<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 20, 1999
REGISTRATION NO.
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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<TABLE>
<S> <C> <C>
CONSUMERS ENERGY COMPANY CONSUMERS ENERGY COMPANY FINANCING CONSUMERS ENERGY COMPANY FINANCING
III IV
(Exact name of registrant as (Exact name of registrant as (Exact name of registrant as
specified in its charter) specified specified
in its charter) in its charter)
MICHIGAN DELAWARE DELAWARE
(State or other jurisdiction of (State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization) incorporation or organization)
38-2726431 TO BE APPLIED FOR TO BE APPLIED FOR
(I.R.S. Employer Identification (I.R.S. Employer Identification (I.R.S. Employer Identification
No.) No.) No.)
ALAN M. WRIGHT ALAN M. WRIGHT ALAN M. WRIGHT
SENIOR VICE PRESIDENT AND SENIOR VICE PRESIDENT AND SENIOR VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER CHIEF FINANCIAL OFFICER CHIEF FINANCIAL OFFICER
CONSUMERS ENERGY COMPANY CONSUMERS ENERGY COMPANY CONSUMERS ENERGY COMPANY
212 West Michigan Avenue 212 West Michigan Avenue 212 West Michigan Avenue
Jackson, Michigan 49201 Jackson, Michigan 49201 Jackson, Michigan 49201
(517) 788-0351 (517) 788-0351 (517) 788-0351
(Name, address, including zip (Name, address, including zip (Name, address, including zip
code, and telephone number, code, and telephone number, code, and telephone number,
including area code, of including area code, of agent for including area code, of agent for
registrant's principal executive service) service)
office)
</TABLE>
------------------------
It is respectfully requested that the Commission send copies of all notices,
orders and communications to:
MICHAEL D. VAN HEMERT, ESQ.
ASSISTANT GENERAL COUNSEL
CMS ENERGY CORPORATION
FAIRLANE PLAZA SOUTH
330 TOWN CENTER DRIVE, SUITE 1100
DEARBORN, MICHIGAN 48126
(313) 436-9602
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. X
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1)(2) UNIT(1)(2)(3) PRICE(1)(2)(3) FEE(1)(2)(3)
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<S> <C> <C> <C> <C>
Senior Notes of Consumers Energy
Company(4).........................
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Subordinated Debentures of Consumers
Energy Company(4)..................
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Trust Preferred Securities of
Consumers Energy Company Financing
III................................
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Trust Preferred Securities of
Consumers Energy Company Financing
IV.................................
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Guarantee of Consumers Energy Company
with respect to Trust Preferred
Securities of Consumers Energy
Company Financing III and Consumers
Energy Company Financing IV(5).....
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Total................................ $525,000,000 100% $525,000,000 $145,950
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</TABLE>
(1) There are being registered hereunder such presently indeterminate principal
amount of Senior Notes and Subordinated Debentures, as well as shares of
Trust Preferred Securities of Consumers Energy Company Financing III and
Consumers Energy Company Financing IV, as may from time to time be issued at
indeterminate prices.
(2) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(o) under the Securities Act of 1933 which permits the
registration fee to be calculated on the basis of the maximum offering price
of all the securities listed, the table does not specify by each class
information as to the amount to be registered, proposed maximum offering
price per unit or proposed maximum aggregate offering price.
(3) Exclusive of accrued interest and distributions, if any.
(4) The Senior Notes or Subordinated Debentures may be purchased by, and
constitute assets of, Consumers Energy Company Financing III or Consumers
Energy Company Financing IV, and may later be distributed under certain
circumstances to holders of Trust Preferred Securities.
(5) The Registration Statement is deemed to include the obligations of Consumers
Energy Company under the guarantee and certain backup undertakings under:
(1) the subordinated debt indenture pursuant to which the subordinated
debentures will be issued; (2) the subordinated debentures; and (3) the
declaration of trust of Consumers Energy Company Financing III and Consumers
Energy Company Financing IV, including Consumers Energy Company's
obligations under such subordinated debt indenture to pay costs, expenses,
debts and liabilities of the trust (other than with respect to the trust
preferred securities and the common securities of Consumers Energy Company
Financing III or Consumers Energy Company Financing IV) which taken together
provide a full and unconditional guarantee of amounts due on the trust
preferred securities. No separate consideration will be received for the
guarantee and such backup undertakings. The guarantee is not traded
separately.
This Registration Statement contains the following prospectuses:
(1) a base prospectus to be used in connection with the offer and sale of
securities of Consumers Energy Company, Consumers Energy Company
Financing III and Consumers Energy Company Financing IV; and
(2) a prospectus supplement to be used in connection with any offer and
sale of TOPrS(SM), which are referred to, as preferred securities in
the base prospectus.
THE BASE PROSPECTUS WILL BE USED FOR THE OFFER AND SALE OF ALL SECURITIES
REGISTERED PURSUANT TO THIS REGISTRATION STATEMENT, IN ADDITION TO A PROSPECTUS
SUPPLEMENT RELATING TO THE SPECIFIC SECURITY OR SECURITIES TO BE OFFERED AND
SOLD. CONSUMERS ENERGY COMPANY PLANS TO CONSUMMATE, FROM TIME TO TIME,
TRANSACTIONS INVOLVING THE SALE OF SECURITIES REGISTERED PURSUANT TO THIS
REGISTRATION STATEMENT, PROVIDED THAT THE PROCEEDS THEREFROM WILL NOT EXCEED AN
AGGREGATE OF $525,000,000. NO DECISIONS HAVE BEEN MADE AS TO WHICH SECURITIES
WILL BE ISSUED OR THE TIMING OR SIZE OF ANY OFFERING OF SUCH SECURITIES. SUCH
DETERMINATIONS WILL BE MADE FROM TIME TO TIME IN THE LIGHT OF MARKET AND OTHER
CONDITIONS.
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<PAGE> 3
PROSPECTUS SUPPLEMENT
(TO PROSPECTUS DATED OCTOBER , 1999)
CONSUMERS ENERGY LOGO
PREFERRED SECURITIES
CONSUMERS ENERGY COMPANY FINANCING III
% TRUST ORIGINATED PREFERRED SECURITIES(SM)"TOPRS(SM)"
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED, AS DESCRIBED HEREIN, BY
CONSUMERS ENERGY COMPANY
------------------------
THE TRUST:
Consumers Energy Company Financing III is a Delaware business trust which
will:
- sell preferred securities to the public;
- sell common securities to Consumers;
- use the proceeds from these sales to buy an equal principal amount of %
subordinated debentures due of Consumers; and
- distribute the cash payments it receives from Consumers on the debentures
to the holders of the preferred securities and the common securities.
QUARTERLY DISTRIBUTIONS:
- For each preferred security that you own, you will receive cumulative cash
distributions accumulating from , 1999, at an annual rate of
% of the liquidation amount of $25 per preferred security, on
, , and of each year, beginning
, 1999.
- Consumers may defer interest payments on the subordinated debentures on
one or more occasions for up to 20 consecutive quarterly periods. If
Consumers does defer interest payments, the trust will also defer payments
of distributions on the preferred securities to you. However, deferred
distributions will themselves accumulate distributions at an annual rate
of % (to the extent permitted by law).
OPTIONAL REDEMPTION:
- The trust may redeem some or all of the preferred securities at times
discussed herein at a redemption price equal to $25 per preferred security
plus accumulated distributions, if any.
CONSUMERS ENERGY COMPANY:
- Consumers will effectively guarantee, fully and unconditionally, the
payment by the trust of amounts due on the preferred securities as
discussed in this prospectus supplement and in the accompanying base
prospectus.
The trust plans to list the preferred securities on the New York Stock
Exchange under the symbol " ." Trading on the New York Stock Exchange is
expected to commence within 30 days after the preferred securities are first
issued.
INVESTING IN THE PREFERRED SECURITIES INVOLVES CERTAIN RISKS WHICH ARE
DESCRIBED IN THE "RISK FACTORS" SECTION BEGINNING ON PAGE S-6 OF THIS PROSPECTUS
SUPPLEMENT.
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<TABLE>
<CAPTION>
PER TOPRS TOTAL
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<S> <C> <C>
Public offering price(1)................................... $ $
Underwriting commission to be paid by Consumers............ $ $
Proceeds, before expenses, to the trust.................... $ $
(1) Plus accrued distributions from , 1999, if settlement arrives after that
date.
</TABLE>
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus supplement or the accompanying base prospectus is truthful or
complete. Any representation to the contrary is a criminal offense.
The preferred securities will be ready for delivery in book-entry form only
through The Depository Trust Company on or about , 1999.
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MERRILL LYNCH & CO.
A.G. EDWARDS & SONS, INC.
FIRST OF MICHIGAN
DIVISION OF FAHNESTOCK
& CO. INC.
MORGAN STANLEY DEAN WITTER
PRUDENTIAL SECURITIES
RAYMOND JAMES & ASSOCIATES, INC.
------------------------
The date of this prospectus supplement is , 1999.
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(SM)"Trust Originated Preferred Securities" and "TOPrS" are service marks of
Merrill Lynch & Co., Inc.
The information in this prospectus supplement and the accompanying base
prospectus is not complete and may be changed. We may not sell these securities
until the registration statement filed with the Securities and Exchange
Commission is effective. This prospectus and the accompanying base prospectus is
not an offer to sell these securities and it is not soliciting an offer to buy
these securities in any state where the offer or sale is not permitted.
<PAGE> 4
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
<TABLE>
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PAGE
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<S> <C>
Summary Information -- Q&A.................................. S-3
Risk Factors................................................ S-6
Recent Developments......................................... S-10
Consumers Energy Company Financing III...................... S-12
Capitalization.............................................. S-14
Accounting Treatment........................................ S-14
Use of Proceeds............................................. S-14
Selected Financial Data of Consumers Energy Company......... S-15
Description of Securities................................... S-15
Certain United States Federal Income Tax Consequences....... S-24
ERISA Considerations........................................ S-27
Underwriting................................................ S-29
Legal Matters............................................... S-31
Experts..................................................... S-31
PROSPECTUS
Where You Can Find More Information......................... 2
Consumers Energy Company.................................... 3
Consumers Energy Company Trusts............................. 4
Use of Proceeds............................................. 6
Ratio of Earnings to Fixed Charges and Ratio of Earnings to
Fixed Charges and Preferred Stock Dividends............... 7
Description of Securities................................... 7
Plan of Distribution........................................ 26
Legal Opinions.............................................. 27
Experts..................................................... 27
</TABLE>
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You should rely only on the information contained or incorporated by
reference in this prospectus supplement or the accompanying base prospectus. We
have not, and the underwriters have not, authorized any person to provide you
with different information. If anyone provides you with different or
inconsistent information, you should not rely on it. We are not, and the
underwriters are not, making an offer to sell these securities in any
jurisdiction where the offer or sale is not permitted. You should assume that
the information appearing in this prospectus supplement and the accompanying
base prospectus is accurate as of the date on the front cover of this prospectus
supplement and the accompanying base prospectus, respectively. Consumers'
business, financial condition, results of operations and prospects may have
changed since such dates.
The following information concerning Consumers, the trust, the preferred
securities, the guarantee and the subordinated debentures adds to, and should be
read in conjunction with, the information contained in the accompanying base
prospectus. Capitalized terms used in this prospectus supplement have the same
meanings as in the accompanying base prospectus.
S-2
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SUMMARY INFORMATION -- Q&A
This prospectus supplement and the accompanying base prospectus should be
read together. This summary highlights selected information from this prospectus
supplement and the accompanying base prospectus to help you understand the
preferred securities. You should carefully read this prospectus supplement and
the accompanying base prospectus to understand fully the terms of the preferred
securities, as well as the tax and other considerations that are important to
you in making a decision about whether to invest in the preferred securities.
You should pay special attention to the "Risk Factors" section beginning on page
S-6 of this prospectus supplement to determine whether an investment in the
preferred securities is appropriate for you.
For your convenience, we make reference to sections in this prospectus
supplement and the accompanying base prospectus for more detailed information
regarding some of the terms and concepts used throughout this prospectus
supplement.
WHAT ARE THE PREFERRED SECURITIES?
Each preferred security represents an undivided beneficial interest in the
assets of the trust. The underwriters are offering preferred
securities at a public offering price of $25 for each preferred security. See
"Underwriting" in this prospectus supplement.
WHO IS THE TRUST?
Consumers Energy Company Financing III is a Delaware business trust. The
trust will sell its preferred securities to the public and its common securities
to Consumers. The trust will use the proceeds from these sales to buy a series
of % subordinated debentures due from Consumers with the
same economic terms as the preferred securities.
There will be four trustees of the trust. Two of the trustees are employees
or officers of Consumers, referred to as the "regular trustees." Bank of New
York will act as the property trustee of the trust and Bank of New York
(Delaware) will act as the Delaware trustee, in each case until removed or
replaced by the holder of the common securities. For the purposes of compliance
with the provisions of the Trust Indenture Act, Bank of New York will also act
as indenture trustee under the guarantee.
WHO IS CONSUMERS ENERGY COMPANY?
Consumers is a public utility that provides natural gas and electricity to
almost six million of the nine and one-half million residents in Michigan's
Lower Peninsula. Consumers' electric operations include the generation,
purchase, transmission and distribution of electricity. It provides electric
services in 61 of the 68 counties of Michigan's Lower Peninsula. Consumers' gas
utility operation purchases, transports, stores and distributes natural gas. It
renders gas sales and delivery service in 54 of the 68 counties in Michigan's
Lower Peninsula. At year end 1998, Consumers provided service to 1.6 million
electric customers and 1.5 million gas customers. Consumers' consolidated
operating revenue in 1998 was $3.7 billion. Of Consumers' operating revenue, 70%
was generated from its electric utility business, 29% from its gas utility
business, and 1% from its non-utility business.
WHEN WILL YOU RECEIVE QUARTERLY DISTRIBUTIONS ON THE PREFERRED SECURITIES?
If you purchase the preferred securities, you will be entitled to receive
cumulative cash distributions at an annual rate of % of the liquidation
amount of $25 per preferred security. Distributions will accumulate from
, 1999, and will be payable quarterly in arrears on
, , , and of each
year, beginning 1999.
WHEN CAN PAYMENT OF YOUR DISTRIBUTIONS BE DEFERRED?
Consumers may, on one or more occasions, defer interest payments on the
debentures for up to 20 consecutive quarterly periods unless an event of default
under the debentures has occurred and is
S-3
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continuing. See "Description of Securities -- Certain Terms of the
Debentures -- Option to Extend Interest Payment Period," in this prospectus
supplement. A deferral of interest payments cannot extend beyond the stated
maturity date of the debentures (which is ).
If Consumers defers interest payments on the debentures, the trust will
also defer its distributions on the preferred securities to you. During this
deferral period, distributions will continue to accumulate on the preferred
securities at an annual rate of % of the liquidation amount of $25 per
preferred security. Also, the deferred distributions will themselves accumulate
distributions at an annual rate of % (to the extent permitted by law). Once
Consumers makes all deferred interest payments on the debentures, with accrued
interest, it may again defer interest payments on the debentures if no event of
default under the debentures has then occurred and is continuing.
During any period in which Consumers defers interest payments on the
debentures, Consumers will not be permitted to, with some exceptions:
- pay a dividend or make any other payment or distribution on its capital
stock;
- redeem, purchase or make a liquidation payment on any of its capital
stock; or
- make a principal, premium or interest payment, or repurchase or redeem,
any of its debt securities that rank equal with or junior to the
debentures.
If Consumers defers interest payments on the debentures, you will be
required to accrue interest income for United States federal income tax purposes
before you receive cash distributions. See "Certain United States Federal Income
Tax Consequences" and "Risk Factors -- Ability to defer distributions has tax
consequences for you and may affect the trading price of the preferred
securities" in this prospectus supplement.
WHEN CAN THE TRUST REDEEM THE PREFERRED SECURITIES?
The trust will redeem all of the outstanding preferred securities when the
debentures are paid either at maturity on , or upon early
redemption.
Consumers will pay the debentures at maturity on .
Consumers may redeem, before their maturity at a redemption price equal to 100%
of the principal amount being redeemed plus accrued and unpaid interest to the
date of redemption:
- all or some of the debentures on one or more occasions any time on or
after ; or
- all but not some of the debentures before , if
certain changes in tax or investment company law occur or will occur
within 90 days (each of which is a "special event". See "Special Event
Redemption" in this prospectus supplement.
If Consumers redeems any debentures before their maturity, the trust will
use the cash it receives on the redemption of the debentures to redeem,
proportionately, preferred securities and common securities having a total
liquidation amount equal to the total principal amount of the debentures
redeemed, unless an event of default under the amended and restated declaration
of trust, has occurred and is continuing. In such a case, the preferred
securities will be redeemed before any common securities. An event of default
with respect to the debentures or the guarantee constitutes an event of default
under the trust agreement. See "Description of Securities - Trust Preferred
Securities -- Effect of Obligations Under the Debt Securities and the
Guarantees" and "The Guarantees -- Events of Default" in the accompanying base
prospectus for a description of an event of default in respect of the debentures
and the guarantee, respectively. The redemption price will be equal to $25 per
security plus any accumulated distributions.
S-4
<PAGE> 7
WHAT IS THE NATURE OF CONSUMERS' GUARANTEE OF THE PREFERRED SECURITIES?
Consumers will fully and unconditionally guarantee the preferred securities
through a combination of its obligations:
- to make payments on the debentures;
- under its guarantee of the preferred securities; and
- under the trust agreement and its junior subordinated indenture.
If Consumers does not make a required payment on the debentures, the trust
will not have sufficient funds to make the related payment on the preferred
securities. The guarantee does not cover payments on the preferred securities
when the trust does not have sufficient funds to make such payments. Consumers'
obligations under the debentures are junior to its obligations to make payments
on its senior indebtedness and Consumers' obligations under the guarantee are
junior to its obligations to make payments on its senior indebtedness in the
same manner as the debentures. See "Risk Factors -- Consumers' obligations under
the debentures and the guarantee are subordinated" in this prospectus
supplement.
WHEN CAN THE DEBENTURES BE DISTRIBUTED TO YOU?
Consumers, as the sponsor of the trust, has the right to dissolve the trust
at any time. If Consumers exercises this right to dissolve the trust, the trust,
after satisfying any creditors it has, will be liquidated by distribution of the
debentures to holders of the preferred securities and the common securities.
WHAT HAPPENS IF THE TRUST IS DISSOLVED AND THE DEBENTURES ARE NOT DISTRIBUTED?
The trust may also be dissolved in circumstances where the debentures will
not be distributed to you. In those situations, after satisfying any of its
creditors, the trust will be obligated to pay in cash the liquidation amount of
$25 for each preferred security plus accumulated distributions to the date such
payment is made. The trust will be able to make this liquidation distribution
only if the debentures are paid or redeemed by Consumers.
WILL THE PREFERRED SECURITIES BE LISTED ON A STOCK EXCHANGE?
The trust will apply to have the preferred securities listed on the New
York Stock Exchange under the symbol " ." If approved for listing, trading
of the preferred securities on the New York Stock Exchange is expected to
commence within 30 days after the preferred securities are first issued. You
should be aware that the listing of the preferred securities will not
necessarily ensure that a liquid trading market will be available for the
preferred securities.
If the trust distributes the debentures, Consumers will use its best
efforts to list them on the New York Stock Exchange or any other exchange or
other organization on which the preferred securities are then listed.
IN WHAT FORM WILL THE PREFERRED SECURITIES BE ISSUED?
The preferred securities will be represented by one or more global
securities that will be deposited with, or on behalf of, and registered in the
name of, The Depository Trust Company, New York, New York ("DTC") or its
nominee. This means that you will not receive a certificate for your preferred
securities. Instead, you will hold your interest through DTC's book-entry
system. The trust expects that the preferred securities will be ready for
delivery through DTC on or about , 1999.
S-5
<PAGE> 8
RISK FACTORS
Your investment in the preferred securities will involve certain risks. You
should carefully consider the following discussion of risks, and the other
information included or incorporated by reference in this prospectus supplement
and the accompanying base prospectus, before deciding whether an investment in
the preferred securities is suitable for you. The risks described below are not
the only ones facing the trust and Consumers. Additional risks not presently
known to the trust and Consumers or that they currently deem immaterial may also
impair Consumers' business.
RISK FACTORS RELATING TO THE PREFERRED SECURITIES
CONSUMERS' OBLIGATIONS UNDER THE DEBENTURES AND THE GUARANTEE ARE SUBORDINATED
Consumers' obligations under the debentures are unsecured and will rank
junior in priority of payment to Consumers' senior indebtedness. This means that
Consumers may not make any payments of principal or interest on the debentures
if it defaults on a payment on its senior indebtedness. Also, payments on the
debentures may be blocked for up to 180 days in the event of certain non-payment
defaults by Consumers on its senior indebtedness. For more information on the
subordination provisions, see "Certain Terms of the Debentures" in this
prospectus supplement. In the event of the bankruptcy, liquidation or
dissolution of Consumers, its assets would be available to pay obligations under
the debentures only after all payments had been made on its senior indebtedness.
At , 1999, as if on that date Consumers and the trust had
issued and sold the preferred securities and the debentures and applied the
estimated net proceeds thereof as described in this prospectus supplement, the
total amount of Consumers' senior indebtedness would have been approximately
$ . See "Capitalization" and "Use of Proceeds" in this prospectus
supplement.
Consumers' obligations under the guarantee are unsecured and will rank in
priority of payment as follows:
- junior to all of Consumers' senior indebtedness in the same manner as the
debentures; and
- equally with certain guarantees previously issued by Consumers with
respect to certain preferred securities and with all other guarantees of
securities issued by affiliates of Consumers similar to the preferred
securities issued by the trust.
This means that Consumers cannot make any payments on the guarantee if it
defaults on a payment of any of its senior indebtedness. In the event of the
bankruptcy, liquidation or dissolution of Consumers, its assets would be
available to pay obligations under the guarantee only after all payments had
been made on its senior indebtedness.
Neither the debentures nor the guarantee will limit the ability of
Consumers and its subsidiaries to incur additional indebtedness, including
indebtedness that ranks senior in priority of payment to the debentures and the
guarantee.
For more information, see "Certain Terms of the Debentures --
Subordination" in this prospectus supplement and "Description of
Securities -- The Guarantees" in the accompanying base prospectus.
THE GUARANTEE COVERS PAYMENTS ONLY IF THE TRUST HAS CASH AVAILABLE
The ability of the trust to pay distributions on the preferred securities,
the redemption price of the preferred securities and the liquidation amount of
each preferred security is solely dependent upon Consumers making the related
payments on the debentures when due. If Consumers defaults on its obligation to
pay principal (including redemption payments) or interest on the debentures, the
trust will not have sufficient funds to pay distributions, the redemption price
or the liquidation amount of each preferred security. In those circumstances,
you will not be able to rely upon the guarantee for payment of these amounts
because the guarantee covers such payment only when the trust has sufficient
funds on hand but fails to make such payment.
S-6
<PAGE> 9
Instead, you may:
- seek legal redress against Consumers directly or seek other remedies to
collect your proportionate share of payments owed; or
- rely on the property trustee to enforce the trust's rights under the
debentures.
ABILITY TO DEFER DISTRIBUTIONS HAS TAX CONSEQUENCES FOR YOU AND MAY AFFECT THE
TRADING PRICE OF THE PREFERRED SECURITIES
So long as no event of default under the debentures has occurred and is
continuing, Consumers may, on one or more occasions, defer interest payments to
the trust on the debentures as described in this prospectus supplement. See
"Certain Terms of the Debentures -- Option to Extend Interest Payment Period" in
this prospectus supplement. If Consumers defers interest payments on the
debentures, the trust will defer distributions on the preferred securities to
you during any deferral period. If Consumers defers interest payments on the
debentures, you will be required to accrue interest income, as original issue
discount or "OID," in respect of the deferred stated interest allocable to your
share of the preferred securities for United States federal income tax purposes.
As a result, you will include such income in gross income for United States
federal income tax purposes prior to the receipt of any cash distributions. In
addition, you will not receive cash from the trust related to such income if you
dispose of your preferred securities prior to the record date on which
distributions of such amounts are made.
Consumers has no current intention of deferring interest payments on the
debentures. However, if Consumers exercises its right to do so in the future,
the preferred securities may trade at a price that does not fully reflect the
value of accrued but unpaid interest on the debentures. If you sell the
preferred securities during an interest deferral period, you may not receive the
same return on investment as someone else who continues to hold the preferred
securities. In addition, the existence of Consumers' right to defer payments of
interest on the debentures may mean that the market price for the preferred
securities (which represent an undivided beneficial interest in the debentures)
may be more volatile than other securities that do not have this right.
See "Certain United States Federal Income Tax Consequences" in this
prospectus supplement for more information.
PREFERRED SECURITIES MAY BE REDEEMED BEFORE , IF A SPECIAL EVENT
OCCURS
Upon the occurrence of a Special Event before , Consumers may
redeem all but not some of the debentures. The redemption price will equal 100%
of the principal amount of the debentures plus any accrued and unpaid interest
to the redemption date. The trust will use the cash it receives on any such
redemption of the debentures to redeem an equivalent liquidation amount of the
preferred securities and the common securities on a proportionate basis, unless
an event of default under the trust agreement has occurred and is continuing. In
such a case, the preferred securities will be redeemed before any common
securities.
See "Certain Terms of the Preferred Securities -- Special Event Redemption"
in this prospectus supplement for more information.
PREFERRED SECURITIES MAY BE REDEEMED ON OR AFTER , AT CONSUMERS OPTION
At Consumers' option, some or all of the debentures may be redeemed at any
time on or after at a redemption price equal to 100% of the principal
amount to be redeemed plus any accrued and unpaid interest to the redemption
date. See "Certain Terms of the Debentures -- Redemption" in this prospectus
supplement. You should assume that Consumers will exercise its redemption option
when prevailing interest rates at the time are lower than the interest rate on
the debentures, so that the redemption proceeds generally will not be able to be
reinvested in a comparable security at as high a rate. If Consumers exercises
such redemption option, the trust will use the cash it receives on the
redemption of the debentures to redeem an equivalent liquidation amount of the
preferred securities and the common
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securities on a proportionate basis, unless an event of default under the trust
agreement has occurred and is continuing. In such a case, the preferred
securities will be redeemed before any common securities.
See "Certain Terms of the Preferred Securities -- Redemption" in this
prospectus supplement for more information.
DISTRIBUTION OF DEBENTURES MAY HAVE A POSSIBLE ADVERSE EFFECT ON TRADING PRICE
Consumers has the right to dissolve the trust at any time. If Consumers
exercises this right, the trust, after satisfying any creditors it has, will be
liquidated by distribution of the debentures to holders of the preferred
securities and the common securities. Under current United States federal income
tax laws, a distribution of debentures to you on the dissolution of the trust
would not be a taxable event to you. See "Certain United Stated Federal Income
Tax Consequences -- Receipt of Debentures or Cash Upon Liquidation of the Trust"
in this prospectus supplement for more information.
Consumers has no current intention of causing the dissolution of the trust
and the distribution of the debentures. However, there are no restrictions on
its ability to do so at any time. Consumers anticipates that it would consider
exercising this right in the event that expenses associated with maintaining the
trust were substantially greater than currently expected, such as if a Special
Event occurred. Consumers cannot predict the other circumstances under which
this right would be exercised.
Although Consumers will use its best efforts to list the debentures on the
New York Stock Exchange (or any other exchange or organization on which the
preferred securities are then listed) if they are distributed, we cannot assure
you that the debentures will be approved for listing or that a liquid trading
market for the debentures will be available.
Consumers cannot predict the market prices for the debentures that may be
distributed. Accordingly, the debentures that you receive on a distribution, or
the preferred securities you hold pending such a distribution, may trade at a
discount to the price that you paid to purchase the preferred securities.
Because you may receive debentures, you should make an investment decision
with regard to the debentures in addition to the preferred securities. You
should carefully review all the information regarding the debentures contained
in this prospectus supplement and the accompanying base prospectus. See "Certain
United States Federal Income Tax Consequences -- Receipt of Debentures or Cash
Upon Liquidation of the Trust" in this prospectus supplement for more
information.
LIMITED VOTING RIGHTS
You will have limited voting rights. In general, unless an event of default
under the trust agreement has occurred and is continuing, only Consumers may
elect or remove any of the trustees, and in no event may holders of the
preferred securities remove the regular trustees.
See "Consumers Energy Company Trusts" in the accompanying base prospectus
and "Certain Terms of the Preferred Securities -- Voting Rights" in this
prospectus supplement for more information.
RISK FACTORS RELATING TO CONSUMERS
CONSUMERS' COMPETITION AND REGULATORY RESTRUCTURING
Federal and state regulation of electric and natural gas utilities,
interstate pipelines and independent electric power producers has changed
dramatically in the last two decades and could continue to change over the next
several years. In general, such regulatory changes have resulted and will
continue to result in increased competition in Consumers' domestic energy
businesses. Increased opportunities will present themselves as the changes
unfold.
The regulatory changes have been particularly significant in Consumers'
natural gas businesses. As a result of these changes, gas distribution companies
like Consumers transport the natural gas commodity
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which is sold to customers by competitors like gas producers, marketers and
others. Consumers' current gas commodity rates are frozen until March 2001,
under a pilot program which allows Consumers to earn a margin on the commodity
provided it can continue to purchase gas at prices below that allowed in its
rates. The full impact of competition remains to be seen, particularly if and
when Consumers' existing pilot program providing other gas suppliers direct
access to some of its customers is extended to all Consumers' gas customers by
way of legislation or regulatory action. Further changes in federal and state
regulation of the natural gas industry could also adversely affect Consumers'
gas utility business.
Federal regulation of electric sales and transmission of electricity has
also changed significantly since the 1992 enactment of the Energy Policy Act.
This legislation and the Federal Energy Regulatory Commission regulations which
followed have effectively granted independent power producers and electricity
marketers "direct access" to the interstate electric transmission systems owned
by electric utilities. All electric utilities are required to offer transmission
services to new market entrants on a non-discriminatory basis. As a result,
wholesale electricity markets have become much more competitive and wholesale
prices have become more volatile, affecting both purchasers and sellers of power
at wholesale. While this has not adversely affected Consumers to date, and does
present Consumers with the potential opportunity to expand the market reach for
electric power sales by Consumers, the rapidly changing nature of the
marketplace creates the opportunity for competitors to market electricity to
Consumers' wholesale customers.
In addition to the changes in federal regulation of the electric industry,
state regulation of the retail electric utility business is in the process of
undergoing significant changes. For example, the Michigan Public Service
Commission ("MPSC") issued several orders in 1997, 1998 and 1999 restructuring
the electric power industry in Michigan. Under these orders which Consumers has
voluntarily agreed to implement, Consumers will allow certain customers to elect
to purchase electric power directly from other suppliers, such as independent
power producers, power marketers and other utilities. Consumers will continue to
transmit and distribute such power purchases to the end-use retail customers.
Importantly, the orders provide for full recovery by Consumers of its stranded
costs. This electric customer choice program commenced in September 1999 and
will be phased in to cover 750 megawatts of Consumers' retail market by 2001. On
January 1, 2002, all of Consumers' electric customers will have this option. It
is not possible at this time to predict the extent to which Consumers' customers
will elect this option or what the ultimate financial impact will be to
Consumers.
Several bills relative to electric industry restructuring were introduced
in the Michigan House of Representatives and Senate for consideration in the
1999-2000 legislative session. Although Consumers has not specifically supported
any of these bills, Consumers believes legislation is desirable to provide
statutory support for MPSC orders. Consumers is uncertain as to whether
legislation will be enacted and what effect any enacted legislation will have on
Consumers. Similar uncertainty exists with respect to the possibility that
federal legislation restructuring the electric power industry will be enacted. A
variety of bills changing existing federal regulation of the industry and,
potentially, affecting state regulation have been introduced in the Congress in
recent years. None has been enacted.
Adverse federal or state legislation or adverse future rate determinations
by the MPSC could result in Consumers being unable to fully recover its current
investment in electric generating facilities and the cost of purchased power.
RISK OF YEAR 2000 NONCOMPLIANCE
Many existing computer programs were designed and developed without
considering the upcoming change in the century, which could lead to the failure
of computer applications or create erroneous results by or at the year 2000. The
year 2000 issue is a broad business issue, whose impact extends beyond
traditional computer hardware and software to possible failure of automated
plant systems and instrumentation as well as to third party businesses. Also,
there can be no guarantee that suppliers, large customers and other third
parties of importance to Consumers' business operations will successfully
reprogram or replace, and test, all of their own computer hardware, software and
process control systems
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to ensure such systems are year 2000 compliant. Failure by Consumers, any of the
entities listed above, or other institutions such as governments to become year
2000 compliant on a timely basis or to recover from system interruptions on a
timely basis could have a material adverse effect on Consumers' financial
position and results of operations.
RESULTS COULD DIFFER MATERIALLY FROM CERTAIN FORWARD-LOOKING STATEMENTS
On one or more occasions, Consumers may make statements regarding
Consumers' assumptions, projections, expectations, intentions or beliefs about
future events. These statements are intended as forward-looking statements under
the Private Securities Litigation Reform Act of 1995. Consumers cautions that
these statements may and often do differ materially from actual results. Some of
the factors that could cause actual results to differ materially from those
expressed or implied in any forward-looking statements are:
- ability to achieve operating synergies and revenue enhancements;
- national, regional and local economic, competitive and regulatory
conditions and developments;
- capital and financial market conditions, including interest rates;
- weather conditions;
- adverse legislative, regulatory or legal decisions, including
environmental laws and regulations;
- the pace of deregulation of the natural gas and electric industries;
- energy markets, including the timing and extent of changes in commodity
prices for oil, coal, natural gas, natural gas liquids, electricity and
certain related products;
- the timing and success of business development efforts;
- nuclear power performance and regulation;
- technological developments in energy production, delivery and usage; and
- other uncertainties, all of which are difficult to predict and many of
which are beyond Consumers' control.
RECENT DEVELOPMENTS
The MPSC issued an order on August 17, 1999 finding that it has
jurisdiction to approve rates, terms, and conditions for retail wheeling of
electricity (also known as "electric customer choice") if a utility voluntarily
chooses to offer that service. The MPSC issued this order after Consumers and
other parties submitted the briefs requested by the MPSC concerning the effects
of a June 29, 1999 Michigan Supreme Court decision. That Court found that the
MPSC does not have the statutory authority to order a mandatory retail wheeling
program. The August 17th order also requested that Consumers file a statement as
to whether it intended to continue with its electric customer choice program. On
September 1, 1999, Consumers filed a statement reaffirming its decision to
continue carrying out the electric customer choice program as previously
approved by the MPSC. The Association of Businesses Advocating Tariff Equity
("ABATE") and the Michigan Attorney General have each appealed the August 17th
order to the Michigan Court of Appeals. The issues raised by the MPSC's August
17th order could be resolved by the regulatory process, the appellate court or
by legislation codifying the retail wheeling and related stranded cost recovery
issues with the exact resolution being uncertain at this time.
In March 1999, Consumers signed a long-term electric power sales agreement
to resell to PECO Energy Company until September 2007 its capacity and energy
purchases under the long-term Power Purchase Agreement between Consumers and the
Midland Cogeneration Venture Limited Partnership (the "MCV PPA"). In March 1999,
Consumers also filed an application with the MPSC for accounting and rate-making
approvals related to the PECO agreement. If used as an offset to electric
customers
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stranded cost responsibility, Consumers estimates that there could be a
reduction of as much as $58 million (on a net present value basis) of stranded
cost related to the MCV PPA. In an order issued in April 1999, the MPSC
conditionally approved the requests for accounting and rate-making treatment
"but only to the extent that the resulting rates are lower than or equal to the
amount that they would be absent the PECO agreement." In response to Consumers'
and other parties' requests for clarification and rehearing, in an August 31,
1999 opinion, the MPSC partially granted the relief Consumers requested on
rehearing and attached certain additional conditions to its approval. Those
conditions relate to Consumers' continued decision to carry out the electric
customer choice program (which Consumers has affirmed as discussed above) and a
determination to revise Consumers' capacity solicitation process (which
Consumers has filed but is awaiting an MPSC decision). The August 31st opinion
is a companion order to a power supply cost reconciliation order issued on the
same date in another case. This order affects the level of frozen power supply
costs recoverable in rates during future years when the transaction with PECO
would be taking place. On September 30, 1999 Consumers filed motions for
clarification of the orders relating to the PECO agreement.
On November 12, 1997 ABATE filed a complaint with the MPSC that alleged
Consumers' electric earnings are more than its authorized rate of return and
sought an immediate reduction in Consumers' electric rates. The MPSC staff
investigated the complaint and concluded in an April 1998 report that no formal
rate proceeding was warranted at that time. The MPSC has now scheduled this
matter for further proceedings that should lead to more definitive MPSC
resolution in the first quarter of 2000, absent prior agreement among the
parties. In those proceedings, ABATE and intervenors bear the burden of
convincing the MPSC to reduce electric rates, which will otherwise remain
unchanged. In its testimony filed in this case, ABATE claimed that Consumers'
had approximately $189 million in excess revenues for 1998. In its testimony
MPSC staff stated that 1998 book results show excess revenues of $118 million
when actual results were compared to the previously authorized electric return
on equity, but recognized that no definitive conclusion could be reached from
such a simplistic computation about the proper level of future retail electric
rates. The MPSC staff presentation anticipated Consumers would file testimony
and exhibits using traditional ratemaking adjustments and normalizations which
would negate ABATE's claim of excessive earnings. Consumers has filed such
testimony showing that after such normalizations, there is a revenue deficiency
of approximately $3 million. The MPSC staff offered several alternatives for the
MPSC to consider. They involved several different refunds or reductions which
the MPSC could consider separately or in combination, but which, if made would
not result in a permanent future reduction in electric rates in the amount being
sought by ABATE. Consumers believes that ABATE, through its testimony, has not
met its burden of proving that a reduction in rates is appropriate. It also
believes that ABATE's request for refunds from 1995 to present is inappropriate
or unlawful because no such retroactive rate adjustment has ever been granted by
the MPSC in the past. On October 13, 1999, the MPSC granted Consumers' request
to deny questioning in this case concerning its power supply costs, and stated
that such matters were sufficiently addressed and determined in an earlier MPSC
order whereby such costs were frozen.
The MPSC issued an order on September 28, 1999 relating to the 1997-98
heating year finding that Consumers did not demonstrate that its decision to
increase spot market and short-term gas purchases beyond the levels filed in its
gas cost recovery plan was reasonable and prudent, and disallowed recovery of
approximately $6.5 million of gas costs. The MPSC concluded that Consumers must
refund approximately $11.6 million (including interest) to its customers during
the December 1999 billing cycle. Consumers established a reserve for the refund
in the third quarter of 1999. Consumers has not yet determined whether to seek a
rehearing with the MPSC or appeal the MPSC's order with the Michigan Court of
Appeals.
Consumers' customers reached a record peak demand for electricity of 7,460
megawatts on July 30, 1999, surpassing the previous record of 7,315 MW by 2%.
Consumers satisfied this peak demand by utilizing its owned generating capacity
and long-term purchase contracts, and by taking actions such as exercising
rights under existing short-term option contracts, interrupting supply under its
interruptible contracts, exercising customer self-generation and load-shifting
options, and making public requests to its
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customers to conserve energy. By carrying out these actions, none of Consumers'
customers experienced an involuntary reduction of firm load due to supply
shortages.
In October 1999, Consumers announced that it is making progress in
discussions with its major commercial and industrial customers, which, if
successful, would result in agreement on the need for, and substance of,
electric restructuring legislation in Michigan and have the effect of resolving
Consumers' rate proceedings pending before the MPSC. While there are no
assurances that an agreement or legislation will result, Consumers is optimistic
that a positive outcome of the discussions can be achieved.
The Federal Clean Air Act, as amended, limits emissions of sulfur dioxide
and nitrogen oxides and requires emissions and air quality monitoring. In 1997
the EPA revised the national air quality standards to impose further limitations
on nitrogen oxide and small particulate-related emissions. In May 1999, a United
States Court of Appeals ruled however, that the EPA's revision of the standards
was an unconstitutional delegation of legislative power. As a result, the
standards will not be implemented under the 1997 rule. The EPA has requested a
rehearing of this ruling.
In September 1998, based in part upon the 1997 standards, the EPA
Administrator issued final regulations requiring the State of Michigan to
further limit nitrogen oxide emissions. The State of Michigan filed a lawsuit
objecting to the extent of the required emission reductions and requesting an
extension of the submission date. In May 1999, the United States Court of
Appeals for the District of Columbia granted an indefinite stay of the
submission date for the State of Michigan's implementation plan. Based upon the
recent court rulings, it is unlikely that the State of Michigan will establish
Consumers' nitrogen oxide emissions reduction target until late 1999. Until this
target is established, the estimated cost of compliance discussed below is
subject to revision.
The preliminary estimate of capital expenditures to reduce nitrogen
oxide-related emissions to the level proposed by the State of Michigan for
Consumers' fossil-fueled generating units ranges from approximately $150 million
to $290 million, in 1999 dollars. If Consumers had to meet the EPA's mandated
requirements it is estimated that it will cost Consumers between approximately
$290 million and $500 million, in 1999 dollars. In both these cases the lower
estimate represents the capital expenditure level that would satisfactorily meet
the proposed emissions limits but would result in higher operating expense. The
higher estimate in the range includes expenditures that result in lower
operating costs while complying with the proposed emissions limit. Consumers
anticipates that these capital expenditures will be incurred between 1999 and
2004, or between 1999 and 2003 if the EPA's limits are imposed. Consumers may
need an equivalent amount of capital expenditures to comply with the new small
particulate standards some time after 2004 if those standards become effective.
CONSUMERS ENERGY COMPANY FINANCING III
GENERAL
The trust is a statutory business trust created under Delaware law pursuant
to a declaration of trust and a certificate of trust, as filed with the
Secretary of State of the State of Delaware on October 12, 1999. The declaration
of trust will be amended and restated in its entirety, referred to as the
"declaration" or the "trust agreement," substantially in the form filed with the
SEC by Consumers and incorporated by reference into the registration statement
of which this prospectus supplement and the accompanying base prospectus form a
part. The declaration will be qualified as an indenture under the Trust
Indenture Act. Upon issuance of the preferred securities, the purchasers thereof
will own all of the preferred securities. Consumers will directly or indirectly
acquire common securities in a total liquidation amount equal to at least 3% of
the total capital of the trust and will own all of the issued and outstanding
common securities. The trust exists for the exclusive purposes of:
- issuing the preferred securities and the common securities representing
undivided beneficial interests in the assets of the trust;
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- investing the gross proceeds of the preferred securities and the common
securities in the debentures; and
- engaging in only those other activities necessary, appropriate,
convenient or incidental thereto.
The trust has a term of approximately 55 years, but may be terminated
earlier as provided in the declaration.
Pursuant to the declaration, the number of trustees initially will be four.
Two of the trustees are employees or officers of Consumers. Bank of New York
will serve as property trustee under the declaration and as indenture trustee
for the purposes of the Trust Indenture Act. Bank of New York (Delaware) will
act as the Delaware trustee. The property trustee and the Delaware trustee may
at any time be removed or replaced by the holder of the common securities. For
purposes of compliance with the provisions of the Trust Indenture Act, Bank of
New York will also act as indenture trustee under the guarantee. See "The
Guarantees" in the base prospectus accompanying this prospectus supplement.
The property trustee will hold title to the debentures for the benefit of
the trust and the holders of the preferred securities and common securities. So
long as the debentures are held by the trust, the property trustee will have the
power to exercise all rights, powers, and privileges of a holder of debentures
under the indenture. In addition, the property trustee will maintain exclusive
control of a segregated non-interest bearing bank account to hold all payments
made in respect of the debentures for the benefit of the holders of the
preferred securities and common securities. The property trustee will make
payments of distributions and payments on liquidation, redemption and otherwise
to the holders of the preferred securities and common securities out of funds
from the property account. The Bank of New York will hold the guarantee for the
benefit of the holders of the preferred securities. Consumers, as the direct or
indirect holder of all the common securities, will have the right to appoint,
remove or replace any trustee (subject to the limitations set forth in the
declaration) and to increase or decrease the number of trustees. Consumers will
pay all fees, expenses, debts and obligations (other than with respect to the
preferred securities and common securities) related to the trust and the
offering of the preferred securities.
The rights of the holders of the preferred securities, including economic
rights, rights to information and voting rights are set forth in the
declaration, the Delaware Business Trust Act, the indenture and the Trust
Indenture Act. See "Certain Terms of the Preferred Securities" in this
prospectus supplement.
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CAPITALIZATION
The following table sets forth the consolidated short-term debt and
capitalization of Consumers as of June 30, 1999, and as adjusted to give effect
to the consummation of the offering of the preferred securities and the
application of the proceeds thereof. See "Use of Proceeds" in this prospectus
supplement. The following data should be read in conjunction with the
consolidated financial statements and notes thereto of Consumers incorporated by
reference herein as described in "Where You Can Find More Information" in the
base prospectus accompanying this prospectus supplement.
<TABLE>
<CAPTION>
AT JUNE 30, 1999
--------------------
ACTUAL AS ADJUSTED
------ -----------
IN MILLIONS
(UNAUDITED)
<S> <C> <C>
Short-term debt (includes notes payable and current portion
of long-term debt and capital leases)..................... $ 412 $ 212
====== ======
Non-current portion of capital leases....................... $ 88 $ 88
Long-term debt (excluding current maturities)............... 2,008 2,008
Company-obligated mandatorily redeemable preferred
securities of:
Consumers Power Company Financing I....................... 100 100
Consumers Energy Company Financing II..................... 120 120
Consumers Energy Company Financing III.................... -- 200
Preferred Stock with no mandatory redemption................ 44 44
Common stockholder's equity................................. 1,981 1,981
------ ------
Total stockholder's equity........................ 2,025 2,025
------ ------
Total Capitalization.............................. $4,341 $4,541
====== ======
</TABLE>
ACCOUNTING TREATMENT
The financial statements of the trust will be reflected in Consumers'
consolidated financial statements, with the preferred securities shown as
"Company-obligated mandatorily redeemable preferred securities of subsidiaries
holding solely company subordinated notes." In a footnote to Consumers' audited
consolidated financial statements, there will be a statement that the trust is
wholly-owned by Consumers and that the sole asset of the trust is the debentures
(indicating the principal amount, interest rate and maturity date thereof).
USE OF PROCEEDS
The proceeds from the sale of the preferred securities will be invested by
the trust in debentures of Consumers issued pursuant to the indenture described
herein. Consumers intends to use all of the net proceeds from the debentures to
repay short-term indebtedness. This short-term indebtedness was incurred on
April 1, 1999 for the redemption of Consumers' $2.08 Preferred Stock in an
aggregate amount of $200 million. As of October 7, 1999, the weighted average
interest rate of such short-term indebtedness was 6.04%.
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SELECTED FINANCIAL DATA OF CONSUMERS ENERGY COMPANY
The following table presents selected financial data of Consumers for the
periods indicated and is qualified in its entirety by the information appearing
elsewhere in this prospectus supplement and by the information and financial
statements incorporated in this prospectus supplement by reference.
<TABLE>
<CAPTION>
TWELVE MONTHS
ENDED YEAR ENDED DECEMBER 31
JUNE 30, --------------------------------------------
1999 1998 1997 1996 1995 1994
------------- ------ ------ ------ ------ ------
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C>
Operating Revenue (in millions)........ $3,832 $3,709 $3,769 $3,770 $3,511 $3,356
Net Income (Loss) (in millions)........ $ 360 $ 349(b) $ 321 $ 296 $ 255 $ 226
Net Income (Loss) after Preferred
Dividends and Distributions
(in millions)........................ $ 327 $ 312(b) $ 284 $ 260 $ 227 $ 202
Ratio of Earnings to:
Fixed Charges (a)...................... 3.72 3.16(c) 3.31 3.27 2.82 2.81
Fixed Charges & Preferred Dividends.... 3.06 2.52(d) 2.61 2.54 2.30 2.32
</TABLE>
- ---------------
(a) For purposes of computing the ratio, earnings represent net income before
income taxes, net interest charges and the estimated interest portions of
lease rentals, plus distributed income of equity investees less earnings
from minority interests of equity investees. Earnings for the ratio of
earnings to fixed charges and preferred stock dividends also includes the
amount required to pay distributions on preferred securities and the amount
of pretax earnings required to pay the dividends on outstanding preferred
stock.
(b) Includes a pre-tax $66 million increase due to a one-time change in method
of accounting for property taxes.
(c) Excludes a cumulative effect of change in accounting after-tax gain of $43
million; if included, ratio would be 3.52.
(d) Excludes a cumulative effect of change in accounting after-tax gain of $43
million: if included, ratio would be 2.81.
DESCRIPTION OF SECURITIES
This prospectus supplement and the accompanying base prospectus contain the
material terms and conditions for these securities, however, the summaries in
this prospectus supplement are not meant to be a complete description of the
preferred securities, the guarantee and the debentures. For more information,
refer to the trust agreement, the indenture and the guarantee. Forms of these
documents are filed as exhibits to the registration statement of which this
prospectus supplement and the accompanying base prospectus are a part. All terms
used in this prospectus supplement and the accompanying base prospectus that are
not defined in this prospectus supplement and the accompanying base prospectus
have the meanings given to them in the trust agreement, the indenture and the
guarantee.
CERTAIN TERMS OF THE PREFERRED SECURITIES
Distributions
The preferred securities represent undivided beneficial interests in the
assets of the trust. The only assets of the trust will be the debentures.
Distributions on the preferred securities are cumulative and will accumulate
from at the annual rate of % of the $25 liquidation amount
of each preferred security. Distributions will be payable quarterly in arrears
on , , and of each
year, beginning , 1999. Distributions not paid when
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due will themselves accumulate distributions at the annual rate of % (to
the extent permitted by law). When we refer to any payment of distributions, any
such additional distributions are included. The amount of distributions payable
for any full quarterly period will be computed on the basis of a 360-day year of
twelve 30-day months. The amount of distributions payable for any partial period
will be computed on the basis of the actual number of days elapsed in such
90-day quarterly period.
If distributions are payable on a date that is not a business day (as
defined below), payment will be made on the next business day (and without any
interest or other payment in respect of such delay). However, if the next
business day is in the next calendar year, payment of distributions will be made
on the preceding business day. A "business day" means any day other than a
Saturday or a Sunday or a day on which banking institutions in New York, New
York are authorized or required by law or executive order to close.
Deferral of Distributions
So long as no event of default has occurred and is continuing under the
debentures, Consumers may, on one or more occasions, defer interest payments on
the debentures to the trust for up to 20 consecutive quarterly periods. A
deferral of interest payments cannot extend beyond the stated maturity date of
the debentures on . If Consumers defers interest payments on the
debentures, the trust will also defer quarterly distributions on the preferred
securities to you. During a deferral period, the amount of distributions due to
you would continue to accumulate and such deferred distributions will themselves
accumulate distributions at the rate stated above (to the extent permitted by
law).
Once Consumers makes all deferred interest payments on the debentures, with
accrued interest, it may again defer interest payments on the debentures if no
event of default under the debentures has then occurred and is continuing.
Consumers has no current intention of deferring interest payments on the
debentures. If Consumers defers interest payments on the debentures, Consumers
will be subject to certain restrictions relating to the payment of dividends on
or redemption of its capital stock and payments on its debt securities that rank
equal with or junior to the debentures. See "Certain Terms of the
Debentures -- Option to Extend Interest Payment Period" in this prospectus
supplement.
Payment of Distributions
Distributions on the preferred securities will be payable to holders named
on the securities register of the trust on the relevant record date. As long as
the preferred securities are represented by a global security, the record date
for the payment of distributions will be one business day before the relevant
payment date. If the preferred securities are ever issued in certificated form,
the record date for the payment of distributions will be the day
of the last month of each quarterly distribution period, even if that day is not
a business day.
As long as the preferred securities are represented by a global security,
payments on the preferred securities will be made in immediately available funds
to DTC, the depositary for the preferred securities. If the preferred securities
are ever issued in certificated form, payment of distributions on the preferred
securities will be made by check mailed on or before the due date to the holders
thereof on the relevant record date.
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Redemption
Consumers will repay the debentures at maturity on .
Consumers may, before their maturity, redeem:
- all or some of the debentures on one or more occasions any time on or
after ; and
- all but not some of the debentures before , if certain
changes in tax or investment company law occur or will occur within 90
days (each of which is a "Special Event" more fully described below).
When Consumers repays some or all of the debentures, either at maturity on
or upon early redemption, the trust will use the cash it receives
upon the redemption of the debentures to redeem a like liquidation amount of the
preferred securities and, unless an event of default under the trust agreement
has occurred and is continuing, the common securities. The preferred securities
and common securities (if applicable) will be redeemed at a price equal to their
liquidation amount of $25 per security plus accumulated distributions, if any.
The redemption price for the debentures is 100% of their principal amount plus
accrued and unpaid interest to the date of redemption. See "Certain Terms of the
Debentures -- Redemption" in this prospectus supplement.
If less than all the preferred securities and common securities are to be
redeemed in situations where common securities may be redeemed consistent with
the provisions described under "-- Subordination of Common Securities" in this
prospectus supplement, then the total liquidation amount of preferred securities
and common securities to be redeemed will be allocated proportionately based on
the liquidation amount of the preferred securities and the common securities.
Special Event Redemption
Upon the occurrence of a Tax Event or an Investment Company Event as
defined below, Consumers may redeem all but not some of the debentures, within
90 days following the occurrence of the Special Event.
"Tax Event" means that the trust has received an opinion of counsel
experienced in such matters to the effect that, as a result of any:
- amendment to, or change (including any announced proposed change) in, the
laws or regulations of the United States or any political subdivision or
taxing authority affecting taxation; or
- official or administrative pronouncement or action, or judicial decision,
interpreting or applying such laws or regulations
where such change or amendment becomes effective, or such pronouncement, action
or decision is announced or occurs, on or after the date of this prospectus
supplement, there is more than an insubstantial risk that:
- the trust is or, within 90 days of the date of such opinion, would be
subject to United States federal income tax with respect to interest
accrued or received on the debentures;
- interest payable by Consumers on the debentures is not or, within 90 days
of the date of such opinion, would not be deductible by Consumers in
whole or in part for United States federal income tax purposes; or
- the trust is or, within 90 days of the date of such opinion, would be
subject to more than a minimal amount of other taxes, duties, assessments
or other governmental charges.
"Investment Company Event" means that the trust has received an opinion of
counsel experienced in such matters to the effect that, as a result of the
occurrence of a change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority, there is more than an insubstantial risk that
the trust is or will be considered an
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"investment company" under the Investment Company Act of 1940 that is required
to be registered under this law, which change becomes effective on or after the
date of this prospectus supplement.
Redemption Procedures
The trust will give you at least 30 days, but not more than 60 days,
written notice before any redemption of preferred securities. To the extent
funds are available for payment, the trust will irrevocably deposit with DTC
sufficient funds to pay the redemption amount for the preferred securities being
redeemed. The trust will also give DTC irrevocable instructions and authority to
pay the redemption amount in immediately available funds to the beneficial
owners of the global securities representing the preferred securities.
Distributions to be paid on or before the redemption date for any preferred
securities called for redemption will be payable to the holders on the record
dates for the related dates of distribution.
Once notice of redemption is given and funds are irrevocably deposited,
distributions on the preferred securities will cease to accumulate immediately
prior to the close of business on the redemption date and all rights of the
holders of the preferred securities called for redemption will cease, except for
the right to receive the redemption amount (but without interest on such
redemption amount).
If any redemption date is not a business day, then the redemption amount
will be payable on the next business day (and without any interest or other
payment in respect of any such delay).
If payment of the redemption amount for any preferred securities called for
redemption is improperly withheld or refused and not paid either by the trust or
by Consumers, distributions on the preferred securities will continue to
accumulate at the applicable rate from the original redemption date scheduled to
the actual date of payment. In this case, the actual payment date will be
considered the redemption date for purposes of calculating the redemption
amount.
In compliance with applicable law (including the United States federal
securities laws), Consumers or its affiliates may, at any time, purchase
outstanding preferred securities by tender, in the open market, or by private
agreement.
Events of Default
An event of default under the indenture constitutes an event of default
under the declaration with respect to the preferred securities. However,
provided that pursuant to the declaration, the holder of the common securities
will be deemed to have waived any declaration event of default with respect to
the common securities until all declaration events of default with respect to
the preferred securities have been cured, waived or otherwise eliminated. Until
any declaration event of default with respect to the preferred securities has
been cured, waived or otherwise eliminated, the property trustee will be deemed
to be acting solely on behalf of the holders of the preferred securities and
only the holders of the preferred securities will have the right to direct the
property trustee with respect to certain matters under the declaration, and
therefore the indenture.
Upon the occurrence of a declaration event of default, the indenture
trustee or the property trustee will have the right under the indenture to
declare the principal of and interest on the debentures to be immediately due
and payable.
Voting Rights
Subject to the requirement of the property trustee obtaining a tax opinion
in certain circumstances set forth in the last sentence of this paragraph, the
holders of a majority in total liquidation amount of the preferred securities
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the property trustee, or direct the exercise of any
trust or power conferred upon
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the property trustee under the declaration, including the right to direct the
property trustee, as holder of the debentures, to
- exercise the remedies available under the indenture with respect to the
debentures,
- waive any past indenture event of default that is waivable under the
indenture, or
- exercise any right to rescind or annul a declaration that the principal
of all the debentures shall be due and payable, or consent to any
amendment, modification or termination of the indenture or the
debentures, where such consent should be required.
However, where a consent or action under the indenture would require the
consent or act of the holders of greater than a majority in principal amount of
debentures affected thereby, the property trustee may only give such consent or
take such action at the written direction of the holders of at least the
proportion in liquidation amount of the preferred securities which the relevant
super-majority represents of the total principal amount of the debentures
outstanding. The property trustee shall notify all holders of the preferred
securities of any notice of default received from the indenture trustee with
respect to the debentures. Except with respect to directing the time, method and
place of conducting a proceeding for a remedy, the property trustee shall not
take any of the actions described in the bullet points above unless the property
trustee has obtained an opinion of tax counsel to the effect that, as a result
of such action, the trust will not be classified as an association taxable as a
corporation for United States federal income tax purposes.
In the event the consent of the property trustee, as the holder of the
debentures, is required under the indenture with respect to any amendment,
modification or termination of the indenture or the debentures, the property
trustee will request the direction of the holders of the preferred securities
with respect to such amendment, modification or termination. The property
trustee will then vote with respect to such amendment, modification or
termination as directed by a majority in liquidation amount of the preferred
securities voting together as a single class. However, where a consent under the
indenture would require the consent of a super-majority, the property trustee
may only give its consent at the direction of the holders of at least the
proportion in liquidation amount of the preferred securities which the relevant
super-majority represents of the total principal amount of the debentures
outstanding. The property trustee shall not take any such action in accordance
with the directions of the holders of the preferred securities unless the
property trustee has obtained an opinion of tax counsel to the effect that the
trust will not be classified as an association taxable as a corporation for
United States federal income tax purposes on account of such action.
Subordination of Common Securities
Payment of distributions on, and the redemption and liquidation amount of,
the preferred securities and the common securities will be made proportionately
based on the total liquidation amounts of the preferred securities and the
common securities. However, if an event of default under the trust agreement has
occurred and is continuing, no payments may be made on the common securities
unless all unpaid amounts on the preferred securities have been provided for or
paid in full.
If an event of default under the trust agreement has occurred and is
continuing, the common securities holder will be deemed to have waived any right
to take any action with respect to the event of default until the event of
default has been cured, waived or eliminated. Until any event of default has
been cured, waived or eliminated, the property trustee will act solely on behalf
of the holders of the preferred securities, and these holders will have the
right to direct the property trustee to act on their behalf.
Book-Entry-Only Issuance -- DTC
The preferred securities will be represented by one or more global
securities that will be deposited with, or on behalf of, and registered in the
name of, DTC or its nominee. This means that the trust will not issue
certificates to you for the preferred securities. Each global security will be
issued to DTC which will keep a computerized record of its participants (for
example, a broker) whose clients have purchased
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the preferred securities. Each participant will then keep a record of its
clients. Unless a global security is exchanged in whole or in part for a
certificated security, a global security may not be transferred. However, DTC,
its nominees and their successors may transfer a global security as a whole to
one another.
Beneficial interests in a global security will be shown on, and transfers
of the global security will be made only through, records maintained by DTC and
its participants. DTC holds securities that its participants ("direct
participants") deposit with DTC. DTC also records the settlement among direct
participants of securities transactions, such as transfers and pledges, in
deposited securities through computerized records for direct participant's
accounts. This eliminates the need to exchange certificates. Direct participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations.
DTC's book-entry system is also used by other organizations such as
securities brokers and dealers, banks and trust companies that work through a
direct participant. The rules that apply to DTC and its participants are on file
with the Securities and Exchange Commission.
DTC is owned by a number of its direct participants and by the New York
Stock Exchange, the American Stock Exchange and the National Association of
Securities Dealers.
DTC has advised Consumers and the trust that DTC is a limited-purpose trust
company organized under New York Banking Law, a "banking organization" within
the meaning of the New York Banking Law, a member of the Federal Reserve System,
a "clearing corporation" within the meaning of the New York Uniform Commercial
Code and a "clearing agency" registered pursuant to the provisions of Section
17A of the Securities Exchange Act of 1934, as amended.
Purchases under the DTC System -- When you purchase preferred securities
through the DTC system, the purchases must be made by or through a direct
participant, who will receive credit for the preferred securities on DTC's
records. Because you actually own the preferred security, you are the beneficial
owner. Your ownership interest will be recorded only on the direct (or indirect)
participants' records. DTC has no knowledge of your individual ownership of the
preferred securities. DTC's records show only the identity of the direct
participants and the amount of the preferred securities held by or through them.
You will not receive a written confirmation of your purchase or sale or any
periodic account statement directly from DTC. You will receive these from your
direct (or indirect) participant. As a result, the direct (or indirect)
participants are responsible for keeping accurate account of the holdings of
their customers, like you.
Payments under the DTC System -- The property trustee will wire payments on
the preferred securities to DTC's nominee. Consumers, the trust and the property
trustee will treat DTC's nominee as the owner and holder of each global security
representing preferred securities for all purposes. Accordingly, Consumers, the
trust and the property trustee will have no direct responsibility or liability
to pay amounts due on the global security to you or any other beneficial owners
in the global security.
Any redemption notices will be sent by Consumers and the Trust directly to
DTC, who will in turn inform the direct participants, who will then contact you
as a beneficial owner. If less than all of the preferred securities are being
redeemed, DTC's practice is to choose by lot the amount of the interest of each
direct participant to be redeemed. The direct participant will then use an
appropriate method to allocate the redemption among its beneficial owners, like
you.
It is DTC's current practice, upon receipt of any payment of distributions
or liquidation or redemption amount, to credit direct participants' accounts on
the payment date based on their holdings of beneficial interests in the global
securities as shown on DTC's records. In addition, it is DTC's current practice
to assign any consenting or voting rights to direct participants whose accounts
are credited with preferred securities on a record date, by using an omnibus
proxy. Payments by participants to owners of beneficial interests in the global
securities, and voting by participants, will be based on the customary practices
between the participants and owners of beneficial interests, as is the case with
securities held for the account of customers registered in "street name."
However, payments will be the responsibility of the participants and not of DTC,
the property trustee, Consumers or the trust.
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Year 2000 Issues -- DTC management is aware that some computer
applications, systems, and the like for processing data that are dependent upon
calendar dates, including dates before, on, and after January 1, 2000, may
encounter year 2000 problems. DTC has informed its participants and other
members of the financial community that it has developed and is implementing a
program so that its systems, as the same relate to the timely payment of
distributions (including principal and income payments) to securityholders,
book-entry deliveries, and settlement of trades within DTC, continue to function
appropriately. This program includes a technical assessment and a remediation
plan, each of which is complete. Additionally, DTC's plan includes a testing
phase, which is expected to be completed within appropriate time frames.
DTC's ability to perform properly its services is also dependent upon other
parties, including issuers and their agents, as well as DTC's direct and
indirect participants and third party vendors from whom DTC licenses software
and hardware, and third party vendors on whom DTC relies for information or the
provision of services, including telecommunication and electrical utility
service providers, among others. DTC has informed the financial community that
it is contacting (and will continue to contact) third party vendors from whom
DTC acquires services to:
(1) impress upon them the importance of such services being year 2000
compliant; and
(2) determine the extent of their efforts for year 2000 remediation
(and, as appropriate, testing) of their services. In addition, DTC is in
the process of developing such contingency plans as it deems appropriate.
According to DTC, the foregoing information with respect to DTC has been
provided to the financial community for informational purposes only and is
not intended to serve as a representation, warranty or contract
modification of any kind.
Exchange of Global Securities -- Preferred securities represented by a
global security will be exchangeable for certificated securities with the same
terms in authorized denominations only if:
- DTC is unwilling, unable or ineligible to continue as depositary and a
successor depositary is not appointed by the trust within 90 days; or
- Consumers decides to discontinue use of the system of book-entry transfer
through DTC (or any successor depositary).
If the book-entry-only system is discontinued, the property trustee will
keep the registration books for the preferred securities at its corporate office
and follow the practices and procedures discussed below.
Certificated Securities -- Registration and Transfer
If the trust issues certificated securities, they will be registered in the
name of the securityholder. The preferred securities may be transferred or
exchanged, based on administrative procedures in the trust agreement, without
the payment of any service charge (other than any tax or other governmental
charge) by contacting the property trustee, Bank of New York, 101 Barclay
Street, 21W, New York, New York 10286, attention: Corporate Trust and Agency
Services -- Corporate Market Services.
CERTAIN TERMS OF THE DEBENTURES
The debentures will be issued as a series pursuant to a supplemental
indenture or a resolution of Consumers' board of directors or a committee
thereof as provided for in the indenture.
Subordination
The debentures are unsecured and are junior in right of payment to all of
Consumers' "senior indebtedness". Consumers may not make any payments of
principal (including redemption payments) or interest on the debentures if it
defaults on a payment on its senior indebtedness. Also, payments on the
debentures may be blocked for up to 180 days in the event of certain non-payment
defaults by Consumers on its senior indebtedness. See "Subordinated Debentures"
in the accompanying base prospectus for more detailed information.
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On any distribution of assets of Consumers to creditors upon any
liquidation, dissolution, winding-up, reorganization, assignment for the benefit
of creditors, marshalling of assets or liabilities or any bankruptcy, insolvency
or similar proceedings, all principal, premium, if any, and interest due or to
become due on all senior indebtedness must be paid in full before the holders of
the debentures are entitled to receive or retain any payment.
Neither the debentures nor the guarantee will limit the ability of
Consumers and its subsidiaries to incur additional indebtedness, including
indebtedness that ranks senior in priority of payment to the debentures and the
guarantee. At June 30, 1999, as if on that date Consumers and the trust had
issued and sold the preferred securities and the debentures and applied the
estimated net proceeds thereof as described in this prospectus supplement, the
total amount of Consumers' senior indebtedness would have been approximately
$ . See "Capitalization" and "Use of Proceeds" in this prospectus
supplement.
Interest Rate and Maturity
The debentures will mature on and will bear interest, accruing
from , at the annual rate of % of their principal
amount, payable quarterly in arrears on , , and
of each year, beginning . Interest payments not paid when
due will themselves accrue additional interest at the annual rate of % (to the
extent permitted by law). When we refer to any payment of interest, interest
includes such additional interest and any additional amounts, as defined below.
The interest payment provisions for the debentures correspond to the
distribution provisions of the preferred securities. The debentures do not have
a sinking fund. This means that Consumers is not required to make any principal
payments prior to maturity.
Additional Sums
If the trust is required to pay any taxes, duties, assessments or
governmental charges of whatever nature (other than withholding taxes) imposed
by the United States, or any other taxing authority, then Consumers will be
required to pay additional amounts on the debentures so that after the trust
pays any taxes, the trust will be in the same position it would have been if it
did not have to pay such taxes.
Redemption
Consumers may redeem, before their maturity:
- all or some of the debentures on one or more occasions any time on or
after ; or
- all but not some of the debentures before , upon the
occurrence of a Special Event.
If Consumers decides to redeem debentures in these circumstances, the
redemption price of each debenture redeemed will be equal to 100% of the
principal amount of such debenture plus accrued and unpaid interest on such
debenture to the date of redemption.
Distribution of Debentures
If the property trustee distributes the debentures to the preferred
securities holders and common securities holder upon the dissolution and
liquidation of the trust, the debentures will be issued in denominations of $25
principal amount and integral multiples thereof. Consumers anticipates that the
debentures would be distributed in the form of one or more global securities and
DTC, or any successor depositary for the preferred securities, would act as
depositary for the debentures. The depositary arrangements for the debentures
would be substantially similar to those in effect for the preferred securities.
For a description of DTC and the terms of the depositary arrangements
relating to payments, transfers, voting rights, redemption, other notices and
other matters, see "Certain Terms of the Preferred Securities -- Book-Entry-Only
Issuance -- DTC" in this prospectus supplement.
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Option to Extend Interest Payment Period
Consumers may, on one or more occasions, defer interest payments on the
debentures for up to 20 consecutive quarterly periods, if no event of default
has occurred and is continuing with respect to the debentures. A deferral of
interest payments cannot extend beyond the stated maturity date of the
debentures. No interest will be due and payable on the debentures until the end
of the deferral period unless the debentures are redeemed prior to such time.
Consumers may pay at any time all or any portion of the interest accrued to
that point during a deferral period. At the end of the deferral period or at a
redemption or maturity date, Consumers will be obligated to pay all accrued and
unpaid interest.
Once Consumers makes all interest payments on the debentures, with accrued
interest, it may again defer interest payments on the debentures if no event of
default under the debentures has then occurred and is continuing.
During any deferral period and subject to certain exceptions, Consumers
will not be permitted to:
- declare or pay any dividends or distributions or redeem, purchase,
acquire or make a liquidation payment with respect to, any shares of its
capital stock;
- make any payment of principal, interest or premium, if any, on or repay
or repurchase or redeem any debt securities issued by Consumers which
rank equal with or junior to the debentures; or
- make any guarantee payments with respect to any guarantee by Consumers of
the debt securities of Consumers if such guarantee ranks equal with or
junior to the debentures.
Because the debentures to be issued to the trust will rank equal with all
other series of junior subordinated debt securities of Consumers initially
issued to the other trusts referred to in the accompanying base prospectus or to
certain other trusts, partnerships or other entities affiliated with Consumers,
during an interest deferral period, Consumers will not be permitted to make
payments on such other series of junior subordinated debt securities. Likewise,
if Consumers defers interest payments on any other of such series of junior
subordinated debt securities, it is not expected that Consumers will be
permitted to make payments on the debentures.
The restrictions described in the bullet points above will also apply if
there occurs and is continuing a default or event of default under the indenture
of which Consumers has actual knowledge and in respect of which Consumers has
not taken reasonable steps to cure or if Consumers defaults on its obligations
under the guarantee.
Consumers will give the trust, the regular trustees, the property trustee
and the indenture trustee notice if it decides to defer interest payments on the
debentures. As long as the debentures are held by the trust, Consumers will give
that notice at least one business day before the earlier of:
- the next date distributions on the preferred securities are payable; or
- the date the trust is required to give notice to the New York Stock
Exchange (or any other applicable self-regulatory organization) or to
holders of the preferred securities of the record date or the date
distributions are payable.
There is no limitation on the number of times that Consumers may elect to
begin an extension period. The regular trustees will give notice to the property
trustee and the holders of preferred securities if Consumers decides to defer
interest payments on the debentures.
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CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
GENERAL
In this section, we summarize certain of the material United States federal
income tax consequences of purchasing, holding and selling the preferred
securities. Except where we state otherwise, this summary deals only with
preferred securities held as capital assets (as defined in the Internal Revenue
Code of 1986) by a U.S. Holder (as defined below) who purchases the preferred
securities at their original offering price when the trust originally issues
them.
We do not address all of the tax consequences that may be relevant to a
U.S. Holder. We also do not address, except as stated below, any of the tax
consequences to holders that may be subject to special tax treatment including
banks, thrift institutions, real estate investment trusts, personal holding
companies, tax-exempt organizations, regulated investment companies, insurance
companies, and brokers and dealers in securities or currencies. Further, we do
not address:
- the United States federal income tax consequences to shareholders in, or
partners or beneficiaries of, an entity that is a holder of the preferred
securities;
- the United States federal estate and gift or alternative minimum tax
consequences of the purchase, ownership or sale of the preferred
securities;
- persons who hold the preferred securities in a "straddle" or as part of a
"hedging," "conversion" or "constructive sale" transaction or whose
"functional currency" is not the United States dollar; or
- any state, local or foreign tax consequences of the purchase, ownership
and sale of preferred securities.
Accordingly, you should consult your tax advisor regarding the tax
consequences of purchasing, owning and selling the preferred securities in light
of your circumstances.
A "U.S. Holder" is a preferred securities holder who or which is:
- a citizen or resident of the United States;
- a corporation or partnership created or organized in or under the laws of
the United States, any state thereof or the District of Columbia (unless,
in the case of a partnership, Treasury regulations provide otherwise);
- an estate if its income is subject to United States federal income
taxation regardless of its source; or
- a trust if (1) a United States court can exercise primary supervision
over its administration and (2) one or more United States persons have
the authority to control all of its substantial decisions.
This summary is based on the Internal Revenue Code, Treasury regulations
(proposed and final) issued under the Internal Revenue Code, and administrative
and judicial interpretations thereof, all as they currently exist as of the date
of this prospectus supplement. These income tax laws and regulations, however,
may change at any time, possibly on a retroactive basis. Any such changes may
affect this summary.
CLASSIFICATION OF THE DEBENTURES
Consumers intends to take the position that the debentures will be
classified for United States federal income tax purposes as indebtedness of
Consumers under current law, and, by acceptance of a preferred security, each
holder covenants to treat the debentures as indebtedness and the preferred
securities as evidence of an indirect beneficial ownership interest in the
debentures. No assurance can be given, however, that such position of Consumers
will not be challenged by the Internal Revenue Service or, if challenged, that
such a challenge would not be successful. The remainder of this discussion
assumes that
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the debentures will be classified as indebtedness of Consumers for United States
federal income tax purposes.
CLASSIFICATION OF THE TRUST
In connection with the issuance of the preferred securities, tax counsel
for Consumers will render a legal opinion generally to the effect that, under
current law and assuming full compliance with the terms of the trust agreement,
the indenture, and certain other documents, and based on certain facts and
assumptions described in the opinion, the Trust will be classified for United
States federal income tax purposes as a grantor trust and will not be subject to
tax as a corporation. Accordingly, for United States federal income tax
purposes, you will generally be treated as the owner of an undivided interest in
the assets of the Trust, including the debentures. You will be required to
include in ordinary income for United States federal income tax purposes your
allocable share of interest (or OID, if any) paid or accrued on the debentures.
INTEREST INCOME AND ORIGINAL ISSUE DISCOUNT
Under the Treasury regulations relating to OID, a debt instrument will be
deemed to be issued with OID if there is more than a "remote" contingency that
periodic stated interest payments due on the instrument will not be timely paid.
Because the exercise by Consumers of its option to defer payments of stated
interest on the debentures would prevent Consumers from:
- declaring dividends, or engaging in certain other capital transactions,
with respect to its capital stock, or
- making any payment on any debt securities issued by Consumers which rank
equal with or junior to the debentures, Consumers believes that the
likelihood of its exercising the option is "remote" within the meaning of
the Treasury regulations.
As a result, Consumers intends to take the position that the debentures
will not be deemed to be issued with OID. Based on this position, stated
interest payments on the debentures will be includible in your ordinary income
at the time that such payments are received or accrued in accordance with your
regular method of accounting. Because the Internal Revenue Service has not yet
addressed the Treasury regulations in any published rulings or other
interpretations, it is possible that the Internal Revenue Service could take a
position contrary to the position taken by Consumers. In that event, the
Internal Revenue Service may, for example, require you to include interest on
the debentures in your taxable income as it accrues rather than when you receive
payment even though you use the cash method of accounting for federal income tax
purposes.
EXERCISE OF DEFERRAL OPTIONS
Under Treasury regulations, if Consumers were to exercise its option to
defer the payment of interest on the debentures, the debentures would be treated
as redeemed and reissued for OID purposes and the sum of the remaining interest
payments on the debentures would be treated as OID, which you would be required
to accrue and include in taxable income on an economic accrual basis (regardless
of your method of accounting for income tax purposes) over the remaining term of
the debentures (including any period of interest deferral), without regard to
the timing of payments under the debentures. The amount of interest income
includible in your taxable income would be determined on the basis of a constant
yield method over the remaining term of the debentures and the actual receipt of
future payments of stated interest on the debentures would no longer be
separately reported as taxable income. The total amount of OID that would accrue
during the deferred interest payment period would be approximately equal to the
amount of the cash payment due at the end of such period. Any OID included in
income would increase your adjusted tax basis in your preferred securities, and
your actual receipt of cash interest payments would reduce your basis in the
preferred securities.
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CORPORATE U.S. HOLDERS
Corporate U.S. Holders of the preferred securities will not be entitled to
a dividends-received deduction for any income from the preferred securities.
SALES OF PREFERRED SECURITIES
If you sell your preferred securities, you will recognize gain or loss in
an amount equal to the difference between your adjusted tax basis in the
preferred securities and the amount realized from the sale (generally, your
selling price less any amount received in respect of accrued but unpaid interest
not previously included in your income). Your adjusted tax basis in the
preferred securities generally will equal:
- the initial purchase price that you paid for the preferred securities
plus
- any accrued and unpaid distributions that you were required to treat as
OID less any cash distributions received in respect of accrued OID.
Gain or loss on the sale of preferred securities generally will be capital
gain or loss.
The preferred securities may trade at a price that does not accurately
reflect the value of accrued but unpaid interest (or OID if the debentures are
treated as having been issued or reissued with OID) relating to the underlying
debentures. If you dispose of your preferred securities, you will be required to
include in ordinary income for United States federal income tax purposes any
portion of the amount realized that is attributable to accrued but unpaid,
interest (including OID, if any) through the date of sale. This income inclusion
will increase your adjusted tax basis in the preferred securities but may not be
reflected in the sale price. To the extent the sale price is less than your
adjusted tax basis, you will recognize a capital loss. Subject to certain
limited exceptions, capital losses cannot be applied to offset ordinary income
for United States federal income tax purposes.
RECEIPT OF DEBENTURES OR CASH UPON LIQUIDATION OF THE TRUST
If Consumers dissolves the trust and causes the trust to distribute the
debentures on a proportionate basis to you, you will not be subject to tax.
Rather, you would have an adjusted tax basis in the debentures received in the
liquidation equal to the adjusted tax basis in your preferred securities
surrendered for the debentures. Your holding period for the debentures would
include the period during which you had held the preferred securities. If,
however, the trust is classified, for United States federal income tax purposes,
as an association that is subject to tax as a corporation at the time of the
liquidation, the distribution of the debentures would constitute a taxable event
to you and you would acquire a new holding period in the debentures received.
If the debentures are redeemed for cash and the proceeds of the redemption
are distributed to you in redemption of your preferred securities, the
redemption would be treated as a sale of the preferred securities, in which gain
or loss would be recognized, as described immediately above.
INFORMATION REPORTING AND BACK-UP WITHHOLDING
Generally, income on the preferred securities will be reported to you on an
Internal Revenue Service Form 1099, which should be mailed to you by January 31
following each calendar year. If you fail to supply your correct taxpayer
identification number or under-report your tax liability, the Internal Revenue
Service may require the property trustee or its agent to withhold federal income
tax at the rate of 31% from each interest payment. You will be permitted to
credit any withheld tax against your federal income tax liability.
S-26
<PAGE> 29
ERISA CONSIDERATIONS
Each fiduciary of a pension, profit-sharing or other employee benefit plan
subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA") (a "Plan"), should consider the fiduciary standards of ERISA
in the context of the Plan's particular circumstances before authorizing an
investment in the preferred securities with assets of the Plan. Accordingly,
among other factors, the fiduciary should consider whether the investment would
satisfy the prudence and diversification requirements of ERISA and would be
consistent with the documents and instruments governing the Plan.
Section 406 of ERISA and Section 4975 of the Code prohibit Plans, as well
as individual retirement accounts and Keogh plans subject to Section 4975 of the
Code (also "Plans"), from engaging in certain transactions involving "plan
assets" with persons who are "parties in interest" under ERISA or "disqualified
persons" under the Code ("Parties in Interest") with respect to such Plan. A
violation of these "prohibited transaction" rules may result in an excise tax or
other liabilities under ERISA and/or Section 4975 of the Code for such persons,
unless exemptive relief is available under an applicable statutory or
administrative exemption.
Employee benefit plans that are governmental plans (as defined in Section
3(32) of ERISA), certain church plans (as defined in Section 3(33) of ERISA) and
foreign plans (as described in Section 4(b)(4) of ERISA) are not subject to the
requirements of ERISA or Section 4975 of the Code; however, such plans may be
subject to federal, state or local laws or regulations which affect their
ability to invest in the preferred securities. Any fiduciary of such a
governmental, church or foreign plan considering an investment in the preferred
securities should determine the need for, and, if necessary, the availability
of, any exemptive relief under such laws or regulations.
Under a regulation (the "Plan Assets Regulation") issued by the U.S.
Department of Labor (the "DOL"), the assets of the trust may be deemed to be
"plan assets" of a Plan for purposes of ERISA and Section 4975 of the Code if
"plan assets" of the Plan were used to acquire an equity interest in the trust
and no exception were applicable under the Plan Assets Regulation. An "equity
interest" is defined under the Plan Assets Regulation as any interest in an
entity other than an instrument which is treated as indebtedness under
applicable local law and which has no substantial equity features and
specifically includes a beneficial interest in a trust.
Pursuant to an exception contained in the Plan Assets Regulation, the
assets of the trust would not be deemed to be "plan assets" of investing Plans
if, immediately after the most recent acquisition of any equity interest in the
trust, less than 25% of the value of each class of equity interests in the trust
were held by Plans, other employee benefit plans not subject to ERISA or Section
4975 of the Code (such as governmental, church and foreign plans), and entities
holding assets deemed to be "plan assets" of any Plan (collectively, "Benefit
Plan Investors"), or if the preferred securities were "publicly-offered
securities" for purposes of the Plan Assets Regulation. No assurance can be
given that the value of the preferred securities held by Benefit Plan Investors
will be less than 25% of the total value of such preferred securities at the
completion of the initial offering or thereafter, and no monitoring or other
measures will be taken with respect to the satisfaction of the conditions of
this exception. In addition, no assurance can be given that the preferred
securities would be considered to be "publicly-offered securities" under the
Plan Assets Regulation. All of the common securities will be purchased and held
by Consumers.
Certain transactions involving the trust could be deemed to constitute
direct or indirect prohibited transactions under ERISA and Section 4975 of the
Code with respect to a Plan if the preferred securities were acquired with "plan
assets" of such Plan and the assets of the trust were deemed to be "plan assets"
of Plans investing in the trust. For example, if Consumers were a Party in
Interest with respect to a Plan (either directly or by reason of ownership of
its subsidiaries), extensions of credit between Consumers and the trust (as
represented by the debentures and the guarantee) would likely be prohibited by
Section 406(a)(1)(B) of ERISA and Section 4975(c)(1)(B) of the Code, unless
exemptive relief were available under an applicable administrative exemption
(see below). In addition, if Consumers were considered to be a fiduciary with
respect to the trust as a result of certain powers it holds (such as the powers
to remove and replace the property trustee and the regular trustees), certain
operations of the trust,
S-27
<PAGE> 30
including the optional redemption or acceleration of the debentures, could be
considered to be prohibited transactions under Section 406(b) of ERISA and
Section 4975(c)(1)(E) of the Code. In order to avoid such prohibited
transactions, each investing plan, by purchasing preferred securities, will be
deemed to have directed the trust to invest in the debentures and to have
appointed the property trustee.
The DOL has issued five prohibited transaction class exemptions ("PTCEs")
that may provide exemptive relief if required for direct or indirect prohibited
transactions that may arise from the purchase or holding of the preferred
securities if assets of the trust were deemed to be "plan assets" of Plans
investing in the trust as described above. Those class exemptions are PTCE 96-23
(for certain transactions effected on behalf of a Plan by an in-house asset
manager), PTCE 95-60 (for certain transactions involving insurance company
general accounts), PTCE 91-38 (for certain transactions involving bank
collective investment funds), PTCE 90-1 (for certain transactions involving
insurance company separate pooled accounts), and PTCE 84-14 (for certain
transactions effected on behalf of a Plan by an independent qualified
professional asset manager).
Because the preferred securities may be deemed to be equity interests in
the trust for purposes of ERISA and Section 4975 of the Code, the preferred
securities may not be purchased and should not be held by any Plan, any entity
whose underlying assets include "plan assets" by reason of any Plan's investment
in the entity (a "Plan Asset Entity") or any person investing "plan assets" of
any Plan, unless such purchaser or holder is eligible for the exemptive relief
available under PTCE 96-23, 95-60, 91-38, 90-1 or 84-14 or another applicable
exemption. Any purchaser or holder of the preferred securities or any interest
therein will be deemed to have represented by its purchase and holding thereof
that it either (a) is not a Plan or a Plan Asset Entity and is not purchasing
such securities on behalf of or with "plan assets" of any Plan, or (b) is
eligible for the exemptive relief available under PTCE 96-23, 95-60, 91-38, 90-1
or 84-14 or another applicable exemption with respect to such purchase or
holding.
Due to the complexity of these rules and the penalties that may be imposed
upon persons involved in non-exempt prohibited transactions, it is particularly
important that fiduciaries or other persons considering purchasing the preferred
securities on behalf of or with "plan assets" of any Plan consult with their
counsel regarding the potential consequences if the assets of the trust were
deemed to be "plan assets" and the availability of exemptive relief under PTCE
96-23, 95-60, 91-38, 90-1 or 84-14 or any other applicable exemption.
The discussion herein of ERISA is general in nature and is not intended to
be complete. Any fiduciary of a plan, governmental plan, church plan or a
foreign plan considering an investment in the preferred securities should
consult with its legal advisors regarding the consequences and advisability of
such investment.
Insurance companies considering an investment in the preferred securities
should note that the Small Business Job Protection Act of 1996 added new Section
401(c) of ERISA relating to the status of the assets of insurance company
general accounts under ERISA and Section 4975 of the Code. Pursuant to Section
401(c), the DOL issued proposed regulations (the "Proposed General Account
Regulations") in December, 1997 with respect to insurance policies that are
supported by an insurer's general account. The Proposed General Account
Regulations are intended to provide guidance on which assets held by the insurer
constitute "plan assets" of an ERISA Plan for purposes of the fiduciary
responsibility provisions of ERISA and Section 4975 of the Code.
S-28
<PAGE> 31
UNDERWRITING
GENERAL
Subject to the terms and conditions of an underwriting agreement, the trust
has agreed to sell to each of the underwriters named below, and each of the
underwriters, for whom Merrill Lynch, Pierce, Fenner & Smith Incorporated, A.G.
Edwards & Sons, Inc., First of Michigan Division of Fahnestock & Co. Inc.,
Morgan Stanley & Co. Incorporated, Prudential Securities Incorporated, and
Raymond James & Associates, Inc., are acting as the representatives, has
severally agreed to purchase from the trust, the number of preferred securities
set forth opposite its name below:
<TABLE>
<CAPTION>
NUMBER OF
UNDERWRITER PREFERRED SECURITIES
----------- --------------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated...................................
A.G. Edwards & Sons, Inc....................................
First of Michigan Division of Fahnestock & Co. Inc. ........
Morgan Stanley & Co. Incorporated...........................
Prudential Securities Incorporated..........................
Raymond James & Associates, Inc.............................
Total..........................................
</TABLE>
In the underwriting agreement the several underwriters have agreed, subject
to the terms and conditions set forth in that agreement, to purchase all of the
preferred securities offered hereby if any of the preferred securities are
purchased. In the event of default by an underwriter, the underwriting agreement
provides that, in certain circumstances, the purchase commitments of the
non-defaulting underwriters may be increased or the underwriting agreement may
be terminated.
Consumers and the trust have agreed with the underwriters to indemnify them
against certain civil liabilities, including liabilities under the Securities
Act of 1933, or to contribute with respect to payments which the underwriters
may be required to make.
Certain of the underwriters and their affiliates have in the past and may
in the future engage in transactions with, or perform services for, Consumers in
the ordinary course of their businesses.
Consumers will pay all expenses, estimated to be approximately
$ associated with the offer and sale of the preferred securities.
COMMISSIONS AND DISCOUNTS
The underwriters will offer the preferred securities directly to the public
initially at $25 per preferred security. The underwriters may also offer the
preferred securities to certain dealers at the above-mentioned offering price
less a concession of $. per preferred security. The underwriters
may allow, and such dealers may reallow, a discount not in excess of
$. per preferred security to certain dealers. After the initial
public offering, the public offering price, concession and discount may be
changed.
Because the proceeds from the sale of the preferred securities and the
common securities will be used to purchase the debentures, Consumers has agreed
to pay to the underwriters an underwriting commission of $. per preferred
security (or a total of $ ).
NEW YORK STOCK EXCHANGE LISTING
Before this offering, there was no established public trading market for
the preferred securities. We plan to list the preferred securities on the New
York Stock Exchange under the symbol " ." Trading of the preferred
securities on the New York Stock Exchange is expected to begin within 30 days of
the issuance of the preferred securities. In order to meet all of the
requirements for listing the preferred
S-29
<PAGE> 32
securities on the New York Stock Exchange, the underwriters have agreed to sell
the preferred securities to a minimum of 400 beneficial holders. The
representatives have advised Consumers that they intend to make a market in the
preferred securities prior to the commencement of trading on the New York Stock
Exchange. However, the representatives are not obligated to do so and may
discontinue market making at any time without notice. We cannot give any
assurance that a liquid trading market for the preferred securities will be
available.
NO SALES OF SIMILAR SECURITIES
Consumers and the trust have agreed that, during a period of days from
the date of the pricing of the preferred securities, they will not offer, sell,
contract to sell, or otherwise dispose of any preferred securities, any other
beneficial interests of the trust, or any securities of Consumers, that are
substantially similar to the preferred securities, including the guarantee, and
including but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive preferred securities or
any such substantially similar securities of either the trust or Consumers
(except the debentures and the preferred securities offered by this prospectus
supplement), without the prior consent of the representatives.
PRICE STABILIZATION AND SHORT POSITIONS
In connection with the sale of the preferred securities, SEC rules permit
the underwriters to engage in transactions that stabilize the price of the
preferred securities. These transactions may include purchases for the purpose
of fixing or maintaining the price of the preferred securities.
The underwriters may create a short position in the preferred securities in
connection with this offering. That means they may sell a larger number of the
preferred securities than is shown on the cover page of this prospectus
supplement. If they create a short position, the underwriters may purchase
preferred securities in the open market to reduce the short position.
If the underwriters purchase the preferred securities to stabilize the
price or to reduce their short position, the price of the preferred securities
could be higher than it might be if they had not made such purchases. The
underwriters make no representation or prediction about any effect that the
purchases may have on the price of the preferred securities.
The underwriters may suspend any of these activities at any time.
PENALTY BIDS
The representatives also may impose a penalty bid on certain underwriters
and selling group members. This means that, if the representatives purchase
preferred securities in the open market to reduce the underwriters' short
position or to stabilize the price of the preferred securities, they may reclaim
the amount of the selling concession from the underwriters and selling group
members who sold those preferred securities as part of this offering.
S-30
<PAGE> 33
LEGAL MATTERS
Certain matters of Delaware law relating to the validity of the preferred
securities, the enforceability of the trust agreement and the creation of the
trust will be passed upon on behalf of the trust by Richards, Layton & Finger,
P.A., Wilmington, Delaware, special Delaware counsel to the trust. The validity
of the senior notes, the preferred securities guarantee, the debentures and
certain matters relating thereto will be passed upon on behalf of Consumers by
Michael D. VanHemert, Esq., Assistant General Counsel for CMS Energy
Corporation, Consumers' parent. Certain legal matters will be passed upon on
behalf of the Underwriters by Skadden, Arps, Slate, Meagher & Flom LLP. Certain
United States federal income taxation matters will be passed upon for Consumers
and the trust by Theodore J. Vogel, as tax counsel to Consumers. As of June 30,
1999, an attorney currently employed by Skadden, Arps, Slate, Meagher & Flom
LLP, and formerly employed by CMS Energy Corporation, owned approximately 50,326
shares of CMS Energy Common Stock, 2,000 shares of Class G Common Stock, 10
shares of Consumers $4.50 Series Preferred Stock, $100 par value, and $50,000
aggregate principal amount of certain debt securities issued by CMS Energy. As
of June 30, 1999, Mr. Van Hemert beneficially owned approximately 2,785 shares
of CMS Energy Common Stock. As of June 30, 1999, Mr. Vogel beneficially owned
approximately 8,400 shares of CMS Energy Common Stock, and 200 shares of Class G
Common Stock.
EXPERTS
The consolidated financial statements and schedule of Consumers as of
December 31, 1998 and 1997, and for each of the three years in the period ended
December 31, 1998 incorporated by reference in this prospectus supplement and
the accompanying base prospectus, have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their reports with respect
thereto, and are included herein in reliance upon the authority of said firm as
experts in accounting and auditing in giving said reports.
With respect to the unaudited interim consolidated financial information
for the periods ended March 31 and June 30, 1999 and 1998, Arthur Andersen LLP
has applied limited procedures in accordance with professional standards for a
review of that information. However, their separate reports thereon state that
they did not audit and they did not express an opinion on that interim
consolidated financial information. Accordingly, the degree of reliance on their
reports on that information should be restricted in light of the limited nature
of the review procedures applied. In addition, the accountants are not subject
to the liability provisions of Section 11 of the Securities Act, for their
reports on the unaudited interim consolidated financial information because
these reports are not "reports" or a part of the registration statement prepared
or certified by the accountants within the meaning of Sections 7 and 11 of the
Securities Act.
Future consolidated financial statements of Consumers and the reports
thereon of Arthur Andersen LLP also will be incorporated by reference in this
base prospectus in reliance upon the authority of that firm as experts in giving
those reports to the extent that said firm has audited said consolidated
financial statements and consented to the use of their reports thereon.
S-31
<PAGE> 34
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED OCTOBER , 1999
CONSUMERS ENERGY COMPANY
SENIOR NOTES
SUBORDINATED DEBENTURES
GUARANTEES
AND
CONSUMERS ENERGY COMPANY FINANCING III
CONSUMERS ENERGY COMPANY FINANCING IV
TRUST PREFERRED SECURITIES
GUARANTEED TO THE EXTENT SET FORTH HEREIN BY
CONSUMERS ENERGY COMPANY
OFFERING PRICE: $525,000,000
------------------------
Consumers may offer, on one or more occasions:
- secured senior debt, unsecured senior debt or unsecured subordinated debt
securities consisting of debentures, convertible debentures, notes and
other unsecured evidence of indebtedness, and
- guarantees of Consumers Energy Company with respect to trust preferred
securities of Consumers Energy Company Financing III and Consumers Energy
Company Financing IV.
For each type of securities listed above, the amount, price and terms will
be determined at or prior to the time of sale.
Consumers Energy Company Financing III and Consumers Energy Company
Financing IV, which are Delaware business trusts, may offer trust preferred
securities. The trust preferred securities represent preferred undivided
beneficial interests in the assets of Consumers Energy Company Financing III and
Consumers Energy Company Financing IV in amounts, at prices and on terms to be
determined at or prior to the time of sale.
We will provide the specific terms of these securities in an accompanying
prospectus supplement or supplements. You should read this prospectus and the
accompanying prospectus supplement or supplements carefully before you invest.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
accuracy or adequacy of this prospectus. Any representation to the contrary is a
criminal offense.
We intend to sell these securities through underwriters, dealers, agents or
directly to a limited number of purchasers. The names of, and any securities to
be purchased by or through, these parties, the compensation of these parties and
other special terms in connection with the offering and sale of these securities
will be provided in the related prospectus supplement or supplements.
This prospectus may not be used to consummate sales of any of these
securities unless accompanied by a prospectus supplement.
The date of this prospectus is October , 1999
<PAGE> 35
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not, and the underwriters have not,
authorized any person to provide you with different information. If anyone
provides you with different or inconsistent information, you should not rely on
it. We are not, and the underwriters are not, making an offer to sell these
securities in any jurisdiction where the offer or sale is not permitted. You
should assume that the information appearing in this prospectus is accurate as
of the date on the front cover of this prospectus. Consumers' business,
financial condition, results of operations and prospects may have changed since
such dates.
WHERE YOU CAN FIND MORE INFORMATION
Consumers files reports, proxy statements and other information with the
Securities and Exchange Commission. Our SEC filings are also available over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and copy
any document it files at the SEC's public reference room at 450 Fifth Street
N.W., Room 1024, Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330
for more information on the public reference rooms and their copy charges. You
may also inspect our SEC reports and other information at the New York Stock
Exchange, 20 Broad Street, New York, New York 10005.
Consumers is "incorporating by reference" information into this prospectus.
This means that Consumers is disclosing important information by referring to
another document filed separately with the SEC. The information incorporated by
reference is deemed to be part of this prospectus, except for any information
superceded by information in this prospectus. This prospectus incorporates by
reference the documents set forth that Consumers has previously filed with the
SEC. These documents contain important information about Consumers and its
finances.
<TABLE>
<CAPTION>
SEC FILINGS (FILE NO. 1-5611) PERIOD/DATE
- ------------------------------------------------ -----------
<S> <C>
- - Annual Report on Form 10-K.................... Year ended December 31, 1998.
Quarterly Reports of Form 10-Q................ Quarter ended March 31, 1999.
Quarter ended June 30, 1999.
- - Current Reports on Form 8-K................... Filed July 1, September 9, September 24, and
October 18, 1999.
</TABLE>
The documents filed by Consumers with the SEC pursuant to Sections 13(a),
13(c), 14 and 15 of the Exchange Act after the date of this prospectus are also
incorporated by reference into this prospectus.
You may request a copy of these filings at no cost, by writing or
telephoning Consumers at the following address:
Consumers Energy Company
212 West Michigan Avenue
Jackson, Michigan 49201
Tel: (517) 788-0550
Attention: Office of the Secretary
You should rely only on the information contained or incorporated by
reference in this prospectus and accompanying prospectus supplement. Consumers
has not authorized anyone to provide you with information that is different from
this information.
Separate financial statements of the trusts have not been included in this
prospectus. Consumers and the trusts do not consider such financial statements
to be helpful because:
- Consumers beneficially owns directly or indirectly all of the undivided
beneficial interests in the assets of the trusts (other than the
beneficial interests represented by the trust preferred securities). See
"Consumers Energy Company Trusts," "Description of Securities
Trust -- Preferred Securities" and "Description of Securities -- The
Guarantees."
2
<PAGE> 36
- Consumers will guarantee the trust preferred securities such that the
holders of the trust preferred securities, with respect to the payment of
distributions and amounts upon liquidation, dissolution and winding-up,
are at least in the same position with regard to the assets of Consumers
as a preferred stockholder of Consumers.
- in future filings under the Securities Exchange Act of 1934, an audited
footnote to Consumers' annual financial statements will state that the
trusts are wholly-owned by Consumers, that the sole assets of the trusts
are the senior notes or the subordinated debentures of Consumers having a
specified total principal amount, and, considered together, the back-up
undertakings, including the guarantees, constitute a full and
unconditional guarantee by Consumers of the trusts' obligations under the
trust preferred securities issued by the trusts.
- each trust is a newly created special purpose entity, has no operating
history, no independent operations and is not engaged in, and does not
propose to engage in, any activity other than as described under
"Consumers Energy Company Trusts".
CONSUMERS ENERGY COMPANY
Consumers, formed in Michigan in 1968, is the successor to a corporation
organized in Maine in 1910 that did business in Michigan from 1915 to 1968.
Consumers was named Consumers Power Company from 1910 to the first quarter of
1997, when Consumers changed its name to Consumers Energy Company. Consumers is
the principal subsidiary of CMS Energy Corporation, a Michigan corporation.
Consumers is a public utility that provides natural gas and electricity to
almost six million of the nine and one-half million residents in Michigan's
Lower Peninsula. Consumers' electric operations include the generation,
purchase, transmission and distribution of electricity. It provides electric
services in 61 of the 68 counties of Michigan's Lower Peninsula. Consumers' gas
utility operation purchases, transports, stores and distributes natural gas. It
renders gas sales and delivery service in 54 of the 68 counties in Michigan's
Lower Peninsula. At year end 1998, Consumers provided service to 1.6 million
electric customers and 1.5 million gas customers.
Consumers' consolidated operating revenue in 1998 was $3.7 billion. Of
Consumers' operating revenue, 70% was generated from its electric utility
business, 29% from its gas utility business, and 1% from its non-utility
business.
Consumers' electric generating system consists of five fossil-fueled plant
sites, one nuclear plant, one pumped storage hydroelectric facility, seven gas
combustion turbine plants and 13 hydroelectric plants. Consumers' owned and
operated a total of 6,190 megawatts ("MW") of electric generating capacity in
1998. In 1998, Consumers purchased 2,545 MW of net capacity, which amounted to
34% of Consumers' total system requirements, from other power producers, the
largest being a natural gas-fueled cogeneration facility ("MCV Facility")
operated by the Midland Cogeneration Venture Limited Partnership ("MCV
Partnership"). Consumers, through wholly-owned subsidiaries, owns a 49%
ownership interest in the MCV Partnership and lessor interest in the MCV
Facility. Total electric sales in 1998 were 40 billion kilowatt hours ("kWh"), a
6% increase over 1997 levels. Consumers' electric operating revenue in 1998 was
$2.6 billion, an increase of 3.6% from 1997.
In 1998, Consumers' gas distribution and transmission system consisted of
23,392 miles of distribution mains and 1,165 miles of transmission lines
throughout the Lower Peninsula of Michigan. At December 31, 1998, Consumers
owned and operated six compressor stations with a total of 115,400 installed
horsepower. Consumers' gas operation is seasonal to the extent that peak demand
occurs in winter due to colder temperatures. Total deliveries of natural gas
sold by Consumers and from other sellers over Consumers' pipeline and
distribution network to ultimate customers, including the MCV Partnership,
totaled 360 billion cubic feet in 1998. Consumers' gas operating revenue in 1998
was $1.1 billion, a decrease of 12.7% from 1997.
3
<PAGE> 37
Consumers is subject to regulation by various federal, state, local and
foreign governmental agencies. Consumers is subject to the jurisdiction of the
Michigan Public Service Commission ("MPSC"), which regulates public utilities in
Michigan with respect to retail utility rates, accounting, services, certain
facilities and various other matters. The Federal Energy Regulatory Commission
("FERC") also has jurisdiction under the Natural Gas Act over Michigan Gas
Storage Company, a subsidiary of Consumers, relating, among other things, to the
construction of facilities and to service provided and rates charged by Michigan
Gas Storage. Some of Consumers' gas business is also subject to regulation of
FERC, including a blanket transportation tariff pursuant to which Consumers can
transport gas in interstate commerce. Certain of Consumers' electric operations
are also subject to regulation by FERC, including compliance with FERC's
accounting rules and other regulations applicable to "public utilities" and
"licensees", the transmission of electric energy in interstate commerce and the
rates and charges for the sale of electric energy at wholesale and transmission
of electric energy in interstate commerce, the consummation of certain mergers,
the sale of certain facilities, the construction, operation and maintenance of
hydroelectric projects and the issuance of securities, as provided by the
Federal Power Act. Consumers is subject to the jurisdiction of the Nuclear
Regulatory Commission with respect to the design, construction and operation of
its Palisades nuclear power plant and the decommissioning of its closed Big Rock
power plant. Consumers is also subject to NRC jurisdiction with respect to
certain other uses of nuclear material.
The foregoing information concerning Consumers does not purport to be
comprehensive. For additional information concerning Consumers' business and
affairs, including their capital requirements and external financing plans,
pending legal and regulatory proceedings and descriptions of certain laws and
regulations to which those companies are subject, prospective purchasers should
refer to the Incorporated Documents. See "Where You Can Find More Information"
above.
The address of the principal executive offices of Consumers Energy Company
is 212 West Michigan Avenue, Jackson, Michigan 49201. Its telephone number is
(517) 788-0550.
CONSUMERS ENERGY COMPANY TRUSTS
Consumers Energy Company Financing III and Consumers Energy Company
Financing IV are statutory business trusts created under the Delaware Business
Trust Act by way of:
- trust agreements executed by Consumers, as sponsor, and the trustees of
the trusts and
- the filing of certificates of trust with the Secretary of State of the
State of Delaware.
At the time of public issuance of the trust preferred securities, each
trust agreement will be amended and restated in its entirety and will be
qualified as an indenture under the Trust Indenture Act of 1939, as amended.
Consumers will directly or indirectly acquire common securities of each trust in
a total liquidation amount equal to approximately 3% of the total capital of the
trust. Each trust exists for the exclusive purposes of:
- issuing the trust preferred securities and common securities representing
undivided beneficial interests in the assets of the trust;
- investing the gross proceeds of the common securities and the trust
preferred securities in the senior notes or subordinated debentures; and
- engaging in only those other activities necessary or incidental thereto.
Each trust has a term of approximately 55 years, but may terminate earlier
as provided in the amended and restated trust agreement.
The proceeds from the offering of the trust preferred securities and the
sale of the common securities may be used by each trust to purchase from
Consumers senior notes or subordinated debentures in a total principal amount
equal to the total liquidation preference of the common securities and the trust
preferred securities. The Consumers notes or debentures would bear interest at
an annual rate equal to the annual distribution rate of the common securities
and the trust preferred securities and would have certain
4
<PAGE> 38
redemption terms which correspond to the redemption terms for the common
securities and the trust preferred securities. The senior notes will rank on an
equal basis with all other unsecured debt of Consumers except subordinated debt.
The subordinated debentures will rank subordinate in right of payment to all of
Consumers' senior indebtedness (as defined in this prospectus). Distributions on
the common securities and the trust preferred securities may not be made unless
each trust receives corresponding interest payments on the senior notes or the
subordinated debentures from Consumers. Consumers will irrevocably guarantee, on
a senior or subordinated basis, as applicable, and to the extent set forth in
the guarantee, with respect to each of the common securities and the trust
preferred securities, the payment of distributions, the redemption price,
including all accrued or deferred and unpaid distributions, and payment on
liquidation, but only to the extent of funds on hand. Each guarantee will be
unsecured and will be either equal to or subordinate to, as applicable, all
senior indebtedness, of Consumers. Upon the occurrence of certain events
(subject to the conditions to be described in an accompanying prospectus
supplement) each trust may be liquidated and the holders of the common
securities and the trust preferred securities could receive senior notes or
subordinated debentures in lieu of any liquidating cash distribution.
Pursuant to the amended and restated trust agreements, the number of
trustees of each trust will initially be four. Two of the trustees will be
persons who are employees or officers of or who are affiliated with Consumers
and will be referred to as the regular trustees. The third trustee will be a
financial institution that is unaffiliated with Consumers, which trustee will
serve as property trustee under the applicable amended and restated trust
agreement and as indenture trustee for the purposes of compliance with the
provisions of the Trust Indenture Act of 1939. Initially, The Bank of New York,
a New York banking corporation, will be the property trustee until removed or
replaced by the holder of the common securities. For the purpose of compliance
with the provisions of the Trust Indenture Act of 1939, The Bank of New York
will also act as guarantee trustee. The fourth trustee, The Bank of New York
(Delaware), will act as the Delaware trustee for the purposes of the Delaware
Business Trust Act, until removed or replaced by the holder of the common
securities. See "Description of Securities -- The Guarantees."
The property trustee will hold title to the applicable senior notes or
subordinated debenture for the benefit of the holders of the common securities
and the trust preferred securities and the property trustee will have the power
to exercise all rights, powers and privileges under the applicable indentures as
the holder of the senior notes or subordinated debenture. In addition, the
property trustee will maintain exclusive control of a segregated non-interest
bearing bank account to hold all payments made in respect of the senior notes or
subordinated debentures for the benefit of the holders of the common securities
and the trust preferred securities. The property trustee will make payments of
distributions and payments on liquidation, redemption and otherwise to the
holders of the common securities and the trust preferred securities out of funds
from the segregated non-interest bearing bank account. The guarantee trustee
will hold the guarantees for the benefit of the holders of the common securities
and the trust preferred securities. Consumers, as the direct or indirect holder
of all the common securities, will have the right to appoint, remove or replace
any of the trustees. Consumers will also have the right to increase or decrease
the number of trustees, as long as the number of trustees shall be at least
three, a majority of which shall be regular trustees. Consumers will pay all
fees and expenses related to the trusts and the offering of the common
securities and the trust preferred securities.
The rights of the holders of the trust preferred securities, including
economic rights, rights to information and voting rights, are set forth in the
applicable amended and restated trust agreement, the Delaware Business Trust Act
and the Trust Indenture Act of 1939.
The trustee for each trust in the State of Delaware is The Bank of New York
(Delaware), White Clay Center, Route 273, Newark, Delaware 19711.
The principal place of business of each trust will be c/o Consumers Energy
Company, 212 West Michigan Avenue, Jackson, Michigan 49201.
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USE OF PROCEEDS
The proceeds received by each of the trusts from the sale of its trust
preferred securities or the common securities will be invested in the senior
notes or the subordinated debentures. As will be more specifically set forth in
the applicable prospectus supplement, Consumers will use those borrowed amounts
and the net proceeds from the sale of senior notes or subordinated debentures
offered hereby for its general corporate purposes, including capital
expenditures, investment in subsidiaries, working capital and repayment of debt.
Any specific allocation of the proceeds to a particular purpose that has been
made at the date of any prospectus supplement will be described in the
appropriate prospectus supplement.
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RATIO OF EARNINGS TO FIXED CHARGES AND
RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The ratios of earnings to fixed charges and the ratios of earnings to fixed
charges and preferred stock dividends for each of the years ended December 31,
1994 through 1998 and for the twelve months ended June 30, 1999, are as follows:
<TABLE>
<CAPTION>
TWELVE MONTHS
ENDED YEAR ENDED DECEMBER 31
JUNE 30, --------------------------------------
1999 1998 1997 1996 1995 1994
------------- ------ ---- ---- ---- ----
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to:
Fixed Charges (a).............................. 3.72 3.16(b) 3.31 3.27 2.82 2.81
Fixed Charges & Preferred Stock Dividends...... 3.06 2.52(c) 2.61 2.54 2.30 2.32
</TABLE>
- ---------------
(a) For purposes of computing the ratio, earnings represent net income before
income taxes, net interest charges and the estimated interest portions of
lease rentals, plus distributed income of equity investees less earnings
from minority interests of equity investees. Earnings for the ratio of
earnings to fixed charges and preferred stock dividends also includes the
amount required to pay distributions on preferred securities and the amount
of pretax earnings required to pay the dividends on outstanding preferred
stock.
(b) Excludes a cumulative effect of change in accounting after-tax gain of $43
million; if included, ratio would be 3.52.
(c) Excludes a cumulative effect of change in accounting after-tax gain of $43
million: if included, ratio would be 2.81.
DESCRIPTION OF SECURITIES
INTRODUCTION
Specific terms of the debt securities consisting of the senior notes and
subordinated debentures, or the trust preferred securities, or any combination
of these securities, the irrevocable guarantees of Consumers, with respect to
each of the common securities and the preferred securities of the trust, for
which this prospectus is being delivered, will be set forth in an accompanying
prospectus supplement or supplements. The prospectus supplement will set forth
with regard to the particular offered securities, without limitation, the
following:
- in the case of debt securities, the designation, total principal amount,
denomination, maturity, premium, if any, any exchange, conversion,
redemption or sinking fund provisions, interest rate (which may be fixed
or variable), the time or method of calculating interest payments, the
right of Consumers, if any, to defer payment or interest on the debt
securities and the maximum length of such deferral, put options, if any,
public offering price, ranking, any listing on a securities exchange and
other specific terms of the offering; and
- in the case of trust preferred securities, the designation, number of
shares, liquidation preference per security, initial public offering
price, any listing on a securities exchange, dividend rate (or method of
calculation thereof), dates on which dividends shall be payable and dates
from which dividends shall accrue, any voting rights, any redemption,
exchange, conversion or sinking fund provisions and any other rights,
preferences, privileges, limitations or restrictions relating to a
specific series of the trust preferred securities including a description
of the Consumers guarantee, as the case may be.
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<PAGE> 41
DEBT SECURITIES
Senior notes will be issued under a senior debt indenture. The subordinated
debentures will be issued under a subordinated debt indenture. The senior debt
indenture and the subordinated debt indenture are sometimes referred to in this
prospectus individually as an "indenture" and collectively as the "indentures".
The following briefly summarizes the material provisions of the indentures
and the debt securities. You should read the more detailed provisions of the
applicable indenture, including the defined terms, for provisions that may be
important to you. You should also read the particular terms of a series of debt
securities, which will be described in more detail in the applicable prospectus
supplement. Copies of the indentures may be obtained from Consumers or the
applicable trustee.
Unless otherwise provided in the applicable prospectus supplement, the
trustee under the senior debt indenture will be Chase Manhattan Bank and the
trustee under the subordinated debt indenture will be The Bank of New York.
General
The indentures provide that debt securities of Consumers may be issued in
one or more series, with different terms, in each case as authorized on one or
more occasions by Consumers.
Federal income tax consequences and other special considerations applicable
to any debt securities issued by Consumers at a discount will be described in
the applicable prospectus supplement.
The applicable prospectus supplement relating to any series of debt
securities will describe the following terms, where applicable:
- the title of the debt securities;
- whether the debt securities will be senior or subordinated debt;
- the total principal amount of the debt securities;
- the percentage of the principal amount at which the debt securities will
be sold and, if applicable, the method of determining the price;
- the maturity date or dates;
- the interest rate or the method of computing the interest rate;
- the date or dates from which any interest will accrue, or how such date
or dates will be determined, and the interest payment date or dates and
any related record dates;
- the location where payments on the debt securities will be made;
- the terms and conditions on which the debt securities may be redeemed at
the option of Consumers;
- any obligation of Consumers to redeem, purchase or repay the debt
securities at the option of a holder upon the happening of any event and
the terms and conditions of redemption, purchase or repayment;
- any provisions for the discharge of Consumers' obligations relating to
the debt securities by deposit of funds or United States government
obligations;
- whether the debt securities are to trade in book-entry form and the terms
and any conditions for exchanging the global security in whole or in part
for paper certificates;
- any material provisions of the applicable indenture described in this
prospectus that do not apply to the debt securities;
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<PAGE> 42
- any additional amounts with respect to the debt securities that Consumers
will pay to a non-United States person because of any tax, assessment or
governmental charge withheld or deducted and, if so, any option of
Consumers to redeem the debt securities rather than paying these
additional amounts;
- any additional events of default; and
- any other specific terms of the debt securities.
Concerning the Trustees
Each of Chase Manhattan Bank, the trustee under the senior debt indenture
for the senior notes, and The Bank of New York, the trustee under the
subordinated debt indenture for the subordinated debentures, is one of a number
of banks with which Consumers and its subsidiaries maintain ordinary banking
relationships, including credit facilities.
Exchange and Transfer
Debt securities may be presented for exchange. Registered debt securities
may be presented for registration of transfer at the offices and, subject to the
restrictions set forth in the debt security and in the applicable prospectus
supplement, without service charge, but upon payment of any taxes or other
governmental charges due in connection with the transfer, subject to any
limitations contained in the applicable indenture. Debt securities in bearer
form and any related coupons, will be transferable by delivery.
Payment
Distributions on the debt securities in registered form will be made at the
office or agency of the applicable trustee in the Borough of Manhattan, the City
of New York or its other designated office. However, at the option of Consumers,
payment of any interest may be made by check or by wire transfer. Payment of any
interest due on debt securities in registered form will be made to the persons
in whose name the debt securities are registered at the close of business on the
record date for such interest payments. Payments made in any other manner will
be specified in the prospectus supplement.
Governing Law
Each indenture and the debt securities will be governed by, and construed
in accordance with, the laws of the State of Michigan unless the laws of another
jurisdiction shall mandatorily apply. The rights, duties and obligations of the
subordinated note trustee are governed by and construed in accordance with the
laws of the State of New York.
SENIOR NOTES
General
The following summaries of some important provisions of the senior note
indenture (including its supplements by such reference) do not purport to be
complete and are subject to, and qualified in their entirety by, all of the
provisions of the senior note indenture. The senior note indenture is
incorporated by reference in this prospectus and is available upon request to
the senior note trustee. In addition, capitalized terms used in this section and
not otherwise defined in this prospectus shall have the meaning given to them in
the senior note indenture.
Security; Release Date
Until the release date (as described in the next paragraph), the senior
notes will be secured by one or more series of Consumers' first mortgage bonds
issued and delivered by Consumers to the senior note trustee. See "Description
of First Mortgage Bonds". Upon the issuance of a series of senior notes prior to
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<PAGE> 43
the release date, Consumers will simultaneously issue and deliver to the senior
note trustee, as security for all senior notes, a series of first mortgage bonds
that will have the same stated maturity date and corresponding redemption
provisions, and will be in the same total principal amount as the series of the
senior notes being issued. Any series of first mortgage bonds securing senior
notes may, but need not, bear interest. Any payment by Consumers to the senior
note trustee of principal of, interest and/or premium, if any, on a series of
first mortgage bonds will be applied by the senior note trustee to satisfy
Consumers' obligations with respect to principal of, interest and/or premium, if
any, on the corresponding senior notes.
The "release date" will be the date that all first mortgage bonds of
Consumers issued and outstanding under a mortgage indenture with the Chase
Manhattan Bank as mortgage trustee, other than first mortgage bonds securing
senior notes, have been retired (at, before or after their maturity) through
payment, redemption or otherwise. On the release date, the senior note trustee
will deliver to Consumers, for cancellation, all first mortgage bonds securing
senior notes. Not later than 30 days thereafter, the senior note trustee will
provide notice to all holders of senior notes of the occurrence of the release
date. As a result, on the release date, the first mortgage bonds securing senior
notes will cease to secure the senior notes. The senior notes will then become
unsecured general obligations of Consumers and will rank equally with other
unsecured indebtedness of Consumers. Each series of first mortgage bonds that
secures senior notes will be secured by a lien on certain property owned by
Consumers. See "Description of First Mortgage Bonds -- Priority and Security."
Upon the payment or cancellation of any outstanding senior notes, the senior
note trustee will surrender to Consumers for cancellation an equal principal
amount of the related series of first mortgage bonds. Consumers will not permit,
at any time prior to the release date, the total principal amount of first
mortgage bonds securing senior notes held by the senior note trustee to be less
than the total principal amount of senior notes outstanding. Following the
release date, Consumers will cause the mortgage to be discharged and will not
issue any additional first mortgage bonds under the mortgage. While Consumers
will be precluded after the release date from issuing additional first mortgage
bonds, it will not be precluded under the senior note indenture or senior notes
from issuing or assuming other secured debt, or incurring liens on its property,
except to the extent indicated below under "-- Certain Covenants of
Consumers -- Limitation on Liens."
Events Of Default
The following constitute events of default under senior notes of any
series:
(1) failure to pay principal of and premium, if any, on any senior
note of such series when due;
(2) failure to pay interest on any senior note of such series when due
for 60 days;
(3) failure to perform any other covenant or agreement of Consumers in
the senior notes of such series for 90 days after written notice to
Consumers by the senior note trustee or the holders of at least 33% in
total principal amount of the outstanding senior notes;
(4) prior to the release date, a default under the mortgage; provided,
however, that the waiver or cure of such default and the rescission and
annulment of the consequences under the mortgage will be a waiver of the
corresponding event of default under the senior note indenture and a
rescission and annulment of the consequences under the senior note
indenture; and
(5) certain events of bankruptcy, insolvency, reorganization,
assignment or receivership of Consumers.
If an event of default occurs and is continuing, either the senior note
trustee or the holders of a majority in total principal amount of the
outstanding senior notes may declare the principal amount of all senior notes to
be due and payable immediately.
The senior note trustee generally will be under no obligation to exercise
any of its rights or powers under the senior note indenture at the request or
direction of any of the holders of senior notes of such series unless those
holders have offered to the senior note trustee reasonable security or
indemnity. Subject to the provisions for indemnity and certain other limitations
contained in the senior note indenture, the
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<PAGE> 44
holders of a majority in principal amount of the outstanding senior notes of
such series generally will have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the senior note
trustee, or of exercising any trust or power conferred on the senior note
trustee. The holders of a majority in principal amount of the outstanding senior
notes of such series generally will have the right to waive any past default or
event of default (other than a payment default) on behalf of all holders of
senior notes of such series.
No holder of senior notes of a series may institute any action against
Consumers under the senior note indenture unless:
(1) that holder gives to the senior note trustee advance written
notice of default and its continuance;
(2) the holders of not less than a majority in total principal amount
of senior notes of such series then outstanding affected by that event of
default request the senior note trustee to institute such action;
(3) that holder has offered the senior note trustee reasonable
indemnity; and
(4) the senior note trustee shall not have instituted such action
within 60 days of such request.
Furthermore, no holder of senior notes will be entitled to institute any
such action if and to the extent that that action would disturb or prejudice the
rights of other holders of senior notes of such series.
Within 90 days after the occurrence of a default with respect to the senior
notes of a series, the senior note trustee must give the holders of the senior
notes of such series notice of any such default known to the senior note
trustee, unless cured or waived. The senior note trustee may withhold such
notice if it determines in good faith that it is in the interest of such holders
to do so except in the case of default in the payment of principal of, and
interest and/or premium, if any, on any senior notes of such series. Consumers
is required to deliver to the senior note trustee each year a certificate as to
whether or not, to the knowledge of the officers signing such certificate,
Consumers is in compliance with the conditions and covenants under the senior
note indenture.
Modification
Consumers and the senior note trustee cannot modify and amend the senior
note indenture without the consent of the holders of a majority in principal
amount of the outstanding affected senior notes. Consumers and the senior note
trustee cannot modify and amend the senior note indenture without the consent of
the holder of each outstanding senior note of such series to:
(1) change the maturity date of any senior note of such series;
(2) reduce the rate (or change the method of calculation thereof) or
extend the time of payment of interest on any senior note of such series;
(3) reduce the principal amount of, or premium payable on, any senior
note of such series;
(4) change the coin or currency of any payment of principal of, and
interest and/or premium on any senior note of such series;
(5) change the date on which any senior note of such series may be
redeemed or repaid at the option of its holder or adversely affect the
rights of a holder to institute suit for the enforcement of any payment on
or with respect to any senior note of such series;
(6) impair the interest of the senior note trustee in the first
mortgage bonds securing the senior notes of such series held by it or,
prior to the release date, reduce the principal amount of any series of
first mortgage bond securing the senior notes of such series to an amount
less than the principal amount of the related series of senior notes or
alter the payment provisions of such senior note mortgage bonds in a manner
adverse to the holders of the senior notes; or
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<PAGE> 45
(7) modify the senior notes of such series necessary to modify or
amend the senior note indenture or to waive any past default to less than a
majority.
Consumers and the senior note trustee can modify and amend the senior note
indenture without the consent of the holders in certain cases, including:
(1) to add to the covenants of Consumers for the benefit of the
holders or to surrender a right conferred on Consumers in the senior note
indenture;
(2) to add further security for the senior notes of such series;
(3) to add provisions enabling Consumers to be released with respect
to one or more series of outstanding senior notes from its obligations
under the covenants upon satisfaction of conditions with respect to such
series of senior notes;
(4) to supply omissions, cure ambiguities or correct defects which
actions, in each case, are not prejudicial to the interests of the holders
in any material respect; or
(5) to make any other change that is not prejudicial to the holders of
senior notes of such series in any material respect.
A supplemental indenture which changes or eliminates any covenant or other
provision of the senior note indenture (or any supplemental indenture) which has
expressly been included solely for the benefit of one or more series of senior
notes, or which modifies the rights of the holders of senior notes of such
series with respect to such covenant or provision, will be deemed not to affect
the rights under the senior note indenture of the holders of senior notes of any
other series.
Defeasance and Discharge
The senior note indenture provides that Consumers will be discharged from
any and all obligations in respect to the senior notes of such series and the
senior note indenture (except for certain obligations such as obligations to
register the transfer or exchange of senior notes, replace stolen, lost or
mutilated senior notes and maintain paying agencies) if, among other things,
Consumers irrevocably deposits with the senior note trustee, in trust for the
benefit of holders of senior notes of such series, money or certain United
States government obligations, or any combination of money or government
obligations. Through the payment of interest and principal on the deposits in
accordance with their terms must provide money in an amount sufficient, without
reinvestment, to make all payments of principal of, and any premium and interest
on, the senior notes on the dates such payments are due in accordance with the
terms of the senior note indenture and the senior notes of such series. But, if
all of the senior notes of such series are to be due within 90 days of such
deposit by redemption or otherwise, Consumers must also deliver to the senior
note trustee an opinion of counsel to the effect that the holders of the senior
notes of such series will not recognize income, gain or loss for federal income
tax purposes as a result of that defeasance or discharge of the senior note
indenture. Thereafter, the holders of senior notes must look only to the deposit
for payment of the principal of, and interest and any premium on, the senior
notes.
Consolidation, Merger and Sale or Disposition of Assets
Consumers may consolidate with or merge into, or sell or otherwise dispose
of its properties as or substantially as an entirety if:
(1) the new corporation is a corporation organized and existing under
the laws of the United States of America, any state thereof, or the
District of Columbia,
(2) the new corporation assumes the due and punctual payment of the
principal of and premium and interest on all the senior notes and the
performance of every covenant of the senior note indenture to be performed
or observed by Consumers and
(3) if prior to the release date, the new corporation assumes
Consumers' obligations under the mortgage indenture with respect to first
mortgage bonds securing senior notes.
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The conveyance or other transfer by Consumers of:
(1) all or any portion of its facilities for the generation of
electric energy,
(2) all of its facilities for the transmission of electric energy, or
(3) all of its facilities for the distribution of natural gas, in each
case considered alone or in any combination with properties described in
(1), (2) or (3) of this sentence, will not be considered a conveyance or
other transfer of all the properties of Consumers, as or substantially as
an entirety.
Certain Covenants Of Consumers
Limitation on Liens
So long as any senior notes are outstanding, Consumers may not issue,
assume, guarantee or permit to exist after the release date any debt that is
secured by any mortgage, security interest, pledge or lien (each a "lien") of or
upon any operating property of Consumers, whether owned at the date of the
senior note indenture or thereafter acquired, without in any such case
effectively securing the senior notes (together with, if Consumers shall so
determine, any other indebtedness of Consumers ranking equally with the senior
notes) equally and ratably with such debt (but only so long as such debt is so
secured). The foregoing restriction will not apply to:
(1) liens on any operating property existing at the time of its
acquisition (which liens may also extend to subsequent repairs, alterations
and improvements to such operating property);
(2) liens on operating property of a corporation existing at the time
such corporation is merged into or consolidated with, or such corporation
disposes of its properties (or those of a division) as or substantially as
an entirety to, Consumers;
(3) liens on operating property to secure the cost of acquisition,
construction, development or substantial repair, alteration or improvement
of property or to secure indebtedness incurred to provide funds for any
such purpose or for reimbursement of funds previously expended for any such
purpose, provided such liens are created or assumed contemporaneously with,
or within 18 months after, such acquisition or the completion of
substantial repair or alteration, construction, development or substantial
improvement;
(4) liens in favor of any state or any department, agency or
instrumentality or political subdivision of any state, or for the benefit
of holders of securities issued by any such entity (or providers of credit
enhancement with respect to such securities), to secure any debt
(including, without limitation, obligations of Consumers with respect to
industrial development, pollution control or similar revenue bonds)
incurred for the purpose of financing all or any part of the purchase price
or the cost of substantially repairing or altering, constructing,
developing or substantially improving operating property of Consumers; or
(5) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any lien referred to in
clauses (1) through (4), provided, however, that the principal amount of
debt secured thereby and not otherwise authorized by said clauses (1) to
(4), inclusive, shall not exceed the principal amount of debt, plus any
premium or fee payable in connection with any such extension, renewal or
replacement, so secured at the time of such extension, renewal or
replacement.
These restrictions will not apply to the issuance, assumption or guarantee
by Consumers of debt secured by a lien which would otherwise be subject to the
foregoing restrictions up to a total amount which, together with all other
secured debt of Consumers (not including secured debt permitted under any of the
foregoing exceptions) and the value of sale and lease-back transactions existing
at such time (other than sale and lease-back transactions the proceeds of which
have been applied to the retirement of certain indebtedness, sale and lease-back
transactions in which the property involved would have been permitted to be
subjected to a lien under any of the foregoing exceptions in clauses (1) to (5)
and sale and
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<PAGE> 47
lease-back transactions that are permitted by the first sentence of "Limitation
on Sale and Lease-Back Transactions" below), does not exceed the greater of 15%
of Net Tangible Assets or 15% of Capitalization.
Limitation on Sale and Lease-Back Transactions
So long as senior notes are outstanding, Consumers may not enter into or
permit to exist after the release date any sale and lease-back transaction with
respect to any operating property (except for transactions involving leases for
a term, including renewals, of not more than 48 months), if the purchaser's
commitment is obtained more than 18 months after the later of the completion of
the acquisition, construction or development of such operating property or the
placing in operation of such operating property or of such operating property as
constructed or developed or substantially repaired, altered or improved. This
restriction will not apply if:
(1) Consumers would be entitled under any of the provisions described
in clauses (1) to (5) of the first sentence of the second paragraph under
"Limitation on Liens" above to issue, assume, guarantee or permit to exist
debt secured by a lien on such operating property without equally and
ratably securing the senior notes,
(2) after giving effect to such sale and lease-back transaction,
Consumers could incur pursuant to the provisions described in the second
sentence of the second paragraph under "Limitation on Liens," at least
$1.00 of additional debt secured by liens (other than liens permitted by
clause (1)), or
(3) Consumers applies within 180 days an amount equal to, in the case
of a sale or transfer for cash, the net proceeds (not exceeding the net
book value), and, otherwise, an amount equal to the fair value (as
determined by its Board of Directors) of the operating property so leased
to the retirement of senior notes or other debt of Consumers ranking
equally with, the senior notes, subject to reduction for senior notes and
such debt retired during such 180-day period otherwise than pursuant to
mandatory sinking fund or prepayment provisions and payments at stated
maturity.
Voting Of Senior Note Mortgage Bonds Held By Senior Note Trustee
The senior note trustee, as the holder of first mortgage bonds securing
senior notes, will attend any meeting of bondholders under the mortgage
indenture, or, at its option, will deliver its proxy in connection therewith as
it relates to matters with respect to which it is entitled to vote or consent.
So long as no event of default under the senior note indenture has occurred and
is continuing, the senior note trustee will vote or consent:
(1) in favor of amendments or modifications of the mortgage indenture
of substantially the same tenor and effect as follows:
- to eliminate the maintenance and replacement fund and to recover
amounts of net property additions previously applied in
satisfaction thereof so that the same would become available as a
basis for the issuance of first mortgage bonds;
- to eliminate sinking funds or improvement funds and to recover
amounts of net property additions previously applied in
satisfaction thereof so that the same would become available as a
basis for the issuance of first mortgage bonds;
- to eliminate the restriction on the payment of dividends on common
stock and to eliminate the requirements in connection with the
periodic examination of the mortgaged and pledged property by an
independent engineer;
- to permit first mortgage bonds to be issued under the mortgage
indenture in a principal amount equal to 70% of unfunded net
property additions instead of 60%, to permit sinking funds
improvement funds requirements (to the extent not otherwise
eliminated) under the Mortgage to be satisfied by the application
of net property additions in an amount equal to 70% of such
additions instead of 60%, and to permit the acquisition of property
subject to
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certain liens prior to the lien of the Mortgage if the principal
amount of indebtedness secured by such liens does not exceed 70% of
the cost of such property instead of 60%;
- to eliminate requirements that Consumers deliver a net earnings
certificate for any purpose under the mortgage indenture;
- to raise the minimum dollar amount of insurance proceeds on account
of loss or damage that must be payable to the senior note trustee
from $50,000 to an amount equal to the greater of (A) $5,000,000
and (B) three per centum (3%) of the total principal amount of
first mortgage bonds outstanding;
- to increase the amount of the fair value of property which may be
sold or disposed of free from the lien of the mortgage indenture,
without any release or consent by the senior note trustee, from not
more than $25,000 in any calendar year to not more than an amount
equal to the greater of (A) $5,000,000 and (B) three per centum
(3%) of the total principal amount of first mortgage bonds then
outstanding;
- to permit certain mortgaged and pledged property to be released
from the lien of the mortgage indenture if, in addition to certain
other conditions, the senior note trustee receives purchase money
obligations of not more than 70% of the fair value of such property
instead of 60% and to eliminate the further requirement for the
release of such property that the total principal amount of
purchase money obligations held by the senior note trustee not
exceed 20% of the principal amount of first mortgage bonds
outstanding;
- to eliminate the restriction prohibiting the mortgage trustee from
applying cash held by it pursuant to the mortgage indenture to the
purchase of bonds not otherwise redeemable at a price exceeding
110% of the principal of such bonds, plus accrued interest; and
(2) with respect to any other amendments or modifications of the
mortgage indenture, as follows: the senior note trustee shall vote all
first mortgage bonds securing senior notes then held by it, or consent with
respect thereto, proportionately with the vote or consent of the holders of
all other first mortgage bonds outstanding under the mortgage indenture,
the holders of which are eligible to vote or consent. However, the senior
note trustee will not vote in favor of, or consent to, any amendment or
modification of the mortgage which, if it were an amendment or modification
of the senior note indenture, would require the consent of senior notes
holders (as described under "Modification,") without the prior consent of
holders of senior notes which would be required for such an amendment or
modification of the senior note indenture.
Concerning The Senior Note Trustee
The Chase Manhattan Bank is both the senior note trustee under the senior
note indenture and the mortgage trustee under the mortgage indenture. Consumers
and its affiliates maintain depositary and other normal banking relationships
with The Chase Manhattan Bank. The Chase Manhattan Bank is also a lender to
Consumers and its affiliates. The senior note indenture provides that Consumers'
obligations to compensate the senior note trustee and reimburse the senior note
trustee for expenses, disbursements and advances will constitute indebtedness
which will be secured by a lien generally prior to that of the senior notes upon
all property and funds held or collected by the senior note trustee as such.
DESCRIPTION OF FIRST MORTGAGE BONDS
General
The first mortgage bonds securing senior notes are to be issued under a
mortgage indenture as amended and supplemented by various supplemental
indentures with The Chase Manhattan Bank, as the mortgage trustee. The
statements herein concerning the mortgage indenture are an outline and do not
purport to be complete and are subject to, and qualified in their entirety by,
all of the provisions of the mortgage indenture, which is incorporated by
reference herein. They make use of defined terms and are
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qualified in their entirety by express reference to the cited sections and
articles of the mortgage indenture a copy of which will be available upon
request to the senior note trustee.
First mortgage bonds securing senior notes will be issued as security for
Consumers' obligations under the senior note indenture and will be immediately
delivered to and registered in the name of the senior note trustee. The first
mortgage bonds securing senior notes will be issued as security for senior notes
of a series and will secure the senior notes of that series until the release
date. The senior note indenture provides that the senior note trustee shall not
transfer any first mortgage bonds securing senior notes except to a successor
trustee, to Consumers (as provided in the senior note indenture) or in
compliance with a court order in connection with a bankruptcy or reorganization
proceeding of Consumers. The senior note trustee shall generally vote the first
mortgage bonds securing senior notes proportionately with what it believes to be
the vote of all other first mortgage bonds then outstanding except in connection
with certain amendments or modifications of the mortgage indenture, as described
under "Description of Senior Notes Voting of Senior Note Mortgage Bonds Held by
Senior Note Trustee."
First mortgage bonds securing senior notes will correspond to the senior
notes of its related series in respect of principal amount, interest rate,
maturity date and redemption provisions. Upon payment of the principal or
premium, if any, or interest on senior notes of a series, the related first
mortgage bonds in a principal amount equal to the principal amount of such
senior notes will, to the extent of such payment of principal, premium or
interest, be deemed fully paid and the obligation of Consumers to make such
payment shall be discharged.
Priority And Security
The first mortgage bonds securing senior notes of any series will rank
equally as to security with bonds of other series now outstanding or issued
later under the mortgage indenture. This security is a direct first lien on
substantially all of Consumers' property and franchises (other than certain
property expressly excluded from the lien (such as cash, bonds, stock and
certain other securities, contracts, accounts and bills receivables, judgments
and other evidences of indebtedness, stock in trade, materials or supplies
manufactured or acquired for the purpose of sale and/or resale in the usual
course of business or consumable in the operation of any of the properties of
Consumers, natural gas, oil and minerals, motor vehicles and certain real
property listed in Schedule A to the mortgage indenture)). This lien is subject
to excepted encumbrances (and certain other limitations) as defined and
described in the mortgage indenture. It is also subject to certain provisions of
Michigan law which provides that under certain circumstances, the State of
Michigan's lien against property on which it has incurred costs related to any
response activity that is subordinate to prior recorded liens can become
superior to such prior liens pursuant to court order. The mortgage indenture
permits, with certain limitations, the acquisition of property subject to prior
liens and, under certain conditions, permits the issuance of additional
indebtedness under such prior liens to the extent of 60% of net property
additions made by Consumers to the property subject to such prior liens.
Release And Substitution Of Property
The mortgage indenture provides that, subject to various limitations,
property may be released from the lien thereof when sold or exchanged, or
contracted to be sold or exchanged, upon the basis of:
- cash deposited with the mortgage trustee;
- bonds or purchase money obligations delivered to the mortgage trustee;
- prior lien bonds delivered to the mortgage trustee or reduced or assumed
by the purchaser;
- property additions acquired in exchange for the property released; or
- upon a showing that unfunded net property additions exist. The mortgage
indenture also permits the withdrawal of cash upon a showing that
unfunded net property additions exist or against the deposit of bonds or
the application thereof to the retirement of bonds.
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Modification Of Mortgage
The mortgage indenture, the rights and obligations of Consumers and the
rights of the bondholders may be modified by Consumers with the consent of the
holders of 75% in principal amount of the bonds and of not less than 60% of the
principal amount of each series affected. In general, however, no modification
of the terms of payment of principal or interest and no modification affecting
the lien or reducing the percentage required for modification is effective
against any bondholder without the bondholder's consent. Consumers has reserved
the right without any consent or other action by the holders of bonds of any
series created after September 15, 1993 or by the holder of any senior note or
exchange note, to amend the mortgage in order to substitute a majority in
principal amount of bonds outstanding under the mortgage for the 75% requirement
set forth above (and then only in respect of such series of outstanding bonds as
shall be affected by the proposed action) and to eliminate the requirement for a
series-by-series consent requirement.
Concerning The Mortgage Trustee
The Chase Manhattan Bank is both the mortgage trustee under the mortgage
indenture and the senior note trustee under the senior note indenture. Consumers
and its affiliates maintain depositary and other normal banking relationships
with The Chase Manhattan Bank. The Chase Manhattan Bank is also a lender to
Consumers and its affiliates. The mortgage indenture provides that Consumers'
obligations to compensate the mortgage trustee and reimburse the trustee for
expenses, disbursements and advances will constitute indebtedness which will be
secured by a lien generally prior to that of the first mortgage bonds securing
senior notes upon all property and funds held or collected by the mortgage
trustee as such.
The mortgage trustee or the holders of 20% in total principal amount of the
bonds may declare the principal due on default, but the holders of a majority in
total principal amount may annul such declaration and waive the default if the
default has been cured. Subject to certain limitations, the holders of a
majority in total principal amount may generally direct the time, method and
place of conducting any proceeding for the enforcement of the mortgage
indenture. No bondholder has the right to institute any proceedings for the
enforcement of the mortgage indenture unless that holder has given the mortgage
trustee written notice of a default, the holders of 20% of outstanding bonds
shall have tendered to the mortgage trustee reasonable security or indemnity
against costs, expenses and liabilities and requested the mortgage trustee to
take action, the mortgage trustee shall have declined to take action or failed
to do so within sixty days and no inconsistent directions shall have been given
by the holders of a majority in total principal amount of the bonds.
Defaults
The mortgage defines the following as "defaults":
- failure to pay principal when due;
- failure to pay interest for sixty days;
- failure to pay any installment of any sinking or other purchase fund for
ninety days;
- certain events in bankruptcy, insolvency or reorganization; and
- failure to perform any other covenant for ninety days following written
demand by the mortgage trustee for Consumers to cure such failure.
Consumers has covenanted to pay interest on any overdue principal and (to
the extent permitted by law) on overdue installments of interest, if any, on the
bonds under the mortgage indenture at the rate of 6% per year. The mortgage
indenture does not contain a provision requiring any periodic evidence to be
furnished as to the absence of default or as to compliance with the terms
thereof. However, Consumers is required by law to furnish annually to the
trustee a certificate as to compliance with all conditions and covenants under
the mortgage indenture.
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SUBORDINATED DEBENTURES
The subordinated debentures will be issued under the subordinated debt
indenture and will rank subordinated and junior in right of payment, to the
extent set forth in the subordinated debt indenture, to all "senior
indebtedness" (as defined below) of Consumers.
If Consumers defaults in the payment of any distributions on any senior
indebtedness when it becomes due and payable after any applicable grace period,
then, unless and until the default is cured or waived or ceases to exist,
Consumers cannot make a payment on account of or redeem or otherwise acquire the
subordinated debentures. The subordinated debt indenture provisions described in
this paragraph, however, do not prevent Consumers from making sinking fund
payments in subordinated debentures acquired prior to the maturity of senior
indebtedness or, in the case of default, prior to such default and notice
thereof. If there is any insolvency, bankruptcy, liquidation or other similar
proceeding relating to Consumers, its creditors or its property, then all senior
indebtedness must be paid in full before any payment may be made to any holders
of subordinated debentures. Holders of subordinated debentures must return and
deliver any payments received by them, other than in a plan of reorganization or
through a defeasance trust as described above, directly to the holders of senior
indebtedness until all senior indebtedness is paid in full.
"Senior indebtedness" means distributions on the following, whether
outstanding on the date of execution of the subordinated debt indenture or
thereafter incurred, created or assumed:
- indebtedness of Consumers for money borrowed by Consumers or evidenced by
debentures (other than the subordinated debentures), notes, bankers'
acceptances or other corporate debt securities or similar instruments
issued by Consumers;
- capital lease obligations of Consumers;
- obligations of Consumers incurred for deferring the purchase price of
property, with respect to conditional sales, and under any title
retention agreement (but excluding trade accounts payable arising in the
ordinary course of business);
- obligations of Consumers with respect to letters of credit;
- all indebtedness of others of the type referred to in the four preceding
clauses assumed by or guaranteed in any manner by Consumers or in effect
guaranteed by Consumers; or
- renewals, extensions or refundings of any of the indebtedness referred to
in the preceding three clauses unless, in the case of any particular
indebtedness, renewal, extension or refunding, under the express
provisions of the instrument creating or evidencing the same or the
assumption or guarantee of the same, or pursuant to which the same is
outstanding, such indebtedness or such renewal, extension or refunding
thereof is not superior in right of payment to the subordinated debt
securities.
The subordinated debt indenture does not limit the total amount of senior
indebtedness that may be issued. As of June 30, 1999, senior indebtedness of
Consumers totaled approximately $2,728 million.
Certain Covenants
If debt securities are issued to a trust or a trustee of such trust in
connection with the issuance of trust preferred securities of that trust,
Consumers will covenant that it will not (1) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of Consumers' capital stock or (2) make any payment of
principal, interest or premium, if any, on or repay or repurchase or redeem any
debt securities (including guarantees of indebtedness for money borrowed) of
Consumers that rank equal (in the case of subordinated debentures) with or
junior (in the case of senior and subordinated debentures) to that debt security
(other than (a) any dividend, redemption, liquidation, interest, principal or
guarantee payment by Consumers where the payment is made by way of securities
(including capital stock) that rank equal with or junior to the securities on
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which such dividend, redemption, interest, principal or guarantee payment is
being made, (b) payments under the Consumers' guarantees of trust securities),
if at such time (1) there shall have occurred any event of which Consumers has
actual knowledge that (a) with the giving of notice or the lapse of time, or
both, would constitute an event of default under the indentures and (b) in
respect of which Consumers shall not have taken reasonable steps to cure, (2)
Consumers shall be in default with respect to its payment of any obligations
under the guarantees or (3) Consumers will have given notice of its selection of
an extension period as provided in the indentures with respect to the Debt
Securities and will not have rescinded such notice, or such extension period, or
any extension thereof, shall be continuing.
Consumers will also covenant:
(1) to maintain directly or indirectly 100% ownership of the common
securities, provided that certain successors which are permitted pursuant
to the indentures may succeed to Consumers' ownership of the common
securities,
(2) not to voluntarily dissolve, wind-up or liquidate the trust,
except:
(a) in connection with a distribution of the debt securities to the
holders of the trust preferred securities in liquidation of such trust
or
(b) in connection with certain mergers, consolidations or
amalgamations permitted by the amended and restated trust agreement, and
(3) to use its reasonable efforts, consistent with the terms and
provisions of the amended and restated trust agreement, to cause such trust
to remain classified as a grantor trust and not as an association taxable
as a corporation for United States federal income tax purposes.
Events of Default
The subordinated debt indenture provides that events of default regarding
any series of subordinated debentures will be:
- failure to pay required interest on any subordinated debentures of such
series for 30 days;
- failure to pay principal other than a scheduled installment payment or
premium, if any, on any subordinated note of such series when due;
- failure to make any required scheduled installment payment on
subordinates notes of such series;
- failure to perform for 60 days after notice any other covenant in the
relevant indenture other than a covenant included in the relevant
indenture solely for the benefit of a series of subordinated debentures
other than such series;
- certain events of bankruptcy or insolvency, whether voluntary or not; and
- if subordinated debentures are issued, such trust is voluntarily or
involuntarily dissolved, wound-up or terminated, except in connection
with the distribution of subordinated debentures to the holders of the
common securities and the trust preferred securities in liquidation of
the trust, the redemption of all outstanding trust securities of the
trust and certain mergers, consolidation or amalgamations permitted by
the declaration of that trust.
If an event of default regarding subordinated debentures of any series
issued should occur and be continuing, either the subordinated note trustee or
the holders of 25% in the principal amount of outstanding subordinated
debentures of such series may declare each subordinated note of that series due
and payable.
Holders of a majority in principal amount of the outstanding subordinated
debentures of any series will be entitled to control certain actions of the
subordinated note trustee and to waive past defaults regarding such series. The
trustee generally will not be requested, ordered or directed by any of the
holders
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of subordinated debentures, unless one or more of such holders shall have
offered to the trustee reasonable security or indemnity.
Before any holder of any series of subordinated debentures may institute
action for any remedy, except payment on such holder's subordinated debentures
when due, the holders of not less than 25% in principal amount of the
subordinated debentures of that series outstanding must request the subordinated
note trustee to take action. Holders must also offer and give the satisfactory
security and indemnity against liabilities incurred by the trustee for taking
such action.
Consumers is required to annually furnish the subordinated note trustee a
statement as to Consumers' compliance with all conditions and covenants under
the subordinated debt indenture. The subordinated debt indenture provides that
the subordinated note trustee may withhold notice to the holders of the
subordinated debentures of any series of any default affecting such series,
except payment on holders' subordinated debentures when due, if it considers
withholding notice to be in the interests of the holders of the subordinated
debentures of such series.
Consolidation, Merger or Sale of Assets
The subordinated debt indenture provides that Consumers may consolidate
with or merge into, or sell, lease or convey its property as an entirety or
substantially as an entirety to, any other corporation if the new corporation
assumes the obligations of Consumers under the subordinated debentures and the
subordinated debt indenture and is organized and existing under the laws of the
United States of America, any U.S. state or the District of Columbia.
Modification of the Indenture
The subordinated debt indenture permits Consumers and the subordinated note
trustee to enter into supplemental indentures without the consent of the holders
of the subordinated debentures to establish the form and terms of any series of
securities under the the subordinated debt indentures.
The subordinated debt indenture also permits Consumers and the subordinated
note trustee, with the consent of the holders of at least a majority in total
principal amount of the subordinated debentures of all series then outstanding
and affected (voting as one class), to change in any manner the provisions of
the subordinated debt indenture or modify in any manner the rights of the
holders of the subordinated debentures of each such affected series. Consumers
and the relevant trustee may not, without the consent of the holder of each
subordinated debenture affected, enter into any supplemental indenture to:
- change the time of payment of the principal;
- reduce the principal amount of such subordinated debentures;
- reduce the rate or change the time of payment of interest on such
subordinated debentures;
- impair the right to institute suit for the enforcement of any payment on
any subordinated debentures when due.
In addition, no such modification may reduce the percentage in principal
amount of the subordinated debentures of the affected series, the consent of
whose holders is required for any such modification or for any waiver provided
for in the subordinated debt indenture.
Prior to the acceleration of the maturity of any subordinated debentures,
the holders, voting as one class, of a majority in total principal amount of the
subordinated debentures with respect to which a default or event of default has
occurred and is continuing, may, on behalf of the holders of all such affected
subordinated debentures, waive any past default or event of default and its
consequences, except a default or an event of default in respect of a covenant
or provision of the applicable indenture or of any subordinated debenture which
cannot be modified or amended without the consent of the holder of each
subordinated debentures affected.
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Defeasance, Covenant Defeasance and Discharge
The subordinated debt indenture provides that, at the option of Consumers,
Consumers will be discharged from all obligations in respect of the subordinated
debentures of a particular series then outstanding (except for certain
obligations to register the transfer of or exchange the subordinated debentures
of such series, to replace stolen, lost or mutilated subordinated debentures of
such series, to maintain paying agencies and to maintain the trust described
below).
If Consumers in each case irrevocably deposits in trust with the relevant
trustee money, and/or securities backed by the full faith and credit of the
United States which, through the payment of the principal thereof and the
interest thereon in accordance with their terms, will provide money in an amount
sufficient to pay all the principal and interest on the subordinated debentures
of such series on the stated maturities of such subordinated debentures in
accordance with the terms thereof.
To exercise this option, Consumers is required to deliver to the relevant
trustee an opinion of independent counsel to the effect that the exercise of
such option would not cause the holders of the subordinated debentures of such
series to recognize income, gain or loss for United States federal income tax
purposes as a result of such defeasance, and such holders will be subject to
United States federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such defeasance had not occurred.
TRUST PREFERRED SECURITIES
GENERAL
Each trust may issue, on one or more occasion, trust preferred securities
having terms described in the prospectus supplement relating thereto. The
amended and restated trust agreement of each trust will authorize the
establishment of no more than one series of trust preferred securities, having
such terms, including distributions, redemption, voting, liquidation rights and
such other preferred, deferred or other special rights or such rights or
restrictions as shall be set forth therein or otherwise established by the
trustees pursuant thereto. Reference is made to the prospectus supplement
relating to the trust preferred securities for specific terms, including:
- the distinctive designation and the number of trust preferred securities
to be offered which will represent undivided beneficial interests in the
assets of the trust;
- the annual distribution rate and the dates or date upon which such
distributions will be paid, provided, however distributions on the trust
preferred securities will be paid quarterly in arrears to holders of
trust preferred securities as of a record date on which the trust
preferred securities are outstanding;
- whether distributions on trust preferred securities would be deferred
during any deferral of interest payments on the debt securities,
provided, however that no such deferral, including extensions, if any,
may exceed 20 consecutive quarters nor extend beyond the stated maturity
date of the debt securities, and at the end of any such deferrals,
Consumers will make all interest payments then accrued or deferred and
unpaid (including any compounded interest);
- the amount of any liquidation preference;
- the obligation, if any, of the trust to redeem trust preferred securities
through the exercise of Consumers of an option on the corresponding debt
securities and the price or prices at which, the period or periods within
which and the terms and conditions upon which trust preferred securities
will be purchased or redeemed, in whole or in part, under to such
obligation;
- the period or periods within which and the terms and conditions, if any,
including the price or prices or the rate or rates of conversion or
exchange and the terms and conditions of any adjustments, upon which the
trust preferred securities shall be convertible or exchangeable at the
option of the holder of the trust preferred securities of other property
or cash;
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- the voting rights, if any, of the trust preferred securities in addition
to those required by law and in the amended and restated trust agreement,
or set forth under a Consumers' guarantee (as defined below);
- the additional payments, if any, which the trust will pay as a
distribution as necessary so that the net amounts reserved by the trust
and distributable to the holders of the trust preferred securities, after
all taxes, duties, assessments or governmental charges of whatever nature
(other than withholding taxes) have been paid will not be less than the
amount that would have been reserved and distributed by the trust, and
the amount the holders of the trust preferred securities would have
reserved, had no such taxes, duties, assessments or governmental charges
been imposed;
- the terms and conditions, if any, upon which the debt securities may be
distributed to holders of trust preferred securities; and
- any other relative rights, powers, preferences, privileges, limitations
or restrictions of the trust preferred securities not inconsistent with
the amended and restated trust agreement or applicable law.
All trust preferred securities offered hereby will be irrevocably
guaranteed by Consumers, on a senior or subordinated basis, as applicable, and
to the extent set forth below under "The Guarantees." Any applicable federal
income tax considerations applicable to any offering of the trust preferred
securities will be described in the prospectus supplement relating thereto. The
total number of trust preferred securities which the trust shall have authority
to issue will be pursuant to the terms of the amended and restated trust
agreement.
EFFECT OF OBLIGATIONS UNDER THE DEBT SECURITIES AND THE GUARANTEES
As set forth in the amended and restated trust agreements, the sole purpose
of the trusts are to issue the common securities and the trust preferred
securities evidencing undivided beneficial interests in the assets of each of
the trusts, and to invest the proceeds from such issuance and sale to acquire
directly the debt securities from Consumers.
As long as payments of interest and other payments are made when due on the
debt securities, such payments will be sufficient to cover distributions and
payments due on the common securities and the trust preferred securities because
of the following factors:
- the total principal amount of debt securities will be equal to the sums
of the total stated liquidation amount of the common securities and the
trust preferred securities;
- the interest rate and the interest and other payment dates on the debt
securities will match the distribution rate and distribution and other
payment dates for the common securities and the trust preferred
securities;
- Consumers will pay all, and each trust shall not be obligated to pay,
directly or indirectly, all its costs, expenses, debt and obligations
(other than with respect to the common securities and the trust preferred
securities); and
- the amended and restated trust agreement further provides that Consumers
trustees will not take or cause or permit the trust to, among other
things, engage in any activity that is not consistent with the purposes
of the trust.
Payments of distributions (to the extent funds for distributions are
available) and other payments due on the trust preferred securities (to the
extent funds for other payments are available) are guaranteed by Consumers as
and to the extent discussed under "The Guarantees" below. If Consumers does not
make interest payments on the debt securities purchased by the trust, it is
expected that the trusts will not have sufficient funds to pay distributions on
the trust preferred securities. The Consumers guarantees do not apply to any
payment of distributions unless and until the trusts have sufficient funds for
the payment of distributions and other payments on the trust preferred
securities only if and to the extent that Consumers
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has made a payment of interest or principal on the debt securities held by the
trusts as their sole asset. The Consumers guarantees, when taken together with
Consumers' obligations under the debt securities and the related indenture and
its obligations under the applicable amended and restated trust agreement,
including its obligations to pay costs, expenses, debts and liabilities of the
trust (other than with respect to the common securities and the trust preferred
securities), provide a full and unconditional guarantee of amounts on the trust
preferred securities.
If Consumers fails to make interest or other payments on the debt
securities when due (taking account of any extension period), the applicable
amended and restated trust agreements provide a mechanism whereby the holders of
the trust preferred securities may direct a property trustee to enforce its
rights under the debt securities. If a property trustee fails to enforce its
rights under the debt securities, a holder of trust preferred securities may, to
the fullest extent permitted by applicable law, institute a legal proceeding
against Consumers to enforce a property trustee's rights under the debt
securities without first instituting any legal proceeding against a property
trustee or any other person or entity. Notwithstanding the foregoing, if an
event of default has occurred and is continuing under the applicable amended and
restated trust agreement, and such event is attributable to the failure of
Consumers to pay interest or principal on the debt securities on the date such
interest or principal is otherwise payable (or in the case of redemption on the
redemption date), then a holder of trust preferred securities may institute
legal proceedings directly against Consumers to obtain payment. If Consumers
fails to make payments under the guarantees, the guarantees provide a mechanism
whereby the holders of the trust preferred securities may direct a guarantee
trustee to enforce its rights thereunder. Any holder of trust preferred
securities may institute a legal proceeding directly against Consumers to
enforce a guarantee trustee's rights under a guarantee without first instituting
a legal proceeding against the trust, the guarantee trustee, or any other person
or entity.
THE GUARANTEES
Set forth below is a summary of information concerning the guarantees which
will be executed and delivered by Consumers for the benefit of the holders, from
time to time, of the trust preferred securities. Each guarantee will be
qualified as an indenture under the Trust Indenture Act of 1939. The Bank of New
York will act as indenture trustee under the guarantees for the purpose of
compliance with the provisions of the Trust Indenture Act of 1939. This summary
does not purport to be complete and is subject in all respects to the provisions
of, and is qualified in its entirety by reference to, the guarantees, which is
filed as an exhibit to the Registration Statement of which this prospectus forms
a part.
General
Consumers will irrevocably agree to pay in full, on a senior or
subordinated basis, as applicable, to the extent set forth herein, the guarantee
payments (as described below) to the holders of the trust preferred securities,
as and when due, regardless of any defense, right of set-off or counterclaim
that the trust may have or assert other than the defense of payment. The
following payments with respect to the trust preferred securities, to the extent
not paid by or on behalf of the trust, will be subject to a guarantee by
Consumers of:
(1) any accumulated and unpaid distributions required to be paid on
the trust preferred securities, to the extent that the trust has funds on
hand available therefor at such time;
(2) the redemption price with respect to any trust preferred
securities called for redemption to the extent that the trust has funds on
hand available therefor at such time; or
(3) upon a voluntary or involuntary dissolution, winding up or
liquidation of the trust (unless the debt securities are distributed to
holders of the trust preferred securities), the lesser of (a) the
liquidation distribution, to the extent that the trust has funds on hand
available the distribution at such time, and (b) the amount of assets of
the trust remaining available for distribution to holders of trust
preferred securities.
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Consumers' obligation to make a guarantee payment may be satisfied by
direct payment of the required amounts of Consumers to the holders of the trust
preferred securities or by causing the trust to pay such amount to such holders.
The Consumers guarantees will be irrevocable guarantees, on a senior or
subordinated basis, as applicable, of the trust's obligations under the trust
preferred securities, but will apply only to the extent that the trust has funds
sufficient to make such payments, and are not guarantees of collection. If
Consumers does not make interest payments on the debt securities held by the
trust, the trust will not be able to pay distributions on the trust preferred
securities and will not have funds legally available therefor.
Consumers has, through the guarantees, the applicable amended and restated
trust agreements, the senior notes, the subordinated debentures, and the
indentures, taken together, fully, irrevocably and unconditionally guaranteed
all of the trust's obligations under the trust preferred securities. No single
document standing alone or operating in conjunction with fewer than all of the
other documents constitutes such guarantee. It is only the combined operation of
these documents that has the effect of providing a full, irrevocable and
unconditional guarantee of the trust's obligations under the trust preferred
securities.
Consumers has also agreed separately to irrevocably and unconditionally
guarantee the obligations of the trust with respect to the common securities to
the same extent as the guarantees of the preferred securities, except that upon
the occurrence and during the continuation of a amended and restated trust
agreement Event of Default, holders of trust preferred securities shall have
priority over holders of common securities with respect to distributions and
payments on liquidation, redemption or otherwise.
Certain Covenants of Consumers
Consumers will also covenant that it will not
(1) declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any of
Consumers' capital stock or
(2) make any payment of principal, interest or premium, if any, on or
repay or repurchase or redeem any debt securities (including guarantees of
indebtedness for money borrowed) of Consumers that rank equal (in the case
of subordinated debentures with or junior in the case of the senior and
subordinated debentures) to the debt securities (other than (a) any
dividend, redemption, liquidation, interest, principal or guarantee payment
by Consumers where the payment is made by way of securities (including
capital stock) that rank equal with or junior to the securities on which
such dividend, redemption, interest, principal or guarantee payment is
being made, (b) payments under the Consumers guarantees of the trust
securities, (c) as a result of a reclassification of Consumers' capital
stock or the exchange or conversion of one series or class of Consumers'
capital stock for another series or class of Consumers' capital stock and
(d) the purchase of fractional interests in shares of Consumers' capital
stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged) if at such time (1)
there shall have occurred any event of which Consumers has actual knowledge
that (a) with the giving of notice or the lapse of time, or both, would
constitute a event of default and (b) in respect of which Consumers shall
not have taken reasonable steps to cure, (2) Consumers shall be in default
with respect to its payment of any obligations under the guarantee or
(3) Consumers shall have given notice of its selection of an extension
period as provided in the indentures with respect to the debt securities
and shall not have rescinded such notice, or such extension period, or any
extension thereof, shall be continuing.
Consumers also will covenant to:
(1) maintain directly or indirectly 100% ownership of the common
securities, provided that certain successors which are permitted pursuant
to the indentures may succeed to Consumers' ownership of the common
securities,
24
<PAGE> 58
(2) not voluntarily dissolve, wind-up or liquidate the trust, except:
- in connection with a distribution of the debt securities to the
holders of the trust preferred securities in liquidation of the
trust, or
- in connection with certain mergers, consolidations or amalgamations
permitted by the amended and restated trust agreement, and
(3) use its reasonable efforts, consistent with the terms and
provisions of the applicable amended and restated trust agreement, to cause
the trust to remain classified as a grantor trust and not as an association
taxable as a corporation for United States federal income tax purposes.
Amendments and Assignment
Except with respect to any changes which do not materially adversely affect
the rights of holders of the trust preferred securities (in which case no vote
will be required), the Consumers guarantees of the trust preferred securities
may not be amended without the prior approval of the holders of not less than a
majority in total liquidation amount of such outstanding trust preferred
securities. All guarantees and agreements contained in the guarantees shall bind
the successors, assigns, receivers, trustees and representatives of Consumers
and shall inure to the benefit of the holders of the trust preferred securities
then outstanding.
Termination of the Guarantees
The Consumers guarantees of the trust preferred securities will terminate
and be of no further force and effect upon full payment of the redemption price
of the trust preferred securities, upon full payment of the amounts payable upon
liquidation of the trust or upon distribution of the debt securities to the
holders of the trust preferred securities in exchange for all of the trust
preferred securities. The guarantees will continue to be effective or will be
reinstated, as the case may be, if at any time any holder of trust preferred
securities must restore payment of any sums paid under such trust preferred
securities or the guarantees.
Events of Default
An event of default under a Consumers guarantee of the trust preferred
securities will occur upon the failure of Consumers to perform any of its
payment or other obligations thereunder. The holders of a majority in total
liquidation amount of the trust preferred securities have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to a guarantee trustee in respect of a guarantee or to direct the exercise of
any trust or power conferred upon a guarantee trustee under the guarantees.
If a guarantee trustee fails to enforce a Consumers guarantee of the trust
preferred securities, any holder of the trust preferred securities may institute
a legal proceeding directly against Consumers to enforce its rights under such
guarantee without first instituting a legal proceeding against the trust, the
guarantee trustee or any other person or entity. In addition, any record holder
of trust preferred securities shall have the right, which is absolute and
unconditional, to proceed directly against Consumers to obtain guarantee
payments, without first waiting to determine if the guarantee trustee has
enforced a guarantee or instituting a legal proceeding against the trust, the
guarantee trustee or any other person or entity. Consumers has waived any right
or remedy to require that any action be brought just against the trust, or any
other person or entity before proceeding directly against Consumers.
25
<PAGE> 59
Status of the Guarantees
The Consumers guarantee of the trust preferred securities will constitute
unsecured obligations of Consumers and will rank:
(1) equal to or subordinate and junior in right of payment to all
other liabilities of Consumers, as applicable,
(2) equal with the most senior preferred stock now or hereafter issued
by Consumers and with any guarantee now or hereafter entered into by
Consumers in respect of any preferred or preference stock of any affiliate
of Consumers, and
(3) senior to Consumers' common stock.
The Consumers guarantee of the trust preferred securities will constitute a
guarantee of payment and not of collection (i.e., the guaranteed party may
institute a legal proceeding directly against the guarantor to enforce its
rights under the guarantee without first instituting a legal proceeding against
any other person or entity). The guarantees will be held for the benefit of the
holders of the trust preferred securities. The guarantees will not be discharged
except by payment of the guarantee payments in full to the extent not paid by
the trust or upon distribution of the debt securities to the holders of the
trust preferred securities. The guarantees do not place a limitation on the
amount of additional indebtedness that may be incurred by Consumers.
PLAN OF DISTRIBUTION
Consumers and/or the trusts may sell the offered securities:
(1) through the solicitation of proposals of underwriters or dealers
to purchase the offered securities;
(2) through underwriters or dealers on a negotiated basis;
(3) directly to a limited number of purchasers or to a single
purchaser; or
(4) through agents.
The prospectus supplement with respect to any offered securities will set
forth the terms of such offering, including the name or names of any
underwriters, dealers or agents; the purchase price of the offered securities
and the proceeds to Consumers and/or the trust from such sale; any underwriting
discounts and commissions and other items constituting underwriters'
compensation; any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers and any securities exchange on which
such offered securities may be listed. Any initial public offering price,
discounts or concessions allowed or reallowed or paid to dealers may be changed
from time to time.
If underwriters are used in the sale, the offered securities will be
acquired by the underwriters for their own account and may be resold on one or
more occasions in one or more transactions, including negotiated transactions,
at a fixed public offering price or at varying prices determined at the time of
sale. The offered securities may be offered to the public either through
underwriting syndicates represented by one or more managing underwriters or
directly by one or more firms acting as underwriters. The underwriter or
underwriters with respect to a particular underwritten offering offered
securities will be named in the prospectus supplement relating to such offering
and, if an underwriting syndicate is used, the managing underwriter or
underwriters will be set forth on the cover of such prospectus supplement.
Unless otherwise set forth in the prospectus supplement relating thereto, the
obligations of the underwriters to purchase the offered securities will be
subject to certain conditions precedent, and the underwriters will be obligated
to purchase all the offered securities if any are purchased.
If dealers are utilized in the sale of offered securities, Consumers and/or
the trusts will sell such offered securities to the dealers as principals. The
dealers may then resell such offered securities to the
26
<PAGE> 60
public at varying prices to be determined by such dealers at the time of resale.
The names of the dealers and the terms of the transaction will be set forth in
the prospectus supplement relating thereto.
The offered securities may be sold directly by Consumers and/or the trusts
or through agents designated by Consumers and/or the trusts from time to time.
Any agent involved in the offer or sale of the offered securities in respect to
which this prospectus is delivered will be named, and any commissions payable by
Consumers and/or the trusts to such agent will be set forth, in the prospectus
supplement relating thereto. Unless otherwise indicated in the prospectus
supplement, any such agent will be acting on a best efforts basis for the period
of its appointment.
The offered securities may be sold directly by Consumers and/or the trusts
to institutional investors or others, who may be deemed to be underwriters
within the meaning of the Securities Act with respect to any resale thereof. The
terms of any such sales will be described in the prospectus supplement relating
thereto.
Agents, dealers and underwriters may be entitled under agreements with
Consumers and/or the trusts to indemnification by Consumers and/or the trust
against certain civil liabilities, including liabilities under the Securities
Act, or to contribution with respect to payments which such agents, dealers or
underwriters may be required to make in respect thereof. Agents, dealers and
underwriters may be customers of, engage in transactions with, or perform
services for Consumers and/or the trust in the ordinary course of business.
The offered securities may also be offered and sold, if so indicated in the
applicable prospectus supplement, in connection with a remarketing upon their
purchase, in accordance with a redemption or repayment pursuant to their terms,
or otherwise, by one or more firms ("remarketing firms"), acting as principals
for their own accounts or as agents for Consumers and/or the trusts. Any
remarketing firm will be identified and the terms of its agreement, if any, with
its compensation will be described in the applicable prospectus supplement.
Remarketing firms may be deemed to be underwriters, as such term is defined in
the Securities Act, in connection with the offered securities remarketed
thereby. Remarketing firms may be entitled under agreements which may be entered
into with Consumers and/or the trusts to indemnification or contribution by
Consumers and/or the trusts against certain civil liabilities, including
liabilities under the Securities Act, and may be customers of, engage in
transactions or perform services for Consumers and its subsidiaries in the
ordinary course of business.
The offered securities may or may not be listed on a national securities
exchange. Reference is made to the prospectus supplement with regard to such
matter. No assurance can be given that there will be a market for any of the
offered securities.
LEGAL OPINIONS
Opinions as to the legality of certain of the offered securities will be
rendered for Consumers by Michael D. Van Hemert, Esq., Assistant General Counsel
for CMS Energy. Certain matters of Delaware law relating to the validity of the
trust preferred securities will be passed upon on behalf of the trusts by
Richards, Layton & Finger, P.A., special Delaware counsel to the trusts. Certain
United States federal income taxation matters may be passed upon for Consumers
and the trust by either Theodore J. Vogel, tax counsel for Consumers, or by
special tax counsel to Consumers and of the trust, who will be named in the
prospectus supplement. Certain legal matters with respect to offered securities
will be passed upon by counsel for any underwriters, dealers or agents, each of
whom will be named in the related prospectus supplement.
EXPERTS
The consolidated financial statements and schedule of Consumers as of
December 31, 1998 and 1997, and for each of the three years in the period ended
December 31, 1998 incorporated by reference in this prospectus, have been
audited by Arthur Andersen LLP, independent public accountants, as indicated in
27
<PAGE> 61
their reports with respect thereto, and are included herein in reliance upon the
authority of said firm as experts in accounting and auditing in giving said
reports.
With respect to the unaudited interim consolidated financial information
for the periods ended March 31 and June 30, 1999 and 1998, Arthur Andersen LLP
has applied limited procedures in accordance with professional standards for a
review of that information. However, their separate reports thereon state that
they did not audit and they did not express an opinion on that interim
consolidated financial information.
Accordingly, the degree of reliance on their reports on that information
should be restricted in light of the limited nature of the review procedures
applied. In addition, the accountants are not subject to the liability
provisions of Section 11 of the Securities Act, for their reports on the
unaudited interim consolidated financial information because these reports are
not "reports" or a part of the registration statement prepared or certified by
the accountants within the meaning of Sections 7 and 11 of the Securities Act.
Future consolidated financial statements of Consumers and the reports
thereon of Arthur Andersen LLP also will be incorporated by reference in this
prospectus in reliance upon the authority of that firm as experts in giving
those reports to the extent that said firm has audited said consolidated
financial statements and consented to the use of their reports thereon.
28
<PAGE> 62
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PREFERRED SECURITIES
CONSUMERS ENERGY COMPANY
FINANCING III
% TRUST ORIGINATED PREFERRED SECURITIES(SM)("TOPRS(SM)")
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED, AS DESCRIBED HEREIN, BY
CONSUMERS ENERGY COMPANY
--------------------------------------------
PROSPECTUS SUPPLEMENT
--------------------------------------------
MERRILL LYNCH & CO.
A.G. EDWARDS & SONS, INC.
FIRST OF MICHIGAN
DIVISION OF FAHNESTOCK & CO. INC.
MORGAN STANLEY DEAN WITTER
PRUDENTIAL SECURITIES
RAYMOND JAMES & ASSOCIATES, INC.
, 1999
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 63
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<CAPTION>
AMOUNT
------
<S> <C>
Filing fee -- Securities and Exchange Commission............ 145,900
*Listing on New York Stock Exchange......................... 47,800
*Trustees expenses.......................................... 15,000
*Printing and Engraving..................................... 215,000
*Services of counsel........................................ 35,000
*Services of independent public accountants, Arthur Andersen
LLP....................................................... 5,000
*Rating Agency Fees, Collateral Agent's and Purchase........ 90,000
*Blue Sky fees and expenses................................. 10,000
*Miscellaneous.............................................. 10,000
--------
Total..................................................... 573,700
========
</TABLE>
- ---------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The following resolution was adopted by the Board of Directors of Consumers
on May 6, 1987:
RESOLVED: That effective March 1, 1987 the Company shall indemnify to the
full extent permitted by law every person (including the estate, heirs and legal
representatives of such person in the event of the decease, incompetency,
insolvency or bankruptcy of such person) who is or was a director, officer,
partner, trustee, employee or agent of the Company, or is or was serving at the
request of the Company as a director, officer, partner, trustee, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against all liability, costs, expenses, including attorneys' fees,
judgments, penalties, fines and amounts paid in settlement, incurred by or
imposed upon the person connection with or resulting from any claim or any
threatened, pending or completed action, suit or proceeding whether civil,
criminal, administrative, investigative or of whatever nature, arising from the
person's service or capacity as, or by reason of the fact that the person is or
was, a director, officer, partner, trustee, employee or agent of the Company or
is or was serving at the request of the Company as a director, officer, partner,
trustee, employee or agent of another corporation partnership, joint venture,
trust or other enterprise. Such right of indemnification shall not be deemed
exclusive of any other rights to which the person may be entitled under statute,
bylaw, agreement, vote of shareholders or otherwise.
Article XIII, Section 1 of Consumers Bylaws provides:
The Company may purchase and maintain liability insurance, to the full
extent permitted by law, on behalf of any person who is or was a director,
officer, employee or agent of the Company, or is or was serving at the request
of the Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against such person and incurred by such person in any such capacity.
Article V of Consumers Restated Articles of Incorporation, as amended
reads:
A director shall not be personally liable to the Company or its
shareholders for monetary damages for breach of duty as a director except (i)
for a breach of the director's duty of loyalty to the Company or its
shareholders, (ii) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (iii) for a violation of
Section 551(1) of the Michigan Business Corporation Act, and (iv) any
transaction from which the director derived an improper personal benefit. No
amendment to or repeal of this Article V, and no modification to its provisions
by law, shall apply to, or have any effect upon, the liability or alleged
liability of any director of the Company for or with respect to any acts or
omissions of such director occurring prior to such amendment, repeal or
modification.
II-1
<PAGE> 64
Article VI of Consumers Restated Articles of Incorporation, as amended
reads:
Each director and each officer of the Company shall be indemnified by the
Company to the fullest extent permitted by law against expenses (including
attorneys' fees), judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by him or her in connection with the defense of
any proceeding in which he or she was or is a party or is threatened to be made
a party by reason of being or having been a director or an officer of the
Company. Such right of indemnification is not exclusive of any other rights to
which such director or officer may be entitled under any now or thereafter
existing statute, any other provision of these Articles, bylaw, agreement, vote
of shareholders or otherwise. If Business Corporation Act of the State of
Michigan is amended after approval by the shareholders of this Article VI to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Company shall be
eliminated or limited to the fullest extent permitted by the Business
Corporation Act of the State of Michigan, as so amended. Any repeal or
modification of this Article VI by the shareholders of the Company shall not
adversely affect any right or protection of a director of the Company existing
at the time of such repeal or modification.
Sections 561 through 571 of the Michigan Business Corporation Act provides
Consumers with the power to indemnify directors, officers, employees and agents
against certain expenses and payments, and to purchase and maintain insurance on
behalf of directors, officers, employees and agents.
Officers and directors are covered within specified monetary limits by
insurance against certain losses arising from claims made by reason of their
being directors or officers of Consumers or of Consumers' subsidiaries and
Consumers' officers and directors are indemnified against such losses by reason
of their being or having been directors of officers of another corporation,
partnership, joint venture, trust or other enterprise at Consumers' request. In
addition, Consumers has indemnified each of its present directors by contracts
that contain affirmative provisions essentially similar to those in Sections 561
through 571 of the Michigan Business Corporation Act cited above.
Officers and directors and Regular Trustees of the trust are covered within
specified monetary limits by insurance against certain losses arising from
claims made by reason of their being directors or officers of Consumers or of
Consumers' subsidiaries and Consumers' officers and directors are indemnified
against such losses by reason of their being or having been directors of
officers or another corporation, partnership, joint venture, trust or other
enterprise at Consumers' request. In addition, Consumers has indemnified each of
its present directors by contracts that contain affirmative provisions
essentially similar to those in sections 561 through 571 of the Michigan
Business Corporation Act cited above.
The amended and restated trust agreement provides that to the fullest
extent permitted by applicable law, Consumers shall indemnify and hold harmless
each of the Trustees, any Affiliate of the Trustees, any officer, director,
shareholder, employee, representative or agent of any Trustee and any employee
or agent of the trust or its Affiliates (each a "Indemnified Person"), from and
against any loss, damage, liability, tax, penalty, expense or claim of any kind
or nature whatsoever incurred by such Indemnified Person by reason the creation,
operation or termination of the trust or any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the trust and in a
manner such Indemnified Person reasonably believed to be within the scope of
authority conferred on such Indemnified Person by the amended and restated trust
agreement, except that no Indemnified Person shall be entitled to be indemnified
in respect of any loss, damage or claim incurred by such Indemnified Person by
reason of negligence or willful misconduct with respect to such acts or
omissions.
II-2
<PAGE> 65
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S> <C>
(1)(a) -- Form of Underwriting Agreement with respect to the trust
preferred securities.
*(3)(a) -- Certificate of Amendment to the Articles of Incorporation of
Consumers dated March 10, 1997 and Restated Articles of
Incorporation of Consumers. (Designated in Consumers' Form
10-K for the year ended December 31, 1996, File No. 1-5611,
as Exhibit (3)(c).)
*(3)(b) -- By-Laws of Consumers. (Designated in Consumers' Form 10-K
for the year ended December 31, 1996, No. 1-5611 as
Exhibit(3)(d).)
*(4)(a) -- Indenture dated as of February 1, 1998 between Consumers
Energy Company and The Chase Manhattan Bank, as Trustee.
(Designated in Consumers' Form 10-K for the year ended
December 31, 1997, File No. 1-5611, as Exhibit (4)(c).)
*(4)(b) -- First Supplemental Indenture dated as of May 1, 1998 between
Consumers Energy Company and The Chase Manhattan Bank, as
Trustee. Designated in Consumers' Form 10-Q for the quarter
ended March 31, 1998, File No. 1-5611, as Exhibit (4)(a).)
*(4)(c) -- Second Supplemental Indenture dated as of June 15, 1998
between Consumers Energy Company and The Chase Manhattan
Bank, as Trustee. (Designated in Consumers Energy Company's
Registration Statement on Form S-4 dated July 13, 1998, File
No. 333-58943, as Exhibit (4)(b).)
*(4)(d) -- Third Supplemental Indenture dated as of October 29, 1998
between Consumers Energy Company and The Chase Manhattan
Bank, as Trustee. (Designated in Consumers' Form 10-Q for
the quarter ended September 30, 1998, File No. 1-5611, as
Exhibit (4)(a).)
*(4)(e) -- Indenture dated as of September 1, 1945, between Consumers
Energy Company and Chemical Bank (successor to Manufacturers
Hanover Trust Company, as Trustee, including therein
indentures supplemental thereto through the Forty-third
supplemental Indenture dated as of May 1, 1979. (Designated
in Consumers Energy Company's Registration Statement No.
2-65973, as Exhibit (b)(1)-(4).)
Indentures Supplemental thereto:
Sup Ind/Dated as of:
67th 11/15/89 Reg. No. 33-31866(4)(d)
68th 06/15/93 Reg. No. 33-41126(4)(d)
69th 09/15/93 Form 8-K dated September 21, 1993, File
No. 1-5611(4)
70th 02/01/98 Form 10-K for year ended December 31,
1997, File No. 1-5611(4)
71st 03/01/98 Form 10-K for year ended December 31,
1997, File No. 1-5611(4)
72nd 05/01/98 Form 10-Q for period ended March 31, 1998,
File No. 1-5611(4)(b)
73rd 06/15/98 Reg. No. 333-58943(4)(d)
74th 10/29/98 Form 10-Q for period ended September 30,
1998, File No. 1-5611(4)(b)
(4)(f) -- Instruments defining the rights of security holders,
including indentures. Consumers Energy Company hereby agrees
to furnish to the SEC upon request a copy of any instrument
covering securities the amount of which does not exceed 10%
of the total assets of Consumers Energy Company and its
subsidiaries on a consolidated basis.
(4)(g) -- Certificate of Trust of Consumers Energy Company Financing
III
</TABLE>
II-3
<PAGE> 66
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S> <C>
(4)(h) -- Certificate of Trust of Consumers Energy Company Financing
IV
(4)(i) -- Form of Amended and Restated Declaration of Trust
(4)(j) -- Form of Supplemental Indenture to be used with the
Subordinated Debentures issued in connection with the
Preferred Securities
(4)(k) -- Form of Subordinated Debenture (included in (4)(k))
(4)(l) -- Form of Trust Preferred Security (included in (4)(j))
(4)(m) -- Form of Preferred Securities Guarantee Agreement
(4)(n) -- Form of Common Securities Guarantee Agreement
(4)(o) -- Form of Senior Debenture (included in (4)(a))
(5)(a) -- Opinion of Michael D. Van Hemert, Assistant General Counsel
for CMS Energy
(5)(b) -- Opinion of Richards, Layton and Finger, P.A. regarding the
legality of the trust preferred securities of Consumers
Energy Company Financing III
(5)(c) -- Opinion of Richards, Layton and Finger, P.A. regarding the
legality of the trust preferred securities of Consumers
Energy Company Financing IV
(8) -- Opinion of Theodore J. Vogel, tax counsel to Consumers
(12) -- Statement regarding computation of ratios of earnings to
fixed charges and ratios of earnings to fixed charges and
preferred stock dividends
(15) -- Letter re unaudited interim financial information
(23)(a) -- Consent of Michael D. VanHemert, Assistant General Counsel
for CMS Energy (included in Exhibit (5)(a) above)
(23)(b) -- Consent of Richards, Layton and Finger (included in Exhibit
(5)(b) and (5)(c) above)
(23)(c) -- Consent of Arthur Andersen, LLP
(24) -- Powers of Attorney
(25)(a) -- Statement of Eligibility and Qualification of The Chase
Manhattan Bank (Senior Note Trustee of Consumers Energy
Company)
(25)(b) -- Statement of Eligibility and Qualification of the Bank of
New York (Subordinated Notes Trustee of Consumers Energy
Company)
(25)(c) -- Statement of Eligibility of Property Trustee of Consumers
Energy Company Financing III
(25)(d) -- Statement of Eligibility of Property Trustee of Consumers
Energy Company Financing IV
(25)(e) -- Statement of Eligibility of Preferred Guarantee Trustee of
Consumers Energy Company Financing III
(25)(f) -- Statement of Eligibility of the Preferred Guarantee Trustee
of Consumers Energy Financing IV
</TABLE>
- ---------------
* Previously filed
Exhibits listed above which have been filed with the Securities and
Exchange Commission are incorporated herein by reference with the same effect as
if filed with this Registration Statement.
ITEM 17. UNDERTAKINGS.
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement: (i) To
include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933; (ii) To reflect in the prospectus any facts or events
II-4
<PAGE> 67
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
total, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the SEC pursuant to
Rule 424(b) if, in the total, the changes in volume and price represent no
more than a 20% change in the maximum total offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement; (iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided, however, that (i) and (ii) do not apply if the registration
statement is on Form S-3 or Form S-8, and the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the SEC by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to section 13(a) or section 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in this registration statement
shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions described
under Item 15 above, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that as claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
be governed by the final adjudication of such issue.
(6) That (1) for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of this Registration Statement as of the time it was declared
effective; and (2) for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
II-5
<PAGE> 68
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Form S-3
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Jackson, and State of Michigan, on the 19th day
of October, 1999.
Consumers Energy Company
By: /s/ ALAN M. WRIGHT
------------------------------------
Alan M. Wright
Senior Vice President
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the 19th day of October, 1999.
<TABLE>
<CAPTION>
NAME TITLE
---- -----
<C> <S>
(i) Principal executive officer:
/s/ VICTOR J. FRYLING President
- ------------------------------------------
Victor J. Fryling
(ii) Principal financial officer:
/s/ ALAN M. WRIGHT Senior Vice President and Chief Financial
- ------------------------------------------ Officer
Alan M. Wright
(iii) Controller or principal accounting officer:
/s/ DENNIS DAPRA Vice President and Controller
- ------------------------------------------
Dennis DaPra
* Director
- ------------------------------------------
William T. McCormick, Jr.
* Director
- ------------------------------------------
(John M. Deutch)
* Director
- ------------------------------------------
(James J. Duderstadt)
* Director
- ------------------------------------------
(Kathleen R. Flaherty)
* Director
- ------------------------------------------
(Victor J. Fryling)
* Director
- ------------------------------------------
(Earl D. Holton)
* Director
- ------------------------------------------
(William U. Parfet)
</TABLE>
II-6
<PAGE> 69
<TABLE>
<CAPTION>
NAME TITLE
---- -----
<C> <S>
* Director
- ------------------------------------------
(Percy A. Pierre)
* Director
- ------------------------------------------
(Kenneth L. Way)
* Director
- ------------------------------------------
(Kenneth Whipple)
* Director
- ------------------------------------------
(John B. Yasinsky)
*By: /s/ ALAN M. WRIGHT
------------------------------------
Alan M. Wright
Attorney in-fact
</TABLE>
II-7
<PAGE> 70
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Consumers
Energy Company Trust III certifies that it has reasonable grounds to believe
that it meets all the requirements for filing on Form S-3 and has duly caused
this Form S-3 Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Jackson, State of
Michigan, on the 19th day of October, 1999.
CONSUMERS ENERGY COMPANY TRUST III
By: /s/ ALAN M. WRIGHT
--------------------------------------
Alan M. Wright, Trustee
By: /s/ THOMAS A. MCNISH
--------------------------------------
Thomas A. McNish, Trustee
II-8
<PAGE> 71
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Consumers
Energy Company Trust IV certifies that it has reasonable grounds to believe that
it meets all the requirements for filing on Form S-3 and has duly caused this
Form S-3 Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Jackson, State of Michigan, on the
19th day of October, 1999.
CONSUMERS ENERGY COMPANY TRUST IV
By: /s/ ALAN M. WRIGHT
--------------------------------------
Alan M. Wright, Trustee
By: /s/ THOMAS A. MCNISH
--------------------------------------
Thomas A. McNish, Trustee
II-9
<PAGE> 72
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S> <C>
(1)(a) -- Form of Underwriting Agreement with respect to the trust
preferred securities.
*(3)(a) -- Certificate of Amendment to the Articles of Incorporation of
Consumers dated March 10, 1997 and Restated Articles of
Incorporation of Consumers. (Designated in Consumers' Form
10-K for the year ended December 31, 1996, File No. 1-5611,
as Exhibit (3)(c).)
*(3)(b) -- By-Laws of Consumers. (Designated in Consumers' Form 10-K
for the year ended December 31, 1996, No. 1-5611 as
Exhibit(3)(d).)
*(4)(a) -- Indenture dated as of February 1, 1998 between Consumers
Energy Company and The Chase Manhattan Bank, as Trustee.
(Designated in Consumers' Form 10-K for the year ended
December 31, 1997, File No. 1-5611, as Exhibit (4)(c).)
*(4)(b) -- First Supplemental Indenture dated as of May 1, 1998 between
Consumers Energy Company and The Chase Manhattan Bank, as
Trustee. Designated in Consumers' Form 10-Q for the quarter
ended March 31, 1998, File No. 1-5611, as Exhibit (4)(a).)
*(4)(c) -- Second Supplemental Indenture dated as of June 15, 1998
between Consumers Energy Company and The Chase Manhattan
Bank, as Trustee. (Designated in Consumers Energy Company's
Registration Statement on Form S-4 dated July 13, 1998, File
No. 333-58943, as Exhibit (4)(b).)
*(4)(d) -- Third Supplemental Indenture dated as of October 29, 1998
between Consumers Energy Company and The Chase Manhattan
Bank, as Trustee. (Designated in Consumers' Form 10-Q for
the quarter ended September 30, 1998, File No. 1-5611, as
Exhibit (4)(a).)
*(4)(e) -- Indenture dated as of September 1, 1945, between Consumers
Energy Company and Chemical Bank (successor to Manufacturers
Hanover Trust Company, as Trustee, including therein
indentures supplemental thereto through the Forty-third
supplemental Indenture dated as of May 1, 1979. (Designated
in Consumers Energy Company's Registration Statement No.
2-65973, as Exhibit (b)(1)-(4).)
Indentures Supplemental thereto:
Sup Ind/Dated as of:
67th 11/15/89 Reg. No. 33-31866(4)(d)
68th 06/15/93 Reg. No. 33-41126(4)(d)
69th 09/15/93 Form 8-K dated September 21, 1993, File
No. 1-5611(4)
70th 02/01/98 Form 10-K for year ended December 31,
1997, File No. 1-5611(4)
71st 03/01/98 Form 10-K for year ended December 31,
1997, File No. 1-5611(4)
72nd 05/01/98 Form 10-Q for period ended March 31, 1998,
File No. 1-5611(4)(b)
73rd 06/15/98 Reg. No. 333-58943(4)(d)
74th 10/29/98 Form 10-Q for period ended September 30,
1998, File No. 1-5611(4)(b)
(4)(f) -- Instruments defining the rights of security holders,
including indentures. Consumers E Energy Company hereby
agrees to furnish to the SEC upon request a copy of any
instrument covering securities the amount of which does not
exceed 10% of the total assets of Consumers Energy Company
and its subsidiaries on a consolidated basis.
(4)(g) -- Certificate of Trust of Consumers Energy Company Financing
III
</TABLE>
II-10
<PAGE> 73
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <S> <C>
(4)(h) -- Certificate of Trust of Consumers Energy Company Financing
IV
(4)(i) -- Form of Amended and Restated Declaration of Trust
(4)(j) -- Form of Supplemental Indenture to be used with the
Subordinated Debentures issued in connection with the
Preferred Securities
(4)(k) -- Form of Subordinated Debenture (included in (4)(k))
(4)(l) -- Form of Trust Preferred Security (included in (4)(j))
(4)(m) -- Form of Preferred Securities Guarantee Agreement
(4)(n) -- Form of Common Securities Guarantee Agreement
(4)(o) -- Form of Senior Debenture (included in (4)(a))
(5)(a) -- Opinion of Michael D. Van Hemert, Assistant General Counsel
for CMS Energy
(5)(b) -- Opinion of Richards, Layton and Finger, P.A. regarding the
legality of the trust preferred securities of Consumers
Energy Company Financing III
(5)(c) -- Opinion of Richards, Layton and Finger, P.A. regarding the
legality of the trust preferred securities of Consumers
Energy Company Financing IV
(8) -- Opinion of Theodore J. Vogel, tax counsel to Consumers
(12) -- Statement regarding computation of ratios of earnings to
fixed charges and ratios of earnings to fixed charges and
preferred stock dividends
(15) -- Letter re unaudited interim financial information
(23)(a) -- Consent of Michael D. VanHemert, Assistant General Counsel
for CMS Energy (included in Exhibit (5)(a) above)
(23)(b) -- Consent of Richards, Layton and Finger (included in Exhibit
(5)(b) and (5)(c) above)
(23)(c) -- Consent of Arthur Andersen, LLP
(24) -- Powers of Attorney
(25)(a) -- Statement of Eligibility and Qualification of The Chase
Manhattan Bank (Senior Note Trustee of Consumers Energy
Company)
(25)(b) -- Statement of Eligibility and Qualification of the Bank of
New York (Subordinated Notes Trustee of Consumers Energy
Company)
(25)(c) -- Statement of Eligibility of Property Trustee of Consumers
Energy Company Financing III
(25)(d) -- Statement of Eligibility of Property Trustee of Consumers
Energy Company Financing IV
(25)(e) -- Statement of Eligibility of Preferred Guarantee Trustee of
Consumers Energy Company Financing III
(25)(f) -- Statement of Eligibility of the Preferred Guarantee Trustee
of Consumers Energy Financing IV
</TABLE>
- ---------------
* Previously filed
Exhibits listed above which have been filed with the Securities and
Exchange Commission are incorporated herein by reference with the same effect as
if filed with this Registration Statement.
II-11
<PAGE> 1
EXHIBIT 1(a)
_________ Preferred Securities
CONSUMERS ENERGY COMPANY FINANCING III
(a Delaware trust)
____% Trust Originated Preferred Securities(SM) ("TOPrS(SM)")
(Liquidation Amount of $25 Per Preferred Security)
UNDERWRITING AGREEMENT
_______ __, 1999
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
as Representative of the several Underwriters
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281
Ladies and Gentlemen:
Consumers Energy Company Financing III (the "Trust"), a statutory business
trust organized under the Business Trust Act (the "Delaware Act") of the State
of Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C. Sections
3801 et seq.), and Consumers Energy Company, a Michigan corporation (the
"Company" and, together with the Trust, the "Offerors") confirm their agreement
(the "Agreement") with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated ("Merrill Lynch") and each of the other Underwriters named
in Schedule A hereto (collectively, the "Underwriters", which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom Merrill Lynch is acting as representative (in such capacity,
Merrill Lynch shall
____________________
SM "Trust Originated Preferred Securities" and "TOPrS" are service marks of
Merrill Lynch & Co., Inc.
<PAGE> 2
hereinafter be referred to as the "Representative"), with respect to the sale
by the Trust and the purchase by the Underwriters, acting severally and not
jointly, of the respective numbers of ____% Trust Originated Preferred
Securities (liquidation amount of $___ per preferred security) of the Trust
("Preferred Securities") set forth in said Schedule A except as may otherwise
be provided in the Pricing Agreement, as hereinafter defined. The Preferred
Securities will be guaranteed by the Company with respect to distributions and
payments upon liquidation, redemption and otherwise (the "Preferred Securities
Guarantee") pursuant to the Preferred Securities Guarantee Agreement (the
"Preferred Securities Guarantee Agreement"), dated as of _______ __, 1999,
between the Company and The Bank of New York, as trustee (the "Guarantee
Trustee"), and in certain circumstances described in the Prospectus, the Trust
will distribute Subordinated Debt Securities (as defined herein) to holders of
Preferred Securities. The Preferred Securities, the related Preferred
Securities Guarantee and the Subordinated Debt Securities are referred to
herein as the "Securities".
Prior to the purchase and public offering of the Preferred Securities by the
several Underwriters, the Offerors and the Representative, acting on behalf of
the several Underwriters, shall enter into an agreement substantially in the
form of Exhibit A hereto (the "Pricing Agreement"). The Pricing Agreement may
take the form of an exchange of any standard form of written telecommunication
between the Offerors and the Representative and shall specify such applicable
information as is indicated in Exhibit A hereto. The offering of the Preferred
Securities will be governed by this Agreement, as supplemented by the Pricing
Agreement. From and after the date of the execution and delivery of the
Pricing Agreement, this Agreement shall be deemed to incorporate the Pricing
Agreement.
The Offerors have filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (Nos. 333-_____ and
333-_____) and a related preliminary prospectus for the registration under the
Securities Act of 1933, as amended (the "1933 Act") of up to a combination of
$___________ of (i) Preferred Securities, (ii) guarantees of the Preferred
Securities, and (iii) the Subordinated Debt Securities, have filed such
amendments thereto, if any, and such amended preliminary prospectuses as may
have been required to the date hereof, and will file such additional amendments
thereto and such amended prospectuses as may hereafter be required. Such
registration statement at the time it initially became effective and the
prospectus constituting a part thereof (including, in each case, all documents
incorporated or deemed to be incorporated by reference therein pursuant to Item
12 of Form S-3 under the 1933 Act and the information, if any, deemed to be
part thereof pursuant to Rule 430A(b) of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations")), are hereinafter
referred to as the "Registration Statement" and the "Prospectus", respectively,
except that, if any revised prospectus (including a prospectus revised by
filing any
2
<PAGE> 3
documents pursuant to Section 13, 14 or 15 of the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to the execution and delivery of this
Agreement) shall be provided to the Underwriters by the Offerors for use in
connection with the offering of the Preferred Securities which differs from the
Prospectus on file at the Commission at the time the Registration Statement
becomes effective, the term "Prospectus" shall refer to such revised prospectus
so provided to the Underwriters for such use. All references in this Agreement
to financial statements and schedules and other information that is
"contained," "included" or "stated" in the Registration Statement or the
Prospectus (and all other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other information
that are or are deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement or the
Prospectus shall be deemed to mean and include the filing of any document under
the 1934 Act that is or is deemed to be, after the execution and delivery of
this Agreement, incorporated by reference in the Registration Statement or the
Prospectus, as the case may be.
The Offerors understand that the Underwriters propose to make a public
offering of the Securities as soon as the Representative deems advisable after
the Pricing Agreement has been executed and delivered, and the Declaration (as
defined herein), the Indenture (as defined herein), and the Preferred Securities
Guarantee Agreement have been qualified under the Trust Indenture Act of 1939,
as amended (the "1939 Act"). The entire proceeds from the sale of the Preferred
Securities will be combined with the entire proceeds from the sale by the Trust
to the Company of its common securities (the "Common Securities," and together
with the Preferred Securities, the "Trust Securities"), as guaranteed by the
Company, to the extent set forth in the Prospectus, with respect to
distributions and payments upon liquidation and redemption (the "Common
Securities Guarantee" and together with the Preferred Securities Guarantee, the
"Guarantees") pursuant to the Common Securities Guarantee Agreement (the "Common
Securities Guarantee Agreement" and, together with the Preferred Securities
Guarantee Agreement, the "Guarantee Agreements"), dated as of _______ __, 1999,
between the Company and Guarantee Trustee, as Trustee, and will be used by the
Trust to purchase $___________ of ____% subordinated deferrable interest debt
securities (the "Subordinated Debt Securities") issued by the Company. The
Preferred Securities and the Common Securities will be issued pursuant to the
amended and restated declaration of trust of the Trust, dated as of _______ __,
1999 (the "Declaration"), among the Company, as Sponsor, [Alan M. Wright, and
Thomas A. McNish] (the "Regular Trustees"), The Bank of New York, as property
trustee (the "Property Trustee"), and The Bank of New York (Delaware) (the
"Delaware Trustee," and, together with the Property Trustee and the Regular
Trustees, the "Trustees"), and the holders from time to time of undivided
beneficial interests in the assets of the
3
<PAGE> 4
Trust. The Subordinated Debt Securities will be issued pursuant to an
indenture, dated as of January 1, 1996 (the "Base Indenture"), between the
Company and The Bank of New York as trustee (the "Debt Trustee"), as amended
and supplemented, and the Second Supplemental Indenture to the Base Indenture,
dated as of _______ __, 1999 (the "Supplemental Indenture," and together with
the Base Indenture and any other amendments or supplements thereto, the
"Indenture"), between the Company and the Debt Trustee.
Section 1. Representations and Warranties.
(a) The Offerors jointly and severally represent and warrant to
each Underwriter as of the date hereof and as of the date of the Pricing
Agreement (such latter date being hereinafter referred to as the
"Representation Date") as follows:
(i) At the time the Registration Statement becomes
effective and at the Representation Date, the Registration Statement will
comply in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations and the 1939 Act and the rules and regulations of
the Commission under the 1939 Act (the "1939 Act Regulations"), and will
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus, at each Representation
Date and at the Closing Time referred to in Section 2 hereof, will not
include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information
furnished to the Offerors in writing by any Underwriter through Merrill
Lynch expressly for use in the Registration Statement or Prospectus or to
that part of the Registration Statement which consists of the statements of
eligibility of trustees on Form T-1 under the 1939 Act.
(ii) The documents incorporated by reference in the
Registration Statement or Prospectus, at the time they were filed with the
Commission (or, if an amendment with respect to any such document was
filed, at the time such amendment was filed), complied and will comply in
all material respects with the requirements of the 1934 Act and the rules
and regulations of the Commission under the 1934 Act (the "1934 Act
Regulations"), as applicable, any further documents so filed and
incorporated by reference will, when they are filed with the Commission,
comply in all
4
<PAGE> 5
material respects to the requirements of the 1934 Act and the 1934 Act
Regulations, and none of such documents when filed (or if any amendment
with respect any such document was filed, at the time such amendment was
filed) contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(iii) Each of the Offerors meets, and at the respective times
of commencement and consummation of the offering of the Securities will
meet, the registrant requirements for use of Form S-3 under the 1933 Act
and the 1933 Act Regulations.
(iv) There has been no material adverse change in the
business, properties or financial condition of the Company or the Trust
from that set forth in the Registration Statement (other than changes
referred to in or contemplated by the Registration Statement or the
Prospectus).
(v) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Michigan with corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and Prospectus, to enter into and perform its obligations under
this Agreement, the Pricing Agreement, the Declaration, the Indenture and
each of the Guarantees and to purchase, own, and hold the Common Securities
issued by the Trust.
(vi) The capital stock of the Company conforms in all
material respects to the description thereof in the Prospectus.
(vii) The Trust has been duly created and is validly existing
in good standing as a business trust under the Delaware Act with the power
and authority to own property and to conduct its business as described in
the Registration Statement and Prospectus and to enter into and perform its
obligations under this Agreement, the Pricing Agreement, the Preferred
Securities, the Common Securities and the Declaration; the Trust is duly
qualified to transact business as a foreign company and is in good standing
in any other jurisdiction in which such qualification is necessary, except
to the extent that the failure to so qualify or be in good standing would
not have a material adverse effect on the Trust; the Trust is not a party
to or otherwise bound by any agreement other than those described in the
Prospectus; the Trust is and will, under current law, be classified for
United States federal
5
<PAGE> 6
income tax purposes as a grantor trust and not as an association taxable as
a corporation.
(viii) The Common Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the Company
against payment therefor as described in the Registration Statement and
Prospectus, will be validly issued and will represent undivided beneficial
interests in the assets of the Trust and will conform in all material
respects to the description thereof contained in the Prospectus; the
issuance of the Common Securities is not subject to preemptive or other
similar rights; and at the Closing Time all of the issued and outstanding
Common Securities of the Trust will be directly owned by the Company free
and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equitable right.
(ix) This Agreement and the Pricing Agreement have been duly
authorized, executed and delivered by each of the Offerors.
(x) The Declaration has been duly authorized by the Company
and, at the Closing Time, will have been duly executed and delivered by the
Company and the Trustees, and assuming due authorization, execution and
delivery of the Declaration by the Property Trustee and the Delaware
Trustee, the Declaration will, at the Closing Time, be a valid and binding
obligation of the Company and the Regular Trustees, enforceable against the
Company and the Regular Trustees in accordance with its terms, except to
the extent that enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally or by general principles of equity (regardless
of whether enforcement is considered in a proceeding at law or in equity)
(the "Bankruptcy Exceptions") and will conform in all material respects to
the description thereof contained in the Prospectus.
(xi) Each of the Guarantee Agreements has been duly
authorized by the Company and, when validly executed and delivered by the
Company, and, in the case of the Preferred Securities Guarantee Agreement,
assuming due authorization, execution and delivery of the Preferred
Securities Guarantee by the Guarantee Trustee, will constitute a valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms except to the extent that enforcement thereof may
be limited by the Bankruptcy Exceptions, and each of the Guarantees and the
Guarantee Agreements will conform in all material respects to the
description thereof contained in the Prospectus.
6
<PAGE> 7
(xii) The Preferred Securities have been duly authorized and,
when issued and delivered against payment therefor as provided herein, will
be validly issued and fully paid and non-assessable undivided beneficial
interests in the assets of the Trust and will conform in all material
respects to the description thereof contained in the Prospectus; the
issuance of the Preferred Securities is not subject to preemptive or other
similar rights.
(xiii) The Indenture has been duly authorized by the Company
and, when validly executed and delivered by the Company, will constitute a
valid and binding agreement of the Company, enforceable against the Company
in accordance with its terms except to the extent that enforcement thereof
may be limited by the Bankruptcy Exceptions; the Indenture will conform in
all material respects to the description thereof contained in the
Prospectus.
(xiv) The Subordinated Debt Securities have been duly
authorized by the Company and, at the Closing Time, will have been duly
executed by the Company and, when authenticated in the manner provided for
in the Indenture and delivered against payment therefor as described in the
Prospectus, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms except to
the extent that enforcement thereof may be limited by the Bankruptcy
Exceptions, and will be in the form contemplated by, and entitled to the
benefits of, the Indenture and will conform in all material respects to the
description thereof in the Prospectus.
(xv) Each of the Regular Trustees of the Trust is an
employee of the Company and has been duly authorized by the Company to
execute and deliver the Declaration.
(xvi) None of the Offerors is an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act").
(xvii) The Trust is not in violation of the Declaration or its
certificate of trust filed with the State of Delaware on _______ __, 1999
(the "Certificate of Trust"); none of the execution, delivery and
performance of this Agreement, the Pricing Agreement, the Declaration, the
Preferred Securities, the Common Securities, the Indenture, the
Subordinated Debt Securities, the Guarantee Agreements and the Guarantees
and the consummation of the transactions contemplated herein and therein
and compliance by the Offerors with their respective obligations hereunder
and
7
<PAGE> 8
thereunder did or will result in a breach of any of the terms or provisions
of, or constitute a default or require the consent of any party under the
Certificate of Trust or the Company's Articles of Incorporation or by-laws,
any material agreement or instrument to which either Offeror is a party,
any existing applicable law, rule or regulation or any judgment, order or
decree of any government, governmental instrumentality or court, domestic
or foreign, having jurisdiction over either Offeror or any of its
properties or assets, or did or will result in the creation or imposition
of any lien on the properties or assets of either Offeror.
(xviii) No order, license, consent, authorization or approval
of, or exemption by, or the giving of notice to, or the registration with
any federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, and no filing, recording,
publication or registration in any public office or any other place, was or
is now required in connection with the issuance and sale of the Common
Securities or the offering of the Preferred Securities, the Subordinated
Debt Securities or the Guarantees hereunder, except for the order of the
Federal Energy Regulatory Commission, which has already been obtained, and
such as may be required under the 1933 Act or state securities laws and the
qualification of the Declaration, the Preferred Securities Guarantee
Agreement and the Indenture under the 1939 Act.
(xix) The Company has outstanding unsecured non-convertible
preferred securities rated by a nationally recognized statistical rating
organization in one of its four (4) highest generic rating categories.
Section 2. Sale and Delivery to Underwriters; Closing.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Trust
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Trust, at
the price per security set forth in the Pricing Agreement, the number of
Preferred Securities set forth in Schedule A opposite the name of such
Underwriter (except as otherwise provided in the Pricing Agreement), plus any
additional number of Preferred Securities that such Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof.
The purchase price per security to be paid by the several Underwriters for
the Preferred Securities shall be an amount equal to the initial public
offering price. The initial public offering price per Preferred Security shall
be a fixed price to be determined by agreement between the Representative and
the Offerors. The
8
<PAGE> 9
initial public offering price and the purchase price, when so determined, shall
be set forth in the Pricing Agreement. In the event that such prices have not
been agreed upon and the Pricing Agreement has not been executed and delivered
by all parties thereto by the close of business on the fourth business day
following the date of this Agreement, this Agreement shall terminate forthwith,
without liability of any party to any other party, unless otherwise agreed to
by the Offerors and the Representative. As compensation to the Underwriters
for their commitments hereunder and in view of the fact that the proceeds of
the sale of the Preferred Securities will be used to purchase the Subordinated
Debt Securities of the Company, the Company hereby agrees to pay at Closing
Time (as defined below) to the Representative, for the accounts of the several
Underwriters, a commission per Preferred Security determined by agreement
between the Representative and the Company for the Preferred Securities to be
delivered by the Trust hereunder at Closing Time. The commission, when so
determined, shall be set forth in the Pricing Agreement.
(b) Payment of the purchase price for, and delivery of
certificates for, the Preferred Securities shall be made at the office of Reid
& Priest LLP, or at such other place as shall be agreed upon by the
Representative and the Trust, at 10:00 A.M. New York time on the third business
day (unless postponed in accordance with the provisions of Section 10) after
execution of the Pricing Agreement, or such other time not later than ten
business days after such date as shall be agreed upon by the Representative,
the Trust and the Company (such time and date of payment and delivery being
herein called "Closing Time"). Payment shall be made to the Trust in Federal or
other immediately available funds payable to an account designated by the
Trust, against delivery to the Representative for the respective accounts of
the Underwriters of certificates for the Preferred Securities to be purchased
by them. Certificates for the Preferred Securities shall be in such
denominations and registered in such names as the Representative may request in
writing at least two business days before the Closing Time. It is understood
that each Underwriter has authorized the Representative, for its account, to
accept delivery of, receipt for, and make payment of the purchase price for,
the Preferred Securities which it has agreed to purchase. Merrill Lynch,
individually and not as Representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Preferred
Securities to be purchased by any Underwriter whose payment has not been
received by the Closing Time, but such payment by Merrill Lynch shall not
relieve such Underwriter from its obligations hereunder.
The certificate(s) for the Preferred Securities will be made available for
examination and packaging by the Representative not later than 10:00 A.M. on
the last business day prior to the Closing Time.
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<PAGE> 10
At the Closing Time, the Company will pay, or cause to be paid, the
commission payable at such time to the Underwriters under this Section 2 to
Merrill Lynch, Pierce, Fenner & Smith Incorporated in Federal or other
immediately available funds.
Section 3. Covenants of the Offerors. Each of the Offerors jointly
and severally covenant with each Underwriter as follows:
(a) The Offerors will promptly notify the Representative or
its counsel (i) of the effectiveness of the Registration Statement and any
amendment thereto (including any post-effective amendment), (ii) of the receipt
of any comments from the Commission or of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, (iii) of any suspension of
qualification of the Preferred Securities for sale under Blue Sky or state
securities laws, and (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose. The Offerors will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) Prior to the termination of the offering of the Preferred
Securities, the Offerors will not file any amendment to the Registration
Statement or amendment or supplement to the Prospectus unless the
Representative and counsel to the Underwriters have been furnished with a copy
of such amendment or supplement for their review and comment a reasonable time
prior to such proposed filing and will not file any such amendment or
supplement to which counsel for the Underwriters shall reasonably object on
legal grounds in writing after consultation with the Representative. Subject
to the foregoing, the Offerors will promptly prepare a supplement to the
Prospectus to reflect the terms of the Preferred Securities and the terms of
the offering contemplated by this Agreement. The Offerors will file such
Prospectus as so supplemented pursuant to Rule 424(b) under the Act within the
time periods provided by such Rule and Rule 430A(a)(3) under the Act.
(c) The Offerors will deliver to the Representative one signed
and as many conformed copies of the Registration Statement, in each case as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein) as the Representative may
reasonably request and will also deliver to the Representative a conformed
copy of the Registration Statement as originally filed and of each amendment
thereto (without exhibits) for each of the Underwriters.
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<PAGE> 11
(d) The Offerors will furnish to each Underwriter, without charge,
from time to time during the period of time (not exceeding nine months) after
the date of the Prospectus when a Prospectus is required to be delivered under
the 1933 Act, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request for the purposes
contemplated by the 1933 Act or the respective applicable rules and regulations
of the Commission thereunder; and in case any Underwriter is required to
deliver a prospectus after the expiration of nine months after the date of the
Prospectus, to furnish to the Representative, upon request, at the expense of
such Underwriter, a reasonable quantity of a supplemental prospectus or of
supplements to the Prospectus complying with Section 10(a)(3) of the 1933 Act.
(e) If at any time when the Prospectus is required by the 1933 Act
to be delivered in connection with sales of the Preferred Securities, any event
shall occur as a result of which it is necessary to amend or supplement the
Prospectus in order to make the Prospectus not misleading in the light of the
circumstances existing at the time it is to be delivered to a purchaser, or if
it shall be necessary at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Offerors will promptly prepare
and file with the Commission subject to paragraph (b) above such amendment or
supplement as may be necessary to correct such untrue statement or omission or
to make the Registration Statement or the Prospectus comply with such
requirements; and the Offerors will furnish to the Underwriters, without
charge, a reasonable number of copies of such amendment or supplement, except
that in case any Underwriter is required to deliver a prospectus in connection
with sales of the Preferred Securities after the expiration of nine months
after the date of the Prospectus the Offerors shall be required to furnish any
such amendments or supplements to such Underwriter only at the expense of such
Underwriter.
(f) The Offerors will endeavor, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and the other jurisdictions of the
United States as the Representative may designate; provided, however, that none
of the Offerors shall be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to comply with any other
requirements deemed by the Company to be unduly burdensome.
(g) The Trust will make generally available to its security holders
as soon as practicable an earnings statement of the Company (which need not be
audited by independent public accountants) covering a twelve-month period
beginning after the "effective date" (as defined in Rule 158 of the 1933 Act
Regulations) of the Registration Statement and ending not later than 15 months
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<PAGE> 12
thereafter, that shall satisfy the provisions of Section 11(a) of the 1933 Act
and said Rule 158.
(h) For a period of 18 months after the Closing Time, the Company
will furnish to you and, upon request, to each Underwriter, copies of all
annual reports, quarterly reports and current reports filed with the Commission
on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated
by the Commission, and such other documents, reports and information as shall
be furnished by the Company to its stockholders or security holders generally.
(i) The Offerors will use best efforts to effect the listing of the
Preferred Securities (including the Preferred Securities Guarantee with respect
thereto) on the New York Stock Exchange; if the Preferred Securities are
exchanged for Subordinated Debt Securities, the Company will use its best
efforts to effect the listing of the Subordinated Debt Securities on the
exchange on which the Preferred Securities were then listed.
(j) During a period of 60 days from the date of the Pricing
Agreement, neither the Trust nor the Company will, without the Representative's
prior written consent, directly or indirectly, sell, offer to sell, contract to
sell, grant any option for the sale of, or otherwise dispose of, any Preferred
Securities, any security convertible into or exchangeable into or exercisable
for Preferred Securities or the Subordinated Debt Securities or any debt
securities substantially similar to the Subordinated Debt Securities or equity
securities substantially similar to the Preferred Securities (except for the
Subordinated Debt Securities and the Preferred Securities issued pursuant to
this Agreement).
Section 4. Payment of Expenses. The Company will pay all expenses incident
to the performance of each Offeror's obligations under this Agreement,
including, but not limited to, (i) the printing and filing of the Registration
Statement as originally filed and of each amendment thereto, (ii) the
preparation, issuance and delivery of the certificates for the Preferred
Securities to the Underwriters, (iii) the fees and disbursements of the
Company's and the Trust's counsel and accountants, (iv) the qualification of
the Securities in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of any Blue Sky survey up to an aggregate amount not to exceed $________, (v)
the printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and of each amendment thereto, of each
preliminary prospectus, and of the Prospectus and any amendments or supplements
thereto, (vi) the delivery to the Underwriters of copies of any Blue Sky
survey, (vii) the fee, if any, of the National Association of Securities
Dealers, Inc., (viii) the fees and expenses of the Debt Trustee, the Property
Trustee and the Guarantee Trustee,
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<PAGE> 13
including the fees and disbursements of counsel for such trustees, in
connection with the Indenture and the Subordinated Debt Securities, the
Declaration, the Certificate of Trust and the Guarantee (it being understood
that as among the Offerors and such trustees, such fees and expenses shall not
exceed $________), (ix) any fees payable in connection with the rating of the
Preferred Securities and Subordinated Debt Securities, (x) the fees and
expenses incurred in connection with the listing of the Preferred Securities
(and the related Preferred Securities Guarantee) and, if applicable, the
Subordinated Debt Securities on the New York Stock Exchange, (xi) the cost and
charges of any transfer agent or registrar and (xii) the cost of qualifying the
Preferred Securities with The Depository Trust Company.
If the Underwriter shall not take up and pay for the Securities due to the
failure of the Offerors to comply with any of the conditions specified in
Section 5 hereof, or, if this Agreement shall be terminated in accordance with
the provisions of Section 9 hereof, the Company will pay the reasonable fees
and disbursements of counsel to the Underwriters, and, if the Underwriters
shall not take up and pay for the Securities due to failure of the Offerors to
comply with the conditions specified in Section 5 hereof, the Company will also
reimburse the Underwriters for their reasonable out-of-pocket expenses, in an
aggregate amount not exceeding a total of $________, incurred in connection
with the offering contemplated by this Agreement.
Section 5. Conditions of Underwriters' Obligations. The obligations of the
Underwriters hereunder are subject to the accuracy of the representations and
warranties of the Offerors herein contained, to the performance by the Offerors
of their obligations hereunder, and to the following further conditions:
(a) The Registration Statement shall have become effective not later
than 5:30 P.M. on the date hereof, or with the consent of the Representative,
at a later time and date, not later, however, than 5:30 P.M. on the first
business day following the date hereof, or at such later time and date as may
be approved by the Representative; and at Closing Time no stop order suspending
the effectiveness of the Registration Statement shall have been issued under
the 1933 Act or proceedings therefor initiated or threatened by the Commission.
The Prospectus shall have been filed with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such filing by the 1933
Act Regulations.
(b) At Closing Time the Representative shall have received:
(1) The favorable opinion, dated as of Closing Time, of
Michael D. VanHemert, Esq., Assistant General Counsel of CMS Energy and
counsel for the Offerors in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
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<PAGE> 14
(i) The Company has been duly incorporated and is
validly existing in good standing under the laws of the State of Michigan
with corporate power and authority to carry on the public utility business
in which it is engaged and to own, lease and operate its properties and
conduct its business as described in the Prospectus.
(ii) The capital stock of the Company conforms in all
material respects to the description thereof in the Prospectus.
(iii) The Trust is not required to be qualified and in
good standing as a foreign company in Michigan, except to the extent that
the failure to so qualify or be in good standing would not have a material
adverse effect on the Trust; and the Trust is not a party to or otherwise
bound by any agreement other than those described in the Prospectus.
(iv) The Declaration has been duly authorized, executed
and delivered by the Company and the Trustees and is a valid and binding
obligation of the Company, enforceable against the Company and each of the
Regular Trustees in accordance with its terms, except as enforcement
thereof may be limited by the Bankruptcy Exceptions; and the Declaration
has been duly qualified under the 1939 Act.
(v) All legally required proceedings in connection with
the authorization, issuance and validity of the Securities and the sale of
the Securities in accordance with this Agreement (other than the filing of
post-issuance reports, the non-filing of which would not render the
Securities invalid) have been taken and all legally required orders,
consents or other authorizations or approvals of the Michigan Public
Service Commission and of any other public boards or bodies in connection
with the authorization, issuance and validity of the Securities and the
sale of the Securities in accordance with this Agreement (other than in
connection with or in compliance with the provisions of the securities or
Blue Sky laws of any jurisdictions, as to which no opinion need be
expressed) have been obtained and are in full force and effect.
(vi) The Registration Statement is effective under the
1933 Act and, to the best of his knowledge and information after due
inquiry, no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act, and no proceedings therefor
have been initiated or threatened by the Commission.
(vii) The Registration Statement as of its effective date
and the Prospectus and each amendment or supplement thereto as of its issue
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<PAGE> 15
date (in each case, other than the operating statistics, the financial
statements and the notes thereto, the financial schedules, and any other
financial and statistical data included or incorporated by reference
therein, as to which such counsel need express no belief), complied as to
form in all material respects with the requirements of the 1933 Act and the
1933 Act Regulations; and the Declaration, the Indenture, the Preferred
Securities Guarantee Agreement and the Statements of Eligibility on Forms
T-1 with respect to each of the Property Trustee, the Debt Trustee, and the
Guarantee Trustee filed with the Commission as part of the Registration
Statement complied as to form in all material respects with the
requirements of the 1939 Act and the 1939 Act Regulations.
(viii) Each of the documents incorporated by reference in
the Registration Statement or the Prospectus at the time they were filed or
last amended (other than the financial statements and the notes thereto,
the financial schedules, and any other financial or statistical data
included or incorporated by reference therein, as to which such counsel
need express no belief) complied as to form in all material respects with
the requirements of the 1934 Act, and the 1934 Act Regulations, as
applicable.
(ix) Each of the Offerors meets the registrant
requirements for use of Form S-3 under the 1933 Act Regulations.
(x) The Common Securities, the Preferred Securities,
the Subordinated Debt Securities, each of the Guarantees, the Declaration,
the Indenture and each of the Guarantee Agreements conform in all material
respects to the descriptions thereof contained in the Prospectus.
(xi) The descriptions in the Registration Statement and
the Prospectus and each amendment or supplement thereto of franchises,
regulations, statutes, legal and governmental proceedings and contracts and
other documents are accurate and fairly present the information required to
be shown and such counsel does not know of any legal or governmental
proceedings required to be described in the Registration Statement or the
Prospectus or any amendment or supplement thereto that are not so described
(or the descriptions of which are not incorporated by reference) or of any
contracts or documents of a character required to be described in the
Registration Statement or the Prospectus or any amendment or supplement
thereto or to be filed as exhibits to the Registration Statement or any
amendment thereto that are not so described (or the descriptions of which
are not incorporated by reference) or so filed.
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<PAGE> 16
(xii) All of the issued and outstanding Common Securities
of the Trust are directly owned by the Company free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equitable
right.
(xiii) This Agreement and the Pricing Agreement have been
duly authorized, executed and delivered by each of the Trust and the
Company.
(xiv) Each of the Guarantee Agreements has been duly
authorized, executed and delivered by the Company; the Preferred Securities
Guarantee Agreement, assuming it is duly authorized, executed, and
delivered by the Guarantee Trustee, constitutes a valid and binding
obligation of the Company, enforceable against the Company in accordance
with its terms, except to the extent that enforcement thereof may be
limited by Bankruptcy Exceptions; and the Preferred Securities Guarantee
Agreement has been duly qualified under the 1939 Act.
(xv) The Indenture has been duly executed and delivered
by the Company and, assuming due authorization, execution, and delivery
thereof by the Debt Trustee, is a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except to the extent that enforcement thereof may be limited by the
Bankruptcy Exceptions; and the Indenture has been duly qualified under the
1939 Act.
(xvi) The Subordinated Debt Securities are in the form
contemplated by the Indenture, have been duly authorized, executed and
delivered by the Company and, when authenticated by the Debt Trustee in the
manner provided for in the Indenture and delivered against payment therefor
as provided in this Agreement, will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance
with their terms, except to the extent that enforcement thereof may be
limited by the Bankruptcy Exceptions.
(xvii) Neither the Company nor the Trust is an "investment
company" or a company "controlled" by an "investment company" within the
meaning of the 1940 Act.
(xviii) The execution, delivery and performance of this
Agreement, the Pricing Agreement, the Declaration, the Preferred
Securities, the Common Securities, the Indenture, the Subordinated Debt
Securities, the Guarantee Agreements, and the Guarantees; the consummation
of the
16
<PAGE> 17
transactions contemplated herein and therein; and the compliance by each of
the Offerors with their respective obligations hereunder and thereunder do
not and will not result in any violation of the charter or bylaws of the
Company or the Declaration or the Certificate of Trust, and do not and will
not result in a breach of any of the terms or provisions of, or constitute
a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Trust or the
Company under (A) any contract, indenture, mortgage, loan agreement, note,
lease or any other agreement or instrument known to such counsel to which
the Trust or the Company is a party or by which it may be bound or to which
any of its properties may be subject (except for such breaches or defaults
or liens, charges or encumbrances that would not have a material adverse
effect on the business, property or financial condition of the Trust or the
Company), (B) any existing applicable law, rule or regulation (other than
the securities or blue sky laws of the various states, as to which such
counsel need express no opinion) or (C) any judgment, order or decree of
any government, governmental instrumentality or court, domestic or foreign,
or any regulatory body or administrative agency or other governmental body
having jurisdiction over the Trust, the Company or any of their respective
properties.
(xix) Nothing has come to attention of such counsel which
would lead him to believe that the Registration Statement or any amendment
thereto (except for the operating statistics, financial statements and
other financial and statistical data included or incorporated by reference
therein, or the statements of eligibility under the 1939 Act of trustees as
to which no opinion is expressed), when it became effective, contained any
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus, as amended or supplemented or
modified by the filing of a document incorporated by reference therein
(except as aforesaid), on its issue date and on the date of such opinion
contained or contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
The foregoing opinions may be limited to the laws of Delaware,
Michigan and the federal law of the United States. In giving such opinion,
such counsel may rely, as to matters of Delaware Law, upon the opinion of
Richards, Layton & Finger, P.A., special Delaware counsel to the Company, in
which case the opinion shall state that such counsel believes that you and he
are entitled to so rely.
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(2) The favorable opinion, dated as of Closing Time,
of Richards, Layton & Finger, P.A., special Delaware counsel to the Offerors,
in form and substance satisfactory to counsel for the Underwriters, to the
effect that:
(i) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware Act, and
all filings required under the laws of the State of Delaware with respect
to the creation and valid existence of the Trust as a business trust have
been made.
(ii) Under the Delaware Act and the Declaration, the
Trust has the power and authority to own property and conduct its business,
all as described in the Prospectus.
(iii) The Declaration constitutes a valid and binding
obligation of the Company and the Trustees and is enforceable against the
Company and the Trustees in accordance with its terms, subject, as to
enforcement, to (i) bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation, fraudulent conveyance and other similar laws
relating to or affecting the rights and remedies of creditors generally,
(ii) principles of equity, including applicable law relating to fiduciary
duties (regardless of whether considered and applied in a proceeding in
equity or at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification and contribution.
(iv) Under the Delaware Act and the Declaration, the
Trust has the power and authority to (i) execute and deliver, and to
perform its obligations under, this Agreement and the Pricing Agreement and
(ii) issue, and perform its obligations under, the Trust Securities.
(v) Under the Delaware Act and the Declaration, the
execution and delivery by the Trust of this Agreement and the Pricing
Agreement, and the performance by the Trust of its obligations hereunder
and under the Pricing Agreement, have been duly authorized by all necessary
action on the part of the Trust.
(vi) The Preferred Securities have been duly authorized
by the Declaration and are duly and validly issued and, subject to
qualifications hereinafter expressed in this paragraph (vi), fully paid and
nonassessable undivided beneficial interests in the assets of the Trust;
the holders of the Preferred Securities, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation
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<PAGE> 19
Law of the State of Delaware; said counsel may note that the holders of the
Preferred Securities may be obligated to make payments as set forth in the
Declaration.
(vii) The Common Securities have been duly authorized by
the Declaration and are duly and validly issued and represent undivided
beneficial interests in the assets of the Trust.
(viii) Under the Delaware Act and the Declaration, the
issuance of the Trust Securities is not subject to preemptive rights.
(ix) The issuance and sale by the Trust of the Trust
Securities, the purchase by the Trust of the Subordinated Debt Securities,
the execution, delivery and performance by the Trust of this Agreement and
the Pricing Agreement, the consummation by the Trust of the transactions
contemplated hereby and by the Pricing Agreement and compliance by the
Trust with its obligations hereunder and thereunder will not violate (i)
any of the provisions of the Certificate of Trust or the Declaration or
(ii) any applicable Delaware law or administrative regulation.
(3) The opinion of Reid & Priest LLP, special tax
counsel to the Company and the Trust, generally to the effect that the
discussion set forth in the Prospectus under the heading "CERTAIN UNITED STATES
FEDERAL INCOME TAX CONSEQUENCES" is a fair and accurate summary of the matters
addressed therein, based upon current law and the assumptions stated or
referred to therein. Such opinion may be conditioned on, among other things,
the initial and continuing accuracy of the facts, financial and other
information, covenants and representations set forth in certificates of
officers of the Company and the Trust and other documents deemed necessary for
such opinion.
(4) The favorable opinion, dated as of Closing Time,
of Reid & Priest LLP, counsel for the Underwriters, in form and substance
satisfactory to the Underwriters with respect to the incorporation and legal
existence of the Company, the Preferred Securities, the Indenture, the
Preferred Securities Guarantee Agreement, this Agreement, the Pricing
Agreement, the Registration Statement, the Prospectus and other related matters
as the Representative may require. In giving its opinion, Reid & Priest LLP
may rely as to certain matters of Michigan and Delaware law upon the opinions
of Michael D. VanHemert, Esq. and Richards, Layton & Finger, P.A., counsel for
the Offerors, which shall be delivered in accordance with Section 5(b)(1) and
5(b)(2) hereto.
(c) Between the date of this Agreement and prior to the Closing Time,
no material adverse change shall have occurred in the business,
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<PAGE> 20
properties or financial condition of the Company or the Trust, which in the
judgment of the Representative, after reasonable inquiries on the part of the
Representative, impairs the marketability of the Securities (other than changes
referred to in or contemplated by the Registration Statement or Prospectus).
(d) At Closing Time, the Representative shall have received a certificate
of an executive officer of the Company and a certificate of a Regular Trustee
of the Trust, and dated as of Closing Time, to the effect that to the best of
such person's knowledge, information and belief (i) there has been no material
adverse change in the business, properties or financial condition of the
Company or the Trust from that set forth in the Registration Statement or
Prospectus (other than changes referred to in or contemplated by the
Registration Statement or Prospectus), (ii) the representations and warranties
in Section 1 hereof are true and correct as though expressly made at and as of
Closing Time, (iii) the Trust and the Company have complied with all agreements
and satisfied all conditions on their part to be performed or satisfied at or
prior to Closing Time, and (iv) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that purpose
have been initiated or threatened by the Commission.
(e) At the Closing Time the Representative shall have received from
Arthur Andersen LLP a letter dated such date, in form and substance
satisfactory to the Representative, to the effect that: (i) they are
independent public accountants with respect to the Company and its consolidated
subsidiaries, within the meaning of the 1933 Act and the 1933 Act Regulations;
(ii) in their opinion, the financial statements examined by them and included
or incorporated by reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the published rules and regulations of the Commission; and
(iii) covering, as of a date not more than five business days prior to the date
of such letter, such other matters as the Representative shall reasonably
request.
(f) Any additional documents or agreements reasonably requested by
counsel to the Underwriters to permit such counsel to deliver opinions
hereunder at Closing Time shall have been provided to them and all proceedings
taken by the Offerors in connection with the issuance and sale of the Preferred
Securities as herein contemplated shall be satisfactory in form and substance
to the Representative and Reid & Priest LLP, counsel for the Underwriters.
(g) (i) At Closing Time, the Preferred Securities shall be rated ___
Moody's Investors Service, Inc., ___ by Standard & Poor's Rating Group, ____ by
Duff & Phelps Credit Rating Co. and ___ by Fitch Investors Service, Inc., and
(ii) between the date of this Agreement and the Closing Time, there shall not
have occurred a downgrading of the investment ratings of any of the Company's
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<PAGE> 21
securities by Standard & Poor's Rating Group, Moody's Investors Service, Inc.,
Duff & Phelps Credit Rating Co. or Fitch Investors Service, Inc., and the
Company shall not have been placed on "credit watch" or "credit review" with
negative implications by any of such nationally recognized statistical rating
organizations if, in the case of such placement on "credit watch" or "credit
review," such occurrence shall, in the reasonable judgment of the
Representative, after reasonable inquiries on the part of the Representative,
impair the marketability of the Securities.
(h) At the Closing Time, the Preferred Securities shall have been
approved for listing on the New York Stock Exchange upon notice of issuance.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Representative by notice to the Offerors at any time at or prior to Closing
Time, and such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof.
Section 6. Conditions of Offerors' Obligations. The obligations of the
Offerors hereunder are subject to the following conditions:
(a) The Registration Statement shall be effective under the 1933 Act and
no stop order suspending the effectiveness of the Registration Statement shall
have been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(b) The order of the Federal Energy Regulatory Commission in connection
with the authorization, issuance and sale of the Securities shall be in full
force and effect.
Section 7. Indemnification.
(a) The Offerors agree to the extent permitted by law to jointly and
severally indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the 1933 Act or otherwise, and, subject to and in accordance with Section
7(d) hereof, to reimburse the Underwriters and such controlling person or
persons, if any, for any legal or other expenses incurred by them in connection
with defending any action, suit or proceeding (including governmental
investigations) insofar as such losses, claims, damages, liabilities or
actions, suits or proceedings (including governmental investigations) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement
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<PAGE> 22
(or any amendment thereto), including the information deemed to be a part of
the Registration Statement pursuant to Rule 430A(b) of the 1933 Act
Regulations, if applicable, any preliminary prospectus as of its issue date,
the Prospectus, or, if the Prospectus shall be amended or supplemented, in the
Prospectus as so amended or supplemented (if such Prospectus or such Prospectus
as amended or supplemented is used after the period of time referred to in
Section 3(e) hereof, it shall contain or be used with such amendments or
supplements as the Company deems necessary to comply with Section 10(a) of the
1933 Act), or arise out of or are based upon any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages, liabilities or actions arise out of or are based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
which was made in such preliminary prospectus, Registration Statement
(or amendment thereto) or Prospectus, or in the Prospectus as so amended or
supplemented, in reliance upon and in conformity with information furnished in
writing to the Company by, or through Merrill Lynch on behalf of, any
Underwriter expressly for use therein, and except that this indemnity is
subject to the condition that, insofar as it relates to any untrue statement or
omission, or any alleged untrue statement or omission, made in a preliminary
prospectus but eliminated or remedied in the Prospectus, it shall not inure to
the benefit of any Underwriter (or any person controlling such Underwriter)
from whom the person asserting the claim purchased the Securities (or to the
benefit of any person who controls such Underwriter) if the Offerors have
complied with their Prospectus delivery obligations pursuant to Section 3 of
this Agreement and a copy of the Prospectus, excluding documents incorporated
therein by reference, was not sent or given to such person at or prior to the
time required by the 1933 Act and the receipt thereof would have constituted
the sole defense to the claim asserted by such person.
The Offerors' indemnity agreement contained in this Section 7(a), and the
covenants, representations and warranties of the Offerors contained in this
Agreement, shall remain in full force and effect regardless of any
investigation made by or on behalf of any person, and shall survive the
delivery of and payment for the Preferred Securities hereunder, and the
indemnity agreement contained in this Section 7 shall survive any termination
of this Agreement. The liabilities of the Offerors in this Section 7(a) are in
addition to any other liabilities of the Offerors under this Agreement or
otherwise.
(b) The Company agrees to indemnify the Trust against all loss,
liability, claim, damage and expense whatsoever, as due from the Trust under
Section 7(a) hereunder.
(c) Each Underwriter agrees, severally and not jointly, to the
extent permitted by law, to indemnify, hold harmless and reimburse the Offerors,
22
<PAGE> 23
their directors and such of their officers or trustees, as the case may be, as
shall have signed the Registration Statement, and each person, if any, who
controls the Offerors or any such other Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, to the same extent
and upon the same terms as the indemnity agreement of the Offerors set forth in
Section 7(a) hereof, but only with respect to alleged untrue statements or
omissions made in the Registration Statement (or any amendment thereto), or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with information furnished in
writing to the Offerors by such Underwriter through Merrill Lynch expressly for
use therein.
The indemnity agreement on the part of each Underwriter contained
in this Section 7(c) shall remain in full force and effect regardless of any
investigation made by or on behalf of the Offerors or any other person, and
shall survive the delivery of and payment for the Preferred Securities
hereunder, and the indemnity agreement contained in this Section 7(c) shall
survive any termination of this Agreement. The liabilities of each Underwriter
in this Section 7(c) are in addition to any other liabilities of such
Underwriter under this Agreement or otherwise.
(d) If a claim is made or an action, suit or proceeding (including
governmental investigation) is commenced or threatened against any person as to
which indemnity may be sought under Section 7(a) or 7(c), such person (the
"Indemnified Person") shall notify the person against whom such indemnity may
be sought (the "Indemnifying Person") promptly after any assertion of such
claim threatening to institute an action, suit or proceeding or if such an
action, suit or proceeding is commenced against such Indemnified Person,
promptly after such Indemnified Person shall have been served with a summons or
other first legal process, giving information as to the nature and basis of the
claim. Failure to so notify the Indemnifying Person shall not, however, relieve
the Indemnifying Person from any liability which it may have on account of the
indemnity under Section 7(a) or 7(c) if the Indemnifying Person has not been
prejudiced in any material respect by such failure. Subject to the immediately
succeeding sentence, the Indemnifying Person shall assume the defense of any
such litigation or proceeding, including the employment of counsel and the
payment of all expenses counsel, with such being designated, subject to the
immediately succeeding sentence, in writing by the Representative in the case
of parties indemnified pursuant to Section 7(c) and by the Company in the case
of parties indemnified pursuant to Section 7(a). Any Indemnified Person shall
have the right to participate in such litigation or proceeding and to retain
its own counsel, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed to the retention of such counsel
or (ii) the named parties to any such proceeding (including any impleaded
parties)
23
<PAGE> 24
include (x) the Indemnifying Person and (y) the Indemnified Person and, in the
written opinion of counsel to such Indemnified Person, representation of both
parties by the same counsel would be inappropriate due to actual or likely
conflicts of interest between them, in either of which cases the reasonable
fees and expenses of counsel (including disbursements) for such Indemnified
Person shall be reimbursed by the Indemnifying Person to the Indemnified
Person. If there is a conflict as described in clause (ii) above, and the
Indemnified Persons have participated in the litigation or proceeding utilizing
separate counsel whose fees and expenses have been reimbursed by the
Indemnifying Person and the Indemnified Persons, or any of them, are found to
be solely liable, such Indemnified Persons shall repay to the Indemnifying
Person such fees and expenses of such separate counsel as the Indemnifying
Person shall have reimbursed. It is understood that the Indemnifying Person
shall not be liable under this Agreement for the reasonable fees and
out-of-pocket expenses of more than one separate firm (together with not more
than one appropriate local counsel) for all such Indemnified Persons in
connection with any one action or separate but similar related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
Subject to the next paragraph, all such fees and expenses shall be reimbursed
by payment to the Indemnified Persons of such reasonable fees and expenses of
counsel promptly after payment thereof by the Indemnified Persons.
In furtherance of the requirement above that fees and expenses of any
separate counsel for the Indemnified Persons shall be reasonable, the
Representative and the Offerors agree that the Indemnifying Person's
obligations to pay such fees and expenses shall be conditioned upon the
following:
(1) in case separate counsel is proposed to be retained by the
Indemnified Persons pursuant to clause (ii) of the preceding paragraph, the
Indemnified Persons shall in good faith fully consult with the Indemnifying
Person in advance as to the selection of such counsel; and
(2) reimbursable fees and expenses of such separate counsel shall be
detailed and supported in a manner reasonably acceptable to the
Indemnifying Person (but nothing herein shall be deemed to require the
furnishing to the Indemnifying Person of any information, including without
limitation, computer print-outs of lawyers' daily time entries, to the
extent that, in the judgment of such counsel, furnishing such information
might reasonably be expected to result in a waiver of any attorney-client
privilege); and
(3) the Company and the Representative shall cooperate in monitoring
and controlling the fees and expenses of separate counsel for Indemnified
Persons for which the Indemnifying Person is liable hereunder
24
<PAGE> 25
and the Indemnified Person shall use reasonable efforts to cause such
separate counsel to minimize duplication of activities between themselves
and counsel to the Indemnifying Person.
The Indemnifying Person shall not be liable for any settlement of any
litigation or proceeding effected without the written consent of the
Indemnifying Person, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees, subject to the
provisions of this Section 7, to indemnify the Indemnified Person from and
against any loss, damage, liability or expenses by reason of such settlement or
judgment. The Indemnifying Person shall not, without the prior written consent
of the Indemnified Persons, effect any settlement of any pending or threatened
litigation, proceeding or claim in respect of which indemnity has been properly
sought by the Indemnified Persons hereunder, unless such settlement includes an
unconditional release by the claimant of all Indemnified Persons from all
liability with respect to claims which are the subject matter of such
litigation, proceeding or claim.
Section 8. Contribution. If the indemnification provided for in Section 7
above is unavailable to or insufficient to hold harmless an Indemnified Person
under such Section in respect of any losses, claims, damages or liabilities (or
actions, suits or proceedings (including governmental investigations) in
respect thereof) referred to therein, then each Indemnifying Person under
Section 7 shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities (or actions
in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Indemnifying Person on the one hand and the
Indemnified Person on the other from the offering of the Securities. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law, then each Indemnifying Person shall contribute to
such amount paid or payable by such Indemnified Person in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of each Indemnifying Person, if any, on the one hand and the Indemnified
Person on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions, suits or
proceedings (including governmental investigations) in respect thereof), as
well as any other relevant equitable considerations. The relative benefits
received by the Offerors on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Offerors and the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus, bear to the
aggregate public offering price of the Securities. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied
25
<PAGE> 26
by the Offerors on the one hand or the Underwriters on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Offerors and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 8 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this Section 8. The amount paid or payable
by an Indemnified Person as a result of the losses, claims, damages or
liabilities (or actions, suits or proceedings (including governmental
proceedings) in respect thereof) referred to above in this Section 8 shall be
deemed to include any legal or other expenses reasonably incurred by such
Indemnified Person in connection with investigating or defending any such
actions, suits or proceedings (including governmental proceedings) or claims,
provided that the provisions of Section 7 have been complied with (in all
material respects) in respect of any separate counsel for such Indemnified
Person. Notwithstanding the provisions of this Section 8, no Underwriter shall
be required to contribute any amount in excess of the total price at which the
Securities underwritten by it and distributed to the public were offered to the
public. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this Section 8 to contribute are several in
proportion to their respective underwriting obligations and not joint.
The agreement with respect to contribution contained in this Section 8 shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Company or any Underwriter, and shall survive delivery of and
payment for the Preferred Securities hereunder and any termination of this
Agreement.
Section 9. Termination of Agreement.
(a) The Representative may terminate this Agreement, by notice to
the Offerors, at any time at or prior to Closing Time (i) if there has occurred
any material adverse disruption in the financial markets or any outbreak or
material escalation of hostilities or any other calamity or crisis the effect
of which is such as to impair, in the reasonable judgment of the Representative
after having made reasonable inquiry, the marketability of the Preferred
Securities, (ii) if trading in the Preferred Securities has been suspended by
the Commission, or if trading generally on the New York Stock Exchange has been
suspended, limited or restricted or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices for securities have been required, by
said exchange or by order of the Commission or any other governmental
authority, (iii) if trading of any securities of the Company shall have been
suspended on any exchange or over-the-counter
26
<PAGE> 27
market, or (iv) if a general moratorium on commercial banking activities in New
York or Delaware has been declared by Federal, New York, or Delaware
authorities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except
as provided in Section 4 hereof.
Section 10. Substitution of Underwriters. If any Underwriter shall fail or
refuse (otherwise than for some reason sufficient to justify in accordance with
the terms hereof, the termination of its obligations hereunder) to purchase the
Securities which it had agreed to purchase at the Closing Time, the
Representative shall immediately notify the Company and the Representative and
the other Underwriters may, within 36 hours of the giving of such notice,
determine to purchase, or to procure one or more other members of the National
Association of Securities Dealers, Inc. ("NASD") (or, if not members of the
NASD, who are foreign banks, dealers or institutions not registered under the
1934 Act and who agree in making sales to comply with the NASD's Rules of Fair
Practice), satisfactory to the Company, to purchase, upon the terms herein set
forth, the number of Securities which the defaulting Underwriter had agreed to
purchase. If any non-defaulting Underwriter or Underwriters shall determine to
exercise such right, the Representative shall give written notice to the
Company of such determination within 36 hours after the Company shall have
received notice of any such default, and thereupon the Closing Time shall be
postponed for such period, not exceeding three business days, as the Company
shall determine. If in the event of such a default, the Representative shall
fail to give such notice, or shall within such 36-hour period give written
notice to the Company that no other Underwriter or Underwriters, or others,
will exercise such right, then this Agreement may be terminated by the Company,
upon like notice given to the Representative within a further period of 36
hours. If in such case the Company shall not elect to terminate this
Agreement, it shall have the right, irrespective of such default:
(a) to require such non-defaulting Underwriters to purchase and
pay for the respective number of Securities which they had severally agreed
to purchase hereunder, as hereinabove provided, and, in addition, the
Securities which the defaulting Underwriter shall have so failed to
purchase up to a number of Securities equal to one-ninth (1/9) of the
respective number of Securities which such non-defaulting Underwriters have
otherwise agreed to purchase hereunder; and/or
(b) to procure one or more other members of the NASD (or, if not
members of the NASD, who are foreign banks, dealers or institutions not
registered under the 1934 Act and who agree in making sales to comply with
27
<PAGE> 28
the NASD's Rules of Fair Practice), to purchase, upon the terms herein set
forth, the number of Securities which such defaulting Underwriter had
agreed to purchase, or that portion thereof which the remaining
Underwriters shall not be obligated to purchase pursuant to the foregoing
clause (a).
In the event the Company shall exercise its rights under clause (a) and/or
(b) above, the Company shall give written notice thereof to the Representative
within such further period of 36 hours, and thereupon the Closing Time shall be
postponed for such period, not exceeding five business days, as the Company
shall determine. In the event the Company shall be entitled to but shall not
elect to exercise its rights under clause (a) and/or (b), the Company shall be
deemed to have elected to terminate this Agreement.
Any action taken by the Company under this Section 10 shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement. Termination by the Company under this
Section 10 shall be without any liability on the part of the Company or any
non-defaulting Underwriter.
In the computation of any period of 36 hours referred to in this Section 10,
there shall be excluded a period of 24 hours in respect of each Saturday,
Sunday or legal holiday which would otherwise be included in such period of
time.
Section 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative at Merrill Lynch World
Headquarters, North Tower, World Financial Center, New York, New York
10281-1201, attention of Anthony V. Leness, Managing Director; notices to the
Trust and the Company shall be directed to them at 212 West Michigan Avenue,
Jackson, Michigan 49201, attention of Alan M. Wright, Senior Vice President and
Chief Financial Officer.
Section 12. Parties. This Agreement and the Pricing Agreement shall each
inure to the benefit of and be binding upon the Underwriters and the Trust and
the Company and their respective successors. Nothing expressed or mentioned in
this Agreement or the Pricing Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters and the Trust
and the Company and their respective successors and the controlling persons and
officers, directors and trustees referred to in Sections 7 and 8 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or the Pricing Agreement or any provision
herein or therein contained. This Agreement and the Pricing Agreement and all
conditions and provisions hereof and thereof are intended to be for the sole
and exclusive benefit
28
<PAGE> 29
of the Underwriters and the Trust and the Company and their respective
successors, and said controlling persons and officers, directors and trustees
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
Section 13. Governing Law and Time. This Agreement and the Pricing
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in said
State. Except as otherwise set forth herein, specified times of day refer to
New York City time.
Section 14. Counterparts. This Agreement may be executed by any one or
more of the parties hereto in any number of counterparts, each of which shall
be deemed to be an original, but all such respective counterparts shall
together constitute one and the same instrument.
29
<PAGE> 30
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Trust a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Trust and the Company in accordance with its
terms.
Very truly yours,
CONSUMERS ENERGY COMPANY
By
-------------------------------
Senior Vice President and Chief
Financial Officer
CONSUMERS ENERGY COMPANY FINANCING III
By
-------------------------------
Title: Regular Trustee
By
--------------------------------
Title: Regular Trustee
By
--------------------------------
Title: Regular Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By
-----------------------------
Authorized Signatory
For itself and as Representative of the other
Underwriters named in Schedule A hereto.
<PAGE> 31
SCHEDULE A
<TABLE>
<CAPTION>
Number
Name of Underwriter of Securities
------------------- -------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ________
Morgan Stanley & Co. Incorporated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ________
Total
========
</TABLE>
<PAGE> 32
EXHIBIT A
_________ Preferred Securities
CONSUMERS ENERGY COMPANY FINANCING III
(a Delaware trust)
_____% Trust Originated Preferred SecuritiesSM ("TOPrSSM")
(Liquidation Amount of $25 Per Security)
PRICING AGREEMENT
MERRILL LYNCH & CO. ___________ __, 1999
Merrill Lynch, Pierce, Fenner
& Smith Incorporated
as Representative of the several
Underwriters named in the within-
mentioned Underwriting Agreement
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement, dated ___ __,
1996 (the "Underwriting Agreement"), relating to the purchase by the several
Underwriters named in Schedule A thereto, for whom Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated is acting as representative (the
"Representative"), of the above ___% Trust Originated Preferred Securities (the
"Preferred Securities"), of CONSUMERS ENERGY COMPANY FINANCING II, a Delaware
business trust (the "Trust").
Pursuant to Section 2 of the Underwriting Agreement, the Trust
and Consumers Energy Company (the "Company"), a Michigan corporation, agree
with each Underwriter as follows:
____________________
SM "Trust Originated Preferred Securities" and "TOPrS" are service marks of
Merrill Lynch & Co., Inc.
<PAGE> 33
1. The initial public offering price per security
for the Preferred Securities, determined as provided in said Section 2,
shall be $_____.
2. The purchase price per security for the Preferred
Securities to be paid by the several Underwriters shall be $_____, being
an amount equal to the initial public offering price set forth above.
3. The compensation per Preferred Security to be
paid by the Company to the several Underwriters in respect of their
commitments hereunder shall be $__________; provided, however, that the
compensation per Preferred Security for sales of 10,000 or more
Preferred Securities to a single purchaser shall be $_________.
2
<PAGE> 34
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Trust a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Trust and the Company in accordance
with its terms.
Very truly yours,
CONSUMERS ENERGY COMPANY
By
--------------------------------
Title:
CONSUMERS ENERGY COMPANY FINANCING II
By
--------------------------------
Title: Regular Trustee
By
--------------------------------
Title: Regular Trustee
By
--------------------------------
Title: Regular Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By
------------------------------
Authorized Signatory
For itself and as Representative of the other
Underwriters named in the Underwriting Agreement.
<PAGE> 1
EXHIBIT 4(g)
CERTIFICATE OF TRUST
OF
CONSUMERS ENERGY COMPANY FINANCING III
The undersigned, constituting all of the trustees of Consumers Energy
Company Financing III, desiring to form a business trust pursuant to the
Delaware Business Trust Act, 12 Del. C. Section 3801, et seq., hereby certify as
follows:
(a) Name. The name of the business trust being formed hereby (the
"Trust") is "Consumers Energy Company Financing III."
(b) Delaware Trustee. The name and business address of the trustee
of the Trust which has its principal place of business in the
State of Delaware are as follows:
The Bank of New York (Delaware)
White Clay Center, Route 273
Newark, Delaware 19711
(c) Effective Date. This Certificate of Trust shall be effective
as of the date of filing with the Secretary of State of the
State of Delaware.
Dated: October 12, 1999
<PAGE> 2
IN WITNESS WHEREOF, the undersigned, being the Trustees of the Trust,
have executed this Certificate of Trust as of the date first above written.
/s/ Alan M. Wright
--------------------------------------
Alan M. Wright, as Regular Trustee
/s/ Thomas A. McNish
--------------------------------------
Thomas A. McNish, as Regular Trustee
The Bank of New York (Delaware), as
Delaware Trustee
By /s/ Walter N. Gitlin
-----------------------------------
Name: Walter N. Gitlin
Title: Authorized Signatory
<PAGE> 1
EXHIBIT 4(h)
CERTIFICATE OF TRUST
OF
CONSUMERS ENERGY COMPANY FINANCING IV
The undersigned, constituting all of the trustees of Consumers Energy
Company Financing III, desiring to form a business trust pursuant to the
Delaware Business Trust Act, 12 Del. C. Section 3801, et seq., hereby certify as
follows:
(a) Name. The name of the business trust being formed hereby (the
"Trust") is "Consumers Energy Company Financing IV."
(b) Delaware Trustee. The name and business address of the trustee of
the Trust which has its principal place of business in the State
of Delaware are as follows:
The Bank of New York (Delaware)
White Clay Center, Route 273
Newark, Delaware 19711
(c) Effective Date. This Certificate of Trust shall be effective as
of the date of filing with the Secretary of State of the State of
Delaware.
Dated: October 12, 1999
<PAGE> 2
IN WITNESS WHEREOF, the undersigned, being the Trustees of the Trust,
have executed this Certificate of Trust as of the date first above written.
/s/ Alan M. Wright
------------------------------------------------
Alan M. Wright, as Regular Trustee
/s/ Thomas A. McNish
------------------------------------------------
Thomas A. McNish, as Regular Trustee
The Bank of New York (Delaware), as Delaware
Trustee
By /s/ Walter N. Gitlin
---------------------------------------------
Name: Walter N. Gitlin
Title: Authorized Signatory
<PAGE> 1
EXHIBIT 4(i)
AMENDED AND RESTATED DECLARATION
OF TRUST
CONSUMERS ENERGY COMPANY FINANCING III
Dated as of October ___, 1999
-----------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions ...............................................2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application ..........................7
SECTION 2.2 Lists of Holders of Securities ............................7
SECTION 2.3 Reports by the Property Trustee ...........................8
SECTION 2.4 Periodic Reports to Property Trustee ......................8
SECTION 2.5 Evidence of Compliance with Conditions Precedent ..........8
SECTION 2.6 Events of Default; Waiver .................................8
SECTION 2.7 Event of Default; Notice .................................10
ARTICLE III
ORGANIZATION
SECTION 3.1 Name......................................................10
SECTION 3.2 Office ...................................................10
SECTION 3.3 Purpose ..................................................11
SECTION 3.4 Authority ................................................11
SECTION 3.5 Title to Property of the Trust ...........................11
SECTION 3.6 Powers and Duties of the Regular Trustees ................11
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees .....14
SECTION 3.8 Powers and Duties of the Property Trustee ................14
SECTION 3.9 Certain Duties and Responsibilities of the Property
Trustee.................................................16
SECTION 3.10 Certain Rights of Property Trustee .......................18
SECTION 3.11 Delaware Trustee .........................................19
SECTION 3.12 Execution of Documents ...................................19
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities ...20
SECTION 3.14 Duration of Trust ........................................20
SECTION 3.15 Mergers...................................................20
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities ..................22
SECTION 4.2 Responsibilities of the Sponsor ..........................22
</TABLE>
i
<PAGE> 3
ARTICLE V
TRUSTEES
<TABLE>
<S> <C> <C>
SECTION 5.1 Number of Trustees .......................................22
SECTION 5.2 Delaware Trustee .........................................23
SECTION 5.3 Property Trustee; Eligibility ............................23
SECTION 5.4 Qualifications of Regular Trustees and Delaware Trustee
Generally...............................................24
SECTION 5.5 Initial Trustees .........................................24
SECTION 5.6 Appointment, Removal and Resignation of Trustees .........24
SECTION 5.7 Vacancies among Trustees .................................26
SECTION 5.8 Effect of Vacancies ......................................26
SECTION 5.9 Meetings .................................................26
SECTION 5.10 Delegation of Power ......................................26
SECTION 5.11 Merger, Conversion, Consolidation or Succession to
Business ...............................................27
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions ............................................27
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities ..................27
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust .....................................28
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities ...................................29
SECTION 9.2 Transfer of Certificates .................................30
SECTION 9.3 Deemed Security Holders ..................................30
SECTION 9.4 Book Entry Interests .....................................30
SECTION 9.5 Notices to Clearing Agency ...............................31
SECTION 9.6 Appointment of Successor Clearing Agency .................31
SECTION 9.7 Definitive Preferred Security Certificates ...............31
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates ........32
</TABLE>
ii
<PAGE> 4
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
<TABLE>
<S> <C> <C>
SECTION 10.1 Liability ................................................32
SECTION 10.2 Exculpation ..............................................33
SECTION 10.3 Fiduciary Duty ...........................................33
SECTION 10.4 Indemnification ..........................................34
SECTION 10.5 Outside Businesses........................................36
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year ..............................................37
SECTION 11.2 Certain Accounting Matters ...............................37
SECTION 11.3 Banking...................................................37
SECTION 11.4 Withholding ..............................................38
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments ...............................................38
SECTION 12.2 Meetings of the Holders of Securities; Action by Written
Consent ................................................40
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee .......41
SECTION 13.2 Representations and Warranties of Delaware Trustee .......42
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices ..................................................42
SECTION 14.2 Governing Law ............................................44
SECTION 14.3 Intention of the Parties .................................44
SECTION 14.4 Headings..................................................44
SECTION 14.5 Successors and Assigns ...................................44
SECTION 14.6 Partial Enforceability ...................................44
SECTION 14.7 Counterparts .............................................44
SECTION 14.8 Recitals..................................................44
ANNEX I TERMS OF SECURITIES ......................................I-1
EXHIBIT A-1 FORM OF PREFERRED SECURITY CERTIFICATE ...............A1-1
EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE ..................A2-1
EXHIBIT B SPECIMEN OF DEBENTURE ....................................B-1
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C> <C>
EXHIBIT C UNDERWRITING AGREEMENT....................................C-1
</TABLE>
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
- ------------------- -----------
<S> <C>
310(a)....................................................................5.3(a)
310(c)..............................................................Inapplicable
311(c)..............................................................Inapplicable
312(a)....................................................................2.2(a)
312(b)....................................................................2.2(b)
313..........................................................................2.3
314(a).......................................................................2.4
314(b)..............................................................Inapplicable
314(c).......................................................................2.5
314(d)..............................................................Inapplicable
314(f)..............................................................Inapplicable
315(a)....................................................................3.9(b)
315(c)....................................................................3.9(a)
315(d)....................................................................3.9(a)
316(a)...................................................................Annex I
316(c)....................................................................3.6(e)
</TABLE>
- ----------------
*This Cross-Reference Table does not constitute part of the
Declaration and shall not affect the interpretation of any of its terms or
provisions.
iv
<PAGE> 6
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
CONSUMERS ENERGY COMPANY FINANCING III
October , 1999
AMENDED AND RESTATED DECLARATION OF TRUST of Consumers Energy Company
Financing III (this "Declaration") dated as of October , 1999, by the
Trustees (as defined herein), the Sponsor (as defined herein) and by the
holders, from time to time, of undivided beneficial interests in the assets of
the Trust to be issued pursuant to this Declaration;
WHEREAS, the Regular Trustees, the Delaware Trustee and the Sponsor
created Consumers Energy Company Financing III (the "Trust"), a statutory
business trust under the Business Trust Act (as defined herein) pursuant to a
Declaration of Trust dated as of October , 1999 (the "Original Declaration"),
and a Certificate of Trust filed with the Secretary of State of the State of
Delaware on October , 1999 (the "Certificate of Trust"), for the sole purpose
of issuing and selling certain securities representing undivided beneficial
interests in the assets of the Trust and investing the proceeds thereof in
certain Debentures of the Debenture Issuer;
WHEREAS, as of the date hereof, no interests in the Trust have been
issued;
WHEREAS, all of the Trustees and the Sponsor, by this Declaration,
amend and restate each and every term and provision of the Original Declaration;
and
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
<PAGE> 7
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined
in the preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
(c) all references to "the Declaration" or
"this Declaration" are to this Declaration as
modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles, Sections,
Annexes and Exhibits are to Articles and Sections of and Annexes and Exhibits to
this Declaration unless otherwise specified, and all references in this
Declaration to the "terms of the Securities" are to the terms of the Securities
as set forth in Annex I hereto;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Declaration unless otherwise defined in this
Declaration or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in
Rule 405 of the Securities Act or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is
authorized to bind such Person.
"Book Entry Interest" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Clearing Agency as described in Section 9.4.
"Business Day" means any day other than a day on which banking
institutions in New York, New York or Delaware are authorized or required by law
to close.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. ' 3801, et seq., as it may be amended from time to
time, or any successor legislation.
"Certificate" means a Common Security Certificate or a
Preferred Security Certificate.
2
<PAGE> 8
"Clearing Agency" means an organization registered as a
"Clearing Agency" pursuant to Section 17A of the Exchange Act that is acting as
depositary for the Preferred Securities and in whose name or in the name of a
nominee of that organization shall be registered a Global Certificate and which
shall undertake to effect book entry transfers and pledges of the Preferred
Securities.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time the
Clearing Agency effects book entry transfers and pledges of securities deposited
with the Clearing Agency.
"Closing Date" means October , 1999.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Securities Guarantee" means the guarantee agreement to
be dated as of October , 1999 of the Sponsor in respect of the Common
Securities.
"Common Security" has the meaning specified in Section 7.1.
"Common Security Certificate" means a definitive certificate
in fully registered form representing a Common Security substantially in the
form of Exhibit A-2.
"Company Indemnified Person" means (a) any Regular Trustee;
(b) any Affiliate of any Regular Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Regular Trustee; or (d) any officer, employee or agent of the Trust or its
Affiliates.
"Corporate Trust Office" means the office of the Property
Trustee at which the corporate trust business of the Preferred Guarantee Trustee
shall, at any particular time, be principally administered, which office at the
date of execution of this Agreement is located at 101 Barclay Street, Floor 21
West, New York, New York 10286.
"Covered Person" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent of (i) the Trust
or (ii) the Trust's Affiliates; and (b) any Holder of Securities.
"Debenture Issuer" means Consumers Energy Company in its
capacity as issuer of the series of Debentures to be acquired by the Trust.
"Debenture Trustee" means The Bank of New York, as trustee
under the Indenture until a successor is appointed thereunder, and thereafter
means such successor trustee.
3
<PAGE> 9
"Debentures" means the series of Debentures to be issued by
the Debenture Issuer under the Indenture to be held by the Property Trustee, a
specimen certificate for such series of Debentures being Exhibit B.
"Definitive Preferred Security Certificates" has the meaning
set forth in Section 9.4.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Distribution" means a distribution payable to Holders of
Securities in accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing
Agency.
"Event of Default" in respect of the Securities means an Event
of Default (as defined in the Indenture) has occurred and is continuing in
respect of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 10.4(b).
"Global Certificate" has the meaning set forth in Section 9.4.
"Holder" means a Person in whose name a Certificate
representing a Security is registered, such Person being a beneficial owner
within the meaning of the Business Trust Act.
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the Indenture dated as of ,
1999, between the Debenture Issuer and the Debenture Trustee, and any indenture
supplemental thereto pursuant to which the Debentures are to be issued.
"Investment Company" means an investment company as defined in
the Investment Company Act.
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time, or any successor legislation.
"Investment Company Event" has the meaning set forth in
Section 4(c) of Annex I hereto.
"Legal Action" has the meaning set forth in Section 3.6(g).
"Majority in liquidation amount of the Securities" means,
except as provided in the terms of the Securities or by the Trust Indenture Act,
Holder(s) of outstanding Securities voting
4
<PAGE> 10
together as a single class or, as the context may require, Holders of
outstanding Preferred Securities or Holders of outstanding Common Securities
voting separately as a class, who are the record owners of more than 50% of the
aggregate liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of all outstanding
Securities of the relevant class.
"Ministerial Action" has the meaning set forth in Section 4(c)
of Annex I.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Declaration shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering the
Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is necessary to
enable such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Paving Agent" has the meaning specified in Section 3.8(i).
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Guarantee Trustee" means The Bank of New York, as
trustee under the Preferred Securities Guarantee until a successor is appointed
thereunder, and thereafter means such successor trustee.
"Preferred Securities Guarantee" means the guarantee agreement
to be dated as of October , 1999 of the Sponsor in respect of the Preferred
Securities.
"Preferred Security" has the meaning specified in Section 7.1.
"Preferred Security Beneficial Owner" means, with respect to a
Book Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of a
Person maintaining an account with such Clearing Agency
5
<PAGE> 11
(directly as a Clearing Agency Participant or as an indirect participant, in
each case in accordance with the rules of such Clearing Agency).
"Preferred Security Certificate" means a certificate
representing a Preferred Security substantially in the form of Exhibit A-l.
"Pricing Agreement" means the pricing agreement between the
Trust, the Debenture Issuer, and the underwriters designated by the Regular
Trustees with respect to the offer and sale of the Preferred Securities.
"Property Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 5.3.
"Property Trustee Account" has the meaning set forth in
Section 3.8(c).
"Quorum" means a majority of the Regular Trustees or, if there
are only two Regular Trustees, both of them, or if there is only one Regular
Trustee, such Regular Trustee.
"Regular Trustee" means any Trustee other than the Property
Trustee and the Delaware Trustee.
"Related Party" means, with respect to the Sponsor, any direct
or indirect wholly owned subsidiary of the Sponsor or any other Person that
owns, directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"Responsible Officer" means, with respect to the Property
Trustee, any officer within the Corporate Trust Office of the Property Trustee,
including any vice-president, any assistant vice-president, any assistant
treasurer or other officer of the Corporate Trust Office of the Property Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular subject.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act.
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time or any successor legislation.
"Special Event" has the meaning set forth in Section 4(c) of
Annex I.
"Sponsor" means Consumers Energy Company, a Michigan
corporation, or any successor entity in a merger, consolidation or amalgamation,
in its capacity as sponsor of the Trust.
"Successor Property Trustee" has the meaning set forth in
Section 5.6(b).
6
<PAGE> 12
"Super Majority" has the meaning set forth in Section
2.6(a)(ii).
"Tax Event" has the meaning set forth in Section 4(c) of Annex
I.
"10% in liquidation amount of the Securities" means, except as
provided in the terms of the Securities or by the Trust Indenture Act, Holder(s)
of outstanding Securities voting together as a single class or, as the context
may require, Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities voting separately as a class, who are the record
owners of 10% or more of the aggregate liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus accrued
and unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.
"Treasury Regulations" means the income tax regulations,
including temporary and proposed regulations, promulgated under the Code by the
United States Treasury, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended from time to time, or any successor legislation.
"Underwriting Agreement" means the Underwriting Agreement for
the offering and sale of Preferred Securities in the form of Exhibit C including
any Pricing Agreement as contemplated therein.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and shall, to the
extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this
Declaration limits, qualifies or conflicts with the duties imposed by Sections
310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
7
<PAGE> 13
(d) The application of the Trust Indenture Act to this
Declaration shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Regular Trustees, on behalf of
the Trust, shall provide the Property Trustee (i) within 14 days after each
record date for payment of Distributions, a list, in such form as the Property
Trustee may reasonably require, of the names and addresses of the Holders of the
Securities ("List of Holders") as of such record date, provided that neither the
Sponsor nor the Regular Trustees, on behalf of the Trust, shall be obligated to
provide such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Property Trustee by the
Sponsor and the Regular Trustees on behalf of the Trust, and (ii) at any other
time, within 30 days of receipt by the Trust of a written request for a List of
Holders as of a date no more than 14 days before such List of Holders is given
to the Property Trustee. The Property Trustee shall preserve, in as current a
form as is reasonably practicable, all information contained in Lists of Holders
given to it or which it receives in the capacity as Paying Agent (if acting in
such capacity), provided that the Property Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations
under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Property Trustee.
Within 60 days after May 1 of each year, the Property Trustee
shall provide to the Holders of the Preferred Securities such reports as are
required by Section 313 of the Trust Indenture Act, if any, in the form and in
the manner provided by Section 313 of the Trust Indenture Act. The Property
Trustee shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
SECTION 2.4 Periodic Reports to Property Trustee.
Each of the Sponsor and the Regular Trustees, on behalf of the
Trust, shall provide to the Property Trustee such documents, reports and
information as required by Section 314 (if any) and the compliance certificate
required by Section 314 of the Trust Indenture Act in the form, in the manner
and at the times required by Section 314 of the Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration that relate to
any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver.
8
<PAGE> 14
(a) The Holders of a Majority in liquidation amount of
Preferred Securities may, by vote, on behalf of the Holders of all of the
Preferred Securities, waive any past Event of Default in respect of the
Preferred Securities and its consequences, provided that, if the underlying
Event of Default under the Indenture:
(i) is not waivable under the Indenture, the Event of
Default under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a
majority in principal amount of the holders of the Debentures (a "Super
Majority") to be waived under the Indenture, the Event of Default under the
Declaration may only be waived by the vote of the Holders of at least the
proportion in liquidation amount of the Preferred Securities that the relevant
Super Majority represents of the aggregate principal amount of the Debentures
outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
default shall cease to exist, and any Event of Default with respect to the
Preferred Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Declaration, but no such waiver shall extend to any
subsequent or other default or an Event of Default with respect to the Preferred
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Preferred Securities of an Event of Default with respect to the Preferred
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Declaration without any further act, vote,
or consent of the Holders of the Common Securities.
(b) The Holders of a Majority in liquidation amount of the
Common Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived such Event of Default
under the Declaration as provided below in this Section 2.6(b), the Event of
Default under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to
be waived, except where the Holders of the Common Securities are deemed to have
waived such Event of Default under the Declaration as provided below in this
Section 2.6(b), the Event of Default under the Declaration may only be waived by
the vote of the Holders of at least the proportion in liquidation amount of the
Common Securities that the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding;
provided further, each Holder of Common Securities will be deemed to have waived
any such Event of Default and all Events of Default with respect to the Common
Securities and its consequences
9
<PAGE> 15
until all Events of Default with respect to the Preferred Securities have been
cured, waived or otherwise eliminated, and until such Events of Default have
been so cured, waived or otherwise eliminated, the Property Trustee will be
deemed to be acting solely on behalf of the Holders of the Preferred Securities
and only the Holders of the Preferred Securities will have the right to direct
the Property Trustee in accordance with the terms of the Securities. The
foregoing provisions of this Section 2.6(b) shall be in lieu of Sections
316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such Sections
316(a)1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby expressly
excluded from this Declaration and the Securities, as permitted by the Trust
Indenture Act. Subject to the foregoing provisions of this Section 2.6(b), upon
such waiver, any such default shall cease to exist and any Event of Default with
respect to the Common Securities arising therefrom shall be deemed to have been
cured for every purpose of this Declaration, but no such waiver shall extend to
any subsequent or other default or Event of Default with respect to the Common
Securities or impair any right consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the
Property Trustee at the direction of the Holders of the Preferred Securities
constitutes a waiver of the corresponding Event of Default under this
Declaration. The foregoing provisions of this Section 2.6(c) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of
the Trust Indenture Act is hereby expressly excluded from this Declaration and
the Securities, as permitted by the Trust Indenture Act.
SECTION 2.7 Event of Default; Notice.
(a) The Property Trustee shall, within 90 days after the
occurrence of an event of Default, transmit by mail, first class postage
prepaid, to the Holders of the Securities, notices of all defaults with respect
to the Securities actually known to a Responsible Officer of the Property
Trustee, unless such defaults have been cured before the giving of such notice
(the term "defaults" for the purposes of this Section 2.7(a) being hereby
defined to be an Event of Default as defined in the Indenture, not including any
periods of grace provided for therein and irrespective of the giving of any
notice provided therein); provided that, except for a default in the payment of
principal of (or premium, if any) or interest on any of the Debentures or in the
payment of any sinking fund installment established for the Debentures, the
Property Trustee shall be protected in withholding such notice if and so long as
a Responsible Officer of the Property Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of the Securities.
Such notice shall state that such Event of Default also constitutes a
Declaration event of default.
(b) The Property Trustee shall not be deemed to have knowledge
of any default except:
(i) a default under Sections 5.1(a) and 5.1(b) of the
Indenture; or
(ii) any default as to which the Property Trustee shall
have received written notice or of which a Responsible Officer of the Property
Trustee charged with the administration of the Declaration shall have actual
knowledge.
ARTICLE III
10
<PAGE> 16
ORGANIZATION
SECTION 3.1 Name.
The Trust is named "Consumers Energy Company Financing III,"
as such name may be modified from time to time by the Regular Trustees following
written notice to the Holders of Securities. The Trust's activities may be
conducted under the name of the Trust or any other name deemed advisable by the
Regular Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o
Consumers Energy Company, 212 West Michigan Avenue, Jackson, Michigan 49201. On
ten Business Days' prior written notice to the Holders of Securities, the
Regular Trustees may designate another principal office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to
issue and sell Securities and use the proceeds from such sale to acquire the
Debentures, and (b) except as otherwise limited herein, to engage in only those
other activities necessary, appropriate, convenient or incidental thereto. The
Trust shall not borrow money, issue debt or reinvest proceeds derived from
investments, pledge any of its assets, or otherwise undertake (or permit to be
undertaken) any activity that would cause the Trust not to be classified for
United States federal income tax purposes as a grantor trust.
SECTION 3.4 Authority.
Subject to the limitations provided in this Declaration and to
the specific duties of the Property Trustee, the Regular Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Regular Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust and an action taken by the
Property Trustee on behalf of the Trust in accordance with its powers shall
constitute the act of and serve to bind the Trust. In dealing with the Trustees
acting on behalf of the Trust, no person shall be required to inquire into the
authority of the Trustees to bind the Trust. Persons dealing with the Trust are
entitled to rely conclusively on the power and authority of the Trustees as set
forth in this Declaration.
SECTION 3.5 Title to Property of the Trust.
Legal title to all assets of the Trust shall be vested in the
Property Trustee and shall be administered by the Property Trustee for the Trust
and for the benefit of the Holders in accordance with this Declaration. The
Holders shall not have legal title to any part of the assets of the Trust, but
shall have an undivided beneficial interest in the assets of the Trust.
SECTION 3.6 Powers and Duties of the Regular Trustees.
11
<PAGE> 17
The Regular Trustees shall have the exclusive power, duty and
authority to cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
Trust may issue no more than one series of Preferred Securities and no more than
one series of Common Securities, and, provided further, that there shall be no
interests in the Trust other than the Securities, and the issuance of Securities
shall be limited to a one-time, simultaneous issuance of both the Preferred
Securities and Common Securities on the Closing Date;
(b) in connection with the issue and sale of the Preferred
Securities to:
(i) execute and file with the Commission the
registrationstatement on Form S-3 prepared by the Sponsor, including any
amendments thereto, pertaining to, among other securities, the Preferred
Securities;
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the Sponsor to be necessary,
appropriate, convenient or advisable in order to qualify or register all or part
of the Preferred Securities in any State in which the Sponsor has determined to
qualify or register such Preferred Securities for sale;
(iii) execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange or any other national stock exchange or
the Nasdaq Stock Market for listing upon notice of issuance of any Preferred
Securities;
(iv) execute and file with the Commission a registration
statement on Form 8-A, including any amendments thereto, prepared by the
Sponsor, relating to the registration of the Preferred Securities under Section
12(b) of the Exchange Act; and
(v) execute and enter into the Underwriting Agreement
providing for the sale of the Preferred Securities;
(c) to acquire the Debentures with the proceeds of the sale of
the Preferred Securities and the Common Securities; provided, however, that the
Regular Trustees shall cause legal title to the Debentures to be held of record
in the name of the Property Trustee for the benefit of the Holders of the
Preferred Securities and the Holders of the Common Securities;
(d) to give the Sponsor and the Property Trustee prompt
written notice of the occurrence of a Special Event; provided that the Regular
Trustees shall consult with the Sponsor and the Property Trustee before taking
or refraining from taking any Ministerial Action in relation to a Special Event;
(e) to establish a record date with respect to all actions to
be taken hereunder that require a record date be established, including and with
respect to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue
12
<PAGE> 18
relevant notices to the Holders of Preferred Securities and Holders of Common
Securities as to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be
required of the Regular Trustees pursuant to the terms of the Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action, or otherwise adjust claims or demands of or against the
Trust ("Legal Action"), unless pursuant to Section 3.8(f), the Property Trustee
has the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors, advisors,
and consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of
the Trust Indenture Act to the Property Trustee, which certificate may be
executed by any Regular Trustee;
(k) to incur expenses that are necessary, appropriate,
convenient or incidental to carry out any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar
and transfer agent for the Securities;
(m) to give prompt written notice to the Holders of the
Securities of any notice received from the Debenture Issuer of its election to
defer payments of interest on the Debentures by extending the interest payment
period under the Indenture;
(n) to take all action that may be necessary or appropriate
for the preservation and the continuation of the Trust's valid existence,
rights, franchises and privileges as a statutory business trust under the laws
of the State of Delaware and of each other jurisdiction in which such existence
is necessary to protect the limited liability of the Holders of the Preferred
Securities or to enable the Trust to effect the purposes for which the Trust was
created;
(o) to take any action, not inconsistent with this Declaration
or with applicable law, that the Regular Trustees determine in their discretion
to be necessary, desirable, convenient or incidental in carrying out the
activities of the Trust as set out in this Section 3.6, including, but not
limited to:
(i) causing the Trust not to be deemed to be an
Investment Company required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified for United States
federal income tax purposes as a grantor trust; and
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(iii) cooperating with the Debenture Issuer to ensure that
the Debentures will be treated as indebtedness of the Debenture Issuer for
United States federal income tax purposes, provided that such action does not
materially adversely affect the interests of Holders;
(p) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with respect
to the Trust to be duly prepared and filed by the Regular Trustees, on behalf of
the Trust; and
(q) to execute all documents or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in all
matters necessary or incidental to the foregoing.
The Regular Trustees must exercise the powers set forth in
this Section 3.6 in a manner that is consistent with the purposes and functions
of the Trust set out in Section 3.3, and the Regular Trustees shall not take any
action that is inconsistent with the purposes and functions of the Trust set
forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have
none of the powers or the authority of the Property Trustee set forth in Section
3.8.
Any expenses incurred by the Regular Trustees pursuant to this
Section 3.6 shall be paid by the Debenture Issuer.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
The Trust shall not, and the Trustees (including the Property
Trustee) shall not, engage in any activity other than as required or authorized
by this Declaration. In particular, the Trust shall not and the Trustees
(including the Property Trustee) shall cause the Trust not to:
(a) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders of Securities
pursuant to the terms of this Declaration and of the Securities;
(b) acquire any assets other than as expressly provided
herein;
(c) possess Trust property for other than a Trust purpose;
(d) make any loans or incur any indebtedness other than loans
represented by the Debentures;
(e) possess any power or otherwise act in such a way as to
vary the Trust assets or the terms of the Securities in any way whatsoever;
(f) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the Securities: or
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(g) other than as provided in this Declaration or Annex I, (A)
direct the time, method and place of exercising any trust or power conferred
upon the Debenture Trustee with respect to the Debentures, (B) waive any past
default that is waivable under the Indenture, (C) exercise any right to rescind
or annul any declaration that the principal of all the Debentures shall be due
and payable, or (D) consent to any amendment, modification or termination of the
Indenture or the Debentures where such consent shall be required unless the
Trust shall have received an opinion of counsel to the effect that such
modification will not cause more than an insubstantial risk that for United
States federal income tax purposes the Trust will not be classified as a grantor
trust.
SECTION 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and
held of record in the name of the Property Trustee in trust for the benefit of
the Holders of the Securities. The right, title and interest of the Property
Trustee to the Debentures shall vest automatically in each Person who may
hereafter be appointed as Property Trustee in accordance with Section 5.6. Such
vesting and cessation of title shall be effective whether or not conveyancing
documents with regard to the Debentures have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title
and interest in the Debentures to the Regular Trustees or to the Delaware
Trustee (if the Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest
bearing trust account (the "Property Trustee Account") in the name of and under
the exclusive control of the Property Trustee on behalf of the Holders of the
Securities and, upon the receipt of payments of funds made in respect of the
Debentures held by the Property Trustee, deposit such funds into the Property
Trustee Account and make payments to the Holders of the Preferred Securities and
Holders of the Common Securities from the Property Trustee Account in accordance
with Section 6.1. Funds in the Property Trustee Account shall be held uninvested
until disbursed in accordance with this Declaration. The Property Trustee
Account shall be an account that is maintained with a banking institution the
rating on whose long-term unsecured indebtedness is at least equal to the rating
assigned to the Preferred Securities by a "nationally recognized statistical
rating organization", as that term is defined for purposes of Rule 436(g)(2)
under the Securities Act;
(ii) engage in such ministerial activities as shall be
necessary, appropriate, convenient or incidental to effect the redemption of the
Preferred Securities and the Common Securities to the extent the Debentures are
redeemed or mature; and
(iii) upon written notice of distribution issued by the
Regular Trustees in accordance with the terms of the Securities, engage in such
ministerial activities as shall be necessary or appropriate to effect the
distribution of the Debentures to Holders of Securities upon the occurrence of
certain special events (as may be defined in the terms of the Securities)
arising from a change in law or a change in legal interpretation or other
specified circumstances pursuant to the terms of the Securities.
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(d) The Property Trustee shall take all actions and perform
such duties as may be specifically required of the Property Trustee pursuant to
the terms of the Securities.
(e) The Property Trustee shall hold the Preferred Securities
Guarantee and the Common Securities Guarantee, for the benefit of the Holders of
the Preferred Securities and the Common Securities, respectively.
(f) The Property Trustee shall take any Legal Action which
arises out of or in connection with an Event of Default of which a Responsible
Officer of the Property Trustee has actual knowledge or the Property Trustee's
duties and obligations under this Declaration or the Trust Indenture Act.
(g) The Property Trustee shall not resign as a Trustee unless
either:
(i) the Trust has been completely liquidated and the
proceeds of the liquidation distributed to the Holders of Securities pursuant to
the terms of the Securities; or
(ii) a Successor Property Trustee has been appointed and
has accepted that appointment in accordance with Section 5.6.
(h) The Property Trustee shall have the legal power to
exercise all of the rights, powers and privileges of a holder of Debentures
under the Indenture and, if an Event of Default actually known to a Responsible
Officer of the Property Trustee occurs and is continuing, the Property Trustee
shall, for the benefit of Holders of the Securities, enforce its rights as
holder of the Debentures subject to the rights of the Holders pursuant to the
terms of such Securities.
(i) The Property Trustee may authorize one or more Persons
(each, a "Paying Agent") to pay Distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to all Securities, and
any such Paying Agent shall comply with Section 317(b) of the Trust Indenture
Act. Any Paying Agent may be removed by the Property Trustee at any time and a
successor Paying Agent or additional Paying Agents may be appointed at any time
by the Property Trustee.
(j) Subject to this Section 3.8, the Property Trustee shall
have none of the duties, liabilities, powers or the authority of the Regular
Trustees set forth in Section 3.6.
The Property Trustee must exercise the powers set forth in
this Section 3.8 in a manner that is consistent with the purposes and functions
of the Trust set out in Section 3.3, and the Property Trustee shall not take any
action that is inconsistent with the purposes and functions of the Trust set out
in Section 3.3
SECTION 3.9 Duties and Responsibilities of the Property Trustee.
(a) The Property Trustee, before the occurrence of any Event
of Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such
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duties as are specifically set forth in this Declaration and no implied
covenants shall be read into this Declaration against the Property Trustee. In
case an Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6) of which a Responsible Officer of the Property Trustee
has actual knowledge, the Property Trustee shall exercise such of the rights and
powers vested in it by this Declaration, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs;
(b) No provision of this Declaration shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and
after the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Property Trustee
shall be determined solely by the express provisions of this Declaration and the
Property Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Declaration, and no
implied covenants or obligations shall be read into this Declaration against the
Property Trustee; and
(B) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Property Trustee and conforming to the
requirements of this Declaration; but in the case of any such certificates or
opinions that by any provision hereof are specifically required to be furnished
to the Property Trustee, the Property Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements of this
Declaration;
(ii) the Property Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was grossly
negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a Majority in
liquidation amount of the Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee, or
exercising any trust or power conferred upon the Property Trustee under this
Declaration;
(iv) no provision of this Declaration shall require the
Property Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Declaration or indemnity reasonably
satisfactory to the Property Trustee against such risk or liability is not
reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and the
Property Trustee Account shall be to
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deal with such property in a similar manner as the Property Trustee deals with
similar property for its own account, subject to the protections and limitations
on liability afforded to the Property Trustee under this Declaration and the
Trust Indenture Act;
(vi) the Property Trustee shall have no duty or
liability for or with respect to the value, genuineness, existence or
sufficiency of the Debentures or the payment of any taxes or assessments levied
thereon or in connection therewith;
(vii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree with the
Sponsor. Money held by the Property Trustee need not be segregated from other
funds held by it except in relation to the Property Trustee Account maintained
by the Property Trustee pursuant to Section 3.8(c)(i) and except to the extent
otherwise required by law; and
(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees or the Sponsor with their
respective duties under this Declaration, nor shall the Property Trustee be
liable for any default or misconduct of the Regular Trustees or the Sponsor.
SECTION 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall
be fully protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties;
(ii) any direction or act of the Sponsor or the Regular
Trustees contemplated by this Declaration shall be sufficiently evidenced by an
Officers' Certificate;
(iii) whenever in the administration of this Declaration,
the Property Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder, the
Property Trustee (unless other evidence is herein specifically prescribed) may,
in the absence of bad faith on its part, request and conclusively rely upon an
Officers' Certificate which, upon receipt of such request, shall be promptly
delivered by the Sponsor or the Regular Trustees;
(iv) the Property Trustee shall have no duty to see to
any recording, filing or registration of any instrument (including any financing
or continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or registration thereof;
(v) the Property Trustee may consult with counsel of its
choice or other experts and the advice or opinion of such counsel and experts
with respect to legal matters or advice
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within the scope of such experts' area of expertise shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with such advice or opinion,
such counsel may be counsel to the Sponsor or any of its Affiliates, and may
include any of its employees. The Property Trustee shall have the right at any
time to seek instructions concerning the administration of this- Declaration
from any court of competent jurisdiction;
(vi) the Property Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this Declaration at the
request or direction of any Holder, unless such Holder shall have provided to
the Property Trustee security and indemnity, reasonably satisfactory to the
Property Trustee, against the costs, expenses (including attorneys' fees and
expenses and the expenses of the Property Trustee's agents, nominees or
custodians) and liabilities that might be incurred by it in complying with such
request or direction, including such reasonable advances as may be requested by
the Property Trustee provided, that, nothing contained in this Section
3.10(a)(vi) shall be taken to relieve the Property Trustee, upon the occurrence
of an Event of Default, of its obligation to exercise the rights and powers
vested in it by this Declaration;
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolutions certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Property Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit;
(viii) the Property Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly or by or
through agents, custodians, nominees or attorneys and the Property Trustee shall
not be responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
(ix) any action taken by the Property Trustee or its
agents hereunder shall bind the Trust and the Holders of the Securities, and the
signature of the Property Trustee or its agents alone shall be sufficient and
effective to perform any such action and no third party shall be required to
inquire as to the authority of the Property Trustee to so act or as to its
compliance with any of the terms and provisions of this Declaration, both of
which shall be conclusively evidenced by the Property Trustee's or its agent's
taking such action;
(x) whenever in the administration of this Declaration
the Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action hereunder,
the Property Trustee (i) may request instructions from the Holders of the
Securities which instructions may only be given by the Holders of the same
proportion in liquidation amount of the Securities as would be entitled to
direct the Property Trustee under the terms of the Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (iii) shall
be protected in conclusively relying on or acting in or accordance with such
instructions; and
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(xi) except as otherwise expressly provided by this
Declaration, the Property Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this Declaration.
(b) No provision of this Declaration shall be deemed to impose
any duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
SECTION 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration other
than Section 5.2, the Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Regular Trustees or the Property Trustee described in
this Declaration. Except as set forth in Section 5.2, the Delaware Trustee shall
be a Trustee for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Business Trust Act.
SECTION 3.12 Execution of Documents.
Except as otherwise required by the Business Trust Act, a
majority of or, if there are only two, both Regular Trustees or, if there is
only one, such Regular Trustee is authorized to execute on behalf of the Trust
any documents that the Regular Trustees have the power and authority to execute
pursuant to Section 3.6; provided that, the registration statement referred to
in Section 3.6(b)(i), including any amendments thereto, shall be signed by all
of the Regular Trustees.
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the Securities
shall be taken as the statements of the Sponsor, and the Trustees do not assume
any responsibility for their correctness. The Trustees make no representations
as to the value or condition of the property of the Trust or any part thereof.
The Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
SECTION 3.14 Duration of Trust.
The Trust, unless terminated pursuant to the provisions of
Article VIII hereof, shall have existence until October , 2054.
SECTION 3.15 Mergers.
(a) The Trust may not consolidate, amalgamate, merge with or
into, or be replaced by, or convert to, or convey, transfer or lease its
properties and assets substantially as an entirety to any business trust or
other business entity (as defined in the Business Trust Act), except as
described in Section 3.15(b) and (c).
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(b) The Trust may, with the consent of the Regular Trustees
or, if there are more than two, a majority of the Regular Trustees and without
the consent of the Holders of the Securities, the Delaware Trustee or the
Property Trustee, consolidate, amalgamate, merge with or into, or be replaced by
a trust organized as such under the laws of any State; provided that:
(i) such successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the
Trust under the Securities; or
(B) substitutes for the Securities other securities
having substantially the same terms as the Preferred Securities (the "Successor
Securities") so long as the Successor Securities rank the same as the Preferred
Securities rank with respect to Distributions and payments upon liquidation,
redemption and otherwise;
(ii) the Debenture Issuer expressly acknowledges a
trustee of the Successor Entity that possesses the same powers and duties as the
Property Trustee as the Holder of the Debentures;
(iii) the Preferred Securities or any Successor
Securities are listed, or any Successor Securities will be listed upon
notification of issuance, on any national securities exchange or with any other
organization on which the Preferred Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation or
replacement does not cause the Preferred Securities (including any Successor
Securities) to be downgraded by any nationally recognized statistical rating
organization;
(v) such merger, consolidation, amalgamation or
replacement does not adversely affect the material rights, preferences and
privileges of the Holders of the Securities (including any Successor Securities)
in any material respect (other than with respect to any dilution of such
Holders' interests in the Preferred Securities as a result of such merger,
consolidation, amalgamation or replacement);
(vi) such Successor Entity has a purpose substantially
identical to that of the Trust;
(vii) prior to such merger, consolidation,
amalgamation or replacement, the Sponsor has received an opinion of a nationally
recognized independent counsel to the Trust experienced in such matters to the
effect that:
(A) such merger, consolidation, amalgamation or
replacement does not adversely affect the material rights, preferences and
privileges of the Holders of the Securities (including any Successor Securities)
in any material respect (other than with respect to any dilution of the Holders'
interest in the new entity); and
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(B) following such merger, consolidation,
amalgamation or replacement, neither the Trust nor the Successor Entity will be
required to register as an Investment Company; and
(C) following such merger, consolidation,
amalgamation or replacement, the Trust (or the Successor Entity) will continue
to be classified as a grantor trust for United States federal income tax
purposes; and
(viii) the Sponsor guarantees the obligations of such
Successor Entity under the Successor Securities at least to the extent provided
by the Preferred Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall not,
except with the consent of Holders of 100% in liquidation amount of the
Securities, consolidate, amalgamate, merge with or into, convert to, or be
replaced by any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, conversion or replacement would cause the Trust or
Successor Entity to be classified as other than a grantor trust for United
States federal income tax purposes.
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.
On the Closing Date the Sponsor will purchase all of the
Common Securities issued by the Trust, in an amount at least equal to 3% of the
capital of the Trust, at the same time as the Preferred Securities are sold.
SECTION 4.2 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred
Securities, the Sponsor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare for filing by the Trust with the Commission a
registration statement on Form S-3 in relation to, among other securities, the
Preferred Securities, including any amendments thereto;
(b) to determine the States in which to take appropriate
action to qualify or register for sale all or part of the Preferred Securities
and to do any and all such acts, other than actions which must be taken by the
Trust, and advise the Trust of actions it must take, and prepare for execution
and filing any documents to be executed and filed by the Trust, as the Sponsor
deems necessary or advisable in order to comply with the applicable laws of any
such States;
(c) to prepare for filing by the Trust an application to the
New York Stock Exchange or any other national stock exchange or the Nasdaq
National Market for listing upon notice of issuance of any Preferred Securities;
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(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the Preferred
Securities under Section 12(b) of the Exchange Act, including any amendments
thereto; and
(e) to negotiate the terms of the Underwriting Agreement and
Pricing Agreement providing for he sale of the Preferred Securities.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees.
The number of Trustees initially shall be four (4), and:
(a) at any time before the issuance of any Securities, the
Sponsor may, by written instrument, increase or decrease the number of Trustees;
and
(b) after the issuance of any Securities, the number of
Trustees may be increased or decreased by vote of the Holders of a majority in
liquidation amount of the Common Securities voting as a class at a meeting of
the Holders of the Common Securities.
provided that, in any case, the number of Trustees shall at least be four (4)
unless the Trustee that acts as the Property Trustee also Acts as Delaware
Trustee pursuant to Section 5.2, in which case the number of Trustees, shall be
at least three (3).
SECTION 5.2 Delaware Trustee.
If required by the Business Trust Act, one Trustee (the
"Delaware Trustee") shall be:
(a) a natural person who is a resident of the State of
Delaware; or
(b) if not a natural person, an entity which has its principal
place of business in the State of Delaware, and otherwise meets the requirements
of applicable law,
provided that, if the Property Trustee has a principal place of business in the
State of Delaware and otherwise meets the requirements of applicable law, then
the Property Trustee shall also be the Delaware Trustee and Section 3.11 shall
have no application.
SECTION 5.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee which shall act as
Property Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
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(ii) be a corporation organized and doing business under
the laws of the United States of America or any State or Territory thereof or of
the District of Columbia, or a corporation or other Person permitted by the
Commission to act as an institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least 50 million U.S. dollars ($50,000,000), and
subject to supervision or examination by Federal, State, Territorial or District
of Columbia authority. If such corporation or other Person publishes reports of
condition at least annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then for the purposes of
this Section 5.3(a)(ii), the combined capital and surplus of such corporation or
other Person shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published.
(b) If at any time the Property Trustee shall cease to be
eligible to so act under Section 5.3(a), the Property Trustee shall immediately
resign in the manner and with the effect set forth in Section 5.6(c).
(c) If the Property Trustee has or shall acquire any
"conflicting interest" within the meaning of SS. 310(b) of the Trust Indenture
Act, the Property Trustee and the Holder of the Common Securities (as if it were
the obligor referred to in SS. 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of SS. 310(b) of the Trust Indenture Act.
(d) The Preferred Securities Guarantee shall be deemed to be
specifically described in this Declaration for purposes of clause (i) of the
first provision contained in SS. 310(b) of the Trust Indenture Act.
SECTION 5.4 Qualifications of Regular Trustees and Delaware Trustee
Generally.
Each Regular Trustee and the Delaware Trustee (unless the
Property Trustee also acts as Delaware Trustee) shall be either a natural person
who is at least 21 years of age or a legal entity that shall act through one or
more Authorized Officers.
SECTION 5.5 Initial Trustees.
The initial Regular Trustees shall be:
Alan M. Wright Thomas A. McNish
212 West Michigan Avenue 212 West Michigan Avenue
Jackson, Michigan 49201 Jackson, Michigan 49201
The initial Delaware Trustee shall be:
The Bank of New York (Delaware)
White Clay Center
Route 273
Newark, Delaware 19711
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The initial Property Trustee shall be:
The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
SECTION 5.6 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.6(b), Trustees may be appointed or
removed without cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of the
Holders of a Majority in liquidation amount of the Common Securities voting as a
class at a meeting of the Holders of the Common Securities.
(b) (i) The Trustee that acts as Property Trustee shall not be
removed in accordance with Section 5.6(a) until a successor Trustee possessing
the qualifications to act as Property Trustee under Section 5.3 (a "Successor
Property Trustee") has been appointed and has accepted such appointment by
written instrument executed by such Successor Property Trustee and delivered to
the Regular Trustees and the Sponsor; and (ii) the Trustee that acts as Delaware
Trustee shall not be removed in accordance with this Section 5.6(a) until a
successor Trustee possessing the qualifications to act as Delaware Trustee under
Sections 5.2 and 5.4 (a "Successor Delaware Trustee") has been appointed and has
accepted such appointment by written instrument executed by such Successor
Delaware Trustee and delivered to the Regular Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or resignation.
Any Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing signed by the Trustee and delivered to
the Sponsor and the Trust, which resignation shall take effect upon such
delivery or upon such later date as is specified therein; provided, however,
that:
(i) No such resignation of the Trustee that acts as the
Property Trustee shall be effective:
(A) until a Successor Property Trustee has been
appointed and has accepted such appointment by instrument executed by such
Successor Property Trustee and delivered to the Trust, the Sponsor and the
resigning Property Trustee; or
(B) until the assets of the Trust have been
completely liquidated and the proceeds thereof distributed to the Holders of the
Securities; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee has been
appointed and has accepted such
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appointment by instrument executed by such Successor Delaware Trustee and
delivered to the Trust, the Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best
efforts to promptly appoint a Successor Delaware Trustee or Successor Property
Trustee as the case may be if the Property Trustee or the Delaware Trustee
delivers an instrument of resignation in accordance with this Section 5.6.
(e) If no Successor Property Trustee or Successor Delaware
Trustee shall have been appointed and shall have accepted such appointment as
provided in this Section 5.6 within 60 days after delivery to the Sponsor and
the Trust of an instrument of resignation, the resigning Property Trustee or
Delaware Trustee, as applicable, may petition any court of competent
jurisdiction for appointment of a Successor Property Trustee or Successor
Delaware Trustee. Such court may thereupon, after prescribing such notice, if
any, as it may deem proper, appoint a Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable
for the acts or omissions to act of any Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
SECTION 5.7 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the
number of Trustees is not reduced pursuant to Section 5.1, or if the number of
Trustees is increased pursuant to Section 5.1, a vacancy shall occur. A
resolution certifying the existence of such vacancy by the Regular Trustee, if
there is one, or by each of the Regular Trustees, if there are two or, if there
are more than two, a majority of the Regular Trustees, shall be conclusive
evidence of the existence of such vacancy. The vacancy shall be filled with a
Trustee appointed in accordance with Section 5.6.
SECTION 5.8 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of a
Trustee shall not operate to annul the Trust. Whenever a vacancy in the number
of Regular Trustees shall occur, until such vacancy is filled by the appointment
of a Regular Trustee in accordance with Section 5.6, the Regular Trustees in
office, regardless of their number, shall have all the powers granted to the
Regular Trustees and shall discharge all the duties imposed upon the Regular
Trustees by this Declaration.
SECTION 5.9 Meetings.
If there is more than one Regular Trustee, meetings of the
Regular Trustees shall be held from time to time upon the call of any Regular
Trustee. Regular meetings of the Regular Trustees may be held at a time and
place fixed by resolution of the Regular Trustees. Notice of any in-person
meetings of the Regular Trustees shall be hand delivered or otherwise delivered
in writing (including by facsimile, with a hard copy by overnight courier) not
less than 48 hours before such meeting. Notice of any telephonic meetings of the
Regular Trustees or any committee thereof shall be hand delivered or otherwise
delivered in writing (including by facsimile, with a hard copy by
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overnight courier) not less than 24 hours before a meeting. Notices shall
contain a brief statement of the time, place and anticipated purposes of the
meeting. The presence (whether in person or by telephone) of a Regular Trustee
at a meeting shall constitute a waiver of notice of such meeting except where a
Regular Trustee attends a meeting for the express purpose of objecting to the
transaction of any activity on the ground that the meeting has not been lawfully
called or convened. Unless provided otherwise in this Declaration, any action of
the Regular Trustees may be taken at a meeting by vote of a majority of the
Regular Trustees present (whether in person or by telephone) and eligible to
vote with respect to such matter, provided that a Quorum is present, or without
a meeting, by the unanimous written consent of the Regular Trustees. In the
event there is only one Regular Trustee, any and all action of such Regular
Trustee shall be evidenced by a written consent of such Regular Trustee.
SECTION 5.10 Delegation of Power.
(a) Any Regular Trustee may, by power of attorney consistent
with applicable law, delegate to an other natural person over the age of 21 his
or her power for the purpose of executing any documents contemplated in Section
3.6, including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) the Regular Trustees shall have power to delegate from
time to time to such of their number or to officers of the Trust the doing of
such things and the execution of such instruments either in the name of the
Trust or the names of the Regular Trustees or otherwise as the Regular Trustees
may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as set forth herein.
SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee or the Delaware
Trustee, as the case may be, may be merged or converted or with which either may
be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Property Trustee or the Delaware Trustee, as the case
may be, shall be a party, or any Person succeeding to all or substantially all
the corporate trust business of the Property Trustee or the Delaware Trustee, as
the case may be, shall be the successor of the Property Trustee or the Delaware
Trustee, as the case may be, hereunder, provided such Person shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the Parties hereto.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
Holders shall receive Distributions in accordance with the
applicable terms of the relevant Holder's Securities. Distributions shall be
made on the Preferred Securities and the Common Securities in accordance with
the preferences set forth in their respective terms. If and to the extent that
the Debenture issuer makes a payment of interest (including Compounded Interest
(as defined in the Indenture) and Additional Interest (as defined in the
Indenture)), premium and/or
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principal on the Debentures held by the Property Trustee (the amount of any such
payment being a "Payment Amount"), the Property Trustee shall and is directed,
to the extent funds are available for that purpose, to make a distribution (a
"Distribution") of the Payment Amount to Holders.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Regular Trustees shall, on behalf of the Trust, issue
one class of preferred securities representing undivided beneficial interests in
the assets of the Trust having such terms as are set forth in Annex I (the
"Preferred Securities"), which terms are incorporated by reference in, and made
a part of, this Declaration as if specifically set forth herein, and one class
of common securities representing undivided beneficial interests in the assets
of the Trust having such terms as are set forth in Annex I (the "Common
Securities"), which terms are incorporated by reference in, and made a part of,
this Declaration as if specifically set forth herein. The Trust shall issue no
securities or other interests in the assets of the Trust other than the
Preferred Securities and the Common Securities.
(b) The Certificates shall be signed on behalf of the Trust by
the Regular Trustees (or, if there are more than two Regular Trustees, by any
two of the Regular Trustees). Any such signature shall be the manual signature
of any present or any future Regular Trustee. In case any Regular Trustee of the
Trust who shall have signed any of the Securities shall cease to be such Regular
Trustee before the Certificates so signed shall be delivered by the Trust, such
Certificates nevertheless may be delivered as though the person who signed such
Certificates had not ceased to be such Regular Trustee; and any Certificate may
be signed on behalf of the Trust by such persons who, at the actual date of
execution of such Certificate, shall be the Regular Trustees of the Trust,
although at the date of the execution and delivery of the Declaration any such
person was not such a Regular Trustee. Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Regular Trustees, as evidenced by their execution thereof, and
may have such letters, numbers or other marks of identification or designation
and such legends or endorsements as the Regular Trustees may deem appropriate,
or as may be required to comply with any law or with any rule or regulation of
any stock exchange on which the Securities may be listed, or to conform to
usage.
(c) The consideration received by the Trust for the issuance
of the Securities shall constitute a contribution to the capital of the Trust
and shall not constitute a loan to the Trust.
(d) Upon issuance of the Securities as provided in this
Declaration, the Securities so issued shall be deemed to be validly issued,
fully paid and non-assessable subject to Section 10.1(b) with respect to the
Common Securities.
(e) Every Person, by virtue of having become a Holder or a
Preferred Security Beneficial Owner in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Declaration, the Preferred Securities Guarantee
and the Indenture.
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ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Dissolution and Termination of Trust.
(a) The Trust shall dissolve:
(i) upon the bankruptcy of the Holder of the Common
Securities or the Sponsor;
(ii) upon the filing of a certificate of dissolution or
its equivalent with respect to the Holder of the Common Securities or the
Sponsor or the revocation of the charter of the Holder of the Common Securities,
or the Sponsor's charter and the expiration of 90 days after the date of
revocation without a reinstatement thereof;
(iii) upon the entry of a decree of judicial dissolution
of the Holder of the Common Securities, the Sponsor or the Trust;
(iv) when all of the Securities shall have been called
for redemption and the amounts necessary for redemption thereof shall have been
paid to the Holders in accordance with the terms of the Securities;
(v) upon the occurrence and continuation of a Special
Event pursuant to which the Trust shall have been dissolved in accordance with
the terms of the Securities and all of the Debentures endorsed thereon shall
have been distributed to the Holders of Securities in exchange for all of the
Securities;
(vi) before the issuance of any Securities, with the
consent of all of the Regular Trustees and the Sponsor; or
(vii) upon the expiration of the term of the Trust as set
forth in Section 3.14.
(b) After the occurrence of an event referred to in Section
8.1(a) and upon the completion of winding-up of the Trust and its termination,
the Trustees shall file a certificate of cancellation with the Secretary of
State of the State of Delaware.
(c) The provisions of Section 3.9 and Article X shall survive
the termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.
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(a) Securities may only be transferred, in whole or in part,
in accordance with the terms and conditions set forth in this Declaration and in
the terms of the Securities. Any transfer or purported transfer of any Security
not made in accordance with this Declaration, and the terms of the Securities
shall be null and void.
(b) Subject to this Article IX, Preferred Securities shall be
freely transferable.
(c) Subject to this Article IX, the Sponsor and any Related
Party may only transfer Common Securities to the Sponsor or a Related Party of
the Sponsor; provided that, any such transfer is subject to the condition
precedent that the transferor obtain the written opinion of nationally
recognized independent counsel experienced in such matters that such transfer
would not cause more than an insubstantial risk that:
(i) the Trust would not be classified for United States
federal income tax purposes as a grantor trust; and
(ii) the Trust would be an Investment Company or the
transferee would become an Investment Company.
SECTION 9.2 Transfer of Certificates.
The Regular Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be effected without
charge but only upon payment (with such indemnity as the Regular Trustees may
require) in respect of any tax or other governmental charges that may be imposed
in relation to it. Upon surrender for registration of transfer of any
Certificate, the Regular Trustees shall cause one or more new Certificates to be
issued in the name of the designated transferee or transferees. Every
Certificate surrendered for registration of transfer shall be accompanied by a
written instrument of transfer in form satisfactory to the Regular Trustees duly
executed by the Holder or such Holder's attorney duly authorized in writing.
Each Certificate surrendered for registration of transfer shall be canceled by
the Regular Trustees. A transferee of a Certificate shall be entitled to the
rights and subject to the obligations of a Holder hereunder upon the receipt by
such transferee of a Certificate. By acceptance of a Certificate, each
transferee shall be deemed to have agreed to be bound by this Declaration. In
the event that the Preferred Securities do not remain in book-entry only form,
the Property Trustee will act as paying agent and may designate an additional or
substitute paying agent at any time.
SECTION 9.3 Deemed Security Holders.
The Trustees may treat the Person in whose name any
Certificate shall be registered on the books and records of the Trust as the
sole holder of such Certificate and of the Securities represented by such
Certificate for purposes of receiving Distributions and for all other purposes
whatsoever and, accordingly, shall not be bound to recognize any equitable or
other claim to or interest in such Certificate or in the Securities represented
by such Certificate on the part of any Person, whether or not the Trust shall
have actual or other notice thereof.
SECTION 9.4 Book Entry Interests.
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Unless otherwise specified in the terms of the Preferred
Securities, the Preferred Securities Certificates, on original issuance, will be
issued in the form of one or more, fully registered, global Preferred Security
Certificates (each a "Global Certificate"), to be delivered to DTC, the initial
Clearing Agency, by, or on behalf of, the Trust. Such Global Certificate(s)
shall initially be registered on the books and records of the Trust in the name
of Cede & Co., the nominee of DTC, and no Preferred Security Beneficial Owner
will receive a definitive Preferred Security Certificate representing such
Preferred Security Beneficial Owner's interests in such Global Certificate(s),
except as provided in Section 9.7. Unless and until definitive, fully registered
Preferred Security Certificates (the "Definitive Preferred Security
Certificates") have been issued to the Preferred Security Beneficial Owners
pursuant to Section 9.7:
(a) the provisions of this Section 9.4 shall be in full force
and effect;
(b) the Trust and the Trustees shall be entitled to deal with
the Clearing Agency for all purposes of this Declaration (including the payment
of Distributions on the Global Certificate(s) and receiving approvals, votes or
consents hereunder) as the Holder of the Preferred Securities and the sole
holder of the Global Certificate(s) and shall have no notice obligation to the
Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4
conflict with any other provisions of this Declaration, the provisions of this
Section 9.4 shall control; and
(d) the rights of the Preferred Security Beneficial Owners
shall be exercised only through the Clearing Agency and shall be limited to
those established by law and agreements between such Preferred Security
Beneficial Owners and the Clearing Agency and/or the Clearing Agency
Participants. DTC will make book entry transfers among the Clearing Agency
Participants and receive and transmit payments of Distributions on the Global
Certificates to such Clearing Agency Participants.
SECTION 9.5 Notices to Clearing Agency.
Whenever a notice or other communication to the Preferred
Security Holders is required under this Declaration, unless and until Definitive
Preferred Security Certificates shall have been issued to the Preferred Security
Beneficial Owners pursuant to Section 9.7, the Regular Trustees shall give all
such notices and communications specified herein to be given to the Preferred
Security Holders to the Clearing Agency, and shall have no notice obligations to
the Preferred Security Beneficial Owners.
SECTION 9.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities, the Regular
Trustees may, in their sole discretion, appoint a successor Clearing Agency with
respect to such Preferred Securities.
SECTION 9.7 Definitive Preferred Security Certificates.
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If:
(a) a Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities and a successor
Clearing Agency is not appointed within 90 days after such discontinuance
pursuant to Section 9.6; or
(b) the Regular Trustees elect after consultation with the
Sponsor to terminate the book entry system through the Clearing Agency with
respect to the Preferred Securities,
then:
(i) Definitive Preferred Security Certificates shall be
prepared by the Regular Trustees on behalf of the Trust with respect to such
Preferred Securities; and
(ii) upon surrender of the Global Certificate(s) by the
Clearing Agency, accompanied by registration instructions, the Regular Trustees
shall cause Definitive Preferred Security Certificates to be delivered to
Preferred Security Beneficial Owners in accordance with the instructions of the
Clearing Agency. Neither the Trustees nor the Trust shall be liable for any
delay in delivery of such instructions and each of them may conclusively rely on
and shall be protected in relying on, said instructions of the Clearing Agency.
The Definitive Preferred Security Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Regular Trustees, as evidenced by their execution thereof, and may have such
letters, numbers or other marks of identification or designation and such
legends or endorsements as the Regular Trustees may deem appropriate, or as may
be required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which Preferred
Securities may be listed, or to conform to usage.
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificates should be surrendered to the
Regular Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees such
security or indemnity as may be required by them to keep each of them harmless,
then, in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, any Regular Trustee on behalf of the Trust shall execute
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Certificate, a new Certificate of like denomination. In connection
with the issuance of any new Certificate under this Section 9.8, the Regular
Trustees may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section 9.8 shall
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constitute conclusive evidence of an ownership interest in the relevant
Securities, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability
(a) Except as expressly set forth in this Declaration, the
Preferred Securities Guarantee, the Common Securities Guarantee and the terms of
the Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of
the capital contributions (or any return thereon) of the Holders of the
Securities which shall be made solely from assets of the Trust; and
(ii) required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or otherwise.
(b) The Holder of the Common Securities shall be liable for
all of the debts and obligations of the Trust (other than with respect to the
Securities) to the extent not satisfied out of the Trust's assets.
(c) Pursuant to ss. 3803(a) of the Business Trust Act, the
Holders of the Preferred Securities shall be entitled to the same limitation of
personal liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware.
SECTION 10.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Declaration or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's gross negligence or
willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Securities might properly be paid.
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SECTION 10.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating thereto
to the Trust or to any other Covered Person, an Indemnified Person acting under
this Declaration shall not be liable to the Trust or to any other Covered Person
for its good faith reliance on the provisions of this Declaration. The
provisions of this Declaration, to the extent that they restrict the duties and
liabilities of an Indemnified Person otherwise existing at law or in equity
(other than the duties imposed on the Property Trustee under the Trust Indenture
Act), are agreed by the parties hereto to replace such other duties and
liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between any Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person shall act in
a manner that is, or provide terms that are, fair and reasonable to the Trust or
any Holder of Securities,
the indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to consider such interests
and factors as it desires, including its own interests, and shall have no duty
or obligation to give any consideration to any interest of or factors affecting
the Trust or any other Person; or
(ii) in its "good faith" or under another express
standard, the Indemnified Person shall act under such express standard and shall
not be subject to any other or different standard imposed by this Declaration or
by applicable law.
SECTION 10.4 Indemnification.
(a)(i) The Debenture Issuer shall indemnify, to the full
extent permitted by law, any Company Indemnified Person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative
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or investigative (other than an action by or in the right of the Trust) by
reason of the fact that he is or was a Company Indemnified Person against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the Company Indemnified Person did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the
Trust, and, with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the full
extent permitted by law, any Company Indemnified Person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the Trust to procure a judgment in its favor by
reason of the fact that he is or was a Company Indemnified Person against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Trust and except that no such indemnification shall be
made in respect of any claim, issue or matter as to which such Company
Indemnified Person shall have been adjudged to be liable to the Trust unless and
only to the extent that the Court of Chancery of the State of Delaware or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which such Court of Chancery or such other court shall deem proper.
(iii) To the extent that a Company Indemnified Person
shall be successful on the merits or otherwise (including dismissal of an action
without prejudice or the settlement of an action without admission of liability)
in defense of any action, suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 10.4(a), or in defense of any claim, issue or matter
therein, he shall be indemnified, to the full extent permitted by law, against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of
this Section 10.4(a) (unless ordered by a court) shall be made by the Debenture
Issuer only as authorized in the specific case upon a determination that
indemnification of the Company Indemnified Person is proper in the circumstances
because he has met the applicable standard of conduct set forth in paragraphs
(i) and (ii). Such determination shall be made (1) by the Regular Trustees by a
majority vote of a quorum consisting of such Regular Trustees who were not
parties to such action, suit or proceeding, (2) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested Regular
Trustees so directs, by independent legal counsel in a written opinion, or (3)
by the Common Security Holder of the Trust.
(v) To the fullest extent permitted by applicable law,
expenses (including attorneys' fees) incurred by a Company Indemnified Person in
defending a civil, criminal, administrative or investigative action, suit or
proceeding referred to in paragraphs (i) and (ii) of this Section 10.4(a) shall
be paid by the Debenture Issuer in advance of the final disposition of such
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action, suit or proceeding upon receipt of an undertaking by or on behalf of
such Company Indemnified Person to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Debenture Issuer as
authorized in this Section 10.4(a). Notwithstanding the foregoing, no advance
shall be made by the Debenture Issuer if a determination is reasonably and
promptly made (i) by the Regular Trustees by a majority vote of a quorum of
disinterested Regular Trustees, (ii) if such a quorum is not obtainable, or,
even if obtainable, if a quorum of disinterested Regular Trustees so directs, by
independent legal counsel in a written opinion or (iii) the Common Security
Holder of the Trust, that, based upon the facts known to the Regular Trustees,
counsel or the Common Security Holder at the time such determination is made,
such Company Indemnified Person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the best interests of the
Trust, or, with respect to any criminal proceeding, that such Company
Indemnified Person believed or had reasonable cause to believe his conduct was
unlawful. In no event shall any advance be made in instances where the Regular
Trustees, independent legal counsel or Common Security Holder reasonably
determine that such person deliberately breached his duty to the Trust or its
Common or Preferred Security Holders.
(vi) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of this Section
10.4(a) shall not be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any agreement,
vote of stockholders or disinterested directors of the Debenture Issuer or
Preferred Security Holders of the Trust or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office. All rights to indemnification under this Section 10.4(a) shall be deemed
to be provided by a contract between the Debenture Issuer and each Company
Indemnified Person who serves in such capacity at any time while this Section
10.4(a) is in effect. Any repeal or modification of this Section 10.4(a) shall
not affect any rights or obligations then existing.
(vii) The Debenture Issuer or the Trust may purchase and
maintain insurance on behalf of any person who is or was a Company Indemnified
Person against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the
Debenture Issuer would have the power to indemnify him against such liability
under the provisions of this Section 10.4(a).
(viii)For purposes of this Section 10.4(a), references to
"the Trust" shall include, in addition to the resulting or surviving entity, any
constituent entity (including any constituent of a constituent) absorbed in a
consolidation or merger, so that any person who is or was a director, trustee,
officer or employee of such constituent entity, or is or was serving at the
request of such constituent entity as a director, trustee, officer, employee or
agent of another entity, shall stand in the same position under the provisions
of this Section 10.4(a) with respect to the resulting or surviving entity as he
would have with respect to such constituent entity if its separate existence had
continued.
(ix) The indemnification and advancement of expenses
provided by, or granted pursuant to this Section 10.4(a) shall, unless otherwise
provided when authorized or ratified, continue as to a person who has ceased to
be a Company Indemnified Person and shall inure to the benefit of the heirs,
executors and administrators of such a person.
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(b) The Debenture Issuer agrees to indemnify the (i) Property
Trustee, (ii) the Delaware Trustee, (iii) any Affiliate of the Property Trustee
and the Delaware Trustee, and (iv) any officers, directors, shareholders,
members, partners, employees, representatives, custodians, nominees or agents of
the Property Trustee and the Delaware Trustee (each of the Persons in (i)
through (iv) being referred to as a "Fiduciary Indemnified Person") for, and to
hold each Fiduciary Indemnified Person harmless against, any loss, liability or
expense incurred without gross negligence or bad faith on its part, arising out
of or in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The obligation to indemnify as set forth in this Section 10.4(b)
shall survive the satisfaction and discharge of this Declaration.
SECTION 10.5 Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Property Trustee may engage in or possess an interest in other business ventures
of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders of
Securities shall have no rights by virtue of this Declaration in and to such
independent ventures or the income or profits derived therefrom, and the pursuit
of any such venture, even if competitive with the business of the Trust, shall
not be deemed wrongful or improper. No Covered Person, the Sponsor, the Delaware
Trustee, or the Property Trustee shall be obligated to present any particular
investment or other opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the Trust, and any
Covered Person, the Sponsor, the Delaware Trustee and the Property Trustee shall
have the right to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Covered Person, the Delaware Trustee and the Property Trustee
may engage or be interested in any financial or other transaction with the
Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee
or agent for, or act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the
calendar year, or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the
Regular Trustees shall keep, or cause to be kept, full books of account, records
and supporting documents, which shall reflect in reasonable detail, each
transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted accounting
principles, consistently applied. The Trust shall use the accrual method of
accounting for United States federal income tax purposes. The books of account
and the records of the Trust shall be examined by and
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reported upon as of the end of each Fiscal Year of the Trust by a firm of
independent certified public accountants selected by the Regular Trustees.
(b) The Regular Trustees shall cause to be prepared and
delivered to each of the Holders of Securities, within 90 days after the end of
each Fiscal Year of the Trust, annual financial statements of the Trust,
including a balance sheet of the Trust as of the end of such Fiscal Year, and
the related statements of income or loss.
(c) The Regular Trustees shall cause to be duly prepared and
delivered to each of the Holders of Securities, any annual United States federal
income tax information statement, required by the Code, containing such
information with regard to the Securities held by each Holder as is required by
the Code and the Treasury Regulations. Notwithstanding any right under the Code
to deliver any such statement at a later date, the Regular Trustees shall
endeavor to deliver all such statements within 30 days after the end of each
Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be duly prepared and
filed with the appropriate taxing authority, an annual United States federal
income tax return, on a Form 1041 or such other form required by United States
federal income tax law, and any other annual income tax returns required to be
filed by the Regular Trustees on behalf of the Trust with any state or local
taxing authority.
SECTION 11.3 Banking.
The Trust shall maintain one or more bank accounts in the name
and for the sole benefit of the Trust; provided, however, that all payments of
funds in respect of the Debentures held by the Property Trustee shall be made
directly to the Property Trustee Account and no other funds of the Trust shall
be deposited in the Property Trustee Account. The sole signatories for such
accounts shall be designated by the Regular Trustees; provided, however, that
the Property Trustee shall designate the signatories for the Property Trustee
Account.
SECTION 11.4 Withholding.
The Trust and the Regular Trustees shall comply with all
withholding requirements under United States federal, state and local law. The
Trust shall request, and the Holders shall provide to the Trust, such forms or
certificates as are necessary to establish an exemption from withholding with
respect to each Holder, and any representations and forms as shall reasonably be
requested by the Trust to assist it in determining the extent of, and in
fulfilling, its withholding obligations. The Regular Trustees shall file
required forms with applicable jurisdictions and, unless an exemption from
withholding is properly established by a Holder, shall remit amounts withheld
with respect to the Holder to applicable jurisdictions. To the extent that the
Trust is required to withhold and pay over any amounts to any authority with
respect to distributions or allocations to any Holder, the amount withheld shall
be deemed to be a distribution in the amount of the withholding to the Holder.
In the event of any claimed over withholding, Holders shall be limited to an
action against the applicable jurisdiction. If the amount required to be
withheld was not withheld from actual Distributions made, the Trust may reduce
subsequent Distributions by the amount of such withholding.
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ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may only be amended by a
written instrument approved and executed by:
(i) the Regular Trustees (or, if there are more than two
Regular Trustees a majority of the Regular Trustees);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Property Trustee, the Property Trustee; and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware Trustee.
(b) No amendment shall be made, and any such purported
amendment shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Property Trustee shall have first received an Officers' Certificate from each of
the Trust and the Sponsor that such amendment is permitted by, and conforms to,
the terms of this Declaration (including the terms of the Securities);
(ii) unless, in the case of any proposed amendment which
affects the rights, powers, duties, obligations or immunities of the Property
Trustee or the Delaware Trustee, the Property Trustee or the Delaware Trustee as
the case may be, shall have first received:
(A) an Officers' Certificate from each of the Trust
and the Sponsor that such amendment is permitted by, and conforms to, the terms
of this Declaration (including the terms of the Securities); and
(B) an opinion of counsel (who may be counsel to
the Sponsor or the Trust) that such amendment is permitted by, and conforms to,
the terms of this Declaration (including the terms of the Securities); and
(iii) to the extent the result of such amendment would be
to:
(A) cause the Trust to fail to continue to be
classified for purposes of United States federal income taxation as a grantor
trust;
(B) reduce or otherwise adversely affect the powers of
the Property Trustee in contravention of the Trust Indenture Act; or
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(C) cause the Trust to be deemed to be an
Investment Company required to be registered under the Investment Company Act;
(c) At such time after the Trust has issued any Securities
that remain outstanding, any amendment that would adversely affect the rights,
privileges or preferences of any Holder of Securities may be effected only with
such additional requirements as may be set forth in the terms of such
Securities;
(d) Section 9. l(c) and this Section 12.1 shall not be amended
without the consent of all of the Holders of the Securities;
(e) Article IV shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the Common Securities;
(f) The rights of the holders of the Common Securities under
Article V to increase or decrease the number of, and appoint and remove,
Trustees shall not be amended without the consent of the Holders of a Majority
in liquidation amount of the Common Securities; and
(g) Notwithstanding Section 12.1(c), this Declaration may be
amended without the consent of the Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this
Declaration that may be defective or inconsistent with any other provision of
this Declaration;
(iii) add to the covenants, restrictions or obligations of
the Sponsor; or
(iv) to conform to any change in Rule 3a-5 or written
change in interpretation or application of Rule 3a-5 by any legislative body,
court, government agency or regulatory authority which amendment does not have a
material adverse effect on the rights, preferences or privileges of the Holders
of the Preferred Securities.
SECTION 12.2 Meetings of the Holders of Securities; Action by Written Consent.
(a) Meetings of the Holders of any class of Securities may be
called at any time by the Regular Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of such class of
Securities are entitled to act under the terms of this Declaration, the terms of
the Securities or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading. The Regular Trustees shall call a
meeting of the Holders of such class if directed to do so by the Holders of at
least 10% in liquidation amount of such class of Securities. Such direction
shall be given by delivering to the Regular Trustees one or more calls in
writing stating that the signing Holders of Securities wish to call a meeting
and indicating the general or specific purpose for which the meeting is to be
called. Any Holders of Securities calling a meeting shall specify in writing the
Certificates held by the Holders of Securities exercising the right to call a
meeting and only those Securities specified shall be counted for purposes of
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determining whether the required percentage set forth in the second sentence of
this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of
the Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the
Holders of Securities having a right to vote thereat at least 7 days and not
more than 60 days before the date of such meeting. Whenever a vote, consent or
approval of the Holders of Securities is permitted or required under this
Declaration or the rules of any stock exchange on which the Preferred Securities
are listed or admitted for trading, such vote, consent or approval may be given
at a meeting of the Holders of Securities. Any action that may be taken at a
meeting of the Holders of Securities may be taken without a meeting if a consent
in writing setting forth the action so taken is signed by the Holders of
Securities owning not less than the minimum amount of Securities in liquidation
amount that would be necessary to authorize or take such action at a meeting at
which all Holders of Securities having a right to vote thereon were present and
voting. Prompt notice of the taking of action without a meeting shall be given
to the Holders of Securities entitled to vote who have not consented in writing.
The Regular Trustees may specify that any written ballot submitted to the
Security Holder for the purpose of taking any action without a meeting shall be
returned to the Trust within the time specified by the Regular Trustees;
(ii) each Holder of a Security may authorize any Person
to act for it by proxy on all matters in which a Holder of Securities is
entitled to participate, including waiving notice of any meeting, or voting or
participating at a meeting. No proxy shall be valid after the expiration of 11
months from the date thereof unless otherwise provided in the proxy. Every proxy
shall be revocable at the pleasure of the Holder of Securities executing it.
Except as otherwise provided herein, all matters relating to the giving, voting
or validity of proxies shall be governed by the General Corporation Law of the
State of Delaware relating to proxies, and judicial interpretations thereunder,
as if the Trust were a Delaware corporation and the Holders of the Securities
were stockholders of a Delaware corporation;
(iii) each meeting of the Holders of the Securities shall
be conducted by the Regular Trustees or by such other Person that the Regular
Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration, the
terms of the Securities, the Trust Indenture Act or the listing rules of any
stock exchange on which the Preferred Securities are then listed or trading,
otherwise provides, the Regular Trustees, in their sole discretion, shall
establish all other provisions relating to meetings of Holders of Securities,
including notice of the time, place or purpose of any meeting at which any
matter is to be voted on by any Holders of Securities, waiver of any such
notice, action by consent without a meeting, the establishment of a record date,
quorum requirements, voting in person or by proxy or any other matter with
respect to the exercise of any such right to vote.
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE
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SECTION 13.1 Representations and Warranties of Property Trustee.
The Trustee that acts as initial Property Trustee represents
and warrants to the Trust and to the Sponsor at the date of this Declaration,
and each Successor Property Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Property Trustee's acceptance of its
appointment as Property Trustee that:
(a) the Property Trustee is a New York banking corporation
with trust powers, duly organized, validly existing and in good standing under
the laws of the United States, with trust power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of, the
Declaration;
(b) the execution, delivery and performance by the Property
Trustee of the Declaration has been duly authorized by all necessary corporate
action on the part of the Property Trustee. The Declaration has been duly
executed and delivered by the Property Trustee, and it constitutes a legal,
valid and binding obligation of the Property Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law);
(c) the execution, delivery and performance of the Declaration
by the Property Trustee does not conflict with or constitute a breach of the
Articles of Organization or By-laws of the Property Trustee; and
(d) no consent, approval or authorization of, or registration
with or notice to, any State or Federal banking authority is required for the
execution, delivery or performance by the Property Trustee, of the Declaration.
SECTION 13.2 Representation and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents
and warrants to the Trust and to the Sponsor at the date of this Declaration,
and each Successor Delaware Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee that:
(a) the Delaware Trustee is a Delaware banking corporation
with trust powers, duly organized, validly existing and in good standing under
the laws of the State of Delaware, with trust power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of, the
Declaration.
(b) the Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and the Declaration. The Declaration
under Delaware law constitutes a legal, valid and binding obligation of the
Delaware Trustee, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, reorganization, moratorium, insolvency, and other
similar laws affecting creditors' rights generally and to general principles of
equity and the discretion of the
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court (regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law).
(c) no consent, approval or authorization of, or registration
with or notice to, any State or Federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee, of the Declaration.
(d) the Delaware Trustee is a natural person who is a resident
of the State of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.
All notices provided for in this Declaration shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at
the Trust's mailing address set forth below (or such other address as the Trust
may give notice of to the Holders of the Securities):
Consumers Energy Company Financing III
c/o Consumers Energy Company
212 West Michigan Avenue
Jackson, Michigan 49201
Attention: Alan M. Wright. Senior Vice President and
Chief Financial Officer
Facsimile (517) 788-2186
(b) if given to the Delaware Trustee, at the mailing address
set forth below (or such other address as Delaware Trustee may give notice of to
the Holders of the Securities):
The Bank of New York (Delaware)
White Clay Center
Route 473
Newark, Delaware 19711
(c) if given to the Property Trustee, at its Corporate Trust
Office to the attention of the Administrator (or such other address as the
Property Trustee may give notice of to the Holders of the Securities):
The Bank of New York
101 Barclay Street, Floor 21 West
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New York, New York 10286
Facsimile (212) 815-5915
(d) if given to the Holder of the Common Securities, at the
mailing address of the Sponsor set forth below (or such other address as the
Holder of the Common Securities may give notice to the Trust):
Consumers Energy Company
212 West Michigan Avenue
Jackson, Michigan 49201
Attention: Thomas A. McNish, Vice President and Secretary
Facsimile (517) 788-1671
(e) if given to any other Holder, at the address set forth on
the books and records of the Trust.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid, except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 14.2 Governing Law.
This Declaration and the rights of the parties hereunder shall
be governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws.
SECTION 14.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be
classified for United States federal income tax purposes as a grantor trust. The
provisions of this Declaration shall be interpreted to further this intention of
the parties.
SECTION 14.4 Headings.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
SECTION 14.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is
named or referred to, the successors and assigns of such party shall be deemed
to be included, and all covenants and agreements in this Declaration by the
Sponsor and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
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SECTION 14.6 Partial Enforceability.
If any provision of this Declaration, or the application of
such provision to any Person or circumstance, shall be held invalid, the
remainder of this Declaration, or the application of such provision to persons
or circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 14.7 Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each party hereto to one of such counterpart signature pages. All
of such counterpart signature pages shall be read as though one, and they shall
have the same force and effect as though all of the signers had signed a single
signature page.
SECTION 14.8 Recitals.
The recitals contained herein and in the Securities shall be
taken as the statements of the Sponsor and Trust, and the Trustees assume no
responsibility for their correctness. The Trustees make no representations as to
the validity or sufficiency of this Declaration or of the Securities.
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IN WITNESS WHEREOF, the undersigned have caused these presents
to be executed as of the day and year first above written.
------------------------------------
Alan M. Wright, as Regular Trustee
------------------------------------
Thomas A. McNish, as Regular Trustee
The Bank of New York (Delaware), as
Delaware Trustee
By:
--------------------------------
Name:
Title:
The Bank of New York, as Property
Trustee
By:
--------------------------------
Name:
Title:
Consumers Energy Company, as Sponsor
and Debenture Issuer
By:
--------------------------------
Name:
Title:
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ANNEX I
TERMS OF
____ TRUST ORIGINATED PREFERRED SECURITIES
____ TRUST ORIGINATED COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated
Declaration of Trust, dated as of October , 1999 (as amended from time to
time, the "Declaration"), the designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred Securities and the
Common Securities are set out below (each capitalized term used but not defined
herein has the meaning set forth in the Declaration or, if not defined in such
Declaration, as defined in the Prospectus referred to below:
1. Designation and Number.
(a) Preferred Securities. Preferred Securities of
the Trust with an aggregate liquidation amount with respect to the assets of the
Trust of dollars ($ ,000,000) and a liquidation amount with
respect to the assets of the Trust of $____ per preferred security, are hereby
designated, for the purposes of identification only, as " % Trust Originated
Preferred Securities (SM) ('TOPrS' (SM))" (the "Preferred Securities"). The
Preferred Security Certificates evidencing the Preferred Securities shall be
substantially in the form of Exhibit A-l to the Declaration, with such changes
and additions thereto or deletions therefrom as may be required by ordinary
usage, custom or practice or to conform to the rules of any stock exchange on
which the Preferred Securities are listed.
(b) Common Securities. Common Securities of the
Trust with an aggregate liquidation amount with respect to the assets of the
Trust of dollars ($ ) and a liquidation amount with
respect to the assets of the Trust of $____ per common security, are hereby
designated, for the purposes of identification only, as " % Trust Originated
Common Securities" (the "Common Securities"). The Common Security Certificates
evidencing the Common Securities shall be substantially in the form of Exhibit
A-2 to the Declaration, with such changes and additions thereto or deletions
therefrom as may be required by ordinary usage, custom or practice.
2. Distributions.
(a) Distributions payable on each Security will be fixed
at a rate per annum of % (the "Coupon Rate") of the stated liquidation amount
of $____ per Security, such rate being the rate of interest payable on the
Debentures to be held by the Property Trustee. Distributions in arrears for more
than one quarter will bear interest thereon compounded quarterly at the Coupon
Rate (to the extent permitted by applicable law). The term "Distributions" as
used herein includes such cash distributions and any such interest payable
unless otherwise stated. A Distribution is payable only to the extent that
payments are made in respect of the Debentures held by the Property Trustee and
to the extent the Property Trustee has funds available therefor. The amount of
Distributions payable for any period will be computed for any full quarterly
Distribution period on the basis of a 360-day year of twelve 30-day months, and
for any period shorter than a full quarterly
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Distribution period for which Distributions are computed, Distributions will be
computed on the basis of the actual number of days elapsed per 90-day quarter.
(b) Distributions on the Securities will be cumulative, will
accrue from , 1999 and will be payable quarterly in arrears, on
March 31, June 30, September 30 and December 31 of each year, commencing on
, 1999, except as otherwise described below. The Debenture Issuer
has the right under the Indenture to defer payments of interest by extending the
interest payment period from time to time on the Debentures for a period not
exceeding 20 consecutive quarters (each an "Extension Period"), during which
Extension Period no interest shall be due and payable on the Debentures,
provided that no Extension Period shall last beyond the date of maturity of the
Debentures. As a consequence of such deferral, Distributions will also be
deferred. Despite such deferral, quarterly Distributions will continue to accrue
with interest thereon (to the extent permitted by applicable law) at the Coupon
Rate compounded quarterly during any such Extension Period. Prior to the
termination of any such Extension Period, the Debenture Issuer may further
extend such Extension Period; provided that such Extension Period together with
all such previous and further extensions thereof may not exceed 20 consecutive
quarters. Payments of accrued Distributions will be payable to Holders as they
appear on the books and records of the Trust on the first record date after the
end of the Extension Period. Upon the termination of any Extension Period and
the payment of all amounts then due, the Debenture Issuer may commence a new
Extension Period, subject to the above requirements.
(c) Distributions on the Securities will be payable to the
Holders thereof as they appear on the books and records of the Trust on the
relevant record dates. While the Preferred Securities remain in book-entry only
form, the relevant record dates shall be one Business Day prior to the relevant
payment dates which payment dates correspond to the interest payment dates on
the Debentures. Subject to any applicable laws and regulations and the
provisions of the Declaration, each such payment in respect of the Preferred
Securities will be made as described under the heading "Description of the
Preferred Securities -- Book-Entry Only Issuance -- The Depository Trust
Company" in the Prospectus date , 1999 (the Prospectus), of the
Trust included in the Registration Statement on Form S-3 of the Sponsor and the
Trust. The relevant record dates for the Common Securities shall be the same
record date as for the Preferred Securities. If the Preferred Securities shall
not continue to remain in book-entry only form, the relevant record dates for
the Preferred Securities shall conform to the rules of any securities exchange
on which the securities are listed and, if none, shall be selected by the
Regular Trustees, which dates shall be at least one Business Day but less than
60 Business Days before the relevant payment dates, which payment dates
correspond to the interest payment dates on the Debentures. Distributions
payable on any Securities that are not punctually paid on any Distribution
payment date, as a result of the Debenture Issuer having failed to make a
payment under the Debentures, will cease to be payable to the Person in whose
name such Securities are registered on the relevant record date, and such
defaulted Distribution will instead be payable to the Person in whose name such
Securities are registered on the special record date or other specified date
determined in accordance with the Indenture. If any date on which Distributions
are payable on the Securities is not a Business Day, then payment of the
Distribution payable on such date will be made on the next succeeding day that
is a Business Day (and without any interest or other payment in respect of any
such delay) except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on
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the immediately preceding Business Day, in each case with the same force and
effect as if made on such date.
(d) In the event that there is any money or other property
held by or for the Trust that is not accounted for hereunder, such property
shall be distributed Pro Rata (as defined herein) among the Holders of the
Securities.
3. Liquidation Distribution Upon Dissolution.
In the event of any voluntary or involuntary dissolution,
winding-up or termination of the Trust, the Holders of the Securities on the
date of the dissolution, winding-up or termination, as the case may be, will be
entitled to receive out of the assets of the Trust available for distribution to
Holders of Securities, after satisfaction of liabilities to creditors of the
Trust, an amount equal to the aggregate of the stated liquidation amount of $25
per Security plus accrued and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"), unless, in
connection with such dissolution, winding-up or termination, after satisfaction
of liabilities to creditors of the Trust, Debentures in an aggregate principal
amount equal to the aggregate stated liquidation amount of such Securities, with
an interest rate equal to the Coupon Rate of, and bearing accrued and unpaid
interest in an amount equal to the accrued and unpaid Distributions on, such
Securities, shall be distributed on a Pro Rata basis to the Holders of the
Securities in exchange for such Securities.
If, upon any such dissolution, the Liquidation Distribution
can be paid only in part because the Trust has insufficient assets available to
pay in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Securities shall be paid on a Pro Rata basis.
4. Redemption and Distribution.
(a) Upon the repayment of the Debentures in whole or in
part, whether at maturity or upon redemption (either at the option of the
Debenture Issuer or pursuant to a Special Even as described below), the proceeds
from such repayment or payment shall be simultaneously applied to redeem
Securities having an aggregate liquidation amount equal to the aggregate
principal amount of the Debentures so repaid or redeemed at a redemption price
of $25 per Security plus an amount equal to accrued and unpaid Distributions
thereon at the date of the redemption, payable in cash (the "Redemption Price").
Holders will be given not less than 30 nor more than 60 days notice of such
redemption, except in the case of payments upon maturity.
(b) If fewer than all the outstanding Securities are to be
so redeemed, the Common Securities and the Preferred Securities will be redeemed
Pro Rata and the Preferred Securities to be redeemed will be as described in
Section 4(f)(ii) below.
(c) If a Tax Event or an Investment Company Event (each as
defined below, and each a "Special Event") shall occur and be continuing the
Regular Trustees shall, except in the case of a redemption described in this
Section 4(c), dissolve the Trust and, after satisfaction of creditors, cause
Debentures held by the Property Trustee, having an aggregate principal amount
equal to the aggregate stated liquidation amount of, with an interest rate
identical to the Coupon Rate
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of, and accrued and unpaid interest equal to accrued and unpaid Distributions
on, and having the same record date for payment as the Securities, to be
distributed to the Holders of the Securities in liquidation of such Holders'
interests in the Trust on a Pro Rata basis, within 90 days following the
occurrence of such Special Event (the "90 Day Period"); provided, however, that
in the case of the occurrence of a Tax Event, as a condition of such dissolution
and distribution, the Regular Trustees shall have received an opinion of a
nationally recognized independent tax counsel experienced in such matters (a "No
Recognition Opinion"), which opinion may rely on published revenue rulings of
the Internal Revenue Service, to the effect that the Holders of the Securities
will not recognize any gain or loss for United States federal income tax
purposes as a result of the dissolution of the Trust and the distribution of
Debentures, and provided, further, that, if at the time there is available to
the Trust the opportunity to eliminate, within the 90 Day Period, the Special
Event by taking some ministerial action, such as filing a form or making an
election, or pursuing some other similar reasonable measure that has no adverse
effect on the Trust, the Debenture Issuer, the Sponsor or the Holders of the
Securities ("Ministerial Action"), the Trust will pursue such Ministerial Action
in lieu of dissolution.
If (a) a Tax Event has occurred and is continuing, and (i) the
Debenture Issuer has received an opinion (a "Redemption Tax Opinion") of a
nationally recognized independent tax counsel experienced in such matters that,
as a result of a Tax Event, there is more than an insubstantial risk that the
Debenture Issuer would be precluded from deducting the interest on the
Debentures for United States federal income tax purposes even if the Debentures
were distributed to the Holders of Securities in liquidation of such Holders'
interests in the Trust as described in this Section 4(c), or (ii) the Regular
Trustees shall have been informed by such tax counsel that a No Recognition
Opinion cannot be delivered to the Trust, or (b) if an investment Company Event
has occurred and is continuing, then the Debenture Issuer shall have the right
at any time, upon not less than 30 nor more than 60 days notice, to redeem the
Debentures in whole or in part for cash within 90 days following the occurrence
of such Tax Event, or Investment Company Event, as the case may be and,
following such redemption, Securities with an aggregate liquidation amount equal
to the aggregate principal amount of the Debentures so redeemed shall be
redeemed by the Trust at the Redemption Price on a Pro Rata basis; provided,
however, that, if at the time there is available to the Trust the opportunity to
eliminate, within such 90 day period, such Special Event by taking some
Ministerial Action, the Trust or the Debenture Issuer will pursue such
Ministerial Action in lieu of redemption.
"Tax Event" means that the Regular Trustees shall have
received an opinion of a nationally recognized independent tax counsel
experienced in such matters to the effect that on or after the date of the
Prospectus, as a result of (a) any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority therefor or
therein, or (b) any amendment to, or change in, an interpretation or application
of any such laws or regulations by any legislative body, court, governmental
agency or regulatory authority, which amendment or change is enacted,
promulgated, issued or announced or which interpretation or pronouncement is
issued or announced or which action is taken, in each case on or after the date
of the Prospectus, there is more than an insubstantial risk that (i) the Trust
is or will be within 90 days of the date thereof, subject to United States
federal income tax with respect to interest accrued or received on the
Debentures, (ii) the Trust is, or will be within 90 days of the date thereof,
subject to more than a de minimis amount of taxes, duties or
4
<PAGE> 56
other governmental charges, or (iii) interest payable by the Debenture Issuer to
the Trust on the Debentures is not, or within 90 days of the date thereof will
not be, deductible, in whole or in part, by the Debenture Issuer for United
States federal income tax purposes.
"Investment Company Event" means that the Regular Trustees
shall have received an opinion of a nationally recognized independent counsel
experienced in practice under the Investment Company Act (an "Investment Company
Event Opinion") that, as a result of the occurrence of a change in law or
regulation or a written change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority (a "Change in 1940 Act Law"), there is a more than an insubstantial
risk that the Trust is or will be considered an Investment Company which is
required to be registered under the Investment Company Act, which Change in 1940
Act Law becomes effective on or after the date of the Prospectus.
On and from the date fixed by the Regular Trustees for any
distribution of Debentures and dissolution of the Trust: (i) the Securities will
no longer be deemed to be outstanding, (ii) The Depository Trust Company (the
"Depository") or its nominee (or any successor Clearing Agency or its nominee),
as the record Holder of the Preferred Securities, will receive a registered
global certificate or certificates representing the Debentures to be delivered
upon such distribution and (iii) any certificates representing Securities,
except for certificates representing Preferred Securities held by the Depository
or its nominee (or any successor Clearing Agency or its nominee), will be deemed
to represent beneficial interests in the Debentures having an aggregate
principal amount equal to the aggregate stated liquidation amount of, with an
interest rate identical to the Coupon Rate of, and accrued and unpaid interest
equal to accrued and unpaid Distributions on such Securities until such
certificates are presented to the Debenture Issuer or its agent for transfer or
reissue.
(d) The Trust may not redeem fewer than all the outstanding
Securities unless all accrued and unpaid Distributions have been paid on all
Securities for all quarterly Distribution periods terminating on or before the
date of redemption.
(e) If the Debentures are distributed to holders of the
Securities, pursuant to the terms of the Indenture, the Debenture Issuer will
use its best efforts to have the Debentures listed on the New York Stock
Exchange or on such other exchange as the Preferred Securities were listed
immediately prior to the distribution of the Debentures.
(f) "Redemption or Distribution Procedures."
(i) Notice of any redemption of, or notice of
distribution of Debentures in exchange for the Securities (a
"Redemption/Distribution Notice") will be given by the Trust by mail
to each Holder of Securities to be redeemed or exchanged not fewer
than 30 nor more than 60 days before the date fixed for redemption or
exchange thereof which, in the case of a redemption, will be the date
fixed for redemption of the Debentures. For purposes of the
calculation of the date of redemption or exchange and the dates on
which notices are given pursuant to this Section 4(f)(i), a
Redemption/Distribution Notice shall be deemed to be given on the day
such notice is first mailed by first-class mail, postage prepaid, to
Holders of Securities. Each Redemption/Distribution Notice shall be
addressed to the Holders of Securities at the address of each such
Holder appearing in the
5
<PAGE> 57
books and records of the Trust. No defect in the
Redemption/Distribution Notice or in the mailing of either thereof
with respect to any Holder shall affect the validity of the redemption
or exchange proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding
Securities are to be redeemed, the Securities to be redeemed shall be
redeemed Pro Rata from each Holder of Preferred Securities, it being
understood that, in respect of Preferred Securities registered in the
name of and held of record by the Depository or its nominee (or any
successor Clearing Agency or its nominee) or any nominee, the
distribution of the proceeds of such redemption will be made to each
Clearing Agency Participant (or Person on whose behalf such nominee
holds such securities) in accordance with the procedures applied by
such agency or nominee.
(iii) If Securities are to be redeemed and the Trust
gives a Redemption/Distribution Notice, which notice may only be
issued if the Debentures are redeemed as set out in this Section 4
(which notice will be irrevocable), then (A) while the Preferred
Securities are in book-entry only form, with respect to the Preferred
Securities, by 12:00 noon, New York City time, on the redemption date,
provided that the Debenture Issuer has paid the Property Trustee a
sufficient amount of cash in connection with the related redemption or
maturity of the Debentures, the Property Trustee will deposit
irrevocably with the Depository or its nominee (or successor Clearing
Agency or its nominee) funds sufficient to pay the applicable
Redemption Price with respect to the Preferred Securities and will
give the Depository irrevocable instructions and authority to pay the
Redemption Price to the Holders of the Preferred Securities, and (B)
with respect to Preferred Securities issued in definitive form and
Common Securities, provided that the Debenture Issuer has paid the
Property Trustee a sufficient amount of cash in connection with the
related redemption or maturity of the Debentures, the Property Trustee
will pay the relevant Redemption Price to the Holders of such
Securities by check mailed to the address of the relevant Holder
appearing on the books and records of the Trust on the redemption
date. If a Redemption/Distribution Notice shall have been given and
funds deposited as required, if applicable, then immediately prior to
the close of business on the date of such deposit, or on the
redemption date, as applicable, distributions will cease to accrue on
the Securities so called for redemption and all rights of Holders of
such Securities so called for redemption will cease, except the right
of the Holders of such Securities to receive the Redemption Price, but
without interest on such Redemption Price. Neither the Regular
Trustees nor the Trust shall be required to register or cause to be
registered the transfer of any Securities that have been so called for
redemption. If any date fixed for redemption of Securities is not a
Business Day, then payment of the Redemption Price payable on such
date will be made on the next succeeding day that is a Business Day
(and without any interest or other payment in respect of any such
delay) except that, if such Business Day falls in the next calendar
year, such payment will be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such
date fixed for redemption. If payment of the Redemption Price in
respect of any Securities is improperly withheld or refused and not
paid either by the Property Trustee or by the Sponsor as guarantor
pursuant to the relevant Securities Guarantee, Distributions on such
Securities will continue to accrue from the original redemption date
to the actual date of payment, in which case the actual payment date
6
<PAGE> 58
will be considered the date fixed for redemption for purposes of
calculating the Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by
the Regular Trustees on behalf of the Trust to (A) in respect of the
Preferred Securities, the Depository or its nominee (or any successor
Clearing Agency or its nominee) if the Global Certificate(s) have been
issued or, if Definitive Preferred Security Certificates have been
issued, to the Holder thereof, and (B) in respect of the Common
Securities to the Holder thereof.
(v) Subject to the foregoing and applicable law
(including, without limitation, United States federal securities
laws), provided the acquirer is not the Holder of the Common
Securities or the obligor under the Indenture, the Sponsor or any of
its subsidiaries may at any time and from time to time purchase
outstanding Preferred Securities by tender, in the open market or by
private agreement.
5. Voting Rights - Preferred Securities.
(a) Except as provided under Sections 5(b) and 7 and as
otherwise required by law and the Declaration, the Holders of the Preferred
Securities will have no voting rights.
(b) Subject to the requirements set forth in this
paragraph, the Holders of a Majority in liquidation amount of the Preferred
Securities, voting separately as a class may direct the time, method, and place
of conducting any proceeding for any remedy available to the Property Trustee,
or exercising any trust or power conferred upon the Property Trustee under the
Declaration, including (i) directing the time, method, place of conducting any
proceeding for any remedy available to the Debenture Trustee, or exercising any
trust or power conferred on the Debenture Trustee with respect to the
Debentures, (ii) waive any past default and its consequences that is waivable
under Section 5.10 of the Indenture, or (iii) exercise any right to rescind or
annul a declaration that the principal of all the Debentures shall be due and
payable. The Property Trustee shall not revoke any action previously authorized
or approved by a vote of the Holders of the Preferred Securities. Other than
with respect to directing the time, method and place of conducting any remedy
available to the Property Trustee or the Debenture Trustee as set forth above,
the Property Trustee shall not take any action in accordance with the directions
of the Holders of the Preferred Securities under this paragraph unless the
Property Trustee has obtained an opinion of tax counsel, at the reasonable
expense of the Trust, to the effect that for the purposes of United States
federal income tax the Trust will not be classified as other than a grantor
trust on account of such action. In addition, a Holder of Preferred Securities
may directly institute a proceeding for enforcement of payment to such Holder
directly of the principal of or interest on Subordinated Notes having a
principal amount equal to the aggregate liquidation preference amount of the
Preferred Securities of such Holder on or after the respective due dates
specified in the Subordinated Notes. With respect to the Property Trustee's
rights other than its rights to receive payment on the Debentures as holder of
the Debentures, if the Property Trustee fails to enforce its rights under the
Declaration, to the fullest extent permitted by law, any Holder of Preferred
Securities may, institute a legal proceeding directly against any Person to
enforce the Property Trustee's rights under the
7
<PAGE> 59
Declaration without first instituting a legal proceeding against the Property
Trustee or any other Person.
Any approval or direction of Holders of Preferred Securities
may be given at a separate meeting of Holders of Preferred Securities convened
for such purpose, at a meeting of all of the Holders of Securities in the Trust
or pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Preferred Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Preferred Securities. Each such notice
will include a statement setting forth (i) the date of such meeting or the date
by which such action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to vote
or of such matter upon which written consent is sought and (iii) instructions
for the delivery of proxies or consents.
No vote or consent of the Holders of the Preferred Securities
will be required for the Trust to redeem and cancel Preferred Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
Notwithstanding that Holders of Preferred Securities are
entitled to vote or consent under any of the circumstances described above, any
of the Preferred Securities that are owned by the Sponsor or any Affiliate of
the Sponsor shall not be entitled to vote or consent and shall, for purposes or
such vote or consent, be treated as if they were not outstanding.
6. Voting Rights - Common Securities.
(a) Except as provided under Sections 6(b), (c) and 7 and
as otherwise required by law and the Declaration, the Holders of the Common
Securities will have no voting rights.
(b) The Holders of the Common Securities are entitled, in
accordance with Article V of the Declaration, to vote to appoint, remove or
replace any Trustee or to increase or decrease the number of Trustees.
(c) Subject to Section 2.6 of the Declaration and only
after the Event of Default with respect to the Preferred Securities has been
cured, waived, or otherwise eliminated and subject to the requirements of the
second to last sentence of this paragraph, the Holders of a Majority in
liquidation amount of the Common Securities, voting separately as a class, may
direct the time, method, and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power conferred
upon the Property Trustee under the Declaration, including (i) directing the
time, method, place of conducting any proceeding for any remedy available to the
Debenture Trustee, or exercising any trust or power conferred on the Debenture
Trustee with respect to the Debentures, (ii) waive any past default and its
consequences that is waivable under Section 5.10 of the Indenture, or (iii)
exercise any right to rescind or annul a declaration that the principal of all
the Debentures shall be due and payable, provided that, where a consent or
action under the Indenture would require the consent or act of the Holders of
greater than a majority in principal amount of Debentures affected thereby (a
"Super Majority"), the
8
<PAGE> 60
Property Trustee may only give such consent or take such action at the
written direction of the Holders of at least the proportion in liquidation
amount of the Common Securities which the relevant Super Majority represents of
the aggregate principal amount of the Debentures outstanding. Pursuant to this
Section 6(c), the Property Trustee shall not revoke any action previously
authorized or approved by a vote of the Holders of the Preferred Securities.
Other than with respect to directing the time, method and place of conducting
any remedy available to the Property Trustee or the Debenture Trustee as set
forth above, the Property Trustee shall not take any action in accordance with
the directions of the Holders of the Common Securities under this paragraph
unless the Property Trustee has obtained an opinion of tax counsel, at the
reasonable expense of the Trust, to the effect that for the purposes of United
States federal income tax the Trust will not be classified as other than a
grantor trust on account of such action. In addition, a Holder of Common
Securities may directly institute a proceeding for enforcement of payment to
such Holder directly of the principal of or interest on Subordinated Notes
having a principal amount equal to the aggregate liquidation preference amount
of the Common Securities of such Holder on or after the respective due dates
specified in the Subordinated Notes. With respect to the Property Trustee's
rights other than its rights to receive payment on the Debentures as holder of
the Debentures, if the Property Trustee fails to enforce its rights under the
Declaration, to the fullest extent permitted by applicable law, any Holder of
Common Securities may, institute a legal proceeding directly against any Person
to enforce the Property Trustee's rights under the Declaration, without first
instituting a legal proceeding against the Property Trustee or any other Person.
Any approval or direction of Holders of Common Securities may
be given at a separate meeting of Holders of Common Securities convened for such
purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Common Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Common Securities. Each such notice will
include a statement setting forth (i) the date of such meeting or the date by
which such action is to be taken, (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are entitled to vote or of
such matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of the Holders of the Common Securities
will be required for the Trust to redeem and cancel Common Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
7. Amendments to Declaration and Indenture
(a) In addition to any requirements under Section 12.1 of
the Declaration, if any proposed amendment to the Declaration provides for, or
the Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Securities,
whether by way of amendment to the Declaration or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than as described in
Section 8.1 of the Declaration, then the Holders of outstanding Securities as a
class, will be entitled to vote on such amendment or proposal (but not on any
other amendment or proposal) and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a Majority in
9
<PAGE> 61
liquidation amount of the Securities, voting together as a single class;
provided, however, if any amendment or proposal referred to in clause (i) above
would adversely affect only the Preferred Securities or only the Common
Securities, then only the affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of a Majority in liquidation amount of such class of
Securities; and provided further, that no such amendment or proposal which would
reduce the principal amount or the distribution rate or change the payment dates
or maturity of the Preferred Securities shall be permitted without the consent
of each holder of Preferred Securities.
(b) In the event the consent of the Property Trustee as the
holder of the Debentures is required under the Indenture with respect to any
amendment, modification or termination on the Indenture or the Debentures, the
Property Trustee shall request the written direction of the Holders of the
Securities with respect to such amendment, modification or termination and shall
vote with respect to such amendment, modification or termination as directed by
a Majority in liquidation amount of the Preferred Securities, and if no Event of
Default has occurred and is continuing, a majority in liquidation amount of the
Common Securities voting together as a single class; provided, however, that
where a consent under the Indenture would require the consent of the holders of
greater than a majority in aggregate principal amount of the Debentures (a
"Super Majority"), the Property Trustee may only give such consent at the
direction of the Holders of at least the proportion in liquidation amount of the
Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding; provided, further, that the
Property Trustee shall not take any action in accordance with the directions of
the Holders of the Securities under this Section 7(b) unless the Property
Trustee has obtained an opinion of tax counsel to the effect that for the
purposes of United States federal income tax the Trust will not be classified as
other than a grantor trust on account of such action.
8. Pro Rata.
A reference in these terms of the Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder
of Securities according to the aggregate liquidation amount of the Securities
held by the relevant Holder in relation to the aggregate liquidation amount of
all Securities outstanding unless, in relation to a payment, an Event of Default
under the Declaration has occurred and is continuing, in which case any funds
available to make such payment shall be paid first to each Holder of the
Preferred Securities pro rata according to the aggregate liquidation amount of
Preferred Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Preferred Securities, to
each Holder of Common Securities pro rata according to the aggregate liquidation
amount of Common Securities held by the relevant Holder relative to the
aggregate liquidation amount of all Common Securities outstanding.
9. Ranking.
The Preferred Securities rank pari passu and payment thereon
shall be made Pro Rata with the Common Securities except that, where an Event of
Default occurs and is continuing under the Indenture in respect of the
Debentures held by the Property Trustee, the rights of Holders of the Common
Securities to payment in respect of Distributions and payments upon liquidation,
10
<PAGE> 62
redemption and otherwise are subordinated to the rights to payment of the
Holders of the Preferred Securities.
10. Listing.
The Regular Trustees shall use their best efforts to cause the
Preferred Securities to be listed for quotation on the New York Stock Exchange.
11. Acceptance of Securities Guarantee and Indenture.
Each Holder of Preferred Securities and Common Securities, by
the acceptance thereof, agrees to the provisions of the Preferred Securities
Guarantee and the Common Securities Guarantee, respectively, including the
subordination provisions therein and to the provisions of the Indenture,
including the subordination provisions therein.
12. No Preemptive Rights.
The Holders of the Securities shall have no preemptive rights
to subscribe for any additional securities.
13. Miscellaneous.
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the
Preferred Securities Guarantee or the Common Securities Guarantee (as may be
appropriate), and the Indenture to a Holder without charge on written request to
the Sponsor at its principal place of business.
11
<PAGE> 63
EXHIBIT A1-1
FORM OF PREFERRED SECURITY CERTIFICATE
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE
INSERT -- THIS PREFERRED SECURITY IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF
THE DECLARATION HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY (THE "DEPOSITARY") OR A NOMINEE OF THE DEPOSITARY. THIS
PREFERRED SECURITY IS EXCHANGEABLE FOR PREFERRED SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE DECLARATION AND NO TRANSFER OF THIS PREFERRED
SECURITY (OTHER THAN A TRANSFER OF THIS PREFERRED SECURITY 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
LIMITED CIRCUMSTANCES.
UNLESS THIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW
YORK) TO THE TRUST OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY PREFERRED SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
Certificate Number -01- Number of Preferred Securities
CUSIP NO. [ ]
Certificate Evidencing Preferred Securities
of
Consumers Energy Company Financing III
% Trust Originated Preferred Securities(SM) ("TOPrS"(SM))
(liquidation amount $25 per Preferred Security)
Consumers Energy Company Financing III, a statutory business
trust created under the laws of the State of Delaware (the "Trust"), hereby
certifies that (the "Holder") is the registered owner of preferred
securities of the Trust representing undivided beneficial interests in the
assets of the Trust designated the % Trust Originated Preferred
Securities(SM) (liquidation
A1-1
<PAGE> 64
amount $25 per Preferred Security) (the "Preferred Securities"). The Preferred
Securities are transferable on the books and records of the Trust, in person or
by a duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer. The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities represented hereby are issued and shall in all respects be subject to
the provisions of the Amended and Restated Declaration of Trust of the Trust
dated as of , 1999, as the same may be amended from time to time
(the "Declaration"), including the designation of the terms of the Preferred
Securities as set forth in Annex I to the Declaration. Capitalized terms used
herein but not defined shall have the meaning given them in the Declaration. The
Holder is entitled to the benefits of the Preferred Securities Guarantee to the
extent provided therein. The Sponsor will provide a copy of the Declaration, the
Preferred Securities Guarantee and the Indenture to a Holder without charge upon
written request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Preferred
Securities as evidence of indirect beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate
this day of , 199 .
--------------------------------------
[Name of Regular Trustee]
--------------------------------------
[Name of Regular Trustee]
A1-2
<PAGE> 65
---------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:
---------------------------------------
Signature:
------------------------------------------------
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
A1-3
<PAGE> 66
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
Consumers Energy Company Financing III
% Trust Originated Common Securities
(liquidation amount $__ per Common Security)
Consumers Energy Company Financing III, a statutory business
trust created under the laws of the State of Delaware (the "Trust"), hereby
certifies that (the "Holder") is the registered owner of common
securities of the Trust representing undivided beneficial interests in the
assets of the Trust designated the % Trust Originated Common Securities
(liquidation amount $__ per Common Security) (the "Common Securities"). The
Common Securities are transferable on the books and records of the Trust, in
person or by a duly authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for transfer. The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities represented hereby are issued and shall in all respects be subject to
the provisions of the Amended and Restated Declaration of Trust of the Trust
dated as of , 1999, as the same may be amended from time to time
(the "Declaration"), including the designation of the terms of the Common
Securities as set forth in Annex I to the Declaration. Capitalized terms used
herein but not defined shall have the meaning given them in the Declaration. The
Holder is entitled to the benefits of the Common Securities Guarantee to the
extent provided therein. The Sponsor will provide a copy of the Declaration, the
Common Securities Guarantee and the Indenture to a Holder without charge upon
written request to the Sponsor at its principal place of business.
Upon receipt of this certificate, the Sponsor is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Common
Securities as evidence of indirect beneficial ownership in the Debentures.
A2-1
<PAGE> 67
IN WITNESS WHEREOF, the Trust has executed this certificate this
day of , 199 .
---------------------------------------
[Name of Regular Trustee]
---------------------------------------
[Name of Regular Trustee]
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Common Securities referred to in the
within-mentioned Declaration.
Dated: THE BANK OF NEW YORK,
as Property Trustee
By:
------------------------------------
Authorized Signatory
A2-2
<PAGE> 68
IN WITNESS WHEREOF, the Trust has executed this certificate this
day of , 199 .
---------------------------------------
[Name of Regular Trustee]
---------------------------------------
[Name of Regular Trustee]
A2-3
<PAGE> 69
EXHIBIT B
SPECIMEN OF DEBENTURE
B-1
<PAGE> 70
EXHIBIT C
UNDERWRITING AGREEMENT
C-1
<PAGE> 1
EXHIBIT 4(j)
====================================
THIRD SUPPLEMENTAL INDENTURE
between
CONSUMERS ENERGY COMPANY
and
THE BANK OF NEW YORK
Dated as of , 1999
====================================
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ARTICLE I.
DEFINITIONS
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SECTION 1.1. Definition of Terms.............................................................................2
ARTICLE II.
GENERAL TERMS AND CONDITIONS OF THE NOTES
SECTION 2.1. Designation and Principal Amount................................................................3
SECTION 2.2. Maturity........................................................................................3
SECTION 2.3. Form and Payment................................................................................3
SECTION 2.4. Global Note.....................................................................................3
SECTION 2.5. Interest........................................................................................4
ARTICLE III.
REDEMPTION OF THE NOTES
SECTION 3.1. Special Event Redemption........................................................................5
SECTION 3.2. Optional Redemption by Issuer...................................................................5
SECTION 3.3. No Sinking Fund.................................................................................6
ARTICLE IV.
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period............................................................6
SECTION 4.2. Notice of Extension.............................................................................6
ARTICLE V.
EXPENSES
SECTION 5.1. Payment of Expenses.............................................................................7
SECTION 5.2. Payment Upon Resignation or Removal.............................................................7
ARTICLE VI.
SUBORDINATION
SECTION 6.1. Agreement to Subordinate........................................................................7
ARTICLE VII.
COVENANT TO LIST ON EXCHANGE
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<TABLE>
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SECTION 7.1. Listing on an Exchange..........................................................................8
ARTICLE VIII.
FORM OF NOTES
SECTION 8.1. Form of Note....................................................................................8
ARTICLE IX.
ORIGINAL ISSUE OF NOTES
SECTION 9.1. Original Issue of Notes........................................................................12
ARTICLE X.
MISCELLANEOUS
SECTION 10.1 Provisions of Indenture for the Sole Benefit of Parties and Holders of Trust Securities........13
SECTION 10.2 Ratification of Indenture......................................................................13
SECTION 10.3. Trustee Not Responsible for Recitals...........................................................13
SECTION 10.4. Governing Law..................................................................................13
SECTION 10.5. Separability...................................................................................13
SECTION 10.6. Counterparts...................................................................................13
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<PAGE> 4
THIRD SUPPLEMENTAL INDENTURE, dated as of , 1999, (the
"Third Supplemental Indenture"), between Consumers Energy Company, a Michigan
Corporation (the "Issuer"), and The Bank of New York, as trustee (the "Trustee")
under the Indenture dated as of January 1, 1996 between the Issuer and the
Trustee (the "Indenture").
WHEREAS, the Issuer executed and delivered the Indenture to the
Trustee to provide for the future issuance of the Issuer's Securities to be
issued from time to time in one or more series as might be determined by the
Issuer under the Indenture, in an unlimited aggregate principal amount which may
be authenticated and delivered as provided in the Indenture; and
WHEREAS, Section 2.3 of the Indenture permits the terms of any
series of Securities to be established in an indenture supplemental to the
Indenture; and
WHEREAS, Section 8.1(d) of the Indenture provided that a
supplemental indenture may be entered into without the consent of any Holders of
Securities to supplement certain provisions of the Indenture; and
WHEREAS, Section 8.1(e) of the Indenture provides that a
supplemental indenture may be entered into by the Issuer 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, pursuant to the terms of the Indenture, the Issuer desires
to provide for the establishment of a new series of its Securities to be known
as its % Subordinated Deferrable Interest Notes due (the "Notes"), the
form and substance of such Notes and the terms, provisions and conditions
thereof to be set forth as provided in the Indenture and this Third Supplemental
Indenture; and
WHEREAS, Consumers Energy Company Financing III, a Delaware
statutory business trust (the "Trust"), has offered to the public $ million
aggregate liquidation amount of its % Trust Originated Preferred Securities
(the "Preferred Securities"), representing undivided beneficial interests in the
assets of the Trust and proposes to invest the proceeds from such offering,
together with the proceeds of the issuance and sale by the Trust to the Issuer
of $ aggregate liquidation amount of its % Trust Originated Common
Securities (together the ATrust Securities), in $ aggregate principal
amount of the Notes; and
WHEREAS, the Issuer wishes to supplement Section 13.2 of the
Indenture with respect to the Notes and the Preferred Securities; and
WHEREAS, the Issuer has requested that the Trustee execute and
deliver this Third Supplemental Indenture and all requirements necessary to make
this Third Supplemental Indenture a valid instrument in accordance with its
terms, and to make the Notes, when executed by the Issuer and authenticated and
delivered by the Trustee, the valid obligations of the Issuer, have been
performed, and the execution and delivery of this Third Supplemental Indenture
has been duly authorized in all respects.
NOW THEREFORE, in consideration of the purchase and acceptance of
the Notes by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Notes and the terms,
provisions and conditions thereof, the Issuer covenants and agrees with the
Trustee as follows:
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ARTICLE I.
DEFINITIONS
SECTION 1.1. Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used
in this Third Supplemental Indenture;
(b) a term defined anywhere in this Third Supplemental Indenture has
the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article
of this Third Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect
interpretation;
(f) the following terms have the meanings given to them in the
Declaration: (i) Clearing Agency; (ii) Delaware Trustee; (iii) Redemption Tax
Opinion; (iv) No Recognition Opinion; (v) Preferred Security Certificate; (vi)
Property Trustee; (vii) Regular Trustees; (viii) Special Event; (ix) Tax Event;
(x) Underwriting Agreement; (xi) Investment Company Event; and (xii)
Distribution;
(g) the following terms have the meanings given to them in this
Section 1.1(g):
"Additional Interest" shall have the meaning set forth in Section
2.5.
"Compounded Interest" shall have the meaning set forth in Section
4.1.
"Coupon Rate" shall have the meaning set forth in Section 2.5.
"Declaration" means the Amended and Restated Declaration of Trust of
Consumers Energy Company Financing III, a Delaware statutory business trust,
dated as of September 4, 1997.
"Deferred Interest" shall have the meaning set forth in Section 4.1.
"Dissolution Event" means that, as a result of the occurrence and
continuation of a Special Event, the Trust is to be dissolved in accordance with
the Declaration, and the Notes held by the Property Trustee are to be
distributed to the holders of the Trust Securities issued by the Trust pro rata
in accordance with the Declaration.
"Extended Interest Payment Period" shall have the meaning set forth
in Section 4.1.
"Global Note" shall have the meaning set forth in Section 2.4.
"Non Book-Entry Preferred Securities" shall have the meaning set
forth in Section 2.4.
"Optional Redemption Price" shall have the meaning set forth in
Section 3.2.
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ARTICLE II.
GENERAL TERMS AND CONDITIONS OF THE NOTES
SECTION 2.1. Designation and Principal Amount.
There is hereby authorized and established a series of unsecured
Securities designated the " % Subordinated Deferrable Interest Notes due
", limited in aggregate principal amount to $ , (except as
contemplated in Section 2(f)(2) of the Indenture).
SECTION 2.2. Maturity.
The Maturity Date of the Notes is , 1999.
SECTION 2.3. Form and Payment.
The Notes shall be issued in fully registered form without interest
coupons. Principal and interest on the Notes issued in certificated form will be
payable, the transfer of such Notes will be registrable and such Notes will be
exchangeable for Notes bearing identical terms and provisions, at the office or
agency of the Trustee in the Borough of Manhattan, the City of New York;
provided, however, that payment of interest may be made at the option of the
Issuer by check mailed to the Holder at such address as shall appear in the
Security Register or by wire transfer to an account maintained by the Holder.
Notwithstanding the foregoing, so long as the Holder of any Notes is the
Property Trustee, the payment of the principal of and interest (including
Compounded Interest and Additional Interest, if any) on such Notes held by the
Property Trustee will be made at such place and to such account as may be
designated by the Property Trustee.
SECTION 2.4. Global Note.
(a) In connection with a Dissolution Event,
(i) the Notes may be presented to the Trustee by the Property
Trustee in exchange for a global Note in an aggregate principal amount
equal to the aggregate principal amount of all outstanding Notes (a
"Global Note"), to be registered in the name of the Clearing Agency, or
its nominee, and delivered by the Trustee to the Clearing Agency for
crediting to the accounts of its participants pursuant to the instructions
of the Regular Trustees and the Clearing Agency will act as Depository for
the Notes. The Issuer upon any such presentation, shall execute a Global
Note in such aggregate principal amount and deliver the same to the
Trustee for authentication and delivery in accordance with the Indenture
and this Third Supplemental Indenture. Payments on the Notes issued as a
Global Note will be made to the Depositary; and
(ii) if any Preferred Securities are held in non book-entry
certificated form, the Notes may be presented to the Trustee by the
Property Trustee and any Preferred Security Certificate which represents
Preferred Securities other than Preferred Securities held by the Clearing
Agency or its nominee ("Non Book-Entry Preferred Securities") will be
deemed to represent beneficial interests in Notes presented to the Trustee
by the Property Trustee having an aggregate principal amount equal to the
aggregate liquidation amount of the Non Book-Entry Preferred Securities
until such Preferred Security Certificates are presented to the Security
Registrar for transfer or reissuance at which time such Preferred Security
Certificates will be canceled and a Note, registered in the name of the
holder of the Preferred Security Certificate or the transferee of the
holder of such Preferred Security Certificate, as the case may be, with an
aggregate principal amount equal to the aggregate liquidation amount of
the Preferred Security Certificate canceled, will be executed by the
Issuer and delivered to the Trustee for authentication and delivery in
accordance with the Indenture and this Third Supplemental Indenture.
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(b) Except as provided in (c) below, a Global Note may be
transferred, in whole but not in part, only to another nominee of the
Depositary, or to a successor Depositary selected or approved by the Issuer or
to a nominee of such successor Depositary.
(c) If at any time the Depositary notifies the Issuer that it is
unwilling or unable to continue as Depositary or if at any time the Depositary
for such series shall no longer be registered or in good standing under the
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation, and a successor Depositary for such series is not appointed by the
Issuer within 90 days after the Issuer receives such notice or becomes aware of
such condition, as the case may be, the Issuer will execute, and, subject to
Section 2.8 of the Indenture, the Trustee, upon written notice from the Issuer,
will authenticate and deliver the Notes in definitive registered form, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Note in exchange for such Global Note. In
addition, the Issuer may at any time determine that the Notes shall no longer be
represented by a Global Note. In such event the Issuer will execute, and subject
to Section 2.8 of the Indenture, the Trustee, upon receipt of an Officers'
Certificate evidencing such determination by the Issuer, will authenticate and
deliver the Notes in definitive registered form, in authorized denominations,
and in an aggregate principal amount equal to the principal amount of the Global
Note in exchange for such Global Note. Upon the exchange of the Global Note for
such Notes in definitive registered form, in authorized denominations, the
Global Note shall be canceled by the Trustee. Such Notes in definitive
registered form issued in exchange for the Global Note shall be registered in
such names and in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Notes to the Depositary for
delivery to the Persons in whose names such Notes are so registered.
SECTION 2.5. Interest.
(a) Each Note will bear interest at the rate of % per annum
(the "Coupon Rate") from the original date of issuance until the principal
thereof becomes due and payable, and on any overdue principal and (to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest, at the Coupon Rate, compounded quarterly,
payable (subject to the provisions of Article IV) quarterly in arrears on March
31, June 30, September 30 and December 31 of each year (each, an "Interest
Payment Date," commencing on ), to the Person in whose name such
Note or any predecessor Note is registered, at the close of business on the
regular record date for such interest installment, which, in respect of any
Notes of which the Property Trustee is the Holder or a Global Note, shall be the
close of business on the Business Day next preceding that Interest Payment Date.
Notwithstanding the foregoing sentence, if the Preferred Securities are no
longer in book-entry only form or, except if the Notes are held by the Property
Trustee, the Notes are not represented by a Global Note, the regular record date
for such interest installment shall be the fifteenth day of the month in which
the applicable Interest Payment Date occurs.
(b) The amount of interest payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months. Except as provided in
the following sentence, the amount of interest payable for any period shorter
than a full quarterly period for which interest is computed, will be computed on
the basis of the actual number of days elapsed in such a 90-day period. In the
event that any date on which interest is payable on the Notes is not a Business
Day, then payment of interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date.
(c) If, at any time while the Property Trustee is the Holder of any
Notes, the Trust or the Property Trustee is required to pay any taxes, duties,
assessments or governmental charges of whatever nature (other than withholding
taxes) imposed by the United States, or any other taxing authority, then, in any
case, the Issuer will pay as additional interest ("Additional Interest") on the
Notes held by the Property Trustee, such additional amounts as shall be required
so that the net amounts received and retained by the Trust and the Property
Trustee after paying such
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<PAGE> 8
taxes, duties, assessments or other governmental charges will be equal to the
amounts the Trust and the Property Trustee would have received had no such
taxes, duties, assessments or other governmental charges been imposed.
ARTICLE III.
REDEMPTION OF THE NOTES
SECTION 3.1. Special Event Redemption.
If (a) a Tax Event has occurred and is continuing and (i) the Issuer
has received a Redemption Tax Opinion, or (ii) The Regular Trustees shall have
been informed by tax counsel that a No Recognition Opinion cannot be delivered
to the Trust, or (b) an Investment Company Event has occurred and is continuing,
then, notwithstanding Section 3.2(a) but subject to Section 3.2(b) and Article
Eleven of the Indenture, the Issuer shall have the right upon not less than 30
days' nor more than 60 days' notice to the Holders of the Notes to redeem the
Notes, in whole or in part, for cash within 90 days' following the occurrence of
such Special Event (the "90 Day Period") at a redemption price equal to 100% of
the principal amount to be redeemed plus any accrued and unpaid interest thereon
to the date of such redemption (the "Redemption Price"), provided that if at the
time there is available to the Issuer or the Trust the opportunity to eliminate,
within the 90 Day Period, the Special Event by taking some ministerial action
("Ministerial Action"), such as filing a form or making an election, or pursuing
some other similar reasonable measure which has no adverse effect on the Issuer,
the Trust or the Holders of the Trust Securities issued by the Trust, the Issuer
shall pursue such Ministerial Action in lieu of redemption, and, provided,
further, that the Issuer shall have no right to redeem the Notes while the Trust
is pursuing any Ministerial Action pursuant to its obligations under the
Declaration. The Redemption Price shall be paid prior to 12:00 noon, New York
time, on the date of such redemption or such earlier time as the Issuer
determines, and the Issuer shall deposit with the Trustee an amount sufficient
to pay the Redemption Price by 10:00 a.m., New York time, on the date such
Redemption Price is to be paid.
SECTION 3.2. Optional Redemption by Issuer.
(a) Subject to the provisions of Section 3.2(b) and to the
provisions of Article Eleven of the Indenture, the Issuer shall have the right
to redeem the Notes, in whole or in part, from time to time, on or after
, , at a redemption price equal to 100% of the principal
amount to be redeemed plus any accrued and unpaid interest thereon to the date
of such redemption (the "Optional Redemption Price"). Any redemption pursuant to
this paragraph will be made upon not less than 30 days' nor more than 60 days'
notice to the Holder of the Notes, at the Optional Redemption Price. If the
Notes are only partially redeemed pursuant to this Section 3.2, the Notes will
be redeemed on a pro rata basis provided that if at the time of redemption the
Notes are registered as a Global Note, the Depository shall determine, in
accordance with its procedures, the principal amount of such Notes held by each
Holder of Notes to be redeemed. The Optional Redemption Price shall be paid
prior to 12:00 noon, New York time, on the date of such redemption or at such
earlier time as the Issuer determines and the Issuer shall deposit with the
Trustee an amount sufficient to pay the Optional Redemption Price by 10:00 a.m.,
New York time, on the date such Optional Redemption Price is to be paid.
(b) If a partial redemption of the Notes would result in the
delisting of the Preferred Securities from any national securities exchange or
other organization on which the Preferred Securities are then listed, the Issuer
shall not be permitted to effect such partial redemption and may only redeem the
Notes in whole.
SECTION 3.3. No Sinking Fund.
The Notes are not entitled to the benefit of any sinking fund.
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ARTICLE IV.
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period.
The Issuer shall have the right, at any time and from time to time
during the term of the Notes, to defer payments of interest by extending the
interest payment period of such Notes for a period not exceeding 20 consecutive
quarters (the "Extended Interest Payment Period"), during which Extended
Interest Payment Period no interest shall be due and payable; provided that no
Extended Interest Payment Period may extend beyond the Maturity Date. To the
extent permitted by applicable law, interest, the payment of which has been
deferred because of the extension of the interest payment period pursuant to
this Section 4.1, will bear interest thereon at the Coupon Rate compounded
quarterly for each quarter of the Extended Interest Payment Period ("Compounded
Interest"). At the end of the Extended Interest Payment Period, the Issuer shall
pay all interest accrued and unpaid on the Notes, including any Additional
Interest and Compounded Interest (together, "Deferred Interest") that shall be
payable to the Holders of the Notes in whose names the Notes are registered in
the Security Register on the First record date after the end of the Extended
Interest Payment Period. Prior to the termination of any Extended Interest
Payment Period, the Issuer may further extend such period, provided that such
period together with all such further extensions thereof shall not exceed 20
consecutive quarters. Upon the termination of any Extended Interest Payment
Period and upon the payment of all Deferred Interest then due, the Issuer may
commence a new Extended Interest Payment Period, subject to the foregoing
requirements. No interest shall be due and payable during an Extended Interest
Payment Period, except at the end thereof, but the Issuer may prepay at any time
all or any portion of the interest accrued during an Extended Interest Payment
Period.
The limitations set forth in Section 3.5 of the Indenture shall
apply during any Extended Interest Payment Period.
SECTION 4.2. Notice of Extension.
(a) If the Property Trustee is the only registered Holder of the
Notes at the time the Issuer elects an Extended Interest Payment Period, the
Issuer shall give written notice to the Regular Trustees, the Property Trustee
and the Trustee of its election of such Extended Interest Payment Period one
Business Day before the earlier of (i) the next succeeding date on which
Distributions on the Trust Securities issued by the Trust are payable, or (ii)
the date the Trust is required to give notice of the record date, or the date
such Distributions are payable, to the New York Stock Exchange or other
applicable self-regulatory organization or to holders of the Preferred
Securities, but in any event at least one Business Day before such record date.
(b) If the Property Trustee is not the only Holder of the Notes at
the time the Issuer elects an Extended Interest Payment Period, the Issuer shall
give the Holders of the Notes and the Trustee written notice of its election of
such Extended Interest Payment Period ten Business Days before the earlier of
(i) the next succeeding Interest Payment Date, or (ii) the date the Issuer is
required to give notice of the record or payment date of such interest payment
to the New York Stock Exchange or other applicable self-regulatory organization
or to Holders of the Notes, but in any event at least 2 Business Days before
such record date.
(c) The quarter in which any notice is given pursuant to paragraphs
(a) or (b) of this Section 4.2 shall be counted as one of the 20 quarters
permitted in the maximum Extended Interest Payment Period permitted under
Section 4.1.
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ARTICLE V.
EXPENSES
SECTION 5.1. Payment of Expenses.
In connection with the offering, sale and issuance of the Notes to
the Property Trustee and in connection with the sale of the Trust Securities by
the Trust, the Issuer, in its capacity as borrower with respect to the Notes,
shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Notes, including commissions to the underwriters payable
pursuant to the Underwriting Agreement and the Pricing Agreements, and
compensation of the Trustee under the Indenture in accordance with the
provisions of Section 6.6 of the Indenture;
(b) pay all costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization of the Trust, the
offering, sale and issuance of the Trust Securities (including commissions to
the underwriters in connection therewith), the fees and expenses of the Property
Trustee and the Delaware Trustee, the costs and expenses relating to the
operation of the Trust, including without limitation, costs and expenses of
accountants, attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with
the acquisition, financing, and disposition of Trust assets);
(c) be primarily liable for any indemnification obligations arising
with respect to the Declaration; and
(d) pay any and all taxes (other than United States withholding
taxes attributable to the Trust or its assets) and all liabilities, costs and
expenses with respect to such taxes of the Trust.
SECTION 5.2. Payment Upon Resignation or Removal.
Upon termination of this Third Supplemental Indenture or the
Indenture or the removal or resignation of the Trustee pursuant to Section 6.10
of the Indenture, the Issuer shall pay to the Trustee all amounts accrued to the
date of such termination, removal or resignation. Upon termination of the
Declaration or the removal or resignation of the Delaware Trustee or the
Property Trustee, as the case may be, pursuant to Section 5.6 of the
Declaration, the Issuer shall pay to the Delaware Trustee or the Property
Trustee, as the case may be, all amounts accrued to the date of such
termination, removal or resignation.
ARTICLE VI.
SUBORDINATION
SECTION 6.1. Agreement to Subordinate.
The Issuer covenants and agrees, and each Holder of Notes issued
hereunder, by such Holder's acceptance thereof likewise covenants and agrees,
that pursuant to Section 2.3(f)(9) of the Indenture all Notes shall be issued as
Subordinated Securities subject to the provisions of Article Twelve of the
Indenture and this Article VI; and each Holder of a Note by its acceptance
thereof accepts and agrees to be bound by such provisions.
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ARTICLE VII.
COVENANT TO LIST ON EXCHANGE
SECTION 7.1. Listing on an Exchange.
In connection with the distribution of the Notes to the holders of
the Preferred Securities upon a Dissolution Event, the Issuer will use its best
efforts to list such Notes on the New York Stock Exchange or on such other
exchange as the Preferred Securities are then listed.
ARTICLE VIII.
FORM OF NOTES
SECTION 8.1. Form of Note.
The Notes and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the following forms and the Notes
shall have such additional terms as may be set forth in such form:
(FORM OF FACE OF NOTE)
[IF THE NOTE IS TO BE A GLOBAL NOTES, INSERT - This Note 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 Note
is exchangeable for Notes registered in the name of a person other than the
Depositary or its nominee only in the limited circumstances described in the
Indenture, and no transfer of this Note (other than a transfer of this 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 limited circumstances.
Unless this Note is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the issuer or
its agent for registration of transfer, exchange or payment, and any Note issued
is registered in the name of Cede & Co. or such other name as requested by an
authorized representative of The Depository Trust Company and any payment hereon
is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY A PERSON IS WRONGFUL since the registered owner hereof, Cede & Co.,
has an interest herein.]
No.
$
CUSIP NO.
CONSUMERS ENERGY COMPANY
% SUBORDINATED DEFERRABLE INTEREST NOTES
DUE
Consumers Energy Company, a Michigan corporation (the "Issuer",
which term includes any successor corporation 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 on said principal sum from , 19,
or from the most recent interest payment date (each such date, an "Interest
Payment Date") to which interest has been paid or duly provided for, quarterly
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(subject to deferral as set forth herein) in arrears on March 31, June 30,
September 30 and December 31 of each year commencing at the rate of
% per annum until the principal hereof shall have become due and payable,
and on any overdue principal and premium, if any, and (without duplication and
to the extent that payment of such interest is enforceable under applicable law)
on any overdue installment of interest at the same rate per annum compounded
quarterly. The amount of interest payable on any Interest Payment Date shall be
computed on the basis of a 360-day year of twelve 30-day months. In the event
that any date on which interest is payable on this Note is not a Business Day,
then payment of interest payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date. The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the person in whose name this Note (or one or more Predecessor
Securities, as defined in said Indenture) is registered at the close of business
on the regular record date for such interest installment, which shall be the
close of business on the Business Day next preceding such Interest Payment Date.
[IF PURSUANT TO THE PROVISIONS OF THE INDENTURE THE NOTES ARE NO LONGER
REPRESENTED BY A GLOBAL NOTE -- which shall be the close of business on the 15th
day of the month in which such Interest Payment Date occurs.] If and to the
extent the Issuer shall default in the payment of the interest due on such
Interest Payment Date, interest shall be paid to the person in whose name this
Note is registered at the close of business on a subsequent record date (which
shall not be less than five Business Days prior to the date of payment of such
defaulted interest) established by notice given by mail by or on behalf of the
Issuer to the Holder of this Note not less than 15 days preceding such
subsequent Record Date. The principal of (and premium, if any) and the interest
on this Note shall be payable at the office or agency of the Trustee in the
Borough of Manhattan, the City of New York maintained for that purpose in any
coin or currency of the United States of America that at the time is legal
tender for payment of public and private debts; provided, however, that payment
of interest may be made at the option of the Issuer by check mailed to the
registered Holder at such address as shall appear in the Security Register or by
wire transfer to an account maintained by the Holder. Notwithstanding the
foregoing, so long as the Holder of this Note is the Property Trustee, the
payment of the principal of (and premium, if any) and interest on this Note will
be made at such place and to such account as may be designated by the Property
Trustee.
The indebtedness evidenced by this Note is, to the extent provided
in the Indenture, subordinate and junior in right of payment to the prior
payment in full of all Senior Indebtedness, and this Note is issued subject to
the provisions of the Indenture with respect thereto. Each Holder of this Note,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his or her behalf to take such action as
may be necessary or appropriate to acknowledge or effectuate the subordination
so provided and (c) appoints the Trustee his or her attorney-in-fact for any and
all such purposes. Each Holder hereof, by his or her acceptance hereof, hereby
waives all notice of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
said provisions.
This Note shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
The provisions of this Note are continued on the reverse side hereof
and such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
9
<PAGE> 13
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
executed.
Dated
Consumers Energy Company
[Seal] By:
Name:
Title
Attest:
By:
Name:
Title:
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series of Securities described
in the within-mentioned Indenture.
[ ]
--------------------------
as Trustee
By
Authorized Signatory
(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of Securities of the
Issuer (herein sometimes referred to as the "Notes"), specified in the
Indenture, all issued or to be issued in one or more series under and pursuant
to an Indenture dated as of January 1, 1996, duly executed and delivered between
the Issuer and The Bank of New York, a New York banking corporation, as Trustee
(the "Trustee"), as supplemented by certain supplemental indentures, including
the Third Supplemental Indenture dated as of , 1999, between the Issuer
and the Trustee (the Indenture as so supplemented, the "Indenture"), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Issuer and the Holders of the Notes.
By the terms of the Indenture, the Notes are issuable in series that may vary as
to amount, date of maturity, rate of interest and in other respects as provided
in the Indenture. This series of Notes is limited in aggregate principal amount
as specified in said Third Supplemental Indenture.
The Issuer shall have the right to redeem this Note at the option of
the Issuer, without premium or penalty, in whole or in part at any time on or
after , , or at any time in certain circumstances upon the
occurrence of a Special Event, at a redemption price equal to 100% of the
principal amount plus any accrued but
10
<PAGE> 14
unpaid interest, to the date of such redemption. Any redemption pursuant to this
paragraph will be made upon not less than 30 days nor more than 60 days' notice.
If the Notes are only partially redeemed by the Issuer pursuant to an Optional
Redemption, the Notes will be redeemed pro rata.
In the event of redemption of this Note in part only, a new Note or
Notes of this series for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Notes may be declared,
and upon such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes and other Indenture securities of each
series affected at the time Outstanding and affected (voting as one class), as
defined in the Indenture, to execute supplemental indentures for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or of modifying in
any manner the rights of the Holders of the Notes; provided, however, that the
Company and the Trustee may not, without the consent of the Holder of each Note
then Outstanding and affected thereby: (a) change the time of payment of the
principal (or any installment) of any Note, or reduce the principal amount
thereof, or reduce the rate or change the time of payment of interest thereon,
or impair the right to institute suit for the enforcement of any payment on any
Note when due or (b) reduce the percentage in principal amount of the Notes, the
consent of whose Holders is required for any such modification or for any waiver
provided for in the Indenture. The Indenture also contains provisions providing
that prior to the acceleration of the maturity of any Note or other securities
outstanding under the Indenture, the Holders of a majority in aggregate
principal amount of Notes of and other Securities Outstanding under the
Indenture with respect to which a default or/an Event of Default shall have
occurred and be continuing (voting as one class) may on behalf of the Holders of
all such affected Securities (including the Notes) waive any past default and
its consequences, except a default or an Event of Default in respect of a
covenant or provision of the Indenture or of any Note or other Security which
cannot be modified or amended without the consent of the Holder of each Note or
other Security affected. Any such consent or waiver by the registered Holder of
this Note (unless revoked as provided in the Indenture) shall be conclusive and
binding upon such Holder and upon all future Holders and owners of this Note and
of any Note issued in exchange herefor or in place hereof (whether by
registration of transfer or otherwise), irrespective of whether or not any
notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Note at the time and place and at the rate and in the money
herein prescribed.
The Issuer shall have the right at any time during the term of the
Notes and from time to time to extend the interest payment period of such Notes
for up to 20 consecutive quarters (an "Extended Interest Payment Period"), at
the end of which period the Issuer shall pay all interest then accrued and
unpaid (together with interest thereon at the rate specified for the Notes to
the extent that payment of such interest is enforceable under applicable law).
Before the termination of any such Extended Interest Payment Period, the Issuer
may further extend such Extended Interest Payment Period, provided that such
Extended Interest Payment Period together with all such further extensions
thereof shall not exceed 20 consecutive quarters. At the termination of any such
Extended Interest Payment Period and upon the payment of all accrued and unpaid
interest and any additional amounts then due, the Issuer may commence a new
Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations
therein set forth, this Note is transferable by the registered Holder hereof on
the Security Register of the Issuer, upon surrender of this Note for
registration of transfer at the office or agency of the Trustee in the City and
State of New York accompanied by a written instrument or instruments of transfer
in form satisfactory to the Issuer or the Trustee duly executed by the
registered Holder
11
<PAGE> 15
hereof or his attorney duly authorized in writing, and thereupon one or more new
Notes of authorized denominations and for the same aggregate principal amount
and series will be issued to the designated transferee or transferees. No
service charge will be made for any such transfer, but the Issuer may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in relation thereto.
Prior to due presentment for registration of transfer of this Note,
the Issuer, the Trustee, any paying agent and the Security Registrar may deem
and treat the registered holder hereof as the absolute owner hereof (whether or
not this Note shall be overdue and notwithstanding any notice of ownership or
writing hereon made by anyone other than the Security Registrar) for the purpose
of receiving payment of or on account of the principal hereof and premium, if
any, and interest due hereon and for all other purposes, and neither the Issuer
nor the Trustee nor any paying agent nor any Security Registrar shall be
affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator,
stockholder, officer or director, past, present or future, as such, of the
Issuer or of any predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
Notes of this series so issued are issuable only in registered form
without coupons in denominations of $25 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations herein and therein
set forth, Notes of this series so issued are exchangeable for a like aggregate
principal amount of Notes of this series in authorized denominations, as
requested by the Holder surrendering the same.
All terms used in this Note that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
[END OF FORM OF NOTE]
ARTICLE IX.
ORIGINAL ISSUE OF NOTES
SECTION 9.1. Original Issue of Notes.
Notes in the aggregate principal amount of $ may, upon
execution of this Third Supplemental Indenture, be executed by the Issuer and
delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Notes to or upon the written order of the Issuer,
in accordance with Section 2.4 of the Indenture.
12
<PAGE> 16
ARTICLE X.
MISCELLANEOUS
SECTION 10.1 Provisions of Indenture for the Sole Benefit of Parties and
Holders of Trust Securities.
Notwithstanding Section 13.2 of the Indenture, for so long as any
Trust Securities remain outstanding, the Issuer=s obligations under the
Indenture and this Third Supplemental Indenture will also be for the benefit of
the holders of the Trust Securities, and the Issuer acknowledges and agrees that
such holders will be entitled to enforce certain payment obligations under the
Notes directly against the Issuer to the extent provided in the Declaration.
SECTION 10.2 Ratification of Indenture.
The Indenture, as supplemented by this Third Supplemental Indenture,
is in all respects ratified and confirmed, and this Third Supplemental Indenture
shall be deemed part of the Indenture in the manner and to the extent herein and
therein provided.
SECTION 10.3. Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Issuer and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
Third Supplemental Indenture.
SECTION 10.4. Governing Law.
This Third Supplemental Indenture and each Note shall be deemed to
be a contract made under the internal laws of the State of Michigan, and for all
purposes shall be construed in accordance with the laws of said State, provided,
however, that the rights, duties and obligations of the Trustee are governed and
construed in accordance with the laws of the State of New York.
SECTION 10.5. Separability.
In case any one or more of the provisions contained in this Third
Supplemental Indenture or in the Notes shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Third
Supplemental Indenture or of the Notes, but this Third Supplemental Indenture
and the Notes shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
SECTION 10.6. Counterparts.
This Third Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
13
<PAGE> 17
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed on the date or dates indicated in the
acknowledgments and as of the day and year first above written.
Consumers Energy Company
By:
----------------------------------
Name:
Title:
[Seal]
Attest:
By:
---------------------
The Bank of New York, as Trustee
By:
----------------------------------
Name:
Title:
14
<PAGE> 18
STATE OF MICHIGAN )
)ss.
COUNTY OF WAYNE )
On the day of , 1999, before me personally came Alan
M. Wright, to me known, who, being by me duly sworn, did depose and say that he
resides at Ann Arbor, Michigan; that he is Senior Vice President and Chief
Financial Officer of Consumers Energy Company, one of the corporations described
in and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate; that it
was so affixed by authority of the Board of Directors of said corporation; and
that he signed his name thereto by like authority.
[Notarial Seal]
- -------------------------------------------------------------
Notary Public, County,
--------------------- -----------------
My Commission Expires:
15
<PAGE> 1
EXHIBIT 4(m)
===========================
PREFERRED SECURITIES GUARANTEE AGREEMENT
CONSUMERS ENERGY COMPANY FINANCING III
Dated as of , 1999
====================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I.
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation................................. 2
ARTICLE II.
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application............................... 4
SECTION 2.2 Lists of Holders of Securities................................. 4
SECTION 2.3 Reports by the Preferred Guarantee Trustee..................... 5
SECTION 2.4 Periodic Reports to Preferred Guarantee Trustee................ 5
SECTION 2.5 Evidence of Compliance with Conditions Precedent............... 5
SECTION 2.6 Events of Default; Waiver...................................... 5
SECTION 2.7 Event of Default; Notice....................................... 5
SECTION 2.8 Conflicting Interests.......................................... 6
ARTICLE III.
POWERS, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Guarantee Trustee........... 6
SECTION 3.2 Certain Rights of Preferred Guarantee Trustee.................. 7
SECTION 3.3 Not Responsible for Recitals or Issuance of Guarantee.......... 9
ARTICLE IV.
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Preferred Guarantee Trustee; Eligibility....................... 9
SECTION 4.2 Appointment, Removal and Resignation of Preferred Guarantee
Trustees....................................................... 10
ARTICLE V.
GUARANTEE
SECTION 5.1 Guarantee...................................................... 10
SECTION 5.2 Waiver of Notice and Demand.................................... 11
SECTION 5.3 Obligations Not Affected....................................... 11
SECTION 5.4 Rights of Holders.............................................. 12
SECTION 5.5 Guarantee of Payment........................................... 12
SECTION 5.6 Subrogation.................................................... 12
SECTION 5.7 Independent Obligations........................................ 12
ARTICLE VI.
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions..................................... 12
SECTION 6.2 Ranking........................................................ 13
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE VII.
TERMINATION
SECTION 7.1 Termination................................................ 13
ARTICLE VIII.
INDEMNIFICATION
SECTION 8.1 Exculpation................................................ 13
SECTION 8.2 Indemnification............................................ 14
ARTICLE IX.
MISCELLANEOUS
SECTION 9.1 Successors and Assigns..................................... 14
SECTION 9.2 Amendments................................................. 14
SECTION 9.3 Notices.................................................... 14
SECTION 9.4 Benefit.................................................... 15
SECTION 9.5 Governing Law.............................................. 15
</TABLE>
ii
<PAGE> 4
PREFERRED SECURITIES GUARANTEE AGREEMENT
GUARANTEE AGREEMENT (the "Preferred Securities Guarantee"),
dated as of , 1999, is executed and delivered by Consumers Energy
Company, a Michigan corporation (the "Guarantor"), and The Bank of New York, as
trustee (the "Preferred Guarantee Trustee"), for the benefit of the Holders (as
defined herein) from time to time of the Preferred Securities (as defined
herein) of Consumers Energy Company Financing III, a Delaware statutory business
trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of
Trust (the "Declaration"), dated as of , 1999, among the trustees of
the Issuer named therein, the Guarantor, as sponsor, and the holders from time
to time of undivided beneficial interests in the assets of the Issuer, the
Issuer is issuing on the date hereof preferred securities, having an
aggregate liquidation amount of designated the % Trust Originated
Preferred Securities (the "Preferred Securities");
WHEREAS, as incentive for the Holders to purchase the
Preferred Securities, the Guarantor desires irrevocably and unconditionally to
agree, to the extent set forth in this Preferred Securities Guarantee, to pay to
the Holders of the Preferred Securities the Guarantee Payments (as defined
herein) and to make certain other payments on the terms and conditions set forth
herein; and
WHEREAS, the Guarantor is also executing and delivering a
guarantee agreement (the "Common Securities Guarantee") in substantially
identical terms to this Preferred Securities Guarantee for the benefit of the
holders of the Common Securities (as defined herein), except that if an Event of
Default (as defined in the Indenture), has occurred and is continuing, the
rights of holders of the Common Securities to receive Guarantee Payments under
the Common Securities Guarantee are subordinated to the rights of Holders of
Preferred Securities to receive Guarantee Payments under this Preferred
Securities Guarantee;
NOW, THEREFORE, in consideration of the purchase by each
Holder of Preferred Securities, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this Preferred
Securities Guarantee for the benefit of the Holders.
<PAGE> 5
ARTICLE I.
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Preferred Securities Guarantee, unless the context
otherwise requires:
(a) Capitalized terms used in this Preferred Securities Guarantee
but not defined in the preamble above have the respective
meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Preferred Securities
Guarantee has the same meaning throughout;
(c) all references to "the Preferred Securities Guarantee" or
"this Preferred Securities Guarantee" are to this Preferred
Securities Guarantee as modified, supplemented or amended
from time to time;
(d) all references in this Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this
Preferred Securities Guarantee, unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Preferred Securities Guarantee,
unless otherwise defined in this Preferred Securities
Guarantee or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act of 1933, as amended, or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is
authorized to bind such Person.
"Business Day" means any day other than a day on which banking
institutions in the City of New York, New York are authorized or required by any
applicable law to close.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Issuer.
"Corporate Trust Office" means the office of the Preferred
Guarantee Trustee at which the corporate trust business of the Preferred
Guarantee Trustee shall, at any particular time, be principally administered,
which office at the date of execution of this Agreement is located at 101
Barclay Street, Floor 21 West, New York, New York 10286.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Debentures" means the series of junior subordinated debt
securities of the Guarantor designated the 8.20% Subordinated Deferrable
Interest Notes due 2027 held by the Property Trustee (as defined in the
Declaration) of the Issuer.
2
<PAGE> 6
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Preferred Securities Guarantee.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by the Issuer: (i) any accrued and unpaid Distributions (as defined
in the Declaration) that are required to be paid on such Preferred Securities to
the extent the Issuer shall have funds available therefor, (ii) the redemption
price, including all accrued and unpaid Distributions to the date of redemption
(the "Redemption Price") to the extent the Issuer has funds available therefor,
with respect to any Preferred Securities called for redemption by the Issuer,
and (iii) upon a voluntary or involuntary dissolution, winding-up or termination
of the Issuer (other than in connection with the distribution of Debentures to
the Holders in exchange for Preferred Securities as provided in the
Declaration), the lesser of (a) the aggregate of the liquidation amount and all
accrued and unpaid Distributions on the Preferred Securities to the date of
payment, to the extent the Issuer shall have funds available therefor, and (b)
the amount of assets of the Issuer remaining available for distribution to
Holders in liquidation of the Issuer (in either case, the "Liquidation
Distribution"). If an event of default under the Indenture has occurred and is
continuing, the rights of holders of the Common Securities to receive payments
under the Common Securities Guarantee Agreement are subordinated to the rights
of Holders of Preferred Securities to receive Guarantee Payments.
"Holder" shall mean any holder, as registered on the books and
records of the Issuer of any Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Preferred Guarantee Trustee, any
Affiliate of the Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Preferred Guarantee Trustee.
"Indenture" means the Indenture dated as of January 1, 1996,
between the Guarantor (the "Debenture Issuer") and The Bank of New York, as
trustee, and any indenture supplemental thereto pursuant to which certain
subordinated debt securities of the Debenture Issuer are to be issued to the
Property Trustee of the Issuer.
"Majority in liquidation amount of the Securities" means, except as
provided by the Trust Indenture Act, a vote by Holder(s) of Preferred
Securities, voting separately as a class, of more than 50% of the liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Preferred Securities Guarantee shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definition relating thereto;
3
<PAGE> 7
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Guarantee Trustee" means The Bank of New York, until a
Successor Preferred Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Preferred Securities Guarantee and
thereafter means each such Successor Preferred Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred
Guarantee Trustee, any officer within the Corporate Trust Office of the
Preferred Guarantee Trustee, including any vice-president, any assistant
vice-president, any assistant secretary, the treasurer, any assistant treasurer
or other officer of the Corporate Trust Office of the Preferred Guarantee
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Successor Preferred Guarantee Trustee" means a successor Preferred
Guarantee Trustee possessing the qualifications to act as Preferred Guarantee
Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
ARTICLE II.
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
(a) This Preferred Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Preferred Securities Guarantee and shall, to the extent applicable, be governed
by such provisions; and
(b) if and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
4
<PAGE> 8
SECTION 2.2 Lists of Holders of Securities
(a) The Guarantor shall provide the Preferred Guarantee Trustee
with a list, in such form as the Preferred Guarantee Trustee may reasonably
require, of the names and addresses of the Holders of the Preferred Securities
("List of Holders") as of such date, (i) within 14 days after January 1 and June
30 of each year, and (ii) at any other time within 30 days of receipt by the
Guarantor of a written request for a List of Holders as of a date no more than
14 days before such List of Holders is given to the Preferred Guarantee Trustee
provided, that the Guarantor shall not be obligated to provide such List of
Holders at any time the List of Holders does not differ from the most recent
List of Holders given to the Preferred Guarantee Trustee by the Guarantor. The
Preferred Guarantee Trustee may destroy any List of Holders previously given to
it on receipt of a new List of Holders.
(b) The Preferred Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Preferred Guarantee Trustee
Within 60 days after May 15 of each year, the Preferred Guarantee
Trustee shall provide to the Holders of the Preferred Securities such reports as
are required by Section 313 of the Trust Indenture Act, if any, in the form and
in the manner provided by Section 313 of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Preferred Guarantee Trustee
The Guarantor shall provide to the Preferred Guarantee Trustee such
documents, reports and information as required by Section 314 (if any) and the
compliance certificate required by Section 314 of the Trust Indenture Act in the
form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Preferred Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Preferred Securities Guarantee that relate to any of the matters set forth
in Section 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1) may be given in
the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver
The Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Preferred Securities Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 2.7 Event of Default; Notice
(a) The Preferred Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders of the Preferred Securities, notices of all Events of
Default
5
<PAGE> 9
actually known to a Responsible Officer of the Preferred Guarantee Trustee,
unless such defaults have been cured before the giving of such notice, provided,
that, the Preferred Guarantee Trustee shall be protected in withholding such
notice, to the extent permitted by the Trust Indenture Act, if and so long as a
Responsible Officer of the Preferred Guarantee Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders of the
Preferred Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Preferred Guarantee Trustee shall
have received written notice, or a Responsible Officer of the Preferred
Guarantee Trustee charged with the administration of the Declaration shall have
obtained actual knowledge.
SECTION 2.8 Conflicting Interests
The Declaration shall be deemed to be specifically described in
this Preferred Securities Guarantee for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III.
POWERS, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Guarantee Trustee
(a) This Preferred Securities Guarantee shall be held by the
Preferred Guarantee Trustee for the benefit of the Holders of the Preferred
Securities, and the Preferred Guarantee Trustee shall not transfer this
Preferred Securities Guarantee to any Person except a Holder of Preferred
Securities exercising his or her rights pursuant to Section 5.4(b) or to a
Successor Preferred Guarantee Trustee on acceptance by such Successor Preferred
Guarantee Trustee of its appointment to act as Successor Preferred Guarantee
Trustee. The right, title and interest of the Preferred Guarantee Trustee shall
automatically vest in any Successor Preferred Guarantee Trustee, and such
vesting and cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered pursuant to the appointment of such
Successor Preferred Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer
of the Preferred Guarantee Trustee has occurred and is continuing, the Preferred
Guarantee Trustee shall enforce this Preferred Securities Guarantee for the
benefit of the Holders of the Preferred Securities.
(c) The Preferred Guarantee Trustee, before the occurrence of any
Event of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Preferred Securities Guarantee, and no implied covenants shall be
read into this Preferred Securities Guarantee against the Preferred Guarantee
Trustee. In case an Event of Default has occurred (that has not been cured or
waived pursuant to Section 2.6) and is actually known to a Responsible Officer
of the Preferred Guarantee Trustee, the Preferred Guarantee Trustee shall
exercise such of the rights and powers vested in it by this Preferred Securities
Guarantee, and use the same degree of care and skill in its exercise thereof, as
a prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
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(d) No provision of this Preferred Securities Guarantee shall be
construed to relieve the Preferred Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of Default that may
have occurred:
(A) the duties and obligations of the Preferred
Guarantee Trustee shall be determined solely by the express
provisions of this Preferred Securities Guarantee, and the
Preferred Guarantee Trustee shall not be liable except for
the performance of such duties and obligations as are
specifically set forth in this Preferred Securities
Guarantee, and no implied covenants or obligations shall be
read into this Preferred Securities Guarantee against the
Preferred Guarantee Trustee; and
(B) in the absence of bad faith on the part of the
Preferred Guarantee Trustee, the Preferred Guarantee Trustee
may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Preferred Guarantee
Trustee and conforming to the requirements of this Preferred
Securities Guarantee; but in the case of any such
certificates or opinions that by any provision hereof are
specifically required to be furnished to the Preferred
Guarantee Trustee, the Preferred Guarantee Trustee shall be
under a duty to examine the same to determine whether or not
they conform to the requirements of this Preferred Securities
Guarantee;
(ii) the Preferred Guarantee Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer
of the Preferred Guarantee Trustee, unless it shall be proved that
the Preferred Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Preferred Guarantee Trustee shall not be liable
with respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the Holders of not
less than a Majority in liquidation amount of the Preferred
Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Preferred Guarantee
Trustee, or exercising any trust or power conferred upon the
Preferred Guarantee Trustee under this Preferred Securities
Guarantee; and
(iv) no provision of this Preferred Securities Guarantee
shall require the Preferred Guarantee Trustee to expend or risk its
own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its
rights or powers, if the Preferred Guarantee Trustee shall have
reasonable grounds for believing that the repayment of such funds
or liability is not reasonably assured to it under the terms of
this Preferred Securities Guarantee or indemnity, reasonably
satisfactory to the Preferred Guarantee Trustee, against such risk
or liability is not reasonably assured to it.
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SECTION 3.2 Certain Rights of Preferred Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) The Preferred Guarantee Trustee may conclusively rely,
and shall be fully protected in acting or refraining from acting
upon, any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed, sent
or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by
this Preferred Securities Guarantee shall be sufficiently evidenced
by an Officers' Certificate.
(iii) Whenever, in the administration of this Preferred
Securities Guarantee, the Preferred Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Preferred Guarantee
Trustee (unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate which, upon receipt
of such request, shall be promptly delivered by the Guarantor.
(iv) The Preferred Guarantee Trustee shall have no duty to
see to any recording, filing or registration of any instrument (or
any rerecording, refiling or registration thereof).
(v) The Preferred Guarantee Trustee may consult with counsel
of its choice, and the written advice or opinion of such counsel
with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance
with such advice or opinion. Such counsel may be counsel to the
Guarantor or any of its Affiliates and may include any of its
employees. The Preferred Guarantee Trustee shall have the right at
any time to seek instructions concerning the administration of this
Preferred Securities Guarantee from any court of competent
jurisdiction.
(vi) The Preferred Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by
this Preferred Securities Guarantee at the request or direction of
any Holder, unless such Holder shall have provided to the Preferred
Guarantee Trustee such security and indemnity, reasonably
satisfactory to the Preferred Guarantee Trustee, against the costs,
expenses (including attorneys' fees and expenses and the expenses
of the Preferred Guarantee Trustee's agents, nominees or
custodians) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable
advances as may be requested by the Preferred Guarantee Trustee;
provided that, nothing contained in this Section 3.2(a)(vi) shall
be taken to relieve the Preferred Guarantee Trustee, upon the
occurrence of an Event of Default, of its obligation to exercise
the rights and powers vested in it by this Preferred Securities
Guarantee.
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(vii) The Preferred Guarantee Trustee shall not be bound to
make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document, but the
Preferred Guarantee Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it
may see fit.
(viii) The Preferred Guarantee Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, nominees, custodians or
attorneys, and the Preferred Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
(ix) Any action taken by the Preferred Guarantee Trustee or
its agents hereunder shall bind the Holders of the Preferred
Securities, and the signature of the Preferred Guarantee Trustee or
its agents alone shall be sufficient and effective to perform any
such action. No third party shall be required to inquire as to the
authority of the Preferred Guarantee Trustee to so act or as to its
compliance with any of the terms and provisions of this Preferred
Securities Guarantee, both of which shall be conclusively evidenced
by the Preferred Guarantee Trustee's or its agent's taking such
action.
(x) Whenever in the administration of this Preferred
Securities Guarantee the Preferred Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing any
remedy or right or taking any other action hereunder, the Preferred
Guarantee Trustee (i) may request instructions from the Holders of
a Majority in liquidation amount of the Preferred Securities, (ii)
may refrain from enforcing such remedy or right or taking such
other action until such instructions are received, and (iii) shall
be protected in conclusively relying on or acting in accordance
with such instructions.
(b) No provision of this Preferred Securities Guarantee shall be
deemed to impose any duty or obligation on the Preferred Guarantee Trustee to
perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall be illegal, or
in which the Preferred Guarantee Trustee shall be unqualified or incompetent in
accordance with applicable law, to perform any such act or acts or to exercise
any such right, power, duty or obligation. No permissive power or authority
available to the Preferred Guarantee Trustee shall be construed to be a duty.
SECTION 3.3. Not Responsible for Recitals or Issuance of Guarantee
The recitals contained in this Guarantee shall be taken as the
statements of the Guarantor, and the Preferred Guarantee Trustee does not assume
any responsibility for their correctness. The Preferred Guarantee Trustee makes
no representation as to the validity or sufficiency of this Preferred Securities
Guarantee.
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ARTICLE IV.
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Preferred Guarantee Trustee; Eligibility
(a) There shall at all times be a Preferred Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or Person
permitted by the Securities and Exchange Commission to act as an
institutional trustee under the Trust Indenture Act, authorized
under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority. If
such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the supervising or
examining authority referred to above, then, for the purposes of
this Section 4.1(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published.
(b) If at any time the Preferred Guarantee Trustee shall cease to
be eligible to so act under Section 4.1(a), the Preferred Guarantee Trustee
shall immediately resign in the manner and with the effect set out in Section
4.2(c).
(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
SECTION 4.2 Appointment, Removal and Resignation of Preferred Guarantee
Trustees
(a) Subject to Section 4.2(b), the Preferred Guarantee Trustee may
be appointed or removed without cause at any time by the Guarantor.
(b) The Preferred Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Preferred Guarantee Trustee has
been appointed and has accepted such appointment by written instrument executed
by such Successor Preferred Guarantee Trustee and delivered to the Guarantor.
(c) The Preferred Guarantee Trustee appointed to office shall hold
office until a Successor Preferred Guarantee Trustee shall have been appointed
or until its removal or resignation. The Preferred Guarantee Trustee may resign
from office (without need for prior or subsequent accounting) by an instrument
in writing executed by the Preferred Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor Preferred
Guarantee Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Preferred Guarantee Trustee and
delivered to the Guarantor and the resigning Preferred Guarantee Trustee.
(d) If no Successor Preferred Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2 within 60
days
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after delivery to the Guarantor of an instrument of resignation, the resigning
Preferred Guarantee Trustee may petition any court of competent jurisdiction for
appointment of a Successor Preferred Guarantee Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper, appoint
a Successor Preferred Guarantee Trustee.
(e) No Preferred Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Preferred Guarantee Trustee.
(f) Upon termination of this Preferred Securities Guarantee or
removal or resignation of the Preferred Guarantee Trustee pursuant to this
Section 4.2, the Guarantor shall pay to the Preferred Guarantee Trustee all
amounts accrued to the date of such termination, removal or resignation.
ARTICLE V.
GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in full
to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim that the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders. Notwithstanding anything to the
contrary herein, the Guarantor retains all of its rights under the Indenture to
extend the interest payment period on the Debentures and the Guarantor shall not
be obligated hereunder to pay during an Extension Period (as defined in the
Indenture) any monthly distributions on the Preferred Securities.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Preferred
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 5.3 Obligations Not Affected
Except as otherwise provided herein, the obligations, covenants,
agreements and duties of the Guarantor under this Preferred Securities Guarantee
shall in no way be affected or impaired by reason of the happening from time to
time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or
any portion of the Distributions, Redemption Price, Liquidation Distribution or
any other sums payable under the terms of the Preferred Securities or the
extension of time for the performance of any other obligation under, arising out
11
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of, or in connection with, the Preferred Securities (other than an extension of
time for payment of Distributions, Redemption Price, Liquidation Distribution or
other sum payable that results from the extension of any interest payment period
on the Debentures or any extension of the maturity date of the Debentures
permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part
of the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Preferred
Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Issuer or any of the assets of
the Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it being
the intent of this Section 5.3 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 Rights of Holders
(a) The Holders of a Majority in liquidation amount of the
Preferred Securities have the right to direct the time, method and place of
conducting of any proceeding for any remedy available to the Preferred Guarantee
Trustee in respect of this Preferred Securities Guarantee or exercising any
trust or power conferred upon the Preferred Guarantee Trustee under this
Preferred Securities Guarantee.
(b) Any Holder of Preferred Securities may institute a legal
proceeding directly against the Guarantor to enforce its rights under this
Preferred Securities Guarantee, without first instituting a legal proceeding
against the Issuer, the Preferred Guarantee Trustee or any other Person.
SECTION 5.5 Guarantee of Payment
This Preferred Securities Guarantee creates a guarantee of payment
and not of collection.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all (if any) rights of the
Holders of Preferred Securities against the Issuer in respect of any amounts
paid to such Holders by the Guarantor under this Preferred Securities Guarantee;
12
<PAGE> 16
provided, however, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any right
that it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Preferred
Securities Guarantee, if, at the time of any such payment, any amounts are due
and unpaid under this Preferred Securities Guarantee. If any amount shall be
paid to the Guarantor in violation of the preceding sentence, the Guarantor
agrees to hold such amount in trust for the Holders and to pay over such amount
to the Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Preferred
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI.
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions
So long as any Preferred Securities remain outstanding, if there
shall have occurred an Event of Default or an event of default under the
Declaration, then (a) the Guarantor shall not declare or pay any dividend on,
make any distributions with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock, (b) the Guarantor
shall not make any payment of interest, principal or premium, if any, on or
repay, repurchase or redeem any debt securities (including guarantees) issued by
the Guarantor which rank pari passu with or junior to the Debentures or (c) the
Guarantor shall not make any guarantee payments with respect to the foregoing
(other than pursuant to the Preferred Securities Guarantee Agreement); provided,
however, the Guarantor may declare and pay a stock dividend where the dividend
stock is the same stock as that on which the dividend is being paid.
SECTION 6.2 Ranking
This Preferred Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to all other liabilities of the Guarantor including the Debentures,
except those liabilities of the Guarantor made pari passu or subordinate by
their terms, (ii) pari passu with the most senior preferred or preference stock
now or hereafter issued by the Guarantor and with any guarantee now or hereafter
entered into by the Guarantor in respect of any preferred or preference stock of
any Affiliate of the Guarantor, and (iii) senior to the Guarantor's common
stock.
ARTICLE VII.
TERMINATION
SECTION 7.1 Termination
This Preferred Securities Guarantee shall terminate (i) upon full
payment of the Redemption Price of all Preferred Securities, (ii) upon the
distribution of the Debentures to the Holders of all of the Preferred Securities
13
<PAGE> 17
or (iii) upon full payment of the amounts payable in accordance with the
Declaration upon liquidation of the Issuer. Notwithstanding the foregoing, this
Preferred Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder of Preferred
Securities must restore payment of any sums paid under the Preferred Securities
or under this Preferred Securities Guarantee.
ARTICLE VIII.
INDEMNIFICATION
SECTION 8.1 Exculpation
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith in accordance with this
Preferred Securities Guarantee and in a manner that such Indemnified Person
reasonably believed to be within the scope of the authority conferred on such
Indemnified Person by this Preferred Securities Guarantee or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's gross negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence and
amount of assets from which Distributions to Holders of Preferred Securities
might properly be paid.
SECTION 8.2 Indemnification
The Guarantor agrees to indemnify each Indemnified Person for, and
to hold each Indemnified Person harmless against, any loss, liability or expense
incurred without gross negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against, or investigating, any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The obligation to indemnify as set forth in this Section 8.2 shall
survive the termination of this Preferred Securities Guarantee.
ARTICLE IX.
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
All guarantees and agreements contained in this Preferred
Securities Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Preferred Securities then outstanding.
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SECTION 9.2 Amendments
Except with respect to any changes that do not adversely affect the
rights of Holders (in which case no consent of Holders will be required), this
Preferred Securities Guarantee may only be amended with the prior approval of
the Holders of at least a Majority in liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus accrued
and unpaid Distributions to the date upon which the voting percentages are
determined) of all the outstanding Preferred Securities. The provisions of
Section 12.2 of the Declaration with respect to meetings of Holders of the
Securities apply to the giving of such approval.
SECTION 9.3 Notices
All notices provided for in this Preferred Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by registered or certified mail, as follows:
(a) If given to the Preferred Guarantee Trustee, at the Preferred
Guarantee Trustee's mailing address set forth below (or such other address as
the Preferred Guarantee Trustee may give notice of to the Holders of the
Preferred Securities):
The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
Attention: Administrator
Facsimile (212) 815-5915
(b) If given to the Guarantor, at the Guarantor's mailing address
set forth below (or such other address as the Guarantor may give notice of to
the Holders of the Preferred Securities):
Consumers Energy Company
212 West Michigan Avenue
Jackson, Michigan 49201
Attention: Alan M. Wright,
Senior Vice President and
Chief Financial Officer
Facsimile (517) 788-2186
(c) If given to any Holder of Preferred Securities, at the address
set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 9.4 Benefit
This Preferred Securities Guarantee is solely for the benefit of
the Holders of the Preferred Securities and, subject to Section 3.1(a), is not
separately transferable from the Preferred Securities.
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SECTION 9.5 Governing Law
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF MICHIGAN
WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
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<PAGE> 20
THIS PREFERRED SECURITIES GUARANTEE is executed as of the day and
year first above written.
Consumers Energy Company,
as Guarantor
By:
---------------------------------------
Name: Alan M. Wright
Title: Senior Vice President and
Chief Financial Officer
The Bank of New York, as Preferred
Guarantee Trustee
By:
---------------------------------------
Name:
Title:
17
<PAGE> 1
EXHIBIT 4(n)
====================================
COMMON SECURITIES GUARANTEE AGREEMENT
CONSUMERS ENERGY COMPANY FINANCING III
Dated as of , 1999
====================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE I.
DEFINITIONS AND INTERPRETATION
<S> <C>
SECTION 1.1. Definitions and Interpretation...................................................2
ARTICLE II.
GUARANTEE
SECTION 2.1. Guarantee........................................................................2
SECTION 2.2. Waiver of Notice and Demand......................................................3
SECTION 2.3. Obligations Not Affected.........................................................3
SECTION 2.4. Rights of Holders................................................................3
SECTION 2.5. Guarantee of Payment.............................................................4
SECTION 2.6. Subrogation......................................................................4
SECTION 2.7. Independent Obligations..........................................................4
ARTICLE III.
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 3.1. Limitation of Transactions.......................................................4
SECTION 3.2. Ranking..........................................................................4
ARTICLE IV.
TERMINATION
SECTION 4.1. Termination......................................................................5
ARTICLE V.
MISCELLANEOUS
SECTION 5.1. Successors and Assigns...........................................................5
SECTION 5.2. Amendments.......................................................................5
SECTION 5.3. Notices..........................................................................5
SECTION 5.4. Benefit..........................................................................6
SECTION 5.5. Governing Law....................................................................6
</TABLE>
i
<PAGE> 3
COMMON SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Common Securities Guarantee"), dated as
of ________, 1999, is executed and delivered by Consumers Energy Company, a
Michigan corporation (the "Guarantor"), for the benefit of the Holders (as
defined herein) from time to time of the Common Securities (as defined herein)
of Consumers Energy Company Financing III, a Delaware statutory business trust
(the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of ____________, among the trustees of the Issuer named
therein, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing on the date hereof ________ common securities, having an aggregate
stated liquidation amount of $__________ designated the _____% Trust Originated
Common Securities (the "Common Securities");
WHEREAS, as incentive for the Holders to purchase the Common
Securities, the Guarantor desires to irrevocably and unconditionally agree, to
the extent set forth in this Common Securities Guarantee, to pay to the Holders
of the Common Securities the Guarantee Payments (as defined herein) and to make
certain other payments on the terms and conditions set forth herein; and
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Preferred Securities Guarantee") in substantially identical
terms to this Common Securities Guarantee for the benefit of the holders of the
Preferred Securities (as defined herein), except that if an Event of Default (as
defined in the Indenture), has occurred and is continuing, the rights of Holders
of the Common Securities to receive Guarantee Payments under this Common
Securities Guarantee are subordinated to the rights of holders of Preferred
Securities to receive Guarantee Payments under the Preferred Securities
Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Common Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Common Securities Guarantee
for the benefit of the Holders.
<PAGE> 4
ARTICLE I.
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions and Interpretation
In this Common Securities Guarantee, unless the context otherwise
requires:
(a) Capitalized terms used in this Common Securities Guarantee but
not defined in the preamble above have the respective meanings
assigned to them in this Section 1.1;
(b) Terms defined in the Declaration as of the date of execution of
this Common Securities Guarantee have the same meaning when used
in this Common Securities Guarantee unless otherwise defined in
this Common Securities Guarantee;
(c) a term defined anywhere in this Common Securities Guarantee has
the same meaning throughout;
(d) all references to "the Common Securities Guarantee" or "this
Common Securities Guarantee" are to this Common Securities
Guarantees modified, supplemented or amended from time to time;
(e) all references in this Common Securities Guarantee to Articles
and Sections are to Articles and Sections of this Common
Securities Guarantee unless otherwise specified; and
(f) a reference to the singular includes the plural and vice versa.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the Common Securities, to
the extent not paid or made by the Issuer: (i) any accrued and unpaid
Distributions (as defined in the Declaration) that are required to be paid on
such Common Securities to the extent the Issuer shall have funds available
therefor, (ii) the redemption price, including all accrued and unpaid
Distributions to the date of redemption (the "Redemption Price") to the extent
the Issuer has funds available therefor, with respect to any Common Securities
called for redemption by the Issuer, and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Issuer (other than in connection
with the distribution of Debentures to the Holders in exchange for Common
Securities as provided in the Declaration), the lesser of (a) the aggregate of
the liquidation amount and all accrued and unpaid Distributions on the Common
Securities to the date of payment, to the extent the Issuer shall have funds
available therefor, and (b) the amount of assets of the Issuer remaining
available for distribution to Holders in liquidation of the Issuer (in either
case, the "Liquidation Distribution"). If an Event of Default (as defined in the
Indenture), has occurred and is continuing, the rights of Holders of the Common
Securities to receive Guarantee Payments under this Common Securities Guarantee
are subordinated to the rights of holders of Preferred Securities to receive
Guarantee Payments.
"Holder" shall mean any holder, as registered on the books and records
of the Issuer, of any Common Securities.
2
<PAGE> 5
"Preferred Securities" mean the securities representing preferred
undivided beneficial interests in the assets of the Issuer.
ARTICLE II.
GUARANTEE
SECTION 2.1. Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Issuer), as and when due, regardless of any defense, right of
set-off or counterclaim which the Issuer may have or assert. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing the Issuer to pay
such amounts to the Holders.
SECTION 2.2. Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Common
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 2.3. Obligations Not Affected
Except as otherwise provided herein, the obligations, covenants,
agreements and duties of the Guarantor under this Common Securities Guarantee
shall in no way be affected or impaired by reason of the happening from time to
time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Common Securities to
be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or
any other sums payable under the terms of the Common Securities or the
extension of time for the performance of any other obligation under,
arising out of, or in connection with, the Common Securities (other than an
extension of time for payment of Distributions, Redemption Price,
Liquidation Distribution or other sum payable that results from the
extension of any interest payment period on the Debentures or any extension
of the maturity date of the Debentures permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Common
Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;
3
<PAGE> 6
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Issuer
or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Common
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor, it being the
intent of this Section 2.3 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain consent
of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 2.4. Rights of Holders
The Guarantor expressly acknowledges that any Holder of Common
Securities may institute a legal proceeding directly against the Guarantor to
enforce its rights under this Common Securities Guarantee, without first
instituting a legal proceeding against the Issuer or any other Person.
SECTION 2.5. Guarantee of Payment
This Common Securities Guarantee creates a guarantee of payment and not
of collection.
SECTION 2.6. Subrogation
The Guarantor shall be subrogated to all (if any) rights of the Holders
of Common Securities against the Issuer in respect of any amounts paid to such
Holders by the Guarantor under this Common Securities Guarantee; provided,
however, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any right that
it may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Common Securities
Guarantee, if, at the time of any such payment, any amounts are due and unpaid
under this Common Securities Guarantee. If any amount shall be paid to the
Guarantor in violation of the preceding sentence, the Guarantor agrees to hold
such amount in trust for the Holders and to pay over such amount to the Holders.
SECTION 2.7. Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Common
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Common
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 2.3 hereof.
4
<PAGE> 7
ARTICLE III.
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 3.1. Limitation of Transactions
So long as any Common Securities remain outstanding, if (i) the
Guarantor shall be in default with respect to its Guarantee Payments or other
obligations hereunder, or (ii) there shall have occurred any Event of Default
under the Indenture or an event of default under the Declaration, then (a) the
Guarantor shall not declare or pay any dividend on, or make any distributions
with respect to, or redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock, (b) the Guarantor shall not make any
payment of interest, principal or premium, if any, on or repay, repurchase or
redeem any debt securities (including guarantees) issued by the Guarantor which
rank pari passu with or junior to the Debentures or (c) the Guarantor shall not
make any guarantee payments with respect to the foregoing (other than pursuant
to the Preferred Securities Guarantee Agreement); provided, however, the
Guarantor may declare and pay a stock dividend where the dividend stock is the
same stock as that on which the dividend is being paid.
SECTION 3.2. Ranking
This Common Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to all other liabilities of the Guarantor, (ii) pari passu with the most
senior preferred or preference stock now or hereafter issued by the Guarantor
and with any guarantee now or hereafter entered into by the Guarantor in respect
of any preferred or preference stock of any Affiliate of the Guarantor, and
(iii) senior to the Guarantor's common stock.
ARTICLE IV.
TERMINATION
SECTION 4.1. Termination
This Common Securities Guarantee shall terminate (i) upon full payment
of the Redemption Price of all Common Securities, (ii) upon the distribution of
the Debentures to the Holders of all of the Common Securities, or (iii) or upon
full payment of the amounts payable in accordance with the Declaration upon
liquidation of the Issuer. Notwithstanding the foregoing, this Common Securities
Guarantee will continue to be effective or will be reinstated, as the case may
be, if at any time any Holder of Common Securities must restore payment of any
sums paid under the Common Securities or under this Common Securities Guarantee.
ARTICLE V.
MISCELLANEOUS
SECTION 5.1. Successors and Assigns
All guarantees and agreements contained in this Common Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
5
<PAGE> 8
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Common Securities then outstanding.
SECTION 5.2. Amendments
Except with respect to any changes which do not adversely affect the
rights of Holders (in which case no consent of Holders will be required), this
Common Securities Guarantee may only be amended with the prior approval of the
Holders of at least a majority in liquidation amount of all the outstanding
Common Securities. The provisions of Section 12.2 of the Declaration with
respect to meetings of Holders of the Securities apply to the giving of such
approval.
SECTION 5.3. Notices
All notices provided for in this Common Securities Guarantee shall be
in writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by registered or certified mail, as follows:
(a) if given to the Issuer, in care of the Regular Trustees at the
Issuer's mailing address set forth below (or such other address as the
Issuer may give notice of to the Holders of the Common Securities):
Consumers Energy Company Financing III
c/o Consumers Energy Company
212 West Michigan Avenue
Attention: Alan M. Wright
Thomas A. McNish
Facsimile (517) 788-2186
(b) if given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to
the Holders of the Common Securities):
Consumers Energy Company
212 West Michigan Avenue
Jackson, Michigan 49201
Attention: Alan M. Wright,
Senior Vice President and
Chief Financial Officer
Facsimile (517) 788-2186
(c) if given to any Holder of Common Securities, at the address set
forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
6
<PAGE> 9
SECTION 5.4. Benefit
This Common Securities Guarantee is solely for the benefit of the
Holders of the Common Securities and is not separately transferable from the
Common Securities.
SECTION 5.5. Governing Law
THIS COMMON SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF MICHIGAN.
7
<PAGE> 10
THIS COMMON SECURITIES GUARANTEE is executed as of the day and year
first above written.
CONSUMERS ENERGY COMPANY
By:
---------------------------------
Name: Alan M. Wright
Title: Senior Vice President
and Chief Financial Officer
<PAGE> 1
Exhibit (5)(a)
October 19, 1999
Consumers Energy Company
Consumers Energy Company Financing III
Consumers Energy Company Financing IV
212 West Michigan Avenue
Jackson, Michigan 49201
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
I refer to the Registration Statement on Form S-3 (the "Registration
Statement") being filed by Consumers Energy Company (the "Company"), Consumers
Energy Company Financing III and Consumers Energy Company Financing IV (each a
"Trust" and collectively, the "Trusts") with the Securities and Exchange
Commission (the "Commission"), under the Securities Act of 1933, as amended (the
"Securities Act"), relating to the registration of $525,000,000 of (i) trust
preferred securities of the Trusts; (ii) Subordinated Debentures of the Company
("Debentures"); (iii) Senior Notes of the Company ("Senior Notes"); and (iv) the
guarantee of the Preferred Securities by the Company ("Preferred Securities
Guarantee"). (The foregoing offered securities, collectively, the "Securities".)
The guarantee of the Preferred Securities is to be issued pursuant to the
Preferred Securities Guarantee Agreement (the "Preferred Securities Guarantee
Agreement") to be entered into between the Company and the Bank of New York, as
trustee (the "Guarantee Trustee"). The Debentures are to be issued under an
Indenture between the Company and the Bank of New York, as trustee (the
"Indenture Trustee"), and one or more supplemental indentures thereto
(collectively, the "Indenture"). The Senior Notes are to be issued under a
Senior Note Indenture between the Company and The Chase Manhattan Bank, as
trustee (the "Senior Note Trustee") which may include one or more supplemental
indentures thereto according to the terms of the Senior Notes Indenture.
Capitalized terms not otherwise defined herein have the respective meanings
specified in the Registration Statement.
In rendering this opinion, I have examined and relied upon a copy of
the Registration Statement. I have also examined, or have arranged for the
examination by an attorney or attorneys under my general supervision, originals,
or copies of originals certified to my satisfaction, of such agreements,
documents, certificates and other statements of governmental officials and other
instruments, and have examined such questions of law and have satisfied myself
as to such matters
<PAGE> 2
of fact as I have considered relevant and necessary as a basis for this opinion.
I have assumed the authenticity of all documents submitted to me as originals,
the genuineness of all signatures, the legal capacity of all natural persons and
the conformity with the original documents of any copies thereof submitted to me
for examination.
Based on the foregoing, it is my opinion that:
1. The Company is duly incorporated and validly existing under
the laws of the State of Michigan.
2. The Company has corporate power and authority (i) to execute
and deliver the Preferred Securities Guarantee Agreement, the
Indenture, and the Senior Note Indenture, (ii) to authorize
and sell the Debentures pursuant to the Indenture, and (iii)
to authorize and sell the Senior Notes pursuant to the Senior
Note Indenture.
3. The Preferred Securities Guarantee will be a legally issued
and binding obligation of the Company (except to the extent
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or
other similar laws affecting the enforcement of creditors'
rights generally and by the effect of general principals of
equity, regardless of whether enforceability is considered in
a proceeding in equity or at law) when (i) the Registration
Statement, as finally amended (including any necessary
post-effective amendment) shall have become effective under
the Securities Act; (ii) the Preferred Securities Guarantee
shall have been qualified under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and duly
executed and delivered by the Company and the Guarantee
Trustee; (iii) the Preferred Securities shall have been
legally issued, as provided in the applicable Declaration of
Trust; and (iv) the Preferred Securities Guarantee shall have
been duly executed and delivered as provided in the Preferred
Securities Guarantee Agreement.
4. The Debentures will be legally issued and binding obligations
of the Company (except to the extent enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws
affecting the enforcement of creditors' rights generally and
by the effect of general principles of equity, regardless of
whether enforceability is considered in a proceeding in equity
or at law) when (i) the Registration Statement, as finally
amended (including any necessary post-effective amendments)
shall have become effective under the Securities Act, and the
Indenture shall have been qualified under the Trust Indenture
Act, and duly executed and delivered by the Company and the
Indenture Trustee; (ii) the Company's Board of Directors or
duly authorized committee thereof shall have duly adopted
final resolutions authorizing the issuance and sale of the
Debentures, as contemplated by the Registration Statement and
the Indenture; and (iii) the Indenture under which such
Debentures are to be issued shall have been duly executed as
provided in such resolutions and the Debentures shall have
been duly executed and
<PAGE> 3
authenticated as provided in the Indenture, and shall have
been duly delivered to the purchasers thereof against payment
of the agreed consideration therefor.
5. The Senior Notes will be legally issued and binding
obligations of the Company (except to the extent
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or
other similar laws affecting the enforcement of creditors'
rights generally and by the effect of general principles of
equity, regardless of whether enforceability is considered in
a proceeding in equity or at law) when (i) the Registration
Statement, as finally amended (including any necessary
post-effective amendments) shall have become effective under
the Securities Act, and the Senior Note Indenture shall have
been qualified under the Trust Indenture Act, and duly
executed and delivered by the Company and the Senior Note
Trustee; (ii) the Company's Board of Directors or duly
authorized committee thereof shall have duly adopted final
resolutions authorizing the issuance and sale of the Senior
Notes, as contemplated by the Registration Statement and the
Senior Note Indenture; and (iii) the Senior Note Indenture
under which such Senior Notes are to be issued shall have been
duly executed as provided in such resolutions and the Senior
Notes shall have been duly executed and authenticated as
provided in the Senior Note Indenture, and shall have been
duly delivered to the purchasers thereof against payment of
the agreed consideration therefor.
For purposes of this opinion, I have assumed that there will be no
changes in the laws currently applicable to the Company and that such laws will
be the only laws applicable to the Company.
I do not find it necessary for the purposes of this opinion to cover,
and accordingly I express no opinion as to, the application of the securities or
blue sky laws of the various states to the execution and delivery of the
Preferred Securities Guarantee or the sale of the Securities.
I am a member of the bar of the State of Michigan and I express no
opinion as to the laws of any jurisdiction other than the State of Michigan and
the federal law of the United States of America. I note that the rights, duties
and obligations of the Indenture Trustee under the Indenture are stated to be
governed and construed in accordance with the laws of the State of New York.
However, for purposes of paragraph 4, I have assumed that the Indenture, as to
the rights, duties and obligations of the Indenture Trustee, is stated to be
governed by the laws of the State of Michigan.
I hereby consent to the filing of this opinion as an exhibit to the
Company's Registration Statement on Form S-3 relating to the Securities and to
all references to me included in or made a part of the Registration Statement.
Very truly yours,
/s/ Michael D. VanHemert
---------------------------------------
Michael D. VanHemert
<PAGE> 1
EXHIBIT 5(b)
[LETTERHEAD OF RICHARDS, LAYTON & FINGER P.A.]
October 18, 1999
Consumers Energy Company Financing III
c/o Consumers Energy Company
212 West Michigan Avenue
Jackson, Michigan 49201
Re: Consumers Energy Company Financing III
Ladies and Gentlemen:
We have acted as special Delaware counsel for Consumers Energy
Company, a Michigan corporation (the "Company"), and Consumers Energy Company
Financing III, a Delaware business trust (the "Trust"), in connection with the
matters set forth herein. At your request, this opinion is being furnished to
you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of October
12, 1999 (the "Certificate"), as filed in the office of the Secretary of State
of the State of Delaware (the "Secretary of State") on October 12, 1999;
(b) The Declaration of Trust of the Trust, dated as of October
12, 1999, among the Company, as Sponsor, and the trustees of the Trust named
therein;
(c) The Registration Statement (the "Registration Statement")
on Form S-3, including a preliminary prospectus (the "Prospectus") and a
preliminary prospectus
<PAGE> 2
Consumers Energy Company Financing III
October 18, 1999
Page 2
supplement (the "Prospectus Supplement") relating to the Trust Preferred
Securities of the Trust representing preferred undivided beneficial interests in
the assets of the Trust (each, a "Preferred Security" and collectively, the
"Preferred Securities"), as proposed to be filed by the Company and the Trust
with the Securities and Exchange Commission on or about October 18, 1999;
(d) A form of Amended and Restated Declaration of Trust of the
Trust, to be entered into among the Company, as Sponsor, the trustees of the
Trust named therein, and the holders, from time to time, of undivided beneficial
interests in the assets of the Trust (including Annex I and Exhibits A-1 and A-2
thereto) (the "Trust Agreement"), attached as an exhibit to the Registration
Statement; and
(e) A Certificate of Good Standing for the Trust, dated
October 18, 1999, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Trust Agreement and the Certificate are in full force and effect and have not
been amended, (ii) except to the extent provided in paragraph 1 below, the due
creation or due organization or due formation, as the case may be, and valid
existence in good standing of each party to the
<PAGE> 3
Consumers Energy Company Financing III
October 18, 1999
Page 3
documents examined by us under the laws of the jurisdiction governing its
creation, organization or formation, (iii) the legal capacity of natural persons
who are parties to the documents examined by us, (iv) that each of the parties
to the documents examined by us has the power and authority to execute and
deliver, and to perform its obligations under, such documents, (v) the due
authorization, execution and delivery by all parties thereto of all documents
examined by us, (vi) the receipt by each Person to whom a Preferred Security is
to be issued by the Trust (collectively, the "Preferred Security Holders") of a
Preferred Security Certificate for such Preferred Security and the payment for
the Preferred Security acquired by it, in accordance with the Trust Agreement
and the Registration Statement, and (vii) that the Preferred Securities are
issued and sold to the Preferred Security Holders in accordance with the Trust
Agreement and the Registration Statement. We have not participated in the
preparation of the Registration Statement and assume no responsibility for its
contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Business Trust Act.
2. The Preferred Securities will represent valid and, subject
to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
<PAGE> 4
Consumers Energy Company Financing III
October 18, 1999
Page 4
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Legal
Opinions" in the Prospectus and under the heading "Legal Matters" in the
Prospectus Supplement. In giving the foregoing consents, we do not thereby admit
that we come within the category of Persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger P.A.
WAY/JEJ
<PAGE> 1
EXHIBIT 5(c)
[LETTERHEAD OF RICHARDS, LAYTON & FINGER P.A.]
October 18, 1999
Consumers Energy Company Financing IV
c/o Consumers Energy Company
212 West Michigan Avenue
Jackson, Michigan 49201
Re: Consumers Energy Company Financing IV
Ladies and Gentlemen:
We have acted as special Delaware counsel for Consumers Energy
Company, a Michigan corporation (the "Company"), and Consumers Energy Company
Financing IV, a Delaware business trust (the "Trust"), in connection with the
matters set forth herein. At your request, this opinion is being furnished to
you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of October
12, 1999 (the "Certificate"), as filed in the office of the Secretary of State
of the State of Delaware (the "Secretary of State") on October 12, 1999;
(b) The Declaration of Trust of the Trust, dated as of October
12, 1999, among the Company, as Sponsor, and the trustees of the Trust named
therein;
(c) The Registration Statement (the "Registration Statement")
on Form S-3, including a preliminary prospectus (the "Prospectus") and a
preliminary prospectus
<PAGE> 2
Consumers Energy Company Financing IV
October 18, 1999
Page 2
supplement (the "Prospectus Supplement") relating to the Trust Preferred
Securities of the Trust representing preferred undivided beneficial interests in
the assets of the Trust (each, a "Preferred Security" and collectively, the
"Preferred Securities"), as proposed to be filed by the Company and the Trust
with the Securities and Exchange Commission on or about October 18, 1999;
(d) A form of Amended and Restated Declaration of Trust of the
Trust, to be entered into among the Company, as Sponsor, the trustees of the
Trust named therein, and the holders, from time to time, of undivided beneficial
interests in the assets of the Trust (including Annex I and Exhibits A-1 and A-2
thereto) (the "Trust Agreement"), attached as an exhibit to the Registration
Statement; and
(e) A Certificate of Good Standing for the Trust, dated
October 18, 1999, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Trust Agreement and the Certificate are in full force and effect and have not
been amended, (ii) except to the extent provided in paragraph 1 below, the due
creation or due organization or due formation, as the case may be, and valid
existence in good standing of each party to the
<PAGE> 3
Consumers Energy Company Financing IV
October 18, 1999
Page 3
documents examined by us under the laws of the jurisdiction governing its
creation, organization or formation, (iii) the legal capacity of natural persons
who are parties to the documents examined by us, (iv) that each of the parties
to the documents examined by us has the power and authority to execute and
deliver, and to perform its obligations under, such documents, (v) the due
authorization, execution and delivery by all parties thereto of all documents
examined by us, (vi) the receipt by each Person to whom a Preferred Security is
to be issued by the Trust (collectively, the "Preferred Security Holders") of a
Preferred Security Certificate for such Preferred Security and the payment for
the Preferred Security acquired by it, in accordance with the Trust Agreement
and the Registration Statement, and (vii) that the Preferred Securities are
issued and sold to the Preferred Security Holders in accordance with the Trust
Agreement and the Registration Statement. We have not participated in the
preparation of the Registration Statement and assume no responsibility for its
contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Business Trust Act.
2. The Preferred Securities will represent valid and, subject
to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
<PAGE> 4
Consumers Energy Company Financing IV
October 18, 1999
Page 4
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Legal
Opinions" in the Prospectus and under the heading "Legal Matters" in the
Prospectus Supplement. In giving the foregoing consents, we do not thereby admit
that we come within the category of Persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger P.A.
WAY/JEJ
<PAGE> 1
Exhibit 8
October 18, 1999
Consumers Energy Company
212 West Michigan Avenue
Jackson, Michigan 49201
Ladies and Gentlemen:
I am tax counsel to Consumers Energy Company, Consumers Energy Company Financing
III and Consumers Energy Company Financing IV. Reference is made to the
prospectus, (the "Prospectus"), which constitutes part of the registration
statement on Form S-3 ("Registration Statement"), to be filed by Consumers
Energy Company, Consumers Energy Company Financing III and Consumers Energy
Company Financing IV with the Securities and Exchange Commission on or about the
date hereof pursuant to the Securities Act of 1993, as amended, for the
registration of, among other things, Trust Originated Preferred Securities
("Preferred Securities") of Consumers Energy Company Financing III and Consumers
Energy Company Financing IV.
I am of the opinion that the statements set forth under the caption "Certain
United States Federal Income Tax Consequences" in the Prospectus constitute an
accurate description, in general terms, of certain United States federal income
tax considerations that may be relevant to the prospective purchasers of the
Preferred Securities.
I hereby consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Theodore J. Vogel
<PAGE> 1
Exhibit (12)
CONSUMERS ENERGY COMPANY
Ratio of Earnings to Fixed Charges
(Millions of Dollars)
<TABLE>
<CAPTION>
Twelve Months
Ended Years Ended December 31,
June 30, 1999 1998 1997 1996 1995 1994
-----------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
(b)
Earnings as defined (a)
Net income $ 360 $ 306 $ 321 $ 296 $ 255 $ 226
Income taxes 175 135 152 150 133 107
Exclude equity basis subsidiaries (53) (50) (49) (42) (38) (16)
Distributed income of equity investees 23 12
Fixed charges as defined, adjusted to
exclude capitalized interest of $1, $1, $2,
$2, $1 and $1 million for the twelve months
ended June 30, 1999 and for the years ended
December 31, 1998, 1997, 1996, 1995 and
1994, respectively 184 185 182 175 189 174
-----------------------------------------------------------
Earnings as defined $ 689 $ 588 $ 606 $ 579 $ 539 $ 491
===========================================================
Fixed charges as defined (a)
Interest on long-term debt $ 139 $ 138 $ 138 $ 139 $ 141 $ 136
Estimated interest portion of lease rental 10 10 9 9 10 10
Other interest charges 36 38 36 29 40 29
-----------------------------------------------------------
Fixed charges as defined $ 185 $ 186 $ 183 $ 177 $ 191 $ 175
===========================================================
Ratio of earnings to fixed charges 3.72 3.16 3.31 3.27 2.82 2.81
===========================================================
</TABLE>
NOTES:
(a) Earnings and fixed charges as defined in instructions for Item 503 of
Regulation S-K.
(b) Excludes a cumulative effect of change in accounting after-tax gain of $43
million; if included, ratio would be 3.52
<PAGE> 2
Exhibit (12)
CONSUMERS ENERGY COMPANY
Ratio of Earnings to Fixed Charges and Preferred
Securities Dividends and Distributions
(Millions of Dollars)
<TABLE>
<CAPTION>
Twelve Months
Ended Years Ended December 31,
June 30, 1999 1998 1997 1996 1995 1994
----------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
(b)
Earnings as defined (a)
Net income after dividends on preferred stock $ 327 $ 269 $ 284 $ 260 $ 227 $ 202
Income taxes 175 135 152 150 133 107
Exclude equity basis subsidiaries (53) (50) (49) (42) (38) (16)
Distributed income of equity investees 23 12
Fixed charges as defined, adjusted to
exclude capitalized interest of $1, $1, $2,
$2, $1 and $1 million for the twelve months
ended June 30, 1999 and for the years ended
December 31, 1998, 1997, 1996, 1995 and 1994,
respectively 217 222 219 211 217 198
-----------------------------------------------------------
Earnings as defined $ 689 $ 588 $ 606 $ 579 $ 539 $ 491
===========================================================
Fixed charges as defined (a)
Interest on long-term debt $ 139 $ 138 $ 138 $ 139 $ 141 $ 136
Estimated interest portion of lease rental 10 10 9 9 10 10
Other interest charges 36 38 36 29 40 29
Preferred stock dividend requirement 40 47 49 51 43 37
-----------------------------------------------------------
Fixed charges as defined $ 225 $ 233 $ 232 $ 228 $ 234 $ 212
===========================================================
Ratio of earnings to fixed charges and
preferred securities dividends and distributions 3.06 2.52 2.61 2.54 2.30 2.32
===========================================================
</TABLE>
NOTES:
(a) Earnings and fixed charges as defined in instructions for Item 503 of
Regulation S-K.
(b) Excludes a cumulative effect of change in accounting after-tax gain of $43
million; if included, ratio would be 2.81
<PAGE> 1
Exhibit (15)
To Consumers Energy Company:
We are aware that Consumers Energy Company has incorporated by
reference in this registration statement its Form 10-Q for the quarter ended
March 31, 1999 and its Form 10-Q for the quarter ended June 30, 1999, which
include our reports dated May 11, 1999 and August 12, 1999, respectively,
covering the unaudited interim financial information contained therein. Pursuant
to Regulation C of the Securities Act of 1933, this report is not considered a
part of the registration statement prepared or certified by our Firm or report
prepared or certified by our Firm within the meaning of Sections 7 and 11 of the
Act.
/s/ Arthur Andersen LLC
Detroit, Michigan,
October 15, 1999.
<PAGE> 1
Exhibit 23(c)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our reports dated
January 26, 1999 included or incorporated by reference in Consumers Energy
Company's Form 10-K for the year ended December 31, 1998 and to all references
to our Firm included in this registration statement.
/s/ Arthur Andersen LLC
Detroit, Michigan,
October 15, 1999.
<PAGE> 1
EXHIBIT 24
July 24, 1998
Mr. Alan M. Wright and
Mr. Thomas A. McNish
Consumers Energy Company
212 West Michigan Avenue
Jackson, MI 49201
We hereby appoint each of you lawful attorney for each of us and in each of our
names to sign and cause to be filed with the Securities and Exchange Commission
registration statement(s) and/or any amendment(s) thereto, including
post-effective amendment or amendments, to be accompanied in each case by a
prospectus or supplemental prospectus and any necessary exhibits with respect to
the issue and sale of up to $200 million of debt securities of the Company (plus
an additional 20% for the purpose of covering underwriters' over-allotments,
price adjustments, or sale of additional securities).
Very truly yours,
/s/ William T. McCormick, Jr. /s/ Victor J. Fryling
- ------------------------------------- --------------------------------------
William T. McCormick, Jr. Victor J. Fryling
/s/ John Deutch /s/ W. U. Parfet
- ------------------------------------- --------------------------------------
John M. Deutch William U. Parfet
/s/ James J. Duderstadt /s/ Percy A. Pierre
- ------------------------------------- --------------------------------------
James J. Duderstadt Percy A. Pierre
/s/ K. R. Flaherty /s/ K. L. Way
- ------------------------------------- --------------------------------------
Kathleen R. Flaherty Kenneth L. Way
/s/ Earl D. Holton /s/ K. Whipple
- ------------------------------------- --------------------------------------
Earl D. Holton Kenneth Whipple
/s/ John B. Yasinsky
----------------------------------
John B. Yasinsky
<PAGE> 2
October 23, 1998
Mr. Alan M. Wright and
Mr. Thomas A. McNish
Consumers Energy Company
212 West Michigan Avenue
Jackson, MI 49201
We hereby appoint each of you lawful attorney for each of us and in each of our
names to sign and cause to be filed with the Securities and Exchange Commission
registration statement(s) and/or any amendment(s) thereto, including
post-effective amendment or amendments, to be accompanied in each case by a
prospectus or supplemental prospectus and any necessary exhibits with respect to
the issue and sale of up to $175 million of debt securities of the Company (plus
an additional 20% for the purpose of covering underwriters' over-allotments,
price adjustments, or sale of additional securities).
Very truly yours,
/s/ William T. McCormick, Jr. /s/ Victor J. Fryling
- -------------------------------------- --------------------------------------
William T. McCormick, Jr. Victor J. Fryling
/s/ John M. Deutch /s/ W. U. Parfet
- -------------------------------------- --------------------------------------
John M. Deutch William U. Parfet
/s/ James J. Duderstadt /s/ Percy A. Pierre
- -------------------------------------- --------------------------------------
James J. Duderstadt Percy A. Pierre
/s/ K. R. Flaherty /s/ K. L. Way
- -------------------------------------- --------------------------------------
Kathleen R. Flaherty Kenneth L. Way
/s/ Earl D. Holton /s/ Whipple
- -------------------------------------- --------------------------------------
Earl D. Holton Kenneth Whipple
/s/ John B. Yasinsky
---------------------------------
John B. Yasinsky
<PAGE> 3
FEBRUARY 26, 1999
MR. ALAN M. WRIGHT AND
MR. THOMAS A. MCNISH
CONSUMERS ENERGY COMPANY
212 WEST MICHIGAN AVENUE
JACKSON, MI 49201
WE HEREBY APPOINT EACH OF YOU LAWFUL ATTORNEY FOR EACH OF US AND IN EACH OF OUR
NAMES TO SIGN AND CAUSE TO BE FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
REGISTRATION STATEMENT(S) AND/OR ANY AMENDMENT(S) THERETO, INCLUDING
POST-EFFECTIVE AMENDMENT OR AMENDMENTS, TO BE ACCOMPANIED IN EACH CASE BY A
PROSPECTUS OR SUPPLEMENTAL PROSPECTUS AND ANY NECESSARY EXHIBITS WITH RESPECT TO
THE ISSUE AND SALE OF UP TO $300 MILLION NET AGGREGATE PRINCIPAL AMOUNT OF DEBT
SECURITIES OF THE COMPANY (PLUS AN ADDITIONAL 20% FOR THE PURPOSE OF COVERING
UNDERWRITERS' OVER-ALLOTMENTS, PRICE ADJUSTMENTS, OR SALE OF ADDITIONAL
SECURITIES) INCLUDING BUT NOT LIMITED TO (I) UNSECURED SENIOR OR SUBORDINATED
DEBT SECURITIES, (II) TRUST SECURITIES OF ONE OR MORE TRUSTS, (III) DEBT
SECURITIES ISSUED SOLELY IN CONNECTION WITH THE SALE OF THE TRUST SECURITIES,
AND (IV) THE COMPANY'S GUARANTEE OF TRUST SECURITIES OF ONE OR MORE TRUSTS.
VERY TRULY YOURS,
/S/ WILLIAM T. MCCORMICK, JR. /S/ EARL D. HOLTON
- ------------------------------------- -------------------------------------
WILLIAM T. MCCORMICK, JR. EARL D. HOLTON
/S/ JOHN DEUTCH /S/ W. U. PARFET
- ------------------------------------- -------------------------------------
JOHN M. DEUTCH WILLIAM U. PARFET
/S/ JAMES J. DUDERSTADT /S/ PERCY A. PIERRE
- ------------------------------------- -------------------------------------
JAMES J. DUDERSTADT PERCY A. PIERRE
/S/ K. R. FLAHERTY /S/ K. L. WAY
- ------------------------------------- -------------------------------------
KATHLEEN R. FLAHERTY KENNETH L. WAY
/S/ V. J. FRYLING /S/ WHIPPLE
- ------------------------------------- -------------------------------------
VICTOR J. FRYLING KENNETH WHIPPLE
/S/ JOHN B. YASINSKY
-----------------------------
JOHN B. YASINSKY
<PAGE> 4
1
Extract from minutes of a meeting of the Board of Directors of Consumers Energy
Company (the "Company") held on July 24, 1998.
- - - - - - - - - -
Proposed Issue and Sale of Debt Securities
To have funds available to refund or refinance long-term debt
(including the tender or purchase of the Company's first mortgage bonds) and/or
for general corporate purposes, management recommended that the Company offer,
from time to time, in one or more series, at private placement or public sale,
up to $200 million net aggregate principal amount of senior notes (plus an
additional 20% for the purpose of covering underwriters' over-allotments, price
adjustments, or sale of additional securities). Each series of notes could
initially be secured by the issuance of first mortgage bonds under the Company's
Trust Indenture dated as of September 1, 1945, as amended and supplemented, with
The Chase Manhattan Bank as trustee. The first mortgage bonds could be issued to
The Chase Manhattan Bank as the trustee of the Indenture dated as of February 1,
1998, as supplemented, as security for the payment of principal and interest on
the senior notes. Any of the foregoing securities issued in a private placement
may be offered with registration rights. Management further recommended the
appointment of a Special Committee of the Board of Directors to take any and all
action to facilitate the proposed offering(s) and to assure that the securities
are sold for the best price and on the best terms obtainable in the judgment of
a Special Committee of the Board of Directors appointed for such purposes. The
matter was fully discussed.
Upon motion duly made and seconded, the following resolutions were
thereupon unanimously adopted:
RESOLVED: That the Board of Directors authorizes the issue
and sale, from time to time, in one or more series, at private
placement or public sale, of up to $200 million net aggregate principal
amount of senior debt (plus an additional 20% for the purpose of
covering underwriters' over-allotments, price adjustments, or sale of
additional securities) in the form of notes or bonds (the "Notes")
under the Company's Indenture dated as of February 1, 1998, as
supplemented, with The Chase Manhattan Bank as trustee (the
"Indenture") and may be secured by the issuance of one or more series
of first mortgage bonds (the "First Mortgage Bonds") under the
Company's Trust Indenture dated as of September 1, 1945, as amended and
supplemented, with The Chase Manhattan Bank as trustee (the "Mortgage
Indenture"), as discussed at the meeting, each series to be sold for
the best price and on the best terms obtainable in the judgment of a
Special Committee of the Board of Directors appointed for such
purposes; and
RESOLVED FURTHER: That Victor J. Fryling, with William T.
McCormick, Jr. as alternate, is appointed to a Special Committee of the
Board of Directors, which shall have the full authority to act on
behalf of the Board for the purposes stated in the foregoing resolution
with respect to (a) determining the offering price, any underwriting or
placement discounts and the proceeds to the
<PAGE> 5
2
Company of the proposed issue and sale of the Notes, (b) approving the
form of any supplemental indentures or Company orders pursuant to the
Indenture and the form of the Notes and requesting the trustee for the
Indenture to execute any such supplemental indentures or orders and
authenticate such Notes, (c) approving the form of any supplemental
indenture to the Mortgage Indenture and the form of the First Mortgage
Bonds and requesting the trustee for the Mortgage Indenture to execute
any such supplemental indentures and authenticate such First Mortgage
Bonds, and (d) authorizing the officers to take such further action as
they may deem advisable to carry out the issue and sale of such Notes
and the issue of First Mortgage Bonds as security therefor; and
RESOLVED FURTHER: That the officers of the Company, and
each of them, are authorized and empowered in their discretion, on its
behalf, to prepare, execute and file, or cause to be prepared and
filed, one or more Registration Statements with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (a
"Registration Statement"), together with all documents required as
exhibits to such Registration Statement with respect to the issue and
sale of the Notes, in such form as may be approved by the officers
executing the same, and to do all other things necessary to make such
Registration Statement effective, including the execution and filing of
any necessary or appropriate amendments, including post-effective
amendments; and
RESOLVED FURTHER: That any Notes issued in a private
placement may be offered with registration rights permitting the
Company to (i) file a Registration Statement for the resale of such
Notes, or (ii) exchange, in a registered exchange offer pursuant to a
Registration Statement, such Notes for substantially similar notes; and
RESOLVED FURTHER: That the officers of the Company, and
each of them, are authorized and directed to determine the
jurisdictions in which appropriate action shall be taken to qualify or
register for sale all or such part of the Notes of the Company as they
may deem advisable; to perform on behalf of the Company any and all
such acts as they may deem necessary or advisable in order to comply
with the applicable laws of any such jurisdictions, and in connection
therewith, to execute and file all requisite papers and documents,
including but not limited to, applications, reports, surety bonds,
irrevocable consents and appointments of attorneys for service of
process; and the execution by such officers or any of them of any such
paper or document or the doing by them of any act in connection with
the foregoing matters shall conclusively establish their authority
therefor from the Company; and
RESOLVED FURTHER: That the officers of the Company, and
each of them, are authorized and empowered, in their discretion, to
cause the Company to make application(s) to the New York Stock
Exchange, or such other exchange as the officers may decide, for the
listing on such Exchange, upon notice of issuance of the Notes, and to
represent the Company in connection with any application(s) for listing
<PAGE> 6
3
and to appear on behalf of the Company before such official or body of
said Exchange as may be appropriate, with authority to make such
changes, upon the advice of counsel, in said application(s) or in any
agreements or other papers relating thereto as may be necessary or
appropriate to conform with the requirements for listing; and
RESOLVED FURTHER: That the officers of the Company, and
each of them, are authorized and empowered to execute one or more
underwriting or purchase agreements, registration rights agreement,
securities purchase or sale option agreement, calculation agency
agreement, or any other type of agreement between the Company and the
underwriter, placement agent or representatives or affiliates of the
underwriters or agents or any other purchaser appointed or named in
such agreement or agreements, as they may deem appropriate for the
proposed sale of the Notes; and
RESOLVED FURTHER: That the officers of the Company, and
each of them, are authorized and empowered to do and to perform, or
cause to be done and performed, all such acts, deeds, and things and to
make, execute, and deliver, or cause to be made, executed, and
delivered, all such agreements, undertakings, documents, instruments,
or certificates in the name and on the behalf of the Company or
otherwise as each such officer may deem necessary or appropriate to
effectuate or carry out fully the purpose and intent of the foregoing
resolutions, including the performance of the obligations of the
Company under purchase agreements, underwriting agreements and sales
agreements, indentures, registration rights agreements, securities
purchase or sale option agreements, calculation agency agreements or
other similar agreements, certificates or declarations, the Notes, any
Registration Statement or any other agreements related to the issue and
sale of the Notes and the issue of the First Mortgage Bonds as security
therefor; and
RESOLVED FURTHER: That each Note issued by the Company may
be secured by the First Mortgage Bonds in principal amounts equal to
the Notes; and
RESOLVED FURTHER: That the officers of the Company, and
each of them, in their discretion, on its behalf, are authorized to
take such action as may be necessary or desirable, including but not
limited to, the execution and delivery on behalf of the Company of one
or more supplemental indentures to the Mortgage Indenture and the
execution, delivery and authentication required with respect to the
proposed issuance of the First Mortgage Bonds, with such interest
rates, maturities and other terms as the officers may consider
advisable to facilitate the delivery thereof as security for the
Company's obligation to make payments required under the transactions
contemplated by the above resolutions, which First Mortgage Bonds will
be payable only upon the events expressly designated in the Mortgage
Indenture; and
<PAGE> 7
4
RESOLVED FURTHER: That the February 27, 1998 Board of
Directors authorization of the issuance and sale or guarantee of up to
$950 million of long-term securities solely for the purpose of
refunding or refinancing existing long-term securities be amended so
that up to $240 million of that amount may be used for general
corporate purposes, and that an additional $200 million of First
Mortgage Bonds may be issued solely for the purpose of providing
security for the $200 million of long-term securities to be issued and
sold for general corporate purposes that were the subject of the
February 27, 1998 Board of Directors authorization; and
RESOLVED FURTHER: That the officers of the Company, and
each of them, are authorized and empowered to sign, seal and deliver
such papers and documents, and to do or cause to be done all acts and
things which any of them may consider necessary or advisable to carry
out the intent and purposes of all of the foregoing resolutions.
- - - - - - - - - -
I, Joyce H. Norkey, Assistant Secretary of Consumers Energy Company, CERTIFY
that the foregoing is a true and correct copy of resolutions duly and regularly
adopted at a meeting of the Board of Directors of Consumers Energy Company duly
held on July 24, 1998 at which a quorum was in attendance and voting throughout,
and that said resolutions have not since been rescinded but are still in full
force and effect.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the
Company this day of October 1999.
(S E A L)
/s/ Joyce H. Norkey
--------------------------------
Joyce H. Norkey
Assistant Secretary
<PAGE> 8
1
Extract from minutes of a meeting of the Board of Directors of Consumers Energy
Company (the "Company") held on October 23, 1998.
- - - - - - - - - -
Proposed Issue and Sale of Debt Securities
At a meeting of the Board of Directors held on July 24, 1998,
resolutions were adopted authorizing the issue and sale of $200 million net
aggregate principal amount of senior notes (plus an additional 20% for the
purpose of covering underwriters' over-allotments, price adjustments, or sale of
additional securities). To have funds available to refund or refinance long-term
debt (including the tender or purchase of the Company's first mortgage bonds)
and/or for general corporate purposes, management recommended that the Company
offer, from time to time, in one or more series, at private placement or public
sale, up to an additional $175 million net aggregate principal amount of senior
notes (plus an additional 20% for the purpose of covering underwriters'
over-allotments, price adjustments, or sale of additional securities) (the
"Notes"), totaling $375 million available for issuance and sale. It is
anticipated that $150 million of Notes will be offered for sale today resulting
in a remaining amount of $225 million available for issuance and sale. Each
series of Notes could initially be secured by the issuance of first mortgage
bonds under the Company's Trust Indenture dated as of September 1, 1945, as
amended and supplemented, with The Chase Manhattan Bank as trustee. The first
mortgage bonds could be issued to The Chase Manhattan Bank as the trustee of the
Indenture dated as of February 1, 1998, as supplemented, as security for the
payment of principal and interest on the Notes. Each series of Notes could be
issued with an insurance policy to provide credit enhancement to sell the Notes.
Any of the foregoing securities issued in a private placement may be offered
with registration rights. Management further recommended the appointment of a
Special Committee of the Board of Directors to take any and all action to
facilitate the proposed offering(s) and to assure that the securities are sold
for the best price and on the best terms obtainable in the judgment of a Special
Committee of the Board of Directors appointed for such purposes. The matter was
fully discussed.
Upon motion duly made and seconded, the following resolutions were
thereupon unanimously adopted:
RESOLVED: That the Board of Directors authorizes the issue
and sale, from time to time, in one or more series, at private
placement or public sale, of up to an additional $175 million net
aggregate principal amount of senior debt (plus an additional 20% for
the purpose of covering underwriters' over-allotments, price
adjustments, or sale of additional securities) in the form of notes or
bonds (the "Notes") under the Company's Indenture dated as of February
1, 1998, as supplemented, with The Chase Manhattan Bank as trustee (the
"Indenture") and the Notes may be secured by the issuance of one or
more series of first mortgage bonds (the "First Mortgage Bonds") under
the Company's Trust Indenture dated as of September 1, 1945, as amended
and supplemented, with The Chase Manhattan Bank as trustee (the
"Mortgage Indenture"), and the Notes may be sold with an insurance
policy or policies as discussed at the meeting, each series to be sold
for the best price and on the best terms obtainable in the judgment of
a Special Committee of the Board of Directors appointed for such
purposes; and
<PAGE> 9
2
RESOLVED FURTHER: That Victor J. Fryling, with William T.
McCormick, Jr. as alternate, is appointed to a Special Committee of the
Board of Directors, which shall have the full authority to act on
behalf of the Board for the purposes stated in the foregoing resolution
with respect to (a) determining the offering price, any underwriting or
placement discounts and the proceeds to the Company of the proposed
issue and sale of the Notes, (b) approving the form of any supplemental
indentures or Company orders pursuant to the Indenture and the form of
the Notes, and (c) approving the form of any supplemental indenture to
the Mortgage Indenture and the form of the First Mortgage Bonds, and
(d) authorizing the officers to take such further action as they may
deem advisable to carry out the issue and sale of such Notes and the
issue of First Mortgage Bonds as security therefor, including but not
limited to requesting the trustee for the Indenture to execute any such
supplemental indentures or orders and authenticate such Notes and
requesting the trustee for the Mortgage Indenture to execute any such
supplemental indentures and authenticate such First Mortgage Bonds; and
RESOLVED FURTHER: That the officers of the Company, and
each of them, are authorized and empowered in their discretion, on its
behalf, to prepare, execute and file, or cause to be prepared and
filed, one or more Registration Statements with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (a
"Registration Statement"), together with all documents required as
exhibits to such Registration Statement with respect to the issue and
sale of the Notes, in such form as may be approved by the officers
executing the same, and to do all other things necessary to make such
Registration Statement effective, including the execution and filing of
any necessary or appropriate amendments, including post-effective
amendments; and
RESOLVED FURTHER: That any Notes issued in a private
placement may be offered with registration rights permitting the
Company to (i) file a Registration Statement for the resale of such
Notes, or (ii) exchange, in a registered exchange offer pursuant to a
Registration Statement, such Notes for substantially similar notes; and
RESOLVED FURTHER: That the officers of the Company, and
each of them, are authorized and directed to determine the
jurisdictions in which appropriate action shall be taken to qualify or
register for sale all or such part of the Notes of the Company as they
may deem advisable; to perform on behalf of the Company any and all
such acts as they may deem necessary or advisable in order to comply
with the applicable laws of any such jurisdictions, and in connection
therewith, to execute and file all requisite papers and documents,
including but not limited to, applications, reports, surety bonds,
irrevocable consents and appointments of attorneys for service of
process; and the execution by such officers or any of them of any such
paper or document or the doing by them of any act in connection with
the foregoing matters shall conclusively establish their authority
therefor from the Company; and
<PAGE> 10
3
RESOLVED FURTHER: That the officers of the Company, and
each of them, are authorized and empowered, in their discretion, to
cause the Company to make application(s) to the New York Stock
Exchange, or such other exchange as the officers may decide, for the
listing on such Exchange, upon notice of issuance of the Notes, and to
represent the Company in connection with any application(s) for listing
and to appear on behalf of the Company before such official or body of
said Exchange as may be appropriate, with authority to make such
changes, upon the advice of counsel, in said application(s) or in any
agreements or other papers relating thereto as may be necessary or
appropriate to conform with the requirements for listing; and
RESOLVED FURTHER: That the officers of the Company, and
each of them, are authorized and empowered to execute one or more
underwriting or purchase agreements, registration rights agreement,
securities purchase or sale option agreement, calculation agency
agreement, or any other type of agreement between the Company and the
underwriter, placement agent or representatives or affiliates of the
underwriters or agents or any other purchaser appointed or named in
such agreement or agreements, as they may deem appropriate for the
proposed sale of the Notes; and
RESOLVED FURTHER: That the officers of the Company, and
each of them, are authorized and empowered to do and to perform, or
cause to be done and performed, all such acts, deeds, and things and to
make, execute, and deliver, or cause to be made, executed, and
delivered, all such agreements, undertakings, documents, instruments,
or certificates in the name and on the behalf of the Company or
otherwise as each such officer may deem necessary or appropriate to
effectuate or carry out fully the purpose and intent of the foregoing
resolutions, including the performance of the obligations of the
Company under purchase agreements, underwriting agreements and sales
agreements, indentures, registration rights agreements, securities
purchase or sale option agreements, calculation agency agreements or
other similar agreements, certificates or declarations, the Notes, any
Registration Statement or any other agreements related to the issue and
sale of the Notes and the issue of the First Mortgage Bonds as security
therefor; and
RESOLVED FURTHER: That each Note issued by the Company may
be secured by the First Mortgage Bonds in principal amounts equal to
the Notes; and
RESOLVED FURTHER: That the officers of the Company, and
each of them, in their discretion, on its behalf, are authorized to
take such action as may be necessary or desirable, including but not
limited to, the execution and delivery on behalf of the Company of one
or more supplemental indentures to the Mortgage Indenture and the
execution, delivery and authentication required with respect to the
proposed issuance of the First Mortgage Bonds, with such interest
rates, maturities and other terms as the officers may consider
advisable to facilitate the delivery thereof as security for the
Company's obligation to make payments required under
<PAGE> 11
4
the transactions contemplated by the above resolutions, which First
Mortgage Bonds will be payable only upon the events expressly
designated in the Mortgage Indenture; and
RESOLVED FURTHER: That a resolution adopted at a meeting
of the Board of Directors held on July 24, 1998 amending the February
27, 1998 Board authorization for the issuance and sale or guarantee of
up to $950 million long-term securities solely for the purpose of
refunding or refinancing existing long-term securities, is hereby
rescinded; and
RESOLVED FURTHER: That a resolution adopted at a meeting
of the Board of Directors held on February 27, 1998 authorizing the
issuance and sale or guarantee of up to $950 million of long-term
securities solely for the purpose of refunding or refinancing existing
long-term securities and the authorization of up to $950 million of
first mortgage bonds under the Company's Trust Indenture dated as of
September 1, 1945, as amended and supplemented, with The Chase
Manhattan Bank as Trustee, solely for the purpose of providing security
for such new long-term securities, is amended so that such long-term
securities and first mortgage bonds issued as security therefor may be
issued for general corporate purposes or for the purpose of refunding
or refinancing existing long-term securities; and
RESOLVED FURTHER: That the officers of the Company, and
each of them, are authorized and empowered to sign, seal and deliver
such papers and documents, and to do or cause to be done all acts and
things which any of them may consider necessary or advisable to carry
out the intent and purposes of all of the foregoing resolutions.
- - - - - - - - - -
I, Joyce H. Norkey, Assistant Secretary of Consumers Energy Company, CERTIFY
that the foregoing is a true and correct copy of resolutions duly and regularly
adopted at a meeting of the Board of Directors of Consumers Energy Company duly
held on October 23, 1998 at which a quorum was in attendance and voting
throughout, and that said resolutions have not since been rescinded but are
still in full force and effect.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the
Company this day of October 1999.
(S E A L)
/s/ Joyce H. Norkey
-------------------------------
Joyce H. Norkey
Assistant Secretary
<PAGE> 12
1
Extract from Minutes of a Meeting of the Board of Directors of Consumers Energy
Company (the "Company"), held February 26, 1999.
- - - - - - - - - -
Proposed Issue and Sale of Securities
At meetings of the Board of Directors held on July 24, 1998 and
October 23, 1998, respectively, resolutions were adopted authorizing the Company
to issue and sell, from time to time, at private placement or public sale, upon
competitive bidding or a negotiated basis, or otherwise, debt securities in the
form of notes or bonds, aggregating $375 million, upon such terms as the Board
of Directors of the Company shall deem appropriate. The amount of such
securities remaining for issue and sale pursuant to the resolutions adopted by
the Board on July 24, 1998 and October 23, 1998, respectively, is $225 million.
In addition to the $225 million of such securities remaining to be issued and
sold, management of the Company recommended that the Company offer, from time to
time, at private placement or public sale, up to $300 million net aggregate
principal amount of securities of the Company (plus an additional 20% for the
purpose of covering underwriters' over-allotments, price adjustments, or sale of
additional securities), including but not limited to (i) unsecured senior or
subordinated debt securities, (ii) trust securities ("Trust Securities") of one
or more trusts (the "Trust"), (iii) debt securities issued solely in connection
with the sale of the Trust Securities, and (iv) the Company's guarantee of Trust
Securities of the Trust. One or more Trusts may be formed by the Company. The
Trust may offer Trust Securities representing interests in the Trust or Trust
assets. Any of the foregoing securities issued in a private placement may be
offered with registration rights. Management further recommended the appointment
of a Special Committee of the Board of Directors to take any and all action to
facilitate the proposed offering(s) and to assure that the securities are sold
for the best price and on the best terms obtainable in the judgment of a Special
Committee of the Board of Directors appointed for such purposes. The matter was
discussed fully.
Upon motion duly made and seconded, the following resolutions
were thereupon unanimously adopted:
RESOLVED: That the Board of Directors authorizes the issue
and sale, from time to time, at private placement or public sale, of up
to $300 million net aggregate principal amount of securities of the
Company (plus an additional 20% for the purpose of covering
underwriters' over-allotments, price adjustments, or sale of additional
securities), including but not limited to (i) unsecured senior or
subordinated debt securities, (ii) Trust Securities ("Trust Securities")
of one or more Trusts (the "Trust"), (iii) debt securities issued solely
in connection with the sale of the Trust Securities and (iv) the
Company's guarantee of Trust Securities of the Trust (collectively, the
"Securities") as discussed at the meeting, each to be sold for the best
price and on the best terms obtainable in the judgment of a Special
Committee of the Board of Directors appointed for such purposes; and
RESOLVED FURTHER: That Victor J. Fryling, with William T.
McCormick, Jr., as alternate, is appointed to a Special Committee of
this Board of Directors, which shall have the full authority to act on
behalf of the Board for the purposes stated in the foregoing resolution
with respect to (a) determining the offering price, any underwriting
discounts and the proceeds to the Company of the proposed issue and sale
of the Securities and (b) authorizing the officers to take such further
actions as they may deem advisable to carry out the issue and sale of
such Securities; and
RESOLVED FURTHER: That Messrs. Alan M. Wright, Thomas A.
McNish and Martin R. Walicki (or successors, appointed in writing, by
the Chairman of the Board, Vice Chairman of the Board or the President
of the Company, and filed in the Corporate Secretary's office) are
appointed to serve, at the Company's request, and are authorized and
empowered, for and on behalf of the Company, to act as the Company's
<PAGE> 13
2
trustees in accordance with the trust agreement, and any amendments
thereto, of the Trust; and
RESOLVED FURTHER: That the officers of the Company, and
each of them, are authorized and empowered, for and on behalf of the
Company, to establish one or more Trusts, for the purpose of issuing and
selling Trust Securities; and
RESOLVED FURTHER: That the above-designated Company
trustees, and each of them, are authorized and empowered, to execute and
deliver all documents, papers, applications, agreements and instruments,
including but not limited to, a declaration of trust and/or trust
agreement, and any amendments thereto, and to do all acts and things
they deem necessary or appropriate and as counsel may advise to carry
out the intent and purpose of the foregoing resolutions; and
RESOLVED FURTHER: That the officers of the Company, and
each of them, are authorized and empowered to prepare, execute, and
file, or cause to be prepared and filed, one or more Registration
Statements with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, (each a "Registration Statement")
together with all documents required as exhibits to such Registration
Statement, with respect to the issue and sale of the Securities, such
registration to be in such form as may be approved by the officers
executing the same, and to do all other things necessary to make such
registration effective, including the execution and filing of any
necessary or appropriate amendments, including post-effective
amendments; and
RESOLVED FURTHER: That any Securities issued in a private
placement may be offered with registration rights permitting the Company
to (i) file a Registration Statement for the resale of such Securities,
or (ii) exchange, in a registered exchange offer pursuant to a
Registration Statement, such Securities for substantially similar
securities; and
RESOLVED FURTHER: That the officers of the Company, and
each of them, are authorized and empowered to appoint an institutional
trustee, and any agent or trustees necessary or appropriate in
connection with the issuance and sale of the Securities; and
RESOLVED FURTHER: That the officers of the Company, and
each of them, are authorized and directed to determine the jurisdictions
in which appropriate action shall be taken to qualify or register for
sale all or such part of the Securities of the Company as they may deem
advisable; to perform on behalf of the Company any and all such acts as
they may deem necessary or advisable in order to comply with the
applicable laws of any such jurisdictions, and in connection therewith,
to execute and file all requisite papers and documents, including but
not limited to, applications, reports, surety bonds, irrevocable
consents and appointments of attorneys for service of process; and the
execution by such officers or any of them of any such paper or document
or the doing by them of any act in connection with the foregoing matters
shall conclusively establish their authority therefor from the Company;
and
RESOLVED FURTHER: That the officers of the Company, and
each of them, are authorized and empowered to cause the Company to make
application to the New York Stock Exchange, or on such other exchange as
the officers may decide, for the listing on such Exchange, upon notice
of issuance of the Securities, and to represent the Company in
connection with any application or applications for listing and to
appear on behalf of the Company before such official or body of said
Exchange as may be appropriate, with authority to make such changes,
upon the advice of counsel, in said application(s) or in any agreements
or other papers relating thereto as may be necessary or appropriate to
conform with the requirements for listing; and
<PAGE> 14
3
RESOLVED FURTHER: That the officers of the Company, and
each of them, are authorized and empowered to execute and deliver on
behalf of the Company (i) an indenture or indentures, including one or
more supplements to any indenture, in the form approved or authorized by
the Special Committee under the corporate seal to be thereto affixed and
attested, with the trustee or trustees appointed, such indenture or
indentures, supplement or supplements and (ii) Company guarantee or
guarantees relating to the Trust Securities, each to be in such form and
content and bear such date as may be approved by the officer of the
Company executing the same, such approval to be conclusively evidenced
by the execution of said indenture or indentures, or supplement or
supplements, guarantee or guarantees; and
RESOLVED FURTHER: That the officers of the Company, and
each of them, are authorized and empowered to execute one or more
underwriting agreements, purchase agreements, or any other type of
agreements between the Company and the underwriter or representatives of
the underwriters (or any agents) or an other purchaser appointed or
named in such agreement or agreements, as they may deem appropriate for
the proposed sale of the Securities; and
RESOLVED FURTHER: That the officers of the Company, and
each of them, are authorized and empowered to do and to perform, or
cause to be done and performed, all such acts, deeds, and things and to
make, execute, and deliver, or cause to be made, executed, and
delivered, all such agreements, undertakings, documents, instruments, or
certificates in the name and on the behalf of the Company or otherwise
as each such officer may deem necessary or appropriate to effectuate or
carry out fully the purpose and intent of the foregoing resolutions,
including the performance of the obligations of the Company under
purchase agreements, underwriting agreements and sales agreements,
indentures, registration rights agreements, or other similar agreements,
certificates or declarations, the Securities, any Registration Statement
or any other agreements related to the issuance and sale of the
Securities.
- - - - - - - - - -
I, Joyce H. Norkey, Assistant Secretary of Consumers Energy Company, CERTIFY
that the foregoing is a true and correct copy of resolutions duly and regularly
adopted at a meeting of the Board of Directors of Consumers Energy Company duly
held on February 26, 1999 at which a quorum was in attendance and voting
throughout, and that said resolutions have not since been rescinded but are
still in full force and effect.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the
Company this 1st day of October 1999.
(S E A L) /s/ Joyce H. Norkey
---------------------------------------------
Joyce H. Norkey
Assistant Secretary
<PAGE> 1
EXHIBIT 25(a)
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
CONSUMERS ENERGY COMPANY
(Exact name of obligor as specified in its charter)
MICHIGAN 38-2726431
DELAWARE TO BE APPLIED FOR
DELAWARE TO BE APPLIED FOR
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
212 WEST MICHIGAN AVENUE
JACKSON, MICHIGAN 49201
(Address of principal executive offices) (Zip Code)
-------------------------------------------
SENIOR NOTES
(Title of the indenture securities)
-------------------------------------------------------------------
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 14th day of September, 1999.
THE CHASE MANHATTAN BANK
By /s/ James P. Freeman
--------------------
James P. Freeman
Vice President
-3-
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1999, in
accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of
the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin .............................................................. $ 13,119
Interest-bearing balances ...................................................... 6,761
Securities:
Held to maturity securities ......................................................... 892
Available for sale securities ....................................................... 42,965
Federal funds sold and securities purchased under
agreements to resell ........................................................... 32,277
Loans and lease financing receivables:
Loans and leases, net of unearned income $130,602
Less: Allowance for loan and lease losses 2,551
Less: Allocated transfer risk reserve 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ......................................................... 128,051
Trading Assets ...................................................................... 41,426
Premises and fixed assets (including capitalized
leases) ........................................................................ 3,190
Other real estate owned.............................................................. 28
Investments in unconsolidated subsidiaries and
associated companies ........................................................... 182
Customers' liability to this bank on acceptances
outstanding .................................................................... 901
Intangible assets ................................................................... 2,010
Other assets ........................................................................ 14,567
--------
TOTAL ASSETS ........................................................................ $286,369
========
</TABLE>
-4-
<PAGE> 5
LIABILITIES
<TABLE>
<CAPTION>
<S> <C>
Deposits
In domestic offices ................................................................ $ 101,979
Noninterest-bearing .......................... $ 42,241
Interest-bearing ............................. 59,738
------
In foreign offices, Edge and Agreement
subsidiaries and IBF's ............................................................. 76,395
Noninterest-bearing .......................... $ 4,645
Interest-bearing ............................. 71,750
Federal funds purchased and securities sold under agree-
ments to repurchase ..................................................................... 36,604
Demand notes issued to the U.S. Treasury ................................................ 1,001
Trading liabilities ..................................................................... 30,287
Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less ...................................... 3,606
With a remaining maturity of more than one year .
through three years ......................................................... 14
With a remaining maturity of more than three years ................................. 91
Bank's liability on acceptances executed and outstanding ................................ 901
Subordinated notes and debentures ....................................................... 5,427
Other liabilities ....................................................................... 11,247
TOTAL LIABILITIES ....................................................................... 267,552
---------
EQUITY CAPITAL
Perpetual preferred stock and related surplus ........................................... 0
Common stock ............................................................................ 1,211
Surplus (exclude all surplus related to preferred stock) ............................... 11,016
Undivided profits and capital reserves .................................................. 7,317
Net unrealized holding gains (losses)
on available-for-sale securities ........................................................ (743)
Accumulated net gains (losses) on cash flow hedges ...................................... 0
Cumulative foreign currency translation adjustments ..................................... 16
TOTAL EQUITY CAPITAL .................................................................... 18,817
---------
TOTAL LIABILITIES AND EQUITY CAPITAL .................................................... $ 286,369
=========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
WILLIAM B. HARRISON, JR. ) DIRECTORS
FRANK A. BENNACK, JR. )
-5-
<PAGE> 1
EXHIBIT 25(b)
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
-----------------
CONSUMERS ENERGY COMPANY
(Exact name of obligor as specified in its charter)
Michigan 38-2726431
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
Fairlane Plaza South
330 Town Center Drive, Suite 1100
Dearborn, Michigan 48126
(Address of principal executive offices) (Zip code)
--------------------------
Subordinated Notes
(Title of the indenture securities)
================================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- ----------------------------------------------------------
Name Address
- ----------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and
Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza,
New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits
1a and 1b to Form T-1 filed with Registration Statement No.
33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-2-
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 4th day of October, 1999.
THE BANK OF NEW YORK
By: /s/MICHELE L. RUSSO
----------------------
Name: MICHELE L. RUSSO
Title: ASSISTANT TREASURER
<PAGE> 4
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1999,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
In Thousands
ASSETS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin... $5,597,807
Interest-bearing balances............................ 4,075,775
Securities:
Held-to-maturity securities.......................... 785,167
Available-for-sale securities........................ 4,159,891
Federal funds sold and Securities purchased under
agreements to resell................................. 2,476,963
Loans and lease financing receivables:
Loans and leases, net of unearned
income............................................. 38,028,772
LESS: Allowance for loan and
lease losses....................................... 568,617
LESS: Allocated transfer risk
reserve............................................ 16,352
Loans and leases, net of unearned income,
allowance, and reserve............................. 37,443,803
Trading Assets.......................................... 1,563,671
Premises and fixed assets (including capitalized
leases).............................................. 683,587
Other real estate owned................................. 10,995
Investments in unconsolidated subsidiaries and
associated companies................................. 184,661
Customers' liability to this bank on acceptances
outstanding.......................................... 812,015
Intangible assets....................................... 1,135,572
Other assets............................................ 5,607,019
-----------
Total assets............................................ $64,536,926
===========
LIABILITIES
Deposits:
In domestic offices.................................. $26,488,980
Noninterest-bearing.................................. 10,626,811
Interest-bearing..................................... 15,862,169
In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................. 20,655,414
Noninterest-bearing.................................. 156,471
Interest-bearing..................................... 20,498,943
Federal funds purchased and Securities sold under
agreements to repurchase............................. 3,729,439
Demand notes issued to the U.S. Treasury................ 257,860
Trading liabilities..................................... 1,987,450
Other borrowed money:
With remaining maturity of one year or less.......... 496,235
With remaining maturity of more than one year
through three years................................ 465
With remaining maturity of more than three years..... 31,080
Bank's liability on acceptances executed and
outstanding.......................................... 822,455
Subordinated notes and debentures....................... 1,308,000
Other liabilities....................................... 2,846,649
-----------
Total liabilities....................................... 58,624,027
-----------
EQUITY CAPITAL
Common stock............................................ 1,135,284
Surplus................................................. 815,314
Undivided profits and capital reserves.................. 4,001,767
Net unrealized holding gains (losses) on
available-for-sale securities........................ ( 7,956)
Cumulative foreign currency translation adjustments..... ( 31,510)
-----------
Total equity capital.................................... 5,912,899
-----------
Total liabilities and equity capital.................... $64,536,926
===========
</TABLE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Reyni )
Alan R. Griffith ) Directors
Gerald L. Hassell )
<PAGE> 1
EXHIBIT 25(c)
========================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
--------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
--------------------
CONSUMERS ENERGY COMPANY FINANCING III
(Exact name of obligor as specified in its charter)
Delaware To Be Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
Fairlane Plaza South
330 Town Center Drive, Suite 1100
Dearborn, Michigan 48126
(Address of principal executive offices) (Zip code)
--------------------
Trust Preferred Securities
(Title of the indenture securities)
========================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits
1a and 1b to Form T-1 filed with Registration Statement No.
33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-2-
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 4th day of October, 1999.
THE BANK OF NEW YORK
By: /s/MICHELE L. RUSSO
----------------------------
Name: MICHELE L. RUSSO
Title: ASSISTANT TREASURER
<PAGE> 4
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1999,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
In Thousands
ASSETS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin... $5,597,807
Interest-bearing balances............................ 4,075,775
Securities:
Held-to-maturity securities.......................... 785,167
Available-for-sale securities........................ 4,159,891
Federal funds sold and Securities purchased under
agreements to resell................................. 2,476,963
Loans and lease financing receivables:
Loans and leases, net of unearned
income............................................. 38,028,772
LESS: Allowance for loan and
lease losses....................................... 568,617
LESS: Allocated transfer risk
reserve............................................ 16,352
Loans and leases, net of unearned income,
allowance, and reserve............................. 37,443,803
Trading Assets.......................................... 1,563,671
Premises and fixed assets (including capitalized
leases).............................................. 683,587
Other real estate owned................................. 10,995
Investments in unconsolidated subsidiaries and
associated companies................................. 184,661
Customers' liability to this bank on acceptances
outstanding.......................................... 812,015
Intangible assets....................................... 1,135,572
Other assets............................................ 5,607,019
-----------
Total assets............................................ $64,536,926
===========
LIABILITIES
Deposits:
In domestic offices.................................. $26,488,980
Noninterest-bearing.................................. 10,626,811
Interest-bearing..................................... 15,862,169
In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................. 20,655,414
Noninterest-bearing.................................. 156,471
Interest-bearing..................................... 20,498,943
Federal funds purchased and Securities sold under
agreements to repurchase............................. 3,729,439
Demand notes issued to the U.S. Treasury................ 257,860
Trading liabilities..................................... 1,987,450
Other borrowed money:
With remaining maturity of one year or less.......... 496,235
With remaining maturity of more than one year
through three years................................ 465
With remaining maturity of more than three years..... 31,080
Bank's liability on acceptances executed and
outstanding.......................................... 822,455
Subordinated notes and debentures....................... 1,308,000
Other liabilities....................................... 2,846,649
-----------
Total liabilities....................................... 58,624,027
-----------
EQUITY CAPITAL
Common stock............................................ 1,135,284
Surplus................................................. 815,314
Undivided profits and capital reserves.................. 4,001,767
Net unrealized holding gains (losses) on
available-for-sale securities........................ ( 7,956)
Cumulative foreign currency translation adjustments..... ( 31,510)
-----------
Total equity capital.................................... 5,912,899
-----------
Total liabilities and equity capital.................... $64,536,926
===========
</TABLE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Reyni )
Alan R. Griffith ) Directors
Gerald L. Hassell )
<PAGE> 1
EXHIBIT 25(d)
========================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
---------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------
CONSUMERS ENERGY COMPANY FINANCING IV
(Exact name of obligor as specified in its charter)
Delaware To Be Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
Fairlane Plaza South
330 Town Center Drive, Suite 1100
Dearborn, Michigan 48126
(Address of principal executive offices) (Zip code)
--------------------
Trust Preferred Securities
(Title of the indenture securities)
========================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits
1a and 1b to Form T-1 filed with Registration Statement No. 33-21672
and Exhibit 1 to Form T-1 filed with Registration Statement No.
33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-2-
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 4th day of October, 1999.
THE BANK OF NEW YORK
By: /s/MICHELE L. RUSSO
----------------------------------
Name: MICHELE L. RUSSO
Title: ASSISTANT TREASURER
<PAGE> 4
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1999,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
In Thousands
ASSETS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin... $5,597,807
Interest-bearing balances............................ 4,075,775
Securities:
Held-to-maturity securities.......................... 785,167
Available-for-sale securities........................ 4,159,891
Federal funds sold and Securities purchased under
agreements to resell................................. 2,476,963
Loans and lease financing receivables:
Loans and leases, net of unearned
income............................................. 38,028,772
LESS: Allowance for loan and
lease losses....................................... 568,617
LESS: Allocated transfer risk
reserve............................................ 16,352
Loans and leases, net of unearned income,
allowance, and reserve............................. 37,443,803
Trading Assets.......................................... 1,563,671
Premises and fixed assets (including capitalized
leases).............................................. 683,587
Other real estate owned................................. 10,995
Investments in unconsolidated subsidiaries and
associated companies................................. 184,661
Customers' liability to this bank on acceptances
outstanding.......................................... 812,015
Intangible assets....................................... 1,135,572
Other assets............................................ 5,607,019
-----------
Total assets............................................ $64,536,926
===========
LIABILITIES
Deposits:
In domestic offices.................................. $26,488,980
Noninterest-bearing.................................. 10,626,811
Interest-bearing..................................... 15,862,169
In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................. 20,655,414
Noninterest-bearing.................................. 156,471
Interest-bearing..................................... 20,498,943
Federal funds purchased and Securities sold under
agreements to repurchase............................. 3,729,439
Demand notes issued to the U.S. Treasury................ 257,860
Trading liabilities..................................... 1,987,450
Other borrowed money:
With remaining maturity of one year or less.......... 496,235
With remaining maturity of more than one year
through three years................................ 465
With remaining maturity of more than three years..... 31,080
Bank's liability on acceptances executed and
outstanding.......................................... 822,455
Subordinated notes and debentures....................... 1,308,000
Other liabilities....................................... 2,846,649
-----------
Total liabilities....................................... 58,624,027
-----------
EQUITY CAPITAL
Common stock............................................ 1,135,284
Surplus................................................. 815,314
Undivided profits and capital reserves.................. 4,001,767
Net unrealized holding gains (losses) on
available-for-sale securities........................ ( 7,956)
Cumulative foreign currency translation adjustments..... ( 31,510)
-----------
Total equity capital.................................... 5,912,899
-----------
Total liabilities and equity capital.................... $64,536,926
===========
</TABLE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Reyni )
Alan R. Griffith ) Directors
Gerald L. Hassell )
<PAGE> 1
EXHIBIT 25(e)
========================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
-----------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
-----------
CONSUMERS ENERGY COMPANY
(Exact name of obligor as specified in its charter)
Michigan 38-2726431
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
Fairlane Plaza South
330 Town Center Drive, Suite 1100
Dearborn, Michigan 48126
(Address of principal executive offices) (Zip code)
----------------------
Guarantee of Trust Preferred Securities of Consumers Energy Company
Financing III
(Title of the indenture securities)
========================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits
1a and 1b to Form T-1 filed with Registration Statement No. 33-21672
and Exhibit 1 to Form T-1 filed with Registration Statement No.
33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 4th day of October, 1999.
THE BANK OF NEW YORK
By: /s/ MICHELE L. RUSSO
---------------------------------
Name: MICHELE L. RUSSO
Title: ASSISTANT TREASURER
<PAGE> 4
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1999,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
In Thousands
ASSETS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin... $5,597,807
Interest-bearing balances............................ 4,075,775
Securities:
Held-to-maturity securities.......................... 785,167
Available-for-sale securities........................ 4,159,891
Federal funds sold and Securities purchased under
agreements to resell................................. 2,476,963
Loans and lease financing receivables:
Loans and leases, net of unearned
income............................................. 38,028,772
LESS: Allowance for loan and
lease losses....................................... 568,617
LESS: Allocated transfer risk
reserve............................................ 16,352
Loans and leases, net of unearned income,
allowance, and reserve............................. 37,443,803
Trading Assets.......................................... 1,563,671
Premises and fixed assets (including capitalized
leases).............................................. 683,587
Other real estate owned................................. 10,995
Investments in unconsolidated subsidiaries and
associated companies................................. 184,661
Customers' liability to this bank on acceptances
outstanding.......................................... 812,015
Intangible assets....................................... 1,135,572
Other assets............................................ 5,607,019
-----------
Total assets............................................ $64,536,926
===========
LIABILITIES
Deposits:
In domestic offices.................................. $26,488,980
Noninterest-bearing.................................. 10,626,811
Interest-bearing..................................... 15,862,169
In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................. 20,655,414
Noninterest-bearing.................................. 156,471
Interest-bearing..................................... 20,498,943
Federal funds purchased and Securities sold under
agreements to repurchase............................. 3,729,439
Demand notes issued to the U.S. Treasury................ 257,860
Trading liabilities..................................... 1,987,450
Other borrowed money:
With remaining maturity of one year or less.......... 496,235
With remaining maturity of more than one year
through three years................................ 465
With remaining maturity of more than three years..... 31,080
Bank's liability on acceptances executed and
outstanding.......................................... 822,455
Subordinated notes and debentures....................... 1,308,000
Other liabilities....................................... 2,846,649
-----------
Total liabilities....................................... 58,624,027
-----------
EQUITY CAPITAL
Common stock............................................ 1,135,284
Surplus................................................. 815,314
Undivided profits and capital reserves.................. 4,001,767
Net unrealized holding gains (losses) on
available-for-sale securities........................ ( 7,956)
Cumulative foreign currency translation adjustments..... ( 31,510)
-----------
Total equity capital.................................... 5,912,899
-----------
Total liabilities and equity capital.................... $64,536,926
===========
</TABLE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Reyni )
Alan R. Griffith ) Directors
Gerald L. Hassell )
<PAGE> 1
EXHIBIT 25(f)
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
CONSUMERS ENERGY COMPANY
(Exact name of obligor as specified in its charter)
Michigan 38-2726431
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
Fairlane Plaza South
330 Town Center Drive, Suite 1100
Dearborn, Michigan 48126
(Address of principal executive offices) (Zip code)
----------------------
Guarantee of Trust Preferred Securities of Consumers Energy Company Financing IV
(Title of the indenture securities)
================================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits
1a and 1b to Form T-1 filed with Registration Statement No.
33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-2-
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 4th day of October, 1999.
THE BANK OF NEW YORK
By: /s/MICHELE L. RUSSO
---------------------------
Name: MICHELE L. RUSSO
Title: ASSISTANT TREASURER
<PAGE> 4
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1999,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
In Thousands
ASSETS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin... $5,597,807
Interest-bearing balances............................ 4,075,775
Securities:
Held-to-maturity securities.......................... 785,167
Available-for-sale securities........................ 4,159,891
Federal funds sold and Securities purchased under
agreements to resell................................. 2,476,963
Loans and lease financing receivables:
Loans and leases, net of unearned
income............................................. 38,028,772
LESS: Allowance for loan and
lease losses....................................... 568,617
LESS: Allocated transfer risk
reserve............................................ 16,352
Loans and leases, net of unearned income,
allowance, and reserve............................. 37,443,803
Trading Assets.......................................... 1,563,671
Premises and fixed assets (including capitalized
leases).............................................. 683,587
Other real estate owned................................. 10,995
Investments in unconsolidated subsidiaries and
associated companies................................. 184,661
Customers' liability to this bank on acceptances
outstanding.......................................... 812,015
Intangible assets....................................... 1,135,572
Other assets............................................ 5,607,019
-----------
Total assets............................................ $64,536,926
===========
LIABILITIES
Deposits:
In domestic offices.................................. $26,488,980
Noninterest-bearing.................................. 10,626,811
Interest-bearing..................................... 15,862,169
In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................. 20,655,414
Noninterest-bearing.................................. 156,471
Interest-bearing..................................... 20,498,943
Federal funds purchased and Securities sold under
agreements to repurchase............................. 3,729,439
Demand notes issued to the U.S. Treasury................ 257,860
Trading liabilities..................................... 1,987,450
Other borrowed money:
With remaining maturity of one year or less.......... 496,235
With remaining maturity of more than one year
through three years................................ 465
With remaining maturity of more than three years..... 31,080
Bank's liability on acceptances executed and
outstanding.......................................... 822,455
Subordinated notes and debentures....................... 1,308,000
Other liabilities....................................... 2,846,649
-----------
Total liabilities....................................... 58,624,027
-----------
EQUITY CAPITAL
Common stock............................................ 1,135,284
Surplus................................................. 815,314
Undivided profits and capital reserves.................. 4,001,767
Net unrealized holding gains (losses) on
available-for-sale securities........................ ( 7,956)
Cumulative foreign currency translation adjustments..... ( 31,510)
-----------
Total equity capital.................................... 5,912,899
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Total liabilities and equity capital.................... $64,536,926
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I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Reyni )
Alan R. Griffith ) Directors
Gerald L. Hassell )
