<PAGE> 1
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
-------------------
CMS ENERGY CORPORATION CMS ENERGY TRUST II
(Exact name of registrant (Exact name of registrant
as specified in its charter) as specified in its charter)
MICHIGAN DELAWARE
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
38-2726431 TO BE APPLIED FOR
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
FAIRLANE PLAZA SOUTH, SUITE 1100
330 TOWN CENTER DRIVE
DEARBORN, MICHIGAN 48126
(313) 436-9200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
-------------------
ALAN M. WRIGHT
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
FAIRLANE PLAZA SOUTH, SUITE 1100
330 TOWN CENTER DRIVE
DEARBORN, MICHIGAN 48126
(313) 436-9200
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-------------------
It is respectfully requested that the Commission send copies of all notices,
orders and communications to:
MICHAEL D. VANHEMERT, ESQ.
CMS ENERGY CORPORATION
FAIRLANE PLAZA SOUTH
330 TOWN CENTER DRIVE, SUITE 1100
DEARBORN, MICHIGAN 48126
(313) 436-9602
-------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO 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, please 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, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [X] Registration
No. 333-48899
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,
please check the following box. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------
Title of each class Amount Proposed Proposed Amount of
securities to be to be maximum offering maximum aggregate registration
registered registered (1) price per security (1) offering price (1) fee (1)
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share, of CMS
Energy Corporation 169,964 $46.189 $7,850,500 $2,315.90
- -----------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee; the
maximum aggregate offering price is the amount by which the proceeds of a
November 10, 1998 offering of Common Stock exceeded the amount registered
under Registration No. 333-48899.
This Registration Statement shall become effective upon filing with the
Commission in accordance with Rule 462(b) under the Securities Act of 1933.
================================================================================
<PAGE> 2
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE PURSUANT TO GENERAL
INSTRUCTION IV OF FORM S-3
In accordance with the provisions of General Instruction IV of Form S-3,
CMS Energy Corporation ("CMS Energy") hereby incorporates by reference the
contents of CMS Energy's Registration Statement on Form S-3 (Registration No.
333-48899) filed with the Securities and Exchange Commission on March 30, 1998,
which Registration Statement was declared effective on April 1, 1998.
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
All Exhibits filed with the Registration Statement on Form S-3, as amended
(File No. 333-48899), are incorporated by reference into, and shall be deemed
part of, this Registration Statement, except the following, which are filed
herewith:
EXHIBIT NO. DESCRIPTION
- ----------- -----------
(4)(a) - Fifth Supplemental Indenture dated as of August 26, 1998
between CMS Energy Corporation and The Chase Manhattan
Bank, as Trustee.
(5) - Opinion of Michael D. VanHemert, Assistant General Counsel
for CMS Energy.
(15) - Letter regarding unaudited interim financial information.
(23)(a) - Consent of Michael D. VanHemert, Assistant General Counsel
for CMS Energy (included in Exhibit (5) above.)
(23)(b) - Consent of Arthur Andersen LLP.
<PAGE> 3
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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dearborn, and State of Michigan, on the 11th day of
November, 1998.
CMS ENERGY CORPORATION
By /s/ 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 their
respective capacities as officers and/or directors of CMS Energy Corporation and
on the dates indicated.
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
(i) Principal executive officer
/s/ William T, McCormick Chairman of the Board, November 11, 1998
- -------------------------------- Chief Executive Officer
(William T. McCormick, Jr.) and Director
(ii) Principal financial officer:
/s/ Alan M. Wright Senior Vice President November 11, 1998
- -------------------------------- Chief Financial Officer
(Alan M. Wright) and Treasurer
(iii) Controller or principal
accounting officer:
/s/ Preston D. Hopper Senior Vice President, November 11, 1998
- -------------------------------- Corporate Performance,
(Preston D. Hopper) and Chief Accounting Officer
</TABLE>
II-2
<PAGE> 4
<TABLE>
<CAPTION>
<S> <C> <C>
*
- ---------------------------------------- Director November 11, 1998
(John M. Deutch)
*
- ----------------------------------------- Director November 11, 1998
(James J. Duderstadt)
*
- ----------------------------------------- Director November 11, 1998
(Kathleen R. Flaherty)
*
- ----------------------------------------- Director November 11, 1998
(Victor J. Fryling)
*
- ----------------------------------------- Director November 11, 1998
(Earl D. Holton)
*
- ----------------------------------------- Director November 11, 1998
(William U. Parfet)
*
- ----------------------------------------- Director November 11, 1998
(Percy A. Pierre)
- ----------------------------------------- Director November 11, 1998
(Kenneth L. Way)
*
- ----------------------------------------- Director November 11, 1998
(Kenneth Whipple)
*
- ----------------------------------------- Director November 11, 1998
(John B. Yasinsky)
Alan M. Wright, by signing his name hereto, does hereby execute this Registration
Statement on behalf of the directors of the Registrant indicated above by
asterisks, pursuant to powers of attorney duly executed by such directors and
filed as an exhibit to Registration No. 333-48899.
*By /s/ Alan M. Wright
------------------------------------- November 11, 1998
(Alan M. Wright)
</TABLE>
II-3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, CMS Energy
Trust II 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 Dearborn, State of Michigan, on the 11th day of
November, 1998.
CMS ENERGY TRUST II
By /s/ Alan M. Wright
-----------------------------
Alan M. Wright, Trustee
By /s/ Thomas A. McNish
-------------------------------
Thomas A. McNish, Trustee
II-4
<PAGE> 6
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CMS ENERGY CORPORATION
CMS ENERGY TRUST I
CMS ENERGY TRUST II
EXHIBITS
================================================================================
<PAGE> 7
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
- ----------- -----------
(4)(a) - Fifth Supplemental Indenture dated as of August 26, 1998
between CMS Energy Corporation and the Chase Manhattan Bank,
as Trustee.
(5) - Opinion of Michael D. Vanhemert, Assistant General Counsel for
CMS Energy.
(15) - Letter regarding unaudited interim financial information.
(23)(a) - Consent of Michael D. VanHemert, Assistant General Counsel for
CMS Energy (included in Exhibit (5) above.)
(23)(b) - Consent of Arthur Andersen LLP.
<PAGE> 1
EXHIBIT 4a
FIFTH SUPPLEMENTAL INDENTURE
dated as of August 26, 1998
--------------------
This Fifth Supplemental Indenture, dated as of the 26th day of
August, 1998 between CMS Energy Corporation, a corporation duly organized and
existing under the laws of the State of Michigan (hereinafter called the
"Company") and having its principal office at Fairlane Plaza South, 330 Town
Center Drive, Suite 1100, Dearborn, Michigan 48126, and The Chase Manhattan
Bank, a New York banking corporation (hereinafter called the "Trustee") and
having its principal Corporate Trust Office at 450 West 33rd Street, 15th Floor,
New York, New York 10001.
WITNESSETH:
WHEREAS, the Company and the Trustee entered into an Indenture,
dated as of January 15, 1994 (the "Original Indenture"), pursuant to which one
or more series of debt securities of the Company (the "Securities") may be
issued from time to time; and
WHEREAS, Section 301 of the Original Indenture permits the terms
of any series of Securities to be established in an indenture supplemental to
the Original Indenture; and
WHEREAS, Section 901(7) of the Original Indenture provides that a
supplemental indenture may be entered into by the Company and the Trustee
without the consent of any Holders of the Securities to establish the form and
terms of the Securities of any series; and
WHEREAS, the Company has requested the Trustee to join with it in
the execution and delivery of this Fifth Supplemental Indenture in order to
supplement and amend the Original Indenture by, among other things, establishing
the form and terms of a series of Securities to be known as the Company's
"General Term Notes", Series E (the "General Term Notes"), providing for the
<PAGE> 2
issuance of the General Term Notes and amending and adding certain provisions
thereof for the benefit of the Holders of the General Term Notes; and
WHEREAS, the Company and the Trustee desire to enter into this
Fifth Supplemental Indenture for the purposes set forth in Sections 301 and
901(7) of the Original Indenture as referred to above; and
WHEREAS, all things necessary to make this Fifth Supplemental
Indenture a valid agreement of the Company and the Trustee and a valid
supplement to the Original Indenture have been done,
- ---------------------------
(R) Registered servicemark of J. W. Korth & Company
2
<PAGE> 3
NOW, THEREFORE, THIS FIFTH SUPPLEMENTAL INDENTURE
WITNESSETH:
For and in consideration of the premises and the purchase of the
General Term Notes to be issued hereunder by holders thereof, the Company and
the Trustee mutually covenant and agree, for the equal and proportionate benefit
of the respective holders from time to time of the General Term Notes, as
follows:
ARTICLE I
STANDARD PROVISIONS; DEFINITIONS
SECTION 101. Standard Provisions. The Original Indenture together
with this Fifth Supplemental Indenture and all indentures supplemental thereto
entered into pursuant to the applicable terms thereof are hereinafter sometimes
collectively referred to as the "Indenture." All of the terms, conditions,
covenants and provisions contained in the Original Indenture as heretofore
supplemented are incorporated herein by reference in their entirety and, except
as specifically noted herein or unless the context otherwise requires, shall be
deemed to be a part hereof to the same extent as if such provisions had been set
forth in full herein. All capitalized terms which are used herein and not
otherwise defined herein are defined in the Indenture and are used herein with
the same meanings as in the Indenture.
SECTION 102. Definitions. Section 101 of the Indenture is amended
to insert the new definitions applicable to the General Term Notes, in the
appropriate alphabetical sequence, as follows:
"Amortization Expense" means, for any period, amounts recognized
during such period as amortization of capital leases, depletion, nuclear fuel,
goodwill and assets classified as intangible assets in accordance with generally
accepted accounting principles.
3
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"Average Life" means, as of the date of determination, with
respect to any Indebtedness, the quotient obtained by dividing (i) the sum of
the products of (x) the number of years from the date of determination to the
dates of each successive scheduled principal payment of such Indebtedness and
(y) the amount of such principal payment by (ii) the sum of all such principal
payments.
"Capital Lease Obligation" of a Person means any obligation that
is required to be classified and accounted for as a capital lease on the face of
a balance sheet of such Person prepared in accordance with generally accepted
accounting principles; the amount of such obligation shall be the capitalized
amount thereof, determined in accordance with generally accepted accounting
principles; the stated maturity thereof shall be the date of the last payment of
rent or any other amount due under such lease prior to the first date upon which
such lease may be terminated by the lessee without payment of a penalty; and
such obligation shall be deemed secured by a Lien on any property or assets to
which such lease relates.
"Capital Stock" means any and all shares, interests, rights to
purchase, warrants, options, participations or other equivalents of or interests
in (however designated) corporate stock, including any Preferred Stock or Letter
Stock; provided that Hybrid Preferred Securities shall not be considered Capital
Stock for purposes of this definition.
"Change in Control" means an event or series of events by which
(i) the Company ceases to own beneficially, directly or indirectly, at least 80%
of the total voting power of all classes of Capital Stock then outstanding of
Consumers (whether arising from issuance of securities of the Company or
Consumers, any direct or indirect transfer of securities by the Company or
Consumers, any merger, consolidation, liquidation or dissolution of the Company
or Consumers or otherwise); (ii) any "person" or "group" (as such terms are used
in Sections
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13(d) and 14(d) of the Exchange Act) becomes the "beneficial owner" (as such
term is used in Rules 13d-3 and 13d-5 under the Exchange Act, except that a
person or group shall be deemed to have "beneficial ownership" of all shares
that such person or group has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of more than 30% of the Voting Stock of the Company; or (iii) the
Company consolidates with or merges into another corporation or directly or
indirectly conveys, transfers or leases all or substantially all of its assets
to any Person, or any corporation consolidates with or merges into the Company,
in either event pursuant to a transaction in which the outstanding Voting Stock
of the Company is changed into or exchanged for cash, securities, or other
property, other than any such transaction in which (A) the outstanding Voting
Stock of the Company is changed into or exchanged for Voting Stock of the
surviving corporation and (B) the holders of the Voting Stock of the Company
immediately prior to such transaction retain, directly or indirectly,
substantially proportionate ownership of the Voting Stock of the surviving
corporation immediately after such transaction.
"Consolidated Assets" means, at any date of determination, the
aggregate assets of the Company and its Consolidated Subsidiaries determined on
a consolidated basis in accordance with generally accepted accounting
principles.
"Consolidated Capital" means, at any date of determination, the
sum of (a) Consolidated Indebtedness, (b) consolidated equity of the common
stockholders of the Company and the Consolidated Subsidiaries, (c) consolidated
equity of the preference stockholders of the Company and the Consolidated
Subsidiaries (d) consolidated equity of the preferred stockholders of the
Company and the Consolidated Subsidiaries and (e) the aggregate amount of all
Hybrid Preferred Securities, in each case determined at such date in accordance
with generally accepted accounting principles.
5
<PAGE> 6
"Consolidated Coverage Ratio" with respect to any period means the
ratio of (i) the aggregate amount of Operating Cash Flow for such period to (ii)
the aggregate amount of Consolidated Interest Expense for such period.
"Consolidated Indebtedness" means, at any date of determination,
the aggregate Indebtedness of the Company and its Consolidated Subsidiaries
determined on a consolidated basis in accordance with generally accepted
accounting principles provided, however that Consolidated Indebtedness shall not
include any subordinated debt owned by any Hybrid Preferred Securities
Subsidiary.
"Consolidated Interest Expense" means, for any period, the total
interest expense in respect of Consolidated Indebtedness of the Company and its
Consolidated Subsidiaries, including, without duplication, (i) interest expense
attributable to capital leases, (ii) amortization of debt discount, (iii)
capitalized interest, (iv) cash and noncash interest payments, (v) commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing, (vi) net costs under Interest Rate Protection
Agreements (including amortization of discount) and (vii) interest expense in
respect of obligations of other Persons deemed to be Indebtedness of the Company
or any Consolidated Subsidiaries under clause (v) or (vi) of the definition of
Indebtedness, provided, however, that Consolidated Interest Expense shall
exclude any costs otherwise included in interest expense recognized on early
retirement of debt.
"Consolidated Leverage Ratio" means, at any date of
determination, the ratio of Consolidated Indebtedness to Consolidated Capital.
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"Consolidated Net Income" means, for any period, the net income of
the Company and its Consolidated Subsidiaries determined on a consolidated basis
in accordance with generally accepted accounting principles; provided, however,
that there shall not be included in such Consolidated Net Income:
(i) any net income of any Person if such Person is not a
Subsidiary, except that (A) the Company's equity in the net income of
any such Person for such period shall be included in such Consolidated
Net Income up to the aggregate amount of cash actually distributed by
such Person during such period to the Company or a Consolidated
Subsidiary as a dividend or other distribution and (B) the Company's
equity in a net loss of any such Person for such period shall be
included in determining such Consolidated Net Income;
(ii) any net income of any Person acquired by the Company or a
Subsidiary in a pooling of interests transaction for any period prior to
the date of such acquisition; and
(iii) any gain or loss realized upon the sale or other
disposition of any property, plant or equipment of the Company or its
Consolidated Subsidiaries which is not sold or otherwise disposed of in
the ordinary course of business and any gain or loss realized upon the
sale or other disposition of any Capital Stock of any Person.
"Consolidated Net Worth" of any Person means the total of the
amounts shown on the consolidated balance sheet of such Person and its
consolidated subsidiaries, determined on a consolidated basis in accordance with
generally accepted accounting principles, as of any date selected by such Person
not more than 90 days prior to the taking of any action for the purpose of which
the determination is being made (and adjusted for any material events since such
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date), as (i) the par or stated value of all outstanding Capital Stock plus (ii)
paid-in capital or capital surplus relating to such Capital Stock plus (iii) any
retained earnings or earned surplus less (A) any accumulated deficit, (B) any
amounts attributable to Redeemable Stock and (C) any amounts attributable to
Exchangeable Stock.
"Consolidated Subsidiary" means, any Subsidiary whose accounts are
or are required to be consolidated with the accounts of the Company in
accordance with generally accepted accounting principles.
"Consumers" means Consumers Energy Company, a Michigan
corporation, all of whose common stock is on the date hereof owned by the
Company.
"Enterprises" means CMS Enterprises Company, a Michigan
corporation.
"Event of Default" with respect to the General Term Notes has the
meaning specified in Article VI of this Fifth Supplemental Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchangeable Stock" means any Capital Stock of a corporation that
is exchangeable or convertible into another security (other than Capital Stock
of such corporation that is neither Exchangeable Stock, or Redeemable Stock).
"Hybrid Preferred Securities" means any preferred securities
issued by a Hybrid Preferred Securities Subsidiary, where such preferred
securities have the following characteristics:
(i) such Hybrid Preferred Securities Subsidiary lends
substantially all of the proceeds from the issuance of
such preferred securities to the Company or Consumers in
exchange for
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subordinated debt issued by the Company or Consumers,
respectively;
(ii) such preferred securities contain terms providing for the
deferral of distributions corresponding to provisions
providing for the deferral of interest payments on such
subordinated debt; and
(iii) the Company or Consumers (as the case may be) makes
periodic interest payments on such subordinated debt,
which interest payments are in turn used by the Hybrid
Preferred Securities Subsidiary to make corresponding
payments to the holders of the Hybrid Preferred
Securities.
"Hybrid Preferred Securities Subsidiary" means any business trust
(or similar entity)(i) all of the common equity interest of which is owned
(either directly or indirectly through one or more wholly-owned Subsidiaries of
the Company or Consumers)at all times by the Company or Consumers, (ii) that has
been formed for the purpose of issuing Hybrid Preferred Securities and (iii)
substantially all of the assets of which consist at all times solely of
subordinated debt issued by the Company or Consumers (as the case may be) and
payments made from time to time on such subordinated debt.
"Indebtedness" of any Person means, without duplication,
(i) the principal of and premium (if any) in respect of (A)
indebtedness of such Person for money borrowed and (B) indebtedness
evidenced by notes, debentures, bonds or other similar instruments for
the payment of which such Person is responsible or liable;
(ii) all Capital Lease Obligations of such Person;
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(iii) all obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations and
all obligations under any title retention agreement (but excluding trade
accounts payable arising in the ordinary course of business);
(iv) all obligations of such Person for the reimbursement of any
obligor on any letter of credit, bankers' acceptance or similar credit
transaction (other than obligations with respect to letters of credit
securing obligations (other than obligations described in clauses (i)
through (iii) above) entered into in the ordinary course of business of
such Person to the extent such letters of credit are not drawn upon or,
if and to the extent drawn upon, such drawing is reimbursed no later than
the third Business Day following receipt by such Person of a demand for
reimbursement following payment on the letter of credit);
(v) all obligations of the type referred to in clauses (i) through
(iv) of other Persons and all dividends of other Persons for the payment
of which, in either case, such Person is responsible or liable as
obligor, guarantor or otherwise; and
(vi) all obligations of the type referred to in clauses (i)
through (v) of other Persons secured by any Lien on any property or asset
of such Person (whether or not such obligation is assumed by such
Person), the amount of such obligation being deemed to be the lesser of
the value of such property or assets or the amount of the obligation so
secured.
"Interest Rate Protection Agreement" means any interest rate swap
agreement, interest rate cap agreement or other financial agreement or
arrangement designed to protect the Company or any Subsidiary against
fluctuations in interest rates.
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"Letter Stock", as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however designated)
which is intended to reflect the separate performance of certain of the
businesses or operations conducted by such corporation or any of its
subsidiaries.
"Lien" means any lien, mortgage, pledge, security interest,
conditional sale, title retention agreement or other charge or encumbrance of
any kind.
"Net Proceeds" means, with respect to any issuance or sale or
contribution in respect of Capital Stock, the aggregate proceeds of such
issuance, sale or contribution, including the fair market value (as determined
by the Board of Directors and net of any associated debt and of any
consideration other than Capital Stock received in return) of property other
than cash, received by the Company, net of attorneys' fees, accountants' fees,
underwriters' or placement agents' fees, discounts, or commissions and
brokerage, consultant and other fees actually incurred in connection with such
issuance or sale and net of taxes paid or payable as a result thereof, provided,
however, that if such fair market value as determined by the Board of Directors
of property other than cash is greater than $25 million, the value thereof shall
be based upon an opinion from an independent nationally recognized firm
experienced in the appraisal or similar review of similar types of transactions.
"NOMECO" means, CMS NOMECO Oil & Gas Co., a Michigan corporation
and wholly-owned subsidiary of the Company.
"Non-Convertible Capital Stock" means, with respect to any
corporation, any non-convertible Capital Stock of such corporation and any
Capital Stock of such corporation convertible solely into non-convertible
Capital Stock other than Preferred Stock of such corporation; provided, however,
that Non-Convertible Capital Stock shall not include any Redeemable Stock or
Exchangeable Stock.
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<PAGE> 12
"Operating Cash Flow" means, for any period, with respect to the
Company and its Consolidated Subsidiaries, the aggregate amount of Consolidated
Net Income after adding thereto Consolidated Interest Expense (adjusted to
include costs recognized on early retirement of debt), income taxes,
depreciation expense, Amortization Expense and any noncash amortization of debt
issuance costs, any nonrecurring, noncash charges to earnings and any negative
accretion recognition.
"Other Rating Agency" means any of Duff & Phelps Credit Rating
Co., Fitch Investors Service, L.P. or Moody's Investors Service, Inc., and any
successor to any of these organizations which is a nationally recognized
statistical rating organization.
"Preferred Stock", as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however designated)
that is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation; provided that Hybrid Preferred Securities shall not be considered
"Preferred Stock" for purposes of this definition.
"Redeemable Stock" means any Capital Stock that by its terms or
otherwise is required to be redeemed prior to the first anniversary of the
Maturity of any Outstanding General Term Notes or is redeemable at the option of
the holder thereof at any time prior to the first anniversary of the Maturity of
any Outstanding General Term Notes.
"Restricted Subsidiary" means any Subsidiary (other than Consumers
and its subsidiaries) of the Company which, as of the date of the Company's most
recent quarterly consolidated balance sheet, constituted at least 10% of the
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total Consolidated Assets of the Company and its Consolidated Subsidiaries and
any other Subsidiary which from time to time is designated a Restricted
Subsidiary by the Board of Directors provided that no Subsidiary may be
designated a Restricted Subsidiary if, immediately after giving effect thereto,
an Event of Default or event that, with the lapse of time or giving of notice or
both, would constitute an Event of Default would exist or the Company and its
Restricted Subsidiaries could not incur at least $1 of additional Indebtedness
under Section 510, and (i) any such Subsidiary so designated as a Restricted
Subsidiary must be organized under the laws of the United States or any State
thereof, (ii) more than 80% of the Voting Stock of such Subsidiary must be owned
of record and beneficially by the Company or a Restricted Subsidiary, (iii) such
Restricted Subsidiary must be a Consolidated Subsidiary, and (iv) such
Subsidiary must not theretofore have been designated as a Restricted Subsidiary.
"Standard & Poor's" shall mean Standard & Poor's Ratings Group, a
division of McGraw Hill Inc., and any successor thereto which is a nationally
recognized statistical rating organization, or if such entity shall cease to
rate the General Term Notes or shall cease to exist and there shall be no such
successor thereto, any other nationally recognized statistical rating
organization selected by the Company which is acceptable to the Trustee.
"Support Obligations" means, for any person, without duplication,
any financial obligation, contingent or otherwise, of such person guaranteeing
or otherwise supporting any debt or other obligation of any other person in any
manner, whether directly or indirectly, and including, without limitation, any
obligation of such person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such debt or to purchase
(or to advance or supply funds for the purchase of) any security for the payment
of such debt, (ii) to purchase property, securities or services for the purpose
of assuring the owner of such debt of the payment of such debt, (iii) to
maintain
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<PAGE> 14
working capital, equity capital, available cash or other financial statement
condition of the primary obligor so as to enable the primary obligor to pay such
debt, (iv) to provide equity capital under or in respect of equity subscription
arrangements (to the extent that such obligation to provide equity capital does
not otherwise constitute debt), or (v) to perform, or arrange for the
performance of, any non-monetary obligations or non-funded debt payment
obligations of the primary obligor.
"Tax-Sharing Agreement" means the Amended and Restated Agreement
for the Allocation of Income Tax Liabilities and Benefits, dated January 1,
1994, as amended or supplemented from time to time, by and among Company, each
of the members of the Consolidated Group (as defined therein), and each of the
corporations that become members of the Consolidated Group.
Certain terms, used principally in Articles Three, Four and Seven
of this Fifth Supplemental Indenture, are defined in those Articles.
ARTICLE II
DESIGNATION AND TERMS OF THE GENERAL TERM NOTES; FORMS
SECTION 201. Establishment of Series. There is hereby created a
series of Securities to be known and designated as the "General Term Notes (R),
Series E and limited in aggregate principal amount (except as contemplated in
Section 301(2) of the Indenture) to $400,000,000.
Each General Term Note will be dated and issued as of the date of
its authentication by the Trustee. Each General Term Note shall also bear an
Original Issue Date (as hereinafter defined) which, with respect to any General
Term Note (or any portion thereof), shall mean the date of its original issue,
as specified in such General Term Note (the "Original Issue Date"), and such
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Original Issue Date shall remain the same if such General Term Note is
subsequently issued upon transfer, exchange, or substitution of such General
Term Note regardless of its date of authentication. Principal on any General
Term Note shall become due and payable from nine months to twenty-five years
from the Original Issue Date of such General Term Note, as specified on such
General Term Note.
Each General Term Note will bear interest from the Original Issue
Date, or from the most recent date to which interest has been paid or duly
provided for, at the rate per annum stated therein until the principal thereof
is paid or made available for payment. Interest will be payable either monthly,
quarterly or semi-annually on each Interest Payment Date and at Maturity, as
specified below and in each General Term Note. Interest will be payable to the
person in whose name a General Term Note is registered at the close of business
on the Regular Record Date next preceding each Interest Payment Date; provided,
however, interest payable at Maturity will be payable to the person to whom
principal shall be payable. Interest on the General Term Notes will be computed
on the basis of a 360-day year of twelve 30-day months.
The Interest Payment Dates for a General Term Note that provides
for monthly interest payments shall be the fifteenth day of each calendar month;
provided, however, that in the case of a General Term Note issued between the
first and fifteenth day of a calendar month, interest otherwise payable on the
fifteenth day of such calendar month will be payable on the fifteenth day of the
next succeeding calendar month. In the case of a General Term Note that provides
for quarterly interest payments, the Interest Payment Dates shall be the
fifteenth day of each of the months specified in such General Term Note,
commencing on the day that is three months from (i) the day on which such
General Term Note is issued, if such General Term Note is issued on the
fifteenth day of a calendar month, or (ii) the fifteenth day of the calendar
month immediately
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preceding the calendar month in which such General Term Note is issued, if such
General Term Note is issued prior to the fifteenth day of a calendar month, or
(iii) the fifteenth day of the calendar month in which such General Term Note is
issued, if such General Term Note is issued after the fifteenth day of a
calendar month. In the case of a General Term Note that provides for semi-annual
interest payments, the Interest Payment Dates shall be the fifteenth day of each
of the months specified in such General Term Note, commencing on the day that is
six months from (i) the day on which such General Term Note is issued, if such
General Term Note is issued on the fifteenth day of a calendar month, or (ii)
the fifteenth day of the calendar month immediately preceding the calendar month
in which such General Term Note is issued, if such General Term Note is issued
prior to the fifteenth day of a calendar month, or (iii) the fifteenth day of
the calendar month in which such General Term Note is issued, if such General
Term Note is issued after the fifteenth day of a calendar month.
Payment of principal of the General Term Notes (and premium, if
any) and, unless otherwise paid as hereinafter provided, any interest thereon
will be made at the office or agency of the Company in New York, New York;
provided, however, that payment of interest (other than interest at Maturity)
may be made at the option of the Company by check or draft mailed to the Person
entitled thereto at such Person's address appearing in the Security Register or
by wire transfer to an account designated by such Person not later than ten days
prior to the date of such payment.
The Regular Record Date referred to in Section 301 of the
Indenture for the payment of the interest on any General Term Note payable on
any Interest Payment Date (other than at Maturity) shall be the first day
(whether or not a Business Day) of the calendar month in which such Interest
Payment Date occurs as is specified in such General Term Note, and, in the case
of interest payable at Maturity, the Regular Record Date shall be the date of
Maturity. Unless
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otherwise specified in such General Term Notes, the cities of New York, New York
and Chicago, Illinois shall be the reference cities for determining a Business
Day.
The General Term Notes may be issued only as registered notes,
without coupons, in denominations of $1,000 and any larger denomination which is
in an integral multiple of $1,000.
Upon the execution of this Fifth Supplemental Indenture, or from
time to time thereafter, General Term Notes may be executed by the Company and
delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said General Term Notes in accordance with the
procedures set forth in or upon a Company Order complying with Sections 301 and
303 of the Indenture.
SECTION 202. Forms Generally. The General Term Notes shall be in
substantially the form set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by the Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such General Term
Notes, as evidenced by their execution thereof.
The definitive General Term Notes shall be printed, lithographed
or engraved on steel engraved borders or may be produced in any other manner,
all as determined by the officers executing such General Term Notes, as
evidenced by their execution thereof.
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SECTION 203. Form of Face of General Term Note.
[Insert any legend required by the Internal Revenue
Code and the regulations thereunder.]
CMS ENERGY CORPORATION
GENERAL TERM NOTE(R), Series E
No. ________ $__________
[Initial Redemption Date]
CMS Energy Corporation, a corporation duly organized and existing
under the laws of the State of Michigan (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to _________________________________, or
registered assigns, the principal sum of ____________________ Dollars on
__________________________ and to pay interest thereon from _____________ (the
"Original Issue Date") or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, [choose one of the following --
monthly/quarterly/semi-annually [insert as applicable -- on ___________
[________, ____________] and _________ in each [year/month], commencing
______________, and at Maturity at the rate of ____% per annum, until the
principal hereof is paid or made available for payment [if applicable,
insert--, and at the rate of ___% per annum on any overdue principal and
premium and on any overdue installment of interest]. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this General
Term Note (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be the first
day of the calendar month in which such Interest Payment Date occurs (whether or
not a Business Day) next preceding such Interest Payment Date except that the
Regular Record Date for interest payable at Maturity shall be the date of
Maturity. Any such interest not so punctually paid or duly
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provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this General Term
Note (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of General
Term Notes not less than 10 days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the General Term Notes may be listed, and upon
such notice as may be required by such exchange, all as more fully provided in
said Indenture.
[If the General Term Note is not to bear interest prior to
Maturity, insert -- The principal of this General Term Note shall not bear
interest except in the case of a default in payment of principal upon
acceleration, upon redemption or at Stated Maturity and in such case the overdue
principal of this General Term Note shall bear interest at the rate of ___% per
annum, which shall accrue from the date of such default in payment to the date
payment of such principal has been made or duly provided for. Interest on any
overdue principal shall be payable on demand. Any such interest on any overdue
principal that is not so paid on demand shall bear interest at the rate of ____%
per annum, which shall accrue from the date of such demand for payment to the
date payment of such interest has been made or duly provided for, and such
interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and interest, if
any, on this General Term Note will be made at the office or agency of the
Company maintained for that purpose in New York, New York (the "Place of
Payment"), in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company payment of interest (other
than interest payable at Maturity) may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register or by wire transfer to an account
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designated by such Person not later than ten days prior to the date of such
payment.
Reference is hereby made to the further provisions of this General
Term Note set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, this
General Term Note shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated:
CMS ENERGY CORPORATION
By____________________________
Attest:
__________________________
SECTION 204. Form of Reverse of General Term Note.
This General Term Note, Series E is one of a duly authorized issue of
securities of the Company (herein called the "General Term Notes"), issued and
to be issued in one or more series under an Indenture, dated as of January 15,
1994, as supplemented by certain supplemental indentures, including the Fifth
Supplemental Indenture, dated as of August 26, 1998 (herein collectively
referred to as the "Indenture"), between the Company and The Chase Manhattan
Bank, a New York banking corporation, as Trustee (herein called the "Trustee",
which term
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includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee, the Holders of the General Term Notes and of the terms
upon which the General Term Notes are, and are to be, authenticated and
delivered. This General Term Note is one of the series designated on the face
hereof, limited in aggregate principal amount to $400,000,000.
[If applicable, insert -- The General Term Notes of this series are
subject to redemption upon not more than 60 nor less than 30 days' notice as
provided in the Indenture, at any time [on or after __________, _____,] as a
whole or in part from time to time, at the election of the Company, at the
following Redemption Prices (expressed as percentages of the principal amount):
If redeemed [on or before _____________, ___%, and if redeemed] during the
12-month period beginning ____________ of the years indicated,
Redemption Redemption
Year Price Year Price
- ---- ---------- ---- ----------
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption with accrued interest to the
Redemption Date, but interest installments whose Stated Maturity is on or prior
to such Redemption Date will be payable to the Holders of such General Term
Notes, or one or more Predecessor Securities, of record at the close of business
on the relevant Record Dates referred to on the face hereof, all as provided in
the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
__________, redeem this General Term Note as a part of, or in anticipation of,
any refunding
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operation by the application, directly or indirectly, of moneys borrowed having
an effective interest cost to the Company (calculated in accordance with
generally accepted financial practice) of less than the effective interest cost
to the Company (similarly calculated) of this General Term Note.]
[If the General Term Note is subject to redemption, insert -- In
the event of redemption of this General Term Note in part only, a new General
Term Note or Notes of this series and of like tenor for the unredeemed portion
hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.]
If a Change in Control occurs, the Company shall notify the
Holder of this General Term Note of such occurrence and such Holder shall have
the right to require the Company to make a Required Repurchase of all or any
part of this General Term Note at a Change in Control Purchase Price equal to
101% of the principal amount of this General Term Note to be so purchased as
more fully provided in the Indenture and subject to the terms and conditions set
forth therein. In the event of a Required Repurchase of only a portion of this
General Term Note, a new General Term Note or Notes for the unrepurchased
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
[If this General Term Note is subject to redemption upon
exercising a Survivor's Option, insert -- As more fully provided in the
Indenture and subject to the terms and conditions set forth therein, the Company
will repay this General Term Note (or portion thereof) properly tendered for
repayment by or on behalf of the person (the "Representative") that has
authority to act on behalf of a deceased owner of the beneficial interest in
this General Term Note under the laws of the appropriate jurisdiction
(including, without limitation, the personal representative or executor of such
deceased beneficial owner) at a price equal to 100% of the principal amount
hereof plus accrued interest to the date of such repayment. Notwithstanding the
foregoing, the Survivor's Option will not be available to persons who are
surviving joint tenants or surviving tenants by the entirety. The Company may,
in its sole discretion, limit the aggregate principal
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amount of all outstanding General Term Notes as to which exercises of this
option (the "Survivor's Option") will be accepted in any calendar year to one
percent (1%) of the outstanding principal amount of all General Term Notes as of
the end of the most recent fiscal year, but not less than $500,000 in any such
calendar year, or such greater amount as the Company in its sole discretion may
determine for any calendar year, and may limit to $100,000, or such greater
amount as the Company in its sole discretion may determine for any calendar
year, the aggregate principal amount of General Term Notes (or portions thereof)
as to which exercise of the Survivor's Option will be accepted in such calendar
year with respect to any individual deceased owner of beneficial interests in
such General Term Notes. Notwithstanding the foregoing, the Survivor's Option
will not be available to persons who are surviving joint tenants or surviving
tenants by the entirety.
[If the General Term Note is not an Original Issue Discount
Security, insert -- If an Event of Default with respect to this General Term
Note shall occur and be continuing, the principal of this General Term Note may
be declared due and payable in the manner and with the effect provided in the
Indenture.]
In any case where any Interest Payment Date, Redemption Date,
Repayment Date, Stated Maturity or Maturity of any General Term Note shall not
be a Business Day at any Place of Payment, then (notwithstanding any other
provision of the Indenture or this General Term Note), payment of interest or
principal (and premium, if any) need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date,
Redemption Date or Repayment Date or at the Stated Maturity or Maturity;
provided that no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date, Repayment Date,
Stated Maturity or Maturity, as the case may be, to such Business Day.
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The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of all Outstanding
Securities under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of not less than a majority in principal amount of
all Outstanding Securities affected. The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of all
Outstanding Securities, on behalf of the Holders of all Outstanding Securities,
to waive compliance by the Company with certain provisions of the Indenture. Any
such consent or waiver by the Holder of this General Term Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
General Term Note and of any General Term Note issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this General Term Note.
The Indenture permits the Holders of not less than a majority in
principal amount of all Outstanding Securities of any series thereunder to waive
on behalf of the Holders of all Outstanding Securities of such series any past
default by the Company, provided that no such waiver may be made with respect to
a default in the payment of the principal of or premium, if any, or the interest
on any Security of such series or the default by the Company in respect of
certain covenants or provisions of the Indenture, the modification or amendment
of which must be consented to by the Holder of each Outstanding Security of each
series affected.
As set forth in, and subject to, the provisions of the Indenture,
no Holder of any General Term Note will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder, unless
such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default, the Holders of not less than 25% in principal
amount of the Outstanding General Term Notes shall have made written request,
and offered satisfactory
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indemnity, to the Trustee to institute such proceeding as trustee, and the
Trustee shall not have received from the Holders of a majority in principal
amount of the Outstanding General Term Notes a direction inconsistent with such
request and shall have failed to institute such proceeding within 60 days;
provided, however, that such limitations do not apply to a suit instituted by
the Holder hereof for the enforcement of payment of the principal of (and
premium, if any) or any interest on this General Term Note on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision of this
General Term Note or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the principal of and
any premium and interest on this General Term Note at the times, place and rate,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this General Term Note is registerable in the
Security Register, upon surrender of this General Term Note for registration of
transfer at the office or agency of the Company in any place where the principal
of and any premium and interest on this General Term Note are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new General Term Notes of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The General Term Notes of this series are issuable only in
registered form without coupons in denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, General Term Notes of this series are
exchangeable for a like aggregate principal
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amount of General Term Notes of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
[If this General Term Note is redeemable at the option of the
Company, insert -- The Company shall not be required (i) to issue, register the
transfer of or exchange this General Term Note if this General Term Note may be
among those selected for redemption during a period beginning at the opening of
business 15 days before selection of the General Term Notes to be redeemed under
Section 1103 of the Indenture and ending at the close of business on the day of
the mailing of the relevant notice of redemption, (ii) to register the transfer
of or exchange any General Term Note so selected for redemption in whole or in
part, except, in the case of any General Term Note to be redeemed in part, the
portion thereof not to be redeemed, or (iii) to issue, register the transfer of
or exchange any General Term Note which has been surrendered for repayment at
the option of the Holder, except the portion, if any, of such General Term Note
not to be so repaid.]
Prior to due presentment of this General Term Note for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this General Term Note is
registered as the owner hereof for all purposes, whether or not this General
Term Note be overdue, and neither the Company, the Trustee nor any such agent
shall be affected by notice to the contrary.
All terms used in this General Term Note without definition which
are defined in the Indenture shall have the meanings assigned to them in the
Indenture.
- ------------------------------
(R) Registered servicemark of J. W. Korth & Company
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----------------------
SECTION 205. Form of Legend for Global Notes. Any Global Note (as
defined in Article VII below) authenticated and delivered hereunder shall bear a
legend in substantially the following form:
"This Security is a Global Note within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This General Term Note is not
exchangeable for General Term Notes registered in the name of a Person
other than the Depositary or its nominee except in the limited
circumstances described in the Indenture, and no transfer of this
General Term Note (other than a transfer of this General Term Note as a
whole by the Depositary to a nominee of the Depositary or by a nominee
of the Depositary to the Depositary or another nominee of the
Depositary) may be registered except in the limited circumstances
described in the Indenture."
SECTION 206. Form of Trustee's Certificate of Authentication. The
Trustee's certificates of authentication shall be in substantially the following
form:
This is one of the General Term Notes of the series designated
therein referred to in the within-mentioned Indenture.
________________________________________,
as Trustee
By______________________________________
Authorized Officer
ARTICLE III
REDEMPTION OF GENERAL TERM NOTES; CHANGE OF CONTROL
SECTION 301. Redemption of General Term Notes. (a) Each General
Term Note may be redeemed by the Company in whole or in part if so provided in,
and in accordance with, the terms of such General Term Note issued by the
Company. The Company may redeem any General Term Note which by its terms is
redeemable prior to
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Stated Maturity without also redeeming any other General Term Note which is
redeemable prior to Stated Maturity.
(b) Change of Control. Upon the occurrence of a Change in Control
(the effective date of such Change in Control being the "Change in Control
Date"), each Holder of a General Term Note shall have the right to require that
the Company repurchase (a "Required Repurchase") all or any part of such
Holder's General Term Note at a repurchase price payable in cash equal to 101%
of the principal amount of such General Term Note plus accrued interest to the
Purchase Date (the "Change in Control Purchase Price").
(1) Within 30 days following the Change in Control Date, the
Company shall mail a notice (the "Required Repurchase Notice") to each
Holder with a copy to the Trustee stating:
(i) that a Change in Control has occurred and that such
Holder has the right to require the Company to repurchase all or
any part of such Holder's General Term Notes at the Change of
Control Purchase Price;
(ii) the Change of Control Purchase Price;
(iii) the date on which any Required Repurchase shall be
made (which shall be no earlier than 60 days nor later than 90
days from the date such notice is mailed) (the "Purchase Date");
(iv) the name and address of the Paying Agent; and
(v) the procedures that Holders must follow to cause the
General Term Notes to be repurchased, which shall be consistent
with this Section and the Indenture.
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(2) Holders electing to have a General Term Note repurchased must
deliver a written notice (the "Change in Control Purchase Notice") to
the Paying Agent (initially the Trustee) at its office in The City of
New York, or any other office of the Paying Agent maintained for such
purposes, not later than 30 days prior to the Purchase Date. The Change
in Control Purchase Notice shall state: (i) the portion of the principal
amount of any General Term Notes to be repurchased, which portion must
be $1,000 or an integral multiple thereof; (ii) that such General Term
Notes are to be repurchased by the Company pursuant to the change in
control provisions of the Indenture; and (iii) unless the General Term
Notes are represented by one or more Global Notes, the certificate
numbers of the General Term Notes to be delivered by the Holder thereof
for repurchase by the Company. Any Change in Control Purchase Notice may
be withdrawn by the Holder by a written notice of withdrawal delivered
to the Paying Agent not later than three Business Days prior to the
Purchase Date. The notice of withdrawal shall state the principal amount
and, if applicable, the certificate numbers of the General Term Notes as
to which the withdrawal notice relates and the principal amount of such
General Term Notes, if any, which remains subject to a Change in Control
Purchase Notice.
If a General Term Note is represented by a Global Note (as
described in Article VII below), the Depositary or its nominee will be
the Holder of such General Term Note and therefore will be the only
entity that can elect a Required Repurchase of such General Term Note.
To obtain repayment pursuant to this Section 301(b) with respect to such
General Term Note, the beneficial owner of such General Term Note must
provide to the broker or other entity through which it holds the
beneficial interest in such General Term Note (i) the Change in Control
Purchase Notice signed by such beneficial owner, and such signature must
be guaranteed by a member firm of a registered national securities
exchange or of the National Association of Securities Dealers, Inc.
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or a commercial bank or trust company having an office or correspondent
in the United States, and (ii) instructions to such broker or other
entity to notify the Depositary of such beneficial owner's desire to
obtain repayment pursuant to this Section 301(b). Such broker or other
entity will provide to the Paying Agent (i) the Change of Control
Purchase Notice received from such beneficial owner and (ii) a
certificate satisfactory to the Paying Agent from such broker or other
entity stating that it represents such beneficial owner. Such broker or
other entity will be responsible for disbursing any payments it receives
pursuant to this Section 301(b) to such beneficial owner.
(3) Payment of the Change of Control Purchase Price for a General
Term Note for which a Change in Control Purchase Notice has been
delivered and not withdrawn is conditioned (except in the case of a
General Term Note represented by one or more Global Notes) upon delivery
of such General Term Note (together with necessary endorsements) to the
Paying Agent at its office in The City of New York, or any other office
of the Paying Agent maintained for such purpose, at any time (whether
prior to, on or after the Purchase Date) after the delivery of such
Change in Control Purchase Notice. Payment of the Change of Control
Purchase Price for such General Term Note will be made promptly
following the later of the Purchase Date or the time of delivery of such
General Term Note. If the Paying Agent holds, in accordance with the
terms of the Indenture, money sufficient to pay the Change in Control
Purchase Price of such General Term Note on the Business Day following
the Purchase Date, then, on and after such date, interest will cease
accruing, and, if applicable, amounts will no longer accrue on any such
General Term Note that is an Original Issue Discount Security, whether
or not such General Term Note is delivered to the Paying Agent, and all
other rights of the Holder shall terminate (other than the right to
receive the Change of Control Purchase Price upon delivery of the
General Term Note).
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(4) The Company shall comply with the provisions of Rule 13e-4
and any other tender offer rules under the Exchange Act, which may then
be applicable and shall file Schedule 13E-4 or any other schedule
required thereunder in connection with any offer by the Company to
repurchase General Term Notes at the option of Holders upon a Change in
Control.
(5) No General Term Note may be repurchased by the Company as a
result of a Change in Control if there has occurred and is continuing an
Event of Default (other than a default in the Payment of the Change in
Control Purchase Price with respect to the General Term Notes).
ARTICLE IV
REPAYMENT UPON DEATH
If so specified in any General Term Note, the Holder of such
General Term Note will have the option (the "Survivor's Option") to elect
repayment of such General Term Note prior to its Stated Maturity in the event of
the death of the beneficial owner of such General Term Note.
Pursuant to exercise of the Survivor's Option, if applicable, the
Company will repay any General Term Note (or portion thereof) properly tendered
for repayment by or on behalf of the person (the "Representative") that has
authority to act on behalf of the deceased beneficial owner of such General Term
Note under the laws of the appropriate jurisdiction (including, without
limitation, the personal representative or executor of such deceased beneficial
owner) at a price equal to one-hundred percent (100%) of the principal amount of
the beneficial interest of the deceased owner of such General Term Note plus
accrued interest to the date of such payment, subject to the following
limitations. Notwithstanding the foregoing, the Survivor's Option will not be
available to persons who are surviving joint tenants or surviving tenants by
the entirety. The Company may, in
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its sole discretion, limit the aggregate principal amount of General Term
Notes as to which exercises of the Survivor's Option will be accepted in any
calendar year (the "Annual Put Limitation") to one percent (1%) of the
outstanding principal amount of the General Term Notes as of the end of the most
recent fiscal year, but not less than $500,000 in any such calendar year, or
such greater amount as the Company in its sole discretion may determine for any
calendar year, and may limit to $100,000, or such greater amount as the Company
in its sole discretion may determine for any calendar year, the aggregate
principal amount of General Term Notes (or portions thereof) as to which
exercise of the Survivor's Option will be accepted in such calendar year with
respect to any individual deceased owner of beneficial interests in such General
Term Notes (the "Individual Put Limitation"). Moreover, the Company will not
make principal repayments pursuant to exercise of the Survivor's Option in
amounts that are less that $1,000, and, in the event that the limitations
described in the preceding sentence would result in the partial repayment of any
General Term Note, the principal amount of such General Term Note remaining
outstanding after repayment must be at least $1,000 (the minimum authorized
denomination of the General Term Notes). Any General Term Note (or portion
thereof) tendered pursuant to exercise of the Survivor's Option may be withdrawn
by a written request of its Holder received by the Trustee prior to its
repayment.
Each General Term Note (or portion thereof) that is tendered
pursuant to a valid exercise of the Survivor's Option will be accepted promptly
in the order all such General Term Notes are tendered, except for any General
Term Note (or portion thereof) the acceptance of which would contravene (i) the
Annual Put Limitation, if applied, or (ii) the Individual Put Limitation, if
applied, with respect to the relevant individual deceased owner of beneficial
interests therein. If, as of the end of any calendar year, the aggregate
principal amount of General Term Notes (or portions thereof) that have been
accepted pursuant to exercise of the Survivor's Option for such year has not
exceeded the Annual Put Limitation, if
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applied, for such year, any exercise(s) of the Survivor's Option with respect to
General Term Notes (or portions thereof) not accepted during such calendar year
because such acceptance would have contravened the Individual Put Limitation, if
applied, with respect to an individual deceased owner of beneficial interests
therein will be accepted in the order all such General Term Notes (or portions
thereof) were tendered, to the extent that any such exercise would not exceed
the Annual Put Limitation, if applied, for such calendar year. Any General Term
Note (or portion thereof) accepted for repayment pursuant to exercise of the
Survivor's Option will be repaid no later than the first Interest Payment Date
that occurs 20 or more calendar days after the date of such acceptance. Each
General Term Note (or any portion thereof) tendered for repayment that is not
accepted in any calendar year because of the application of the Annual Put
Limitation will be deemed to be tendered in the following calendar year in the
order in which all such General Term Notes (or portions thereof) were originally
tendered, unless any such General Term Note (or portion thereof) is withdrawn by
the Representative for the deceased owner prior to its repayment. In the event
that a General Term Note (or any portion thereof) tendered for repayment
pursuant to valid exercise of the Survivor's Option is not accepted, the Trustee
will deliver a notice by first-class mail to the registered Holder thereof at
its last known address as indicated in the Security Register that states the
reasons such General Term Note (or portion thereof) has not been accepted for
repayment.
Subject to the foregoing, in order for a Survivor's Option to be
validly exercised with respect to any General Term Note (or portion thereof),
the Trustee must receive from the Representative of the individual deceased
owner of beneficial interests therein (i) a written request for payment signed
by the Representative, and such signature must be guaranteed by a member firm of
a registered national securities exchange or of the National Association of
Securities Dealers, Inc. or a commercial bank or trust company having an office
or correspondent in the United States, (ii) if any such General Term Note is not
represented by a Global Note (as
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described in Article VII below), tender of the General Term Note (or portion
thereof) to be repaid, (iii) appropriate evidence satisfactory to the Company
and the Trustee that (A) the Representative has authority to act on behalf of
the individual deceased beneficial owner, (B) the death of such beneficial owner
has occurred and (C) the deceased individual was the owner of a beneficial
interest in such General Term Note at the time of death, (iv) if applicable, a
properly executed assignment or endorsement, and (v) if the beneficial interest
in such General Term Note is held by a nominee of the deceased beneficial owner,
a certificate satisfactory to the Trustee from such nominee attesting to the
deceased's ownership of a beneficial interest in such General Term Note. All
questions as to the eligibility or validity of any exercise of the Survivor's
Option will be determined by the Company, in its sole discretion, which
determinations will be final and binding on all parties.
If a General Term Note is represented by a Global Note (as
described in Article VII below), the Depositary or its nominee will be the
Holder of such General Term Note and therefore will be the only entity that can
exercise the Survivor's Option for such General Term Note. To obtain repayment
pursuant to exercise of the Survivor's Option with respect to such General Term
Note, the Representative must provide to the broker or other entity through
which the beneficial interest in such General Term Note is held by the deceased
owner (i) the documents described in clauses (i) and (iii) of the preceding
paragraph and (ii) instructions to such broker or other entity to notify the
Depositary of such Representative's desire to obtain repayment pursuant to
exercise of the Survivor's Option. Such broker or other entity shall provide to
the Trustee (i) the documents received from the Representative referred to in
clause (i) of the preceding sentence and (ii) a certificate satisfactory to the
Trustee from such broker or other entity stating that it represents the deceased
beneficial owner. Such broker or other entity will be responsible for disbursing
any payments it receives pursuant to exercise of the Survivor's Option to the
appropriate Representative.
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ARTICLE V
ADDITIONAL COVENANTS OF THE COMPANY
WITH RESPECT TO THE GENERAL TERM NOTES
SECTION 501. Statement by Officers as to Default. (a) The Company
will deliver to the Trustee, within 120 days after the end of each fiscal year a
brief certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Company's compliance with all conditions and covenants under this Fifth
Supplemental Indenture. For such purposes, such compliance shall be determined
without regard to any period of grace or requirement of notice provided
hereunder and, if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have knowledge.
(b) The Company shall deliver to the Trustee, as soon as possible
and in any event within 10 days after the Company becomes aware of the
occurrence of an Event of Default or an event which, with notice or the lapse of
time or both, would constitute an Event of Default, an Officers' Certificate
setting forth the details of such Event of Default or default, and the action
which the Company proposes to take with respect thereto.
SECTION 502. Existence. So long as any of the General Term Notes
are Outstanding, subject to Article 8 of the Indenture, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and all rights (charter and statutory) and
franchises other than rights or franchises the loss of which would not be
disadvantageous in any material respect to the Holders of the General Term
Notes.
SECTION 503. Maintenance of Properties. So long as any of the
General Term Notes are Outstanding, the Company will cause all properties used
or useful
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in the conduct of its business to be maintained and kept in good condition,
repair and working order and supplied with all necessary equipment and will
cause to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section shall prevent the Company from discontinuing the operation or
maintenance of any of such properties if such discontinuance is, in the judgment
of the Company, desirable in the conduct of its business and not disadvantageous
in any material respect to the Holders.
SECTION 504. Payment of Taxes and Other Claims. So long as any of
the General Term Notes are Outstanding, the Company will pay or discharge or
cause to be paid or discharged, before the same shall become delinquent, (1) all
taxes, assessments and governmental charges levied or imposed upon the Company
or any Subsidiary or upon the income, profits or property of the Company or any
Subsidiary, and (2) all lawful claims for labor, materials and supplies which,
if unpaid, might by law become a Lien upon the property of the Company or any
Subsidiary; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim the amount of which, applicability or validity is being contested in good
faith by appropriate proceedings.
SECTION 505. Insurance. So long as any of the General Term Notes
are Outstanding, the Company shall, and each of its Restricted Subsidiaries and
Consumers shall, keep insured by financially sound and reputable insurers all
property of a character usually insured by entities engaged in the same or
similar businesses similarly situated against loss or damage of the kinds and in
the amounts customarily insured against by such entities and carry such amounts
of other insurance as is usually carried by such entities.
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SECTION 506. Compliance with Laws. So long as any of the General
Term Notes are Outstanding, the Company shall, and each of its Restricted
Subsidiaries and Consumers shall, comply in all material respects with all laws
applicable to the Company or such Restricted Subsidiary or Consumers, as the
case may be, its respective business and properties.
SECTION 508. Limitation on Certain Liens. (a) So long as any of
the General Term Notes are outstanding, the Company shall not create, incur,
assume or suffer to exist any Lien or any other type of arrangement intended or
having the effect of conferring upon a creditor of the Company or any Subsidiary
a preferential interest (hereinafter in this Section referred to as a "Lien")
upon or with respect to the Capital Stock of Consumers, Enterprises or NOMECO
without making effective provision whereby the General Term Notes shall (so long
as any such other creditor shall be so secured) be equally and ratably secured
(along with any other creditor similarly entitled to be secured) by a direct
Lien on all property subject to such Lien, provided, however, that the foregoing
restrictions shall not apply to:
(i) Liens for taxes, assessments or governmental charges or levies to
the extent not past due;
(ii) pledges or deposits to secure (a) obligations under workmen's
compensation laws or similar legislation, (b) statutory obligations of the
Company or (c) Support Obligations not to exceed $30 million at any one time
outstanding;
(iii) Liens imposed by law, such as materialmen's, mechanics',
carriers', workmen's and repairmen's Liens and other similar Liens arising in
the ordinary course of business securing obligations which are not overdue or
which have been fully bonded and are being contested in good faith;
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(iv) purchase money Liens upon or in property acquired and held by the
Company in the ordinary course of business to secure the purchase price of such
property or to secure Indebtedness incurred solely for the purpose of financing
the acquisition of any such property to be subject to such Liens, or Liens
existing on any such property at the time of acquisition, or extensions,
renewals or replacements of any of the foregoing for the same or a lesser
amount, provided that no such Lien shall extend to or cover any property other
than the property being acquired and no such extension, renewal or replacement
shall extend to or cover property not theretofore subject to the Lien being
extended, renewed or replaced, and provided, further, that the aggregate
principal amount of the Indebtedness at any one time outstanding secured by
Liens permitted by this clause (iv) shall not exceed $10,000,000; and
(v) Liens not otherwise permitted by clauses (i) through (iv) of this
Section securing Indebtedness of the Company; provided that on the date such
Liens are created, and after giving effect to such Indebtedness, the aggregate
principal amount at maturity of all of the secured Indebtedness of the Company
at such date shall not exceed 10% of Consolidated Assets at such date.
SECTION 509. Limitation on Consolidation, Merger, Sale or
Conveyance. In addition to the limitations set forth in Article 8 of the
Indenture, so long as the General Term Notes are Outstanding and until the
General Term Notes are rated BBB- or above (or an equivalent rating) by Standard
& Poor's and one Other Rating Agency (or if Standard & Poor's shall change its
rating system, an equivalent of such rating then employed by such organization)
at which time the Company shall be permanently released from the following
provisions, the Company shall not consolidate with or merge into any other
Person or sell, lease or convey the property of the Company in the entirety or
substantially as an entirety unless (i) immediately after giving effect to such
transaction the Consolidated Net Worth of the surviving entity is at least equal
to the Consolidated Net Worth of the Company
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immediately prior to the transaction, and (ii) after giving effect to such
transaction, the surviving entity would be entitled to incur at least one dollar
of additional Indebtedness (other than revolving Indebtedness to banks) without
violation of the limitations in Section 510 hereof.
SECTION 510. Limitation on Consolidated Indebtedness. (a) So long
as any of the General Term Notes are Outstanding and until the General Term
Notes are rated BBB- or above (or an equivalent rating) by Standard & Poor's and
one Other Rating Agency (or if Standard & Poor's shall change its rating system,
an equivalent of such rating then employed by such organization) at which time
the Company shall be permanently released from the provision of this Section
510, the Company shall not, and shall not permit any Restricted Subsidiary of
the Company to, issue, create, assume, guarantee, incur or otherwise become
liable for (collectively, "issue"), directly or indirectly, any Indebtedness
unless (i) the Consolidated Coverage Ratio of the Company and its Consolidated
Subsidiaries for the four consecutive fiscal quarters immediately preceding the
issuance of such Indebtedness (as shown by a pro forma consolidated income
statement of the Company and its Consolidated Subsidiaries for the four most
recent fiscal quarters ending at least 30 days prior to the issuance of such
Indebtedness after giving effect to (i) the issuance of such Indebtedness and
(if applicable) the application of the net proceeds thereof to refinance other
Indebtedness as if such Indebtedness was issued at the beginning of the period,
(ii) the issuance and retirement of any other Indebtedness since the first day
of the period as if such Indebtedness was issued or retired at the beginning of
the period and (iii) the acquisition of any company or business acquired by the
Company or any Subsidiary since the first day of the period (including giving
effect to the pro forma historical earnings of such company or business),
including any acquisition which will be consummated contemporaneously with the
issuance of such Indebtedness, as if in each case such acquisition occurred at
the beginning of the period) exceeds a ratio of 1.6 to 1.0
and (ii), immediately after giving effect to the issuance of such Indebtedness
and
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(if applicable) the application of the net proceeds thereof to refinance
other Indebtedness, the Consolidated Leverage Ratio is equal to or less than a
ratio of 0.75 to 1.0.
(b) Notwithstanding the foregoing paragraph, the Company or any
Restricted Subsidiary may issue, directly or indirectly, the following
Indebtedness:
(1) Revolving Indebtedness to banks not to exceed $1,000,000,000 in the
aggregate outstanding principal amount at any time;
(2) Indebtedness (other than Indebtedness described in clause (1) of
this Subsection) outstanding on the date of the original Indenture, as set
forth on Schedule 510(b)(2) attached hereto and made a part hereof, and
Indebtedness issued in exchange for, or the proceeds of which are used to
refund or refinance, any Indebtedness permitted by this clause (2);
provided, however, that (i) the principal amount (or accreted value in the
case of Indebtedness issued at a discount) of the Indebtedness so issued
shall not exceed the principal amount (or accreted value in the case of
Indebtedness issued at a discount) of, premium, if any, and accrued but
unpaid interest on, the Indebtedness so exchanged, refunded or refinanced
and (ii) the Indebtedness so issued (A) shall not mature prior to the
stated maturity of the Indebtedness so exchanged, refunded or refinanced,
(B) shall have an Average Life equal to or greater than the remaining
Average Life of the Indebtedness so exchanged, refunded or refinanced and
(C) if the Indebtedness to be exchanged, refunded or refinanced is
subordinated to the General Term Notes, the Indebtedness is subordinated
to the General Term Notes in right of payment;
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(3) Indebtedness of the Company owed to and held by a Subsidiary and
Indebtedness of a Subsidiary owed to and held by the Company; provided,
however, that, in the case of Indebtedness of the Company owed to and held
by a Subsidiary, (i) any subsequent issuance or transfer of any Capital
Stock that results in any such Subsidiary ceasing to be a Subsidiary or
(ii) any transfer of such Indebtedness (except to the Company or a
Subsidiary) shall be deemed for the purposes of this Subsection to
constitute the issuance of such Indebtedness by the Company;
(4) Indebtedness of the Company issued in exchange for, or the proceeds
of which are used to refund or refinance, Indebtedness of the Company
issued in accordance with Subsection (a) of this Section, provided that
(i) the principal amount (or accreted value in the case of Indebtedness
issued at a discount) of the Indebtedness so issued shall not exceed the
principal amount (or accreted value in the case of Indebtedness issued at
a discount) of, premium, if any, and accrued but unpaid interest on, the
Indebtedness so exchanged, refunded or refinanced and (ii) the
Indebtedness so issued (A) shall not mature prior to the stated maturity
of the Indebtedness so exchanged, refunded or refinanced, (B) shall have
an Average Life equal to or greater than the remaining Average Life of the
Indebtedness so exchanged, refunded or refinanced and (C) if the
Indebtedness to be exchanged, refunded or refinanced is subordinated to
the General Term Notes, the Indebtedness so issued is subordinated to the
General Term Notes in right of payment; and
(5) Indebtedness of a Restricted Subsidiary issued in exchange for, or
the proceeds of which are used to refund or refinance, Indebtedness of a
Restricted Subsidiary issued in accordance with Subsection (a) of this
Section, provided that (i) the principal amount (or accreted value in the
case of Indebtedness issued at a discount) of the Indebtedness so issued
shall not exceed the principal amount (or accreted value in the case of
Indebtedness
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issued at a discount) of, premium, if any, and accrued but unpaid interest
on, the Indebtedness so exchanged, refunded or refinanced and (ii) the
Indebtedness so issued (A) shall not mature prior to the stated maturity
of the Indebtedness so exchanged, refunded or refinanced and (B) shall
have an Average Life equal to or greater than the remaining Average Life
of the Indebtedness so exchanged, refunded or refinanced.
SECTION 511. Limitation on Restricted Payments. (a) So long as
the General Term Notes are Outstanding and until the General Term Notes are
rated BBB- or above (or an equivalent rating) by Standard & Poor's and one Other
Rating Agency (or if Standard & Poor's shall change its rating system, an
equivalent of such rating then employed by such organization) at which time the
Company shall be permanently released from the provision of this Section 511,
the Company shall not, and shall not permit any Restricted Subsidiary of the
Company, directly or indirectly, to (i) declare or pay any dividend or make any
distribution on the Capital Stock of the Company to the direct or indirect
holders of the Capital Stock of the Company (except dividends or distributions
payable solely in Non-Convertible Capital Stock of the Company or in options,
warrants or other rights to purchase such Non-Convertible Capital Stock and
except dividends or distributions payable to the Company or a Subsidiary), (ii)
purchase, redeem or otherwise acquire or retire for value any Capital Stock of
the Company (any such dividend, distribution, purchase, redemption, other
acquisition or retirement being hereinafter referred to as a "Restricted
Payment") if at the time the Company or such Subsidiary makes such Restricted
Payment:
(1) an Event of Default, or an event that with the lapse
of time or the giving of notice or both would constitute an Event of
Default, shall have occurred and be continuing (or would result
therefrom); or
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(2) the aggregate amount of such Restricted Payment and
all other Restricted Payments made since September 30, 1993, would
exceed the sum of:
(A) $120,000,000;
(B) 100% of Consolidated Net Income, accrued during the
period (treated as one accounting period) from September 30, 1993
to the end of the most recent fiscal quarter ending at least 45
days prior to the date of such Restricted Payment (or, in case
such sum shall be a deficit, minus 100% of the deficit); and
(C) the aggregate Net Proceeds received by the Company
from the issue or sale of or contribution with respect to its
Capital Stock subsequent to September 30, 1993.
For the purpose of determining the amount of any Restricted Payment not in the
form of cash, the amount shall be the fair value of such Restricted Payment as
determined in good faith by the Board of Directors, provided that if the value
of the non-cash portion of such Restricted Payment as determined by the Board of
Directors is in excess of $25 million, such value shall be based on the opinion
from a nationally recognized firm experienced in the appraisal of similar types
of transactions.
(b) The provisions of Section 511(a) shall not prohibit:
(i) any purchase or redemption of Capital Stock of the
Company made by exchange for, or out of the proceeds of the
substantially concurrent sale of, Capital Stock of the Company
(other than Redeemable Stock or Exchangeable Stock); provided,
however, that such purchase or redemption
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shall be excluded from the calculation of the amount of
Restricted Payments;
(ii) dividends or other distributions paid in respect of
any class of the Company's Capital Stock issued in respect of the
acquisition of any business or assets by the Company or a
Restricted Subsidiary if the dividends or other distributions
with respect to such Capital Stock are payable solely from the
net earnings of such business or assets;
(iii) dividends paid within 60 days after the date of
declaration thereof if at such date of declaration such dividend
would have complied with this Section; provided, however, that at
the time of payment of such dividend, no Event of Default shall
have occurred and be continuing (or result therefrom), and
provided further, however, that such dividends shall be included
(without duplication) in the calculation of the amount of
Restricted Payments; or
(iv) payments pursuant to the Tax-Sharing Agreement.
SECTION 512. Limitation on Transactions with Affiliates. So long
as any of the General Term Notes are Outstanding, the Company shall not directly
or indirectly, conduct any business or enter into any transaction or series of
related transactions (including the purchase, sale, lease or exchange of any
property or the rendering of any service) with an Affiliate unless the terms of
such business, transaction or series of transactions are as favorable to the
Company as terms that could be obtainable at the time for a comparable
transaction or series of related transactions in arm's-length dealings with an
unrelated third Person. This Section shall not apply to (x) compensation paid to
officers and directors of the Company which has been approved by the Board of
Directors of the Company or (y) loans to
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the Company or an Affiliate pursuant to a global cash management program, which
loans mature within one year from the date thereof.
ARTICLE VI
ADDITIONAL EVENTS OF DEFAULT
WITH RESPECT TO THE GENERAL TERM NOTES
SECTION 601. Definition. All of the events specified in Section
501 of the Indenture and the events specified in Section 602 of this Article
shall be "Events of Default" with respect to the General Term Notes.
SECTION 602. Additional Events of Default. As contemplated by
Sections 301(15) and 501(7) of the Indenture, any one of the following events
(whatever the reason for such Event of Default and whether or not it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body) shall be an Event of Default with respect
to the General Term Notes for all purposes of the Indenture:
(a) a default or event of default in respect of any Indebtedness
of the Company having an aggregate outstanding principal amount at the time of
such default in excess of $25,000,000 shall occur which results in the
acceleration of such Indebtedness or Indebtedness of the Company having an
outstanding principal amount at maturity in excess of $25,000,000 shall not be
paid at maturity thereof, which default shall not have been waived by the holder
or holders of such Indebtedness within 30 days of such default; or
(b) the entry of a final judgment or judgments against the Company
aggregating in excess of $25,000,000 which remain undischarged or unbonded for a
period (during which execution shall not be effectively stayed) of 60 days.
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ARTICLE VII
GLOBAL NOTES
The General Term Notes will be issued initially in the form of
Global Notes. "Global Note" means a registered General Term Note evidencing one
or more General Term Notes issued to a depositary (the "Depositary") or its
nominee, in accordance with this Article and bearing the legend prescribed in
this Article. A single Global Note will represent all General Term Notes issued
on the same date and having the same terms, including, but not limited to, the
same Interest Payment Dates, rate of interest, Stated Maturity, and redemption
provisions (if any). The Company shall execute and the Trustee shall, in
accordance with this Article and the Company Order with respect to the General
Term Notes, authenticate and deliver one or more Global Notes in temporary or
permanent form that (i) shall represent and shall be denominated in an aggregate
amount equal to the aggregate principal amount of the General Term Notes to be
represented by such Global Note or Notes, (ii) shall be registered in the name
of the Depositary for such Global Note or Notes or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions and (iv) shall bear a legend
substantially to the following effect: "Unless this Global Note is presented by
an authorized representative of the Depositary to the Company or its agent for
registration of transfer, exchange or payment, and any Note issued is registered
in the name of the Depositary or in such other name as is requested by the
Depositary, any transfer, pledge or other use hereof for value or otherwise by
or to any person shall be wrongful inasmuch as the registered owner hereof, the
Depositary, has an interest herein."
Notwithstanding Section 305 of the Indenture, unless and until it
is exchanged in whole or in part for General Term Notes in definitive form, a
Global Note representing one or more General Term Notes may not be transferred
except as a whole by the Depositary, to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
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Depositary or by such Depositary or any such nominee to a successor Depositary
for General Term Notes or a nominee of such successor Depositary.
If at any time the Depositary for the General Term Notes is
unwilling or unable to continue as Depositary for the General Term Notes, the
Company shall appoint a successor Depositary with respect to the General Term
Notes. If a successor Depositary for the General Term Notes is not appointed by
the Company by the earlier of (i) 90 days from the date the Company receives
notice to the effect that the Depositary is unwilling or unable to act, or the
Company determines that the Depositary is unable to act or (ii) the
effectiveness of the Depositary's resignation or failure to fulfill its duties
as Depositary, the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive General Term
Notes, will authenticate and deliver General Term Notes in definitive form in an
aggregate principal amount equal to the principal amount of the Global Note or
Notes representing such General Term Notes in exchange for such Global Note or
Notes.
The Company may at any time and in its sole discretion determine
that the General Term Notes issued in the form of one or more Global Notes shall
no longer be represented by such Global Note or Notes. In such event the Company
will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive General Term Notes, will authenticate
and deliver General Term Notes in definitive form in an aggregate principal
amount equal to the principal amount of the Global Note or Notes representing
such General Term Notes in exchange for such Global Note or Notes.
The Depositary for such General Term Notes may surrender a Global
Note or Notes for such General Term Notes in exchange in whole or in part for
General Term Notes in definitive form on such terms as are acceptable to the
Company and
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such Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge:
(i) to each Person specified by such Depositary a new General
Term Note or Notes, of any authorized denomination as requested
by such Person in aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the Global
Note; and
(ii) to such Depositary a new Global Note in a denomination
equal to the difference, if any, between the principal amount of
the surrendered Global Note and the aggregate principal amount of
General Term Notes in definitive form delivered to Holders
thereof.
In any exchange provided for in this Article, the Company will
execute and the Trustee will authenticate and deliver General Term Notes in
definitive registered form in authorized denominations.
Upon the exchange of a Global Note for General Term Notes in
definitive form, such Global Note shall be canceled by the Trustee. General Term
Notes in definitive form issued in exchange for a Global Note pursuant to this
Article shall be registered in such names and in such authorized denominations
as the Depositary for such Global Note, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee or Security
Registrar. The Trustee shall deliver such General Term Notes to the persons in
whose names such General Term Notes are so registered.
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ARTICLE VIII
DEFEASANCE
All of the provisions of Article Fourteen of the Original
Indenture shall be applicable to the General Term Notes. Upon satisfaction by
the Company of the requirements of Section 1404 of the Indenture, in connection
with any covenant defeasance (as provided in Section 1403 of the Indenture), the
Company shall be released from its obligations under Article Eight of the
Original Indenture and under Articles III and V of this Fifth Supplemental
Indenture with respect to the General Term Notes.
ARTICLE IX
SUPPLEMENTAL INDENTURES
This Fifth Supplemental Indenture is a supplement to the Original
Indenture. As supplemented by this Fifth Supplemental Indenture, the Original
Indenture is in all respects ratified, approved and confirmed, and the Original
Indenture and this Fifth Supplemental Indenture shall together constitute one
and the same instrument.
The Company may, by supplemental indenture, amend this Fifth
Supplemental Indenture to provide for additional definitions, terms and
provisions relating to General Term Notes. Any such supplemental indenture shall
not adversely affect the rights and privileges of Holders of General Term Notes
issued prior to such supplemental indenture. Any such supplemental indenture may
include,
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but is not limited to including, additional provisions permitting payment of
General Term Notes prior to Stated Maturity at the option of the Holders,
issuance of General Term Notes in currencies other than Dollars, and special
provisions relating to interest rate provisions.
TESTIMONIUM
This Fifth Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental
Indenture to be duly executed and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first written above.
CMS ENERGY CORPORATION
BY: Alan M. Wright
-----------------------------------
Name: Alan M. Wright
Title: Senior Vice President and
Chief Financial Officer
Attest:
Thomas A. McNish
- ------------------------------------ (Corporate Seal)
Name: Thomas A. McNish
Title: Vice President and Secretary
THE CHASE MANHATTAN BANK
as Trustee
By: William G. Keenan
---------------------
Attest:
William B. Dodge
- ------------------------------------
William B. Dodge
Vice President
50
<PAGE> 51
Schedule 510(b)(2)
Indebtedness of CMS Energy Corporation outstanding on January 20, 1994:
1. $146,000,000 of Series A Senior Deferred Coupon Notes due 1997; and
2. $248,000,000 of Series B Senior Deferred Coupon Notes due 1999.
51
<PAGE> 1
EXHIBIT 5(a)
November 12, 1998
CMS Energy Corporation
Fairlane Plaza South
330 Town Center Drive
Suite 1100
Dearborn, MI 48126
Ladies and Gentlemen:
I am the Assistant General Counsel of CMS Energy Corporation, a
Michigan corporation ("CMS Energy" or the "Company"), and have acted as such in
connection with the Registration Statement on Form S-3 (the "Registration
Statement") being filed by the Company with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act"), relating to the additional registration of 169,964 shares
($7,850,500) of CMS Energy Common Stock, $.01 par value ("CMS Energy Common
Stock"). The offered securities are sometimes referred to as the "Securities."
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 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.
<PAGE> 2
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 the corporate power and authority to
authorize and sell the CMS Energy Common Stock.
3. The CMS Energy Common Stock will be legally issued,
fully paid and non-assessable when: (i) the
Registration Statement, as finally amended, shall
have become effective under the Securities Act; (ii)
the Company's Board of Directors or a duly authorized
committee thereof shall have duly adopted final
resolutions authorizing the issuance and sale of the
CMS Energy Common Stock, as contemplated by the
Registration Statement and prospectus supplement
relating thereto; and (iii) upon delivery and
purchase, when certificates representing the CMS
Energy Common Stock shall have been duly executed,
countersigned and registered and 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 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 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. Van Hemert
------------------------------
Michael D. Van Hemert
<PAGE> 1
EXHIBIT (15A)
[ARTHUR ANDERSEN LLP LETTERHEAD]
To CMS Energy Corporation:
We are aware that CMS Energy Corporation has incorporated by reference
in this registration statement its Form 10-Q for the quarter ended March 31,
1998, which includes our report dated May 11, 1998, covering the unaudited
interim financial information contained therein. In June 1998, CMS Energy
Corporation changed its method of accounting for its investments in oil and gas
properties from the full cost method of accounting to the successful efforts
method of accounting. The interim financial information contained therein has
not been restated to reflect the change in accounting. However, CMS Energy
Corporation's Form 8-K dated July 30, 1998 contains certain restated financial
information for the quarter ended March 31, 1998 such information has not been
subject to audit or review procedures. Pursuant to this change in accounting,
our report contained therein has not been modified to reflect this change in
accounting. 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.
Arthur Andersen LLP
Detroit, Michigan,
November 10, 1998.
<PAGE> 2
EXHIBIT (15B)
[ARTHUR ANDERSEN LLP LETTERHEAD]
To CMS Energy Corporation:
We are aware that CMS Energy Corporation has incorporated by reference
in this registration statement its Form 10-Q for the quarter ended June 30, 1998
and its Form 10-Q for the quarter ended September 30, 1998, which includes our
reports dated August 11, 1998 and November 10, 1998, 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.
Arthur Andersen LLP
Detroit, Michigan,
November 10, 1998.
<PAGE> 1
EXHIBIT (23)
[ARTHUR ANDERSEN LLP LETTERHEAD]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
July 27, 1998 included or incorporated by reference in CMS Energy Corporation's
Form 8-K dated July 30, 1998 and to all references to our Firm included in this
registration statement.
Arthur Andersen LLP
Detroit, Michigan,
November 10, 1998.
