii) general
principles of equity.
Section 7.16. Withholding Taxes; Information Reporting. The Trust and
the Trustee shall exclude and withhold from each distribution of principal,
premium, if any, and interest and other amounts due under this Agreement or
under the Certificates any and all withholding taxes applicable thereto as
required by law. The Trust shall request, and the Certificateholders shall
provide to the Trust, such forms or certificates as are necessary to establish
an exemption from withholding with respect to each Certificateholder, and any
representations and forms that shall be reasonably required by the Trust to
assist it in determining the extent of, and in fulfilling, its withholding
obligations. The Trustee shall file required forms with applicable
jurisdictions and, unless an exemption from withholding is properly established
by a Certificateholder, shall remit amounts withheld with respect to the
Certificateholder to the applicable jurisdictions. To the extent that the
Trust is required to withhold and pay over any amounts to any authority with
respect to distributions or allocations to any Certificateholder, the amount
withheld shall be deemed to be a distribution in the amount of the withholding
to the Certificateholder. In the event of any claimed over-
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withholding, Certificateholders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not
withheld from actual distributions made, the Trust may reduce subsequent
distributions by the amount of such withholding.
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 8.01. The Company to Furnish Trustee with Names and Addresses
of Certificateholders. The Company will furnish to the Trustee within 15 days
after each Record Date with respect to a Scheduled Payment, and at such other
times as the Trustee may request in writing within 30 days after receipt by the
Company of any such request, a list, in such form as the Trustee may reasonably
require, of all information in the possession or control of the Company as to
the names and addresses of the Certificateholders, in each case as of a date
not more than 15 days prior to the time such list is furnished; provided,
however, that so long as the Trustee is the sole Registrar, no such list need
be furnished; and provided further, however, that no such list need be
furnished for so long as a copy of the Register is being furnished to the
Trustee pursuant to Section 7.12.
Section 8.02. Preservation of Information; Communications to
Certificateholders. The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Certificateholders contained
in the most recent list furnished to the Trustee as provided in Section 7.12 or
Section 8.01, as the case may be, and the names and addresses of
Certificateholders received by the Trustee in its capacity as Registrar, if so
acting. The Trustee may destroy any list furnished to it as provided in
Section 7.12 or Section 8.01, as the case may be, upon receipt of a new list so
furnished.
Section 8.03. Reports by Trustee. Within 60 days after May 15 of each
year commencing with the first full year following the issuance of the
Certificates, the Trustee shall transmit to the Certificateholders, as provided
in Section 313(c) of the Trust Indenture Act, a brief report dated as of such
May 15, if required by Section 313(a) of the Trust Indenture Act.
Section 8.04. Reports by the Company. The Company shall:
(a) file with the Trust, within 30 days after the Company is
required to file the same with the SEC, copies of the annual reports and
of the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may from time to time by
rules and regulations prescribe) which the Company is required to file
with the SEC pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934, as amended; or, if the Company is not required to
file
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information, documents or reports pursuant to either of such sections,
then to file with the Trustee and the SEC, in accordance with rules
and regulations prescribed by the SEC, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to section 13 of the Securities Exchange Act of 1934, as
amended, in respect of a security listed and registered on a national
securities exchange as may be prescribed in such rules and regulations;
(b) file with the Trust and the SEC, in accordance with the rules
and regulations prescribed by the SEC, such additional information,
documents and reports with respect to compliance by the Company with the
conditions and covenants provided for in this Agreement, as may be
required by such rules and regulations, including, in the case of annual
reports, if required by such rules and regulations, certificates or
opinions of independent public accountants;
(c) transmit to all Certificateholders, in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act such
summaries of any information, documents and reports required to be filed
by the Company pursuant to subsections (a) and (b) of this Section 8.04
as may be required by rules and regulations prescribed by the SEC; and
(d) furnish to the Trust, not less often than annually, a brief
certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Company's compliance with all conditions and covenants under this
Agreement (it being understood that for purposes of this paragraph (d),
such compliance shall be determined without regard to any period of grace
or requirement of notice provided under this Agreement).
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
Section 9.01. Supplemental Agreements Without Consent of
Certificateholders. Without the consent of the Certificateholders, the Company
may (but will not be required to), and the Trust (subject to Section 9.03)
shall, at any time and from time to time, enter into one or more agreements
supplemental hereto or, if applicable, to the ISDA Master Agreement in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the Company
herein contained; or
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(2) to add to the covenants, restrictions or obligations of the
Company or Trustee; or
(3) to add to or supplement any security for the benefit of any
Certificateholders; or
(4) to cure any ambiguity or correct or supplement any provision
which may be defective or inconsistent with any other provision in the
Agreement, Indenture or the ISDA Master Agreement or to make such other
provisions as the Company deems necessary or desirable with respect to
matters or questions arising under the Agreement, provided that no such
action materially adversely affects the interests of any
Certificateholders; or
(5) to modify, eliminate or add to the provisions of this Agreement
to such extent as shall be necessary to continue the qualification of
this Agreement (including any supplemental agreement) under the Trust
Indenture Act or under any similar federal statute hereafter enacted, and
to add to this Agreement such other provisions as may be expressly
permitted by the Trust Indenture Act, excluding, however, the provisions
referred to in Section 316(a)(2) of the Trust Indenture Act as in effect
at the date as of which this instrument was executed or any corresponding
provision in any similar federal statute hereafter enacted; or
(6) to evidence and provide for the acceptance of appointment under
this Agreement by the Trustee of a successor Trustee and to add to or
change any of the provisions of this Agreement as shall be necessary to
provide for or facilitate the administration of the Trust, pursuant to the
requirements of Section 7.10; or
(7) to provide the information required under Section 7.12 and
Section 12.03 as to the Trustee; or
(8) to modify or amend any provision of the Agreement that relates
to the ISDA Master Agreement or the Remarketing Procedure so long as such
modification or amendment does not have a material adverse effect on the
Certificateholders; or
(9) to comply with the requirements of the Code;
provided further that no such amendment referred to in the foregoing clauses
(1) through (9) which has a material adverse effect on the Extension Option
Buyer may be entered into without the consent of the Extension Option Buyer,
and no such amendment, as evidenced by an Opinion of Counsel, shall alter the
status of the Trust as a grantor trust under the Code or result in an actual or
constructive sale or exchange of any Certificate for tax purposes.
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Section 9.02. Supplemental Agreements with Consent of
Certificateholders. With the consent of the Certificateholders holding
Certificates evidencing Fractional Undivided Interests aggregating not less
than a majority in interest in the Assigned Trust Property, by Direction of
said Certificateholders delivered to the Company and the Trustee, the Company
may, and the Trustee (subject to Section 9.03) shall, enter into an agreement
or agreements for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying
in any manner the rights and obligations of such Certificateholders under this
Agreement, provided, however, that no such agreement which has a material
adverse effect on the Extension Option Buyer may be entered into without the
consent of the Extension Option Buyer; provided further that no such agreement
shall, without the consent of the Certificateholder of each Outstanding
Certificate affected thereby, be entered into which:
(1) alters in any manner the amount or timing of any receipt by the
Trustee of payments on the X-TRAS held in the Trust or distributions that
are required to be made herein on any Certificate, or changes any date of
payment on any Certificate, or changes the place of payment where, or the
coin or currency in which, any Certificate is payable, or impairs the
right to institute suit for the enforcement of any such payment or
distribution on or after the Regular Distribution Date or Special
Distribution Date applicable thereto; or
(2) permits the disposition of any X-TRAS included in the Assigned
Trust Property except as permitted by this Agreement, or otherwise
deprives such Certificateholder of the benefit of the ownership of the
X-TRAS in the Trust; or
(3) reduces the percentage of the aggregate Fractional Undivided
Interests of the Assigned Trust Property which is required for any such
supplemental agreement which adversely affects in any material respect
the interests of the Certificateholders, or reduces such percentage
required for any waiver of compliance with certain provisions of this
Agreement or certain defaults hereunder and their consequences provided
for in this Agreement; or
(4) modifies any of the provisions of this Section 9.02 or Section
6.05, except to increase any such percentage or to provide that certain
other provisions of this Agreement cannot be modified or waived without
the consent of the Certificateholder of each Certificate affected
thereby; or
(5) results in the exchange or substitution of any Certificates
pursuant to a plan for the refunding or refinancing of such Certificates;
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unless such vote or consent would not, based on the Opinion of Counsel, alter
the status of the Trust as a grantor trust under the Code or result in an
actual or constructive sale or exchange of any X-TRAS for tax purposes.
It shall not be necessary for any Direction of Certificateholders under
this Section to approve the particular form of any proposed supplemental
agreement, but it shall be sufficient if such Direction shall approve the
substance thereof.
Section 9.03. Documents Affecting Immunity or Indemnity. If in the
opinion of the Trustee any document required to be executed by it pursuant to
the terms of Section 9.01 or 9.02 affects any interest, right, duty, immunity
or indemnity in favor of the Trustee under this Agreement, the Trustee may in
its discretion decline to execute such document.
Section 9.04. Execution of Supplemental Agreements. In executing, or
accepting the additional trusts created by, any agreement permitted by this
Article or the modifications thereby of the trusts created by this Agreement,
the Trustee shall be entitled to receive, and shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental agreement is authorized or permitted by this Agreement.
Section 9.05. Effect of Supplemental Agreements. Upon the execution
of any agreement supplemental to this Agreement under this Article, this
Agreement shall be modified in accordance therewith, and such supplemental
agreement shall form a part of this Agreement for all purposes; and every
Holder of a Certificate theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
Section 9.06. Conformity with Trust Indenture Act. Every supplemental
agreement executed pursuant to this Article shall conform to the requirements
of the Trust Indenture Act as then in effect.
Section 9.07. Reference in Certificates to Supplemental Agreements.
Certificates authenticated and delivered after the execution of any
supplemental agreement pursuant to this Article may bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
agreement; and, in such case, suitable notation may be made upon Outstanding
Certificates after proper presentation and demand.
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ARTICLE X
AMENDMENTS TO INDENTURE
Section 10.01. Amendments and Supplements to Indentures. The Trustee,
as holder of the X-TRAS, has the right to vote and give consents and waivers in
respect of the X-TRAS and enforce such other rights of a holder of the X-TRAS
except as otherwise limited by this Agreement or the Indenture. Each
Certificateholder shall be entitled to direct the Trustee to vote a principal
amount of the X-TRAS corresponding to the principal amount of the Certificates
held by such Certificateholder in the manner directed by the Certificateholder.
In the event that the Trust, as holder of any X-TRAS, receives from the Company
or, if applicable, any depositary with respect to the X-TRAS, a request for the
Trustee's consent to any amendment, modification of the X-TRAS, or any document
thereunder, or relating thereto or waiver or receives any other solicitation
for any action with respect to the X-TRAS, the Trustee shall within five
Business Days mail a notice of such proposed amendment, modification, waiver or
solicitation to each Certificateholder registered on the Register as of the
date of such request. The Trustee shall request from the Certificateholders a
Direction as to (a) whether or not to take or refrain from taking any action
which a holder of such X-TRAS has the option to direct, (b) whether or not to
give or execute any waivers, consents, amendments, modifications or supplements
as a holder of such X-TRAS and (c) how to vote any X-TRAS if a vote has been
called for with respect thereto. Provided such a request for Certificateholder
Direction shall have been made, in directing any action or casting any vote or
giving any consent as the holder of any X-TRAS, the Trust shall consent or
vote, or refrain from consenting or voting, in the same proportion as that of
(i) the aggregate face amounts of all Certificates actually voted or not voted
in favor of or for giving consent to such action by such Direction of
Certificateholders to (ii) the aggregate face amount of all Outstanding
Certificates, as of the date determined by the Trustee prior to the date such
vote or consent as a holder of X-TRAS is required; provided, however, that, the
Trustee shall at no time, without the consent of each Certificateholder, vote
in favor or consent to any matter (i) unless such vote or consent would not,
based on an Opinion of Counsel, alter the status of the Trust as a grantor
trust under the Code or result in an actual or constructive sale or exchange of
any X-TRAS for tax purposes, (ii) which would alter the timing or amount of any
payment on the X-TRAS, or (iii) which would result in the exchange or
substitution of any X-TRAS pursuant to a plan for the refunding or refinancing
of such X-TRAS, and without the written consent of the Company. The Trustee
shall have no liability for any failure to act resulting from the
Certificateholders' late return of, or failure to return, directions requested
by the Trustee from the Certificateholders. For purposes of the second
immediately preceding sentence, a Certificate shall have been "actually voted"
if the Holder of such Certificate has delivered to the Trustee an instrument
evidencing such Holder's consent to such Direction prior to two Business Days
before the Trustee directs such action or casts such vote or gives such
consent. Notwithstanding the foregoing, but subject to Section 6.04 and the
Indenture, (i) the Trustee may, in its own
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discretion and at its own direction, consent and notify the Indenture Trustee
of such consent to any amendment, modification, waiver or supplement under the
Indenture (including, without limitation, in respect of the obligations
relating to payment of the ISDA Amount and the provisions of Article X), if an
Event of Default hereunder shall have occurred and be continuing, or if such
amendment, modification or waiver will not adversely affect the interests of
the Certificateholders and (ii) no such amendment, modification or waiver shall
be made that adversely affects in any material respect the interests of the
Extension Option Buyer without its consent.
ARTICLE XI
PAYMENT OF FINAL DISTRIBUTION; TERMINATION OF TRUST
Section 11.01. Payment of Final Distribution. (a) If the X-TRAS are
extended until the Extended Stated Maturity, then, unless the Company exercises
its option to redeem the X-TRAS under Section 7.01(c) of the Indenture (which
option the Company shall be entitled to exercise at any time subsequent to the
delivery of the Extension Notice and prior to the earlier of the pricing of the
remarketing and the Remarketing Deadline upon delivery of an irrevocable notice
of redemption), the interest rate borne by the X-TRAS will be reset on the
pricing of the remarketing effective on and as of the date of closing of the
remarketing in order that the X-TRAS may be remarketed so as to yield net
proceeds in cash at least equal to the sum of (i) 100% of the principal amount
of the X-TRAS plus (ii) the ISDA Amount as of the Exercise Date as calculated
by the Calculation Agent and notified to the Issuer, the Trustee and the
Indenture Trustee within five Business Days thereafter (collectively, the
"Required Remarketing Proceeds"). As more particularly set forth in the next
sentence, it is intended that the portions of the Required Remarketing Proceeds
representing the principal amount of the X-TRAS, together with the amount
payable by the Company pursuant to such sentence, will be sufficient to enable
the Trustee to make the Final Distribution on the Certificates. Accordingly,
the Company shall be obligated to pay to the Trust, simultaneously with the
closing of the remarketing, an amount equal to the interest that would have
accrued on the X-TRAS had they been held by the Trust to the Final Distribution
Date. Upon payment of the Final Distribution to Certificateholders and the
ISDA Amount to the Extension Option Buyer on the Final Distribution Date, the
Company shall be entitled to receive any amounts earned in respect of the
investment by the Trustee of the Required Remarketing Proceeds and the ISDA
Amount in Permitted Investments pursuant to clause (iv) below. In the event
the X-TRAS are remarketed, the Company shall have no obligation to pay the
principal amount of the X-TRAS to the Trust on the Initial Stated Maturity. The
X-TRAS will be remarketed in accordance with the following procedure (the
"Remarketing Procedure"):
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(i) On the Exercise Date and thereafter on the 75th, 60th, 45th,
30th and 15th day prior to the Initial Stated Maturity, Morgan Stanley &
Co. Incorporated (or, subsequent to the Exercise Date, such other
investment banking institution as may be selected as the Remarketing Agent)
will provide the Company with non-binding indications of the interest rate
at which and proceeds for which it believes it could remarket the X-TRAS in
order to yield the Required Remarketing Proceeds.
(ii) Morgan Stanley & Co. Incorporated shall act as the Remarketing
Agent for the X-TRAS unless, no later than 60 days prior to the Final
Distribution Date, the Company shall select another investment banking
institution to remarket the X-TRAS.
(iii) No later than 15 days prior to the Remarketing Deadline, the
Remarketing Agent will commence marketing of the X-TRAS to investors.
(iv) Pricing and closing of the remarketed X-TRAS shall occur at any
time within 10 days prior to the Remarketing Deadline, subject to then
prevailing market conditions and settlement cycles. The Trustee shall
have no obligation to release the X-TRAS for delivery to the purchasers
thereof pursuant to this Section 11.01(a) unless the proceeds from such
purchase shall at least equal the Required Remarketing Proceeds. Upon
completion of the remarketing, the net proceeds thereof, together with
the amount equal to the interest that would have accrued on the X-TRAS
had they been held by the Trust to the Final Distribution Date payable by
the Company pursuant to the first paragraph of this Section 11.01, will
be deposited with the Trustee and invested by the Trustee in Permitted
Investments pending their distribution on the Final Distribution Date.
(v) On the Final Distribution Date, the Trustee shall distribute (x)
an amount equal to 100% of the aggregate principal amount of the X-TRAS
plus accrued interest from the last Interest Payment Date (as defined in
the Indenture) until the Final Distribution Date assuming the X-TRAS had
been outstanding and held by the Trust until such date to the
Certificateholders and (y) an amount equal to the ISDA Amount to the
Extension Option Buyer in accordance with the ISDA Master Agreement.
(vi) The Remarketing Agent will be entitled to underwriter discounts
and commissions, payable at settlement of the Remarketing Procedure,
which will be determined at the time the Remarketing Procedure is
commenced and shall be consistent with then prevailing market practices.
In the event that Morgan Stanley & Co. Incorporated purchases the X-TRAS
pursuant to clause (ix) below, it shall be entitled to underwriter
discounts and commissions, payable at settlement of such purchase, which
will be determined at the time it gives notice of its offer pursuant to
clause (ix) below and shall be consistent with then prevailing market
practices.
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(vii) The Company will cooperate with and provide information
reasonably requested by the Remarketing Agent and (in the event of an
offer to purchase by Morgan Stanley & Co. Incorporated made pursuant to
clause (ix) below) by Morgan Stanley & Co. Incorporated in connection with
the remarketing or purchase of the X-TRAS, as applicable, including,
without limitation, (A) promptly preparing an offering memorandum or
prospectus containing such disclosures as may be required by applicable law
and as may be required by the Remarketing Agent or Morgan Stanley & Co.
Incorporated, as applicable, in its reasonable judgment, (B) executing and
delivering or causing to be executed and delivered legal documentation
(including a purchase agreement or underwriting agreement and registration
rights agreement with customary indemnities, covenants, representations and
warranties, comfort letters and legal opinions) in form and substance
reasonably satisfactory to the Remarketing Agent or Morgan Stanley & Co.
Incorporated, as applicable, (C) providing promptly upon request updated
consolidated financial statements to the date of its latest report filed
with the SEC and (D) to the extent the Company and the Remarketing Agent or
Morgan Stanley & Co. Incorporated, as applicable, deem reasonably necessary
for successful completion of the Remarketing Procedure or the purchase by
Morgan Stanley & Co. Incorporated, as applicable, making available senior
management of the Company for road show and one-on-one presentations.
(viii) The Company may, in its sole discretion, elect to cause the
X-TRAS to be remarketed by conducting an underwritten offering or private
placement thereof on a firm-commitment basis. In such event, the Company
shall notify the Remarketing Agent of such request no later than 70 days
prior to the Final Distribution Date. The Company acknowledges that in
no event shall the Remarketing Agent be deemed by this provision to have
made a commitment to underwrite or place the X-TRAS.
(ix) Regardless of whether it has been selected to act as
Remarketing Agent, Morgan Stanley & Co. Incorporated shall at all times
be permitted to make an offer, on not less than [five] Business Days'
notice, to purchase the X-TRAS on a date not later than the Remarketing
Deadline and bearing a reset interest rate specified by Morgan Stanley &
Co. Incorporated that would result in proceeds in cash equal to the
Required Remarketing Proceeds, which offer the Company and the Trustee
shall be required to accept, unless, on or prior to the date for such
purchase specified in the notice provided by Morgan Stanley & Co.
Incorporated, (A) the Company shall have delivered an irrevocable notice
of redemption pursuant to Section 7.01(c) of the Indenture and Section
11.01(b) of this Agreement or (B) any other party shall have remarketed
the X-TRAS bearing a reset interest rate less than or equal to that
specified by Morgan Stanley & Co. Incorporated for net proceeds in cash
equal to the Required Remarketing Proceeds.
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(x) The Trustee shall be entitled to an indemnity, in form and
substance reasonably satisfactory to it, from the Company against any
loss, liability, damage, claim or expense that it may incur in connection
with the Remarketing Procedure, whether or not the X-TRAS are remarketed,
including liabilities under the Securities Act, and to contribution from
the Company in respect of any payments that the Trustee may be required to
make in respect of any such loss, liability, damage, claim or expense. In
addition, any definitive documentation executed and delivered in connection
with any remarketing of the X-TRAS shall be in form and substance
reasonably satisfactory to the Trustee and its legal counsel.
(xi) The remarketed X-TRAS will bear interest at the reset interest
rate commecing upon the date of closing of the remarketing. For the
avoidance of doubt, holders of the remarketed X-TRAS shall not be
entitled to receive any interest thereon for any period prior to the date
of closing of the remarketing.
(b) If the X-TRAS are extended until the Extended Stated Maturity, the
Company may, in lieu of permitting the X-TRAS to be remarketed, exercise its
option under Section 7.01(c) of the Indenture to redeem the X-TRAS, in whole,
on the Final Distribution Date, by irrevocable notice given to the Indenture
Trustee, the Trustee, the Extension Option Buyer, Morgan Stanley & Co.
Incorporated and the Calculation Agent not later than the Remarketing Deadline,
at a redemption price equal to the sum of (i) 100% of the aggregate principal
amount thereof together with accrued interest, if any, thereon to the Final
Distribution Date plus (ii) the ISDA Amount as of the Exercise Date as
calculated by the Calculation Agent and notified to the Company, the Indenture
Trustee and the Trustee within five Business Days thereafter, in which case the
X-TRAS will not be remarketed. Out of such amount, the Trustee will
distribute on the Final Distribution Date (x) an amount equal to 100% of the
aggregate principal amount of the X-TRAS plus accrued interest to the
Certificateholders and (y) an amount equal to the ISDA Amount to the Extension
Option Buyer in accordance with the ISDA Master Agreement.
(c) If the X-TRAS are extended until the Extended Stated Maturity and
the Trustee does not receive on or prior to the Remarketing Deadline an amount
in cash equal to sum of (i) 100% of the aggregate principal amount of the
X-TRAS plus accrued interest to the Final Distribution Date plus (ii) the ISDA
Amount because the X-TRAS have not been successfully remarketed and the Company
has not exercised its option under Section 7.01(c) of the Indenture to redeem
the X-TRAS, the Trustee shall exercise its option to require the Company to
repurchase (the "Put Option"), on the Final Distribution Date, all of the
outstanding X-TRAS at a purchase price equal to 100% of the aggregate principal
amount of and accrued interest on the X-TRAS to the Final Distribution Date.
The Trustee will distribute such entire amount to the Certificateholders.
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Section 11.02. Termination of the Trust. The respective obligations
and responsibilities of the Company, the Trust and the Trustee (i) which are
for the benefit of the Certificateholders shall terminate upon the distribution
to all of the Certificateholders and the Trustee of all amounts required to be
distributed to them pursuant to this Agreement and the disposition of all
property held as part of the Assigned Trust Property and (ii) which are for the
benefit of the Extension Option Buyer shall terminate upon the payment to the
Extension Option Buyer of all amounts due to it under the ISDA Master
Agreement; provided, however, that in no event shall the Trust continue beyond
one hundred ten (110) years following the date of the earliest execution of
this Trust Agreement.
Notice of any termination, specifying the Regular Distribution Date (or
Special Distribution Date, as the case may be) upon which the
Certificateholders may surrender their Certificates to the Trustee for payment
on the Final Distribution Date and cancellation, shall be mailed promptly by
the Trustee to Certificateholders not earlier than the 60th day and not later
than the 20th day next preceding such final Distribution Date specifying (A)
the Regular Distribution Date (or Special Distribution Date, as the case may
be) upon which the proposed final payment of the Certificates will be made upon
presentation and surrender of Certificates at the office or agency of the
Trustee therein specified, (B) the amount of any such proposed final payment,
and (C) that the Record Date otherwise applicable to such Regular Distribution
Date (or Special Distribution Date, as the case may be) is not applicable,
payments being made only upon presentation and surrender of the Certificates at
the office or agency of the Trustee therein specified. The Trustee shall give
such notice to the Registrar at the time such notice is given to
Certificateholders. Upon presentation and surrender of the Certificates in
accordance with such notice, the Trustee shall cause to be distributed to
Certificateholders such final payments.
In the event that all of the Certificateholders shall not surrender
their Certificates for cancellation within six months after the date specified
in the above-mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. No
additional interest shall accrue on the Certificates after the Regular
Distribution Date (or Special Distribution Date, as the case may be) specified
in the first written notice. In the event that any money held by the Trustee
for the payment of distributions on the Certificates shall remain unclaimed for
two years (or such lesser time as the Trustee shall be satisfied, after sixty
days' notice from the Company, is one month prior to the escheat period
provided under applicable law) after the final distribution date with respect
thereto, the Trustee shall pay to each Indenture Trustee the appropriate amount
of money relating to such Indenture Trustee and shall give written notice
thereof to the Company.
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ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01. Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect the rights, obligations, and liabilities of the
parties hereto or any of them.
Section 12.02. Certificates Nonassessable and Fully Paid. Except as
set forth in the last sentence of this Section 12.02, Certificateholders shall
not be personally liable for obligations of the Trust, the Fractional Undivided
Interests represented by the Certificates shall be nonassessable for any losses
or expenses of the Trust or for any reason whatsoever, and Certificates, upon
authentication thereof by the Trustee pursuant to Section 3.03, are and shall
be deemed fully paid. No Certificateholder shall have any right (except as
expressly provided herein) to vote or in any manner otherwise control the
operation and management of the Assigned Trust Property, the Trust, or the
obligations of the parties hereto, nor shall anything set forth herein, or
contained in the terms of the Certificates, be construed so as to constitute
the Certificateholders from time to time as partners or members of an
association.
Section 12.03. Notices. (a) Unless otherwise specifically provided
herein, all notices required under the terms and provisions of this Agreement
shall be in English and in writing, and any such notice may be given by United
States mail, courier service or telecopy, and any such notice shall be
effective when delivered or received or, if mailed, three days after deposit in
the United States mail with proper postage for ordinary mail prepaid,
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if to the Company, to:
CMS Energy Corporation
Fairlane Plaza South, Suite 1100
Dearborn, MI 48126
Attention: Chief Financial Officer and
General Counsel
Facsimile: (313) 436-9560
if to the Trust, to:
CMS Energy X-TRAS Pass Through Trust I
c/o Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, DE 19890-0001
Attention: Corporate Trust Administration
Facsimile: (302) 651-1576
Telephone: (302) 651-1000
(b) The Company or the Trust, by notice to the other, may designate
additional or different addresses for subsequent notices or communications.
(c) Any notice or communication to Certificateholders shall be mailed
by first-class mail to the addresses for Certificateholders shown on the
Register kept by the Registrar. Failure so to mail a notice or communication
or any defect in such notice or communication shall not affect its sufficiency
with respect to other Certificateholders.
(d) If a notice or communication is mailed in the manner provided above
within the time prescribed, it is conclusively presumed to have been duly
given, whether or not the addressee receives it.
(e) If the Company mails a notice or communication to the
Certificateholders, it shall mail a copy to the Trust and to the Paying Agent
at the same time.
(f) Notwithstanding the foregoing, all communications or notices to the
Trust shall be deemed to be given only when received by a Responsible Officer
of the Trustee.
(g) The Trustee shall promptly furnish the Company with a copy of any
demand, notice or written communication received by the Trust hereunder from
any Certificateholder or Indenture Trustee.
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Section 12.04. Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF EACH OF THE CERTIFICATEHOLDERS, THE TRUST AND THE TRUSTEE WITH
RESPECT TO THIS AGREEMENT AND THE CERTIFICATES SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES. THE PROVISIONS OF SECTIONS 3540 AND 3561 OF TITLE
12 OF THE DELAWARE CODE ANNOTATED SHALL NOT APPLY TO THE TRUST.
Section 12.05. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions, or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or the Trust, or of
the Certificates or the rights of the Certificateholders thereof.
Section 12.06. Trust Indenture Act Controls. This Agreement is
subject to the provisions of the Trust Indenture Act and shall, to the extent
applicable, be governed by such provisions.
Section 12.07. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 12.08. Successors and Assigns. All covenants, agreements,
representations and warranties in this Agreement by the Trustee and the Company
shall bind and, to the extent permitted hereby, shall inure to the benefit of
and be enforceable by their respective successors and assigns, whether so
expressed or not.
Section 12.09. Benefits of Agreement. Nothing in this Agreement or in
the Certificates, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, and the Certificateholders, any
benefit or any legal or equitable right, remedy or claim under this Agreement,
except that each of the Extension Option Buyer and Morgan Stanley & Co.
Incorporated (as Remarketing Agent) shall be a third party beneficiary of this
Agreement and may enforce the obligations of the Company running in favor of
the Extension Option Buyer and Morgan Stanley & Co. Incorporated, as
applicable.
Section 12.10. Legal Holidays. In any case where any Regular
Distribution Date or Special Distribution Date relating to any Certificate
shall not be a Business Day, then (notwithstanding any other provision of this
Agreement) payment need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect
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as if made on such Regular Distribution Date or Special Distribution Date, and
no interest shall accrue during the intervening period.
Section 12.11. Counterparts. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
Section 12.12. Acceptance of Terms of This Agreement and Indenture.
THE RECEIPT AND ACCEPTANCE OF A CERTIFICATE OR ANY INTEREST THEREIN BY OR ON
BEHALF OF A CERTIFICATEHOLDER OR ANY BENEFICIAL HOLDER, WITHOUT ANY SIGNATURE
OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE CERTIFICATEHOLDER AND ALL OTHERS HAVING A BENEFICIAL
INTEREST IN SUCH CERTIFICATE OF ALL THE TERMS AND PROVISIONS OF THIS AGREEMENT,
AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH CERTIFICATEHOLDER AND
SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS AGREEMENT SHALL BE BINDING,
OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH CERTIFICATEHOLDER AND
SUCH OTHERS.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their respective officers thereunto duly authorized as of the day
and year first written above.
CMS ENERGY CORPORATION
By
------------------------
Name:
Title:
WILMINGTON TRUST COMPANY
as Trustee
By
------------------------
Name:
Title:
71
EXHIBIT A
FORM OF CERTIFICATE
REGISTERED
No. ______________
THIS CERTIFICATE MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN
THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
CERTIFICATEHOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT")) OR (B)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES
ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR"), (2) AGREES THAT IT
WILL NOT RESELL OR OTHERWISE TRANSFER THIS CERTIFICATE EXCEPT (A)
TO THE COMPANY, (B) TO A QUALIFIED INSTITUTIONAL BUYER, OR (C) TO
AN INSTITUTIONAL ACCREDITED INVESTOR, AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS CERTIFICATE IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE TRUSTEE OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN
EXCHANGE FOR THIS CERTIFICATE IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS 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 OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC
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A-2
OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL CERTIFICATE SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 3.05 AND 3.06 OF
THE PASS THROUGH TRUST AGREEMENT REFERRED TO HEREIN.
[GLOBAL CERTIFICATE]
CMS ENERGY X-TRAS PASS THROUGH TRUST I
CMS ENERGY Pass Through Certificate
Series I
Final Distribution Date: _______ __, 2005
evidencing a fractional undivided interest in a trust, certain property of
which includes certain notes of CMS Energy Corporation.
$________ Fractional Undivided Interest
representing . _______% of the Trust per $1,000 face amount
CMS Energy X-TRAS Pass Through Trust I, a statutory business trust
formed under the laws of the State of Delaware (the "Trust"), hereby certifies
that ___________, for value received, is the registered owner of a $__________
(___________ dollars) Fractional Undivided Interest in the Assigned Trust
Property (as defined herein) created pursuant to an Amended and Restated Pass
Through Trust Agreement, dated as of ___________ __, 1998 (the "Agreement"),
between Wilmington Trust Company (the "Trustee") and CMS Energy, a corporation
incorporated under Michigan law (the "Company"), a summary of certain of the
pertinent provisions of which is set forth below. To the extent not otherwise
defined herein, the capitalized terms used herein have the meanings assigned to
them in the Agreement. This Certificate is one of the duly authorized
Certificates designated as "CMS Energy Pass Through Certificates Series I"
(herein called the "Certificates"). This Certificate is issued under and is
subject to the terms, provisions, and conditions of the Agreement. By virtue
of its acceptance hereof the Certificateholder of this Certificate assents to
and agrees to be bound by the provisions of the Agreement. The property of the
Trust includes certain X-TRAS and all rights of the Trust to receive payments
under the Indenture, except as set forth therein with respect to the ISDA
Amount under the ISDA Master Agreement (the "Assigned Trust Property").
The Certificates represent fractional undivided interests in the
Assigned Trust Property, and have no rights, benefits or interest in respect of
any assets or property other than the Assigned Trust Property.
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A-3
Subject to and in accordance with the terms of the Agreement and the
Indenture from and to the extent of funds then available to the Trustee, in
respect of the Assigned Trust Property, there will be distributed on each _____
__ and _______ __ (a "Regular Distribution Date"), commencing on ______, 1998,
to the Person in whose name this Certificate is registered at the close of
business on the first day of the calendar month (whether or not a Business Day)
preceding the Regular Distribution Date, an amount in respect of the Scheduled
Payments on the X-TRAS due on such Regular Distribution Date, the receipt of
which has been confirmed by the Trustee, equal to the product of the percentage
interest in the Assigned Trust Property evidenced by this Certificate and an
amount equal to the sum of such Scheduled Payments. Subject to and in
accordance with the terms of the Agreement and the Indenture, in the event that
Special Payments on the X-TRAS are received by the Trustee, from funds in
respect of the Assigned Trust Property then available to the Trustee, there
shall be distributed on the applicable Special Distribution Date, to the Person
in whose name this Certificate is registered at the close of business on the
15th day preceding the Special Distribution Date, an amount in respect of such
Special Payments on the X-TRAS, the receipt of which has been confirmed by the
Trustee, equal to the product of the percentage interest in the Trust evidenced
by this Certificate and an amount equal to the sum of such Special Payments so
received. If a Regular Distribution Date or Special Distribution Date is not a
Business Day, distribution shall be made on the immediately following Business
Day with the same force and effect as if made on such Regular Distribution Date
or Special Distribution Date and no interest shall accrue during the
intervening period. The Trustee shall mail notice of each Special Payment and
the Special Distribution Date therefor to the Certificateholder of this
Certificate.
Except as otherwise provided in the Agreement and notwithstanding the
above, the final distribution on this Certificate will be made after notice
mailed by the Trustee of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency of the
Trust specified in such notice.
THE AGREEMENT AND THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE.
Reference is hereby made to the further provisions of this Certificate
set forth in the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
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A-4
Unless the certificate of authentication hereon has been executed by
the Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: CMS ENERGY X-TRAS(sm)
PASS THROUGH TRUST 1997-1
By: Wilmington Trust Company
Attest: By: _____________________________
Name:
Title:
____________________
Authorized Signature
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A-5
[FORM OF THE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Certificates referred
to in the within-mentioned Agreement.
WILMINGTON TRUST COMPANY
not in its individual capacity but
solely as Trustee
By:________________________________
Authorized Officer
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A-6
[REVERSE OF CERTIFICATE]
The Certificates do not represent a direct obligation of, or an
obligation guaranteed by, or an interest in, the Company or the Trustee or any
of their affiliates. The Certificates are limited in right or payment, all as
more specifically set forth on the face hereof and in the Agreement. All
payments or distributions made to Certificateholders under the Agreement shall
be made only from the Assigned Trust Property and only to the extent that the
Trust shall have sufficient income or proceeds from the Assigned Trust Property
to make such payments in accordance with the terms of the Agreement. Each
Certificateholder of this Certificate, by its acceptance hereof, agrees that it
will look solely to the income and proceeds from the Assigned Trust Property to
the extent available for distribution to such Certificateholder as provided in
the Agreement. This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby. A copy of the Agreement may be examined during normal business hours
at the principal office of the Trustee, and at such other places, if any,
designated by the Trustee, by any Certificateholder upon request.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Certificateholders under the Agreement at any
time by the Company and the Trust with the consent of the Certificateholders
holding Certificates evidencing Fractional Undivided Interests aggregating not
less than a majority in interest in the Assigned Trust Property. Any such
consent by the Certificateholder of this Certificate shall be conclusive and
binding on such Certificateholder and upon all future Certificateholders of
this Certificate and of any Certificate issued upon the transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof,
in certain limited circumstances, without the consent of the Certificateholders
of any of the Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable in the Register upon
surrender of this Certificate for registration of transfer at the offices or
agencies maintained by the Trustee in its capacity as Registrar, or by any
successor Registrar, in the Borough of Manhattan, the City of New York, duly
endorsed or accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Registrar duly executed by the
Certificateholder hereof or such Certificateholder's attorney duly authorized
in writing, and thereupon one or more new Certificates of authorized
denominations evidencing the same aggregate Fractional Undivided Interest in
the Trust will be issued to the designated transferee or transferees.
The Certificates are issuable only as registered Certificates without
coupons in minimum denominations of $250,000 Fractional Undivided Interest and
integral multiples of $1,000 in excess thereof. As provided in the Agreement
and subject to certain limitations therein set forth, the Certificates are
exchangeable for new Certificates of authorized
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A-7
denominations evidencing the same aggregate Fractional Undivided Interest in
the Assigned Trust Property, as requested by the Certificateholder surrendering
the same.
No service charge will be made for any such registration of transfer or
exchange, but the Trustee shall require payment by the Holder of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The Trust, the Trustee, the Registrar and any agent of the Trust, the
Trustee or the Registrar may treat the person in whose name this Certificate is
registered as the owner hereof for all purposes, and the Trust, the Trustee,
the Registrar or any such agent shall not be affected by any notice to the
contrary.
The obligations and responsibilities for the benefit of the
Certificateholders created by the Agreement and the Trust created thereby shall
terminate upon the distribution to Certificateholders of all amounts required
to be distributed to them pursuant to the Agreement and the disposition of all
property held as part of the Assigned Trust Property.
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A-8
FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
- ----------------------------------
- -------------------------------
- -------------------------------
please print or typewrite name and address including zip code of assignee
- -------------------------------
the within Certificate and all rights thereunder, hereby irrevocably
constituting and appointing
- -------------------------------
attorney to transfer said Certificate on the books of the Trust with full power
of substitution in the premises.
Date: [Name of Transferor
----------------------------------------
NOTE: The signature must
correspond with the name as
written upon the face of the
within-mentioned instrument in
every particular, without
alteration or any change
whatsoever.