EXHIBIT (4)(a)(iv)
THIRD SUPPLEMENTAL INDENTURE
dated as of March 17, 1997
____________________
This Third Supplemental Indenture, dated as of the 17th day
of March, 1997 between CMS Energy Corporation, a corporation duly
organized and existing under the laws of the State of Michigan
(hereinafter called the "Company") and having its principal xxxxxx xx
Xxxxxxxx Xxxxx Xxxxx, Xxxxx 0000, 000 Xxxx Xxxxxx Xxxxx, Xxxxxxxx,
Xxxxxxxx 00000, and The Chase Manhattan Bank, a New York banking
corporation (hereinafter called the "Trustee") and having its principal
Corporate Trust Office at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
WITNESSETH:
WHEREAS, the Company and the Trustee entered into an
Indenture, dated as of January 15, 1994 (the "Original Indenture"),
pursuant to which one or more series of debt securities of the Company
(the "Securities") may be issued from time to time; and
WHEREAS, Section 301 of the Original Indenture permits the
terms of any series of Securities to be established in an indenture
supplemental to the Original Indenture; and
WHEREAS, Section 901(7) of the Original Indenture provides
that a supplemental indenture may be entered into by the Company and the
Trustee without the consent of any Holders of the Securities to establish
the form and terms of the Securities of any series; and
WHEREAS, the Company has requested the Trustee to join with
it in the execution and delivery of this Third Supplemental Indenture in
order to supplement and amend the Original Indenture by, among other
things, establishing the form and terms of a series of Securities to be
known as the Company's "General Term Notes(R), Series C (the "General Term
Notes"), providing for the issuance of the General Term Notes and amending
and adding certain provisions thereof for the benefit of the Holders of
the General Term Notes; and
WHEREAS, the Company and the Trustee desire to enter into
this Third Supplemental Indenture for the purposes set forth in Sections
301 and 901(7) of the Original Indenture as referred to above; and
WHEREAS, all things necessary to make this Third
Supplemental Indenture a valid agreement of the Company and the Trustee
and a valid supplement to the Original Indenture have been done,
___________________________
(R) Registered servicemark of X. X. Xxxxx & Company
NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE
WITNESSETH:
For and in consideration of the premises and the purchase of
the General Term Notes to be issued hereunder by holders thereof, the
Company and the Trustee mutually covenant and agree, for the equal and
proportionate benefit of the respective holders from time to time of the
General Term Notes, as follows:
ARTICLE I
STANDARD PROVISIONS; DEFINITIONS
SECTION 101. Standard Provisions. The Original Indenture
together with this Third Supplemental Indenture and all indentures
supplemental thereto entered into pursuant to the applicable terms thereof
are hereinafter sometimes collectively referred to as the "Indenture."
All of the terms, conditions, covenants and provisions contained in the
Original Indenture as heretofore supplemented are incorporated herein by
reference in their entirety and, except as specifically noted herein or
unless the context otherwise requires, shall be deemed to be a part hereof
to the same extent as if such provisions had been set forth in full
herein. All capitalized terms which are used herein and not otherwise
defined herein are defined in the Indenture and are used herein with the
same meanings as in the Indenture.
SECTION 102. Definitions. Section 101 of the Indenture is
amended to insert the new definitions applicable to the General Term
Notes, in the appropriate alphabetical sequence, as follows:
"Amortization Expense" means, for any period, amounts
recognized during such period as amortization of capital leases,
depletion, nuclear fuel, goodwill and assets classified as intangible
assets in accordance with generally accepted accounting principles.
"Average Life" means, as of the date of determination, with
respect to any Indebtedness, the quotient obtained by dividing (i) the sum
of the products of (x) the number of years from the date of determination
to the dates of each successive scheduled principal payment of such
Indebtedness and (y) the amount of such principal payment by (ii) the sum
of all such principal payments.
"Capital Lease Obligation" of a Person means any obligation
that is required to be classified and accounted for as a capital lease on
the face of a balance sheet of such Person prepared in accordance with
generally accepted accounting principles; the amount of such obligation
shall be the capitalized amount thereof, determined in accordance with
generally accepted accounting principles; the stated maturity thereof
shall be the date of the last payment of rent or any other amount due
under such lease prior to the first date upon which such lease may be
terminated by the lessee without payment of a penalty; and such obligation
shall be deemed secured by a Lien on any property or assets to which such
lease relates.
"Capital Stock" means any and all shares, interests, rights
to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) corporate stock, including any Preferred
Stock or Letter Stock.
"Change in Control" means an event or series of events by
which (i) the Company ceases to own beneficially, directly or indirectly,
at least 80% of the total voting power of all classes of Capital Stock
then outstanding of Consumers (whether arising from issuance of securities
of the Company or Consumers, any direct or indirect transfer of securities
by the Company or Consumers, any merger, consolidation, liquidation or
dissolution of the Company or Consumers or otherwise); (ii) any "person"
or "group" (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act) becomes the "beneficial owner" (as such term is used in
Rules 13d-3 and 13d-5 under the Exchange Act, except that a person or
group shall be deemed to have "beneficial ownership" of all shares that
such person or group has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of more than 30% of the Voting Stock of the Company; or (iii)
the Company consolidates with or merges into another corporation or
directly or indirectly conveys, transfers or leases all or substantially
all of its assets to any Person, or any corporation consolidates with or
merges into the Company, in either event pursuant to a transaction in
which the outstanding Voting Stock of the Company is changed into or
exchanged for cash, securities, or other property, other than any such
transaction in which (A) the outstanding Voting Stock of the Company is
changed into or exchanged for Voting Stock of the surviving corporation
and (B) the holders of the Voting Stock of the Company immediately prior
to such transaction retain, directly or indirectly, substantially
proportionate ownership of the Voting Stock of the surviving corporation
immediately after such transaction.
"Consolidated Assets" means, at any date of determination,
the aggregate assets of the Company and its Consolidated Subsidiaries
determined on a consolidated basis in accordance with generally accepted
accounting principles.
"Consolidated Capital" means, at any date of determination,
the sum of (a) Consolidated Indebtedness, (b) consolidated equity of the
common stockholders of the Company and the Consolidated Subsidiaries, (c)
consolidated equity of the preference stockholders of the Company and the
Consolidated Subsidiaries and (d) consolidated equity of the preferred
stockholders of the Company and the Consolidated Subsidiaries, in each
case determined at such date in accordance with generally accepted
accounting principles.
"Consolidated Coverage Ratio" with respect to any period
means the ratio of (i) the aggregate amount of Operating Cash Flow for
such period to (ii) the aggregate amount of Consolidated Interest Expense
for such period.
"Consolidated Indebtedness" means, at any date of
determination, the aggregate Indebtedness of the Company and its
Consolidated Subsidiaries determined on a consolidated basis in accordance
with generally accepted accounting principles.
"Consolidated Interest Expense" means, for any period, the
total interest expense in respect of Indebtedness of the Company and its
Consolidated Subsidiaries, including, without duplication, (i) interest
expense attributable to capital leases, (ii) amortization of debt
discount, (iii) capitalized interest, (iv) cash and noncash interest
payments, (v) commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing, (vi) net
costs under Interest Rate Protection Agreements (including amortization of
discount) and (vii) interest expense in respect of obligations of other
Persons deemed to be Indebtedness of the Company or any Consolidated
Subsidiaries under clause (v) or (vi) of the definition of Indebtedness,
provided, however, that Consolidated Interest Expense shall exclude any
costs otherwise included in interest expense recognized on early
retirement of debt.
"Consolidated Leverage Ratio" means, at any date of
determination, the ratio of Consolidated Indebtedness to Consolidated
Capital.
"Consolidated Net Income" means, for any period, the net
income of the Company and its Consolidated Subsidiaries determined on a
consolidated basis in accordance with generally accepted accounting
principles; provided, however, that there shall not be included in such
Consolidated Net Income:
(i) any net income of any Person if such Person is not a
Subsidiary, except that (A) the Company's equity in the net income
of any such Person for such period shall be included in such
Consolidated Net Income up to the aggregate amount of cash actually
distributed by such Person during such period to the Company or a
Consolidated Subsidiary as a dividend or other distribution and (B)
the Company's equity in a net loss of any such Person for such
period shall be included in determining such Consolidated Net
Income;
(ii) any net income of any Person acquired by the Company
or a Subsidiary in a pooling of interests transaction for any
period prior to the date of such acquisition; and
(iii) any gain or loss realized upon the sale or other
disposition of any property, plant or equipment of the Company or
its Consolidated Subsidiaries which is not sold or otherwise
disposed of in the ordinary course of business and any gain or loss
realized upon the sale or other disposition of any Capital Stock of
any Person.
"Consolidated Net Worth" of any Person means the total of
the amounts shown on the consolidated balance sheet of such Person and its
consolidated subsidiaries, determined on a consolidated basis in
accordance with generally accepted accounting principles, as of any date
selected by such Person not more than 90 days prior to the taking of any
action for the purpose of which the determination is being made (and
adjusted for any material events since such date), as (i) the par or
stated value of all outstanding Capital Stock plus (ii) paid-in capital or
capital surplus relating to such Capital Stock plus (iii) any retained
earnings or earned surplus less (A) any accumulated deficit, (B) any
amounts attributable to Redeemable Stock and (C) any amounts attributable
to Exchangeable Stock.
"Consolidated Subsidiary" means, any Subsidiary whose
accounts are or are required to be consolidated with the accounts of the
Company in accordance with generally accepted accounting principles.
"Consumers" means Consumers Power Company, a Michigan
corporation, all of whose common stock is on the date hereof owned by the
Company.
"Credit Agreement" means the Credit Agreement dated as of
November 21, 1995, as amended from time to time, among the Company, the
banks named therein, Citibank, N.A., and Union Bank, as Co-Agents,
Citibank, N.A., as Documentation Agent, and Union Bank, as Operational
Agent.
"Duff & Xxxxxx" shall mean Duff & Xxxxxx Credit Rating Co.,
and any successor thereto which is a nationally recognized statistical
rating organization, or if such entity shall cease to rate the General
Term Notes or shall cease to exist and there shall be no such successor
thereto, any other nationally recognized statistical rating organization
selected by the Company which is acceptable to the Trustee.
"Enterprises" means CMS Enterprises Company, a Michigan
corporation.
"Event of Default" with respect to the General Term Notes
has the meaning specified in Article VI of this Third Supplemental
Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchangeable Stock" means any Capital Stock of a
corporation that is exchangeable or convertible into another security
(other than Capital Stock of such corporation that is neither Exchangeable
Stock, or Redeemable Stock).
"Indebtedness" of any Person means, without duplication,
(i) the principal of and premium (if any) in respect of (A)
indebtedness of such Person for money borrowed and (B) indebtedness
evidenced by notes, debentures, bonds or other similar instruments
for the payment of which such Person is responsible or liable;
(ii) all Capital Lease Obligations of such Person;
(iii) all obligations of such Person issued or assumed as
the deferred purchase price of property, all conditional sale
obligations and all obligations under any title retention agreement
(but excluding trade accounts payable arising in the ordinary
course of business);
(iv) all obligations of such Person for the reimbursement
of any obligor on any letter of credit, bankers' acceptance or
similar credit transaction (other than obligations with respect to
letters of credit securing obligations (other than obligations
described in clauses (i) through (iii) above) entered into in the
ordinary course of business of such Person to the extent such
letters of credit are not drawn upon or, if and to the extent drawn
upon, such drawing is reimbursed no later than the third Business
Day following receipt by such Person of a demand for reimbursement
following payment on the letter of credit);
(v) all obligations of the type referred to in clauses (i)
through (iv) of other Persons and all dividends of other Persons
for the payment of which, in either case, such Person is
responsible or liable as obligor, guarantor or otherwise; and
(vi) all obligations of the type referred to in clauses (i)
through (v) of other Persons secured by any Lien on any property or
asset of such Person (whether or not such obligation is assumed by
such Person), the amount of such obligation being deemed to be the
lesser of the value of such property or assets or the amount of the
obligation so secured.
"Interest Rate Protection Agreement" means any interest rate
swap agreement, interest rate cap agreement or other financial agreement
or arrangement designed to protect the Company or any Subsidiary against
fluctuations in interest rates.
"Letter Stock", as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however
designated) which is intended to reflect the separate performance of
certain of the businesses or operations conducted by such corporation or
any of its subsidiaries.
"Lien" means any lien, mortgage, pledge, security interest,
conditional sale, title retention agreement or other charge or encumbrance
of any kind.
"Net Proceeds" means, with respect to any issuance or sale
or contribution in respect of Capital Stock, the aggregate proceeds of
such issuance, sale or contribution, including the fair market value (as
determined by the Board of Directors and net of any associated debt and of
any consideration other than Capital Stock received in return) of property
other than cash, received by the Company, net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees, discounts, or
commissions and brokerage, consultant and other fees actually incurred in
connection with such issuance or sale and net of taxes paid or payable as
a result thereof, provided, however, that if such fair market value as
determined by the Board of Directors of property other than cash is
greater than $25 million, the value thereof shall be based upon an opinion
from an independent nationally recognized firm experienced in the
appraisal or similar review of similar types of transactions.
"NOMECO" means, CMS NOMECO Oil & Gas Co., a Michigan
corporation and wholly-owned subsidiary of the Company.
"Non-Convertible Capital Stock" means, with respect to any
corporation, any non-convertible Capital Stock of such corporation and any
Capital Stock of such corporation convertible solely into non-convertible
Capital Stock other than Preferred Stock of such corporation; provided,
however, that Non-Convertible Capital Stock shall not include any
Redeemable Stock or Exchangeable Stock.
"Operating Cash Flow" means, for any period, with respect to
the Company and its Consolidated Subsidiaries, the aggregate amount of
Consolidated Net Income after adding thereto Consolidated Interest Expense
(adjusted to include costs recognized on early retirement of debt), income
taxes, depreciation expense, Amortization Expense and any noncash
amortization of debt issuance costs, any nonrecurring, noncash charges to
earnings and any negative accretion recognition.
"Preferred Stock", as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however
designated) that is preferred as to the payment of dividends, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such corporation, over shares of Capital Stock of any other
class of such corporation.
"Redeemable Stock" means any Capital Stock that by its terms
or otherwise is required to be redeemed prior to the first anniversary of
the Maturity of any Outstanding General Term Notes or is redeemable at the
option of the holder thereof at any time prior to the first anniversary of
the Maturity of any Outstanding General Term Notes.
"Restricted Subsidiary" means any Subsidiary (other than
Consumers and its subsidiaries) of the Company which, as of the date of
the Company's most recent quarterly consolidated balance sheet,
constituted at least 10% of the total Consolidated Assets of the Company
and its Consolidated Subsidiaries and any other Subsidiary which from time
to time is designated a Restricted Subsidiary by the Board of Directors
provided that no Subsidiary may be designated a Restricted Subsidiary if,
immediately after giving effect thereto, an Event of Default or event
that, with the lapse of time or giving of notice or both, would constitute
an Event of Default would exist or the Company and its Restricted
Subsidiaries could not incur at least $1 of additional Indebtedness under
Section 510, and (i) any such Subsidiary so designated as a Restricted
Subsidiary must be organized under the laws of the United States or any
State thereof, (ii) more than 80% of the Voting Stock of such Subsidiary
must be owned of record and beneficially by the Company or a Restricted
Subsidiary, (iii) such Restricted Subsidiary must be a Consolidated
Subsidiary, and (iv) such Subsidiary must not theretofore have been
designated as a Restricted Subsidiary.
"Standard & Poor's" shall mean Standard & Poor's Corporation,
and any successor thereto which is a nationally recognized statistical
rating organization, or if such entity shall cease to rate the General
Term Notes or shall cease to exist and there shall be no such successor
thereto, any other nationally recognized statistical rating organization
selected by the Company which is acceptable to the Trustee.
"Support Obligations" means, for any person, without
duplication, any financial obligation, contingent or otherwise, of such
person guaranteeing or otherwise supporting any debt or other obligation
of any other person in any manner, whether directly or indirectly, and
including, without limitation, any obligation of such person, direct or
indirect, (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such debt or to purchase (or to advance or supply
funds for the purchase of) any security for the payment of such debt,
(ii) to purchase property, securities or services for the purpose of
assuring the owner of such debt of the payment of such debt, (iii) to
maintain working capital, equity capital, available cash or other
financial statement condition of the primary obligor so as to enable the
primary obligor to pay such debt, (iv) to provide equity capital under or
in respect of equity subscription arrangements (to the extent that such
obligation to provide equity capital does not otherwise constitute debt),
or (v) to perform, or arrange for the performance of, any non-monetary
obligations or non-funded debt payment obligations of the primary obligor.
"Tax-Sharing Agreement" means the Amended and Restated
Agreement for the Allocation of Income Tax Liabilities and Benefits, dated
January 1, 1994, as amended or supplemented from time to time, by and
among Company, each of the members of the Consolidated Group (as defined
therein), and each of the corporations that become members of the
Consolidated Group.
Certain terms, used principally in Articles Three, Four and
Seven of this Third Supplemental Indenture, are defined in those Articles.
ARTICLE II
DESIGNATION AND TERMS OF THE GENERAL TERM NOTES; FORMS
SECTION 201. Establishment of Series. There is hereby
created a series of Securities to be known and designated as the "General
Term Notes(R), Series C" and limited in aggregate principal amount (except
as contemplated in Section 301(2) of the Indenture) to $150,000,000.
Each General Term Note will be dated and issued as of the
date of its authentication by the Trustee. Each General Term Note shall
also bear an Original Issue Date (as hereinafter defined) which, with
respect to any General Term Note (or any portion thereof), shall mean the
date of its original issue, as specified in such General Term Note (the
"Original Issue Date"), and such Original Issue Date shall remain the same
if such General Term Note is subsequently issued upon transfer, exchange,
or substitution of such General Term Note regardless of its date of
authentication. Principal on any General Term Note shall become due and
payable from nine months to twenty-five years from the Original Issue Date
of such General Term Note, as specified on such General Term Note.
Each General Term Note will bear interest from the Original
Issue Date, or from the most recent date to which interest has been paid
or duly provided for, at the rate per annum stated therein until the
principal thereof is paid or made available for payment. Interest will be
payable either monthly, quarterly or semi-annually on each Interest
Payment Date and at Maturity, as specified below and in each General Term
Note. Interest will be payable to the person in whose name a General Term
Note is registered at the close of business on the Regular Record Date
next preceding each Interest Payment Date; provided, however, interest
payable at Maturity will be payable to the person to whom principal shall
be payable. Interest on the General Term Notes will be computed on the
basis of a 360-day year of twelve 30-day months.
The Interest Payment Dates for a General Term Note that
provides for monthly interest payments shall be the fifteenth day of each
calendar month; provided, however, that in the case of a General Term Note
issued between the first and fifteenth day of a calendar month, interest
otherwise payable on the fifteenth day of such calendar month will be
payable on the fifteenth day of the next succeeding calendar month. In
the case of a General Term Note that provides for quarterly interest
payments, the Interest Payment Dates shall be the fifteenth day of each of
the months specified in such General Term Note, commencing on the day that
is three months from (i) the day on which such General Term Note is
issued, if such General Term Note is issued on the fifteenth day of a
calendar month, or (ii) the fifteenth day of the calendar month
immediately preceding the calendar month in which such General Term Note
is issued, if such General Term Note is issued prior to the fifteenth day
of a calendar month, or (iii) the fifteenth day of the calendar month in
which such General Term Note is issued, if such General Term Note is
issued after the fifteenth day of a calendar month. In the case of a
General Term Note that provides for semi-annual interest payments, the
Interest Payment Dates shall be the fifteenth day of each of the months
specified in such General Term Note, commencing on the day that is six
months from (i) the day on which such General Term Note is issued, if such
General Term Note is issued on the fifteenth day of a calendar month, or
(ii) the fifteenth day of the calendar month immediately preceding the
calendar month in which such General Term Note is issued, if such General
Term Note is issued prior to the fifteenth day of a calendar month, or
(iii) the fifteenth day of the calendar month in which such General Term
Note is issued, if such General Term Note is issued after the fifteenth
day of a calendar month.
Payment of principal of the General Term Notes (and premium,
if any) and, unless otherwise paid as hereinafter provided, any interest
thereon will be made at the office or agency of the Company in New York,
New York; provided, however, that payment of interest (other than interest
at Maturity) may be made at the option of the Company by check or draft
mailed to the Person entitled thereto at such Person's address appearing
in the Security Register or by wire transfer to an account designated by
such Person not later than ten days prior to the date of such payment.
The Regular Record Date referred to in Section 301 of the
Indenture for the payment of the interest on any General Term Note payable
on any Interest Payment Date (other than at Maturity) shall be the first
day (whether or not a Business Day) of the calendar month in which such
Interest Payment Date occurs as is specified in such General Term Note,
and, in the case of interest payable at Maturity, the Regular Record Date
shall be the date of Maturity. Unless otherwise specified in such General
Term Notes, the cities of New York, New York and Chicago, Illinois shall
be the reference cities for determining a Business Day.
The General Term Notes may be issued only as registered
notes, without coupons, in denominations of $1,000 and any larger
denomination which is in an integral multiple of $1,000.
Upon the execution of this Third Supplemental Indenture, or
from time to time thereafter, General Term Notes may be executed by the
Company and delivered to the Trustee for authentication, and the Trustee
shall thereupon authenticate and deliver said General Term Notes in
accordance with the procedures set forth in or upon a Company Order
complying with Sections 301 and 303 of the Indenture.
SECTION 202. Forms Generally. The General Term Notes shall
be in substantially the form set forth in this Article, with such
appropriate insertions, omissions, substitutions and other variations as
are required or permitted by the Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such General Term Notes, as evidenced by their
execution thereof.
The definitive General Term Notes 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 General
Term Notes, as evidenced by their execution thereof.
SECTION 203. Form of Face of General Term Note.
[Insert any legend required by the Internal Revenue
Code and the regulations thereunder.]
CMS ENERGY CORPORATION
GENERAL TERM NOTE(R), SERIES C
No. ________ $__________
[Initial Redemption Date]
CMS Energy Corporation, a corporation duly organized and
existing under the laws of the State of Michigan (herein called the
"Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_________________________________, or registered assigns, the principal
sum of ____________________ Dollars on __________________________ and to
pay interest thereon from _____________ (the "Original Issue Date") or
from the most recent Interest Payment Date to which interest has been paid
or duly provided for, [choose one of the following --
monthly/quarterly/semi-annually [insert as applicable -- on ___________
[________, ____________] and _________ in each [year/month], commencing
______________, and at Maturity at the rate of ____% per annum, until the
principal hereof is paid or made available for payment [if applicable,
insert --, and at the rate of ___% per annum on any overdue principal and
premium and on any overdue installment of interest]. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to the Person in whose
name this General Term Note (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the first day of the calendar month in which such
Interest Payment Date occurs (whether or not a Business Day) next
preceding such Interest Payment Date except that the Regular Record Date
for interest payable at Maturity shall be the date of Maturity. Any such
interest not so punctually paid or duly provided for will forthwith cease
to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this General Term Note (or one or more
Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given to Holders of General Term
Notes not less than 10 days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the General Term Notes
may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture.
[If the General Term Note is not to bear interest prior to
Maturity, insert -- The principal of this General Term Note shall not bear
interest except in the case of a default in payment of principal upon
acceleration, upon redemption or at Stated Maturity and in such case the
overdue principal of this General Term Note shall bear interest at the
rate of ___% per annum, which shall accrue from the date of such default
in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on
demand. Any such interest on any overdue principal that is not so paid on
demand shall bear interest at the rate of ____% per annum, which shall
accrue from the date of such demand for payment to the date payment of
such interest has been made or duly provided for, and such interest shall
also be payable on demand.]
Payment of the principal of (and premium, if any) and
interest, if any, on this General Term Note will be made at the office or
agency of the Company maintained for that purpose in New York, New York
(the "Place of Payment"), in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public
and private debts; provided, however, that at the option of the Company
payment of interest (other than interest payable at Maturity) may be made
by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or by wire transfer to an
account designated by such Person not later than ten days prior to the
date of such payment.
Reference is hereby made to the further provisions of this
General Term Note set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual
signature, this General Term Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed under its corporate seal.
Dated:
CMS ENERGY CORPORATION
By _______________________
Attest:
_________________________
SECTION 204. Form of Reverse of General Term Note.
This General Term Note(R), Series C is one of a duly
authorized issue of securities of the Company (herein called the "General
Term Notes"), issued and to be issued in one or more series under an
Indenture, dated as of January 15, 1994, as supplemented by certain
supplemental indentures, including the Third Supplemental Indenture, dated
as of March __, 1997 (herein collectively referred to as the "Indenture"),
between the Company and The Chase Manhattan Bank, a New York banking
corporation, as Trustee (herein called the "Trustee", which term includes
any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement
of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee, the Holders of the General Term
Notes and of the terms upon which the General Term Notes are, and are to
be, authenticated and delivered. This General Term Note is one of the
series designated on the face hereof, limited in aggregate principal
amount to $150,000,000.
[If applicable, insert -- The General Term Notes of this
series are subject to redemption upon not more than 60 nor less than 30
days' notice as provided in the Indenture, at any time [on or after
__________, _____,] as a whole or in part from time to time, at the
election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [on or before
_____________, ___%, and if redeemed] during the 12-month period beginning
____________ of the years indicated,
Redemption Redemption
Year Price Year Price
____ __________ ____ __________
and thereafter at a Redemption Price equal to ___% of the principal
amount, together in the case of any such redemption with accrued interest
to the Redemption Date, but interest installments whose Stated Maturity is
on or prior to such Redemption Date will be payable to the Holders of such
General Term Notes, or one or more Predecessor Securities, of record at
the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior
to __________, redeem this General Term Note as a part of, or in
anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an effective interest cost to the
Company (calculated in accordance with generally accepted financial
practice) of less than the effective interest cost to the Company
(similarly calculated) of this General Term Note.]
[If the General Term Note is subject to redemption,
insert -- In the event of redemption of this General Term Note in part
only, a new General Term Note or Notes of this series and of like tenor
for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.]
If a Change in Control occurs, the Company shall notify the
Holder of this General Term Note of such occurrence and such Holder shall
have the right to require the Company to make a Required Repurchase of all
or any part of this General Term Note at a Change in Control Purchase
Price equal to 101% of the principal amount of this General Term Note to
be so purchased as more fully provided in the Indenture and subject to the
terms and conditions set forth therein. In the event of a Required
Repurchase of only a portion of this General Term Note, a new General Term
Note or Notes for the unrepurchased portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
[If this General Term Note is subject to redemption upon
exercising a Survivor's Option, insert -- As more fully provided in the
Indenture and subject to the terms and conditions set forth therein, the
Company will repay this General Term Note (or portion thereof) properly
tendered for repayment by or on behalf of the person (the
"Representative") that has authority to act on behalf of a deceased owner
of the beneficial interest in this General Term Note under the laws of the
appropriate jurisdiction (including, without limitation, the personal
representative, executor, surviving joint tenant or surviving tenant by
the entirety of such deceased beneficial owner) at a price equal to 100%
of the principal amount hereof plus accrued interest to the date of such
repayment. The Company may, in its sole discretion, limit the aggregate
principal amount of all outstanding General Term Notes as to which
exercises of this option (the "Survivor's Option") will be accepted in any
calendar year to one percent (1%) of the outstanding principal amount of
all General Term Notes as of the end of the most recent fiscal year, but
not less than $500,000 in any such calendar year, or such greater amount
as the Company in its sole discretion may determine for any calendar year,
and may limit to $100,000, or such greater amount as the Company in its
sole discretion may determine for any calendar year, the aggregate
principal amount of General Term Notes (or portions thereof) as to which
exercise of the Survivor's Option will be accepted in such calendar year
with respect to any individual deceased owner of beneficial interests in
such General Term Notes.
[If the General Term Note is not an Original Issue Discount
Security, insert -- If an Event of Default with respect to this General
Term Note shall occur and be continuing, the principal of this General
Term Note may be declared due and payable in the manner and with the
effect provided in the Indenture.]
In any case where any Interest Payment Date, Redemption
Date, Repayment Date, Stated Maturity or Maturity of any General Term Note
shall not be a Business Day at any Place of Payment, then (notwithstanding
any other provision of the Indenture or this General Term Note), payment
of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if
made on the Interest Payment Date, Redemption Date or Repayment Date or at
the Stated Maturity or Maturity; provided that no interest shall accrue on
the amount so payable for the period from and after such Interest Payment
Date, Redemption Date, Repayment Date, Stated Maturity or Maturity, as the
case may be, to such Business Day.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of all
Outstanding Securities under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities affected. The Indenture
also contains provisions permitting the Holders of specified percentages
in principal amount of all Outstanding Securities, on behalf of the
Holders of all Outstanding Securities, to waive compliance by the Company
with certain provisions of the Indenture. Any such consent or waiver by
the Holder of this General Term Note shall be conclusive and binding upon
such Holder and upon all future Holders of this General Term Note and of
any General Term Note issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this General Term Note.
The Indenture permits the Holders of not less than a
majority in principal amount of all Outstanding Securities of any series
thereunder to waive on behalf of the Holders of all Outstanding Securities
of such series any past default by the Company, provided that no such
waiver may be made with respect to a default in the payment of the
principal of or premium, if any, or the interest on any Security of such
series or the default by the Company in respect of certain covenants or
provisions of the Indenture, the modification or amendment of which must
be consented to by the Holder of each Outstanding Security of each series
affected.
As set forth in, and subject to, the provisions of the
Indenture, no Holder of any General Term Note will have any right to
institute any proceeding with respect to the Indenture or for any remedy
thereunder, unless such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default, the Holders of not less
than 25% in principal amount of the Outstanding General Term Notes shall
have made written request, and offered satisfactory indemnity, to the
Trustee to institute such proceeding as trustee, and the Trustee shall not
have received from the Holders of a majority in principal amount of the
Outstanding General Term Notes a direction inconsistent with such request
and shall have failed to institute such proceeding within 60 days;
provided, however, that such limitations do not apply to a suit instituted
by the Holder hereof for the enforcement of payment of the principal of
(and premium, if any) or any interest on this General Term Note on or
after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of
this General Term Note or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of and any premium and interest on this General Term Note at the
times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this General Term Note is
registerable in the Security Register, upon surrender of this General Term
Note for registration of transfer at the office or agency of the Company
in any place where the principal of and any premium and interest on this
General Term Note are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new General Term
Notes of this series and of like tenor, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The General Term Notes of this series are issuable only in
registered form without coupons in denominations of $1,000 and any
integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, General Term Notes of this series
are exchangeable for a like aggregate principal amount of General Term
Notes of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
[If this General Term Note is redeemable at the option of
the Company, insert -- The Company shall not be required (i) to issue,
register the transfer of or exchange this General Term Note if this
General Term Note may be among those selected for redemption during a
period beginning at the opening of business 15 days before selection of
the General Term Notes to be redeemed under Section 1103 of the Indenture
and ending at the close of business on the day of the mailing of the
relevant notice of redemption, (ii) to register the transfer of or
exchange any General Term Note so selected for redemption in whole or in
part, except, in the case of any General Term Note to be redeemed in part,
the portion thereof not to be redeemed, or (iii) to issue, register the
transfer of or exchange any General Term Note which has been surrendered
for repayment at the option of the Holder, except the portion, if any, of
such General Term Note not to be so repaid.]
Prior to due presentment of this General Term Note for
registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this General
Term Note is registered as the owner hereof for all purposes, whether or
not this General Term Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this General Term Note without definition
which are defined in the Indenture shall have the meanings assigned to
them in the Indenture.
______________________________
(R) Registered servicemark of X. X. Xxxxx & Company
SECTION 205. Form of Legend for Global Notes. Any Global
Note (as defined in Article VII below) authenticated and delivered
hereunder shall bear a legend in substantially the following form:
"This Security is a Global Note within the meaning of the
Indenture hereinafter referred to and is registered in the name of
a Depositary or a nominee of a Depositary. This General Term Note
is not exchangeable for General Term Notes registered in the name
of a Person other than the Depositary or its nominee except in the
limited circumstances described in the Indenture, and no transfer
of this General Term Note (other than a transfer of this General
Term Note as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary) may be registered except in the
limited circumstances described in the Indenture."
SECTION 206. Form of Trustee's Certificate of
Authentication. The Trustee's certificates of authentication shall be in
substantially the following form:
This is one of the General Term Notes of the series
designated therein referred to in the within-mentioned Indenture.
____________________________,
as Trustee
By __________________________
Authorized Officer
ARTICLE III
REDEMPTION OF GENERAL TERM NOTES; CHANGE OF CONTROL
SECTION 301. Redemption of General Term Notes. (a) Each
General Term Note may be redeemed by the Company in whole or in part if so
provided in, and in accordance with, the terms of such General Term Note
issued by the Company. The Company may redeem any General Term Note which
by its terms is redeemable prior to Stated Maturity without also redeeming
any other General Term Note which is redeemable prior to Stated Maturity.
(b) Change of Control. Upon the occurrence of a Change in
Control (the effective date of such Change in Control being the "Change in
Control Date"), each Holder of a General Term Note shall have the right to
require that the Company repurchase (a "Required Repurchase") all or any
part of such Holder's General Term Note at a repurchase price payable in
cash equal to 101% of the principal amount of such General Term Note plus
accrued interest to the Purchase Date (the "Change in Control Purchase
Price").
(1) Within 30 days following the Change in Control Date,
the Company shall mail a notice (the "Required Repurchase Notice")
to each Holder with a copy to the Trustee stating:
(i) that a Change in Control has occurred and that
such Holder has the right to require the Company to
repurchase all or any part of such Holder's General Term
Notes at the Change of Control Purchase Price;
(ii) the Change of Control Purchase Price;
(iii) the date on which any Required Repurchase
shall be made (which shall be no earlier than 60 days nor
later than 90 days from the date such notice is mailed) (the
"Purchase Date");
(iv) the name and address of the Paying Agent; and
(v) the procedures that Holders must follow to cause
the General Term Notes to be repurchased, which shall be
consistent with this Section and the Indenture.
(2) Holders electing to have a General Term Note
repurchased must deliver a written notice (the "Change in Control
Purchase Notice") to the Paying Agent (initially the Trustee) at
its office in The City of New York, or any other office of the
Paying Agent maintained for such purposes, not later than 30 days
prior to the Purchase Date. The Change in Control Purchase Notice
shall state: (i) the portion of the principal amount of any General
Term Notes to be repurchased, which portion must be $1,000 or an
integral multiple thereof; (ii) that such General Term Notes are to
be repurchased by the Company pursuant to the change in control
provisions of the Indenture; and (iii) unless the General Term
Notes are represented by one or more Global Notes, the certificate
numbers of the General Term Notes to be delivered by the Holder
thereof for repurchase by the Company. Any Change in Control
Purchase Notice may be withdrawn by the Holder by a written notice
of withdrawal delivered to the Paying Agent not later than three
Business Days prior to the Purchase Date. The notice of withdrawal
shall state the principal amount and, if applicable, the
certificate numbers of the General Term Notes as to which the
withdrawal notice relates and the principal amount of such General
Term Notes, if any, which remains subject to a Change in Control
Purchase Notice.
If a General Term Note is represented by a Global Note (as
described in Article VII below), the Depositary or its nominee will
be the Holder of such General Term Note and therefore will be the
only entity that can elect a Required Repurchase of such General
Term Note. To obtain repayment pursuant to this Section 301(b)
with respect to such General Term Note, the beneficial owner of
such General Term Note must provide to the broker or other entity
through which it holds the beneficial interest in such General Term
Note (i) the Change in Control Purchase Notice signed by such
beneficial owner, and such signature must be guaranteed by a member
firm of a registered national securities exchange or of the
National Association of Securities Dealers, Inc. or a commercial
bank or trust company having an office or correspondent in the
United States, and (ii) instructions to such broker or other entity
to notify the Depositary of such beneficial owner's desire to
obtain repayment pursuant to this Section 301(b). Such broker or
other entity will provide to the Paying Agent (i) the Change of
Control Purchase Notice received from such beneficial owner and
(ii) a certificate satisfactory to the Paying Agent from such
broker or other entity stating that it represents such beneficial
owner. Such broker or other entity will be responsible for
disbursing any payments it receives pursuant to this Section 301(b)
to such beneficial owner.
(3) Payment of the Change of Control Purchase Price for a
General Term Note for which a Change in Control Purchase Notice has
been delivered and not withdrawn is conditioned (except in the case
of a General Term Note represented by one or more Global Notes)
upon delivery of such General Term Note (together with necessary
endorsements) to the Paying Agent at its office in The City of New
York, or any other office of the Paying Agent maintained for such
purpose, at any time (whether prior to, on or after the Purchase
Date) after the delivery of such Change in Control Purchase Notice.
Payment of the Change of Control Purchase Price for such General
Term Note will be made promptly following the later of the Purchase
Date or the time of delivery of such General Term Note. If the
Paying Agent holds, in accordance with the terms of the Indenture,
money sufficient to pay the Change in Control Purchase Price of
such General Term Note on the Business Day following the Purchase
Date, then, on and after such date, interest will cease accruing,
and, if applicable, amounts will no longer accrue on any such
General Term Note that is an Original Issue Discount Security,
whether or not such General Term Note is delivered to the Paying
Agent, and all other rights of the Holder shall terminate (other
than the right to receive the Change of Control Purchase Price upon
delivery of the General Term Note).
(4) The Company shall comply with the provisions of Rule
13e-4 and any other tender offer rules under the Exchange Act,
which may then be applicable and shall file Schedule 13E-4 or any
other schedule required thereunder in connection with any offer by
the Company to repurchase General Term Notes at the option of
Holders upon a Change in Control.
(5) No General Term Note may be repurchased by the
Company as a result of a Change in Control if there has occurred
and is continuing an Event of Default (other than a default in the
Payment of the Change in Control Purchase Price with respect to the
General Term Notes).
ARTICLE IV
REPAYMENT UPON DEATH
If so specified in any General Term Note, the Holder of such
General Term Note will have the option (the "Survivor's Option") to elect
repayment of such General Term Note prior to its Stated Maturity in the
event of the death of the beneficial owner of such General Term Note.
Pursuant to exercise of the Survivor's Option, if
applicable, the Company will repay any General Term Note (or portion
thereof) properly tendered for repayment by or on behalf of the person
(the "Representative") that has authority to act on behalf of the deceased
beneficial owner of such General Term Note under the laws of the
appropriate jurisdiction (including, without limitation, the personal
representative, executor, surviving joint tenant or surviving tenant by
the entirety of such deceased beneficial owner) at a price equal to
one-hundred percent (100%) of the principal amount of the beneficial
interest of the deceased owner of such General Term Note plus accrued
interest to the date of such payment, subject to the following
limitations. The Company may, in its sole discretion, limit the aggregate
principal amount of General Term Notes as to which exercises of the
Survivor's Option will be accepted in any calendar year (the "Annual Put
Limitation") to one percent (1%) of the outstanding principal amount of
the General Term Notes as of the end of the most recent fiscal year, but
not less than $500,000 in any such calendar year, or such greater amount
as the Company in its sole discretion may determine for any calendar year,
and may limit to $100,000, or such greater amount as the Company in its
sole discretion may determine for any calendar year, the aggregate
principal amount of General Term Notes (or portions thereof) as to which
exercise of the Survivor's Option will be accepted in such calendar year
with respect to any individual deceased owner of beneficial interests in
such General Term Notes (the "Individual Put Limitation"). Moreover, the
Company will not make principal repayments pursuant to exercise of the
Survivor's Option in amounts that are less that $1,000, and, in the event
that the limitations described in the preceding sentence would result in
the partial repayment of any General Term Note, the principal amount of
such General Term Note remaining outstanding after repayment must be at
least $1,000 (the minimum authorized denomination of the General Term
Notes). Any General Term Note (or portion thereof) tendered pursuant to
exercise of the Survivor's Option may be withdrawn by a written request of
its Holder received by the Trustee prior to its repayment.
Each General Term Note (or portion thereof) that is tendered
pursuant to a valid exercise of the Survivor's Option will be accepted
promptly in the order all such General Term Notes are tendered, except for
any General Term Note (or portion thereof) the acceptance of which would
contravene (i) the Annual Put Limitation, if applied, or (ii) the
Individual Put Limitation, if applied, with respect to the relevant
individual deceased owner of beneficial interests therein. If, as of the
end of any calendar year, the aggregate principal amount of General Term
Notes (or portions thereof) that have been accepted pursuant to exercise
of the Survivor's Option for such year has not exceeded the Annual Put
Limitation, if applied, for such year, any exercise(s) of the Survivor's
Option with respect to General Term Notes (or portions thereof) not
accepted during such calendar year because such acceptance would have
contravened the Individual Put Limitation, if applied, with respect to an
individual deceased owner of beneficial interests therein will be accepted
in the order all such General Term Notes (or portions thereof) were
tendered, to the extent that any such exercise would not exceed the Annual
Put Limitation, if applied, for such calendar year. Any General Term Note
(or portion thereof) accepted for repayment pursuant to exercise of the
Survivor's Option will be repaid no later than the first Interest Payment
Date that occurs 20 or more calendar days after the date of such
acceptance. Each General Term Note (or any portion thereof) tendered for
repayment that is not accepted in any calendar year because of the
application of the Annual Put Limitation will be deemed to be tendered in
the following calendar year in the order in which all such General Term
Notes (or portions thereof) were originally tendered, unless any such
General Term Note (or portion thereof) is withdrawn by the Representative
for the deceased owner prior to its repayment. In the event that a
General Term Note (or any portion thereof) tendered for repayment pursuant
to valid exercise of the Survivor's Option is not accepted, the Trustee
will deliver a notice by first-class mail to the registered Holder thereof
at its last known address as indicated in the Security Register that
states the reasons such General Term Note (or portion thereof) has not
been accepted for repayment.
Subject to the foregoing, in order for a Survivor's Option
to be validly exercised with respect to any General Term Note (or portion
thereof), the Trustee must receive from the Representative of the
individual deceased owner of beneficial interests therein (i) a written
request for payment signed by the Representative, and such signature must
be guaranteed by a member firm of a registered national securities
exchange or of the National Association of Securities Dealers, Inc. or a
commercial bank or trust company having an office or correspondent in the
United States, (ii) if any such General Term Note is not represented by a
Global Note (as described in Article VII below), tender of the General
Term Note (or portion thereof) to be repaid, (iii) appropriate evidence
satisfactory to the Company and the Trustee that (A) the Representative
has authority to act on behalf of the individual deceased beneficial
owner, (B) the death of such beneficial owner has occurred and (C) the
deceased individual was the owner of a beneficial interest in such General
Term Note at the time of death, (iv) if applicable, a properly executed
assignment or endorsement, and (v) if the beneficial interest in such
General Term Note is held by a nominee of the deceased beneficial owner, a
certificate satisfactory to the Trustee from such nominee attesting to the
deceased's ownership of a beneficial interest in such General Term Note.
All questions as to the eligibility or validity of any exercise of the
Survivor's Option will be determined by the Company, in its sole
discretion, which determinations will be final and binding on all parties.
If a General Term Note is represented by a Global Note (as
described in Article VII below), the Depositary or its nominee will be the
Holder of such General Term Note and therefore will be the only entity
that can exercise the Survivor's Option for such General Term Note. To
obtain repayment pursuant to exercise of the Survivor's Option with
respect to such General Term Note, the Representative must provide to the
broker or other entity through which the beneficial interest in such
General Term Note is held by the deceased owner (i) the documents
described in clauses (i) and (iii) of the preceding paragraph and (ii)
instructions to such broker or other entity to notify the Depositary of
such Representative's desire to obtain repayment pursuant to exercise of
the Survivor's Option. Such broker or other entity shall provide to the
Trustee (i) the documents received from the Representative referred to in
clause (i) of the preceding sentence and (ii) a certificate satisfactory
to the Trustee from such broker or other entity stating that it represents
the deceased beneficial owner. Such broker or other entity will be
responsible for disbursing any payments it receives pursuant to exercise
of the Survivor's Option to the appropriate Representative.
ARTICLE V
ADDITIONAL COVENANTS OF THE COMPANY
WITH RESPECT TO THE GENERAL TERM NOTES
SECTION 501. Statement by Officers as to Default. (a) The
Company will deliver to the Trustee, within 120 days after the end of each
fiscal year a brief certificate from the principal executive officer,
principal financial officer or principal accounting officer as to his or
her knowledge of the Company's compliance with all conditions and
covenants under this Third Supplemental Indenture. For such purposes,
such compliance shall be determined without regard to any period of grace
or requirement of notice provided hereunder and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof
of which they may have knowledge.
(b) The Company shall deliver to the Trustee, as soon as
possible and in any event within 10 days after the Company becomes aware
of the occurrence of an Event of Default or an event which, with notice or
the lapse of time or both, would constitute an Event of Default, an
Officers' Certificate setting forth the details of such Event of Default
or default, and the action which the Company proposes to take with respect
thereto.
SECTION 502. Existence. So long as any of the General Term
Notes are Outstanding, subject to Article 8 of the Indenture, the Company
will do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence and all rights (charter and
statutory) and franchises other than rights or franchises the loss of
which would not be disadvantageous in any material respect to the Holders
of the General Term Notes.
SECTION 503. Maintenance of Properties. So long as any of
the General Term Notes are Outstanding, the Company will cause all
properties used or useful in the conduct of its business to be maintained
and kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in
the judgment of the Company may be necessary so that the business carried
on in connection therewith may be properly and advantageously conducted at
all times; provided, however, that nothing in this Section shall prevent
the Company from discontinuing the operation or maintenance of any of such
properties if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business and not disadvantageous in any
material respect to the Holders.
SECTION 504. Payment of Taxes and Other Claims. So long as
any of the General Term Notes are Outstanding, the Company will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (2) all lawful claims for
labor, materials and supplies which, if unpaid, might by law become a Lien
upon the property of the Company or any Subsidiary; provided, however,
that the Company shall not be required to pay or discharge or cause to be
paid or discharged any such tax, assessment, charge or claim the amount of
which, applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 505. Insurance. So long as any of the General Term
Notes are Outstanding, the Company shall, and each of its Restricted
Subsidiaries and Consumers shall, keep insured by financially sound and
reputable insurers all property of a character usually insured by entities
engaged in the same or similar businesses similarly situated against loss
or damage of the kinds and in the amounts customarily insured against by
such entities and carry such amounts of other insurance as is usually
carried by such entities.
SECTION 506. Compliance with Laws. So long as any of the
General Term Notes are Outstanding, the Company shall, and each of its
Restricted Subsidiaries and Consumers shall, comply in all material
respects with all laws applicable to the Company or such Restricted
Subsidiary or Consumers, as the case may be, its respective business and
properties.
SECTION 508. Limitation on Certain Liens. (a) So long as
any of the General Term Notes are outstanding, the Company shall not
create, incur, assume or suffer to exist any lien, mortgage, pledge,
security interest, conditional sale, title retention agreement or other
charge or encumbrance of any kind, or any other type of arrangement
intended or having the effect of conferring upon a creditor of the Company
or any Subsidiary a preferential interest (hereinafter in this Section
referred to as a "Lien") upon or with respect to the Capital Stock of
Consumers, Enterprises or NOMECO without making effective provision
whereby the General Term Notes shall (so long as any such other creditor
shall be so secured) be equally and ratably secured (along with any other
creditor similarly entitled to be secured) by a direct Lien on all
property subject to such Lien, provided, however, that the foregoing
restrictions shall not apply to:
(i) Liens for taxes, assessments or governmental charges or levies
to the extent not past due;
(ii) pledges or deposits to secure (a) obligations under workmen's
compensation laws or similar legislation, (b) statutory obligations of the
Company or (c) Support Obligations not to exceed $30 million at any one
time outstanding;
(iii) Liens imposed by law, such as materialmen's, mechanics',
carriers', workmen's and repairmen's Liens and other similar Liens arising
in the ordinary course of business securing obligations which are not
overdue or which have been fully bonded and are being contested in good
faith;
(iv) purchase money Liens upon or in property acquired and held by
the Company in the ordinary course of business to secure the purchase
price of such property or to secure Indebtedness incurred solely for the
purpose of financing the acquisition of any such property to be subject to
such Liens, or Liens existing on any such property at the time of
acquisition, or extensions, renewals or replacements of any of the
foregoing for the same or a lesser amount, provided that no such Lien
shall extend to or cover any property other than the property being
acquired and no such extension, renewal or replacement shall extend to or
cover property not theretofore subject to the Lien being extended, renewed
or replaced, and provided, further, that the aggregate principal amount of
the Indebtedness at any one time outstanding secured by Liens permitted by
this clause (iv) shall not exceed $10,000,000; and
(v) Liens not otherwise permitted by clauses (i) through (iv) of
this Section securing Indebtedness of the Company; provided that on the
date such Liens are created, and after giving effect to such Indebtedness,
the aggregate principal amount at maturity of all of the secured
Indebtedness of the Company at such date shall not exceed 10% of
Consolidated Assets at such date.
SECTION 509. Limitation on Consolidation, Merger, Sale or
Conveyance. So long as the General Term Notes are Outstanding, and
subject also to Article Eight of the Indenture, the Company shall not
consolidate with or merge into any other Person or sell, lease or convey
the property of the Company in the entirety or substantially as an
entirety, unless (i) immediately after giving effect to such transaction
the Consolidated Net Worth of the surviving entity is at least equal to
the Consolidated Net Worth of the Company immediately prior to the
transaction, and (ii) after giving effect to such transaction, the
surviving entity would be entitled to incur at least one dollar of
additional Indebtedness (other than revolving Indebtedness to banks)
without violation of the limitations in Section 510 hereof.
SECTION 510. Limitation on Consolidated Indebtedness. (a)
So long as any of the General Term Notes are Outstanding, the Company
shall not, and shall not permit any Restricted Subsidiary of the Company
to, issue, create, assume, guarantee, incur or otherwise become liable for
(collectively, "issue"), directly or indirectly, any Indebtedness unless
(i) the Consolidated Coverage Ratio of the Company and its Consolidated
Subsidiaries for the four consecutive fiscal quarters immediately
preceding the issuance of such Indebtedness (as shown by a pro forma
consolidated income statement of the Company and its Consolidated
Subsidiaries for the four most recent fiscal quarters ending at least 30
days prior to the issuance of such Indebtedness after giving effect to (i)
the issuance of such Indebtedness and (if applicable) the application of
the net proceeds thereof to refinance other Indebtedness as if such
Indebtedness was issued at the beginning of the period, (ii) the issuance
and retirement of any other Indebtedness since the first day of the period
as if such Indebtedness was issued or retired at the beginning of the
period and (iii) the acquisition of any company or business acquired by
the Company or any Subsidiary since the first day of the period (including
giving effect to the pro forma historical earnings of such company or
business), including any acquisition which will be consummated
contemporaneously with the issuance of such Indebtedness, as if in each
case such acquisition occurred at the beginning of the period) exceeds a
ratio of 1.6 to 1.0 and (ii), immediately after giving effect to the
issuance of such Indebtedness and (if applicable) the application of the
net proceeds thereof to refinance other Indebtedness, the Consolidated
Leverage Ratio is equal to or less than a ratio of 0.75 to 1.0.
(b) Notwithstanding the foregoing paragraph, the Company or
any Restricted Subsidiary may issue, directly or indirectly, the following
Indebtedness:
(1) Revolving Indebtedness to banks not to exceed
$450,000,000 in the aggregate outstanding principal amount at any
time;
(2) Indebtedness (other than Indebtedness described in
clause (1) of this Subsection) outstanding on the date of the
original Indenture, as set forth on Schedule 510(b)(2) attached
hereto and made a part hereof, and Indebtedness issued in exchange
for, or the proceeds of which are used to refund or refinance, any
Indebtedness permitted by this clause (2); provided, however, that
(i) the principal amount (or accreted value in the case of
Indebtedness issued at a discount) of the Indebtedness so issued
shall not exceed the principal amount (or accreted value in the
case of Indebtedness issued at a discount) of, premium, if any, and
accrued but unpaid interest on, the Indebtedness so exchanged,
refunded or refinanced and (ii) the Indebtedness so issued (A)
shall not mature prior to the stated maturity of the Indebtedness
so exchanged, refunded or refinanced, (B) shall have an Average
Life equal to or greater than the remaining Average Life of the
Indebtedness so exchanged, refunded or refinanced and (C) if the
Indebtedness to be exchanged, refunded or refinanced is
subordinated to the General Term Notes, the Indebtedness is
subordinated to the General Term Notes in right of payment;
(3) Indebtedness of the Company owed to and held by a
Subsidiary and Indebtedness of a Subsidiary owed to and held by the
Company; provided, however, that, in the case of Indebtedness of
the Company owed to and held by a Subsidiary, (i) any subsequent
issuance or transfer of any Capital Stock that results in any such
Subsidiary ceasing to be a Subsidiary or (ii) any transfer of such
Indebtedness (except to the Company or a Subsidiary) shall be
deemed for the purposes of this Subsection to constitute the
issuance of such Indebtedness by the Company;
(4) Indebtedness of the Company issued in exchange for, or
the proceeds of which are used to refund or refinance, Indebtedness
of the Company issued in accordance with Subsection (a) of this
Section, provided that (i) the principal amount (or accreted value
in the case of Indebtedness issued at a discount) of the
Indebtedness so issued shall not exceed the principal amount (or
accreted value in the case of Indebtedness issued at a discount)
of, premium, if any, and accrued but unpaid interest on, the
Indebtedness so exchanged, refunded or refinanced and (ii) the
Indebtedness so issued (A) shall not mature prior to the stated
maturity of the Indebtedness so exchanged, refunded or refinanced,
(B) shall have an Average Life equal to or greater than the
remaining Average Life of the Indebtedness so exchanged, refunded
or refinanced and (C) if the Indebtedness to be exchanged, refunded
or refinanced is subordinated to the General Term Notes, the
Indebtedness so issued is subordinated to the General Term Notes in
right of payment; and
(5) Indebtedness of a Restricted Subsidiary issued in
exchange for, or the proceeds of which are used to refund or
refinance, Indebtedness of a Restricted Subsidiary issued in
accordance with Subsection (a) of this Section, provided that (i)
the principal amount (or accreted value in the case of Indebtedness
issued at a discount) of the Indebtedness so issued shall not
exceed the principal amount (or accreted value in the case of
Indebtedness issued at a discount) of, premium, if any, and accrued
but unpaid interest on, the Indebtedness so exchanged, refunded or
refinanced and (ii) the Indebtedness so issued (A) shall not mature
prior to the stated maturity of the Indebtedness so exchanged,
refunded or refinanced and (B) shall have an Average Life equal to
or greater than the remaining Average Life of the Indebtedness so
exchanged, refunded or refinanced.
SECTION 511. Limitation on Restricted Payments.(a) So
long as the General Term Notes are Outstanding and are rated below BBB- by
Standard & Poor's or by Duff & Xxxxxx (or, if Duff & Xxxxxx or Standard &
Poor's shall change its rating system, an equivalent of such rating then
employed by such organization) the Company shall not, and shall not permit
any Restricted Subsidiary of the Company, directly or indirectly, to (i)
declare or pay any dividend or make any distribution on the Capital Stock
of the Company to the direct or indirect holders of the Capital Stock of
the Company (except dividends or distributions payable solely in Non-
Convertible Capital Stock of the Company or in options, warrants or other
rights to purchase such Non-Convertible Capital Stock and except dividends
or distributions payable to the Company or a Subsidiary), (ii) purchase,
redeem or otherwise acquire or retire for value any Capital Stock of the
Company (any such dividend, distribution, purchase, redemption, other
acquisition or retirement being hereinafter referred to as a "Restricted
Payment") if at the time the Company or such Subsidiary makes such
Restricted Payment:
(1) an Event of Default, or an event that with the
lapse of time or the giving of notice or both would constitute an
Event of Default, shall have occurred and be continuing (or would
result therefrom); or
(2) the aggregate amount of such Restricted Payment
and all other Restricted Payments made since September 30, 1993,
would exceed the sum of:
(A) $120,000,000;
(B) 100% of Consolidated Net Income, accrued during
the period (treated as one accounting period) from September
30, 1993 to the end of the most recent fiscal quarter ending
at least 45 days prior to the date of such Restricted
Payment (or, in case such sum shall be a deficit, minus 100%
of the deficit); and
(C) the aggregate Net Proceeds received by the
Company from the issue or sale of or contribution with
respect to its Capital Stock subsequent to September 30,
1993.
For the purpose of determining the amount of any Restricted Payment not in
the form of cash, the amount shall be the fair value of such Restricted
Payment as determined in good faith by the Board of Directors, provided
that if the value of the non-cash portion of such Restricted Payment as
determined by the Board of Directors is in excess of $25 million, such
value shall be based on the opinion from a nationally recognized firm
experienced in the appraisal of similar types of transactions.
(b) The provisions of Section 511(a) shall not prohibit:
(i) any purchase or redemption of Capital Stock of
the Company made by exchange for, or out of the proceeds of
the substantially concurrent sale of, Capital Stock of the
Company (other than Redeemable Stock or Exchangeable Stock);
provided, however, that such purchase or redemption shall be
excluded from the calculation of the amount of Restricted
Payments;
(ii) dividends or other distributions paid in
respect of any class of the Company's Capital Stock issued
in respect of the acquisition of any business or assets by
the Company or a Restricted Subsidiary if the dividends or
other distributions with respect to such Capital Stock are
payable solely from the net earnings of such business or
assets;
(iii) dividends paid within 60 days after the date
of declaration thereof if at such date of declaration such
dividend would have complied with this Section; provided,
however, that at the time of payment of such dividend, no
Event of Default shall have occurred and be continuing (or
result therefrom), and provided further, however, that such
dividends shall be included (without duplication) in the
calculation of the amount of Restricted Payments; or
(iv) payments pursuant to the Tax-Sharing Agreement.
SECTION 512. Limitation on Transactions with Affiliates.
So long as any of the General Term Notes are Outstanding, the Company
shall not directly or indirectly, conduct any business or enter into any
transaction or series of related transactions (including the purchase,
sale, lease or exchange of any property or the rendering of any service)
with an Affiliate unless the terms of such business, transaction or series
of transactions are as favorable to the Company as terms that could be
obtainable at the time for a comparable transaction or series of related
transactions in arm's-length dealings with an unrelated third Person.
This Section shall not apply to (x) compensation paid to officers and
directors of the Company which has been approved by the Board of Directors
of the Company or (y) loans to the Company or an Affiliate pursuant to a
global cash management program, which loans mature within one year from
the date thereof.
ARTICLE VI
ADDITIONAL EVENTS OF DEFAULT
WITH RESPECT TO THE GENERAL TERM NOTES
SECTION 601. Definition. All of the events specified in
Section 501 of the Indenture and the events specified in Section 602 of
this Article shall be "Events of Default" with respect to the General Term
Notes.
SECTION 602. Additional Events of Default. As contemplated
by Sections 301(15) and 501(7) of the Indenture, any one of the following
events (whatever the reason for such Event of Default and whether or not
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) shall be an
Event of Default with respect to the General Term Notes for all purposes
of the Indenture:
(a) a default or event of default in respect of any
Indebtedness of the Company having an aggregate outstanding principal
amount at the time of such default in excess of $25,000,000 shall occur
which results in the acceleration of such Indebtedness or Indebtedness of
the Company having an outstanding principal amount at maturity in excess
of $25,000,000 shall not be paid at maturity thereof, which default shall
not have been waived by the holder or holders of such Indebtedness within
30 days of such default; or
(b) the entry of a final judgment or judgments against the
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.
ARTICLE VII
GLOBAL NOTES
The General Term Notes will be issued initially in the form
of Global Notes. "Global Note" means a registered General Term Note
evidencing one or more General Term Notes issued to a depositary (the
"Depositary") or its nominee, in accordance with this Article and bearing
the legend prescribed in this Article. A single Global Note will
represent all General Term Notes issued on the same date and having the
same terms, including, but not limited to, the same Interest Payment
Dates, rate of interest, Stated Maturity, and redemption provisions (if
any). The Company shall execute and the Trustee shall, in accordance with
this Article and the Company Order with respect to the General Term Notes,
authenticate and deliver one or more Global Notes in temporary or
permanent form that (i) shall represent and shall be denominated in an
aggregate amount equal to the aggregate principal amount of the General
Term Notes to be represented by such Global Note or Notes, (ii) shall be
registered in the name of the Depositary for such Global Note or Notes or
the nominee of such Depositary, (iii) shall be delivered by the Trustee to
such Depositary or pursuant to such Depositary's instructions and (iv)
shall bear a legend substantially to the following effect: "Unless this
Global Note is presented by an authorized representative of the Depositary
to the Company or its agent for registration of transfer, exchange or
payment, and any Note issued is registered in the name of the Depositary
or in such other name as is requested by the Depositary, any transfer,
pledge or other use hereof for value or otherwise by or to any person
shall be wrongful inasmuch as the registered owner hereof, the Depositary,
has an interest herein."
Notwithstanding Section 305 of the Indenture, unless and
until it is exchanged in whole or in part for General Term Notes in
definitive form, a Global Note representing one or more General Term Notes
may not be transferred except as a whole by the Depositary, to a nominee
of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such
nominee to a successor Depositary for General Term Notes or a nominee of
such successor Depositary.
If at any time the Depositary for the General Term Notes is
unwilling or unable to continue as Depositary for the General Term Notes,
the Company shall appoint a successor Depositary with respect to the
General Term Notes. If a successor Depositary for the General Term Notes
is not appointed by the Company by the earlier of (i) 90 days from the
date the Company receives notice to the effect that the Depositary is
unwilling or unable to act, or the Company determines that the Depositary
is unable to act or (ii) the effectiveness of the Depositary's resignation
or failure to fulfill its duties as Depositary, the Company will execute,
and the Trustee, upon receipt of a Company Order for the authentication
and delivery of definitive General Term Notes, will authenticate and
deliver General Term Notes in definitive form in an aggregate principal
amount equal to the principal amount of the Global Note or Notes
representing such General Term Notes in exchange for such Global Note or
Notes.
The Company may at any time and in its sole discretion
determine that the General Term Notes issued in the form of one or more
Global Notes shall no longer be represented by such Global Note or Notes.
In such event the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive General
Term Notes, will authenticate and deliver General Term Notes in definitive
form in an aggregate principal amount equal to the principal amount of the
Global Note or Notes representing such General Term Notes in exchange for
such Global Note or Notes.
The Depositary for such General Term Notes may surrender a
Global Note or Notes for such General Term Notes in exchange in whole or
in part for General Term Notes in definitive form on such terms as are
acceptable to the Company and such Depositary. Thereupon, the Company
shall execute, and the Trustee shall authenticate and deliver, without
service charge:
(i) to each Person specified by such Depositary a new
General Term Note or Notes, of any authorized denomination
as requested by such Person in aggregate principal amount
equal to and in exchange for such Person's beneficial
interest in the Global Note; and
(ii) to such Depositary a new Global Note in a
denomination equal to the difference, if any, between the
principal amount of the surrendered Global Note and the
aggregate principal amount of General Term Notes in
definitive form delivered to Holders thereof.
In any exchange provided for in this Article, the Company
will execute and the Trustee will authenticate and deliver General Term
Notes in definitive registered form in authorized denominations.
Upon the exchange of a Global Note for General Term Notes in
definitive form, such Global Note shall be cancelled by the Trustee.
General Term Notes in definitive form issued in exchange for a Global Note
pursuant to this Article shall be registered in such names and in such
authorized denominations as the Depositary for such Global Note, pursuant
to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee or Security Registrar. The Trustee shall
deliver such General Term Notes to the persons in whose names such General
Term Notes are so registered.
ARTICLE VIII
DEFEASANCE
All of the provisions of Article Fourteen of the Original
Indenture shall be applicable to the General Term Notes. Upon
satisfaction by the Company of the requirements of Section 1404 of the
Indenture, in connection with any covenant defeasance (as provided in
Section 1403 of the Indenture), the Company shall be released from its
obligations under Article Eight of the Original Indenture and under
Articles III and V of this Third Supplemental Indenture with respect to
the General Term Notes.
ARTICLE IX
SUPPLEMENTAL INDENTURES
This Third Supplemental Indenture is a supplement to the
Original Indenture. As supplemented by this Third Supplemental Indenture,
the Original Indenture is in all respects ratified, approved and
confirmed, and the Original Indenture and this Third Supplemental
Indenture shall together constitute one and the same instrument.
The Company may, by supplemental indenture, amend this Third
Supplemental Indenture to provide for additional definitions, terms and
provisions relating to General Term Notes. Any such supplemental
indenture shall not adversely affect the rights and privileges of Holders
of General Term Notes issued prior to such supplemental indenture. Any
such supplemental indenture may include, but is not limited to including,
additional provisions permitting payment of General Term Notes prior to
Stated Maturity at the option of the Holders, issuance of General Term
Notes in currencies other than Dollars, and special provisions relating to
interest rate provisions.
TESTIMONIUM
This Third Supplemental Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Third Supplemental Indenture to be duly executed and their respective
corporate seals to be hereunto affixed and attested, all as of the day and
year first written above.
CMS ENERGY CORPORATION
By: /s/ Xxxx X. Xxxxxx
__________________
Attest:
/s/ Xxxxxx X. XxXxxx (Corporate Seal)
____________________
THE CHASE MANHATTAN BANK
as Trustee
By: /s/ Xxxx Xxxxxxx
________________
Attest:
/s/Xxxx X. Xxxxxxx, Xx. (Corporate Seal)
_______________________
Schedule 510(b)(2)
Indebtedness of CMS Energy Corporation outstanding on January 20, 1994:
1. $146,000,000 of Series A Senior Deferred Coupon Notes due 1997; and
2. $248,000,000 of Series B Senior Deferred Coupon Notes due 1999.
