SEVENTY-FIRST SUPPLEMENTAL INDENTURE
Providing among other things for
FIRST MORTGAGE BONDS,
Senior Note Series A due March 1, 2018
______________
Dated as of March 1, 1998
______________
CONSUMERS ENERGY COMPANY
TO
THE CHASE MANHATTAN BANK,
Trustee
Counterpart ______ of 100
1
SEVENTY-FIRST SUPPLEMENTAL INDENTURE, dated as of March 1,
1998 (herein sometimes referred to as "this Supplemental Indenture"), made
and entered into by and between CONSUMERS ENERGY COMPANY, a corporation
organized and existing under the laws of the State of Michigan, with its
principal executive office and place of business at 000 Xxxx Xxxxxxxx
Xxxxxx, xx Xxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxx 00000, formerly known as
Consumers Power Company, (hereinafter sometimes referred to as the
"Company"), and THE CHASE MANHATTAN BANK, a corporation organized and
existing under the laws of the State of New York, with its corporate trust
offices at 000 X. 00xx Xxxxxx, in the Borough of Manhattan, The City of
Xxx Xxxx, Xxx Xxxx 00000 (hereinafter sometimes referred to as the
"Trustee"), as Trustee under the Indenture dated as of September 1, 1945
between Consumers Power Company, a Maine corporation (hereinafter
sometimes referred to as the "Maine corporation"), and City Bank Farmers
Trust Company (Citibank, N.A., successor, hereinafter sometimes referred
to as the "Predecessor Trustee"), securing bonds issued and to be issued
as provided therein (hereinafter sometimes referred to as the
"Indenture"),
WHEREAS at the close of business on January 30, 1959, City
Bank Farmers Trust Company was converted into a national banking
association under the title "First National City Trust Company"; and
WHEREAS at the close of business on January 15, 1963,
First National City Trust Company was merged into First National City
Bank; and
WHEREAS at the close of business on October 31, 1968,
First National City Bank was merged into The City Bank of New York,
National Association, the name of which was thereupon changed to First
National City Bank; and
WHEREAS effective March 1, 1976, the name of First
National City Bank was changed to Citibank, N.A.; and
WHEREAS effective July 16, 1984, Manufacturers Hanover
Trust Company succeeded Citibank, N.A. as Trustee under the Indenture; and
WHEREAS effective June 19, 1992, Chemical Bank succeeded
by merger to Manufacturers Hanover Trust Company as Trustee under the
Indenture; and
WHEREAS effective July 15, 1996, The Chase Manhattan Bank
(National Association), merged with and into Chemical Bank which
thereafter was renamed The Chase Manhattan Bank as Trustee under the
Indenture; and
WHEREAS the Indenture was executed and delivered for the
purpose of securing such bonds as may from time to time be issued under
and in accordance with the terms of the Indenture, the aggregate principal
amount of bonds to be secured thereby being limited to $5,000,000,000 at
any one time outstanding (except as provided in Section 2.01 of the
Indenture), and the Indenture describes and sets forth the property
conveyed thereby and is filed in the Office of the Secretary of State of
the State of Michigan and is of record in the Office of the Register of
Deeds of each county in the State of Michigan in which this Supplemental
Indenture is to be recorded; and
WHEREAS the Indenture has been supplemented and amended by
various indentures supplemental thereto, each of which is filed in the
Office of the Secretary of State of the State of Michigan and is of record
in the Office of the Register of Deeds of each county in the State of
Michigan in which this Supplemental Indenture is to be recorded; and
WHEREAS the Company and the Maine corporation entered into
an Agreement of Merger and Consolidation, dated as of February 14, 1968,
which provided for the Maine corporation to merge into the Company; and
WHEREAS the effective date of such Agreement of Merger and
Consolidation was June 6, 1968, upon which date the Maine corporation was
merged into the Company and the name of the Company was changed from
"Consumers Power Company of Michigan" to "Consumers Power Company"; and
WHEREAS the Company and the Predecessor Trustee entered
into a Sixteenth Supplemental Indenture, dated as of June 4, 1968, which
provided, among other things, for the assumption of the Indenture by the
Company; and
WHEREAS said Sixteenth Supplemental Indenture became
effective on the effective date of such Agreement of Merger and
Consolidation; and
WHEREAS the Company has succeeded to and has been
substituted for the Maine corporation under the Indenture with the same
effect as if it had been named therein as the mortgagor corporation; and
WHEREAS effective March 11, 1997, the name of Consumers
Power Company was changed to Consumers Energy Company; and
WHEREAS, the Company has entered into an Indenture dated
as of February 1, 1998 ("Senior Note Indenture") with The Chase Manhattan
Bank, as trustee ("Senior Note Trustee") providing for the issuance of
notes thereunder, and pursuant to such Senior Note Indenture the Company
has agreed to issue to the Senior Note Trustee, as security for the notes
("Senior Notes") to be issued thereunder, a new series of bonds under the
Indenture at the time of authentication of each series of Senior Notes
issued under such Senior Note Indenture; and
WHEREAS, for such purposes the Company desires to issue a
new series of bonds, to be designated First Mortgage Bonds, Senior Note
Series A due March 1, 2018 each of which bonds shall also bear the
descriptive title "First Mortgage Bond" (hereinafter provided for and
hereinafter sometimes referred to as the "Senior Note Series A Bonds"),
the bonds of which series are to be issued as registered bonds without
coupons and are to bear interest at the rate per annum specified herein
and are to mature March 1, 2018; and
WHEREAS, the Senior Note Series A Bonds shall be issued to
the Senior Note Trustee in connection with the issuance by the Company of
its Senior Notes, 6 7/8% due 2018, Series A (the "Series A Notes"); and
WHEREAS each of the registered bonds without coupons of
the Senior Note Series A Bonds and the Trustee's Authentication
Certificate thereon are to be substantially in the following forms, to
wit:
3
[FORM OF REGISTERED BOND OF THE SENIOR NOTE SERIES A BONDS]
[FACE]
NOTWITHSTANDING ANY PROVISIONS HEREOF OR IN THE INDENTURE,
THIS BOND IS NOT ASSIGNABLE OR TRANSFERABLE EXCEPT AS PERMITTED OR
REQUIRED BY SECTION 4.04 OF THE INDENTURE, DATED AS OF FEBRUARY 1, 1998
BETWEEN CONSUMERS ENERGY COMPANY AND THE CHASE MANHATTAN BANK, AS TRUSTEE.
CONSUMERS ENERGY COMPANY
FIRST MORTGAGE BOND, SENIOR NOTE SERIES A DUE MARCH 1, 2018
No. $
CONSUMERS ENERGY COMPANY, a Michigan corporation
(hereinafter called the "Company"), for value received, hereby promises to
pay to The Chase Manhattan Bank, as trustee under the Senior Note
Indenture hereinafter referred to, or registered assigns, the principal
sum of Two Hundred Twenty-Five Million Dollars on March 1, 2018, and to
pay to the registered holder hereof interest on said sum from the latest
semi-annual interest payment date to which interest has been paid on the
bonds of this series preceding the date hereof, unless the date hereof be
an interest payment date to which interest is being paid, in which case
from the date hereof, or unless the date hereof is prior to September 1,
1998, in which case from March 1, 1998, (or if this bond is dated between
the record date for any interest payment date and such interest payment
date, then from such interest payment date, provided, however, that if the
Company shall default in payment of the interest due on such interest
payment date, then from the next preceding semi-annual interest payment
date to which interest has been paid on the bonds of this series, or if
such interest payment date is September 1, 1998, from March 1, 1998), at
the rate per annum of 6 7/8%, except that during the continuation of a
Registration Default, as defined in the Registration Rights Agreement
referred to below, the rate shall be 7 1/8% per annum, until the principal
hereof shall have become due and payable, payable on each March 1 and
September 1 in each year, commencing September 1, 1998.
Under an Indenture dated as of February 1, 1998
(hereinafter sometimes referred to as the "Senior Note Indenture"),
between Consumers Energy Company and The Chase Manhattan Bank, as trustee
(hereinafter sometimes called the "Senior Note Trustee"), the Company will
issue, concurrently with the issuance of this bond, an issue of notes
under the Senior Note Indenture entitled Senior Notes, 6 7/8% due 2018,
Series A (the "Series A Notes"). Pursuant to Article IV of the Senior
Note Indenture, this bond is issued to the Senior Note Trustee to secure
any and all obligations of the Company under the Series A Notes and any
other series of senior notes from time to time outstanding under the
Senior Note Indenture. Payment of principal of, or premium, if any, or
interest on, the Series A Notes (and on any Exchange Notes (as such term
is defined on the reverse hereof and in the supplemental indenture
pursuant to which this bond has been issued (the "Supplemental Indenture")
issued in exchange therefor) shall constitute payments on this bond as
further provided herein and in the Supplemental Indenture.
The provisions of this bond are continued on the reverse
hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
This bond shall not be valid or become obligatory for any
purpose unless and until it shall have been authenticated by the execution
by the Trustee or its successor in trust under the Indenture of the
certificate hereon.
IN WITNESS WHEREOF, Consumers Energy Company has caused
this bond to be executed in its name by its Chairman of the Board, its
President or one of its Vice Presidents by his signature or a facsimile
thereof, and its corporate seal or a facsimile thereof to be affixed
hereto or imprinted hereon and attested by its Secretary or one of its
Assistant Secretaries by his signature or a facsimile thereof.
CONSUMERS ENERGY COMPANY,
Dated: By _________________________
Its ________________________
Attest: _________________________
Secretary
[FORM OF TRUSTEE'S AUTHENTICATION CERTIFICATE]
TRUSTEE'S AUTHENTICATION CERTIFICATE
This is one of the bonds, of the series designated
therein, described in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, Trustee
By _____________________________________
Authorized Officer
[REVERSE]
CONSUMERS ENERGY COMPANY
FIRST MORTGAGE BOND, SENIOR NOTE SERIES A DUE MARCH 1, 2018
The interest payable on any March 1 and September 1 will,
subject to certain exceptions provided in the Indenture hereinafter
mentioned, be paid to the person in whose name this bond is registered at
the close of business on the record date, which shall be February 15 or
August 15, as the case may be, next preceding such interest payment date,
or, if such February 15 or August 15 shall be a legal holiday or a day on
which banking institutions in the City of New York, New York or the City
of Detroit, Michigan are authorized by law to close, the next succeeding
day which shall not be a legal holiday or a day on which such institutions
are so authorized to close. The principal of and the premium, if any, and
the interest on this bond shall be payable at the office or agency of the
Company in the City of Jackson, Michigan designated for that purpose, in
any coin or currency of the United States of America which at the time of
payment is legal tender for public and private debts.
Upon any payment of the principal of, premium, if any, and
interest on, all or any portion of the Series A Notes (or Exchange Notes
(as defined below) issued in exchange therefor), whether at maturity or
prior to maturity by redemption or otherwise or upon provision for the
payment thereof having been made in accordance with Section 5.01(a) of the
Senior Note Indenture, Senior Note Series A Bonds in a principal amount
equal to the principal amount of such Series A Notes (or Exchange Notes)
and having both a corresponding maturity date and interest rate shall, to
the extent of such payment of principal, premium, if any, and interest,
be deemed paid and the obligation of the Company thereunder to make such
payment shall be discharged to such extent and, in the case of the payment
of principal (and premium, if any) such bonds of said series shall be
surrendered to the Company for cancellation as provided in Section 4.08 of
the Senior Note Indenture. The Trustee may at anytime and all times
conclusively assume that the obligation of the Company to make payments
with respect to the principal of and premium, if any, and interest on the
Senior Note Series A Bonds, so far as such payments at the time have
become due, has been fully satisfied and discharged pursuant to the
foregoing sentence unless and until the Trustee shall have received a
written notice from the Senior Note Trustee signed by one of its officers
stating (i) that timely payment of, or premium or interest on, the
Series A Notes has not been made, (ii) that the Company is in arrears as
to the payments required to be made by it to the Senior Note Trustee
pursuant to the Senior Note Indenture, and (iii) the amount of the
arrearage.
For purposes of Section 4.09 of the Senior Note Indenture,
this bond shall be deemed to be the "related series of Senior Note First
Mortgage Bonds" in respect of (i) the Series A Notes, and (ii) any
Exchange Notes.
This bond is one of the bonds issued and to be issued from
time to time under and in accordance with and all secured by an Indenture
dated as of September 1, 1945, given by the Company (or its predecessor,
Consumers Power Company, a Maine corporation) to City Bank Farmers Trust
Company (The Chase Manhattan Bank, successor) (hereinafter sometimes
referred to as the "Trustee"), and indentures supplemental thereto,
heretofore or hereafter executed, to which indenture and indentures
supplemental thereto (hereinafter referred to collectively as the
"Indenture") reference is hereby made for a description of the property
mortgaged and pledged, the nature and extent of the security and the
rights, duties and immunities thereunder of the Trustee and the rights of
the holders of said bonds and of the Trustee and of the Company in respect
of such security, and the limitations on such rights. By the terms of the
Indenture, the bonds to be secured thereby are issuable in series which
may vary as to date, amount, date of maturity, rate of interest and in
other respects as provided in the Indenture.
The Indenture contains provisions permitting the Company
and the Trustee, with the consent of the holders of not less than seventy-
five per centum in principal amount of the bonds (exclusive of bonds
disqualified by reason of the Company's interest therein) at the time
outstanding, including, if more than one series of bonds shall be at the
time outstanding, not less than sixty per centum in principal amount of
each series affected, to effect, by an indenture supplemental to the
Indenture, modifications or alterations of the Indenture and of the rights
and obligations of the Company and the rights of the holders of the bonds
and coupons; provided, however, that no such modification or alteration
shall be made without the written approval or consent of the holder hereof
which will (a) extend the maturity of this bond or reduce the rate or
extend the time of payment of interest hereon or reduce the amount of the
principal hereof, or (b) permit the creation of any lien, not otherwise
permitted, prior to or on a parity with the lien of the Indenture, or
(c) reduce the percentage of the principal amount of the bonds the holders
of which are required to approve any such supplemental indenture.
The Company reserves the right, without any consent, vote
or other action by holders of bonds of this series or any other series
created after the Sixty-eighth Supplemental Indenture to amend the
Indenture to reduce the percentage of the principal amount of bonds the
holders of which are required to approve any supplemental indenture (other
than any supplemental indenture which is subject to the proviso contained
in the immediately preceding sentence) (a) from not less than seventy-five
per centum (including sixty per centum of each series affected) to not
less than a majority in principal amount of the bonds at the time
outstanding or (b) in case fewer than all series are affected, not less
than a majority in principal amount of the bonds of all affected series,
voting together.
This bond is not redeemable except on the respective
dates, in the respective principal amounts and for the respective
redemption prices which correspond to the redemption dates for, the
principal amounts to be redeemed of, and the redemption prices for, the
Series A Notes (and any senior notes issued in exchange therefor pursuant
to the Registration Rights Agreement, dated March 6, 1998, between the
Company and Salomon Brothers Inc., Xxxxxx Xxxxxxx & Co. Incorporated, BZW
Securities Inc., Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation and
First Chicago Capital Markets, Inc. (the "Exchange Notes")), and except
upon written demand of the Senior Note Trustee following the occurrence of
an Event of Default under the Senior Note Indenture and the acceleration
of the senior notes, as provided in Section 8.01 of the Senior Note
Indenture. This bond is not redeemable by the operation of the
improvement fund or the maintenance and replacement provisions of the
Indenture or with the proceeds of released property.
This bond shall not be assignable or transferable except
as permitted or required by Section 4.04 of the Senior Note Indenture.
Any such transfer shall be effected at the Investor Services Department of
the Company, as transfer agent (hereinafter referred to as "corporate
trust office"). This bond shall be exchangeable for other registered
bonds of the same series, in the manner and upon the conditions prescribed
in the Indenture, upon the surrender of such bonds at said corporate trust
office of the transfer agent. However, notwithstanding the provisions of
Section 2.05 of the Indenture, no charge shall be made upon any
registration of transfer or exchange of bonds of said series other than
for any tax or taxes or other governmental charge required to be paid by
the Company.
As provided in Section 4.11 of the Senior Note Indenture,
from and after the Release Date (as defined in the Senior Note Indenture),
the obligations of the Company with respect to this bond shall be deemed
to be satisfied and discharged, this bond shall cease to secure in any
manner any senior notes outstanding under the Senior Note Indenture, and,
pursuant to Section 4.08 of the Senior Note Indenture, the Senior Note
Trustee shall forthwith deliver this bond to the Company for cancellation.
In case of certain defaults as specified in the Indenture,
the principal of this bond may be declared or may become due and payable
on the conditions, at the time, in the manner and with the effect provided
in the Indenture.
No recourse shall be had for the payment of the principal
of or premium, if any, or interest on this bond, or for any claim based
hereon, or otherwise in respect hereof or of the Indenture, to or against
any incorporator, stockholder, director or officer, past, present or
future, as such, of the Company, or of any predecessor or successor
company, either directly or through the Company, or such predecessor or
successor company, or otherwise, under any constitution or statute or rule
of law, or by the enforcement of any assessment or penalty, or otherwise,
all such liability of incorporators, stockholders, directors and officers,
as such, being waived and released by the holder and owner hereof by the
acceptance of this bond and being likewise waived and released by the
terms of the Indenture.
____________________
AND WHEREAS all acts and things necessary to make the
bonds of the Senior Note Series A Bonds, when duly executed by the Company
and authenticated by the Trustee or its agent and issued as prescribed in
the Indenture, as heretofore supplemented and amended, and this
Supplemental Indenture provided, the valid, binding and legal obligations
of the Company, and to constitute the Indenture, as supplemented and
amended as aforesaid, as well as by this Supplemental Indenture, a valid,
binding and legal instrument for the security thereof, have been done and
performed, and the creation, execution and delivery of this Supplemental
Indenture and the creation, execution and issuance of bonds subject to the
terms hereof and of the Indenture, as so supplemented and amended, have in
all respects been duly authorized;
NOW, THEREFORE, in consideration of the premises, of the
acceptance and purchase by the holders thereof of the bonds issued and to
be issued under the Indenture, as supplemented and amended as above set
forth, and of the sum of One Dollar duly paid by the Trustee to the
Company, and of other good and valuable considerations, the receipt
whereof is hereby acknowledged, and for the purpose of securing the due
and punctual payment of the principal of and premium, if any, and interest
on all bonds now outstanding under the Indenture and the $225,000,000
principal amount of Senior Note Series A Bonds proposed to be issued
initially and all other bonds which shall be issued under the Indenture,
as supplemented and amended from time to time, and for the purpose of
securing the faithful performance and observance of all covenants and
conditions therein, and in any indenture supplemental thereto, set forth,
the Company has given, granted, bargained, sold, released, transferred,
assigned, hypothecated, pledged, mortgaged, confirmed, set over,
warranted, alienated and conveyed and by these presents does give, grant,
bargain, sell, release, transfer, assign, hypothecate, pledge, mortgage,
confirm, set over, warrant, alien and convey unto The Chase Manhattan
Bank, as Trustee, as provided in the Indenture, and its successor or
successors in the trust thereby and hereby created and to its or their
assigns forever, all the right, title and interest of the Company in and
to all the property, described in Section 13 hereof, together (subject to
the provisions of Article X of the Indenture) with the tolls, rents,
revenues, issues, earnings, income, products and profits thereof,
excepting, however, the property, interests and rights specifically
excepted from the lien of the Indenture as set forth in the Indenture.
TOGETHER WITH all and singular the tenements,
hereditaments and appurtenances belonging or in any wise appertaining to
the premises, property, franchises and rights, or any thereof, referred to
in the foregoing granting clause, with the reversion and reversions,
remainder and remainders and (subject to the provisions of Article X of
the Indenture) the tolls, rents, revenues, issues, earnings, income,
products and profits thereof, and all the estate, right, title and
interest and claim whatsoever, at law as well as in equity, which the
Company now has or may hereafter acquire in and to the aforesaid premises,
property, franchises and rights and every part and parcel thereof.
SUBJECT, HOWEVER, with respect to such premises, property,
franchises and rights, to excepted encumbrances as said term is defined in
Section 1.02 of the Indenture, and subject also to all defects and
limitations of title and to all encumbrances existing at the time of
acquisition.
TO HAVE AND TO HOLD all said premises, property,
franchises and rights hereby conveyed, assigned, pledged or mortgaged, or
intended so to be, unto the Trustee, its successor or successors in trust
and their assigns forever;
BUT IN TRUST, NEVERTHELESS, with power of sale for the
equal and proportionate benefit and security of the holders of all bonds
now or hereafter authenticated and delivered under and secured by the
Indenture and interest coupons appurtenant thereto, pursuant to the
provisions of the Indenture and of any supplemental indenture, and for the
enforcement of the payment of said bonds and coupons when payable and the
performance of and compliance with the covenants and conditions of the
Indenture and of any supplemental indenture, without any preference,
distinction or priority as to lien or otherwise of any bond or bonds over
others by reason of the difference in time of the actual authentication,
delivery, issue, sale or negotiation thereof or for any other reason
whatsoever, except as otherwise expressly provided in the Indenture; and
so that each and every bond now or hereafter authenticated and delivered
thereunder shall have the same lien, and so that the principal of and
premium, if any, and interest on every such bond shall, subject to the
terms thereof, be equally and proportionately secured, as if it had been
made, executed, authenticated, delivered, sold and negotiated
simultaneously with the execution and delivery thereof.
AND IT IS EXPRESSLY DECLARED by the Company that all bonds
authenticated and delivered under and secured by the Indenture, as
supplemented and amended as above set forth, are to be issued,
authenticated and delivered, and all said premises, property, franchises
and rights hereby and by the Indenture and indentures supplemental thereto
conveyed, assigned, pledged or mortgaged, or intended so to be, are to be
dealt with and disposed of under, upon and subject to the terms,
conditions, stipulations, covenants, agreements, trusts, uses and purposes
expressed in the Indenture, as supplemented and amended as above set
forth, and the parties hereto mutually agree as follows:
SECTION 1. There is hereby created one series of bonds
(the "Senior Note Series A Bonds") designated as hereinabove provided,
which shall also bear the descriptive title "First Mortgage Bond", and the
form thereof shall be substantially as hereinbefore set forth. Senior
Note Series A Bonds shall be issued in the aggregate principal amount of
$225,000,000, shall mature on March 1, 2018 and shall be issued only as
registered bonds without coupons in denominations of $1,000 and any
multiple thereof. The serial numbers of bonds of the Senior Note Series A
Bonds shall be such as may be approved by any officer of the Company, the
execution thereof by any such officer either manually or by facsimile
signature to be conclusive evidence of such approval. Senior Note
Series A Bonds shall bear interest at a rate of 6 7/8% per annum, except
that during the continuation of a Registration Default, as defined in the
Registration Rights Agreement dated March 6, 1998, between the Company and
Salomon Brothers Inc., Xxxxxx Xxxxxxx & Co. Incorporated, BZW Securities
Inc., Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation and First
Chicago Capital Markets, Inc. shall bear interest at a rate of 7 1/8% per
annum until the principal thereof shall have become due and payable,
payable semi-annually on March 1 and September 1 in each year commencing
September 1, 1998. The principal of and the premium, if any, and the
interest on said bonds shall be payable in any coin or currency of the
United States of America which at the time of payment is legal tender for
public and private debts, at the office or agency of the Company in the
City of Jackson, Michigan designated for that purpose.
Upon any payment of the principal of, premium, if any, and
interest on, all or any portion of the Series A Notes (or Exchange Notes
(as defined below) issued in exchange therefor), whether at maturity or
prior to maturity by redemption or otherwise or upon provision for the
payment thereof having been made in accordance with Section 5.01(a) of the
Senior Note Indenture, Senior Note Series A Bonds in a principal amount
equal to the principal amount of such Series A Notes (or Exchange Notes)
and having both a corresponding maturity date and interest rate shall, to
the extent of such payment of principal, premium, if any, and interest, be
deemed paid and the obligation of the Company thereunder to make such
payment shall be discharged to such extent and, in the case of the payment
of principal (and premium, if any) such bonds of said series shall be
surrendered to the Company for cancellation as provided in Section 4.08 of
the Senior Note Indenture. The Trustee may at anytime and all times
conclusively assume that the obligation of the Company to make payments
with respect to the principal of and premium, if any, and interest on the
Senior Note Series A Bonds, so far as such payments at the time have
become due, has been fully satisfied and discharged pursuant to the
foregoing sentence unless and until the Trustee shall have received a
written notice from the Senior Note Trustee signed by one of its officers
stating (i) that timely payment of, or premium or interest on, the
Series A Notes has not been so made, (ii) that the Company is in arrears
as to the payments required to be made by it to the Senior Note Trustee
pursuant to the Senior Note Indenture, and (iii) the amount of the
arrearage.
Each Senior Note Series A Bond is to be issued to and
registered in the name of The Chase Manhattan Bank, as trustee, or a
successor trustee (said trustee or any successor trustee being hereinafter
referred to as the "Senior Note Trustee") under the Indenture, dated as of
February 1, 1998 (hereinafter sometimes referred to as the "Senior Note
Indenture") between Consumers Energy Company and the Senior Note Trustee,
to secure any and all obligations of the Company under the Series A Notes
and any other series of senior notes from time to time outstanding under
the Senior Note Indenture.
The Senior Note Series A Bonds shall not be assignable or
transferable except as permitted or required by Section 4.04 of the Senior
Note Indenture. Any such transfer shall be effected at the Investor
Services Department of the Company, as transfer agent (hereinafter
referred to as "corporate trust office"). The Senior Note Series A Bonds
shall be exchangeable for other registered bonds of the same series, in
the manner and upon the conditions prescribed in the Indenture, upon the
surrender of such bonds at said corporate trust office of the transfer
agent. However, notwithstanding the provisions of Section 2.05 of the
Indenture, no charge shall be made upon any registration of transfer or
exchange of bonds of said series other than for any tax or taxes or other
governmental charge required to be paid by the Company.
SECTION 2. Senior Note Series A Bonds shall not be
redeemable except on the respective dates, in the respective principal
amounts and for the respective redemption prices which correspond to the
redemption dates for, the principal amounts to be redeemed of, and the
redemption prices for, the Series A Notes (and any Exchange Notes (as
defined in the form of Senior Note Series A Bonds hereinabove set forth))
and except as set forth in Section 3 hereof.
In the event the Company redeems any Series A Notes (or
Exchange Notes) prior to maturity in accordance with the provisions of the
Senior Note Indenture, the Senior Note Trustee shall on the same date
deliver to the Company the Senior Note Series A Bonds in principal amounts
corresponding to the Series A Notes (or Exchange Notes) so redeemed, as
provided in Section 4.08 of the Senior Note Indenture. The Company agrees
to give the Senior Note Trustee notice of any such redemption of the
Series A Notes (or Exchange Notes) on or before the date fixed for any
such redemption.
Senior Notes Series A Bonds are not redeemable by the
operation of the improvement fund or the maintenance and replacement
provisions of this Indenture or with the proceeds of released property.
SECTION 3. Upon the occurrence of an Event of Default
under the Senior Note Indenture and the acceleration of the Series A Notes
(or Exchange Notes), the Senior Note Series A Bonds shall be redeemable in
whole upon receipt by the Trustee of a written demand (hereinafter called
a "Redemption Demand") from the Senior Note Trustee stating that there has
occurred under the Senior Note Indenture both an Event of Default and a
declaration of acceleration of payment of principal, accrued interest and
premium, if any, on the Series A Notes (or Exchange Notes), specifying the
last date to which interest on such notes has been paid (such date being
hereinafter referred to as the "Initial Interest Accrual Date") and
demanding redemption of Senior Note Series A Bonds. The Company waives
any right it may have to prior notice of such redemption under the
Indenture. Upon surrender of the Senior Note Series A Bonds by the Senior
Note Trustee to the Trustee, the Senior Note Series A Bonds shall be
redeemed at a redemption price equal to the principal amount thereof plus
accrued interest thereon from the Initial Interest Accrual Date to the
date of the Redemption Demand; provided, however, that in the event of a
recision of acceleration of senior notes pursuant to the last paragraph of
Section 8.01(a) of the Senior Note Indenture, then any Redemption Demand
shall thereby be deemed to be rescinded by the Senior Note Trustee; but no
such recision or annulment shall extend to or affect any subsequent
default or impair any right consequent thereon.
SECTION 4. For purposes of Section 4.09 of the Senior
Note Indenture, this bond shall be deemed to be the "related series of
Senior Note First Mortgage Bonds" in respect of (i) the Series A Notes,
and (ii) any Exchange Notes.
SECTION 5. As provided in Section 4.11 of the Senior Note
Indenture, from and after the Release Date (as defined in the Senior Note
Indenture), the obligations of the Company with respect to the Senior Note
Series A Bonds (the "Bonds") shall be deemed to be satisfied and
discharged, the Bonds shall cease to secure in any manner any senior notes
outstanding under the Senior Note Indenture, and, pursuant to Section 4.08
of the Senior Note Indenture, the Senior Note Trustee shall forthwith
deliver the Bonds to the Company for cancellation.
SECTION 6. The Company reserves the right, without any
consent, vote or other action by the holder of the Senior Note Series A
Bonds or the holders of any Series A Notes or any Exchange Notes, or of
any subsequent series of bonds issued under the Indenture, to make such
amendments to the Indenture, as supplemented, as shall be necessary in
order to amend Section 17.02 to read as follows:
SECTION 17.02. With the consent
of the holders of not less than a
majority in principal amount of the bonds
at the time outstanding or their
attorneys-in-fact duly authorized, or, if
fewer than all series are affected, not
less than a majority in principal amount
of the bonds at the time outstanding of
each series the rights of the holders of
which are affected, voting together, the
Company, when authorized by a resolution,
and the Trustee may from time to time and
at any time enter into an indenture or
indentures supplemental hereto 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 modifying
the rights and obligations of the Company
and the rights of the holders of any of
the bonds and coupons; provided, however,
that no such supplemental indenture shall
(1) extend the maturity of any of the
bonds or reduce the rate or extend the
time of payment of interest thereon, or
reduce the amount of the principal
thereof, or reduce any premium payable on
the redemption thereof, without the
consent of the holder of each bond so
affected, or (2) permit the creation of
any lien, not otherwise permitted, prior
to or on a parity with the lien of this
Indenture, without the consent of the
holders of all the bonds then
outstanding, or (3) reduce the aforesaid
percentage of the principal amount of
bonds the holders of which are required
to approve any such supplemental
indenture, without the consent of the
holders of all the bonds then
outstanding. For the purposes of this
Section, bonds shall be deemed to be
affected by a supplemental indenture if
such supplemental indenture adversely
affects or diminishes the rights of
holders thereof against the Company or
against its property. The Trustee may in
its discretion determine whether or not,
in accordance with the foregoing, bonds
of any particular series would be
affected by any supplemental indenture
and any such determination shall be
conclusive upon the holders of bonds of
such series and all other series.
Subject to the provisions of
Sections 16.02 and 16.03 hereof, the
Trustee shall not be liable for any
determination made in good faith in
connection herewith.
Upon the written request of the
Company, accompanied by a resolution
authorizing the execution of any such
supplemental indenture, and upon the
filing with the Trustee of evidence of
the consent of bondholders as aforesaid
(the instrument or instruments evidencing
such consent to be dated within one year
of such request), the Trustee shall join
with the Company 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 bondholders 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.
The Company and the Trustee, if
they so elect, and either before or after
such consent has been obtained, may
require the holder of any bond consenting
to the execution of any such supplemental
indenture to submit his bond to the
Trustee or to ask such bank, banker or
trust company as may be designated by the
Trustee for the purpose, for the notation
thereon of the fact that the holder of
such bond has consented to the execution
of such supplemental indenture, and in
such case such notation, in form
satisfactory to the Trustee, shall be
made upon all bonds so submitted, and
such bonds bearing such notation shall
forthwith be returned to the persons
entitled thereto.
Prior to the execution by the
Company and the Trustee of any
supplemental indenture pursuant to the
provisions of this Section, the Company
shall publish a notice, setting forth in
general terms the substance of such
supplemental indenture, at least once in
one daily newspaper of general
circulation in each city in which the
principal of any of the bonds shall be
payable, or, if all bonds outstanding
shall be registered bonds without coupons
or coupon bonds registered as to
principal, such notice shall be
sufficiently given if mailed, first
class, postage prepaid, and registered if
the Company so elects, to each registered
holder of bonds at the last address of
such holder appearing on the registry
books, such publication or mailing, as
the case may be, to be made not less than
thirty days prior to such execution. Any
failure of the Company 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 7. As supplemented and amended as above set
forth, the Indenture is in all respects ratified and confirmed, and the
Indenture and all indentures supplemental thereto shall be read, taken and
construed as one and the same instrument.
SECTION 8. Nothing contained in this Supplemental
Indenture shall, or shall be construed to, confer upon any person other
than a holder of bonds issued under the Indenture, as supplemented and
amended as above set forth, the Company, the Trustee and the Senior Note
Trustee, for the benefit of the holder or holders of the Series A Notes
and Exchange Notes, any right or interest to avail himself of any benefit
under any provision of the Indenture, as so supplemented and amended.
SECTION 9. The Trustee assumes no responsibility for or
in respect of the validity or sufficiency of this Supplemental Indenture
or of the Indenture as hereby supplemented or the due execution hereof by
the Company or for or in respect of the recitals and statements contained
herein (other than those contained in the sixth and seventh recitals
hereof), all of which recitals and statements are made solely by the
Company.
SECTION 10. This Supplemental Indenture may be
simultaneously executed in several counterparts and all such counterparts
executed and delivered, each as an original, shall constitute but one and
the same instrument.
SECTION 11. In the event the date of any notice required
or permitted hereunder or the date of maturity of interest on or principal
of the Senior Note Series A Bonds or the date fixed for redemption or
repayment of the Senior Note Series A Bonds shall not be a Business Day,
then (notwithstanding any other provision of the Indenture or of any
supplemental indenture thereto) such notice or such 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 fixed for such notice or 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. "Business Day" means, with
respect to this Section 11, a day of the year on which banks are not
required or authorized to close in New York City or Detroit, Michigan.
SECTION 12. This Supplemental Indenture and the Senior
Note Series A Bonds 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.
SECTION 13. Detailed Description of Property Mortgaged:
I.
ELECTRIC GENERATING PLANTS AND DAMS
All the electric generating plants and stations of the
Company, constructed or otherwise acquired by it and not heretofore
described in the Indenture or any supplement thereto and not heretofore
released from the lien of the Indenture, including all powerhouses,
buildings, reservoirs, dams, pipelines, flumes, structures and works and
the land on which the same are situated and all water rights and all other
lands and easements, rights of way, permits, privileges, towers, poles,
wires, machinery, equipment, appliances, appurtenances and supplies and
all other property, real or personal, forming a part of or appertaining to
or used, occupied or enjoyed in connection with such plants and stations
or any of them, or adjacent thereto.
II.
ELECTRIC TRANSMISSION LINES
All the electric transmission lines of the Company,
constructed or otherwise acquired by it and not heretofore described in
the Indenture or any supplement thereto and not heretofore released from
the lien of the Indenture, including towers, poles, pole lines, wires,
switches, switch racks, switchboards, insulators and other appliances and
equipment, and all other property, real or personal, forming a part of or
appertaining to or used, occupied or enjoyed in connection with such
transmission lines or any of them or adjacent thereto; together with all
real property, rights of way, easements, permits, privileges, franchises
and rights for or relating to the construction, maintenance or operation
thereof, through, over, under or upon any private property or any public
streets or highways, within as well as without the corporate limits of
any municipal corporation. Also all the real property, rights of way,
easements, permits, privileges and rights for or relating to the
construction, maintenance or operation of certain transmission lines, the
land and rights for which are owned by the Company, which are either not
built or now being constructed.
III.
ELECTRIC DISTRIBUTION SYSTEMS
All the electric distribution systems of the Company,
constructed or otherwise acquired by it and not heretofore described in
the Indenture or any supplement thereto and not heretofore released from
the lien of the Indenture, including substations, transformers,
switchboards, towers, poles, wires, insulators, subways, trenches,
conduits, manholes, cables, meters and other appliances and equipment, and
all other property, real or personal, forming a part of or appertaining to
or used, occupied or enjoyed in connection with such distribution systems
or any of them or adjacent thereto; together with all real property,
rights of way, easements, permits, privileges, franchises, grants and
rights, for or relating to the construction, maintenance or operation
thereof, through, over, under or upon any private property or any public
streets or highways within as well as without the corporate limits of any
municipal corporation.
IV.
ELECTRIC SUBSTATIONS,
SWITCHING STATIONS AND SITES
All the substations, switching stations and sites of the
Company, constructed or otherwise acquired by it and not heretofore
described in the Indenture or any supplement thereto and not heretofore
released from the lien of the Indenture, for transforming, regulating,
converting or distributing or otherwise controlling electric current at
any of its plants and elsewhere, together with all buildings,
transformers, wires, insulators and other appliances and equipment, and
all other property, real or personal, forming a part of or appertaining to
or used, occupied or enjoyed in connection with any of such substations
and switching stations, or adjacent thereto, with sites to be used for
such purposes.
V.
GAS COMPRESSOR STATIONS, GAS PROCESSING PLANTS,
DESULPHURIZATION STATIONS, METERING STATIONS,
ODORIZING STATIONS, REGULATORS AND SITES
All the compressor stations, processing plants,
desulphurization stations, metering stations, odorizing stations,
regulators and sites of the Company, constructed or otherwise acquired by
it and not heretofore described in the Indenture or any supplement thereto
and not heretofore released from the lien of the Indenture, for
compressing, processing, desulphurizing, metering, odorizing and
regulating manufactured or natural gas at any of its plants and elsewhere,
together with all buildings, meters and other appliances and equipment,
and all other property, real or personal, forming a part of or
appertaining to or used, occupied or enjoyed in connection with any of
such purposes, with sites to be used for such purposes.
VI.
GAS STORAGE FIELDS
The natural gas rights and interests of the Company,
including xxxxx and well lines (but not including natural gas, oil and
minerals), the gas gathering system, the underground gas storage rights,
the underground gas storage xxxxx and injection and withdrawal system used
in connection therewith, constructed or otherwise acquired by it and not
heretofore described in the Indenture or any supplement thereto and not
heretofore released from the lien of the Indenture: In the Overisel Gas
Storage Field, located in the Township of Overisel, Allegan County, and in
the Township of Zeeland, Ottawa County, Michigan; in the Northville Gas
Storage Field located in the Township of Salem, Washtenaw County, Township
of Lyon, Oakland County, and the Townships of Northville and Plymouth and
City of Plymouth, Xxxxx County, Michigan; in the Salem Gas Storage Field,
located in the Township of Salem, Allegan County, and in the Township of
Jamestown, Ottawa County, Michigan; in the Ray Gas Storage Field, located
in the Townships of Ray and Armada, Macomb County, Michigan; in the Lenox
Gas Storage Field, located in the Townships of Lenox and Chesterfield,
Macomb County, Michigan; in the Xxx Gas Storage Field, located in the
Township of Xxx, St. Clair County, Michigan; in the Puttygut Gas Storage
Field, located in the Township of Casco, St. Clair County, Michigan; in
the Four Corners Gas Storage Field, located in the Townships of Casco,
China, Cottrellville and Xxx, St. Clair County, Michigan; in the Swan
Creek Gas Storage Field, located in the Township of Casco and Xxx, St.
Clair County, Michigan; and in the Hessen Gas Storage Field, located in
the Townships of Casco and Columbus, St. Clair, Michigan.
VII.
GAS TRANSMISSION LINES
All the gas transmission lines of the Company, constructed
or otherwise acquired by it and not heretofore described in the Indenture
or any supplement thereto and not heretofore released from the lien of the
Indenture, including gas mains, pipes, pipelines, gates, valves, meters
and other appliances and equipment, and all other property, real or
personal, forming a part of or appertaining to or used, occupied or
enjoyed in connection with such transmission lines or any of them or
adjacent thereto; together with all real property, right of way,
easements, permits, privileges, franchises and rights for or relating to
the construction, maintenance or operation thereof, through, over, under
or upon any private property or any public streets or highways, within as
well as without the corporate limits of any municipal corporation.
VIII.
GAS DISTRIBUTION SYSTEMS
All the gas distribution systems of the Company,
constructed or otherwise acquired by it and not heretofore described in
the Indenture or any supplement thereto and not heretofore released from
the lien of the Indenture, including tunnels, conduits, gas mains and
pipes, service pipes, fittings, gates, valves, connections, meters and
other appliances and equipment, and all other property, real or personal,
forming a part of or appertaining to or used, occupied or enjoyed in
connection with such distribution systems or any of them or adjacent
thereto; together with all real property, rights of way, easements,
permits, privileges, franchises, grants and rights, for or relating to the
construction, maintenance or operation thereof, through, over, under or
upon any private property or any public streets or highways within as well
as without the corporate limits of any municipal corporation.
IX.
OFFICE BUILDINGS,
SERVICE BUILDINGS, GARAGES, ETC.
All office, garage, service and other buildings of the
Company, wherever located, in the State of Michigan, constructed or
otherwise acquired by it and not heretofore described in the Indenture or
any supplement thereto and not heretofore released from the lien of the
Indenture, together with the land on which the same are situated and all
easements, rights of way and appurtenances to said lands, together with
all furniture and fixtures located in said buildings.
X.
TELEPHONE PROPERTIES AND
RADIO COMMUNICATION EQUIPMENT
All telephone lines, switchboards, systems and equipment
of the Company, constructed or otherwise acquired by it and not heretofore
described in the Indenture or any supplement thereto and not heretofore
released from the line of the Indenture, used or available for use in the
operation of its properties, and all other property, real or personal,
forming a part of or appertaining to or used, occupied or enjoyed in
connection with such telephone properties or any of them or adjacent
thereto; together with all real estate, rights of way, easements, permits,
privileges, franchises, property, devices or rights related to the
dispatch, transmission, reception or reproduction of messages,
communications, intelligence, signals, light, vision or sound by
electricity, wire or otherwise, including all telephone equipment
installed in buildings used as general and regional offices, substations
and generating stations and all telephone lines erected on towers and
poles; and all radio communication equipment of the Company, together with
all property, real or personal (except any in the Indenture expressly
excepted), fixed stations, towers, auxiliary radio buildings and
equipment, and all appurtenances used in connection therewith, wherever
located, in the State of Michigan.
XI.
OTHER REAL PROPERTY
All other real property of the Company and all interests
therein, of every nature and description (except any in the Indenture
expressly excepted) wherever located, in the State of Michigan, acquired
by it and not heretofore described in the Indenture or any supplement
thereto and not heretofore released from the line of the Indenture.
SECTION 9. The Company is a transmitting utility under
Section 9401(5) of the Michigan Uniform Commercial Code
(M.C.L. 440.9401(5)) as defined in M.C.L. 440.9105(n).
IN WITNESS WHEREOF, said Consumers Energy Company has
caused this Supplemental Indenture to be executed in its corporate name by
its Chairman of the Board, President, a Vice President or its Treasurer
and its corporate seal to be hereunto affixed and to be attested by its
Secretary or an Assistant Secretary, and said The Chase Manhattan Bank, as
Trustee as aforesaid, to evidence its acceptance hereof, has caused this
Supplemental Indenture to be executed in its corporate name by a Vice
President and its corporate seal to be hereunto affixed and to be attested
by a Trust Officer, in several counterparts, all as of the day and year
first above written.
S-1
CONSUMERS ENERGY COMPANY
(SEAL) By /s/ A. M. Xxxxxx
______________________
Xxxx X. Xxxxxx
Attest: Senior Vice President and
Chief Financial Officer
/s/ Xxxxx X. Xxxxxx
____________________________
Xxxxx X. Xxxxxx
Assistant Secretary
Signed, sealed and delivered
by CONSUMERS ENERGY COMPANY
in the presence of
/s/ Xxxxxxxx X. Xxxxxxxx
____________________________
Xxxxxxxx X. Xxxxxxxx
/s/ Xxxxx Xxxxxxx
____________________________
Xxxxx Xxxxxxx
STATE OF MICHIGAN )
ss.
COUNTY OF XXXXXXX )
The foregoing instrument was acknowledged before me this
6th day of March, 1998, by Xxxx X. Xxxxxx, Senior Vice President and Chief
Financial Officer of CONSUMERS ENERGY COMPANY, a Michigan corporation, on
behalf of the corporation.
/s/ Xxxxxxxx Xxxxxxx
________________________
Xxxxxxxx Xxxxxxx, Notary Public
[Seal] Xxxxxxx County, Michigan
My Commission Expires: June 14, 2000
S-2
THE CHASE MANHATTAN BANK, AS TRUSTEE
(SEAL) By /s/ X. XxXxxxxxx
_________________________
X. XxXxxxxxx
Attest: Vice President
/s/ Xxxxx Xxxxxx
____________________________
Xxxxx Xxxxxx
Trust Officer
Signed, sealed and delivered
by THE CHASE MANHATTAN BANK
in the presence of
/s/ X. Xxxxx
____________________________
X. Xxxxx
/s/ Xxxxx X. XxXxxxxx
____________________________
Xxxxx X. XxXxxxxx
Vice President
STATE OF NEW YORK )
ss.
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me this
6th day of March, 1998, by X. XxXxxxxxx a Vice President of THE CHASE
MANHATTAN BANK, a New York corporation, on behalf of the corporation.
/s/ Xxxxx Xxxxx
______________________________
Xxxxx Xxxxx, Notary Public
[Seal] New York County, New York
My Commission Expires: 12/31/99
Prepared by: When recorded, return to:
Xxxxxxxx X. Xxxxxxxx Consumers Energy Company
000 Xxxx Xxxxxxxx Xxxxxx General Services Real Xxxxxx Xxxxxxxxxx
Xxxxxxx, XX 00000 Attn: Xxxxx X. Xxxxxx, P-21-410B
0000 X. Xxxxxxx Xxxx
Xxxxxxx, XX 00000
