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EXHIBIT 4(e)
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CMS Energy Corporation, Issuer
and
The Bank of New York, Trustee
INDENTURE
Dated as of June __, 1997
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CROSS REFERENCE SHEET
_____________
Provisions of Trust Indenture Act of 1939 and Indenture to be dated as
of June __, 1997 between CMS Energy Corporation and The Bank of New York:
Section of the Act Section of Indenture
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310(a)(1) and (2).............. 6.9
310(a)(3) and (4).............. Inapplicable
310(b)......................... 6.8 and 6.10(a), (b) and (d)
310(c)......................... Inapplicable
311(a)......................... 6.13(a) and (c)(1) and (2)
311(b)......................... 6.13(b)
311(c)......................... Inapplicable
312(a)......................... 4.1 and 4.2(a)
312(b)......................... 4.2(a) and (b)(i) and (ii)
312(c)......................... 4.2(c)
313(a)......................... 4.4(a)
313(b)(1)...................... Inapplicable
313(b)(2)...................... 4.4(b)
313(c)......................... 4.4(c)
313(d)......................... 4.4(d)
314(a)......................... 4.3
314(b)......................... Inapplicable
314(c)(1) and (2).............. 13.5
314(c)(3)...................... Inapplicable
314(d)......................... Inapplicable
314(e)......................... 13.5
314(f)......................... Inapplicable
315(a), (c) and (d)............ 6.1
315(b)......................... 5.11
315(e)......................... 5.12
316(a)(1)...................... 5.9
316(a)(2)...................... Not required
316(a) (last sentence)......... 7.4
316(b)......................... 5.7
316(c)......................... Not required
317(a)......................... 5.2
317(b)......................... 3.4(a) and (b)
318(a)......................... 13.7
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* This Cross Reference Sheet is not part of the Indenture.
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TABLE OF CONTENTS
ARTICLE ONE DEFINITIONS ...................... 1
Section 1.1 Certain Terms Defined ...................................... 1
Affiliate .......................................................... 2
Authenticating Agent ............................................... 2
Board of Directors ................................................. 2
Board Resolution ................................................... 2
Business Day ....................................................... 2
CMS Energy Trust ................................................... 2
Commission ......................................................... 2
Common Securities .................................................. 2
Common Securities Guarantee ........................................ 3
Common Stock ....................................................... 3
Conversion Agent ................................................... 3
Convertible Securities ............................................. 3
Corporate Trust Office ............................................. 3
Declaration ........................................................ 3
Depository ......................................................... 3
Event of Default ................................................... 3
Global Security .................................................... 3
Government Obligations ............................................. 3
Holder, Holder of Securities, Securityholder ....................... 4
Indenture .......................................................... 4
Interest ........................................................... 4
Interest Payment Date .............................................. 4
Issuer ............................................................. 4
Issuer Order ....................................................... 4
Maturity ........................................................... 4
Officers' Certificate .............................................. 5
Opinion of Counsel ................................................. 5
Original Issue Discount ............................................ 5
Original Issue Discount Security ................................... 5
Outstanding ........................................................ 5
Periodic Offering .................................................. 6
Person ............................................................. 6
Preferred Securities ............................................... 6
Preferred Securities Guarantee ..................................... 6
Principal .......................................................... 7
Property Trustee ................................................... 7
Record Date ........................................................ 7
Responsible Officer ................................................ 7
Security ........................................................... 7
Security or Securities ............................................. 7
Security Register and Security Registrar ........................... 7
Senior Indebtedness ................................................ 7
Subsidiary ......................................................... 7
Stated Maturity .................................................... 8
Trust Indenture Act of 1939 or Trust Indenture Act ................. 8
Trust Securities ................................................... 8
Trustee ............................................................ 8
Yield to Maturity .................................................. 8
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Section 1.2 OTHER DEFINITIONS ......................................... 8
ARTICLE TWO SECURITIES ............................ 8
Section 2.1 Forms Generally ........................................... 8
Section 2.2 Form of Trustee's Certificate of Authentication ........... 9
Section 2.3 Amount Unlimited; Issuable in Series ...................... 10
Section 2.4 Authentication and Delivery of Securities ................. 13
Section 2.5 Execution of Securities ................................... 16
Section 2.6 Certificate of Authentication ............................. 17
Section 2.7 Denomination of Securities; Payments of
Interest ............................................... 17
Section 2.8 Registration, Transfer and Exchange ....................... 18
Section 2.9 Mutilated, Defaced, Destroyed, Lost
and Stolen Securities .................................. 21
Section 2.10 Cancellation of Securities; Destruction
Thereof ................................................ 22
Section 2.11 Temporary Securities ...................................... 22
Section 2.12 Computation of Interest ................................... 23
ARTICLE THREE COVENANTS OF THE ISSUER ..................... 23
Section 3.1 Payment of Principal and Interest ......................... 23
Section 3.2 Offices for Payments, etc. ................................ 23
Section 3.3 Appointment to Fill a Vacancy in Office
Of Trustee ............................................. 24
Section 3.4 Paying Agents ............................................. 24
Section 3.5 Limitation on Dividends; Transactions with
Affiliates ............................................. 25
ARTICLE FOUR SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE ................................ 26
Section 4.1 Issuer to Furnish Trustee Names and
Addresses of Securityholders ........................... 26
Section 4.2 Preservation and Disclosure of
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Securityholders Lists .................................. 27
Section 4.3 Reports by the Issuer .................................... 28
Section 4.4 Reports by the Trustee ................................... 29
ARTICLE FIVE REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT .................................. 30
Section 5.1 Event of Default Defined; Acceleration of
Maturity; Waiver of Default ............................ 30
Section 5.2 Collection of Indebtedness by Trustee;
Trustee May Prove Debt ................................. 33
Section 5.3 Application of Proceeds .................................. 36
Section 5.4 Suits for Enforcement .................................... 37
Section 5.5 Restoration of Rights on Abandonment of
Proceedings ............................................ 37
Section 5.6 Limitations on Suits by Securityholders .................. 37
Section 5.7 Unconditional Right of Securityholders
to Receive Principal and Interest and
to Institute Certain Suits ............................. 38
Section 5.8 Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default ......................... 38
Section 5.9 Control by Holders of Securities ......................... 39
Section 5.10 Waiver of Past Defaults .................................. 39
Section 5.11 Trustee to Give Notice of Default, But
May Withhold in Certain Circumstances .................. 40
Section 5.12 Right of Court to Require Filing of
Undertaking to Pay Costs ............................... 40
Section 5.13 Waiver of Stay or Extension Laws ......................... 41
ARTICLE SIX CONCERNING THE TRUSTEE ..................... 41
Section 6.1 Duties and Responsibilities of the
Trustee; During Default; Prior to Default .............. 41
Section 6.2 Certain Rights of the Trustee ............................ 42
Section 6.3 Trustee Not Responsible for Recitals,
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Disposition of Securities or
Application of Proceeds Thereof ...................... 44
Section 6.4 Trustee and Agents May Hold Securities;
Collections, etc. .................................... 44
Section 6.5 Moneys Held by Trustee .................................. 44
Section 6.6 Compensation and Indemnification of
Trustee and Its Prior Claim .......................... 44
Section 6.7 Right of Trustee to Rely on Officers'
Certificate, etc. .................................... 45
Section 6.8 Qualification of Trustee; Conflicting
Interests ............................................ 45
Section 6.9 Persons Eligible for Appointment as
Trustee .............................................. 45
Section 6.10 Resignation and Removal; Appointment
of Successor Trustee ................................. 46
Section 6.11 Acceptance of Appointment by Successor
Trustee .............................................. 47
Section 6.12 Merger, Conversion, Consolidation or
Succession to Business of Trustee .................... 48
Section 6.13 Preferential Collection of Claims Against
the Issuer ........................................... 49
Section 6.14 Appointment of Authenticating Agent ..................... 49
ARTICLE SEVEN CONCERNING THE SECURITYHOLDERS ............... 50
Section 7.1 Evidence of Action Taken by Securityholders .............. 50
Section 7.2 Proof of Execution of Instruments and of
Holding of Securities .................................. 50
Section 7.3 Holders to Be Treated as Owners .......................... 51
Section 7.4 Securities Owned by Issuer Deemed Not
Outstanding ............................................ 51
Section 7.5 Right of Revocation of Action Taken ...................... 52
Section 7.6 Calculation of Original Issue Discount ................... 52
ARTICLE EIGHT SUPPLEMENTAL INDENTURES .................. 52
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Section 8.1 Supplemental Indentures Without
Consent of Securityholders ............................. 52
Section 8.2 Supplemental Indentures With
Consent of Securityholders ............................. 54
Section 8.3 Effect of Supplemental Indenture ......................... 56
Section 8.4 Documents to Be Given to Trustee ......................... 56
Section 8.5 Notation on Securities in Respect of
Supplemental Indentures ................................ 56
ARTICLE NINE CONSOLIDATION, MERGER, SALE OR CONVEYANCE .......... 56
Section 9.1 Covenant of Issuer Not to Merge,
Consolidate, Sell or Convey Property
Except Under Certain Conditions ........................ 56
Section 9.2 Successor Corporation Substituted
for Issuer ............................................. 57
Section 9.3 Opinion of Counsel Delivered to Trustee .................. 58
ARTICLE TEN SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS .............................................. 58
Section 10.1 Satisfaction and Discharge of Indenture ................. 58
Section 10.2 Application by Trustee of Funds Deposited
for Payment of Securities .............................. 61
Section 10.3 Repayment of Moneys Held by Paying Agent ................ 61
Section 10.4 Return of Moneys Held by Trustee and
Paying Agent Unclaimed for Three Years ................ 61
Section 10.5 Indemnity for Government Obligations .................... 62
ARTICLE ELEVEN REDEMPTION OF SECURITIES AND SINKING FUNDS ....... 62
Section 11.1 Applicability of Article ................................ 62
Section 11.2 Notice of Redemption; Partial Redemptions ............... 62
Section 11.3 Payment of Securities Called for Redemption ............. 64
Section 11.4 Exclusion of Certain Securities from
Eligibility for Selection for Redemption ............... 65
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Section 11.5 Mandatory and Optional Sinking Funds ..................... 65
Section 11.6 Conversion Arrangement on call for
Redemption .............................................. 68
ARTICLE TWELVE SUBORDINATION ....................... 68
Section 12.1 Applicability of Article; Securities
Subordinated to Senior Indebtedness ..................... 68
Section 12.2 Issuer Not to Make Payments with
Respect to Subordinated Securities
in Certain Circumstances ................................ 70
Section 12.3 Subordinated Securities Subordinated
to Prior Payment of All Senior
Indebtedness on Dissolution,
Liquidation or Reorganization
of Issuer ............................................... 71
Section 12.4 Holders of Subordinated Securities
to be Subrogated to Right of
Holders of Senior Indebtedness .......................... 72
Section 12.5 Obligation of the Issuer Unconditional ................... 73
Section 12.6 Trustee Entitled to Assume Payments Not
Prohibited in Absence of Notice ......................... 74
Section 12.7 Application by Trustee of Monies or
Government Obligations Deposited with It ................ 74
Section 12.8 Subordination Rights Not Impaired by
Acts or Omissions of Issuer or Holders
of Senior Indebtedness .................................. 75
Section 12.9 Securityholders Authorize Trustee to
Effectuate Subordination of Securities .................. 76
Section 12.10 Right of Trustee to Hold Senior
Indebtedness ............................................ 76
Section 12.11 Article Twelve Not to Prevent Events of
Defaults ................................................ 76
ARTICLE THIRTEEN CONVERSIONS ........................ 76
Section 13.1 Applicability of Article ................................. 77
Section 13.2 Conversion Privilege ..................................... 77
Section 13.3 Conversion Procedure ..................................... 77
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Section 13.4 Fractional Shares ......................................... 78
Section 13.5 Taxes on Conversion ....................................... 79
Section 13.6 Issuer to Provide Stock ................................... 79
Section 13.7 Adjustment for Change in Capital Stock .................... 79
Section 13.8 Adjustment for Rights Issue ............................... 80
Section 13.9 Adjustments for Other Distributions ....................... 81
Section 13.10 Voluntary Adjustment ..................................... 82
Section 13.11 Certain Definitions ...................................... 83
Section 13.12 When Adjustment May Be Deferred .......................... 84
Section 13.13 When Adjustment Is Not Required .......................... 85
Section 13.14 Notice of Adjustment ..................................... 85
Section 13.15 Notice of Certain Transactions ........................... 85
Section 13.16 Consolidation, Merger or Sale of
the Issuer ............................................... 86
Section 13.17 Issuer Determination Final ............................... 86
Section 13.18 Trustee's Disclaimer ..................................... 86
Section 13.19 Simultaneous Adjustments ................................. 87
ARTICLE FOURTEEN MISCELLANEOUS PROVISIONS ................... 87
Section 14.1 Incorporators, Stockholders, Officers
and Directors of Issuer Exempt
from Individual Liability ................................ 87
Section 14.2 Provisions of Indenture for the Sole
Benefit of Parties and Holders of
Securities ............................................... 87
Section 14.3 Successors and Assigns of Issuer Bound
by Indenture ............................................. 88
Section 14.4 Notices and Demands on Issuer, Trustee
and Holders of Securities ................................ 88
Section 14.5 Officers' Certificates and Opinions
of Counsel; Statements to be
Contained Therein ........................................ 89
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Section 14.6 Payments Due on Saturdays, Sundays
and Holidays ........................................ 90
Section 14.7 Conflict of any Provision of Indenture
with Trust Indenture Act of 1939 .................... 90
Section 14.8 New York Law to Govern ............................... 90
Section 14.9 Counterparts ......................................... 90
Section 14.10 Effect of Headings and Table of Contents ............. 90
Section 14.11 Separability Clause .................................. 91
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THIS INDENTURE dated as of June __, 1997 between CMS Energy
Corporation, a Michigan corporation (the "Issuer"), and The Bank of New York, a
New York banking corporation, as trustee (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time to time of
its debentures, notes, bonds or other evidences of indebtedness to be issued in
one or more series (the "Securities") up to such principal amount or amounts as
may from time to time be authorized in accordance with the terms of this
Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of
this Indenture to provide, among other things, for the authentication, delivery
and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the holders thereof, the Issuer and the Trustee mutually covenant and agree
for the equal and proportionate benefit of the respective holders from time to
time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
Section 1.1 Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939,
including terms defined therein by reference to the Securities Act of 1933, as
amended (except as herein otherwise expressly provided or unless the context
otherwise requires), shall have the meanings assigned to such terms in said
Trust Indenture Act and in said Securities Act as in force at the date of this
Indenture. All accounting terms used herein and not expressly defined shall
have the meanings assigned to such terms in accordance with generally accepted
accounting principles, and the term "generally accepted accounting principles"
means such accounting principles as are generally accepted in the United States
of America at the time of any computation. References to any statute mean such
statute as
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amended at the time and includes any successor legislation. The words "herein",
"hereof" and "hereunder" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision. The terms defined in this Article include the plural as well as
the singular.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" shall have the meaning set forth in Section
6.14.
"Board of Directors" means either the Board of Directors of the Issuer
or any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means a copy of one or more resolutions, certified
by the secretary or an assistant secretary of the Issuer to have been duly
adopted or consented to by the Board of Directors and to be in full force and
effect, and delivered to the Trustee.
"Business Day" means a day on which banking institutions in New York,
New York or Delaware are not authorized or required by law or regulation to
close.
"CMS Energy Trust" means a Delaware business trust formed by the
Issuer for the purpose of purchasing the Securities of the Issuer.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act of 1939, then the body performing such duties at such
time.
"Common Securities" means undivided beneficial interests in the assets
of a CMS Energy Trust which rank pari passu with Preferred Securities issued by
such trust; provided, however, that upon the occurrence of an Event of Default,
the rights of holders of Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and maturity are
subordinated to the rights of holders of Preferred Securities.
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"Common Securities Guarantee" means any guarantee that the Issuer may
enter into that operates directly or indirectly for the benefit of holders of
Common Securities of Consumers Trust.
"Common Stock" means the Common Stock, $.01 par value, of the Issuer
as it exists on the date of this Indenture and stock of any other class into
which such Common Stock may thereafter have been changed.
"Coversion Agent" shall mean the office or agency where the Securities
of each series that is convertible may be presented for conversion as set forth
in Section 3.2.
"Convertible Securities" means any or all options, warrants,
securities and rights, except the Securities, which are convertible into or
exercisable or exchangeable for Common Stock or which otherwise entitle the
holder thereof to subscribe for, purchase or otherwise acquire Common Stock.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at 000 Xxxxxxx Xx., Xxx Xxxx, Xxx Xxxx 00000; Attn.
Corporate Trust, Trustee Administration.
"Declaration" means, in respect of a Consumers Trust, the amended and
restated declaration of trust of such Consumers Trust or any other governing
instrument of such Trust.
"Depository" means, with respect to the Securities of any series
issuable or issued in the form of one or more Global Securities, the Person
designated as Depository by the Issuer pursuant to Section 2.3, which must be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, and any other applicable statute or regulation, until a successor
Depository shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Depository" shall mean each Person who is then a
Depository hereunder; and if at any time there is more than one such Person,
"Depository" as used with respect to the Securities of any such series shall
mean each Depository with respect to the Global Securities of such series.
"Event of Default" means any event or condition specified as such in
Section 5.1.
"Global Security" means a Security evidencing all or a part of a
series of Securities issued to the Depository, or its nominee, for such series
in accordance with Section 2.4, and bearing the legend prescribed in Section
2.4.
"Government Obligations" means direct obligations of the United States
for the payment of which its full faith and credit is pledged, or obligations of
a person controlled or supervised by and
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acting as an agency or instrumentality of the United States and the payment of
which is unconditionally guaranteed by the United States, and shall also include
a depository receipt issued by a bank or trust company as custodian with respect
to any such Government Obligation or a specific payment of interest on or
principal of any such Government Obligation held by such custodian for the
account of a holder of a depository receipt; provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Holder" or other similar terms mean the Person in whose name such
Security is registered in the Security Register kept by the Issuer for that
purpose in accordance with the terms hereof.
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or supplemented
or both, and shall include the forms and terms of particular series of
Securities established as provided hereunder.
"Interest" means, when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity or upon default
in any other payment due on such Security, interest payable after Maturity or
upon such default, as the case may be.
"Interest Payment Date" means (a) the date or dates, if any, on which
interest is to be paid on any Security as established pursuant to Section
2.3(f), (b) the date of maturity or redemption of such Security, and (c) only
with respect to defaulted interest on such Security, the date established for
the payment of such defaulted interest pursuant to Section 2.7 hereof.
"Issuer" means (except as otherwise provided in Article Six) CMS
Energy Corporation, a Michigan corporation, and, subject to Article Nine, its
successors and assigns.
"Issuer Order" means a written statement, request or order of the
Issuer signed in its name by the Chairman, the President or any Vice President
(whether or not designated by a number or numbers or a word or words added
before or after the title "Vice President") or by the Treasurer of the Issuer.
"Maturity" means, when used with respect to any Security, the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
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"Officers' Certificate" means a certificate signed by the Chairman,
the President or any Vice President (whether or not designated by a number or
numbers or a word or words added before or after the title "Vice President"),
and by the Chief Financial Officer, Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary, of the Issuer and delivered to the
Trustee. Except as otherwise provided herein, each such certificate shall
include the statements provided for in Section 14.5.
"Opinion of Counsel" means an opinion in writing signed by the counsel
of the Issuer as designated by the Board of Directors or by such other legal
counsel who may be an employee of or regular counsel to the Issuer and who shall
be satisfactory to the Trustee. Each such opinion shall include the statements
provided for in Section 13.5, if and to the extent required thereby.
"Original Issue Discount" of any debt security, including any Original
Issue Discount Security, means the difference between the principal amount of
such debt security and the initial issue price of such debt security (as set
forth, in the case of an Original Issue Discount Security, on the face of such
Security).
"Original Issue Discount Security" means any Security that provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 5.1.
"Outstanding" (except as otherwise provided in Section 6.8), when used
with reference to Securities, shall, subject to the provisions of Section 7.4,
mean, as of any particular time, all Securities theretofore authenticated and
delivered by the Trustee under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys or Government Obligations (as provided for in Section 10.1) in
the necessary amount shall have been theretofore deposited in trust with
the Trustee or with any paying agent (other than the Issuer) or shall have
been set aside, segregated and held in trust by the Issuer for the Holders
of such Securities (if the Issuer shall act as its own paying agent),
provided that if such Securities, or portions thereof, are to be redeemed
prior to the Maturity thereof, notice of such redemption shall have been
given as herein provided, or provision satisfactory to the Trustee shall
have been made for giving such notice; and
(c) Securities which shall have been paid or in substitution for
which other Securities shall have been authenticated and delivered pursuant
to the terms of
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Section 2.9 (except with respect to any such Security as to which proof
satisfactory to the Trustee is presented that such Security is held by a
Person in whose hands such Security is a legal, valid and binding
obligation of the Issuer).
In determining whether the Holders of the requisite principal amount
of Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the Maturity thereof pursuant to Section 5.1, and (b)
Securities owned by the Issuer or any other obligor upon the Securities of any
Affiliate of the Issuer or of such other obligor shall be disregarded and deemed
not to be Outstanding, except that in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which the Trustee knows to be so
owned shall be so disregarded. Securities so owned as described in clause (b)
above which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the Issuer
or any other obligor upon the Securities or an Affiliate of the Issuer or of
such other obligor.
"Periodic Offering" means an offering of Securities of any series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated maturity
or maturities thereof and the redemption provisions, if any, with respect
thereto are to be determined by the Issuer or its agents upon the issuance of
such Securities.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Preferred Securities" means undivided beneficial interests in the
assets of a Consumers Trust which rank pari passu with Common Securities issued
by such trust; provided however, that upon the occurrence of an Event of
Default, the rights of holders of Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights of holders of Preferred Securities.
"Preferred Securities Guarantee" means any guarantee that the Issuer
may enter into that operates directly or indirectly for the benefit of holders
of Preferred Securities of a Consumers Trust.
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"Principal", of a debt security, including any Security, means the
amount (including, without limitation, if and to the extent applicable, any
premium and, in the case of an Original Issue Discount Security, any accrued
original issue discount, but excluding interest) that is payable with respect to
such debt security as of any date and for any purpose (including, without
limitation, in connection with any sinking fund, upon any redemption at the
option of the Issuer, upon any purchase or exchange at the option of the Issuer
or the Holder of such debt security and upon any acceleration of the Maturity of
such debt security) and shall be deemed to include the words "and premium, if
any".
"Property Trustee" means the entity performing the functions of the
Property Trustee of a Consumers Trust under the applicable Declaration of such
Consumers Trust.
"Record Date" shall have the meaning set forth in Section 2.7.
"Responsible Officer", when used with respect to the Trustee, means
any vice president (whether or not designated by numbers or words added before
or after the title "vice president"), any trust officer, any assistant vice
president,any assistant secretary, any assistant treasurer or any other officer
of the Trustee 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 the particular subject.
"Security" means any Security registered on the Security Register of
the Issuer.
"Security" or "Securities" (except as otherwise provided in Section
6.8) shall have the meaning stated in the first recital of this Indenture and,
more particularly, any Securities that have been authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" shall have the respective
meanings set forth in Section 2.8.
"Security Indebtedness" shall have the meaning set forth in Section
12.1(b).
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Issuer or by one
or more other Subsidiaries. For the purposes of this definition, "voting stock"
means stock which ordinarily has voting power for the election of directors,
whether at all times or only so long as no senior class of stock has such voting
power by reason of any contingency.
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"Stated Maturity" means, when used with respect to any Security or any
installment of principal thereof or interest thereon, the date specified in such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Trust Indenture Act of 1939" or "Trust Indenture Act" (except as
otherwise provided in Sections 8.1 and 8.2) means the Trust Indenture Act of
1939 as in force at the date as of which this Indenture was originally executed.
"Trust Securities" means Common Securities and Preferred Securities.
"Trustee" means the Person identified as the "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee. "Trustee" shall also mean or include each Person
who is then a trustee hereunder; and if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series shall
mean the trustee with respect to the Securities of such series.
"Yield to Maturity" means the yield to Maturity on a series of
Securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, in
accordance with accepted financial practice.
Section 1.2 OTHER DEFINITIONS.
TERM
DEFINED IN SECTION
Average Market Price ............... 13.11
Current market price ............... 13.11
Determination Date ................. 13.11
Ex-Dividend Date ................... 13.11
Senior Indebtedness ................ 12.1(b)
ARTICLE TWO
SECURITIES
Section 2.1 Forms Generally. The Securities of each series shall be
substantially in such form (not inconsistent with this Indenture) as shall be
established by or pursuant to one or more Board Resolutions (as set forth in a
Board Resolution or, to the extent established pursuant to rather than set forth
in a Board Resolution, an Officers' Certificate detailing such establishment) or
in one or more indentures supplemental hereto, in each case with
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such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have imprinted or otherwise
reproduced thereon such letters, numbers or other marks of identification and
such legend or legends or endorsements, not inconsistent with the provisions of
this Indenture, as may be required to comply with any law or with any rules or
regulations pursuant thereto, or with any rules of any securities exchange or to
conform to general usage, all as may be determined by the officers executing
such Securities as evidenced by their execution of such Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities as evidenced by their
execution of such Securities.
Section 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
"This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
The Bank of New York ,
----------------------------
as Trustee
Dated: By
---------- ------------------------
Authorized Signatory"
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Trustee's certificate of
authentication to be borne by the Securities of each such series shall be
substantially as follows:
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"This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
-------------------------,
as Authenticating Agent
Dated: By
-----------------------
Authorized Officer"
Section 2.3 Amount Unlimited; Issuable in Series.
(a) The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
(b) The Securities may be issued in one or more series and shall be
direct obligations of the Issuer.
(c) Each Security shall be dated and issued as of the date of its
authentication by the Trustee.
(d) Each Security shall bear interest from the later of its original
date of authentication or the most recent Interest Payment Date to which
interest has been paid or duly provided for with respect to such Security until
the principal of such Security is paid or made available for payment, and
interest on each Security shall be payable on each Interest Payment Date after
the date of such Security.
(e) Each Security shall mature on a date specified in the Security not
less than nine months nor more than 40 years after the date of its issuance, and
the principal amount of each outstanding Security shall be payable on the
Maturity specified therein.
(f) There shall be established in or pursuant to one or more Board
Resolutions (and, to the extent established pursuant to rather than set forth in
a Board Resolution, in an Officers' Certificate detailing such establishment) or
established in one or more indentures supplemental hereto, prior to the initial
issuance of Securities of any series:
(1) the designation of the Securities of such series, which shall
distinguish the Securities of such series from the Securities of all other
series;
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(2) any limit upon the aggregate principal amount of the Securities
of such series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of such
series pursuant to Section 2.8, 2.9, 2.11, 8.5 or 11.3);
(3) subject to Section 2.3(e), the date or dates (and whether fixed
or extendible) on which the principal of the Securities of such series is
payable;
(4) the rate or rates at which the Securities of such series shall
bear interest, if any, the Interest Payment Date or Dates for the
Securities of such series and the Record Date for interest payable on any
Interest Payment Date and/or the method by which such rate or rates shall
be determined;
(5) the place or places where the principal of and any interest on
Securities of such series shall be payable and where such Securities may be
registered or transferred (if in addition to, or other than, as provided in
Section 3.2);
(6) any provisions relating to the issuance of Securities of such
series at an original issue discount (including, without limitation, the
issue price thereof, the rate or rates at which such original issue
discount shall accrue, if any, and the dates from or to which or periods
during which such original issue discount shall accrue at such rate or
rates);
(7) the right, if any, of the Issuer to redeem or purchase Securities
of such series, in whole or in part, at its option and the period or
periods within which, the price or prices at which and any terms and
conditions upon which Securities of such series may be so redeemed;
(8) the obligation, if any, of the Issuer to redeem, purchase or
repay Securities of such series pursuant to any mandatory redemption,
sinking fund or analogous provisions or at the option of a Holder thereof
and the price or prices at which and the period or periods within which and
any terms and conditions upon which Securities of such series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(9) if other than denominations of [$1,000] and any integral multiple
thereof, the denominations in which Securities of such series shall be
issuable;
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(10) the obligation, if any, of the Issuer to permit the conversion
of Securities of such series into Common Stock and the terms and conditions
upon which such conversion shall be effected (including, without
limitation, the initial conversion price or rate, the conversion period and
any other provision in addition to or in lieu of those set forth in Article
Thirteen of this Indenture relative to such obligation);
(11) if other than the entire principal amount thereof, the portion
of the principal amount of Securities of such series which shall be payable
upon acceleration of the Maturity thereof pursuant to Section 5.1 or, if
applicable, which is convertible in accordance with Article Thirteen;
(12) whether the Securities of such series will be subordinated to
the payment of Senior Indebtedness on the terms and conditions set forth in
Article Twelve and whether such subordination shall be subject to any
provisions in addition to or in lieu of those set forth in Article Twelve;
(13) whether the Securities of such series will be issuable as Global
Securities;
(14) whether and under what circumstances the Issuer will pay
additional amounts on the Securities of such series held by a person who is
not a U.S. Person in respect of any tax, assessment or governmental charge
withheld or deducted and, if so, whether the Issuer will have the option to
redeem such Securities rather than pay such additional amounts;
(15) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, and
the form and terms of any such certificates, documents or conditions;
(16) any trustees, depositaries, authenticating or paying agents,
transfer agents, conversion agents or registrars or any other agents with
respect to the Securities of such series;
(17) any events of default or covenants with respect to the
Securities of such series other than those specified herein;
(18) the Person to whom any interest on a Security of such series
shall be payable, if other than the Person in whose name the Security (or
one or more predecessor
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Securities) is registered at the close of business on the Record Date for
such interest;
(19) if the Securities of such series shall be issued in whole or in
part in the form of one or more Global Securities, whether beneficial
owners of interests in any such Global Security may exchange such interests
for Securities of such series of like tenor and of authorized form and
denomination and the circumstances under which any such changes may occur,
if other than in the manner provided in Section 2.8;
(20) the right of the Issuer, if any, to defer any payment of
principal of or interest on the Securities of such series, and the maximum
length of any such deferral period;
(21) whether any property will be pledged to secure the Securities;
and
(22) any other terms of such series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical,
except as to denomination and except as may otherwise be provided by or pursuant
to the Board Resolution or Officers' Certificate referred to above or as set
forth in any indenture supplemental hereto referred to above. All Securities of
any one series need not be issued at the same time and may be issued from time
to time, consistent with the terms of this Indenture, if so provided by or
pursuant to such Board Resolution, such Officers' Certificate or in any such
indenture supplemental hereto.
Section 2.4 Authentication and Delivery of Securities. The Issuer
may from time to time deliver Securities of any series, executed by the Issuer
to the Trustee for authentication, together with the applicable documents
referred to below in this Section, and the Trustee shall thereupon authenticate
and make available for delivery such Securities to or upon the order of the
Issuer (contained in the Issuer Order referred to below in this Section) or
pursuant to such procedures acceptable to the Trustee and to such recipients as
may be specified from time to time by an Issuer Order. If so provided in the
Board Resolution, Officers' Certificate or supplemental indenture establishing
the Securities of any series, the maturity date, interest accrual date,
interest rate, Interest Payment Date or Dates and any other terms of any or all
of the Securities of such series may be determined by or pursuant to such
Issuer Order and procedures. If provided for in such procedures, such Issuer
Order may authorize authentication and delivery pursuant to instructions (from
the Issuer or its duly authorized agent) in writing, by facsimile or any other
method mutually agreed upon by the Issuer and Trustee. In authenticating the
Securities of a series and accepting the additional responsibilities under this
Indenture in relation to such
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Securities, the Trustee shall be entitled to receive (but, in the case of
subparagraphs 2, 3 and 4 below, only at or before the time of the first request
of the Issuer to the Trustee to authenticate Securities of such series, however,
any request after the first shall be deemed to include the representation of the
Issuer that the document previously delivered pursuant to subparagraphs 2, 3 and
4 below are still true and in effect) and (subject to Section 6.1) shall be
fully protected in relying upon, unless and until such documents have been
superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth
delivery instructions if the Securities are not to be delivered to the
Issuer, provided that, with respect to Securities of a series subject to a
Periodic Offering, (a) such Issuer Order may be delivered by the Issuer to
the Trustee at any time prior to the delivery to the Trustee of the
Securities of such series for authentication and delivery, (b) the Trustee
shall authenticate and deliver the Securities of such series for original
issue from time to time, in an aggregate principal amount not exceeding the
aggregate principal amount established for such series, pursuant to an
Issuer Order or pursuant to such procedures acceptable to the Trustee as
may be specified from time to time by an Issuer Order, (c) if so provided
in the Board Resolution or supplemental indenture establishing the
Securities of such series, the maturity date, original issue date, interest
rate, the Interest Payment Date or Dates and any other terms of any or all
of the Securities of such series may be determined by an Issuer Order or
pursuant to such procedures and (d) if provided for in such procedures,
such Issuer Order may authorize authentication and delivery pursuant to
instructions in writing, by facsimile or any other method mutually agreed
upon by the Issuer and Trustee;
(2) any Board Resolution, Officers' Certificate and/or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant
to which the forms and terms of the Securities of such series were
established;
(3) an Officers' Certificate setting forth the form or forms and
terms of the Securities of such series stating (a) that such form or forms
and terms have been established pursuant to Sections 2.1 and 2.3 and comply
with this Indenture, (b) the aggregate principal amount of all of the
Securities outstanding under this Indenture and (c) covering such other
matters as the Trustee may reasonably request; and
(4) at the option of the Issuer, either an Opinion of Counsel, or a
letter addressed to the Trustee
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permitting it to rely on an Opinion of Counsel, substantially to the effect
that:
(a) the forms of the Securities of such series have been duly
authorized and established in conformity with the provisions of this
Indenture;
(b) the terms of the Securities of such series have been duly
authorized and established in conformity with the provisions of this
Indenture;
(c) when the Securities of such series have been executed by the
Issuer and authenticated by the Trustee in accordance with the
provisions of this Indenture and delivered to and duly paid for by the
purchasers thereof, they will have been duly issued under this
Indenture and will be valid and legally binding obligations of the
Issuer, enforceable in accordance with their respective terms, subject
to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting the enforcement of creditors'
rights and to general principles of equity, and will be entitled to
the benefits of this Indenture;
(d) the Indenture has been duly authorized, executed and
delivered by the Issuer and constitutes a legal, valid and binding
agreement of the Issuer, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting the enforcement of
creditors' rights and to general principles of equity;
(e) the issuance of the Securities will not result in any
default under this Indenture, or any other contract, indenture, loan
agreement or other instrument to which the Issuer is a party or by
which it or any of its property is bound; and
(f) no consent, approval, authorization, order, registration or
qualification of or with any governmental agency or body having
jurisdiction over the Issuer is required for the execution and
delivery of the Securities of such series by the Issuer, except such
as have been obtained (except that no opinion
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need be expressed as to state securities or Blue Sky laws).
The Trustee shall have the right to decline to authenticate and
deliver any Securities of any series under this Section (other than Securities
the forms and terms of which shall have been established by supplemental
indenture) if the Trustee, being advised by counsel, determines that such action
may not lawfully be taken by the Issuer or if the Trustee in good faith by its
board of directors or board of trustees, executive committee or a trust
committee of directors, trustees or Responsible Officers shall determine that
such action would expose the Trustee to personal liability to existing Holders
or would affect the Trustee's rights, duties or immunities under the Securities
of any such series, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more Global
Securities, then the Issuer shall execute and the Trustee shall, in accordance
with this Section and the Issuer Order with respect to such series, authenticate
and make available for delivery one or more Global Securities that (i) shall be
in an aggregate amount equal to the aggregate principal amount specified in such
Issuer Order, (ii) shall be registered in the name of the Depository therefor or
its nominee, (iii) shall be delivered by the Trustee to such Depository or
pursuant to such Depository's instructions and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Securities in definitive registered form, this Security may
not be transferred except as a whole by the Depository to the nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository."
Section 2.5 Execution of Securities. The Securities shall be signed
on behalf of the Issuer by both (a) its Chairman, its President or any Vice
President (whether or not designated by a number or numbers or a word or words
added before or after the title "Vice President"), reproduced thereon, which
need not be attested and (b) by its Chief Financial Officer, the Treasurer, any
Assistant Treasurer, the Secretary or any Assistant Secretary. Such signatures
may be the manual or facsimile signatures of such officers. Typographical and
other minor errors or defects in any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
In case any officer of the Issuer who shall have so signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Issuer, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer
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of the Issuer; and any Security may be so signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
Section 2.6 Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized signatories, shall be entitled to the benefits of this Indenture
or be valid or obligatory for any purpose. The execution of such certificate by
the Trustee upon any Security executed by the Issuer shall be conclusive
evidence that the Security so authenticated has been duly authenticated and
delivered hereunder and that the Holder is entitled to the benefits of this
Indenture. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Issuer,
and the Issuer shall deliver such Security to the Trustee for cancellation as
provided in Section 2.10, together with a written statement (which need not
comply with Section 14.5 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the Issuer, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
Section 2.7 Denomination of Secutities; Payments of Interest. The
Securities of each series shall be issuable in registered form in denominations
established as contemplated by Section 2.3. The Securities of each series shall
be numbered, lettered or otherwise distinguished in such manner or in accordance
with such plan as the officers of the Issuer executing the same may determine
with the approval of the Trustee, as evidenced by the execution and
authentication thereof.
The Securities of each series shall bear interest, if any, from the
date, and such interest shall be payable on the Interest Payment Dates,
established as contemplated by Section 2.3.
The Person in whose name any Security of any series is registered at
the close of business on any Record Date applicable to such series with respect
to any Interest Payment Date for such series shall be entitled to receive the
interest, if any, payable on such Interest Payment Date notwithstanding any
transfer, exchange or conversion of such Security subsequent to the Record Date
and prior to such Interest Payment Date, except if and to the extent the Issuer
shall default in the payment of the interest due on such Interest Payment Date,
in which case such defaulted interest shall be paid to the Persons in whose
names Outstanding Securities of such series are registered at the close of
business on a subsequent Record Date (which shall be not less than five Business
Days prior to the date of payment of such defaulted interest) established by
notice given by mail by or on behalf of
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the Issuer to the Holders of Securities of such series not less than 15 days
preceding such subsequent Record Date. The term "Record Date", as used with
respect to any Interest Payment Date (except a date for payment of defaulted
interest) for the Securities of any series, shall mean the date specified as
such in the terms of the Securities of such series established as contemplated
by Section 2.3.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 2.8 Registration, Transfer and Exchange. The Issuer will
keep, or cause to be kept, at the Corporate Trust Office and at each other
office or agency to be maintained for the purpose as provided in Section 3.2 for
each series of Securities a register or registers (collectively, the "Security
Register") in which, subject to such reasonable regulations as it may prescribe,
it will provide for the registration of Securities of such series and the
registration of transfer of Securities of such series. The Security Register
shall be in written form in the English language or in any other form capable of
being converted into such form within a reasonable time. At all reasonable
times such register or registers not maintained by the Trustee shall be open for
inspection by the Trustee. Unless and until otherwise determined by the Issuer
pursuant to Section 2.3, the Security Register with respect to each series of
Securities shall be kept solely at the Corporate Trust Office and, for this
purpose, the Trustee shall be designated the "Security Registrar."
Upon due presentation for registration of transfer of any Security of
any series at any such office or agency, the Issuer shall execute and the
Trustee shall authenticate and make available for delivery in the name of the
transferee or transferees a new Security or Securities of the same series,
maturity date and interest rate in authorized denominations for a like aggregate
principal amount.
At the option of the Holder thereof, Securities of any series (other
than a Global Security, except as set forth below) may be exchanged for one or
more Securities of such series in authorized denominations for a like aggregate
principal amount, upon surrender of such Securities to be exchanged at the
office or agency to be maintained for such purpose in accordance with Section
3.2 and upon payment, if the Issuer shall so require, of the charges hereinafter
provided. Whenever any Securities are so surrendered for exchange, the Issuer
shall execute, and the Trustee shall authenticate and make available for
delivery, the Securities which the Holder making the exchange is entitled to
receive. All Securities surrendered upon any exchange or transfer provided for
in this Indenture shall be promptly cancelled by the Trustee and
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the Trustee will deliver a certificate of cancellation thereof to the Issuer.
All Securities presented for registration of transfer, exchange,
redemption or payment shall (if so required by the Issuer or the Trustee) be
duly endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Issuer and the Trustee duly executed by,
the Holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities, other than exchanges pursuant to
Sections 2.11, 8.5 , 11.2 and 13.3 not involving any transfer. No service
charge shall be made for any such transaction.
The Issuer shall not be required to (a) issue, exchange or register a
transfer of any Securities of any series for a period of 15 days next preceding
the first mailing or publication of notice of redemption of Securities of such
series to be redeemed or (b) exchange or register the transfer of any Securities
selected, called or being called for redemption, in whole or in part, except, in
the case of any Security to be redeemed in part, the portion thereof not so to
be redeemed.
Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for Securities in definitive registered
form, a Global Security representing all or a portion of the Securities of a
series may not be transferred except as a whole by the Depository for such
Global Security to a nominee of such Depository or by a nominee of such
Depository to such Depository or another nominee of such Depository or by such
Depository or any such nominee to a successor Depository for such Global
Security or a nominee of such successor Depository.
If at any time a Depository for any Securities of a series represented
by one or more Global Securities notifies the Issuer that it is unwilling or
unable to continue as Depository for such Securities or if at any time any such
Depository shall no longer be eligible as a Depository, the Issuer shall appoint
a successor Depository with respect to the Securities held by such Depository.
If a successor Depository is not appointed by the Issuer within 90 days after
the Issuer receives such notice or becomes aware of such ineligibility, the
Securities of such series shall no longer be represented by one or more Global
Securities held by such Depository, and the Issuer shall execute, and the
Trustee, upon receipt of an Issuer Order for the authentication and delivery of
definitive Securities of such series, shall authenticate and make available for
delivery Securities of such series in definitive registered form without
coupons, in any authorized denominations and in an aggregate principal amount
equal to the principal amount of the Global Security or Securities held
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by such Depository in exchange for such Global Security or Securities.
The Issuer may at any time and in its sole discretion determine that
the Securities of a particular series shall no longer be represented by a Global
Security or Securities. In such event, the Issuer shall execute, and the
Trustee, upon receipt of an Issuer Order for the authentication and delivery of
definitive Securities of such series, shall authenticate and deliver, Securities
of such series in definitive registered form in any authorized denominations and
in an aggregate principal amount equal to the principal amount of the Global
Security or Securities representing Securities of such series in exchange for
such Global Security or Securities.
If so specified by the Issuer pursuant to Section 2.3 with respect to
Securities of a particular series represented by a Global Security, the
Depository for such Global Security may surrender such Global Security in
exchange in whole or in part for Securities of such series in definitive
registered form on such terms as are acceptable to the Issuer and such
Depository. Thereupon, the Issuer shall execute, and the Trustee shall
authenticate and make available for delivery:
(i) to each Person specified by such Depository a new Security or
Securities of such series, in any authorized denominations requested by
such Person, in an aggregate principal amount equal to, and in exchange
for, such Person's beneficial interest in the Global Security; and
(ii) to such Depository a new Global Security in a denomination equal
to the difference between the principal amount of the surrendered Global
Security and the aggregate principal amount of Securities authenticated and
delivered pursuant to clause (i) above.
Upon the exchange of any Global Security for Securities in definitive
registered form in authorized denominations, such Global Security shall be
cancelled by the Trustee or an agent of the Issuer or the Trustee. Securities
in definitive registered form without coupons issued in exchange for a Global
Security pursuant to this Section shall be registered in such names and in such
authorized denominations as the Depository for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or an agent of the Issuer or the Trustee. The Trustee or
such agent shall deliver such Securities to or as directed by the Persons in
whose names such Securities are so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under
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this Indenture, as the Securities surrendered upon such registration of transfer
or exchange.
Section 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security shall become
mutilated, defaced or be destroyed, lost or stolen, the Issuer in its discretion
may execute, and upon receipt of an Issuer Order, the Trustee shall authenticate
and make available for delivery a new Security of the same series, maturity date
and interest rate, bearing a number or other distinguishing symbol not
contemporaneously outstanding, in exchange and substitution for the mutilated or
defaced Security, or in lieu of and in substitution for the Security so
destroyed, lost or stolen. In every case the applicant for a substitute
Security shall furnish to the Issuer and to the Trustee or any agent of the
Issuer or the Trustee such security or indemnity as may be required by them to
indemnify and defend and to save each of them and any agent of either of them
harmless and, in every case of destruction, loss or theft, evidence to their
satisfaction of the destruction, loss or theft of such Security and of the
ownership thereof and, in the case of mutilation or defacement, shall surrender
the Security to the Trustee or such agent.
Upon the issuance of any substitute Security the Issuer 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 or its agent) connected therewith. In case any
Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Issuer may, instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated or defaced Security), if the applicant for such payment shall
furnish to the Issuer and to the Trustee or any agent of the Issuer or the
Trustee such security or indemnity as may be required by them to save each of
them harmless, and, in every case of destruction, loss or theft, evidence to
their satisfaction of the destruction, loss or theft of such Security and of the
ownership thereof.
Every substitute Security of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, whether or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone and shall be entitled to all the benefits of (but
shall be subject to all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities of such series
duly authenticated and delivered hereunder. All Securities shall be held and
owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, defaced, destroyed, lost or stolen Securities and shall preclude any
and all other rights or remedies notwithstanding
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any law or statute existing or hereafter enacted to the contrary with respect to
the replacement or payment of negotiable instruments or other securities without
their surrender.
Section 2.10 Cancellation of Securities; Destruction Thereof. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous
fund, if surrendered to the Issuer or any agent of the Issuer or any agent of
the Trustee, shall be delivered to the Trustee or its agent for cancellation or,
if surrendered to the Trustee, shall be cancelled by it; and no Securities shall
be issued in lieu thereof except as expressly permitted by any of the provisions
of this Indenture. The Trustee or its agent shall cancel Securities held by it
and deliver a certificate of cancellation to the Issuer. If the Issuer or its
agent shall acquire any of the Securities, such acquisition shall not operate as
a redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are delivered to the Trustee or its agent for
cancellation.
Section 2.11 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and make available for delivery temporary Securities for such
series (printed, lithographed, typewritten or otherwise reproduced, in each case
in form satisfactory to the Trustee). Temporary Securities of any series shall
be issuable as registered Securities of any authorized denomination, and
substantially in the form of the definitive Securities of such series but with
such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer with the concurrence of the
Trustee as evidenced by the execution and authentication thereof. Temporary
Securities may contain such references to any provisions of this Indenture as
may be appropriate. Every temporary Security shall be executed by the Issuer and
be authenticated by the Trustee upon the same conditions and in substantially
the same manner, and with like effect, as the definitive Securities. Without
unreasonable delay the Issuer shall execute and shall furnish definitive
Securities of such series and thereupon temporary Securities of such series may
be surrendered in exchange for such definitive Securities in registered form
without charge at each office or agency to be maintained for such purpose in
accordance with Section 3.2 and the Trustee shall authenticate and make
available for delivery in exchange for such temporary Securities of such series
an equal aggregate principal amount of definitive Securities of the same series
in authorized denominations. Until so exchanged, the temporary Securities of
any series shall be entitled to the same benefits under this Indenture as
definitive Securities of such series, unless otherwise established pursuant to
Section 2.3. The provisions of this Section are subject to any restrictions or
limitations on the issue and delivery of temporary Securities of any series that
may be established pursuant to Section 2.3.
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Section 2.12 Computation of Interest. Except as otherwise specified
as contemplated by Section 2.3 for Securities of any series, interest, if any,
on the Securities of each series shall be computed on the basis of a 360-day
year of twelve 30-day months.
Section 2.13 CUSIP Numbers. The Issuer in issuing the Securities may
use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Issuer will
promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE THREE
COVENANTS OF THE ISSUER
Section 3.1 Payment of Principal and Interest. The Issuer covenants
and agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of, and interest, if any, on,
each of the Securities of such series (together with any additional amounts
payable pursuant to the terms of such Securities) at the place or places, at the
respective times and in the manner provided in such Securities and in this
Indenture. The interest on Securities (together with any additional amounts
payable pursuant to the terms of such Securities) shall be payable only to or
upon the written order of the Holders thereof and, at the option of the Issuer,
may be paid by wire transfer or by mailing checks for such interest payable to
or upon the written order of such Holders at their last addresses as they appear
on the registry books of the Issuer. If interest is to be paid by wire
transfer, such Holders must notify the Trustee within 5 Business Days prior to
the Record Date of the wire instructions.
Section 3.2 Offices for Payments, etc. So long as any Securities are
outstanding hereunder, the Issuer will maintain in The City of New York, State
of New York an office or agency where the Securities of each series may be
presented for payment, where the Securities of each series may be presented for
exchange as in this Indenture provided, and where the Securities of each series
may be presented for registration of transfer as in this Indenture provided and
where the Securities of each series that is convertible may be presented for
conversion as in this Indenture provided.
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The Issuer will maintain in The City of New York an office or agency
where notices and demands to or upon the Issuer in respect of the Securities of
any series, or this Indenture may be served.
The Issuer will give to the Trustee prompt written notice of the
location of each such office or agency and of any change of location thereof.
In case the Issuer shall fail to maintain any office or agency required by this
Section to be located in The City of New York, State of New York or shall fail
to give such notice of the location or of any change in the location of any of
the above offices or agencies, presentations and demands may be made and notices
may be served at the Corporate Trust Office of the Trustee, and, in such event,
the Trustee shall act as the Issuer's agent to receive all such presentations,
surrenders, notices and demands.
The Issuer may from time to time designate one or more additional
offices or agencies where the Securities of any series may be presented for
payment, where the Securities of such series may be presented for exchange as in
this Indenture provided, where the Securities of such series may be presented
for registration of transfer as in this Indenture provided and where the
Securities of each series that is convertible may be presented for conversion as
in this Indenture provided, and the Issuer may from time to time rescind any
such designation; provided, however, that no such designation or rescission
shall in any manner relieve the Issuer of its obligation to maintain any office
or agency provided for in this Section. The Issuer will give to the Trustee
prompt written notice of any such designation or rescission thereof and of
change in the location of any such other office or agency.
Section 3.3 Appointment to Fill a Vacancy in Office of Trustee. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 6.10, a Trustee, so that there
shall at all times be a Trustee with respect to each series of Securities
hereunder.
Section 3.4 Paying Agents. Whenever the Issuer shall appoint a
paying agent other than the Trustee with respect to the Securities of any
series, it will cause such paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section:
(a) that such paying agent will hold all sums received by it as such
agent for the payment of the principal of or interest, if any, on the
Securities of such series (whether such sums have been paid to it by the
Issuer or by any other obligor on the Securities of such series) in trust
for the benefit of the Holders of the Securities of such series entitled
thereto or of the Trustee until such sums shall be paid to such Holders or
otherwise disposed of as herein provided;
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(b) that such paying agent will give the Trustee prompt notice of any
failure by the Issuer (or by any other obligor on the Securities of such
series) to make any payment of the principal of or interest on the
Securities of such series when the same shall be due and payable; and
(c) at any time during the continuance of any such failure, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such paying agent.
The Issuer will, on or prior to each due date of the principal of or
interest, if any, on the Securities of any series, deposit with the paying agent
a sum sufficient to pay such principal or interest so becoming due, such sum to
be held in trust for the benefit of the Holders of the Securities of such series
entitled to such principal or interest, and (unless such paying agent is the
Trustee) the Issuer will promptly notify the Trustee of any failure to take such
action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of or interest, if any, on the Securities of such series, set aside, segregate
and hold in trust for the benefit of the Holders of the Securities of such
series a sum sufficient to pay such principal or interest, if any, so becoming
due until such sums shall be paid to such Holders or otherwise disposed of as
herein provided. The Issuer will promptly notify the Trustee of any failure to
take such action.
Anything in this section to the contrary notwithstanding, but subject
to Section 10.1, the Issuer may at any time, for the purpose of obtaining a
satisfaction and discharge with respect to one or more or all series of
Securities hereunder, or for any other reason, pay or cause to be paid to the
Trustee all sums held in trust for any such series by the Issuer or any paying
agent hereunder, as required by this Section, such sums to be held by the
Trustee upon the trusts herein contained, and, upon such payment by any paying
agent to the Trustee, such paying agent shall be released from all further
liability with respect to such money.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 10.3 and 10.4.
Section 3.5 Limitation on Dividends; Transactions with Affiliates.
(a) If Securities are issued to a CMS Energy's Trust or a trustee of such trust
in connection with the issuance of Trust Securities by such CMS Energy Trust and
(i) there shall have occurred any event of which the Issuer has actual knowledge
that (A) with the giving of notice or the lapse of time or both, would
constitute an Event of Default hereunder and (B) in respect of which the Issuer
shall not have taken reasonable steps to cure,
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(ii) the Issuer shall be in default with respect to its payment of any
obligations under the Preferred Securities Guarantee or (iii) the Issuer shall
have given notice of its election to defer payments of interest on such
Securities by extending the interest payment period as provided in any
indentures supplemental hereto and shall not have rescinded such notice, or such
period, or any extension thereof, shall be continuing, then the Issuer shall
not, and shall cause any Subsidiary not to, (x) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any shares of the Issuer's capital stock or (y) make any
payment of principal, interest or premium, if any, on or repay, repurchase or
redeem any debt securities (including guarantees of indebtedness for money
borrowed) of the Issuer that rank pari passu with or junior to the Securities
(other than (1) any dividend, redemption, liquidation, interest, principal or
guarantee payment by the Issuer where the payment is made by way of securities
(including capital stock) that rank pari passu with or junior to the securities
on which such dividend, redemption, interest, principal or guarantee payment is
being made,(2) payments under the Preferred Securities Guarantee, (4) purchases
of Common Stock related to the issuance of Common Stock under any of the
Issuer's benefit plans for its directors, officers or employees, (5) as a result
of a reclassification of the Issuer's capital stock or the exchange or
conversion of one series or class of the Issuer's capital stock for another
series or class of the Issuer's capital stock and (6) the purchase of fractional
interests in shares of the Issuer's capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being converted or
exchanged).
The Issuer also covenants with each Holder of the Securities (i) that
for so long as Trust Securities are outstanding not to convert the Securities
except pursuant to a notice of conversion delivered to the Conversion Agent by a
holder of Trust Securities and (ii) to maintain directly or indirectly 100%
ownership of the Common Securities of the Trust; provided, however, that any
permitted successor of the Issuer hereunder may succeed to the Issuer's
ownership of such Common Securities, (iii) not to voluntarily terminate, wind-up
or liquidate the Trust, except (a) in connection with a distribution of the
Securities to the holders of Trust Securities in liquidation of the Trust or (b)
in connection with certain mergers, consolidations or amalgamations permitted by
the Declaration and (iv) to use its reasonable efforts, consistent with the
terms and provisions of the Declaration to cause the Trust to remain a business
trust and not to be classified as an association taxable as a corporation for
United States Federal income tax purposes.
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ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
Section 4.1 Issuer to Furnish Trustee Names and Addresses of
Securityholders. The Issuer and any other obligor on the Securities covenant
and agree that they will furnish or cause to be furnished to the Trustee a list
in such form as the Trustee may reasonably require of the names and addresses of
the Holders of the Securities of each series:
(a) semi-annually and not more than 15 days after each Record Date
for the payment of interest on such Securities, as of such Record Date and
on dates to be determined pursuant to Section 2.3 for non-interest bearing
Securities, in each year; and
(b) at such other times as the Trustee may request in writing, within
30 days after receipt by the Issuer of any such request, as of a date not
more than 15 days prior to the time such information is furnished;
provided that if and so long as the Trustee shall be the Security Registrar for
such series such list shall not be required to be furnished.
Section 4.2 Preservation and Disclosure of Securityholders Lists.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of
each series of Securities (i) contained in the most recent list furnished to it
as provided in Section 4.1, (ii) received by it in the capacity of Security
Registrar for such series, if so acting, and (iii) filed with it within the two
preceding years pursuant to Section 4.4(c)(ii). The Trustee may destroy any
list furnished to it as provided in Section 4.1 upon receipt of a new list so
furnished.
(b) In case three or more Holders of Securities (hereinafter referred
to as "applicants") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders of
Securities of a particular series (in which case the applicants must all hold
Securities of such series) or with Holders of all Securities with respect to
their rights under this Indenture or under such Securities and such application
is accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either
(i) afford to such applicants access to the information preserved at
the time by the Trustee in
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accordance with the provisions of subsection (a) of this Section; or
(ii) inform such applicants as to the approximate number of Holders
of Securities of such series or of all Securities, as the case may be,
whose names and addresses appear in the information preserved at the time
by the Trustee, in accordance with the provisions of such subsection (a)
and as to the approximate cost of mailing to such Holders the form of proxy
or other communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of such series or all Holders of Securities,
whose name and address appears in the information preserved at the time by the
Trustee in accordance with the provisions of such subsection (a) a copy of the
form of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests of the Holders
of Securities of such series or of all Securities, as the case may be, or would
be in violation of applicable law. Such written statement shall specify the
basis of such opinion. If the Commission, after opportunity for a hearing upon
the objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met, and shall enter an order so declaring, the Trustee shall mail copies
of such material to all such Holders with reasonable promptness after the entry
of such order and the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(c) Each and every Holder of Securities by receiving and holding the
same, agrees with the Issuer and the Trustee that neither the Issuer nor the
Trustee nor any agent of the Issuer or the Trustee shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Holders of Securities in accordance with the provisions of subsection (b)
of this Section, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under such subsection (b).
Section 4.3 Reports by the Issuer. The Issuer covenants:
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(a) to file with the Trustee, within 15 days after the Issuer is
required to file the same with the Commission, 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 Commission may from time to time by
rules and regulations prescribe) which the Issuer may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or if the Issuer is not required to file
information, documents or reports pursuant to either of such Sections, then
to file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, 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 in
respect of a debt security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(b) to file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Issuer with the conditions and covenants provided for in this Indenture
as may be required from time to time by such rules and regulations;
(c) to transmit by mail to the Holders of Securities within 30 days
after the filing thereof with the Trustee, in the manner and to the extent
provided in Section 4.4(c), such summaries of any information, documents
and reports required to be filed by the Issuer pursuant to subsections (a)
and (b) of this Section as may be required to be transmitted to such
Holders by rules and regulations prescribed from time to time by the
Commission; and
(d) to furnish to the Trustee, 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
Issuer's compliance with all conditions and covenants under this Indenture
(such compliance to be determined without regard to any period of grace or
requirement of notice provided under this Indenture).
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuer's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
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Section 4.4 Reports by the Trustee. (a) Annually, not later than 60
days after May 15 of each year, the Trustee shall transmit to the Holders and
the Commission a report with respect to events described in Section 313(a) of
the Trust Indenture Act, in such manner and to the extent revised thereunder.
(b) The Trustee shall transmit to the Holders of each series, as
provided in subsection (c) of this Section, a brief report with respect to the
character and amount of any advances (and if the Trustee elects so to state, the
circumstances surrounding the making thereof) made by the Trustee, as such,
since the date of the last report transmitted pursuant to the provisions of
subsection (a) of this Section (or if no such report has yet been so
transmitted, since the date of this Indenture) for the reimbursement of which it
claims or may claim a lien or charge, prior to that of the Securities of such
series, on property or funds held or collected by it as Trustee and which it has
not previously reported pursuant to this subsection (b), except that the Trustee
shall not be required (but may elect) to report such advances if such advances
remaining unpaid at any time aggregate 10% or less of the principal amount of
the Securities of such series outstanding at such time, such report to be
transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by mail to
all Holders of Securities, as the names and addresses of such Holders appear
upon the Security Register;
(d) A copy of each such report shall, at the time of such
transmission to the Holders, be furnished to the Issuer and be filed by the
Trustee with each stock exchange, if any, upon which the Securities of any
series are listed and also with the Commission. The Issuer agrees to notify the
Trustee when and as the Securities of such series become admitted to trading on
any national securities exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 5.1 Event of Default Defined; Acceleration of Maturity;
Waiver of Default. "Event of Default" with respect to Securities of any series,
wherever used herein, means each of the following events which shall have
occurred and be continuing (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest upon any of
the Securities of such series as and
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when the same shall become due and payable, (whether or not payment is
prohibited by the provisions of Article 12 hereof), and continuance of such
default for a period of 30 days; provided, however, that if the Issuer is
permitted by the terms of the Securities of such series to defer the
payment in question, the date on which such payment is due and payable
shall be the date on which the Issuer is required to make payment following
such deferral, if such deferral has been elected pursuant to the terms of
the Securities; or
(b) default in the payment of all or any part of the principal of the
Securities of such series as and when the same shall become due and payable
(whether or not payment is prohibited by the provisions of Article 12
hereof), whether at Maturity, upon purchase by the Issuer at the option of
the Holder, upon any redemption, by declaration or otherwise; provided,
however, that if the Issuer is permitted by the terms of the Securities of
such series to defer the payment in question, the date on which such
payment is due and payable shall be the date on which the Issuer is
required to make payment following such deferral, if such deferral has been
elected pursuant to the terms of the Securities; or
(c) default in the deposit or payment of any sinking fund or
analogous payment [(whether or not payment is prohibited by the provisions
of Article 12 hereof)] for the benefit of the Securities of such series as
and when the same shall become due and payable; or
(d) failure on the part of the Issuer duly to observe or perform any
other of the covenants or agreements on the part of the Issuer in the
Securities of such series or in this Indenture contained (other than a
covenant or agreement expressly included herein solely for the benefit of
Securities of other series) for a period of 60 days after the date on which
written notice specifying such failure, stating that such notice is a
"Notice of Default" hereunder and demanding that the Issuer remedy the
same, shall have been given by registered or certified mail, return receipt
requested, to the Issuer by the Trustee, or to the Issuer and the Trustee
by the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of all series affected thereby; or
(e) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Issuer in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, adjudging the Issuer a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment
or
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composition of or in respect of the Issuer under any applicable law, or
appointing a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Issuer or for any substantial
part of the property of the Issuer, or ordering the winding up or
liquidation of the affairs of the Issuer, and such decree or order shall
remain unstayed and in effect for a period of 60 consecutive days; or
(f) the Issuer shall commence a voluntary case or proceeding under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect or any other case or proceeding to be adjudicated a bankrupt or
insolvent, or consent to the entry of a decree or order for relief in an
involuntary case under any such law, or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by it
of a petition or answer or consent seeking reorganization or relief under
any applicable law, or consent to the filing of such petition or to the
appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee or sequestrator (or similar official) of the Issuer or
for any substantial part of the property of the Issuer, or make any general
assignment for the benefit of creditors, or the notice by it in writing of
its inability to pay its debts generally as they become due, or the taking
of any corporate action by the Issuer in furtherance of any such action;
(g) entry of final judgments against the Issuer or Consumers Power
Company aggregating in excess of $25,000,000 which remain undischarged or
unbonded for a period (during which execution shall not be effectively
stayed) of 60 days;
(h) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Issuer (including a default with
respect to Securities of any series other than that series) or under any
mortgage, indenture or instrument under which there may be issued or by
which there may be secured or evidenced any indebtedness for money borrowed
by the Issuer (including this Indenture), whether such indebtedness now
exists or shall hereafter be created, which default shall have resulted in
such indebtedness in an aggregate principal amount exceeding $25,000,000
becoming or being declared due and payable prior to the date on which it
would otherwise have become due and payable, without such acceleration
having been rescinded or annulled within a period of 10 days after there
shall have been given, by registered or certified mail, to the Issuer by
the Trustee or to the Issuer and the Trustee by the Holders of at least 10%
in principal amount of the Outstanding Securities of that series a written
notice specifying
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such default and requiring the Company to cause such acceleration to be
rescinded or annulled and stating that such notice is a "Notice of Default"
hereunder; or
(i) any other Event of Default provided in the supplemental
indenture or Board Resolution establishing the terms of such series of
Securities as provided in Section 2.3 or in the form of Security for such
series.
If an Event of Default shall have occurred and be continuing then, unless the
principal of all the Securities shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of all the Securities of such series then Outstanding, by notice in
writing to the Issuer (and to the Trustee if given by such Holders), may declare
the entire principal of all the Securities of such series then Outstanding and
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable.
The foregoing paragraph, however, is subject to the condition that if,
at any time after the principal of the Securities of one or more series shall
have been so declared due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, the Issuer shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest upon all the Securities
of such series and the principal of all Securities of such series which shall
have become due otherwise than by acceleration (with interest upon such
principal and, to the extent that payment of such interest is enforceable under
applicable law, on overdue installments of interest at the same rate as the rate
of interest (or Yield to Maturity, in the case of Original Issue Discount
Securities) specified in the Securities of such series, to the date of such
payment or deposit) and such amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents, attorneys and counsel, and all other
expenses and liabilities incurred, and all advances made, by the Trustee except
as a result of negligence or bad faith, and if any and all Events of Default
under this Indenture with respect to such series, other than the non-payment of
the principal of Securities of such series which shall have become due by
acceleration, shall have been cured, waived or otherwise remedied as provided
herein - then, and in every such case, the Holders of a majority in aggregate
principal amount of all the Securities of such affected series then Outstanding
by written notice to the Issuer and to the Trustee, may direct the Trustee to
waive all defaults with respect to such series and rescind and annul such
declaration and its consequences, but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent default or shall impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the principal
of any Original Issue Discount Securities shall have
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been accelerated and declared due and payable pursuant to the provisions hereof,
then, from and after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such Original Issue Discount
Securities shall be deemed, for all purposes hereunder, to be such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal thereof as shall be
due and payable as a result of such acceleration, together with interest, if
any, thereon and all other amounts owing thereunder, shall constitute payment in
full of such Original Issue Discount Securities.
Section 5.2 Collection of Indebtedness by Trustee; Trustee May Prove
Debt. The Issuer covenants that (a) in case default shall be made in the
payment of any installment of interest on any of the Securities of any series
when such interest shall have become due and payable, and such default shall
have continued for a period of 30 days, or (b) in case default shall be made in
the payment of all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether at Maturity,
upon redemption, by declaration or otherwise -- then, upon demand of the
Trustee, the Issuer will pay to the Trustee for the benefit of the Holders of
the Securities of such series the whole amount that then shall have become due
and payable on all Securities of such series for principal or interest, as the
case may be (with interest to the date of such payment upon the overdue
principal and, to the extent that payment of such interest is enforceable under
applicable law, on overdue installments of interest at the same rate as the rate
of interest (or Yield to Maturity, in the case of Original Issue Discount
Securities) specified in the Securities of such series); and in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including reasonable compensation to the Trustee, its
agents, attorneys and counsel, and any expenses and liabilities incurred by such
parties, and all advances made by the Trustee except as a result of its
negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest on the Securities of such series to the Holders,
whether or not the Securities of such series be overdue.
In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or other obligor upon the Securities
of such series and collect in the manner provided by law out of the property of
the Issuer or other obligor upon the Securities of such series, wherever
situated the moneys adjudged or decreed to be payable.
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In case there shall be pending proceedings relative to the Issuer or
any other obligor upon the Securities of any series under Title 11 of the United
States Code or any other applicable Federal or state bankruptcy, insolvency or
other similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor, or in case of any other comparable judicial proceedings relative to the
Issuer or such other obligor, or to the creditors or property of the Issuer or
such other obligor, the Trustee, irrespective of whether the principal of the
Securities of any series 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 pursuant to the provisions of this Section, shall be entitled
and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of the
principal and interest (or, if the Securities of any series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of such series) owing and unpaid in respect of the
Securities of each series, and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for reasonable compensation to the Trustee and its
agents, attorneys and counsel, and for reimbursement of all expenses and
liabilities incurred, and all advances made, by the Trustee, except as a
result of negligence or bad faith) and of the Securityholders allowed in
any judicial proceedings relative to the Issuer or such other obligor, or
to the creditors or property of the Issuer or such other obligor;
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of the Securities of each series in any election of a
trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings; and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their
behalf; and any trustee, receiver, liquidator, custodian or other similar
official is hereby authorized by each of the Securityholders to make
payments to the Trustee, and, in the event that the Trustee shall consent
to the making of payments directly to the Securityholders, to pay to the
Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Trustee, and its agents,
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attorneys and counsel, and all other expenses and liabilities incurred, and
all advances made, by the Trustee except, in each case, as a result of
negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities of any series or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such proceeding
except, as aforesaid, to vote for the election of a trustee in bankruptcy or
similar person.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities of any series may be prosecuted and enforced by the
Trustee without the possession of any of the Securities of such series or the
production thereof at any trial or other proceedings relative thereto, and any
such action or proceedings instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject to
the payment of the expenses, disbursements and compensation of the Trustee and
its agents, attorneys and counsel, shall be for the ratable benefit of the
Holders of the Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent all the
Holders of the Securities in respect to which action was taken, and it shall not
be necessary to make any Holders of such Securities parties to any such
proceedings.
Section 5.3 Application of Proceeds. Any moneys collected by the
Trustee pursuant to this Article in respect of the Securities of any series
shall be applied in the following order at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of principal
or interest, upon presentation of the several Securities in respect of which
moneys have been collected and stamping (or otherwise noting) thereon the
payment, and upon surrender thereof if fully paid, or issuing Securities of the
same series in reduced principal amounts in exchange for the presented
Securities if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection applicable
to such series, including reasonable compensation to the Trustee and its
agents, attorneys and counsel and of all expenses and liabilities incurred,
and all advances made, by the Trustee except as a result of negligence or
bad faith;
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been
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collected shall not have become and be then due and payable, to the payment
of interest, if any, on the Securities of such series in default in the
order of the maturity of the installments of such interest, with interest
(to the extent that such interest has been collected by the Trustee and to
the extent permitted by law) upon the overdue installments of interest at
the same rate as the rate of interest (or Yield to Maturity, in the case of
Original Issue Discount Securities) specified in such Securities, such
payments to be made ratably to the Persons entitled thereto, without
discrimination or preference;
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have become and be then
due and payable, to the payment of the whole amount then owing and unpaid
upon all the Securities of such series for principal and interest, if any,
with interest upon the overdue principal, and (to the extent that such
interest has been collected by the Trustee and to the extent permitted by
law) upon overdue installments of interest at the same rate as the rate of
interest (or Yield to Maturity, in the case of Original Issue Discount
Securities) specified in the Securities of such series; and in case such
moneys shall be insufficient to pay in full the whole amount so due and
unpaid upon the Securities of such series, then to the payment of such
principal and interest, without preference or priority of principal over
interest, or of interest over principal, or of any installment of interest
over any other installment of interest, or of any Security of such series
over any other Security of such series, ratably to the aggregate of such
principal and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the Issuer or any
other Person lawfully entitled thereto.
Section 5.4 Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
Section 5.5 Restoration of Rights on Abandonment of Proceedings. In
case the Trustee or any Holder shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
for any
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reason, or shall have been determined adversely to the Trustee or to such
Holder, then, and in every such case, the Issuer, the Trustee and the Holders
shall be restored respectively to their former positions and rights hereunder,
and all rights, remedies and powers of the Issuer, the Trustee and the Holders
shall continue as though no such proceedings had been taken.
Section 5.6 Limitations on Suits by Securityholders. No Holder of
any Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinbefore provided, and unless also the Holders of
not less than 25% in aggregate principal amount of the Securities of each
affected series then Outstanding (determined as provided herein and voting as
one class) shall have made written request upon the Trustee to institute such
action or proceedings in its own name as trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby and the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 5.9; it being understood and intended, and being
expressly covenanted by the taker and Holder of every Security with every other
taker and Holder and the Trustee, that no one or more Holders of Securities of
any series shall have any right in any manner whatever by virtue or by availing
of any provision of this Indenture to affect, disturb or prejudice the rights of
any other Holder of Securities or to obtain or seek to obtain priority over or
preference to any other such Holder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the affected series. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
Section 5.7 Unconditional Right of Securityholders to Receive
Principal and Interest and to Intstitute Certain Suits. Notwithstanding any
other provision in this Indenture and any provision of any Security, the right
of any Holder of any Security to receive payment of the principal of and
interest, if any, on such Security on or after the respective due dates
expressed in such Security or any date fixed for redemption, or to institute
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder.
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Section 5.8 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default. Except as provided in Section 5.6, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of Securities is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of Securities to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 5.6, every right and power given by this
Indenture or by law to the Trustee or to the Holders of Securities may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Holders of Securities, as the case may be.
Section 5.9 Control by Holders of Securities. The Holders of a
majority in aggregate principal amount of the Securities of each series affected
at the time Outstanding (determined as provided herein and voting as one class)
shall have the right to direct 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 with respect to the Securities of such affected
series by this Indenture; provided that such direction shall not be otherwise
than in accordance with law and the provisions of this Indenture; and provided
further that (subject to the provisions of Section 6.1) the Trustee shall have
the right to decline to follow any such direction if the Trustee, being advised
by counsel of its choice, shall determine that the action or proceeding so
directed may not lawfully be taken or if the Trustee in good faith by its board
of directors, its executive committee or a trust committee of directors or
Responsible Officers of the Trustee shall determine that the action or
proceedings so directed would involve the Trustee in personal liability or that
the actions or forbearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all affected
series not joining in the giving of said direction, it being understood that
(subject to Section 6.1) the Trustee shall have no duty to ascertain whether or
not such actions or forbearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
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Section 5.10 Waiver of Past Defaults. Prior to the declaration of
acceleration of the Maturity of any Securities as provided in Section 5.1, the
Holders of a majority in aggregate principal amount of the Securities of all
series at the time Outstanding with respect to which a default or an Event of
Default shall have occurred and be continuing (determined as provided herein and
voting as one class) may on behalf of the Holders of all such affected
Securities waive any past default or Event of Default described in Section 5.1
and its consequences, except a default or an Event of Default (i) in the payment
of the principal of or interest, if any, on any Security of such series, or (ii)
in respect of a covenant or provision hereof or of any Security which cannot be
modified or amended without the consent of the Holder of each Security affected.
In the case of any such waiver, the Issuer, the Trustee and the Holders of all
such affected Securities shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
Section 5.11 Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances. The Trustee shall, within 90 days after the occurrence
of a default with respect to the Securities of any series, give notice of all
defaults with respect to such series actually known to the Trustee to all
Holders of Securities of such series in the manner and to the extent provided in
Section 4.4(c), unless in each case such defaults shall have been cured before
the mailing or publication of such notice (the term "default" for the purpose of
this Article being hereby defined to mean any event or condition which is, or
with notice or lapse of time or both would become, an Event of Default);
provided that, except in the case of default in the payment of the principal of
or the interest, if any, on any of the Securities of such series, or in the
payment of any sinking fund installment or analogous payment on such series, 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 or
trustees and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interests of the Securityholders
of such series.
Section 5.12 Right of Court to Require Filing of Undertaking to Pay
Costs. All parties to this Indenture agree, and each Holder of any Security by
his or her acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any
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action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or, in the case of
any suit relating to or arising under clause (d) or (g) of section 5.1 (if the
suit relates to the Securities of more than one but less than all series), 10%
in aggregate principal amount of the Securities then Outstanding and affected
thereby, or, in the case of any suit relating to or arising under clause (d) or
(g) (if the suit relates to all the Securities then Outstanding), 10% in
aggregate principal amount of all Securities then Outstanding, or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of or the interest on any Security on or after the due date expressed
in such Security or any date fixed for redemption.
Section 5.13 Waiver of Stay or Extension Laws. The Issuer covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE SIX
CONCERNING THE TRUSTEE
Section 6.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default. The Trustee, prior to the occurrence of an Event of
Default with respect to the Securities of a particular series and after the
curing or waiving of all Events of Default which may have occurred with respect
to such series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a particular series has occurred (which has not
been cured or waived), the Trustee shall exercise with respect to such series
such of the rights and powers vested in it by this Indenture, 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 his own affairs.
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No provision of this Indenture 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
(a) prior to the occurrence of an Event of Default with respect to
the Securities of any series and after the curing or waiving of all such
Events of Default which may have occurred with respect to such series:
(i) the duties and obligations of the Trustee with respect to
the Securities of such series shall be determined solely by the
express provisions of this Indenture, and the Trustee shall not be
liable except for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee;
and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such statements, certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(c) 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 an
appropriate direction of the Holders pursuant to Section 5.9 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 Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there
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shall be reasonable grounds for believing that the repayment of such funds or
adequate indemnity against such liability is not reasonably assured to it.
Section 6.2 Certain Rights of the Trustee. Subject to Section 6.1:
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, Officers' Certificate
or other certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture, note, security 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, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and
any resolution of the Board of Directors may be evidenced to the Trustee by
a copy thereof certified by the secretary or an assistant secretary of the
Issuer;
(c) the Trustee may consult with counsel of its choice and any advice
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be taken
by it hereunder in good faith and in accordance with such advice or Opinion
of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities which might be
incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default with respect to
the Securities of any series and after the curing or waiving of all such
Events of Default, 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, consent, order, approval,
appraisal, bond, debenture, note, security or other paper or document
unless requested in writing so to do by the Holders of not less than a
majority in aggregate
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principal amount of the Securities of all affected series then Outstanding;
provided that, if the payment within a reasonable time to the Trustee of
the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Indenture, the Trustee may require reasonable indemnity
against such costs, expenses or liabilities as a condition to proceeding;
the reasonable expenses of every such investigation shall be paid by the
Issuer or, if paid by the Trustee, shall be repaid by the Issuer upon
demand; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ, and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder.
Section 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein
and in the Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Securities, other than as to the due execution and delivery of the Indenture by
the Trustee. The Trustee shall not be accountable for the use or application by
the Issuer of any of the Securities or of the proceeds thereof.
Section 6.4 Trustee and Agents May Hold Securities; Collections, etc.
The Trustee or any agent of the Issuer or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the Trustee or such agent and, subject to
Sections 6.8 and 6.13, may otherwise deal with the Issuer and receive, collect,
hold and retain collections from the Issuer with the same rights it would have
if it were not the Trustee or such agent.
Section 6.5 Moneys Held by Trustee. Subject to the provisions of
Section 10.4, all moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
mandatory provisions of law. Neither the Trustee nor any agent of the Issuer or
the Trustee shall be under any liability for interest on any moneys received by
it hereunder.
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Section 6.6 Compensation and Indemnification of Trustee and Its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to
time,, and the Trustee shall be entitled to, such reasonable compensation as the
parties shall agree in writing(which shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust), and the
Issuer covenants and agrees to pay or reimburse the Trustee upon its written
request for all reasonable expenses and fees, disbursements and advances
incurred or made by or on behalf of it in accordance with any of the provisions
of this Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not regularly
in its employ) except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Issuer also covenants to indemnify the
Trustee for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on the part of the Trustee arising out
of or in connection with the acceptance or administration of this Indenture or
the trusts hereunder and the Trustee's duties hereunder, including the costs and
expenses of defending itself against or investigating any claim of liability in
the premises. The obligations of the Issuer under this Section to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for expenses and
fees, disbursements and advances shall constitute additional indebtedness
hereunder and shall survive the satisfaction and discharge of this Indenture.
Such additional indebtedness shall not be deemed to be Subordinated Securities,
as that term is defined in Section 12.1, and shall be a senior claim to that of
the Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the benefit of the Holders of particular
Securities, and the Securities are hereby subordinated to such senior claim.
When the Trustee incurs expenses after the occurrence of a default, the expenses
are intended to constitute expenses of administration under any bankruptcy law.
Section 6.7 Right of Trustee to Rely on Officers' Certificate, etc.
Subject to Sections 6.1 and 6.2, whenever in the administration of the trusts of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture in reliance thereon.
Section 6.8 Qualification of Trustee; Conflicting Interests. If the
Trustee has or shall acquire any "conflicting interest" within the meaning of
Section 310(b) of the Trust Indenture Act, the Trustee and the Company shall in
all respects
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comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section 6.9 Persons Eligible for Appointment as Trustee. There shall
at all times be a Trustee hereunder which shall be a corporation organized and
doing business under the laws of the United States of America or of any State
thereof or the District of Columbia having a combined capital and surplus of at
least $50,000,000, and which is authorized under such laws to exercise corporate
trust powers and is subject to supervision or examination by Federal, State or
District of Columbia authority. Such corporation shall have its principal place
of business in The City of New York, if there be such a corporation in such
location willing to act upon reasonable and customary terms and conditions. If
such corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining authority,
then, for the purposes of this Section, 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 condition so published. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and with the effect
specified in Section 6.10.
Section 6.10 Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign and be discharged of the trusts created by this Indenture by
giving written notice of resignation to the Issuer and by mailing notice of such
resignation to the Holders of the then Outstanding Securities at their addresses
as they shall appear on the Security registry books. Upon receiving such notice
of resignation, the Issuer shall promptly appoint a successor trustee or
trustees with respect to the applicable series by written instrument, in
duplicate, executed by authority of the Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee or trustees.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section
6.8 after written request therefor by the Issuer or by any Holder who has
been a bona fide Holder of a Security or Securities of such series for at
least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.9 and shall fail to resign after written request
therefor by the Issuer or by any Holder; or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a
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receiver or liquidator 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 such case, the Issuer may remove the Trustee with respect to the
Securities of any or all series, as appropriate, and appoint a successor trustee
for such series by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee or trustees, or,
subject to the provisions of Section 5.12, any Holder who has been a bona fide
Holder of a Security or Securities of such series for at least six months may,
on behalf of such Holder and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding may at any time remove the Trustee and
appoint a successor trustee by delivering to the Trustee so removed, to the
successor trustee so appointed and to the Issuer the evidence provided for in
Section 7.1 of the action in that regard taken by the Holders.
(d) Any resignation or removal of the Trustee and any appointment of
a successor trustee pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 6.11. If no successor trustee shall have been so appointed
with respect to any series and shall have accepted appointment within 30 days
after the mailing of a notice of resignation or removal, the retiring trustee
may petition any court of competent jurisdiction for the appointment of a
successor trustee, or any Holder who has been a bona fide Holder of a Security
or Securities of such series for at least six months may, subject to the
provisions of Section 5.12, on behalf of such Holder and all others similarly
situated, petition any such court for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(e) Except in the case of a default in the payment of the principal
of or interest on any Security, or in the payment of any sinking or purchase
fund installment, the Trustee shall not be required to resign as provided by
Section 6.8 if the Trustee shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing thereon, that:
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(i) the default under this Indenture may be cured or waived during a
reasonable period and under the procedures described in such application;
and
(ii) a stay of the Trustee's duty to resign will not be inconsistent
with the interests of the Securityholders.
Section 6.11 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 6.10 shall execute,
acknowledge and deliver to the Issuer and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with
all rights, powers, trusts and duties of its predecessor hereunder, with like
effect as if originally named as trustee hereunder; but, nevertheless, on the
written request of the Issuer or of the successor Trustee, upon payment of its
charges then unpaid, the trustee ceasing to act shall, subject to Section 10.4,
pay over and transfer to the successor Trustee all moneys and property at the
time held by it hereunder and shall execute, acknowledge and deliver an
instrument transferring to such successor Trustee all such rights, powers,
trusts and duties. Upon request of any such successor Trustee, the Issuer shall
execute and acknowledge any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor Trustee all such money,
property, rights, powers and trusts. Any Trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such Trustee for the benefit of such applicable series to secure any amounts
then due it pursuant to the provisions of Section 6.6.
No successor Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor trustee shall be
qualified under the provisions of Section 6.8 and eligible under the provisions
of Section 6.9.
Upon acceptance of appointment by any successor Trustee as provided in
this Section, the Issuer shall give notice thereof to the Holders of Securities,
by mailing such notice to such Holders at their addresses as they shall appear
on the Security registry books. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
6.10. If the Issuer fails to give such notice within 10 days after acceptance
of appointment by the successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Issuer.
Section 6.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee. 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,
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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 that such corporation shall be qualified under the provisions of
Section 6.8 and eligible under the provisions of Section 6.9, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
In case at the time of such succession to the Trustee any of the
Securities of any series shall have been authenticated but not delivered, any
such successor Trustee may adopt the certificate of authentication of any
predecessor Trustee and deliver the Securities so authenticated; and, in case at
that time any of the Securities of any series shall not have been authenticated,
any successor Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of such successor Trustee; and in all such
cases such certificate of authentication shall have the full force which is
anywhere in the Securities of such series or in this Indenture provided that the
certificate of authentication of the Trustee shall have; provided that the right
to adopt the certification of any predecessor Trustee or to authenticate
Securities of any series in the name of any predecessor Trustee shall apply only
to its successor or successors by merger, conversion or consolidation.
Section 6.13 Preferential Collection of Claims Against the Issuer.
The Trustee shall comply with its obligations under the applicable provisions of
Section 311 of the Trust Indenture Act.
Section 6.14 Appointment of Authenticating Agent. As long as any
Securities of a series remain Outstanding, the Trustee may, by an instrument in
writing, appoint with the approval of the Issuer an authenticating agent (the
"Authenticating Agent") which shall be authorized to act on behalf of, but
subject to the direction of, the Trustee to authenticate and deliver Securities
of such series, including Securities issued upon exchange, registration of
transfer, partial redemption or pursuant to Section 2.9. Securities of such
series so authenticated and delivered shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee. Whenever reference is made in this Indenture to the
authentication and delivery of Securities of any series by the Trustee or to the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent for such series and a certificate of authentication
executed on behalf of the Trustee by such Authenticating Agent. Such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State thereof
or of the District of Columbia authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50,000,000
(determined as provided in
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Section 6.9 with respect to the Trustee) and subject to supervision or
examination by Federal or State authority.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of any Authenticating Agent, shall be the successor to
such Authenticating Agent with respect to all series of Securities for which it
served as Authenticating Agent without the execution or filing of any paper or
any further act on the part of the Trustee or such Authenticating Agent.
Any Authenticating Agent may at any time, and if it shall cease to be
eligible hereunder shall, resign by giving written notice of resignation to the
Trustee and to the Issuer. The Trustee may at any time terminate the agency of
any Authenticating Agent by giving written notice thereof to such Authenticating
Agent and the Issuer. Upon receiving such a notice of resignation or upon such
a termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
upon receipt of an Issuer Order appoint a successor Authenticating Agent and
shall provide notice of such appointment to all Holders of Securities affected
thereby in the manner and to the extent provided in Section 6.11 with respect to
the appointment of a successor trustee. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. The Authenticating Agent for the
Securities of any series shall have no responsibility or liability for any
action taken by it as such at the direction of the Trustee.
Sections 6.2, 6.3, 6.4, 6.6 and 7.3 shall be applicable to any
Authenticating Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
Section 7.1 Evidence of Action Taken by Securityholders. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified percentage
in aggregate principal amount of the Holders of one or more series of Securities
may be evidenced (i) by one or more instruments of substantially similar tenor
signed by such specified percentage of Holders 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; (ii) by the record of such specified percentage of
Holders voting in favor thereof at any meeting of such Holders duly called and
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held by the Trustee; and (iii) by a combination of such instrument or
instruments and any such record of a meeting.
Section 7.2 Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.1 and 6.2, the execution of any instrument by
a Holder or his agent or proxy and proof of the holding by any Person of any of
the Securities of any series shall be sufficient if made in the following
manner:
(a) The fact and date of the execution by any such Person of any
instrument 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 other such officer. Where
such execution is by or on behalf of any legal entity other than an
individual, such certificate or affidavit shall also constitute sufficient
proof of the authority of the Person executing the same.
(b) The ownership of Securities shall be proved by the Security
Register or by a certificate of the Security Registrar.
Section 7.3 Holders to be Treated as Owners. The Issuer, the Trustee
and any agent of the Issuer or the Trustee may deem and treat the Person in
whose name any Security of any series shall be registered upon the Security
Register for such series as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or on account of
the principal of and, subject to the provisions of Section 2.7 of this
Indenture, interest, if any, on such Security and for all other purposes; and
none of the Issuer, the Trustee and any agent of the Issuer or the Trustee shall
be affected by any notice to the contrary. All such payments so made to any
such Person, or upon his order, shall be valid, and, to the extent of the sum or
sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Security.
No holder of any beneficial interest in any Global Security held on
its behalf by a Depository shall have any rights under this Indenture with
respect to such Global Security, and such Depository may be treated by the
Issuer, the Trustee, and any agent of the Issuer or the Trustee as the owner of
such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall impair, as between a Depository and such holders
of beneficial interests, the operation of customary practices governing the
exercise of the rights of the Depository as holder of any Security.
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Section 7.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of one or more series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the Issuer
or any other obligor on the Securities with respect to which such determination
is being made or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer or any other
obligor on the Securities with respect to which such determination is being made
shall be disregarded and deemed not to be Outstanding for the purposes of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver,
only Securities which the Trustee actually knows are so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Issuer or any other obligor upon such Securities or any
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or any other obligor on such Securities.
In case of a dispute as to such right, the advice of counsel shall be full
protection in respect of any decision made by the Trustee in accordance with
such advice. Upon request of the Trustee, the Issuer shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying all
Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above described Persons; and, subject to Sections 6.1 and
6.2, the Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purposes of any such
determination.
Section 7.5 Right of Revocation of Action Taken. At any time prior
to (but not after) the evidencing to the Trustee, as provided in Section 7.1, of
the taking of any action by the Holders of the requisite percentage in aggregate
principal amount of the Securities of one or more series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to be included
among the serial numbers of the Securities the Holders of which have consented
to such action may, by filing written notice at the Corporate Trust Office and
upon proof of ownership as provided in Section 7.2, revoke such action so far as
concerns such Security. Except as aforesaid, any such action taken by the
Holder of any Security of any series shall be conclusive and binding upon such
Holder and upon all future Holders and owners of such Security and of any
Securities of such series issued in exchange or substitution therefor or on
registration of transfer thereof, irrespective of whether or not any notation in
regard thereto is made upon any such Security. Any action taken by the Holders
of the requisite percentage in aggregate principal amount of the Securities of
one or more series, as the case may be, specified in
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this Indenture in connection with such action shall be conclusively binding upon
the Issuer, the Trustee and the Holders of all the Securities of such series.
Section 7.6 Calculation of Original Issue Discount. The Company
shall file with the Trustee promptly at the end of each calendar year a written
notice specifying the amount of original issue discount (including daily
accruals and accrual periods) accrued on Outstanding Securities as of the end of
such year and (ii) such other specific information relating to such original
issue discount as may then be relevant under the Internal Revenue Code of 1986,
as amended from time to time.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of the Board of
Directors (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be determined
in accordance with or pursuant to an Issuer Order), and the Trustee may, from
time to time and at any time, enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act of 1939
as in force at the date of the execution thereof) for one or more of the
following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another corporation to the Issuer,
or successive successions, and the assumption by the successor corporation
of the covenants, agreements and obligations of the Issuer pursuant to
Article Nine;
(c) to add to the covenants of the Issuer for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) such further covenants, restrictions, conditions or provisions as
the Issuer and the Trustee shall consider to be for the protection of the
Holders of Securities of any series, and to make the occurrence, or the
occurrence and continuance, of a default in complying with any such
additional covenant, restriction,
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condition or provision an Event of Default permitting the enforcement of
all or any of the several remedies provided in this Indenture as herein set
forth; in respect of any such additional covenant, restriction, condition
or provision, such supplemental indenture may provide for a particular
period of grace after default (which period may be shorter or longer than
that allowed in the case of other defaults) or may provide for an immediate
enforcement upon such an Event of Default or may limit the remedies
available to the Trustee upon such an Event of Default or may limit the
right of the Holders of a majority in aggregate principal amount of the
Securities of such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture, or to make such other provisions as the Issuer may
deem necessary or desirable, with respect to matters or questions arising
under this Indenture, provided that no such action shall adversely affect
the interests of the Holders of the Securities of any series appertaining
thereto;
(e) to establish the form and terms of the Securities of any series
as permitted by Sections 2.1 and 2.3; and
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities and to add
to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by
more than one trustee, all as provided in Section 6.11.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property or assets
thereunder, but the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the
Securities at the time Outstanding, notwithstanding any of the provisions of
Section 8.2.
Section 8.2 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Article Seven) of the Holders of not
less than a majority in aggregate principal amount of the Securities of all
series at the time Outstanding affected by such supplemental indenture (voting
as one class), the Issuer, when authorized by a resolution of the
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Board of Directors (which resolution may provide general terms or parameters for
such action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order), and the Trustee
may, from time to time and at any time, enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act of 1939 as in force at the date of execution thereof) for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Securities of each such
series; provided that no such supplemental indenture shall (a) change the time
of payment of the principal, or any installment of the principal, of any
Security or reduce the principal amount thereof, or reduce the rate or change
the time of payment of interest, if any, thereon, or reduce any amount payable
on the redemption thereof, or make the principal thereof or the interest thereon
payable in any coin or currency other than that provided in such Security in
accordance with the terms thereof, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon an
acceleration of the Maturity thereof pursuant to Section 5.1 or the amount
thereof provable in bankruptcy, pursuant to Section 5.2, or impair or affect the
right to institute suit for the payment thereof when due, or, if such Security
shall so provide, any right of repayment at the option of the Holder, in each
case without the consent of the Holder of each Security so affected, (b) reduce
the percentage in principal amount of the Outstanding Securities of the affected
series, the consent of whose Holders is required for any such supplemental
indenture or for any waiver provided for in this Indenture, without the consent
of the Holders of each Security so affected or (c) without the consent of the
Holders of each Security so affected, modify any of the provisions of this
Section or Section 5.10, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected thereby;
provided, however, that this clause shall not be deemed to require the consent
of any Holder with respect to changes in the references to "the Trustee" and
concomitant changes in this Section, or the deletion of this proviso, in
accordance with the requirements of Sections 6.11 and 8.1(f).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more series of Securities, or which modifies the rights of
the Holders of Securities of such series appertaining to such Securities with
respect to such covenant or provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
Upon the request of the Issuer, accompanied by a Board Resolution
complying with the first paragraph of this Section and evidence of the consent
of the Holders of the Securities as
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aforesaid and such other documents, if any, as may be required by Section 7.1,
the Trustee shall join with the Issuer in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall give notice thereof to the Holders of then Outstanding Securities of each
series affected thereby, by mailing a notice thereof by first-class mail to such
Holders at their addresses as they shall appear on the Security Register, and in
each case such notice shall set forth in general terms the substance of such
supplemental indenture. Any failure of the Issuer to give such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
Section 8.3 Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders of Securities of
each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
Section 8.4 Documents to Be Given to Trustee. The Trustee, subject
to the provisions of Sections 6.1 and 6.2, may receive an Officers' Certificate
and an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article complies with the applicable provisions of
this Indenture.
Section 8.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee as to any matter
provided for by such supplemental indenture. If the Issuer or the Trustee shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any modification of this
Indenture contained in any such supplemental
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indenture may be prepared and executed by the Issuer, authenticated by the
Trustee and delivered in exchange for the Securities of such series then
Outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 9.1 Covenant of Issuer Not to Merge, Consolidate, Sell or
Convey Property Except Under Certain Conditions. Nothing contained in this
Indenture or in any of the Securities shall prevent any consolidation of the
Issuer with, or merger of the Issuer into, any other corporation or corporations
(whether or not affiliated with the Issuer), or successive consolidations or
mergers to which the Issuer or its successor or successors shall be a party or
parties, shall prevent any sale, lease or conveyance of the property of the
Issuer as an entirety or substantially as an entirety, shall prevent any
consolidation of any Person with, or the merger of any Person into, the Issuer
or shall prevent any sale, lease or conveyance of the property of any Person as
an entirety or substantially as an entirety to the Issuer; provided, that, and
the Issuer hereby covenants and agrees, upon any such consolidation, merger,
sale, lease or conveyance, the due and punctual payment of the principal of and
interest, if any, on all the Securities, according to their tenor, and the due
and punctual performance and observance of all of the covenants and conditions
of this Indenture to be performed or observed by the Issuer, shall be expressly
assumed, by supplemental indenture satisfactory in form to the Trustee, executed
and delivered to the Trustee by the corporation formed by such consolidation, or
into which the Issuer shall have been merged, or which shall have acquired such
property; provided, further, that the corporation formed by such consolidation
or into which the Issuer merged or the Person which acquired by conveyance or
sale, or which leases, the properties and assets of the Issuer as an entirety or
substantially as an entirety shall be a corporation organized and existing under
the laws of the United States of America, any State thereof or the District of
Columbia; provided, further, that immediately after giving effect to such
transaction, and treating any indebtedness which becomes an obligation of the
Issuer or a Subsidiary as a result of such transaction as having been incurred
by the Issuer or such Subsidiary at the time of such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would become
an Event of Default, shall have happened and be continuing; provided, further,
if, as a result of any such consolidation or merger or such conveyance, transfer
or lease, properties or assets of the Issuer would become subject to a mortgage,
pledge, lien, security interest or other encumbrance which would not be
permitted by this Indenture, the Issuer or such successor corporation or Person,
as the case may be, shall take such steps as shall be necessary effectively to
secure the Securities equally and ratably with (or prior to) all indebtedness
secured thereby.
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Section 9.2 Successor Corporation Substituted for Issuer. In case of
any consolidation, merger, sale, lease or conveyance referred to in, and in
accordance with, Section 9.1, and following such an assumption by the successor
corporation, such successor corporation shall succeed to and be substituted for
the Issuer, with the same effect as if it had been named herein as Issuer.
Such successor corporation may cause to be signed, and may issue
either in its own name or in the name of the Issuer prior to such succession,
any or all of the Securities issuable hereunder which theretofore shall not have
been signed by the Issuer and delivered to the Trustee; and, upon the order of
such successor corporation, instead of the Issuer, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall have been
signed and delivered by the officers of the Issuer to the Trustee for
authentication, and any Securities which such successor corporation thereafter
shall cause to be signed and delivered to the Trustee for that purpose. All of
the Securities so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Securities theretofore or thereafter issued
in accordance with the terms of this indenture as though all of such Securities
had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance
by way of lease), the Issuer or any successor corporation which shall
theretofore have become such in the manner described in this Article shall be
discharged from all obligations and covenants under this Indenture and the
Securities and may be liquidated and dissolved.
Section 9.3 Opinion of Counsel Delivered to Trustee. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale, lease
or conveyance, and any such assumption, and any such liquidation or dissolution,
complies with the applicable provisions of this Indenture and that all
conditions precedent herein provided for relating to such transactions have been
complied with.
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ARTICLE TEN
SATISFACTION AND DISCHAREGE OF INDENTURE;
UNCLAIMED MONEYS
Section 10.1 Satisfaction and Discharge of Indenture. (A) If at any
time (a) the Issuer shall have paid or caused to be paid the principal of, and
interest, if any, on all the Securities of each series theretofore
authenticated, (other than Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 2.9), in accordance
with the terms of this Indenture and such Securities or (b) as to Securities not
so paid, the Issuer shall have delivered to the Trustee for cancellation all
Securities of each series theretofore authenticated (other than any Securities
which shall have been destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.9) or (c) as to Securities not so paid
or delivered for cancellation, [in the case of any series of Securities as to
which the exact amount of principal of and interest, if any, due can be
determined at the time of making the deposit referred to in clause (ii)
below,](i) all the Securities of such series shall have become due and payable,
or are by their terms to become due and payable within one year or are to be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption, and (ii) the Issuer shall have
irrevocably deposited or caused to be deposited with the Trustee as trust funds
money in an amount (other than moneys repaid by the Trustee or any paying agent
to the Issuer in accordance with Section 10.4) or Government Obligations,
maturing as to principal and interest at such times and in such amounts as will
insure the availability of money, or a combination thereof, sufficient in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
(A) the principal and interest, if any, on all Securities of such series on each
date that such principal or interest, if any, is due and payable and (B) any
mandatory sinking fund or analogous payments on the dates on which such payments
are due and payable in accordance with the terms of this Indenture and the
Securities of such series; and if, in any such case, the Issuer shall also pay
or cause to be paid all other sums payable hereunder by the Issuer then this
Indenture shall cease to be of further effect (except as to (i) rights of
registration of transfer and exchange of Securities [and the Issuer's right of
optional redemption, if any,] (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities, (iii) the rights of Holders of Securities
to receive payments of principal thereof, and interest, if any, thereon, upon
the original stated due dates therefor or any date of redemption (but not upon
acceleration), and remaining rights of such Holders to receive mandatory sinking
fund or analogous payments, if any, (iv) the rights, obligations, duties and
immunities of the Trustee hereunder, (v) the rights of Holders of Securities as
beneficiaries hereof with respect to the property so deposited with the Trustee
and payable to all or any of them and (vi) the obligations of the
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Issuer under Section 3.2) and the Trustee, on demand of the Issuer accompanied
by an Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with, and at the cost and expense
of the Issuer, shall execute proper instruments acknowledging such satisfaction
and discharge of this Indenture, provided that the rights of Holders of the
Securities to receive amounts in respect of principal of and interest on the
Securities held by them shall not be delayed longer than required by then
applicable mandatory rules or policies of any national securities exchange upon
which the Securities are listed. The Issuer agrees to reimburse the Trustee for
any costs or expenses thereafter reasonably and properly incurred and to
compensate the Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture or the Securities.
(B) The following provisions shall apply to the Securities of each
series unless specifically otherwise provided in the Board Resolution, Officers'
Certificate or supplemental indenture relating thereto provided pursuant to
Section 2.3. In addition to discharge of this Indenture pursuant to the next
preceding paragraph (A) the Issuer shall be deemed to have paid and discharged
the entire indebtedness on all the Securities of such series on the 123rd day
after the date of making the deposit referred to in clause (a), and the
provisions of this Indenture with respect to the Securities of such series shall
no longer be in effect (except as to (i) rights of registration of transfer and
exchange of Securities of such series [and the Issuer's right of optional
redemption, if any,] (ii) substitution of mutilated, defaced, destroyed, lost or
stolen Securities, (iii) the rights of Holders of Securities of such series
appertaining thereto to receive payments of principal thereof and interest, if
any, thereon, upon the original stated due dates therefor or any date of
redemption (but not upon acceleration), and remaining rights of such Holders to
receive mandatory sinking fund or analogous payments, if any, solely from the
trust fund referred to in subparagraph (a) below, (iv) the rights, obligations,
duties and immunities of the Trustee hereunder, (v) the rights of Holders of
Securities of such series as beneficiaries hereof with respect to the property
so deposited with the Trustee and payable to all or any of them and (vi) the
obligations of the Issuer under Section 3.2), and the Trustee, at the cost and
expense of the Issuer, shall, at the Issuer's written request, execute proper
instruments acknowledging the same, if:
(a) the Issuer shall have irrevocably deposited or caused to be
irrevocably deposited with the Trustee as a trust fund specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of the
Securities of such series (i) money in an amount, or (ii) Government
Obligations, maturing as to principal and interest at such times and in
such amounts as will insure the availability of money, or (iii) a
combination
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thereof, sufficient in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay (A) the principal and interest, if any, on
all Securities of such series on each date that such principal or interest,
if any, is due and payable and (B) any mandatory sinking fund or analogous
payments on the dates on which such payments are due and payable in
accordance with the terms of this Indenture and the Securities of such
series;
(b) no Event of Default or event which, with notice or lapse of time
or both, would become an Event of Default with respect to the Securities of
such series shall have occurred and be continuing on the date of such
deposit or at any time during the period ending on the 123rd day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
(c) such deposit shall not result in a breach or violation of, or
constitute a default under, this Indenture or any other material agreement
or instrument to which the Issuer is a party or by which it is bound;
(d) such deposit shall not cause any Securities of such series then
listed on any national securities exchange registered under the Securities
Exchange Act of 1934, as amended, to be delisted;
(e) the Issuer shall have delivered to the Trustee an Opinion of
Counsel to the effect that (i) if such deposits shall include Government
Obligations in respect of any government other than the United States of
America, such deposit shall not result in the Issuer, the Trustee or such
trust constituting an "investment company" under the Investment Company Act
of 1940, as amended, and (ii) if any such deposit occurs more than one year
prior to the stated maturity or redemption date of the Securities of such
series, the Holders of the Securities of such series then Outstanding will
not recognize income, gain or loss for Federal income tax purposes as a
result of such deposit, defeasance and discharge and will be subject to
Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such deposit, defeasance and discharge
had not occurred; and
(f) the Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the defeasance contemplated by
this paragraph have been complied with.
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(C) The Issuer shall be released from its obligations under Article
Three and Article Nine with respect to the Securities of a particular series
Outstanding on and after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance"). Covenant defeasance means that, with
respect to the Outstanding Securities of such series, the Issuer may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in Article Nine, whether directly or indirectly by reason
of any reference elsewhere herein to such Article by reason of any reference in
such Article to any other provision herein or by reason of any reference to such
Article in any other document, and such omission to comply shall not constitute
an Event of Default under Section 5.1 with respect to the Outstanding Securities
of such series, but the remainder of this Indenture and other Outstanding
Securities shall be unaffected thereby. The following shall be the conditions
to application of this paragraph (C):
(a) the Issuer shall have irrevocably deposited or caused to be
irrevocably deposited with the Trustee as a trust fund specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of the
Securities of such series, (i) money in an amount, or (ii) Government
Obligations, maturing as to principal and interest at such times and in
such amounts as will insure the availability of money, or (iii) a
combination thereof, sufficient in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay (A) the principal and interest, if
any, on all Securities of such series on each date that such principal or
interest, if any, is due and payable and (B) any mandatory sinking fund or
analogous payments on the dates on which such payments are due and payable
in accordance with the terms of this Indenture and the Securities of such
series;
(b) no Event of Default or event which, with notice or lapse of time
or both, would become an Event of Default with respect to the Securities of
such series shall have occurred and be continuing on the date of such
deposit or at any time during the period ending on the 123rd day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
(c) such covenant defeasance shall not result in a breach or
violation of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Issuer is a party or by which
it is bound;
(d) such covenant defeasance shall not cause any Securities of such
series then listed on any national
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securities exchange registered under the Securities Exchange Act of 1934,
as amended, to be delisted;
(e) the Issuer shall have delivered to the Trustee an Opinion of
Counsel to the effect that (i) if such deposits shall include Government
Obligations in respect of any government other than the United States of
America, such deposit shall not result in the Issuer, the Trustee or such
trust constituting an "investment company" under the Investment Company Act
of 1940, as amended, and (ii) the Holders of the Securities of such series
then Outstanding will not recognize income, gain or loss for Federal income
tax purposes as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred; and
(f) the Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to such covenant defeasance have
been complied with.
Section 10.2 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.4, all moneys and Government Obligations
deposited with the Trustee (or other trustee), and all money received by the
Trustee in respect of Government Obligations deposited with the Trustee,
pursuant to Section 10.1 in respect of the Outstanding Securities of a
particular series shall be held in trust and applied by it to the payment,
either directly or through any paying agent (including the Issuer acting as its
own paying agent), to the Holders of such Securities of all sums due and to
become due thereon for principal and interest, if any; but such money need not
be segregated from other funds except to the extent required by law.
Section 10.3 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to the
Securities of any series, all moneys then held by any paying agent under the
provisions of this Indenture with respect to such series of Securities shall,
upon demand of the Issuer, be repaid to it or paid to the Trustee and thereupon
such paying agent shall be released from all further liability with respect to
such moneys.
Section 10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Three Years. Any moneys deposited with or paid to the Trustee or
any paying agent for the payment of the principal of or interest, if any, on any
Security of any series and not applied but remaining unclaimed for three years
after the date upon which such principal or interest shall have become due and
payable, shall, upon the written request of the Issuer and unless otherwise
required by mandatory provisions of applicable escheat or abandoned or unclaimed
property law, be repaid to the Issuer by the Trustee or such paying agent, and
any Holder of the Securities of such series shall, unless otherwise required by
mandatory provisions of applicable escheat or abandoned
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or unclaimed property laws, thereafter look only to the Issuer for any payment
which such Holder may be entitled to collect, and all liability of the Trustee
or any paying agent with respect to such moneys shall thereupon cease; provided,
however, that the Trustee or such paying agent, before being required to make
any such repayment with respect to moneys deposited with it for any payment
shall at the expense of the Issuer, mail by first-class mail to Holders of such
Securities at their addresses as they shall appear on the Security Register for
the Securities of such series, notice that such moneys remain and that, after a
date specified therein, which shall not be less than 30 days from the date of
such mailing any unclaimed balance of such moneys then remaining will be repaid
to the Issuer.
Section 10.5 Indemnity for Government Obligations. The Issuer shall
pay and indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the Government Obligations deposited pursuant to Section 10.1
or the principal or interest received in respect of such Government Obligations,
other than any such tax, fee or other charge which by law is for the account of
the Holders of the Securities for whose benefit such Government Obligations are
held.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 11.1 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which are redeemable
before their maturity or to any Securities of a series which have the benefit of
a sinking fund, except as otherwise specified as contemplated by Section 2.3 for
Securities of any series.
Section 11.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part shall be given by mailing notice of such redemption by first class
mail, postage prepaid, at least 30 days and not more than 60 days prior to the
date fixed for redemption, to such Holders at their last addresses as they shall
appear upon the registry books for such Securities. Any notice which is mailed
in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice. Failure to give notice by
mail, or any defect in the notice to the Holder of any Security of any series
designated for redemption as a whole or in part, shall not affect the validity
of the proceedings for the redemption of any other Security of such series.
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The notice of redemption to each such Holder shall specify (a) the
principal amount to be redeemed, (b) the date fixed for redemption, (c) the
redemption price, (d) if applicable, the current conversion price or rate, (e)
if applicable, the name and address of the Conversion Agent, (f) if applicable,
that the right of the Holder to convert Securities called for redemption shall
terminate at the close of business on the fifteenth day prior to the redemption
date (or such other day as may be specified as contemplated by Section 2.3 for
Securities of any series), (g) if applicable, that Holders who elect to convert
Securities called for redemption must satisfy the requirements for conversion
contained in such Securities, (h) the place or places of payment, that payment
will be made upon presentation and surrender of such Securities, (i) that such
redemption is pursuant to the mandatory or optional sinking or other analogous
fund, or both, if such be the case, (j) that interest accrued to the date fixed
for redemption will be paid as specified in such notice and (k) that on and
after said date interest thereon or on the portions thereof to be redeemed will
cease to accrue, (l) place for presentment and (m) the CUSIP number. In case
any Security is to be redeemed in part only, the notice of redemption shall
state the portion of the principal amount thereof to be redeemed and shall state
that on and after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities of such series in authorized
denominations for an aggregate principal amount equal to the unredeemed portion
thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of redemption
given as provided in this Section, the Issuer will deposit with the Trustee or
with one or more paying agents (or, if the Issuer is acting as its own paying
agent, set aside, segregate and hold in trust as provided in Section 3.4) an
amount of money sufficient to redeem on the redemption date all the Securities
of any series so called for redemption at the applicable redemption price,
together with accrued interest to the date fixed for redemption. The Issuer
will deliver to the Trustee at least 60 days prior (except that the Trustee may
in its sole discretion waive such notice period at any time) to the date fixed
for redemption an Officers' Certificate stating such date, the aggregate
principal amount of Securities of each series to be redeemed and that no Events
of Default with respect to the Securities of such series have occurred (which
have not been waived or cured). In case of a redemption at the option of the
Issuer prior to the expiration of any restriction on such redemption, the Issuer
shall deliver to the Trustee, prior to the giving of any notice of redemption to
Holders pursuant to this Section, an Officers' Certificate stating that such
restriction has been complied with. If less than all the Securities of any
series are to be redeemed, the Trustee shall select by lot or, in such manner
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as it shall deem appropriate and fair, Securities of such series to be redeemed
in whole or in part. Securities may be redeemed in part in multiples equal to
the minimum authorized denomination for Securities of such series or any
multiple thereof. The Trustee shall promptly notify the Issuer in writing of
the Securities of such series selected for redemption and, in the case of any
Securities of such series selected for partial redemption, the principal amount
thereof to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities of
any series shall relate, in the case of any Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such Security which has
been or is to be redeemed.
Section 11.3 Payment of Securities Called for Redemption. If
notice of redemption has been given as provided in Section 11.2, the Securities
or portions of Securities specified in such notice shall become due and payable
on the date and at the place stated in such notice at the applicable redemption
price, together with interest accrued to the date fixed for redemption, and on
and after said date (unless the Issuer shall default in the payment of such
Securities at the applicable redemption price, together with interest accrued to
said date) interest on the Securities or portions of Securities so called for
redemption shall cease to accrue and, except as provided in Sections 6.5 and
10.4, such Securities shall cease from and after the date fixed for redemption
to be entitled to any benefit or security under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except the right to
receive the applicable redemption price thereof and unpaid interest to the date
fixed for redemption and the right to convert such Securities, if such
Securities are convertible. On presentation and surrender of such Securities at
a place of payment specified in said notice, redemption, such Securities or the
specified portions thereof shall be paid and redeemed by the Issuer at the
applicable redemption price, together with interest accrued thereon to the date
fixed for redemption.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and make available for delivery
to or on the order of the Holder thereof, at the expense of the Issuer, a new
Security or Securities of such series, of authorized denominations, in principal
amount equal to the unredeemed portion of the Security so presented.
Section 11.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be
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excluded from eligibility for selection for redemption if they are identified by
registration and certificate number in an Officers' Certificate delivered to the
Trustee at least 60 days prior to the last date on which notice of redemption
may be given as being owned of record and beneficially by, and not pledged or
hypothecated by either (a) the Issuer or (b) an entity specifically identified
in such Officers' Certificate as an Affiliate of the Issuer.
Section 11.5 Mandatory and Optional Sinking Funds. The minimum
amount of any sinking fund payment provided for by the terms of the Securities
of any series is herein referred to as a "mandatory sinking fund payment", and
any payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "optional sinking fund
payment". The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.10, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section or (c)
receive credit for Securities of such series (not previously so credited)
redeemed by the Issuer through any optional redemption provision contained in
the terms of such series. Securities so delivered or credited shall be received
or credited by the Trustee at the sinking fund redemption price specified in
such Securities.
On or before the 60th day next preceding each sinking fund payment
date for any series, the Issuer will deliver to the Trustee an Officers'
Certificate (which need not contain the statements required by Section 14.5) (a)
specifying the portion of the mandatory sinking fund payment due on such date to
be satisfied by payment of cash and the portion to be satisfied by credit of
Securities of such series and the basis for such credit, (b) stating that none
of the Securities of such series to be so credited has theretofore been so
credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such series have occurred and are continuing (which have
not been waived or cured) and (d) stating whether or not the Issuer intends to
exercise its right to make an optional sinking fund payment on such date with
respect to such series and, if so, specifying the amount of such optional
sinking fund payment which the Issuer intends to pay on or before the next
succeeding sinking fund payment date. Any Securities of such series to be so
credited and required to be delivered to the Trustee in order for the Issuer to
be entitled to credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for
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cancellation pursuant to Section 2.10 to the Trustee with such Officers'
Certificate (or reasonably promptly thereafter if acceptable to the Trustee).
Such Officers' Certificate shall be irrevocable, and upon its receipt by the
Trustee the Issuer shall become unconditionally obligated to make all the cash
payments or other deliveries therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Issuer, on or before any
such 60th day, to deliver such Officers' Certificate and securities specified in
this paragraph, if any, shall not constitute a default but shall constitute, on
and as of such 60th day, the irrevocable election of the Issuer that (i) the
mandatory sinking fund payment for such series due on the next succeeding
sinking fund payment date shall be paid entirely in cash without the option to
deliver or credit Securities of such series in respect thereof and (ii) the
Issuer will make no optional sinking fund payment with respect to such series on
such date as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $50,000 and if the Issuer shall so request with respect to the Securities
of any particular series, such cash shall be applied on the next succeeding
sinking fund payment date to the redemption of Securities of such series at the
applicable sinking fund redemption price, together with accrued interest to the
date fixed for redemption. If such amount shall be $50,000 or less and the
Issuer makes no such request, then such amount shall be carried over until a sum
in excess of $50,000 is available. The Trustee shall select, in the manner
provided in Section 11.2, for redemption on such sinking fund payment date a
sufficient principal amount of Securities of such series to absorb said cash, as
nearly as may be, and shall (if requested in writing by the Issuer) inform the
Issuer of the serial numbers of the Securities of such series (or portions
thereof) so selected. Securities shall be excluded from eligibility for
redemption under this Section if they are identified by registration and
certificate number in an Officers' Certificate delivered to the Trustee at least
40 days prior to the sinking fund payment date as being owned of record and
beneficially by, and not pledged or hypothecated by either (a) the Issuer or (b)
an entity specifically identified in such Officers' Certificate as an Affiliate
of the Issuer. The Trustee, in the name and at the expense of the Issuer (or
the Issuer, if it shall so request the Trustee in writing), shall cause notice
of redemption of the Securities of such series to be given in substantially the
manner provided in Section 11.2 (and with the effect provided in Section 11.3)
for the redemption of Securities of such series in part at the option of the
Issuer. The amount of any sinking fund payments not so applied or allocated to
the redemption of Securities of such series shall be added to the next cash
sinking fund payment for such series and, together with such payment, shall be
applied in accordance with the provisions of this Section. Any and all sinking
fund moneys held on the stated maturity date of the Securities of a particular
series (or earlier,
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if such maturity is accelerated), which are not held for the payment or
redemption of particular Securities of such series, shall be applied, together
with other moneys, if necessary, sufficient for the purpose, to the payment of
the principal of and interest on the Securities of such series at maturity.
Unless otherwise provided for, on or before each sinking fund payment
date, the Issuer shall pay to the Trustee in cash or shall otherwise provide for
the payment of all interest accrued to the date fixed for redemption on
Securities to be redeemed on such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed Securities of any
series with sinking fund moneys or give any notice of redemption of Securities
of such series by operation of the sinking fund for such series during the
continuance of any Event of Default with respect to such series except that, if
notice of redemption of any Securities of such series shall theretofore have
been given, the Trustee shall redeem or cause to be redeemed such Securities,
provided that the Trustee or one or more paying agents shall have received from
the Issuer a sum sufficient for such redemption. Except as aforesaid, any
moneys in the sinking fund for such series at the time when any such Event of
Default shall occur, and any moneys thereafter paid into the sinking fund,
shall, during the continuance of such Event of Default, be deemed to have been
collected under Article Five and held for the payment of all Securities of such
series. In case such Event of Default shall have been waived as provided in
Section 5.10 or such Event of Default cured on or before the 60th day preceding
any sinking fund payment date, such moneys shall thereafter be applied on the
next succeeding sinking fund payment date in accordance with this Section to the
redemption of Securities of such series.
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Section 11.6 Conversion Arrangement on call for Redemption. In
connection with any redemption of Convertible Securities of any series which are
convertible into Common Stock, the Issuer may arrange for the purchase and
conversion of any such Securities called for redemption by an agreement with one
or more investment bankers or other purchasers to purchase such Securities by
paying to the Trustee in trust for the Holders of such Securities, on or before
the close of business on the redemption date, an amount in cash not less than
the redemption price, together with interest, if any, accrued to the redemption
date, of such Securities. Notwithstanding anything to the contrary contained in
this Article Eleven, the obligation of the Issuer to pay the redemption price of
such Securities, including all accrued interest, if any, shall be deemed to be
satisfied and discharged to the extent such amount is so paid by such
purchasers. If such an agreement is entered into, any such Securities not duly
surrendered for conversion by the Holders thereof may, at the option of the
Issuer, be deemed, to the fullest extent permitted by law, acquired by such
purchasers from such Holders and (notwithstanding anything to the contrary
contained in Article Thirteen) surrendered by such purchasers for conversion,
all as of immediately prior to the close of business on the last day on which
Securities of such series called for redemption may be converted in accordance
with this Indenture and the terms of such Securities, subject to payment of the
above amount as aforesaid. The Trustee shall hold and pay to the Holders whose
Securities are selected for redemption any such amount paid to it in the same
manner as it would moneys deposited with it by the Issuer for the redemption of
Securities. Without the Trustee's prior written consent, no arrangement between
the Issuer and such purchasers for the purchase and conversion of any Securities
shall increase or otherwise affect any of the powers, duties, responsibilities
or obligations of the Trustee as set forth in this Indenture, and the Issuer
agrees to indemnify the Trustee from, and hold it harmless against, any loss,
liability or expense arising out of or in connection with any such arrangement
for the purchase and conversion of any Securities between the Issuer and such
purchasers, including the costs and expenses incurred by the Trustee in the
defense of any claim or liability arising out of or in connection with the
exercise or performance of any of its powers, duties, responsibilities or
obligations under this Indenture.
ARTICLE TWELVE
SUBORDINATION
Section 12.1 Applicability of Article; Securities Subordinated to
Senior Indebtedness. (a) This Article Twelve shall apply only to the
Securities of any series which, pursuant to Section 2.3, are expressly made
subject to this Article. Such Securities are referred to in this Article Twelve
as "Subordinated Securities."
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(b) The Issuer covenants and agrees, and each Holder of Subordinated
Securities by his acceptance thereof likewise covenants and agrees, that the
indebtedness represented by the Subordinated Securities and the payment of the
principal and interest, if any, on the Subordinated Securities is subordinated
and subject in right, to the extent and in the manner provided in this Article,
to the prior payment in full of all Senior Indebtedness.
"Senior Indebtedness" means the principal of and premium, if any, and
interest on the following, whether outstanding on the date hereof or thereafter
incurred, created or assumed: (i) indebtedness of the Issuer for money borrowed
by the Issuer (including purchase money obligations) or evidenced by debentures
(other than the Subordinated Securities), notes, bankers' acceptances or other
corporate debt securities, or similar instruments issued by the Issuer; [(ii)
all capital lease obligations of CMS Energy; (iii) all obligations of CMS Energy
issued or assumed as the deferred purchase price of property, all conditional
sale obligations of CMS Energy and all obligations of CMS Energy under any title
retention agreement (but excluding trade accounts payable arising in the
ordinary course of business); (iv) obligations with respect to letters of
credit; (v) all indebtedness of others of the type referred to in the preceding
clauses (i) through (iv) assumed by or guaranteed in any manner by the Issuer or
in effect guaranteed by the Issuer; (vi) all obligations of the type referred to
in clauses (i) through (v) above of other persons secured by any lien on any
property or asset of CMS Energy (whether or not such obligation is assumed by
CMS Energy), except for (1) any such indebtedness that is by its terms
subordinated to or pari passu with the Subordinated Notes, as the case may be,
including all other debt securities and guaranties in respect of those debt
securities, issued to any other trusts, partnerships or other entities
affiliated with CMS Energy which act as a financing vehicle of CMS Energy in
connection with the issuance of preferred securities by such entity or other
securities which rank pari passu with, or junior to, the Preferred Securities,
and (2) any indebtedness between or among CMS Energy and its affiliates and/or
(vii) renewals, extensions or refundings of any of the indebtedness referred to
in the preceding clauses unless, in the case of any particular indebtedness,
renewal, extension or refunding, under the express provisions of the instrument
creating or evidencing the same or the assumption or guarantee of the same, or
pursuant to which the same is outstanding, such indebtedness or such renewal,
extension or refunding thereof is not superior in right of payment to the
Subordinated Securities.]
This Article shall constitute a continuing obligation to all Persons
who, in reliance upon such provisions become holders of, or continue to hold,
Senior Indebtedness, and such provisions are made for the benefit of the holders
of Senior Indebtedness, and such holders are made obligees hereunder and they
and/or each of them may enforce such provisions.
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Section 12.2 Issuer Not to Make Payments with Respect to Subordinated
Securities in Certain Circumstances. (a) Upon the maturity of any Senior
Indebtedness by lapse of time, acceleration or otherwise, all principal thereof
and interest thereon shall first be paid in full, or such payment duly provided
for in cash in a manner satisfactory to the holders of such Senior Indebtedness,
before any payment is made on account of the principal of, or interest on,
Subordinated Securities or to acquire any Subordinated Securities or on account
of any sinking fund provisions of any Subordinated Securities (except payments
made in capital stock of the Issuer or in warrants, rights or options to
purchase or acquire capital stock of the Issuer, sinking fund payments made in
Subordinated Securities acquired by the Issuer before the maturity of such
Senior Indebtedness, and payments made through the exchange of other debt
obligations of the Issuer for such Subordinated Securities in accordance with
the terms of such Subordinated Securities, provided that such debt obligations
are subordinated to Senior Indebtedness at least to the extent that the
Subordinated Securities for which they are exchanged are so subordinated
pursuant to this Article Twelve).
(b) Upon the happening and during the continuation of any default in
payment of the principal of, or interest on, any Senior Indebtedness when the
same becomes due and payable or in the event any judicial proceeding shall be
pending with respect to any such default, then, unless and until such default
shall have been cured or waived or shall have ceased to exist, no payment shall
be made by the Issuer with respect to the principal of, or interest on,
Subordinated Securities or to acquire any Subordinated Securities or on account
of any sinking fund provisions of Subordinated Securities (except payments made
in capital stock of the Issuer or in warrants, rights, or options to purchase or
acquire capital stock of the Issuer, sinking fund payments made in Subordinated
Securities acquired by the Issuer before such default and notice thereof, and
payments made through the exchange of other debt obligations of the Issuer for
such Subordinated Securities in accordance with the terms of such Subordinated
Securities, provided that such debt obligations are subordinated to Senior
Indebtedness at least to the extent that the Subordinated Securities for which
they are exchanged are so subordinated pursuant to this Article Twelve).
(c) In the event that, notwithstanding the provisions of this Section
12.2, the Issuer shall make any payment to the Trustee on account of the
principal of or interest on Subordinated Securities, or on account of any
sinking fund provisions of such Securities, after the maturity of any Senior
Indebtedness as described in Section 12.2(a) above or after the happening of a
default in payment of the principal of or interest on any Senior Indebtedness as
described in Section 12.2(b) above, then, unless and until all Senior
Indebtedness which shall have matured, and all interest thereon, shall have
been paid in full (or the declaration of acceleration thereof shall have been
rescinded or annulled), or such default shall have been cured or waived or shall
have ceased
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to exist, such payment (subject to the provisions of Sections 12.6 and 12.7)
shall be held by the Trustee, in trust for the benefit of, and shall be paid
forthwith over and delivered to, the holders of such Senior Indebtedness (pro
rata as to each of such holders on the basis of the respective amounts of Senior
Indebtedness held by them) or their representative or the trustee under the
indenture or other agreement (if any) pursuant to which such Senior Indebtedness
may have been issued, as their respective interests may appear, for application
to the payment of all such Senior Indebtedness remaining unpaid to the extent
necessary to pay the same in full in accordance with its terms, after giving
effect to any concurrent payment or distribution to or for the holders of Senior
Indebtedness. The Issuer shall give prompt written notice to the Trustee of any
default in the payment of principal of or interest on any Senior Indebtedness.
Section 12.3 Subordinated Securities Subordinated to Prior Payment of
All Senior Indebtedness on Dissolution, Liquidation or Reorganization of Issuer.
Upon any distribution of assets of the Issuer in any dissolution, winding up,
liquidation or reorganization of the Issuer (whether voluntary or involuntary,
in bankruptcy, insolvency or receivership proceedings or upon an assignment for
the benefit of creditors or otherwise):
(a) the holders of all Senior Indebtedness shall first be entitled to
receive payments in full of the principal thereof and interest due thereon,
or provision shall be made for such payment, before the Holders of
Subordinated Securities are entitled to receive any payment on account of
the principal of or interest on such Securities;
(b) any payment or distribution of assets of the Issuer of any kind
or character, whether in cash, property or securities (other than
securities of the Issuer as reorganized or readjusted or securities of the
Issuer or any other corporation provided for by a plan or reorganization or
readjustment the payment of which is subordinate, at least to the extent
provided in this Article Twelve with respect to Subordinated Securities, to
the payment in full without diminution or modification by such plan of all
Senior Indebtedness), to which the Holders of Subordinated Securities or
the Trustee on behalf of the Holders of Subordinated Securities would be
entitled except for the provisions of this Article Twelve shall be paid or
delivered by the liquidating trustee or agent or other person making such
payment or distribution directly to the holders of Senior Indebtedness or
their representative, or to the trustee under any indenture under which
Senior Indebtedness may have been issued (pro rata as to each such holder,
representative or trustee on the basis of the respective amounts of unpaid
Senior Indebtedness held or represented by each), to the extent necessary
to make payment in full of all Senior
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Indebtedness remaining unpaid, after giving effect to any concurrent
payment or distribution or provision thereof to the holders of such Senior
Indebtedness; and
(c) in the event that notwithstanding the foregoing provisions of this
Section 12.3, any payment or distribution of assets of the Issuer of any
kind or character, whether in cash, property or securities (other than
securities of the Issuer as reorganized or readjusted or securities of the
Issuer or any other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the extent
provided in this Article Twelve with respect to Subordinated Securities, to
the payment in full without diminution or modification by such plan of all
Senior Indebtedness), shall be received by the Trustee or the Holders of
the Subordinated Securities on account of principal of or interest on the
Subordinated Securities before all Senior Indebtedness is paid in full, or
effective provision made for its payment, such payment or distribution
(subject to the provisions of Section 12.6 and 12.7) shall be received and
held in trust for and shall be paid over to the holders of the Senior
Indebtedness remaining unpaid or unprovided for or their representative, or
to the trustee under any indenture under which such Senior Indebtedness may
have been issued (pro rata as provided in subsection (b) above), for
application to the payment of such Senior Indebtedness until all such
Senior Indebtedness shall have been paid in full, after giving effect to
any concurrent payment or distribution or provision therefor to the holders
of such Senior Indebtedness.
The Issuer shall give prompt written notice to the Trustee of any
dissolution, winding up, liquidation or reorganization of the Issuer.
The consolidation of the Issuer with, or the merger of the Issuer
into, another corporation or the liquidation or dissolution of the Issuer
following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article Nine hereof shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of this
Section 12.3 if such other corporation shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated such in
Article Nine.
Section 12.4 Holders of Subordinated Securities to be Subrogated to
Right Holders of Senior Indebtedness. Subject to the payment in full of all
Senior Indebtedness, the Holders of Subordinated Securities shall be subrogated
[equally and ratably] to the rights of the holders of Senior Indebtedness to
receive payments or distributions of assets of the Issuer applicable to the
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Senior Indebtedness until all amounts owing on Subordinated Securities shall be
paid in full, and for the purposes of such subrogation no payments or
distributions to the holders of the Senior Indebtedness by or on behalf of the
Issuer or by or on behalf of the Holders of Subordinated Securities by virtue of
this Article Twelve which otherwise would have been made to the Holders of
Subordinated Securities shall, as between the Issuer, its creditors other than
holders of Senior Indebtedness and the Holders of Subordinated Securities, be
deemed to be payment by the Issuer to or on account of the Senior Indebtedness,
it being understood that the provisions of this Article Twelve are and are
intended solely for the purpose of defining the relative rights of the Holders
of the Subordinated Securities, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.
Section 12.5 Obligation of the Issuer Unconditional. Nothing
contained in this Article Twelve or elsewhere in this Indenture or in any
Subordinated Security is intended to or shall impair, as among the Issuer, its
creditors other than holders of Senior Indebtedness and the Holders of
Subordinated Securities, the obligation of the Issuer, which is absolute and
unconditional, to pay to the Holders of Subordinated Securities the principal
of, and interest on, Subordinated Securities as and when the same shall become
due and payable in accordance with their terms, or is intended to or shall
affect the relative rights of the Holders of Subordinated Securities and
creditors of the Issuer other than the holders of the Senior Indebtedness, nor
shall anything herein or therein prevent the Trustee or the Holder of any
Subordinated Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article Twelve of the holders of Senior Indebtedness in respect of
cash, property or securities of the Issuer received upon the exercise of any
such remedy. Upon any payment or distribution of assets of the Issuer referred
to in this Article Twelve, the Trustee and Holders of Subordinated Securities
shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or, subject to the provisions of Section
6.1 and 6.2, a certificate of the receiver, trustee in bankruptcy, liquidating
trustee or agent or other Person making such payment or distribution to the
Trustee or the Holders of Subordinated Securities, for the purposes of
ascertaining the Persons entitled to participate in such distribution, the
holders of the Senior Indebtedness and other indebtedness of the Issuer, the
amount thereof or payable thereon, the amount or amounts paid or distributed
therein and all other facts pertinent thereto or to this Article Twelve.
Nothing contained in this Article Twelve or elsewhere in this
Indenture or in any Subordinated Security is intended to or shall affect the
obligation of the Issuer to make, or prevent the Issuer from making, at any time
except during the pendency of any dissolution, winding up, liquidation or
reorganization proceeding, and, except as provided in subsections (a) and (b) of
Section 12.2,
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payments at any time of the principal of, or interest on Subordinated
Securities.
Section 12.6 Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice. The Issuer shall give prompt written notice to the Trustee
of any fact known to the Issuer which would prohibit the making of any payment
or distribution to or by the Trustee in respect of the Subordinated Securities.
Notwithstanding the provisions of this Article Twelve or any provision of this
Indenture, the Trustee shall not at any time be charged with knowledge of the
existence of any facts which would prohibit the making of any payment or
distribution to or by the Trustee, unless at least two Business Days prior to
the making of any such payment, the Trustee shall have received written notice
thereof from the Issuer or from one or more holders of Senior Indebtedness or
from any representative thereof or from any trustee therefor, together with
proof satisfactory to the Trustee of such holding of Senior Indebtedness or of
the authority of such representative or trustee; and, prior to the receipt of
any such written notice, the Trustee, subject to the provisions of Sections 6.1
and 6.2, shall be entitled to assume conclusively that no such facts exist. The
Trustee shall be entitled to rely on the delivery to it of a written notice by a
Person representing himself to be a holder of Senior Indebtedness (or a
representative or trustee on behalf of the holder) to establish that such notice
has been given by a holder of Senior Indebtedness (or a representative of or
trustee on behalf of any such holder). In the event that the Trustee
determines, in good faith, that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness to participate in any
payments or distribution pursuant of this Article Twelve, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Indebtedness held by such Person, as to the
extent to which such Person is entitled to participate in such payment or
distribution, and as to other facts pertinent to the rights of such Person under
this Article Twelve, and if such evidence is not furnished, the Trustee may
defer any payment to such Person pending judicial determination as to the right
of such Person to receive such payment. The Trustee, however, shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness and
nothing in this Article Twelve shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.6.
Section 12.7 Application by Trustee of Monies or Government
Obligations Deposited with It. Money or Government obligations deposited in
trust with the Trustee pursuant to and in accordance with Section 10.1 shall be
for the sole benefit of Securityholders and, to the extent allocated for the
payment of Subordinated Securities, shall not be subject to the subordination
provisions of this Article Twelve, if the same are deposited in trust prior to
the happening of any event specified in Section 12.2. Otherwise, any deposit of
monies or Government Obligations by the Issuer with the Trustee or any paying
agent
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(whether or not in trust) for the payment of the principal of, or interest on
any Subordinated Securities shall be subject to the provisions of Section 12.1,
12.2 and 12.3 except that, if prior to the date on which by the terms of this
Indenture any such monies may become payable for any purposes (including,
without limitation, the payment of the principal of, or the interest, if any,
on any Subordinated Security) the Trustee shall not have received with respect
to such monies the notice provided for in Section 12.6, then the Trustee or the
paying agent shall have full power and authority to receive such monies and
Government Obligations and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it on or after such date. This Section 12.7 shall be construed
solely for the benefit of the Trustee and paying agent and, as to the first
sentence hereof, the Securityholders, and shall not otherwise effect the rights
of holders of Senior Indebtedness.
Section 12.8 Subordination Rights Not Impaired by Acts or Omissions
of Issuer or Holders of Senior Indebtedness. No rights of any present or future
holders of any Senior Indebtedness to enforce subordination as provided herein
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Issuer or by any act or failure to act, in good faith, by
any such holders or by any noncompliance by the Issuer with the terms of this
Indenture, regardless of any knowledge thereof which any such holder may have or
be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness of the Issuer may, at any time and from time
to time, without the consent of or notice to the Trustee or the Holders of the
Subordinated Securities, without incurring responsibility to the Holders of the
Subordinated Securities and without impairing or releasing the subordination
provided in this Article Twelve or the obligations hereunder of the Holders of
the Subordinated Securities to the holders of such Senior Indebtedness, do any
one or more of the following: (i) change the manner, place or terms of payment
or extend the time of payment of, or renew or alter, such Senior Indebtedness,
or otherwise amend or supplement in any manner such Senior Indebtedness or any
instrument evidencing the same or any agreement under which such Senior
Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing such Senior Indebtedness;
(iii) release any Person liable in any manner for the collection for such Senior
Indebtedness; and (iv) exercise or refrain from exercising any rights against
the Issuer, as the case may be, and any other Person.
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Section 12.9 Securityholders Authorize Trustee to Effectuate
Subordination of Securities. Each Holder of Subordinated Securities by his
acceptance thereof authorizes and expressly directs the Trustee on his behalf to
take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article Twelve and appoints the Trustee his
attorney-in-fact for such purpose, including in the event of any dissolution,
winding up, liquidation or reorganization of the Issuer (whether in bankruptcy,
insolvency or receivership proceedings or upon an assignment for the benefit of
creditors or otherwise) the immediate filing of a claim for the unpaid balance
of his Subordinated Securities in the form required in said proceedings and
causing said claim to be approved. If the Trustee does not file a proper claim
or proof of debt in the form required in such proceeding prior to 30 days before
the expiration of the time to file such claim or claims, then the holders of
Senior Indebtedness have the right to file and are hereby authorized to file an
appropriate claim for and on behalf of the Holders of said Securities.
Section 12.10 Right of Trustee to Hold Senior Indebtedness. The
Trustee in its individual capacity shall be entitled to all of the rights set
forth in this Article Twelve in respect of any Senior Indebtedness at any time
held by it to the same extent as any other holder of Senior Indebtedness, and
nothing in this Indenture shall be construed to deprive the Trustee of any of
its rights as such holder.
With respect to the holders of Senior Indebtedness of the Issuer, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Twelve, and no implied
covenants or obligations with respect to the holders of such Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of such Senior Indebtedness and,
subject to the provisions of Sections 12.2 and 12.3, the Trustee shall not be
liable to any holder of such Senior Indebtedness if it shall pay over or deliver
to Holders of Subordinated Securities, the Issuer or any other Person money or
assets to which any holder of such Senior Indebtedness shall be entitled by
virtue of this Article Twelve or otherwise.
Section 12.11 Article Twelve Not to Prevent Events of Defaults. The
failure to make a payment on account of principal or interest by reason of any
provision in this Article Twelve shall not be construed as preventing the
occurrence of an Event of Default under Section 5.1.
ARTICLE THRITEEN
CONVERSIONS
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Section 13.1 Applicability of Article. Securities of any series
which are convertible into Common Stock at the option of the Holder shall be
convertible in accordance with their terms and (except as otherwise specified as
contemplated by Section 2.3 for Securities of the series) in accordance with
this Article. Each reference in this Article to "a Security" or "the
Securities" refers to the Securities of the particular series that is
convertible into Common Stock. If more than one series of Securities with
conversion privileges are outstanding at any time, the provisions of this
Article shall be applied separately to each such series.
Section 13.2 Conversion Privilege. A Holder of a Security of any
authorized denomination of any series may convert such Security at the principal
amount thereof, or of such portion thereof, into fully paid and non-assessable
shares of Common Stock, at any time during the period specified on the
Securities of that series, at the conversion price or conversion rate in effect
on the conversion date, except that, with respect to any Security (or portion
thereof) called for redemption, such conversion right shall (except as otherwise
provided in Section 11.6) terminate at the close of business on the fifteenth
day prior to the date fixed for redemption of such Security (or portion thereof)
(or such other day as may be specified as contemplated by Section 2.3 for
Securities of such series), unless the Issuer shall default in payment of the
amount due upon redemption thereof.
The initial conversion price or conversion rate in respect of a series
of Securities shall be as specified on the Securities of that series. The
conversion price or conversion rate will be subject to adjustment on the terms
set forth in Section 13.7 through 13.13 or such other or different terms, if
any, as may be specified as contemplated by Section 2.3 for Securities of such
series.
A Holder may convert any Security in full and may convert a portion of
a Security if the portion to be converted and the remaining portion of such
Security are in denominations issuable for that series of Securities. Provisions
of this Indenture that apply to conversion of all of a Security also apply to
conversion of a portion of it.
Section 13.3 Conversion Procedure. To convert a Security of any
series, a Holder must surrender such Security, duly endorsed or assigned to the
Issuer or in blank, at any office or agency of the Issuer maintained for that
purpose, accompanied by written notice to the Issuer at such office or agency
that the Holder elects to convert such Security or, if less than the entire
principal amount thereof is to be converted, the portion thereof to be
converted. The date on which the Holder satisfies all those requirements is the
conversion date. As soon as practicable after the conversion date, the Issuer
shall deliver to the Holder through the Conversion Agent a certificate for the
number of shares of Common Stock issuable upon the conversion and cash or its
check in
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lieu of any fractional share. The Person in whose name the certificate is
registered becomes a stockholder of record on the conversion date and the rights
of the Holder of the Securities so converted as a Holder thereof cease as of
such date.
If the Holder converts more than one Security of any series at the
same time, the number of full shares issuable upon the conversion shall be based
on the total principal amount of the Securities of such series so converted.
Upon surrender of a Security of any series that is converted in part,
the Trustee shall authenticate for the Holder a new Security of that series
equal in principal amount to the unconverted portion of the Security
surrendered.
If the last day on which a Security may be converted is not a Business
Day in a place where a Conversion Agent is located, the Security may be
surrendered to that Conversion Agent on the next succeeding day that is a
Business Day.
The Issuer will not be required to deliver certificates for shares of
Common Stock upon conversion while its stock transfer books are closed for a
meeting of stockholders or for the payment of dividends or for any other
purpose, but certificates for shares of Common Stock shall be delivered as soon
as the stock transfer books shall again be opened.
Securities of any series surrendered for conversion during the period
from the close of business on any Record Date next preceding any Interest
Payment Date for such series to the opening of business on such Interest Payment
Date shall (except in the case of Securities or portions thereof which have been
called for redemption on a redemption date within such period) be accompanied by
payment in funds acceptable to the Issuer of an amount equal to the interest
payable on such Interest Payment Date on the principal amount of Securities
being surrendered for conversion; provided, that no such payment need be made if
there shall exist, at the time of conversion, a default in the payment of
interest on the Securities of such series. The funds so delivered to the
Conversion Agent shall be paid to the Issuer on or after such Interest Payment
Date unless the Issuer shall default on the payment of the interest due on such
Interest Payment Date, in which event such funds shall be paid to the Holder who
delivered the same. Except as provided in the preceding sentence and subject to
the last paragraph of Section 2.7, no payment or adjustment shall be made upon
any conversion on account of any interest accrued on the Securities surrendered
for conversion or on account of any dividends on the Common Stock issued upon
conversion.
Section 13.4 Fractional Shares. The Issuer will not issue a
fractional share of Common Stock upon conversion of a Security. Instead, the
Issuer will deliver cash or its check for the current market value of a
fractional share. The current market value of a fractional share is determined
as follows: Multiply the
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current market price of a full share of Common Stock on the last full trading
day prior to the conversion date by the fraction (rounded to the nearest 1/100
of a share) and round the result to the nearest whole cent.
Section 13.5 Taxes on Conversion. The Issuer shall pay any and all
documentary, stamp or similar issue or transfer taxes due on the issue or
delivery of shares of Common Stock upon the conversion of Securities pursuant
hereto. The Holder, however, shall pay any such tax which is due because the
shares of Common Stock are issued in a name other than his.
Section 13.6 Issuer to Provide Stock. The Issuer shall from time to
time as may be necessary reserve and keep available out of its authorized but
unissued Common Stock or its Common Stock held in treasury enough shares of
Common Stock to permit the conversion of all outstanding Securities.
All shares of Common Stock which may be issued or delivered upon
conversion of the Securities shall be validly issued, fully paid and
non-assessable and shall be free from any preemptive rights.
In order that the Issuer may issue shares of Common Stock upon
conversion of the Securities, the Issuer will endeavor to comply with all
applicable Federal and State securities laws and will endeavor to list such
shares on each national or regional securities exchange on which the Common
Stock is listed.
If the taking of any action would cause an adjustment to the then
prevailing conversion price or conversion rate which would result in shares of
Common Stock being issued upon conversion of the Securities at an effective
conversion price below the then par value, if any, of the Common Stock, or would
raise the par value above the effective conversion price then in effect, the
Issuer will take such corporate action as may, in the opinion of its counsel, be
necessary in order that the Issuer may validly and legally issue fully paid and
non-assessable shares of its Common Stock at such adjusted conversion price or
conversion rate or the conversion price or conversion rate then in effect, as
the case may be.
Section 13.7 Adjustment for Change in Capital Stock. If the Issuer:
(1) pays a dividend or makes a distribution in shares of its
Common Stock;
(2) subdivides its outstanding shares of Common Stock into a
greater number of shares;
(3) combines its outstanding shares of Common Stock into a
smaller number of shares;
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(4) pays a dividend or makes a distribution on its Common Stock
other than in shares of its Common Stock; or
(5) issues by reclassification of its shares of Common Stock any
shares of its capital stock,
then the conversion privilege and the conversion price or conversion rate in
effect immediately prior to the opening of business on the record date for such
dividend or distribution or the effective date of such subdivision, combination
or reclassification shall be adjusted so that the Holder of any Security
thereafter converted may receive the number of shares of capital stock of the
Issuer which such Holder would have owned immediately following such action if
such Holder had converted the Security immediately prior to such time. Such
adjustment shall be made successively whenever any event listed below shall
occur.
For a dividend or distribution, the adjustment shall become effective
immediately after the record date for the dividend or distribution. For a
subdivision, combination or reclassification, the adjustment shall become
effective immediately after the effective date of the subdivision, combination
or reclassification.
If after an adjustment a Holder of a Security upon conversion of it
may receive shares of two or more classes of capital stock of the Issuer, the
conversion prices of the classes of capital stock (after giving effect to such
allocation of the adjusted conversion price between or among the classes of
capital stock as the Board of Directors shall determine to be appropriate) or
the conversion rate, as the case may be, shall thereafter be subject to
adjustment on terms comparable to those applicable to Common Stock in this
Indenture.
Any shares of Common Stock issuable in payment of a dividend shall be
deemed to have been issued immediately prior to the time of the record date for
such dividend for purposes of calculating the number of outstanding shares of
Common Stock under Sections 13.8 and 13.9.
Section 13.8 Adjustment for Rights Issue. If the Issuer issues any
rights or warrants to all holders of shares of its Common Stock entitling them
for a period expiring within 45 days after the record date mentioned below to
purchase shares of Common Stock (or Convertible Securities) at a price per share
(or having a conversion price per share, after adding thereto an allocable
portion of the exercise price of the right or warrant to purchase such
Convertible Securities, computed on the basis of the maximum number of shares of
Common Stock issuable upon conversion of such Convertible Securities) less than
the Average Market Price on the Determination Date, the conversion price or rate
shall be adjusted so that it shall equal the price or rate determined by
multiplying the conversion price or dividing the conversion rate, as the case
may be, in effect immediately prior to the opening of business on
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that record date by a fraction, of which the numerator shall be the number of
shares of Common Stock outstanding on such record date plus the number of shares
of Common Stock which the aggregate offering price of the total number of shares
of Common Stock so offered (or the aggregate conversion price of the Convertible
Securities to be so offered, after adding thereto the aggregate exercise price
of the rights or warrants to purchase such Convertible Securities) would
purchase at such Average Market Price and of which the denominator shall be the
number of shares of Common Stock outstanding on such record date plus the number
of additional shares of Common Stock offered for subscription or purchase (or
into which the Convertible Securities so offered are convertible). Shares of
Common stock owned by or held for the account of the Issuer shall not be deemed
outstanding for the purpose of any such adjustment.
For purposes of this Section 13.8, the number of shares of Common
Stock outstanding on any record date shall be deemed to include the maximum
number of shares of Common Stock the issuance of which would be necessary to
effect the full exercise, exchange or conversion of all Convertible Securities
outstanding on such record date which are then exercisable, exchangeable or
convertible at a price equal to or less than the Average Market Price per share
of Common Stock, if all of such Convertible Securities were deemed to have been
exercised, exchanged or converted immediately prior to the opening of business
on such record date.
The adjustment shall be made successively whenever any such rights or
warrants are issued, and shall become effective immediately after the record
date or the determination of stockholders entitled to receive the rights or
warrants. If all of the shares of Common Stock (or all of the Convertible
Securities) subject to such rights or warrants have not been issued when such
rights or warrants expire (or, in the case of rights or warrants to purchase
Convertible Securities which have been exercised, all of the shares of Common
Stock issuable upon conversion of such Convertible Securities have not been
issued prior to the expiration of the conversion right thereof), then the
conversion price or conversion rate shall promptly be readjusted to the
conversion price or conversion rate which would then be in effect had the
adjustment upon the issuance of such rights or warrants been made on the basis
of the actual number of shares of Common Stock (or Convertible Securities)
issued upon the exercise of such rights or warrants (or the conversion of such
Convertible Securities).
No adjustment shall be made under this Section 13.8 if the adjusted
conversion price would be higher than, or the adjusted conversion rate would be
less than, the conversion price or conversion rate, as the case may be, in
effect prior to such adjustment.
Section 13.9 Adjustments for Other Distributions. If the Issuer
distributes to all holders of shares of its Common Stock any assets or debt
securities or any rights or warrants to purchase
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securities, the conversion price or conversion rate shall be adjusted by
multiplying the conversion price or dividing the conversion rate, as the case
may be, in effect immediately prior to the opening of business on the record
date mentioned below by a fraction, of which the numerator shall be the total
number of shares of Common Stock outstanding on such record date multiplied by
the Average Market Price on the Determination Date, less the fair market value
(as determined by the Board of Directors) on such record date of said assets or
debt securities or rights or warrants so distributed, and of which the
denominator shall be the total number of shares of Common Stock outstanding on
such record date multiplied by such Average Market Price.
For purposes of this Section 13.9, the number of shares of Common
Stock outstanding on any record date shall be deemed to include the maximum
number of shares of Common Stock the issuance of which would be necessary to
effect the full exercise, exchange or conversion of all Convertible Securities
outstanding on such record date which are then exercisable, exchangeable or
convertible at a price equal to or less than the Average Market Price, if all of
such Convertible Securities were deemed to have been exercised, exchanged or
converted immediately prior to the opening of business on such record date.
The adjustment shall be made successively whenever any such
distribution is made, and shall become effective immediately after the record
date for the determination of stockholders entitled to receive the distribution.
Shares of Common Stock owned by or held for the account of the Issuer shall not
be deemed outstanding for the purpose of any such adjustment.
No adjustment shall be made under this Section 13.9 if the adjusted
conversion price would be higher than, or the adjusted conversion rate would be
less than, the conversion price or conversion rate, as the case may be, in
effect prior to such adjustment.
This Section does not apply to cash dividends or distributions. Also,
this Section does not apply to dividends or distributions referred to in Section
13.7 or to rights or warrants referred to in Section 13.8.
Section 13.10 Voluntary Adjustment. The Issuer at any time may
reduce the conversion price or increase the conversion rate, temporarily or
otherwise, by any amount but in no event shall such adjusted conversion price or
conversion rate result in shares of Common Stock being issuable upon conversion
of the Securities if converted at the time of such adjustment at an effective
conversion price per share less than the par value of the Common Stock at the
time such adjustment is made.
A voluntary adjustment of the conversion price or conversion rate
pursuant to this Section 13.10 does not change or adjust the conversion price or
conversion rate otherwise in effect
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for purposes of Section 13.7, 13.8 or 13.9. If an event requiring an adjustment
to the conversion price or conversion rate pursuant to Section 13.7, 13.8 or
13.9 occurs at any time that a voluntary adjustment to the conversion price or
conversion rate is in effect pursuant to this Section 13.10, then the adjustment
required by the applicable of Section 13.7, 13.8 or 13.9 shall be made to the
conversion price or conversion rate that would otherwise have been in effect as
of the relevant date specified in such Section had no voluntary adjustment
pursuant to this Section 13.10 been made, and for purposes of applying such
Section, any such voluntary adjustment shall be disregarded. If such adjustment
would result in a lower conversion price or a higher conversion rate, as the
case may be, than the conversion price or conversion rate as voluntarily
adjusted by the Issuer then such lower conversion price or higher conversion
rate shall be the conversion price or conversion rate, as the case may be.
Section 13.11 Certain Definitions. For the purposes of this Article,
the following terms have the following meanings:
"Average Market Price" of a share of Common Stock on the
Determination Date for any issuance of rights or warrants or any distribution in
respect of which the Average Market Price is being calculated means the average
of the daily current market prices of the Common Stock for the shortest of:
(i) the period of 30 consecutive trading days commencing 45 trading
days before such Determination Date,
(ii) the period commencing on the date next succeeding the first
public announcement of the issuance of rights or warrants or the distribution in
respect of which the Average Market Price is being calculated and ending on the
last full trading day before such Determination Date, and
(iii) the period, if any, commencing on the date next succeeding the
Ex-Dividend Date with respect to the next preceding issuance of rights or
warrants or distribution for which an adjustment is required by the provisions
of Sections 13.7(4), 13.8 or 13.9, and ending on the last full trading day
before such Determination Date.
If the record date for an issuance of rights or warrants or a
distribution for which an adjustment is required by the provisions of Sections
13.7(4), 13.8 or 13.9 (the "preceding adjustment event"), precedes the record
date for the issuance or distribution in respect of which the Average Market
Price is being calculated and the Ex-Dividend Date for such preceding adjustment
event is on or after the Determination Date for the issuance or distribution in
respect of which the Average Market Price is being calculated, then the Average
Market Price shall be adjusted by deducting therefrom the fair market value (on
the record date for the issuance or distribution in respect of which the Average
Market Price is being calculated), as determined by the Board of
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Directors, of the capital stock, rights, warrants, assets or debt securities
issued or distributed in respect of each share of Common Stock in such preceding
adjustment event.
Further, in the event that the Ex-Dividend Date (or in the case of a
subdivision, combination or reclassification, the effective date with
respect thereto) with respect to a dividend, subdivision, combination or
reclassification to which Section 13.7(1), (2), (3) or (5) applied occurs
during the period applicable for calculating the Average Market Price, then
the Average Market Price shall be calculated for such period in a manner
determined by the Board of Directors to reflect the impact of such
dividend, subdivision, combination or reclassification on the current
market price of the Common Stock during such period.
"current market price" of a share of Common Stock on any day means the
last reported sale price (or, if no sale price is reported, the average of the
high and low bid prices) on such day on the National Association of Securities
Dealers, Inc. Automated Quotation System or as quoted by the National Quotation
Bureau Incorporated, or if the Common Stock is listed on an exchange, on the
principal exchange on which the Common Stock is listed. In the event that no
such quotation is available for any day, the Board of Directors shall be
entitled to determine the current market price on the basis of such quotations
as it considers appropriate.
"Determination Date" for any issuance of rights or warrants or any
distribution to which Section 13.8 or 13.9 applies means the earlier of (i) the
record date for the determination of stockholders entitled to receive the rights
or warrants or the distribution to which such Section applies and (ii) the
Ex-Dividend Date of such rights, warrants or distribution.
"Ex-Dividend Date" means the date on which "ex-dividend" trading
commences for a dividend, an issuance of rights or warrants or a distribution to
which any of Sections 13.7, 13.8 and 13.9 applies in the over-the-counter market
or on the principal exchange on which the Common Stock is then quoted or listed.
Section 13.12 When Adjustment May Be Deferred. In any case in which
this Article shall require that an adjustment shall become effective immediately
after a record date for an event, the Issuer may defer until the occurrence of
such event (i) issuing to the Holder of any Security converted after such record
date and before the occurrence of such event the additional shares of Common
Stock issuable upon such conversion by reason of the adjustment required by such
event over and above the shares of Common Stock issuable upon such conversion
before giving effect to such adjustment and (ii) paying to such Holder cash or
its check in lieu of any fractional interest to which he is entitled pursuant to
Section 13.4; provided, however, that the Issuer shall deliver to such Holder a
due xxxx or other appropriate instrument evidencing such Holder's rights to
receive such additional shares of Common
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Stock, and such cash, upon the occurrence of the event requiring such
adjustment.
Section 13.13 When Adjustment Is Not Required. No adjustments in the
conversion price or conversion rate need be made unless the adjustment would
require an increase or decrease of at least one percent (1%) in the initial
conversion price or conversion rate. Any adjustment which is not made shall be
carried forward and taken into account in any subsequent adjustment.
All calculations under this Article shall be made to the nearest cent
or to the nearest 1/100th of a share, as the case may be.
No adjustment in the conversion price or conversion rate shall be made
because the Issuer issues, in exchange for cash, property or services, shares of
Common Stock, or any securities convertible into or exchangeable for shares of
Common Stock, or securities carrying the right to purchase shares of Common
Stock or such convertible or exchangeable securities.
No adjustment in the conversion price or conversion rate need be made
under this Article for sales of shares of Common Stock pursuant to an Issuer
plan providing for reinvestment of dividends or interest or in the event the par
value of the Common Stock is changed.
No adjustment in the conversion price or conversion rate need be made
for a transaction referred to in Section 13.7, 13.8 or 13.9 if Securityholders
are to participate in the transaction on a basis and with notice that the Board
of Directors determines to be fair and appropriate in light of the basis and
notice on which holders of Common Stock participate in the transaction; provided
that the basis on which the Securityholders are to participate in the
transaction shall not be deemed to be fair if it would require the conversion of
Securities at any time prior to the expiration of the conversion period
specified for such Securities.
To the extent the Securities become convertible into cash, no
adjustment need be made thereafter as to such cash. Interest will not accrue on
such cash.
Section 13.14 Notice of Adjustment. Whenever the conversion price or
conversion rate is adjusted, the Issuer shall promptly mail to Securityholders a
notice of the adjustment and file with the Trustee an Officers' Certificate
briefly stating the new conversion price or conversion rate, the date it becomes
effective, the facts requiring the adjustment and the manner of computing it.
The certificate shall be conclusive evidence that the adjustment is correct.
Section 13.15 Notice of Certain Transactions. If:
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(1) the Issuer takes any action which would require an
adjustment in the conversion price or conversion rate;
(2) the Issuer consolidates or merges with, or transfers all or
substantially all of its assets to, another corporation, and stockholders of the
Issuer must approve the transaction; or
(3) there is a voluntary or involuntary dissolution or
liquidation of the Issuer,
a Holder of a Security may elect to convert it into shares of Common
Stock prior to the record date for, or the effective date of, the transaction so
that he may receive the rights, warrants, securities or assets which a holder of
shares of Common Stock on that date may receive. Therefore, the Issuer shall
mail to the Securityholders and the Trustee, at least 20 days prior to the
applicable record or effective date hereinafter mentioned, a notice stating the
proposed record or effective date, as the case may be. Failure to mail the
notice or any defect in it shall not affect the validity of any transaction
referred to in clause (1), (2) or (3) of this Section.
Section 13.16 Consoldiation, Merger or Sale of the Issuer. If the
Issuer is a party to a transaction described in Section 9.1 or a merger which
reclassifies or changes its Outstanding Common Stock, the successor corporation
(or corporation controlling the successor corporation or the issuer, as the case
may be) shall enter into a supplemental indenture which shall provide that the
Holder of a Security may convert it into the kind and amount of securities or
cash or other assets which he would have owned immediately after the
consolidation, merger or transfer if he had converted the Security immediately
before the effective date of such transaction, assuming (to the extent
applicable) that such Holder failed to exercise any rights of election with
respect thereto and received per share of Common Stock the kind and amount of
securities, cash or assets received per share by a plurality of the non-electing
shares. The supplemental indenture shall provide for adjustments which shall be
as nearly equivalent as may be practicable to the adjustments provided for in
this Article. The successor corporation shall mail to each Securityholder a
notice describing the supplemental indenture.
If this Section applies, Sections 13.7, 13.8 and 13.9 shall not apply.
Section 13.17 Issuer Determination Final. Any determination which
the Board of Directors must make pursuant to Sections 13.7, 13.9, 13.11, 13.13
or 13.16 is conclusive and binding on the Holders of Securities.
Section 13.18 Trustee's Disclaimer. Neither the Trustee nor any
Conversion Agent has any duty to determine when an adjustment under this Article
should be made, how it should be made
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or what it should be. Neither the Trustee nor any Conversion Agent has any duty
to determine whether any provisions of a supplemental indenture under Section
13.16 are correct. Neither the Trustee nor any Conversion Agent makes any
representation as to the validity or value of any securities or assets issued
upon conversion of Securities. Neither the Trustee nor any Conversion Agent
shall be responsible for the Issuer's failure to comply with this Article.
Section 13.19 Simultaneous Adjustments. In the event that this
Article Thirteen requires adjustments to the conversion price or conversion rate
under more than one of Sections 13.7(4), 13.8 or 13.9, and the record dates for
the distributions giving rise to such adjustments shall occur on the same date,
then such adjustments shall be made by applying, first, the provisions of
Section 13.7, second, the provisions of Section 13.9 and, third, the provisions
of Section 13.8.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
Section 14.1 Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such, or against any past, present or future stockholder,
officer or director, as such, of the Issuer or of any successor, either directly
or through the Issuer or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities by the Holders thereof and as
part of the consideration for the issue of the Securities by the Holders thereof
and as part of the consideration for the issue of the Securities.
Section 14.2 Provisions of Indenture for the Sole Benefit of Parties
and Holders of Securities. Nothing in this Indenture, in the Securities,
expressed or implied, shall give or be construed to give to any Person other
than the parties hereto and their successors and the Holders of the Securities,
any legal or equitable right, remedy or claim under this Indenture or under any
covenant or provision herein contained, all such covenants and provisions being
for the sole benefit of the parties hereto and their successors and of the
Holders of the Securities. Notwithstanding the foregoing, for so long as any
Trust Securities remain outstanding, the Issuer's obligations under this
Indenture will also be for the benefit of the Holders of such Trust Securities,
and the Issuer acknowledges and agrees that such holders will be entitled to
enforce certain payment obligations under the Securities directly against the
Issuer to the extent
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provided in Sections 5(b) and 6(c) of Annex I of the Declaration dated
June __, 1997.
Section 14.3 Successors and Assigns of Issuer Bound by Indenture.
All the covenants, stipulations, promises and agreements in this Indenture made
by or on behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not.
Section 14.4 Notices and Demands on Issuer, Trustee and Holders of
Securities. Any notice, direction, request or demand which by any provision of
this Indenture is required or permitted to be given or served by the Trustee or
by any Holder of Securities of any series to or upon the Issuer shall be deemed
to have been sufficiently given or served by being deposited postage prepaid in
the United States mail, first-class mail (except as otherwise specifically
provided herein), addressed (until another address of the Issuer is filed by the
Issuer with the Trustee) to CMS Energy Corporation, Fairlane Plaza South, Suite
1100, 000 Xxxx Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Secretary.
Any notice, direction, request or demand by the Issuer or any Holder of
Securities of any series to or upon the Trustee shall be deemed to have been
sufficiently given or served by being deposited postage prepaid in the United
States mail, first-class mail (except as otherwise specifically provided
herein), addressed (until another address of the Trustee is filed by the Trustee
with the Issuer) to The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, 00000, Attn: Corporate Trust, Trustee Administration. Any notice required
or permitted to be given or served by the Issuer or by the Trustee to or upon
(i) any Holders of Registered Securities of any series or any Holders of
Unregistered Securities who have filed their names and addresses with the
Trustee pursuant to Section 4.4(c)(ii), shall be deemed to have been
sufficiently given or served by being deposited in the United States mail,
first-class mail (except as otherwise specifically provided herein), addressed
at their addresses as they shall appear on the Security Register or at the
addresses so filed, respectively, and (ii) any Holders of other Unregistered
Securities, shall be deemed to have been sufficiently given or served by
publication at least once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York.
In any case where notice to the Holders of Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
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In case, by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be impracticable to mail
notice when such notice is required to be given pursuant to any provision of
this Indenture, then any manner of giving such notice as shall be reasonably
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
Section 14.5 Officers' Certificates and Opinions of Counsel;
Statements to be Contained Therein. Except as otherwise expressly provided by
this Indenture, upon any application or demand by the Issuer to the Trustee to
take any action under any of the provisions of this Indenture, the Issuer shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and 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 demand as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture (other than certificates provided pursuant to
Section 4.3(d) or Section 11.5) shall include (a) a statement that the
individual signing such certificate or opinion has read such covenant or
condition and the definitions herein relating thereto, (b) 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, (c) a
statement that, in the opinion of 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 (d) a
statement as to whether or not, in the opinion of such individual, such
condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the certificate
or opinion of or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
such certificate, statement or Opinion of Counsel may be based, insofar as it
relates to factual matters, on information with respect to which is in the
possession of the Issuer, upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer, unless such counsel
knows that the certificate, statement or opinion or representations with respect
to the matters upon which his certificate, statement or opinion may be based as
aforesaid are
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erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Issuer or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
Section 14.6 Payments Due on Saturdays, Sundays and Holidays. If the
date of maturity of interest on or principal of the Securities of any series or
the date fixed for redemption or repayment of any such Security shall not be a
Business Day, then (notwithstanding any other provision of this Indenture or of
the Securities) payment of such interest or principal 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 the date of maturity or the date fixed for redemption
or repayment, and no interest shall accrue for the period from and after such
date.
Section 14.7 Conflict of any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with any provision set forth in
Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939, that impose
duties on any person, such provision of the Trust Indenture Act of 1939 shall
control.
Section 14.8 Michigan Law to Govern. This Indenture and each
Security shall be governed by and deemed to be a contract under, and construed
in accordance with, the laws of the State of Michigan, and for all purposes
shall be construed in accordance with the laws of such State, except as may
otherwise be required by mandatory provisions of law, provided, however, that
the rights, duties and obligations of the Trustee are governed and construed in
accordance with the laws of the State of New York.
Section 14.9 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
Section 14.10 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.
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Section 14.11 Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of _______, 1997.
CMS ENERGY CORPORATION
By
-----------------------------
Xxxx X. Xxxxxx
Title: Senior Vice President,
Chief Financial Officer
and Treasurer
[CORPORATE SEAL]
Attest:
By
-----------------------
Title:
THE BANK OF NEW YORK, TRUSTEE
By
---------------------------
Title:
[CORPORATE SEAL]
Attest:
By
---------------------------
Title:
STATE OF MICHIGAN )
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)ss.
COUNTY OF XXXXX )
On the _____ day of June, 1997, before me personally came Xxxx X. Xxxxxx,
to me known, who, being by me duly sworn, did depose and say that he resides at
Ann Arbor, Michigan; that he is Senior Vice President, Chief Financial Officer
and Treasurer of CMS Energy Corporation, one of the corporations described in
and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate; that it
was so affixed by authority of the Board of Directors of said corporation; and
that he signed his name thereto by like authority.
[Notarial Seal]
-----------------------------------------
Xxxxxx Xxx Xxxxx
Notary Public, Xxxxx County, Michigan
My Commission Expires: March 7, 2002
95
