1
[EXHIBIT 4(e)]
--------------------------------------------------------------------------------
AMENDED AND RESTATED
PASS THROUGH TRUST AGREEMENT
Dated as of ___________ __, 199_
among
CMS ENERGY CORPORATION
and
WILMINGTON TRUST COMPANY
as Trustee
CMS Energy X-TRAS Pass Through Trust Series I
____% Series I Pass Through Certificates
--------------------------------------------------------------------------------
2
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
------------------- ------------------
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
3
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 20
3.03. Authentication of Certificates 21
3.04. Transfer and Exchange 21
3.05. Book-Entry Provisions for the Global Certificate 22
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
ARTICLE IV
4
ii
Section Page
------- ----
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 Extension 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 33
6.02. Incidents of Sale of the X-TRAS 34
6.03. Judicial Proceedings Instituted by Trustee 35
6.04. Control by Certificateholders 35
6.05. Waiver of Past Defaults 36
6.06. Right of Certificateholders to Receive Payments Not to Be Impaired 36
6.07. Certificateholders May Not Bring Suit Except Under Certain Conditions 37
6.08. Remedies Cumulative 37
ARTICLE VII
THE TRUSTEE
7.01. Certain Duties and Responsibilities 38
7.02. Notice of Defaults 38
7.03. Certain Rights of Trustee 39
7.04. Not Responsible for Recitals or Issuance of Certificates 40
7.05. May Hold Certificates 40
7.06. Money Held in Trust 40
7.07. Compensation and Reimbursement 40
7.08. Corporate Trustee Required; Eligibility 41
5
iii
Section Page
------- ----
7.09. Resignation and Removal; Appointment of Successor 42
7.10. Acceptance of Appointment by Successor 43
7.11. Merger, Conversion, Consolidation or Succession to Business 44
7.12. Maintenance of Agencies 44
7.13. Money for Certificate Payments to Be Held in Trust 45
7.14. [Intentionally Omitted] 46
7.15. Representations and Warranties of Trustee 46
7.16. Withholding Taxes; Information Reporting 47
ARTICLE VIII
CERTIFICATEHOLDERS' LISTS AND REPORTS BY TRUSTEE
8.01. The Company to Furnish Trustee with Names and Addresses of Certificateholders 47
8.02. Preservation of Information; Communications to Certificateholders 47
8.03. Reports by Trustee 48
8.04. Reports by the Company 48
ARTICLE IX
SUPPLEMENTAL AGREEMENTS
9.01. Supplemental Agreements Without Consent of Certificateholders 49
9.02. Supplemental Agreements with Consent of Certificateholders 50
9.03. Documents Affecting Immunity or Indemnity 51
9.04. Execution of Supplemental Agreements 51
9.05. Effect of Supplemental Agreements 51
9.06. Conformity with Trust Indenture Act 51
9.07. Reference in Certificates to Supplemental Agreements 52
ARTICLE X
AMENDMENTS TO INDENTURE
10.01. Amendments and Supplements to Indentures 52
ARTICLE XI
PAYMENT OF FINAL DISTRIBUTION; TERMINATION OF TRUST
11.01. Payment of Final Distribution 53
11.02. Termination of the Trust 56
6
iv
Section Page
------- ----
ARTICLE XII
MISCELLANEOUS PROVISIONS
12.01. Limitation on Rights of Certificateholders 58
12.02. Certificates Nonassessable and Fully Paid 58
12.03. Notices 58
12.04. Governing Law 60
12.05. Severability of Provisions 60
12.06. Trust Indenture Act Controls 60
12.07. Effect of Headings and Table of Contents 60
12.08. Successors and Assigns 60
12.09. Benefits of Agreement 60
12.10. Legal Holidays 60
12.11. Counterparts 61
12.12. Acceptance of Terms of This Agreement and Indenture 61
Exhibit A - Form of Certificate
7
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(sm) Pass Through Trust I and the issuance of
____% CMS Energy X-TRAS(sm) 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 final maturity
dates 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;
8
2
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; and
WHEREAS, upon issuance of the Exchange Certificates, if any, or the
effectiveness of the Registration Statement, this Agreement, as amended or
supplemented from time to time, will be subject to the provisions of the Trust
Indenture Act of 1939, and shall, to the extent applicable, be governed by such
provisions;
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".
9
3
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 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.
Application Period: Has the meaning set forth in the Indenture.
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 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
Calculation Agency Agreement, which initially shall be ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Capital Services, Inc., and shall include any successor thereunder.
10
4
Calculation Agency Agreement: Means the Calculation Agency
Agreement dated as of ____, 1998 between the Calculation Agent and the
Trust.
Certificate: Means any one of the Certificates and any such
Certificates issued in exchange therefor or replacement thereof pursuant to
this Agreement.
Certificates: Means the certificates issued and authenticated
hereunder substantially in the form of Exhibit A hereto.
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.
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.
11
5
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.
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.
Extended Stated Maturity: Shall have the meaning set forth in the
Indenture.
Extension Option Buyer: Means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital Services, Inc.
12
6
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 delivered by
the Trust under the ISDA Master Agreement in accordance with the terms
thereof.
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).
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.
13
7
Investment Company Act: Means the Investment Company Act of 1940,
as amended.
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.
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, 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.
14
8
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
or the Final Distribution Date.
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
15th day (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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & 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.
15
9
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.
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: Shall mean Rule 3a-7 under the Investment Company 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.
16
10
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.
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 ▇▇▇▇▇'▇ 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 ▇▇▇▇▇'▇ Investors
Service, Inc. or its equivalent by Standard & Poor's Ratings Group;
provided, however, that the aggregate amount at any one time
17
11
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 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.
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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
_________________ and __________________.
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 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.
18
12
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
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
19
13
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.
20
14
(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 ▇▇▇ 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,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, 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, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
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
21
15
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 Certificate Depository Agreement] and
such other agreements
22
16
that may be necessary or desirable in connection with the purposes and
functions of the Trust;
(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 Extension 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;
23
17
(xvi) after an Event of Default, 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 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);
(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;
(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.
(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
24
18
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
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
25
19
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.
26
20
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.
27
21
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).
28
22
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:
29
23
(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 Investment Company Act of 1940, as amended.
(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
30
24
stolen Certificate, a new Certificate or Certificates, in authorized
denominations and of like Fractional Undivided Interest and bearing a number not
contemporaneously outstanding.
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
31
25
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 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 and Special Payments 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.
32
26
(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 Extension Payment Account as one or more accounts, which shall
be non-interest bearing. The Trustee shall hold the Extension 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 Extension Payment is made to the Trustee by the Company, the Trustee,
upon receipt thereof, shall immediately deposit such Extension Payment in the
Extension 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. 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 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
33
27
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 Section 2.03(b)) and the amount thereof constituting
principal, premium, if any, and interest,
34
28
(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 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
35
29
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 Extension Payment Account. The Trustee
shall make payments out of the Extension Payment Account to the Extension Option
Buyer as required under the ISDA Master Agreement.
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. Consolidation, Merger, Etc. The Company shall not
consolidate with or merge into any other corporation or convey, transfer or
lease substantially all of its assets as an entirety to any Person unless:
(a) the corporation formed by such consolidation or into which the
Company is merged or the Person that acquires by conveyance, transfer or
lease substantially all of the assets of the Company as an entirety shall
be (i) organized and validly existing under the laws of the United States
of America or any state thereof or
36
▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, (▇▇) a "citizen of the United States" as defined
in 49 U.S.C. 40102(a)(15), as amended, and (iii) a United States
certificated air carrier, if and so long as such status is a condition of
entitlement to the benefits of Section 1110 of the Bankruptcy Reform Act of
1978, as amended (11 U.S.C.Section 1110), with respect to the Leases;
(b) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance, transfer or
lease substantially all of the assets of the Company as an entirety shall
execute and deliver to the Trustee a duly authorized, valid, binding and
enforceable agreement in form and substance reasonably satisfactory to
the Trustee containing an assumption by such successor corporation or
Person of the due and punctual performance and observance of each
covenant and condition of this Agreement, the Other Pass Through Trust
Agreements, the Refunding Agreements, and each other Refunding Document
to be performed or observed by the Company; and
(c) the Company shall have delivered to the Trustee an Officer's
Certificate of the Company and an Opinion of Counsel of the Company
reasonably satisfactory to the Trustee, each stating that such
consolidation, merger, conveyance, transfer or lease and the assumption
agreement mentioned in clause (b) above comply with this Section 5.02 and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
Upon any consolidation or merger, or any conveyance, transfer or lease
of substantially all of the assets of the Company as an entirety in accordance
with this Section 5.02, the successor corporation or Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Agreement with the
same effect as if such successor corporation or Person had been named as the
Company herein. No such conveyance, transfer or lease of substantially all of
the assets of the Company as an entirety shall have the effect of releasing any
successor corporation or Person which shall have become such in the manner
prescribed in this Section 5.02 from its liability in respect of this Agreement
and any Refunding Document to which it is a party.
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 Extension Amount, if any, as of the Change in
37
31
Control Purchase Date as determined by the Extension Option Buyer and notified
to the Company Purchase, the Indenture Trustee by 10 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, 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
38
32
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 X-TRAS Paying Agent (i) the Change in
Control 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 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
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).
39
33
(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 the 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 Certificateholder with copies to the Indenture Trustee,
Trustee and Extension Option Buyer stating:
(i) that the Company is making an Excess Proceeds Offer
pursuant to Section 4.05 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 Certificateholders 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 tendered for repurchase, 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 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.
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 Extension 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
other; provided that no such distribution shall affect the right of the Trustee
to demand and receive payment in full of all amounts due from the Company.
40
34
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.
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
41
35
a pro rata basis to the Certificateholders, on the one hand, and the
Extension Option Buyer, on the other; provided that no such distribution
shall affect the right 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 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
42
36
(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:
(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
43
37
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);
(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 Certificate-
holders 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.
44
38
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
(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.
45
39
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 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;
46
40
(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
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 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
47
41
(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 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.
48
42
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.
(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
49
43
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 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.
50
44
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.
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
51
45
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. 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,
52
46
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;
(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.
53
47
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-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.
54
48
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 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).
55
49
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
(2) to add to the covenants, restrictions or obli-
gations 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
56
50
(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.
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
57
51
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;
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.
58
52
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.
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
59
53
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 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 Extension 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 until the
Remarketing Deadline upon delivery of an irrevocable notice of redemption), the
interest rate borne by the X-TRAS will be reset effective on and as of the
pricing 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) 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 Company, the
Indenture Trustee and the Trustee within five Business Days thereafter
(collectively, the "Required Remarketing Proceeds"). As more particularly set
forth in the next two succeeding sentences, it is intended that the portion of
Required Remarketing Proceeds representing the principal amount of the X-TRAS,
together with other amounts payable by the Company, will be sufficient to
enable the Trustee to make the Final Distribution on the Certificates. In the
event that the Trustee ceases to be the holder of record of the X-TRAS pursuant
to the Remarketing Procedure prior to the Record Date for the final Interest
Payment Date (as such terms are defined in the Indenture), the Company shall be
obligated to pay to the Trustee for the benefit of the Certificateholders an
amount equal to (x) the interest that would have accrued on the X-TRAS had they
been held by the Trust to the Final Distribution Date, less (y) any amounts
earned in respect of the investment by the Trustee of the Required Remarketing
Proceeds in Permitted Investments pursuant to clause (iv) below. In the event
that the Trustee ceases to be the holder of record of the X-TRAS pursuant to
the Remarketing Procedure on or after such Record Date, the Company shall be
obligated to pay to the Trustee for the benefit of the Certificateholders, as
holder of record on such Record Date, the entire amount of interest accrued on
the X-TRAS from the previous Interest Payment Date to the Initial Stated
Maturity, and any amounts earned in respect of the investment by the Trustee of
the Required Remarketing Proceeds in Permitted Investments shall be for the
account of the Company. In either such event, the Company shall have no
obligation to pay the principal amount of the X-TRAS to the Trust on the Final
Distribution Date. The X-TRAS will be remarketed in accordance with the
following procedure (the "Remarketing Procedure"):
(i) On the Option Exercise Date and
thereafter on the 75th, 60th, 45th, 30th and 15th
day prior to the Initial Stated Maturity, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated (or, subsequent to
the Option 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
and discount or premium at which it believes it
could remarket the X-TRAS in order to yield the
Required Remarketing Proceeds.
60
54
(ii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & 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 net proceeds from such
purchase shall at least equal the Required
Remarketing Proceeds. Upon completion of the
remarketing, the proceeds thereof will be
deposited with the Trustee and shall be invested
in Permitted Investments pending their
distribution on the Final Distribution Date.
(v) On the Final Distribution Date, the
Trustee will distribute (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.
(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
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & 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.
61
55
(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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
made pursuant to clause (ix) below) by ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & 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 ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, as
applicable, deem reasonably necessary for
successful completion of the Remarketing
Procedure or the purchase by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & 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, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
that would result in net 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
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & 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
62
56
(B) any other party shall have remarketed the
X-TRAS bearing a reset interest rate lower than
or equal to that specified by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated for proceeds in cash at least
equal to the Required Remarketing Proceeds.
(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 commencing
upon the date of pricing 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 pricing 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, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & 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, for any reason, 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 Extension Amount, 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.
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
63
57
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.
64
58
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,
65
59
if to the Company, to:
CMS Energy Corporation
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer and
General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Trust, to:
CMS Energy X-TRAS Pass Through Trust I
c/o Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Facsimile:(▇▇▇) ▇▇▇-▇▇▇▇
Telephone:(▇▇▇) ▇▇▇-▇▇▇▇
(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.
66
60
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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & 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 as if made on such
Regular Distribution Date or Special Distribution Date, and no interest shall
accrue during the intervening period.
67
61
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
68
62
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:
69
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
70
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.
71
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 15th 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.
72
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-TRASsm
PASS THROUGH TRUST 1997-1
By: Wilmington Trust Company
Attest: By:________________________
Name:
____________________ Title:
Authorized Signature
73
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
74
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 denominations
75
A-7
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.
76
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.