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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 7, 1999
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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CMS ENERGY CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
MICHIGAN (State or other jurisdiction of incorporation 38-2726431 (I.R.S. Employer Identification No.) ALAN M.
or organization) FAIRLANE PLAZA SOUTH 330 TOWN CENTER WRIGHT SENIOR VICE PRESIDENT AND CHIEF FINANCIAL
DRIVE, SUITE 1100 DEARBORN, MICHIGAN 48126 (313) OFFICER CMS ENERGY CORPORATION FAIRLANE PLAZA SOUTH 330
436-9200 (Address, including zip code, and telephone TOWN CENTER DRIVE, SUITE 1100 DEARBORN, MICHIGAN 48126
number, including, area code, of registrant's principal (313) 436-9200 (Name, address, including zip code, and
offices) telephone number, including area code, of agent for
service)
</TABLE>
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It is respectfully requested that the Commission send copies of all notices,
orders and communications to:
MICHAEL D. VAN HEMERT, ESQ.
ASSISTANT GENERAL COUNSEL
CMS ENERGY CORPORATION
FAIRLANE PLAZA SOUTH
330 TOWN CENTER DRIVE, SUITE 1100
DEARBORN, MICHIGAN 48126
(313) 436-9602
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement as determined by
market and other conditions.
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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. [ ]
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. [ ]
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
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PROPOSED PROPOSED
TITLE OF EACH CLASS OF AMOUNT TO BE MAXIMUM OFFERING MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1)(3) PRICE PER SECURITY(1)(2) OFFERING PRICE(1)(2) REGISTRATION FEE(1)
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<S> <C> <C> <C> <C>
Senior Debt Securities..................
Subordinated Debt Securities............
Total................................... $375,000,000 100% $375,000,000 $83,400(3)
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</TABLE>
(1) There are being registered hereunder such presently indeterminate principal
amount or number of debts securities which may be senior or subordinated.
(2) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(o) under the Securities Act of 1933 which permits the
registration fee to be calculated on the basis of the maximum offering price
of all the securities listed, the table does not specify by each class
information as to the amount to be registered, proposed maximum offering
price per unit or proposed maximum aggregate offering price.
(3) Pursuant to Rule 429 of the Securities Act of 1933, as amended, the
prospectus contained herein also relates to the $550,000,000 of senior and
subordinated debt securities of the registrant contained in the Registration
Statement on Form S-3 (File No. 33-47629) of which $75,000,000 is being
carried forward. The filing fee associated with the securities carried
forward and previously paid with the earlier registration statement is
$23,438.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED APRIL 7, 1999
CMS ENERGY CORPORATION
SENIOR DEBT SECURITIES
SUBORDINATED DEBT SECURITIES
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We may offer up to $375,000,000 aggregate principal amount of our unsecured
senior debt securities and our unsecured subordinated debt securities consisting
of debentures, notes and other unsecured evidence of indebtedness, or any
combination of these securities. For each type of the securities, the amount,
price and terms will be determined at or prior to the time of sale.
We will provide the specific terms of these securities in an accompanying
prospectus supplement or supplements. You should read this prospectus and the
accompanying prospectus supplement carefully before you invest.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
accuracy or adequacy of this prospectus. Any representation to the contrary is a
criminal offense.
This prospectus may not be used to consummate sales of these securities unless
accompanied by a prospectus supplement.
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The date of this prospectus is April 7, 1999
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THIS PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO
SELL OR THE SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE
SECURITIES TO WHICH THEY RELATE OR AN OFFER TO SELL OR THE SOLICITATION OF AN
OFFER TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR
SOLICITATION IS UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY
PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED OR
INCORPORATED HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE
OF SUCH INFORMATION.
WHERE TO FIND MORE INFORMATION
We file annual, quarterly and current reports as well as other information
with the Securities and Exchange Commission. The public may read and copy any
reports or other information that we file at the SEC's public reference room at
Judiciary Plaza, 450 Fifth Street N.W., Washington, D.C., 20549. The public may
obtain information on the operation of the public reference room by calling the
SEC at 1(800) SEC-0330. Our SEC filings are also available to the public from
commercial document retrieval services and at the web site maintained by the SEC
at "http://www.sec.gov."
We have securities listed on the New York Stock Exchange. You can inspect
and copy reports and other information about us at the NYSE's offices at 20
Broad Street, New York, New York 10005.
We are "incorporating by reference" information into this registration
statement. This means that we are disclosing important information by referring
to another document filed separately with the SEC. The information incorporated
by reference is deemed to be part of this registration statement, except for any
information superseded by information in this registration statement. This
registration statement incorporates by reference the documents set forth below
that we have previously filed with the SEC. These documents contain important
information about us and our finances.
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<S> <C>
SEC FILINGS (FILE NO. 1-9513) PERIOD/DATE
- - Registration Statement on Form 8-B/A November 21, 1996
- - Annual Report on Form 10-K Year ended December 31, 1998
- - Current Reports on Form 8-K Filed January 20, 1999 and April 6, 1999
</TABLE>
The documents we have filed with the SEC after the date of this
registration statement and prior to the termination of the offering made by this
prospectus are also incorporated by reference into this registration statement.
You may request a copy of these filings at no cost, by writing or
telephoning CMS Energy at the following address:
CMS Energy Corporation
Attn: Office of the Secretary
Fairlane Plaza South, Suite 1100
330 Town Center Drive
Dearborn, Michigan 48126
Telephone: (313) 436-9200
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized anyone to provide you with
information that is different from this information.
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CMS ENERGY CORPORATION
We are a leading diversified energy company operating in the United States
and around the world. Our two principal subsidiaries are Consumers Energy
Company ("CONSUMERS") and CMS Enterprises Company ("ENTERPRISES"). Consumers is
a public utility that provides natural gas and electricity to almost six million
of the nine and one-half million residents in Michigan's Lower Peninsula.
Enterprises, through subsidiaries, is engaged in several domestic and
international energy businesses including:
- Transmission, storage and processing of natural gas;
- Independent power production;
- Oil and gas exploration and production;
- International energy distribution; and
- Energy marketing, services and trading.
Our consolidated operating revenue in 1998 was $5.1 billion. 51% of our
consolidated operating revenue was derived from electric utility operations, 21%
from gas utility operations, 18% from energy marketing, services and trading
operations, 6% from independent power production and other non-utility
operations, 3% from transmission, storage and processing of natural gas, and 1%
from oil and gas exploration and production operations.
Consumers' consolidated operations currently account for a majority of our
total assets, revenues and income. Consumers' service areas include automotive,
metal, chemical, food and wood products and a diversified group of other
industries. At year end 1998, Consumers provided service to 1.64 million
electric customers and 1.55 million gas customers. Consumers' consolidated
operating revenue in 1998 was $3.7 billion. 70% of Consumers' operating revenue
was generated from its electric utility business, 29% from its gas utility
business and 1% from its non-utility business. Consumers' rates and certain
other aspects of its business are subject to the jurisdiction of the Michigan
Public Service Commission and the Federal Energy Regulatory Commission.
Consumers' nuclear operations are subject to the jurisdiction of the Nuclear
Regulatory Commission.
We routinely evaluate, invest in, acquire and divest energy-related assets
and/or businesses both domestically and internationally. Cash or securities are
routinely the consideration for such transactions.
We were incorporated in Michigan in 1987 and our world wide web address is
http://www.cmsenergy.com. Our web site is not part of this Prospectus. Our
principal executive office address is Fairlane Plaza South, Suite 1100, 330 Town
Center Drive, Dearborn, Michigan 48126. Our telephone number is (313) 436-9200.
The information we have provided about ourselves above is not
comprehensive. For further information about us and our subsidiaries including
our capital requirements, business plans, external financing plans and legal and
regulatory affairs, please refer to the documents incorporated by reference into
this prospectus. See "Where to Find More Information" above.
USE OF PROCEEDS
As will be more specifically set forth in the applicable prospectus
supplement, we will use the net proceeds received from the sale of the unsecured
senior or subordinated debt securities offered for our general corporate
purposes, including capital expenditures, investment in subsidiaries, working
capital and repayment of debt.
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RATIO OF EARNINGS TO FIXED CHARGES
Our ratios of earnings to fixed charges for each of the years ended
December 31, 1994 through 1998 are as follows:
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<CAPTION>
YEAR ENDED DECEMBER 31
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1998 1997 1996 1995 1994
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<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges................... 1.59 1.78 1.96 1.90 2.07
</TABLE>
For the purpose of computing such ratios, earnings represent net income
before income taxes, net interest charges and the estimated interest portion of
lease rentals.
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DESCRIPTION OF DEBT SECURITIES
The debt securities offered by this prospectus will be unsecured
obligations of CMS Energy and will be either senior or subordinated debt. Senior
debt will be issued under a senior debt indenture and subordinated debt will be
issued under a subordinated debt indenture. The senior debt indenture and the
subordinated debt indenture are sometimes referred to in this prospectus
individually as an "indenture" and collectively as the "indentures."
The following briefly summarizes the material provisions of the indentures
and the debt securities. You should read the more detailed provisions of the
applicable indenture, including the defined terms, for provisions that may be
important to you. You should also read the particular terms of a series of debt
securities, which will be described in more detail in the applicable prospectus
supplement. Copies of the indentures may be obtained from CMS Energy or the
applicable trustee.
Unless otherwise provided in the applicable prospectus supplement, the
trustee under the senior debt indenture will be NBD Bank and the trustee under
the subordinated debt indenture will be The Bank of New York.
GENERAL
The indentures provide that unsecured senior or subordinated debt
securities of CMS Energy may be issued in one or more series, with different
terms, in each case as authorized from time to time by CMS Energy.
Federal income tax consequences and other special considerations applicable
to any debt securities issued by CMS Energy at a discount will be described in
the applicable prospectus supplement.
Because CMS Energy is a holding company, the claims of creditors of CMS
Energy's subsidiaries will have a priority over CMS Energy's equity rights and
the rights of CMS Energy's creditors, including the holders of debt securities,
to participate in the assets of the subsidiary upon the subsidiary's
liquidation.
The applicable prospectus supplement relating to any series of debt
securities will describe the following terms, where applicable:
- the title of the debt securities;
- whether the debt securities will be senior or subordinated debt;
- the total principal amount of the debt securities;
- the percentage of the principal amount at which the debt securities will
be sold and, if applicable, the method of determining the price;
- the maturity date or dates;
- the interest rate or the method of computing the interest rate;
- the date or dates from which any interest will accrue, or how such date
or dates will be determined, and the interest payment date or dates and
any related record dates;
- the location where payments on the debt securities will be made;
- the terms and conditions on which the debt securities may be redeemed at
the option of CMS Energy;
- any obligation of CMS Energy to redeem, purchase or repay the debt
securities at the option of a holder upon the happening of any event and
the terms and conditions of redemption, purchase or repayment;
- any provisions for the discharge of CMS Energy's obligations relating to
the debt securities by deposit of funds or United States government
obligations;
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- whether the debt securities are to trade in book-entry form and the terms
and any conditions for exchanging the global security in whole or in part
for paper certificates;
- any material provisions of the applicable indenture described in this
prospectus that do not apply to the debt securities;
- any additional amounts with respect to the debt securities that CMS
Energy will pay to a non-United States person because of any tax,
assessment or governmental charge withheld or deducted and, if so, any
option of CMS Energy to redeem the debt securities rather than paying
these additional amounts; and
- any other specific terms of the debt securities.
CONCERNING THE TRUSTEES
Each of NBD Bank, the trustee under the senior debt indenture, and The Bank
of New York, the trustee under the subordinated debt indenture, is one of a
number of banks with which CMS Energy and its subsidiaries maintain ordinary
banking relationships, including credit facilities.
Exchange and Transfer. Debt securities may be presented for exchange and
registered debt securities may be presented for registration of transfer at the
offices and subject to the restrictions set forth therein and in the applicable
prospectus supplement without service charge, but upon payment of any taxes or
other governmental charges due in connection therewith, subject to any
limitations contained in the applicable indenture. Debt securities in bearer
form and the coupons appertaining thereto, if any, will be transferable by
delivery.
Payment. Distributions on the debt securities in registered form will be
made at the office or agency of the applicable trustee in the Borough of
Manhattan, the City of New York or its other designated office. However, at the
option of CMS Energy, payment of any interest may be made by check or by wire
transfer. Payment of any interest due on debt securities in registered form will
be made to the persons in whose name the debt securities are registered at the
close of business on the record date for such interest payments. Payments made
in any other manner will be specified in the prospectus supplement.
Events of Default. Each indenture provides that events of default regarding
any series of debt securities will be:
- failure to pay required interest on any debt security of such series for
30 days;
- failure to pay principal other than a scheduled installment payment or
premium, if any, on any debt security of such series when due;
- failure to make any required scheduled installment payment for 30 days on
debt securities of such series;
- failure to perform for 90 days after notice any other covenant in the
relevant indenture other than a covenant included in the relevant
indenture solely for the benefit of a series of debt securities other
than such series;
- certain events of bankruptcy or insolvency, whether voluntary or not; or
- entry of final judgments against CMS Energy or Consumers for more than
$25,000,000 which remain undischarged or unbonded for 60 days or a
default resulting in the acceleration of indebtedness of CMS Energy or
Consumers more than $25,000,000, and the acceleration has not been
rescinded or annulled within 10 days after written notice of such default
as provided in the applicable indenture; and
Additional events of default may be prescribed for the benefit of the
holders of a particular series of debt securities and will be described in the
prospectus supplement relating to those debt securities.
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If an event of default regarding debt securities of any series issued under
the indentures should occur and be continuing, either the trustee or the holders
of 25% in the principal amount of outstanding debt securities of such series may
declare each debt security of that series due and payable.
Holders of a majority in principal amount of the outstanding debt
securities of any series will be entitled to control certain actions of the
trustee under the indentures and to waive past defaults regarding such series.
The trustee generally will not be requested, ordered or directed by any of the
holders of debt securities, unless one or more of such holders shall have
offered to the trustee reasonable security or indemnity.
Before any holder of any series of debt securities may institute action for
any remedy, except payment on such holder's debt security when due, the holders
of not less than 25% in principal amount of the debt securities of that series
outstanding must request the trustee to take action. Holders must also offer and
give the satisfactory security and indemnity against liabilities incurred by the
trustee for taking such action.
CMS Energy is required to annually furnish the relevant trustee a statement
as to CMS Energy's compliance with all conditions and covenants under the
applicable indenture. Each indenture provides that the relevant trustee may
withhold notice to the holders of the debt securities of any series of any
default affecting such series, except payment on holders' debt securities when
due, if it considers withholding notice to be in the interests of the holders of
the debt securities of such series.
Consolidation, Merger or Sale of Assets. Each indenture provides that CMS
Energy may consolidate with or merge into, or sell, lease or convey its property
as an entirety or substantially as an entirety to, any other corporation if the
new corporation assumes the obligations of CMS Energy under the debt securities
and the indentures and is organized and existing under the laws of the United
States of America, any U.S. state or the District of Columbia.
Modification of the Indenture. Each indenture permits CMS Energy and the
relevant trustee to enter into supplemental indentures without the consent of
the holders of the debt securities to establish the form and terms of any series
of securities under the indentures.
Each indenture also permits CMS Energy and the relevant trustee, with the
consent of the holders of at least a majority in total principal amount of the
debt securities of all series then outstanding and affected (voting as one
class), to change in any manner the provisions of the applicable indenture or
modify in any manner the rights of the holders of the debt securities of each
such affected series. CMS Energy and the relevant trustee may not, without the
consent of the holder of each debt security affected, enter into any
supplemental indenture to:
- change the time of payment of the principal;
- reduce the principal amount of such debt security;
- reduce the rate or change the time of payment of interest on such debt
security;
- reduce the amount payable on any securities issued originally at a
discount upon acceleration or provable in bankruptcy; or
- impair the right to institute suit for the enforcement of any payment on
any debt security when due.
In addition, no such modification may reduce the percentage in principal
amount of the debt securities of the affected series, the consent of whose
holders is required for any such modification or for any waiver provided for in
the applicable indenture.
Prior to the acceleration of the maturity of any debt security, the
holders, voting as one class, of a majority in total principal amount of the
debt securities with respect to which a default or event of default shall have
occurred and be continuing may on behalf of the holders of all such affected
debt securities waive any past default or event of default and its consequences,
except a default or an event of default in
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respect of a covenant or provision of the applicable indenture or of any debt
security which cannot be modified or amended without the consent of the holder
of each debt security affected.
Defeasance, Covenant Defeasance and Discharge. Each indenture provides
that, at the option of CMS Energy:
- CMS Energy will be discharged from all obligations in respect of the debt
securities of a particular series then outstanding (except for certain
obligations to register the transfer of or exchange the debt securities
of such series, to replace stolen, lost or mutilated debt securities of
such series, to maintain paying agencies and to maintain the trust
described below); or
- CMS Energy need not comply with certain restrictive covenants of the
relevant indenture (including those described under "Consolidation,
Merger or Sale of Assets") if CMS Energy in each case irrevocably
deposits in trust with the relevant trustee money, and/or securities
backed by the full faith and credit of the United States which, through
the payment of the principal thereof and the interest thereon in
accordance with their terms, will provide money in an amount sufficient
to pay all the distributions on the debt securities of such series on the
stated maturity of such debt securities in accordance with the terms
thereof.
To exercise this option, CMS Energy is required to deliver to the relevant
trustee an opinion of independent counsel to the effect that:
- the exercise of such option would not cause the holders of the debt
securities of such series to recognize income, gain or loss for United
States federal income tax purposes as a result of such defeasance, and
such holders will be subject to United States federal income tax on the
same amounts, in the same manner and at the same times as would have been
the case if such defeasance had not occurred; and
- in the case of a discharge as described in clause (1) of the preceding
paragraph, such opinion is to be accompanied by a private letter ruling
to the same effect received from the Internal Revenue Service, a revenue
ruling to such effect pertaining to a comparable form of transaction
published by the Internal Revenue Service or appropriate evidence that
since the date of the applicable indenture there has been a change in the
applicable federal income tax law.
In the event:
- CMS Energy exercises its option to effect a covenant defeasance with
respect to the debt securities of any series as described above,
- the debt securities of such series are thereafter declared due and
payable because of the occurrence of any event of default other than an
event of default caused by failing to comply with the covenants which are
defeased,
- the amount of money and securities on deposit with the relevant trustee
would be insufficient to pay amounts due on the debt securities of such
series at the time of the acceleration resulting from such event of
default,
CMS Energy would remain liable for such amounts.
CMS Energy may also obtain a discharge of each indenture with respect to
all debt securities then outstanding (except for certain obligations to register
the transfer of or exchange such debt securities, to replace stolen, lost or
mutilated debt securities, to maintain paying agencies and to maintain the trust
described below) by irrevocably depositing in trust with the relevant trustee
money, and/or securities backed by the full faith and credit of the United
States which, through the payment of the debt securities in accordance with
their terms, will provide money in an amount sufficient to pay all the principal
of and premium, if any, and interest on the debt securities on the stated
maturities thereof, provided that such debt securities are by their terms due
and payable, or are to be called for redemption, within one year.
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For United States federal income tax purposes any deposit contemplated in
the preceding paragraph would be treated as an exchange of the debt securities
outstanding for other property. Accordingly, holders of debt securities
outstanding may be required to recognize a gain or loss for United States
federal income tax purposes upon such exchange. In addition, such holders
thereafter may be required to recognize income from such property which could be
different from the amount that would be includable in the absence of such
deposit. Prospective investors are urged to consult their own tax advisors as to
the specific consequences to them of such deposit.
Governing Law. Each indenture and the debt securities will be governed by,
and construed in accordance with, the laws of the State of Michigan unless the
laws of another jurisdiction shall mandatorily apply.
SENIOR DEBT SECURITIES
The senior debt securities will be issued under the senior debt indenture
and will rank on an equal basis with all other unsecured debt of CMS Energy
except subordinated debt.
SUBORDINATED DEBT SECURITIES
Subordination. The subordinated debt securities will be issued under the
subordinated debt indenture and will rank subordinated and junior in right of
payment, to the extent set forth in the subordinated debt indenture, to all
"Senior Indebtedness" (as defined below) of CMS Energy.
If CMS Energy defaults in the payment of any distributions on any Senior
Indebtedness when it becomes due and payable after any applicable grace period,
then, unless and until the default is cured or waived or ceases to exist, CMS
Energy cannot make a payment on account of or redeem or otherwise acquire the
subordinated debt securities. The subordinated debt indenture provisions
described in this paragraph, however, do not prevent CMS Energy from making
sinking fund payments in subordinated debt securities acquired prior to the
maturity of Senior Indebtedness or, in the case of default, prior to such
default and notice thereof. If there is any insolvency, bankruptcy, liquidation
or other similar proceeding relating to CMS Energy, its creditors or its
property, then all Senior Indebtedness must be paid in full before any payment
may be made to any holders of subordinated debt securities. Holders of
subordinated debt securities must return and deliver any payments received by
them, other than in a plan of reorganization or through a defeasance trust as
described above, directly to the holders of Senior Indebtedness until all Senior
Indebtedness is paid in full.
"Senior Indebtedness" means distributions on the following, whether
outstanding on the date of execution of the subordinated debt indenture or
thereafter incurred, created or assumed:
- indebtedness of CMS Energy for money borrowed by CMS Energy or evidenced
by debentures (other than the subordinated debt securities), notes,
bankers' acceptances or other corporate debt securities or similar
instruments issued by CMS Energy;
- obligations of CMS Energy with respect to letters of credit;
- all indebtedness of others of the type referred to in the two preceding
clauses assumed by or guaranteed in any manner by CMS Energy or in effect
guaranteed by CMS Energy; or
- renewals, extensions or refundings of any of the indebtedness referred to
in the preceding three clauses unless, in the case of any particular
indebtedness, renewal, extension or refunding, under the express
provisions of the instrument creating or evidencing the same or the
assumption or guarantee of the same, or pursuant to which the same is
outstanding, such indebtedness or such renewal, extension or refunding
thereof is not superior in right of payment to the subordinated debt
securities.
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The subordinated debt indenture does not limit the total amount of Senior
Indebtedness that may be issued. As of December 31, 1998, Senior Indebtedness of
CMS Energy totaled approximately $2.766 billion.
LEGAL OPINIONS
Opinions as to the legality of certain of the debt securities will be
rendered for CMS Energy by Michael D. Van Hemert, Esq., Assistant General
Counsel for CMS Energy. Certain legal matters with respect to debt securities
will be passed upon by counsel for any underwriters, dealers or agents, each of
whom will be named in the related prospectus supplement.
EXPERTS
The consolidated financial statements and schedule of CMS Energy as of
December 31, 1998 and 1997, and for each of the three years in the period ended
December 31, 1998 incorporated by reference in this prospectus, have been
audited by Arthur Andersen LLP, independent public accountants, as indicated in
their reports with respect thereto, and are included herein in reliance upon the
authority of said firm as experts in accounting and auditing in giving said
reports.
Future consolidated financial statements of CMS Energy and the reports
thereon of Arthur Andersen LLP also will be incorporated by reference in this
prospectus in reliance upon the authority of that firm as experts in giving
those reports to the extent that said firm has audited said consolidated
financial statements and consented to the use of their reports thereon.
PLAN OF DISTRIBUTION
CMS Energy may sell the debt securities:
- through the solicitation of proposals of underwriters or dealers to
purchase the debt securities;
- through underwriters or dealers on a negotiated basis;
- directly to a limited number of purchasers or to a single purchaser; or
- through agents.
The prospectus supplement with respect to any debt securities will set
forth the terms of such offering, including the name or names of any
underwriters, dealers or agents; the purchase price of the debt securities and
the proceeds to CMS Energy from such sale; any underwriting discounts and
commissions and other items constituting underwriters' compensation; any initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers and any securities exchange on which such debt securities may be
listed. Any initial public offering price, discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
If underwriters are used in the sale, the debt securities will be acquired
by the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The debt
securities may be offered to the public either through underwriting syndicates
represented by one or more managing underwriters or directly by one or more
firms acting as underwriters. The underwriter or underwriters with respect to a
particular underwritten offering of debt securities will be named in the
prospectus supplement relating to such offering and, if an underwriting
syndicate is used, the managing underwriter or underwriters will be set forth on
the cover of such prospectus supplement. Unless otherwise set forth in the
prospectus supplement relating thereto, the obligations of the underwriters to
purchase the debt securities will be subject to certain conditions precedent,
and the underwriters will be obligated to purchase all the debt securities if
any are purchased.
10
<PAGE> 12
If dealers are utilized in the sale of debt securities, CMS Energy will
sell such debt securities to the dealers as principals. The dealers may then
resell such debt securities to the public at varying prices to be determined by
such dealers at the time of resale. The names of the dealers and the terms of
the transaction will be set forth in the prospectus supplement relating thereto.
The debt securities may be sold directly by CMS Energy or through agents
designated by CMS Energy from time to time. Any agent involved in the offer or
sale of the debt securities in respect to which this prospectus is delivered
will be named, and any commissions payable by CMS Energy to such agent will be
set forth, in the prospectus supplement relating thereto. Unless otherwise
indicated in the prospectus supplement, any such agent will be acting on a best
efforts basis for the period of its appointment.
The debt securities may be sold directly by CMS Energy to institutional
investors or others, who may be deemed to be underwriters within the meaning of
the Securities Act with respect to any resale thereof. The terms of any such
sales will be described in the prospectus supplement relating thereto.
Agents, dealers and underwriters may be entitled under agreements with CMS
Energy to indemnification by CMS Energy against certain civil liabilities,
including liabilities under the Securities Act, or to contribution with respect
to payments which such agents, dealers or underwriters may be required to make
in respect thereof. Agents, dealers and underwriters may be customers of, engage
in transactions with, or perform services for CMS Energy in the ordinary course
of business.
The debt securities may or may not be listed on a national securities
exchange. Reference is made to the prospectus supplement with regard to such
matter. No assurance can be given that there will be a market for any of the
debt securities.
11
<PAGE> 13
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<CAPTION>
AMOUNT
------
<S> <C>
Filing Fee -- Securities and Exchange Commission............ $ 83,400
*Trustees expenses.......................................... 18,000
*Printing and Engraving..................................... 200,000
*Services of counsel........................................ 50,000
*Services of independent public accountants, Arthur Andersen
LLP....................................................... 25,000
*Rating Agency Fees, Collateral Agent's and Purchase........ 100,000
*Blue Sky fees and expenses................................. 20,000
*Miscellaneous.............................................. 3,600
--------
TOTAL.................................................. $500,000
========
</TABLE>
- ---------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The following resolution was adopted by the Board of Directors of CMS
Energy on May 6, 1987:
RESOLVED: That effective March 1, 1987 the Corporation shall indemnify to
the full extent permitted by law every person (including the estate, heirs and
legal representatives of such person in the event of the decease, incompetency,
insolvency or bankruptcy of such person) who is or was a director, officer,
partner, trustee, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, partner, trustee,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against all liability, costs, expenses, including attorneys'
fees, judgments, penalties, fines and amounts paid in settlement, incurred by or
imposed upon the person in connection with or resulting from any claim or any
threatened, pending or completed action, suit or proceeding whether civil,
criminal, administrative, investigative or of whatever nature, arising from the
person's service or capacity as, or by reason of the fact that the person is or
was, a director, officer, partner, trustee, employee or agent of the Corporation
or is or was serving at the request of the Corporation as a director, officer,
partner, trustee, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise. Such right of indemnification shall not be
deemed exclusive of any other rights to which the person may be entitled under
statute, bylaw, agreement, vote of shareholders or otherwise.
CMS Energy's Bylaws provide:
The Corporation may purchase and maintain liability insurance, to the full
extent permitted by law, on behalf of any person who is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against such person and incurred by such person in any such
capacity.
Article VIII of CMS Energy's Articles of Incorporation provides:
A director shall not be personally liable to the Corporation or its
shareholders for monetary damages for breach of duty as a director except (I)
for a breach of the director's duty of loyalty to the Corporation or its
shareholders, (ii) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (iii) for a violation of
Section 551 (I) of the Michigan Business Corporation Act, and (iv) any action
from which the director derived an improper personal benefit. No amendment to or
repeal of this Article VIII, and no modification to its provisions by law, shall
apply to, or have any effect upon, the liability or alleged liability of any
director of the Corporation for or with respect to any acts or omissions of such
director occurring prior to such amendment, repeal or modification.
II-1
<PAGE> 14
Article IX of CMS Energy's Articles of Incorporation provides:
Each director and each officer of the Corporation shall be indemnified by
the Corporation to the fullest extent permitted by law against expenses
(including attorneys' fees), judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by him or her in connection with the
defense of any proceeding in which he or she was or is a party or is threatened
to be made a party by reason of being or having been a director or an officer of
the Corporation. Such right of indemnification is not exclusive of any other
rights to which such director or officer may be entitled under any now or
thereafter existing statute, any other provision of these Articles, bylaw,
agreement, vote of shareholders or otherwise. If the Business Corporation Act of
the State of Michigan is amended after approval by the shareholders of this
Article IX to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted by
the Business Corporation Act of the State of Michigan, as so amended. Any repeal
or modification of this Article IX by the shareholders of the Corporation shall
not adversely affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification.
Sections 561 through 571 of the Michigan Business Corporation Act provides
CMS Energy with the power to indemnify directors, officers, employees and agents
against certain expenses and payments, and to purchase and maintain insurance on
behalf of directors, officers, employees and agents.
Officers and directors are covered within specified monetary limits by
insurance against certain losses arising from claims made by reason of their
being directors or officers of CMS Energy or of CMS Energy's subsidiaries and
CMS Energy's officers and directors are indemnified against such losses by
reason of their being or having been directors of officers or another
corporation, partnership, joint venture, trust or other enterprise at CMS
Energy's request. In addition, CMS Energy has indemnified each of its present
directors by contracts that contain affirmative provisions essentially similar
to those in sections 561 through 571 of the Michigan Business Corporation Act
cited above.
II-2
<PAGE> 15
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C> <C>
(1)(a) -- Form of Underwriting Agreement with respect to the debt
securities.
*(3)(a) -- Restated Articles of Incorporation of CMS Energy.
(Designated in CMS Energy's Form S-4 Registration Statement
filed June 6, 1995, File No. 33-60007, as Exhibit 3(i).)
*(3)(b) -- By-Laws of CMS Energy. (Designated in CMS Energy's Form 10-K
for the year ended December 31, 1994, File No. 1-9513, as
Exhibit 3(c).)
*(4)(a) -- Indenture dated September 15, 1992 between CMS Energy
Corporation and NBD Bank, as Trustee. (Designated in CMS
Energy's Form S-3 Registration Statement filed May 1, 1992,
File No. 33-47629, as Exhibit 4(a).)
First Supplemental Indenture dated October 1, 1992 between
CMS Energy Corporation and NBD Bank, as Trustee. (Designated
in CMS Energy's Form 8-K dated October 1, 1992, File No.
1-9513, as Exhibit 4.)
Second Supplemental Indenture dated October 1, 1992 between
CMS Energy Corporation and NBD Bank, as Trustee. (Designated
in CMS Energy's Form 8-K dated October 1, 1992, File No.
1-9513, as Exhibit 4(a).)
Third Supplemental Indenture dated May 6, 1997 between CMS
Energy Corporation and NBD Bank, as Trustee. (Designated in
CMS Energy's Form 10-Q for the quarter ended March 31, 1997,
File No. 1-9513, as Exhibit 4.)
Fourth Supplemental Indenture dated September 26, 1997
between CMS Energy Corporation and NBD Bank, as Trustee.
(Designated in CMS Energy's Form S-3 Registration Statement
filed October 6, 1997, File No. 333-37241, as Exhibit 4(a).)
Fifth Supplemental Indenture dated November 4, 1997 between
CMS Energy Corporation and NBD Bank, as Trustee. (Designated
in CMS Energy's Form 10-Q for the quarter ended September
30, 1997, File No. 1-9513, as Exhibit 4(b).)
Sixth Supplemental Indenture dated January 13, 1998 between
CMS Energy Corporation and NBD Bank, as Trustee. (Designated
in CMS Energy's Form 10-K for the year ended December 31,
1997, File No. 1-9513, as Exhibit 4(a).)
Seventh Supplemental Indenture dated January 25, 1999
between CMS Energy Corporation and NBD Bank, as Trustee
(Designated in CMS Energy's Form 10-K for the year ended
December 31, 1998, File No. 1-9513, as Exhibit 4(d).)
Eighth Supplemental Indenture dated February 3, 1999 between
CMS Energy Corporation and NBD Bank, as Trustee (Designated
in CMS Energy's Form 10-K for the year ended December 31,
1998, File No. 1-9513, as Exhibit 4(d)(i).)
*(4)(b) -- Indenture dated as of January 15, 1994 between CMS Energy
Corporation and The Chase Manhattan Bank, as Trustee.
(Designated in CMS Energy's Form 8-K dated March 29, 1994,
File No. 1-9513, as Exhibit 4(b).)
First Supplemental Indenture dated January 20, 1994 between
CMS Energy Corporation and The Chase Manhattan Bank, as
Trustee. (Designated in CMS Energy's Form 8-K dated March
29, 1994, File No. 1-9513, as Exhibit 4(b).)
Second Supplemental Indenture dated March 19, 1996 between
CMS Energy Corporation and The Chase Manhattan Bank, as
Trustee. (Designated in CMS Energy's Form 10-Q for the
quarter ended March 31, 1996, File No. 1-9513, as Exhibit
4.)
Third Supplemental Indenture dated March 17, 1997 between
CMS Energy Corporation and The Chase Manhattan Bank, as
Trustee. (Designated in CMS Energy's Form 8-K dated May 1,
1997, File No. 1-9513, as Exhibit 4.)
</TABLE>
II-3
<PAGE> 16
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C> <C>
Fourth Supplemental Indenture dated September 17, 1997
between CMS Energy Corporation and The Chase Manhattan Bank,
as Trustee. (Designated in CMS Energy's Form S-3
Registration Statement filed September 22, 1997, File No.
333- 36115, as Exhibit 4(d).)
Fifth Supplemental Indenture dated August 26, 1998 between
CMS Energy Corporation and The Chase Manhattan Bank, as
Trustee. (Designated in CMS Energy's Form S-4 Registration
Statement filed September 10, 1998, File No. 333- 63229, as
Exhibit 4(c).)
*(4)(c) -- Indenture dated June 1, 1997 between CMS Energy Corporation
and The Bank of New York, as Trustee. (Designated in CMS
Energy's Form 8-K dated June 1, 1997, File No. 1-9513, as
Exhibit 4(a).)
First Supplemental Indenture dated June 20, 1997 between CMS
Energy Corporation and The Bank of New York, as Trustee.
(Designated in CMS Energy's Form 8-K dated July 1, 1997,
File No. 1-9513, as Exhibit 4(b).)
*(4)(d) -- Credit Agreement dated as of July 21, 1997, among CMS
Energy, the Banks, the Administrative Agent, the Collateral
Agent, the Documentation Agent, the Syndication Agent, the
Co-Agents and the Lead Manager, all as defined therein, and
the Exhibits and Schedules thereto. (Designated in CMS
Energy's Form 10-Q for the quarter ended June 30, 1997, File
no. 1-9513, as Exhibit 4.)
Amendment No. 1 dated January 30, 1998 to Credit Agreement
dated July 21, 1997, among CMS Energy, the Banks, the
Administrative Agent, the Collateral Agent, the
Documentation Agent, the Syndication Agent, the Co-Agents
and the Lead Manager, all as defined therein, and the
Exhibits thereto. (Designated in CMS Energy's Form S-4
Registration Statement file September 10, 1998, File No.
333-63229, as Exhibit 4(f).)
Amendment No. 2 dated November 2, 1998 to Credit Agreement
dated July 21, 1997, among CMS Energy, the Banks, the
Administrative Agent, the Collateral Agent, the
Documentation Agent, the Syndication Agent, the Co-Agents
and the Lead Manager, all as defined therein, and the
Exhibits thereto. (Designated in CMS Energy's Form 10-K for
the year ended December 31, 1998, File No. 1-9513, as
Exhibit 10(b).)
(5) -- Opinion of Michael D. VanHemert, Assistant General Counsel
for CMS Energy.
(12) -- Statement regarding computation of ratios of earnings to
fixed charges.
(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
(24) -- Powers of Attorney
(25)(a) -- Statement of Eligibility and Qualification (Form T-1) of NBD
Bank (Trustee under the Senior Debt Indenture).
(25)(b) -- Statement of Eligibility and Qualification (Form T-1) of The
Bank of New York (Trustee under the Subordinated Debt
Indenture).
</TABLE>
- ---------------
* Previously filed
Exhibits listed above which have been filed with the Securities and
Exchange Commission are incorporated herein by reference with the same effect as
if filed with this Registration Statement.
II-4
<PAGE> 17
ITEM 17. UNDERTAKINGS.
The undersigned registrants hereby undertake:
(1) To file a post-effective amendment to this registration statement
during any period in which offers or sales are being made:
(i) Include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) Reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low
or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) Include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement; provided, however, that (i) and (ii) do
not apply if the registration statement is on Form S-3 or Form
S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this registration statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions described under Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that as
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
be governed by the final adjudication of such issue.
(6) That (1) for purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance
II-5
<PAGE> 18
upon Rule 430A and contained in a form of prospectus filed by the registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be
deemed to be part of this Registration Statement as of the time it was declared
effective; and (2) for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
II-6
<PAGE> 19
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 April 7, 1999.
CMS ENERGY CORPORATION
By: /s/ A. M. WRIGHT
------------------------------------
Alan M. Wright
Senior Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in their
respective capacities as officers and/or directors of CMS Energy Corporation and
on the dates indicated.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on April 7, 1999.
<TABLE>
<CAPTION>
NAME TITLE
---- -----
<C> <C> <S>
(i) Principal executive officer:
/s/ WILLIAM T. MCCORMICK, JR. Chairman of the Board, Chief Executive Officer and
------------------------------------------ Director
William T. McCormick, Jr.
(ii) Principal financial officer:
/s/ A. M. WRIGHT Senior Vice President and Chief Financial Officer
------------------------------------------
Alan M. Wright
(iii) /s/ P. D. HOPPER Senior Vice President, Controller and Chief
------------------------------------------ Accounting Officer
Preston D. Hopper
* Director
------------------------------------------
(John M. Deutch)
* Director
------------------------------------------
(James J. Duderstadt)
* Director
------------------------------------------
(Kathleen R. Flaherty)
* Director
------------------------------------------
(Victor J. Fryling)
* Director
------------------------------------------
(Earl D. Holton)
</TABLE>
II-7
<PAGE> 20
NAME TITLE
---- -----
* Director
------------------------------------------
(William U. Parfet)
* Director
------------------------------------------
(Percy A. Pierre)
* Director
------------------------------------------
(Kenneth L. Way)
* Director
------------------------------------------
(Kenneth Whipple)
* Director
------------------------------------------
(John B. Yasinsky)
By: /s/ A. M. WRIGHT
------------------------------------------
Alan M. Wright
Attorney-in-Fact
II-8
<PAGE> 21
EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C> <C>
(1)(a) -- Form of Underwriting Agreement with respect to the debt
securities.
*(3)(a) -- Restated Articles of Incorporation of CMS Energy.
(Designated in CMS Energy's Form S-4 Registration Statement
filed June 6, 1995, File No. 33-60007, as Exhibit 3(i).)
*(3)(b) -- By-Laws of CMS Energy. (Designated in CMS Energy's Form 10-K
for the year ended December 31, 1994, File No. 1-9513, as
Exhibit 3(c).)
*(4)(a) -- Indenture dated September 15, 1992 between CMS Energy
Corporation and NBD Bank, as Trustee. (Designated in CMS
Energy's Form S-3 Registration Statement filed May 1, 1992,
File No. 33-47629, as Exhibit 4(a).)
First Supplemental Indenture dated October 1, 1992 between
CMS Energy Corporation and NBD Bank, as Trustee. (Designated
in CMS Energy's Form 8-K dated October 1, 1992, File No.
1-9513, as Exhibit 4.)
Second Supplemental Indenture dated October 1, 1992 between
CMS Energy Corporation and NBD Bank, as Trustee. (Designated
in CMS Energy's Form 8-K dated October 1, 1992, File No.
1-9513, as Exhibit 4(a).)
Third Supplemental Indenture dated May 6, 1997 between CMS
Energy Corporation and NBD Bank, as Trustee. (Designated in
CMS Energy's Form 10-Q for the quarter ended March 31, 1997,
File No. 1-9513, as Exhibit 4.)
Fourth Supplemental Indenture dated September 26, 1997
between CMS Energy Corporation and NBD Bank, as Trustee.
(Designated in CMS Energy's Form S-3 Registration Statement
filed October 6, 1997, File No. 333-37241, as Exhibit 4(a).)
Fifth Supplemental Indenture dated November 4, 1997 between
CMS Energy Corporation and NBD Bank, as Trustee. (Designated
in CMS Energy's Form 10-Q for the quarter ended September
30, 1997, File No. 1-9513, as Exhibit 4(b).)
Sixth Supplemental Indenture dated January 13, 1998 between
CMS Energy Corporation and NBD Bank, as Trustee. (Designated
in CMS Energy's Form 10-K for the year ended December 31,
1997, File No. 1-9513, as Exhibit 4(a).)
Seventh Supplemental Indenture dated January 25, 1999
between CMS Energy Corporation and NBD Bank, as Trustee
(Designated in CMS Energy's Form 10-K for the year ended
December 31, 1998, File No. 1-9513, as Exhibit 4(d).)
Eighth Supplemental Indenture dated February 3, 1999 between
CMS Energy Corporation and NBD Bank, as Trustee (Designated
in CMS Energy's Form 10-K for the year ended December 31,
1998, File No. 1-9513, as Exhibit 4(d)(i).)
*(4)(b) -- Indenture dated as of January 15, 1994 between CMS Energy
Corporation and The Chase Manhattan Bank, as Trustee.
(Designated in CMS Energy's Form 8-K dated March 29, 1994,
File No. 1-9513, as Exhibit 4(b).)
First Supplemental Indenture dated January 20, 1994 between
CMS Energy Corporation and The Chase Manhattan Bank, as
Trustee. (Designated in CMS Energy's Form 8-K dated March
29, 1994, File No. 1-9513, as Exhibit 4(b).)
Second Supplemental Indenture dated March 19, 1996 between
CMS Energy Corporation and The Chase Manhattan Bank, as
Trustee. (Designated in CMS Energy's Form 10-Q for the
quarter ended March 31, 1996, File No. 1-9513, as Exhibit
4.)
Third Supplemental Indenture dated March 17, 1997 between
CMS Energy Corporation and The Chase Manhattan Bank, as
Trustee. (Designated in CMS Energy's Form 8-K dated May 1,
1997, File No. 1-9513, as Exhibit 4.)
</TABLE>
II-9
<PAGE> 22
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C> <C>
Fourth Supplemental Indenture dated September 17, 1997
between CMS Energy Corporation and The Chase Manhattan Bank,
as Trustee. (Designated in CMS Energy's Form S-3
Registration Statement filed September 22, 1997, File No.
333-36115, as Exhibit 4(d).)
Fifth Supplemental Indenture dated August 26, 1998 between
CMS Energy Corporation and The Chase Manhattan Bank, as
Trustee. (Designated in CMS Energy's Form S-4 Registration
Statement filed September 10, 1998, File No. 333-63229, as
Exhibit 4(c).)
*(4)(c) -- Indenture dated June 1, 1997 between CMS Energy Corporation
and The Bank of New York, as Trustee. (Designated in CMS
Energy's Form 8-K dated June 1, 1997, File No. 1-9513, as
Exhibit 4(a).)
First Supplemental Indenture dated June 20, 1997 between CMS
Energy Corporation and The Bank of New York, as Trustee.
(Designated in CMS Energy's Form 8-K dated July 1, 1997,
File No. 1-9513, as Exhibit 4(b).)
*(4)(d) -- Credit Agreement dated as of July 21, 1997, among CMS
Energy, the Banks, the Administrative Agent, the Collateral
Agent, the Documentation Agent, the Syndication Agent, the
Co-Agents and the Lead Manager, all as defined therein, and
the Exhibits and Schedules thereto. (Designated in CMS
Energy's Form 10-Q for the quarter ended June 30, 1997, File
no. 1-9513, as Exhibit 4.)
Amendment No. 1 dated January 30, 1998 to Credit Agreement
dated July 21, 1997, among CMS Energy, the Banks, the
Administrative Agent, the Collateral Agent, the
Documentation Agent, the Syndication Agent, the Co-Agents
and the Lead Manager, all as defined therein, and the
Exhibits thereto. (Designated in CMS Energy's Form S-4
Registration Statement file September 10, 1998, File No.
333-63229, as Exhibit 4(f).)
Amendment No. 2 dated November 2, 1998 to Credit Agreement
dated July 21, 1997, among CMS Energy , the Banks, the
Administrative Agent, the Collateral Agent, the
Documentation Agent, the Syndication Agent, the Co-Agents
and the Lead Manager, all as defined therein, and the
Exhibits thereto. (Designated in CMS Energy's Form 10-K for
the year ended December 31, 1998, File No. 1-9513, as
Exhibit 10(b).)
(5) -- Opinion of Michael D. VanHemert, Assistant General Counsel
for CMS Energy.
(12) -- Statement regarding computation of ratios of earnings to
fixed charges.
(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
(24) -- Powers of Attorney
(25)(a) -- Statement of Eligibility and Qualification (Form T-1) of NBD
Bank (Trustee under the Senior Debt Indenture).
(25)(b) -- Statement of Eligibility and Qualification (Form T-1) of The
Bank of New York (Trustee under the Subordinated Debt
Indenture).
</TABLE>
- ---------------
* Previously filed
II-10
<PAGE> 1
EXHIBIT 1(A)
$ _____________
CMS ENERGY CORPORATION
___% Senior Notes due ___
______________________________________________
Underwriting Agreement
__________, 1999
To the Representative named
in Schedule I hereto of the
Underwriters named in
Schedule II hereto
Dear Sirs:
CMS Energy Corporation, a Michigan corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the several Underwriters (as defined in Section 14 hereof)
certain debt securities, to be in the aggregate principal amount, to mature in
the year and to have the interest rate specified in Schedule III hereto (the
"Securities"), and hereby confirms its agreement with the Underwriters as set
forth herein. The Securities shall be issued pursuant to the Indenture dated as
of September 15, 1992, between the Company and NBD Bank, as Trustee (the
"Trustee"), as amended and supplemented and to be supplemented by various
supplemental indentures, including the ____ Supplemental Indenture dated as of
the Time of Purchase (as defined herein) relating to the Securities (such
Indenture as so amended and supplemented and to be supplemented, the
"Indenture"). The Underwriters have designated the Representative to execute
this Agreement on their behalf and to act for them in the manner provided in
this Agreement.
<PAGE> 2
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission"), in accordance with the provisions of
the Securities Act of 1933, as amended (the "Act"), a registration statement on
Form S-3 (Registration No. ______), including a prospectus relating to the
Securities and such registration statement has become effective under the Act.
The registration statement at the time such registration statement became
effective and as it may have been thereafter amended to the date of this
Agreement (including the documents then incorporated by reference therein) is
hereinafter referred to as the "Registration Statement." The prospectus forming
a part of the Registration Statement at the time the Registration Statement
became effective (including the documents then incorporated by reference
therein) is hereinafter referred to as the "Basic Prospectus," provided that in
the event that the Basic Prospectus shall have been amended, revised or
supplemented prior to the date of this Agreement, or if the Company shall have
supplemented the Basic Prospectus by filing any documents pursuant to Section 13
or 14 or 15 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), after the time the Registration Statement became effective and prior to
the date of this Agreement, which documents are deemed to be incorporated in the
Basic Prospectus, the term "Basic Prospectus" shall also mean such prospectus as
so amended, revised or supplemented. The Basic Prospectus, as it shall be
revised or supplemented to reflect the final terms of the offering and sale of
the Securities by a prospectus supplement relating to the Securities, and in the
form to be filed with, or transmitted for filing to, the Commission pursuant to
Rule 424 under the Act, is hereinafter referred to as the "Prospectus." Any
reference herein to the terms "amend," "amendment" or "supplement" with respect
to the Registration Statement or the Prospectus shall be deemed to include only
amendments or supplements to the Registration Statement or Prospectus, as the
case may be, and documents incorporated by reference therein after the date of
this Agreement and prior to the termination of the offering of the Securities by
the Underwriters.
1. Purchase and Sale: Upon the basis of the representations and
warranties and on the terms and subject to the conditions herein set forth, the
Company agrees to sell to the respective Underwriters, severally and not
jointly, and the respective Underwriters, severally and not jointly, agree to
purchase from the Company, at the purchase price specified in Schedule III
hereto, the respective principal amounts of Securities set opposite their names
in Schedule II hereto.
The Company is advised by the Representative that the
Underwriters propose to make a public offering of their respective portions of
the Securities as soon as practicable, in their judgment, after this Agreement
has become effective.
2. Payment and Delivery: Payment for the Securities shall be made to
the Company or its order in Federal or other immediately available funds in New
York City (or such other
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<PAGE> 3
place or places of payment as shall be agreed upon by the Company and the
Representative in writing), upon the delivery of the Securities at the offices
of Skadden, Arps, Slate, Meagher and Flom LLP ("Skadden, Arps"), at 919 Third
Avenue, New York, New York 10022 (or such other place or places of delivery as
shall be agreed upon by the Company and the Representative) to the
Representative for the respective accounts of the Underwriters against receipt
therefor signed by the Representative on behalf of themselves and as agent for
the other Underwriters. Such payment and delivery shall be made at 10:00 A.M.,
New York time on _______, 1999 (or on such later business day as shall be agreed
upon by the Company and the Representative in writing), unless postponed in
accordance with the provisions of Section 10 hereof. The day and time at which
payment and delivery for the Securities are to be made is herein called the
"Time of Purchase."
Delivery of the Securities shall be made in definitive, fully
registered form in authorized denominations registered in such names as the
Representative may request in writing to the Company not later than two full
business days prior to the Time of Purchase, or if no such request is received,
in the names of the respective Underwriters for the respective principal amounts
of Securities set forth opposite the name of each Underwriter in Schedule II, in
denominations selected by the Company.
The Company agrees to make the Securities available for
inspection by the Underwriters at the offices of Skadden, Arps, at least 24
hours prior to the Time of Purchase, in definitive, fully registered form, and
as requested pursuant to the preceding paragraph.
3. Conditions of Underwriters' Obligations: The several
obligations of the Under writers hereunder are subject to the accuracy of the
warranties and representations on the part of the Company and to the following
other conditions:
(a) That all legal proceedings to be taken in connection with the
issue and sale of the Securities shall be reasonably
satisfactory in form and substance to Skadden, Arps, counsel
to the Underwriters.
(b) That, at the Time of Purchase, the Representative shall be
furnished with the following opinions, dated the day of the
Time of Purchase:
(i) Opinion of Michael D. VanHemert, Esq., counsel to the
Company, sub stantially to the effect set forth in
Exhibit A to this Agreement; and
(ii) Opinion of Skadden, Arps, counsel to the
Underwriters, substantially to the effect set forth
in Exhibit B to this Agreement.
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<PAGE> 4
(c) That on the date hereof and on the date of the Time of
Purchase, the Representative shall have received a letter
from Arthur Andersen LLP ("Arthur Andersen") in form and
substance satisfactory to the Representa tive, dated as of
such date, (i) confirming that they are independent public
accountants within the meaning of the Act and the applicable
published rules and regulations of the Commission thereunder,
(ii) stating that in their opinion the financial statements
examined by them and included or incorporated by reference in
the Registration Statement complied as to form in all
material respects with the applicable accounting requirements
of the Commission, including applicable published rules and
regulations of the Commission, and (iii) covering, as of a
date not more than five business days prior to the date of
such letter, such other matters as the Representative
reasonably request.
(d) That, between the date of the execution of this Agreement and
the Time of Purchase, no material and adverse change shall
have occurred in the business, properties or financial
condition of the Company which, in the judgment of the
Representative, after reasonable inquiries on the part of the
Representative, impairs the marketability of the Securities
(other than changes referred to in or contemplated by the
Registration Statement or Prospectus).
(e) That, prior to the Time of Purchase, no stop order suspending
the effectiveness of the Registration Statement shall have
been issued under the Act by the Commission or proceedings
therefor initiated or threatened.
(f) That, at the Time of Purchase, the Company shall have
delivered to the Representative a certificate of an executive
officer of the Company to the effect that, to the best of his
knowledge, information and belief there shall have been no
material adverse change in the business, properties or
financial condition of the Company from that set forth in the
Registration Statement or Prospectus (other than changes
referred to in or contemplated by the Registration Statement
or Prospectus).
(g) That the Company shall have performed such of its obligations
under this Agreement as are to be performed at or before the
Time of Purchase by the terms hereof.
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<PAGE> 5
(h) That any additional documents or agreements reasonably
requested by the Representative or their counsel to permit
the Underwriters to perform their obligations or permit their
counsel to deliver opinions hereunder shall have been
provided to them.
(i) That between the date of the execution of this Agreement and
the day of the Time of Purchase there has been no downgrading
of the investment ratings of any of the Company's securities
by Standard & Poor's Corporation, Moody's Investors Service,
Inc. or Duff & Phelps Credit Rating Co., and the Company
shall not have been placed on "credit watch" or "credit
review" with negative implications by any of such statistical
rating organizations if any of such occurrences shall, in
the reasonable judgment of the Representative, after
reasonable inquiries on the part of the Representative,
impair the marketability of the Securities.
(j) That any filing of the Prospectus and any supplements thereto
required pursuant to Rule 424 under the Act have been made in
compliance with Rule 424 in the time periods provided by Rule
424.
4. Conditions of the Company's Obligations: The obligations of
the Company hereunder are subject to the satisfaction of the condition set forth
in Section 3(e).
5. Certain Covenants of the Company: In further consideration of
the agreements of the Underwriters herein contained, the Company covenants as
follows:
(a) To use its best efforts to cause any post-effective amendments
to the Registration Statement to become effective as promptly
as possible. During the time when a Prospectus is required to
be delivered under the Act, the Company will comply so far as
it is able with all requirements imposed upon it by the Act
and the rules and regulations of the Commission to the extent
necessary to permit the continuance of sales of or dealings
in the Securities in accordance with the provisions hereof and
of the Prospectus.
(b) To deliver to the Representative a conformed copy of the
Registration Statement and any amendments thereto (including
all exhibits thereto) and full and complete sets of all
comments of the Commission or its staff and all responses
thereto with respect to the Registration Statement and any
amendments thereto, and to furnish to the Representative, for
each of the
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<PAGE> 6
Underwriters, conformed copies of the Registration
Statement and any amendments thereto, without exhibits.
(c) As soon as the Company is advised thereof, the Company will
advise the Representative and confirm the advice in writing
of: (i) the effectiveness of any amendment to the Registration
Statement, (ii) any request made by the Commission for
amendments to the Registration Statement or Prospectus or for
additional information with respect thereto, (iii) the
suspension of qualification of the Securities for sale under
Blue Sky or state securities laws, and (iv) the entry of a
stop order suspending the effectiveness of the Registration
Statement or of the initiation or threat or any proceedings
for that purpose and, if such a stop order should be entered
by the Commission, to make every reasonable effort to obtain
the lifting or removal thereof.
(d) To deliver to the Underwriters, without charge, as soon as
practicable, and from time to time during such period of time
after the date of the Prospectus as they are required by law
to deliver a prospectus, as many copies of the Prospectus (as
supplemented or amended if the Company shall have made any
supplements or amendments thereto) as the Representative may
reasonably request; and in case any Underwriter is required to
deliver a prospectus after the expiration of nine months after
the date of the Prospectus, to furnish to the Representative,
upon request, at the expense of such Underwriter, a reasonable
quantity of a supplemental prospectus or of supplements to the
Prospectus complying with Section 10(a)(3) of the Act.
(e) For such period of time after the date of the Prospectus as
the Underwriters are required by law to deliver a prospectus
in respect of the Securities, if any event shall have occurred
as a result of which it is necessary to amend or supplement
the Prospectus in order to make the statements therein, in
light of the circumstances when the Prospectus is delivered to
a purchaser, not misleading, or if it becomes necessary to
amend or supplement the Prospectus to comply with law, to
forthwith prepare and file with the Commission an appropriate
amendment or supplement to the Prospectus and deliver to the
Underwriters, without charge, such number of copies thereof as
may be reasonably requested.
(f) To use its best efforts to qualify the Securities for offer
and sale under the securities or Blue Sky laws of such
jurisdictions as the Representative may
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<PAGE> 7
designate and to pay (or cause to be paid), or reimburse (or
cause to be reimbursed) the Underwriters and their counsel
for, reasonable filing fees and expenses in connection
therewith (including the reasonable fees and disbursements of
counsel to the Underwriters and filing fees and expenses paid
and incurred prior to the date hereof), provided, however,
that the Company shall not be required to qualify to do
business as a foreign corporation or as a securities dealer
or to file a general consent to service of process or to file
annual reports or to comply with any other requirements
deemed by the Company to be unduly burdensome.
(g) To pay all expenses, fees and taxes (other than transfer taxes
on sales by the respective Underwriters) in connection with
the issuance and delivery of the Securities, except that the
Company shall be required to pay the fees and disbursements
(other than disbursements referred to in paragraph (f) of this
Section 5) of Skadden, Arps, counsel to the Underwriters, only
in the events provided in paragraph (h) of this Section 5, the
Underwriters hereby agreeing to pay such fees and
disbursements in any other event, and that except as provided
in Section (h), the Company shall not be responsible for any
out-of-pocket expenses of the Underwriters in connection with
their services hereunder.
(h) If the Underwriters shall not take up and pay for the
Securities due to the failure of the Company to comply with
any of the conditions specified in Section 3 hereof, or, if
this Agreement shall be terminated in accordance with the
provisions of Section 11 hereof prior to the Time of Purchase,
to pay the reasonable fees and disbursements of Skadden, Arps,
counsel to the Underwriters, and, if the Underwriters shall
not take up and pay for the Securities due to the failure of
the Company to comply with any of the conditions specified in
Section 3 hereof, to reimburse the Underwriters for their
reasonable out-of-pocket expenses, in an aggregate amount not
exceeding a total of $_____, incurred in connection with the
financing contemplated by this Agreement.
(i) Prior to the termination of the offering of the Securities, to
not file any amendment to the Registration Statement or
supplement to the Prospectus (including the Basic Prospectus)
unless the Company has furnished the Representative and
counsel to the Underwriters with a copy for their review and
comment a reasonable time prior to filing and has reasonably
considered any comments of the Representative, or any such
amendment
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<PAGE> 8
or supplement to which such counsel shall reasonably
object on legal grounds in writing, after consultation with
the Representative.
(j) To furnish the Representative with copies of all documents
required to be filed with the Commission pursuant to Section
13, 14 or 15(d) of the Exchange Act subsequent to the time the
Registration Statement becomes effective and prior to the
termination of the offering of the Securities.
(k) So long as may be required by law for the distribution of the
Securities by the Underwriters or by any dealers that
participate in the distribution thereof, the Company will
comply with all requirements under the Exchange Act relating
to the timely filing with the Commission of its reports
pursuant to Section 13 of the Exchange Act and of its proxy
statements pursuant to Section 14 of the Exchange Act.
(l) To make generally available to the Company's security holders,
as soon as practicable, an "earning statement" (which need not
be audited by inde pendent public accountants) covering a
twelve-month period commencing after the effective date of the
Registration Statement and ending not later than 15 months
thereafter, which shall comply in all material respects with
and satisfy the provisions of Section 11(a) of the Act and
Rule 158 under the Act.
6. Representations and Warranties of the Company: The Company
represents and warrants to, and agrees with, each of the Underwriters that:
(a) The Registration Statement has become effective under the Act;
a true and correct copy of the Registration Statement in the
form in which it became effective has been delivered to each
of the Representative and to the Representative for each of
the Underwriters (except that copies delivered for the
Underwriters excluded exhibits to such Registration
Statement); any filing of the Prospectus and any supplements
thereto required pursuant to Rule 424(b) has been or will be
made in the manner required by Rule 424(b) and within the time
period required by Section 3(j) hereof; no stop order
suspending the effectiveness of the Registration Statement is
in effect, and no proceedings for such purposes are pending
before or, to the knowledge of the Company, threatened by the
Commission. On the effective date of the Registration
Statement, the Registration Statement and the Basic Prospectus
complied, or were deemed to have complied, and
8
<PAGE> 9
on its respective issue date, each preliminary prospectus
filed pursuant to Rule 424(b) complied, and the Basic
Prospectus complied, and on its issue date, the Prospectus
will comply, or will be deemed to comply, in all material
respects with the applicable provisions of the Act, the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act")
and the published rules and regulations of the Commission,
none of the Registration Statement on its effective date, the
Basic Prospectus on its issue date, or any other preliminary
prospectus, on its issue date, contained any untrue statement
of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, and the Prospectus, as of
its issue date and, as amended or supplemented, if
applicable, as of the Time of Purchase, will not contain any
untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, except that the Company makes no warranty or
representation to any Underwriter with respect to any state
ments or omissions made therein in reliance upon and in
conformity with information furnished in writing to the
Company by, or through the Representative on behalf of, any
Underwriter expressly for use therein, or to any statements in
or omissions from that part of the Registration State ment
that shall constitute the Statement of Eligibility and
Qualification under the Trust Indenture Act of the Trustee
under the Indenture.
(b) The documents incorporated by reference in the Registration
Statement, any preliminary prospectus, the Basic Prospectus
and the Prospectus, when they were filed (or, if an amendment
with respect to any such document was filed, when such
amendment was filed) with the Commission, conformed in all
material respects to the requirements of the Exchange Act and
the rules and regulations of the Commission promulgated
thereunder, and any further documents so filed and
incorporated by reference will, when they are filed with the
Commission, conform in all material respects to the
requirements of the Exchange Act and the rules and regulations
of the Commission promulgated thereunder; none of such
documents, when it was filed (or, if an amendment with respect
to any such document was filed, when such amendment was
filed), contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and
no such further document, when it is filed, will contain an
untrue
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<PAGE> 10
statement of a material fact or will omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they are made, not misleading.
(c) The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of the State
of Michigan and has all requisite authority to own or lease
its properties and conduct its business as described in the
Prospectus and to consummate the transactions contemplated
hereby, and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of
its business as described in the Prospectus or its ownership
or leasing of property requires such qualification, except to
the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the
Company.
(d) The Securities are in the form contemplated by the Indenture
and have been duly authorized by the Company. At the Time of
Purchase, the Securities will have been duly executed and
delivered by the Company and, when authenticated by the
Trustee in the manner provided for in the Indenture and
delivered against payment therefor as provided in this
Agreement, will constitute valid and binding obligations of
the Company, enforceable against the Company in accordance
with their terms, except to the extent that enforcement
thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting
creditors' rights generally or by general principles of
equity (regardless of whether enforcement is considered in a
proceeding at law or in equity). The Securities conform in all
material respects to the descriptions thereof in the
Prospectus. Each significant subsidiary (as defined in Rule
405 under the Act, and hereinafter called a "Significant
Subsidiary") of the Company has been duly organized and is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has all
requisite authority to own or lease its properties and conduct
its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business as
described in the Prospectus or its ownership or leasing of
property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and
its Subsidiaries, taken as a whole.
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<PAGE> 11
(e) This Agreement has been duly authorized, executed and
delivered by the Company, and the Company has full corporate
power and authority to enter into this Agreement.
(f) The Indenture has been duly authorized by the Company. At the
Time of Purchase, the Indenture will have been duly executed
and delivered by the Company and will constitute a valid and
binding obligation of the Company, enforceable against the
Company in accordance with its terms, except to the extent
that enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally or by general principles
of equity (regardless of whether enforcement is considered in
a proceeding at law or in equity); the Indenture conforms in
all material respects to the description thereof in the
Prospectus; and the Indenture conforms to the requirements of
the Trust Indenture Act.
(g) Except for the outstanding shares of preferred stock of
Consumers Energy Company, the 8.36% Trust Originated Preferred
Securities of Consumers Power Company Financing I and the
8.20% Trust Originated Preferred Securities of Consumers
Energy Financing II, all of the outstanding capital stock of
each of Consumers Energy Company and CMS Enterprises Company
is owned directly or indirectly by the Company, free and clear
of any security interest, claim, lien, or other encumbrance or
preemptive rights, and (ii) there are no outstanding rights
(including, without limitation, preemptive rights), warrants
or options to acquire, or instruments convertible into or
exchangeable for, any shares of capital stock or other equity
interest in any of Consumers Energy Company and CMS Enter
prises Company or any contract, commitment, agreement,
understanding or arrangement of any kind relating to the
issuance of any such capital stock, any such convertible or
exchangeable securities or any such rights, warrants or
options.
(h) The Company has all necessary consents, authorizations,
approvals, orders, certificates and permits of and from, and
has made all declarations and filings with, all federal,
state, local and other governmental authorities, all
self-regulatory organizations and all courts and other
tribunals, to own, lease, license and use its properties and
assets and to conduct its business in the manner described in
the Prospectus, except to the extent
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<PAGE> 12
that the failure to obtain or file would not have a material
adverse effect on the Company.
(i) An appropriate order has been entered by the Federal Energy
Regulatory Commission under the Federal Power Act authorizing
the issuance and sale of the Securities, and such order is in
full force and effect. No other order, license, consent,
authorization or approval of, or exemption by, or the giving
of notice to, or the registration with any federal, state,
municipal or other governmental department, commission, board,
bureau, agency or instrumentality, and no filing, recording,
publication or registration in any public office or any other
place, was or is now required to be obtained by the Company to
authorize its execution or delivery of, or the performance of
its obligations under, this Agreement or the Securities,
except such as have been obtained or may be required under
state securities or Blue Sky laws or as referred to in the
Basic Prospectus.
(j) None of the issuance and sale of the Securities, or the
execution or delivery by the Company of, or the performance
by the Company of its obligations under, this Agreement did
or will conflict with, result in a breach of any of the terms
or provisions of, or constitute a default or require the
consent of any party under the Company's Articles of
Incorporation or by-laws, any material agreement or
instrument to which it is a party, any existing applicable
law, rule or regulation or any judgment, order or decree of
any government, governmental instrumentality or court,
domestic or foreign, having jurisdiction over the Company or
any of its properties or assets, or did or will result in the
creation or imposition of any lien on the Company's properties
or assets.
(k) Except as disclosed in the Basic Prospectus, there is no
action, suit, proceeding, inquiry or investigation (at law or
in equity or otherwise) pending or, to the knowledge of the
Company, threatened against the Company, by any governmental
authority that (i) questions the validity, enforceability or
performance of this Agreement or the Securities or (ii) if
determined adversely, is likely to have a material adverse
effect on the business or financial condition of the Company,
or materially adversely affect the ability of the Company to
perform its obligations hereunder or the consummation of the
transactions contemplated by this Agreement.
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<PAGE> 13
(l) There has not been any material and adverse change in the
business, properties or financial condition of the Company
from that set forth in the Registration Statement (other than
changes referred to in or contemplated by the Registration
Statement or the Basic Prospectus).
(m) Except as set forth in the Basic Prospectus, no event or
condition exists that constitutes, or with the giving of
notice or lapse of time or both would constitute, a default or
any breach or failure to perform by the Company in any
material respect under any indenture, mortgage, loan
agreement, lease or other material agreement or instrument to
which the Company is a party or by which it or any of its
properties may be bound.
7. Representation and Warranties of Underwriters: Each
Underwriter warrants and represents that the information, if any, furnished in
writing to the Company through the Representative expressly for use in the
Registration Statement and Prospectus is correct in all material respects as to
such Underwriter. Each Underwriter, in addition to other information furnished
to the Company for use in the Registration Statement and Prospectus, herewith
furnishes to the Company for use in the Registration Statement and Prospectus,
the information stated herein with regard to the public offering, if any, by
such Underwriter and represents and warrants that such information is correct in
all material respects as to such Underwriter.
8. Indemnification:
(a) The Company agrees, to the extent permitted by law, to
indemnify and hold harmless each of the Underwriters and each
person, if any, who controls any such Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange
Act, against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them
may become subject under the Act or otherwise, and to
reimburse the Under writers and such controlling person or
persons, if any, for any legal or other expenses incurred by
them in connection with defending any action, suit or
proceeding (including governmental investigations) as provided
in Section 8(c) hereof, insofar as such losses, claims,
damages, liabilities or actions, suits or proceedings
(including governmental investigations) arise out of or are
based upon any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, any
preliminary prospectus as of its issue date (if used prior to
the date of the Basic Pro spectus), the Basic Prospectus (if
used prior to the date of the Prospectus), the Prospectus, or,
if the Prospectus shall be amended or supplemented, in
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<PAGE> 14
the Prospectus as so amended or supplemented (if such
Prospectus or such Prospectus as amended or supplemented is
used after the period of time referred to in Section 5(e)
hereof, it shall contain or be used with such amendments or
supplements as the Company deems necessary to comply with
Section 10(a) of the Act), or arise out of or are based upon
any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or actions arise out of
or are based upon any such untrue statement or alleged untrue
statement or omission or alleged omission which was made in
such preliminary prospectus, Basic Prospectus, Registration
Statement or Prospectus, or in the Prospectus as so amended or
supplemented, in reliance upon and in conformity with
information furnished in writing to the Company by, or through
the Representative on behalf of, any Underwriter expressly
for use therein or with any statements in or omissions from
that part of the Registration Statement that shall constitute
the Statement of Eligibility and Qualification under the Trust
Indenture Act of the Trustee under the Indenture, and except
that this indemnity shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) on
account of any losses, claims, damages, liabilities or
actions, suits or proceedings arising from the sale of the
Securities to any person if a copy of the Prospectus, as the
same may then be supplemented or amended (excluding, however,
any document then incorporated or deemed incorporated therein
by reference), was not sent or given by or on behalf of such
Underwriter to such person (i) with or prior to the written
confirmation of sale involved or (ii) as soon as available
after such written confirmation, relating to an event
occurring prior to the payment for and delivery to such person
of the Securities involved in such sale, and the omission or
alleged omission or untrue statement or alleged untrue state
ment was corrected in the Prospectus as supplemented or
amended at such time.
The Company's indemnity agreement contained in this Section
8(a), and the covenants, representations and warranties of the
Company contained in this Agreement, shall remain in full
force and effect regardless of any investigation made by or on
behalf of any person, and shall survive the delivery of and
payment for the Securities hereunder, and the indemnity
agreement contained in this Section 8 shall survive any
termination of this Agreement. The liabilities of the
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<PAGE> 15
Company in this Section 8(a) are in addition to any other
liabilities of the Company under this Agreement or otherwise.
(b) Each Underwriter agrees, severally and not jointly, to the
extent permitted by law, to indemnify, hold harmless and
reimburse the Company, its directors and such of its officers
as shall have signed the Registration Statement, each other
Underwriter and each person, if any, who controls the Company
or any such other Underwriter within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, to the same
extent and upon the same terms as the indemnity agreement of
the Company set forth in Section 8(a) hereof, but only with
respect to alleged untrue statements or omissions made in the
Registration Statement, the Basic Prospectus or in the
Prospectus, as amended or supplemented, (if applicable) in
reliance upon and in conformity with information furnished in
writing to the Company by such Underwriter expressly for use
therein.
The indemnity agreement on the part of each Underwriter
contained in this Section 8(b) and the representations and warranties of such
Underwriter contained in this Agreement shall remain in full force and effect
regardless of any investigation made by or on behalf of the Company or any other
person, and shall survive the delivery of and payment for the Securities
hereunder, and the indemnity agreement contained in this Section 8(b) shall
survive any termination of this Agreement. The liabilities of each Underwriter
in Section 8(b) are in addition to any other liabilities of such Underwriter
under this Agreement or otherwise.
(c) If a claim is made or an action, suit or proceeding (including
governmental investigations) is commenced or threatened
against any person as to which indemnity may be sought under
Section 8(a) or 8(b), such person (the "Indemnified Person")
shall notify the person against whom such indemnity may be
sought (the "Indemnifying Person") promptly after any
assertion of such claim threatening to institute an action,
suit or proceeding or if such an action, suit or proceeding is
commenced against such Indemnified Person, promptly after such
Indemnified Person shall have been served with a summons or
other first legal process, giving information as to the nature
and basis of the claim. Failure to so notify the Indemnifying
Person shall not, however, relieve the Indemnifying Person
from any liability which it may have on account of the
indemnity under Section 8(a) or 8(b) if the Indemnifying
Person has not been prejudiced in any material respect by such
failure. Subject to the immediately succeeding sentence, the
Indemnifying Person shall assume the defense of any such
15
<PAGE> 16
litigation or proceeding, including the employment of counsel
and the payment of all expenses, with such counsel being
designated, subject to the immediately succeeding sentence, in
writing by the Representative in the case of parties
indemnified pursuant to Section 8(b) and by the Company in the
case of parties indemnified pursuant to Section 8(a). Any
Indemnified Person shall have the right to participate in such
litigation or proceeding and to retain its own counsel, but
the fees and expenses of such counsel shall be at the expense
of such Indemnified Person unless (i) the Indemnifying Person
and the Indemnified Person shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any
such proceeding (including any impleaded parties) include (x)
the Indemnifying Person and (y) the Indemnified Person and, in
the written opinion of counsel to such Indemnified Person,
representation of both parties by the same counsel would be
inappropriate due to actual or likely conflicts of interest
between them, in either of which cases the reasonable fees and
expenses of counsel (including disbursements) for such
Indemnified Person shall be reimbursed by the Indemnifying
Person to the Indemnified Person. If there is a conflict as
described in clause (ii) above, and the Indemnified Persons
have participated in the litigation or proceeding utilizing
separate counsel whose fees and expenses have been reimbursed
by the Indemnifying Person and the Indemnified Persons, or any
of them, are found to be solely liable, such Indemnified
Persons shall repay to the Indemnifying Person such fees and
expenses of such separate counsel as the Indemnifying Person
shall have reimbursed. It is understood that the Indemnifying
Person shall not, in connection with any litigation or
proceeding or related litigation or proceedings in the same
jurisdiction as to which the Indemnified Persons are entitled
to such separate representation, be liable under this
Agreement for the reasonable fees and out-of-pocket expenses
of more than one separate firm (together with not more than
one appropriate local counsel) for all such Indemnified
Persons. Subject to the next paragraph, all such fees and
expenses shall be reimbursed by payment to the Indemnified
Persons of such reasonable fees and expenses of counsel
promptly after payment thereof by the Indemnified Persons.
In furtherance of the requirement above that fees and expenses
of any separate counsel for the Indemnified Persons shall be
reasonable, the Representative and the Company agree that the
Indemnifying Person's obligations to pay such fees and
expenses shall be conditioned upon the following:
16
<PAGE> 17
(1) in case separate counsel is proposed to be retained
by the Indemnified Persons pursuant to clause (ii) of
the preceding paragraph, the Indemnified Persons
shall in good faith fully consult with the
Indemnifying Person in advance as to the selection of
such counsel;
(2) reimbursable fees and expenses of such separate
counsel shall be detailed and supported in a manner
reasonably acceptable to the Indemnifying Person (but
nothing herein shall be deemed to require the
furnishing to the Indemnifying Person of any
information, including without limitation, computer
print-outs of lawyers' daily time entries, to the
extent that, in the judgment of such counsel,
furnishing such information might reasonably be
expected to result in a waiver of any attorney-client
privilege); and
(3) the Company and the Representative shall cooperate in
monitoring and controlling the fees and expenses of
separate counsel for Indemnified Persons for which
the Indemnifying Person is liable hereunder, and the
Indemnified Person shall use every reasonable effort
to cause such separate counsel to minimize the
duplication of activities as between them selves and
counsel to the Indemnifying Person.
The Indemnifying Person shall not be liable for any settlement
of any litigation or proceeding effected without the written consent of the
Indemnifying Person, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees, subject to the
provisions of this Section 8, to indemnify the Indemnified Person from and
against any loss, damage, liability or expenses by reason of such settlement or
judgment. The Indemnifying Person shall not, without the prior written consent
of the Indemnified Persons, effect any settlement of any pending or threatened
litigation, proceeding or claim in respect of which indemnity has been properly
sought by the Indemnified Persons hereunder, unless such settlement includes an
unconditional release by the claimant of all Indemnified Persons from all
liability with respect to claims which are the subject matter of such
litigation, proceeding or claim.
9. Contribution: If the indemnification provided for in Section 8
above is unavailable to or insufficient to hold harmless an Indemnified Person
under such Section in respect of any losses, claims, damages or liabilities (or
actions, suits or proceedings (including governmental investigations) in
respect thereof) referred to therein, then each Indemnifying Person under
Section 8 shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect the relative
benefits received by the Indemnifying Person on the one hand
17
<PAGE> 18
and the Indemnified Person on the other from the offering of the Securities. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law, then each Indemnifying Person shall contribute to
such amount paid or payable by such Indemnified Person in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of each Indemnifying Person, if any, on the one hand and the Indemnified
Person on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions, suits or
proceedings (including governmental investiga tions) in respect thereof), as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company and the total
underwriting discounts and commission received by the Underwriters, in each case
as set forth in the table on the cover page of the Prospectus, bear to the
aggregate public offering price of the Securities. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 9. The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages or
liabilities (or actions, suits or proceedings (including governmental
proceedings) in respect thereof) referred to above in this Section 9 shall be
deemed to include any legal or other expenses reasonably incurred by such
Indemnified Person in connection with investigating or defending any such
action, suits or proceedings (including governmental proceedings) or claim,
provided that the provisions of Section 8 have been complied with (in all
material respects) in respect of any separate counsel for such Indemnified
Person. Notwithstanding the provisions of this Section 9, no Underwriter shall
be required to contribute any amount greater than the excess of (i) the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public over (ii) the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudu lent misrepresentation. The Underwriters' obligations in this Section 9
to contribute are several in proportion to their respective underwriting
obligations and not joint.
The agreement with respect to contribution contained in
Section 9 hereof shall remain in full force and effect regardless of any
investigation made by or on behalf of the
18
<PAGE> 19
Company or any Underwriter, and shall survive delivery of and payment for the
Securities hereunder and any termination of this Agreement.
10. Substitution of Underwriters: If any Underwriter under this
agreement shall fail or refuse (otherwise than for some reason sufficient to
justify in accordance with the terms hereof, the termination of its obligations
hereunder) to purchase the Securities which it had agreed to purchase on the
Time of Purchase, the Representative shall immediately notify the Company and
the Representative and the other Underwriters may, within 36 hours of the giving
of such notice, determine to purchase, or to procure one or more other members
of the National Association of Securities Dealers, Inc. ("NASD") (or, if not
members of the NASD, who are foreign banks, dealers or institutions not
registered under the Exchange Act and who agree in making sales to comply with
the NASD's Rules of Fair Practice), satisfactory to the Company, to purchase,
upon the terms herein set forth, the principal amount of Securities which the
defaulting Underwriter had agreed to purchase. If any non-defaulting Underwriter
or Underwriters shall determine to exercise such right, the Representative shall
give written notice to the Company of such determination within 36 hours after
the Company shall have received notice of any such default, and thereupon the
Time of Purchase shall be postponed for such period, not exceeding three
business days, as the Company shall determine. If in the event of such a
default, the Representative shall fail to give such notice, or shall within such
36-hour period give written notice to the Company that no other Underwriter or
Underwriters, or others, will exercise such right, then this Agreement may be
terminated by the Company, upon like notice given to the Representative within a
further period of 36 hours. If in such case the Company shall not elect to
terminate this Agreement, it shall have the right, irrespective of such default:
(a) to require such non-defaulting Underwriters to purchase and
pay for the respective principal amounts of Securities which
they had severally agreed to purchase hereunder, as herein
above provided, and, in addition, the principal amount of
Securities which the defaulting Underwriter shall have so
failed to purchase up to a principal amount thereof equal to
one-ninth (1/9) of the respective principal amounts of
Securities which such non-defaulting Underwriters have
otherwise agreed to purchase hereunder; and/or
(b) to procure one or more other members of the NASD (or, if not
members of the NASD, who are foreign banks, dealers or
institutions not registered under the Exchange Act and who
agree in making sales to comply with the NASD's Rules of Fair
Practice), to purchase, upon the terms herein set forth, the
principal amount of Securities which such defaulting Under
writer had agreed to purchase, or that portion thereof which
the remaining
19
<PAGE> 20
Underwriters shall not be obligated to purchase pursuant to
the foregoing clause (a).
In the event the Company shall exercise its rights under
clause (a) and/or (b) above, the Company shall give written notice thereof to
the Representative within such further period of 36 hours, and thereupon the
Time of Purchase shall be postponed for such period, not exceeding five business
days, as the Company shall determine. In the event the Company shall be entitled
to but shall not elect to exercise its rights under clause (a) and/or (b), the
Company shall be deemed to have elected to terminate this Agreement.
Any action taken by the Company under this Section 10 shall
not relieve any defaulting Underwriter from liability in respect of any default
of such Underwriter under this Agreement. Termination by the Company under this
Section 10 shall be without any liability on the part of the Company or any
non-defaulting Underwriter.
In the computation of any period of 36 hours referred to in
this Section 10, there shall be excluded a period of 24 hours in respect of each
Saturday, Sunday or legal holiday which would otherwise be included in such
period of time.
11. Termination of Agreement: This Agreement may be terminated at
any time prior to the Time of Purchase by the Representative, if, prior to such
time (i) trading generally in securities on the New York Stock Exchange shall
have been suspended by the Commission or the New York Stock Exchange, (ii)
trading of any securities of the Company shall have been suspended on any
exchange or over-the-counter market, (iii) a general moratorium on commercial
banking activities in New York shall have been declared by federal or New York
State authorities or (iv) there shall have occurred any outbreak or material
escalation of hostilities or any material adverse disruption in financial
markets or any other calamity or crisis, the effect of which on the financial
markets of the United States is such as to impair, in the Representative's
reasonable judgment, after having made due inquiry, the marketability of the
Securities.
If the Representative elect to terminate this Agreement, as
provided in this Section 11, the Representative will promptly notify the Company
and each other Underwriter by telephone or telecopy, confirmed by letter. If
this Agreement shall not be carried out by any Underwriter for any reason
permitted hereunder, or if the sale of the Securities to the Underwriters as
herein contemplated shall not be carried out because the Company is not able to
comply with the terms hereof, the Company shall not be under any obligation
under this Agreement and shall not be liable to any Underwriter or to any member
of any selling group for the loss of anticipated profits from the transactions
contemplated by this Agreement and the Underwriters
20
<PAGE> 21
shall be under no liability to the Company nor be under any liability under this
Agreement to one another.
Notwithstanding the foregoing, the provisions of Sections
5(f), 5(h), 8 and 9 shall survive any termination of this Agreement.
12. Notices: All notices hereunder shall, unless otherwise
expressly provided, be in writing and be delivered at or mailed to the following
addresses or be sent by telecopy as follows: if to the Underwriters or the
Representative, to the Representative at the address or number, as appropriate,
designated in Schedule I hereto, and, if to the Company, to CMS Energy Corpora
tion, Fairlane Plaza South, Suite 1100, 330 Town Center Drive, Dearborn,
Michigan 48126, attention: Alan M. Wright, Senior Vice President and Chief
Financial Officer.
13. Parties in Interest: The Agreement herein set forth has been
and is made solely for the benefit of the Underwriters, the Company (including
the directors thereof and such of the officers thereof as shall have signed the
Registration Statement), and the controlling persons, if any, referred to in
Section 8 hereof, and their respective successors, assigns, executors and
administrators, and, except as expressly otherwise provided in Section 10
hereof, no other person shall acquire or have any right under or by virtue of
this Agreement.
14. Definition of Certain Terms: The term "Underwriters," as used
herein, shall be deemed to mean the several persons, firms or corporations,
named in Schedule II hereto (including the Representative herein mentioned, if
so named), and the term "Representative," as used herein, shall be deemed to
mean the representative or Representative designated by, or in the manner
authorized by, the Underwriters in Schedule I hereto. All obligations of the
Underwriters hereunder are several and not joint. If there shall be only one
person, firm or corporation named in Schedule I and Schedule II hereto, the term
"Underwriters" and the term "Representative," as used herein, shall mean such
person, firm or corporation. If the firm or firms listed in Schedule I hereto
are the same as the firm or firms listed in Schedule II hereto, then the terms
"Underwriters" and "Representative," as used herein, shall each be deemed to
refer to such firm or firms. The term "successors" as used in this Agreement
shall not include any purchaser, as such purchaser, of any of the Securities
from any of the respective Underwriters.
15. Governing Law: This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
16. Counterparts: This Agreement may be executed by any one or
more of the parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
21
<PAGE> 22
If the foregoing is in accordance with your understanding,
please sign and return to us counterparts hereof, and upon the acceptance hereof
by you, this letter and such acceptance hereof shall constitute a binding
agreement between each of the Underwriters and the Company.
Very truly yours,
CMS ENERGY CORPORATION
By:_________________________________
Name:
Title:
Confirmed and accepted
as of the date first written above:
__________________________
By:_______________________
Name:
Title:
22
<PAGE> 23
Schedule I: Representative
____________________________
____________________________
____________________________
Attention:
Telecopy:
23
<PAGE> 24
Schedule II: Underwriters
_________________________
<TABLE>
<CAPTION>
Principal Amount
of Securities
Underwriters to be Purchased
____________ _________________
<S> <C>
_________________________ ..................................................... $ 000,000,000
_________________________ ..................................................... $ 00,000,000
_________________________ ..................................................... $ 00,000,000
_________________________ ..................................................... $ 00,000,000
-------------
Total........................$ 00,000,000
============
</TABLE>
24
<PAGE> 25
Schedule III
Information Regarding the Securities
1. Aggregate Principal Amount: $000,000,000
2. Maturity Date: _____________, 2009
3. Interest Rate: ____%
4. Price to be paid to the Company: _____% of the principal amount
25
<PAGE> 1
Exhibit 5 & 23(a)
[CMS ENERGY CORPORATION LETTERHEAD]
MICHAEL D. VAN HEMERT, ESQ.
ASSISTANT GENERAL COUNSEL
April 7, 1999
CMS Energy Corporation
Fairlane Plaza South, Suite 1100
330 Town Center Drive
Dearborn, MI 48126
Ladies and Gentlemen:
I am the Assistant General Counsel of CMS Energy Corporation, a
Michigan corporation (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 registration of $375,000,000 aggregate principal amount of
unsecured senior or subordinated debt securities (the "Debt 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 the documents
submitted to me as originals, the genuineness of all signatures, the legal
capacity of all natural persons and the conformity with the original documents
of any copies thereof submitted to me for examination.
Based on the foregoing, it is my opinion that:
1. The Company is duly incorporated and validly existing under
the laws of the State of Michigan.
<PAGE> 2
Page 2
2. The Company has the corporate power and authority to sell the
Senior Debt Securities pursuant to the Indenture dated
September 15, 1992, as supplemented, between the Company and
NBD Bank, as trustee (the "Senior Debt Indenture") and the
Subordinated Debt Securities pursuant to the Indenture dated
June 1, 1997, as supplemented, between the Company and The
Bank of New York, as trustee (the "Subordinated Debt
Indenture") (the Senior Debt Indenture and Subordinated Debt
Indenture, collectively, the "Indentures").
3. The Debt Securities will be legally issued and binding
obligations of the Company (except to the extent
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or
other similar laws affecting the enforcement of creditors'
rights generally and by the effect of general principles of
equity, regardless of whether enforceability is considered in
a proceeding in equity or at law) when:
(i) the Registration Statement, as finally amended
(including any necessary post-effective amendments),
shall have become effective under the Securities Act
and the Indentures (including any necessary
supplemental indentures) shall have been qualified
under the Trust Indenture Act of 1939, as amended,
and duly executed and delivered by the Company and
the Trusteess;
(ii) an appropriate Prospectus Supplement with respect to
the particular Debt Securities then being sold by the
Company shall have been filed with the Commission
pursuant to Rule 424 under the Securities Act;
(iii) 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
Company as contemplated by the Registration Statement
and the particular Indenture; and
(iv) the supplemental Indenture under which the particular
Debt Securities are to be issued has been duly
authorized, executed and delivered, and the
particular Debt Securities then being sold by the
Company shall have been duly executed and
authenticated as provided in the particular Indenture
and such resolutions, and shall have been duly
delivered to the purchasers thereof against payment
of the agreed consideration therefor.
For purposes of this opinion, I have assumed that there will be no
changes in the laws currently applicable to the Company and that such laws will
be the only laws applicable to the Company.
<PAGE> 3
Page 3
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 Debt 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 Michigan.
I hereby consent to the filing of this opinion as an exhibit to the
Company's Registration Statement on Form S-3 relating to the Debt 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 12
CMS ENERGY CORPORATION
Ratio of Earnings to Fixed Charges
(Millions of Dollars)
<TABLE>
<CAPTION>
Years Ended December 31
1998 1997 1996 1995 1994
---- ---- ---- ---- ----
(b)
<S> <C> <C> <C> <C> <C>
Earnings as defined (a)
Consolidated net income $ 242 $ 244 $ 224 $ 195 $ 177
Income taxes 100 108 137 113 91
Exclude equity basis subsidiaries (92) (80) (85) (57) (18)
Fixed charges as defined, adjusted to
exclude capitalized interest of $17, $13,
$5, $4, $2, and $5 million for the
three months ended March 31, 1998
and for the years ended December 31, 1997,
1996, 1995, 1994 and 1993, respectively 345 316 278 271 230
----- ----- ----- ----- -----
Earnings as defined $ 595 $ 588 $ 554 $ 522 $ 480
===== ===== ===== ===== =====
Fixed charges as defined (a)
Interest on long-term debt $ 319 $ 273 $ 230 $ 224 $ 193
Estimated interest portion of lease rental 8 8 10 9 9
Other interest charges 48 49 43 42 30
----- ----- ----- ----- -----
Fixed charges as defined $ 375 $ 330 $ 283 $ 275 $ 232
===== ===== ===== ===== =====
Ratio of earnings to fixed charges 1.59 1.78 1.96 1.90 2.07
===== ===== ===== ===== =====
</TABLE>
NOTES:
(a) Earnings and fixed charges as defined in instructions for Item 503 of
Regulation S-K.
(b) Excludes a cumulative effect of change in accounting after-tax gain of $43
million.
<PAGE> 1
Exhibit (23)(b)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our reports dated
January 26, 1999 (except with respect to the matters disclosed in Note 3,
"Consumers' Electric Utility Rate Matters", and Note 19 as to which the date is
March 29, 1999) included or incorporated by reference in CMS Energy
Corporation's Form 10-K for the year ended December 31, 1998 and to all
references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
Detroit, Michigan,
April 6, 1999
<PAGE> 1
Exhibit 24
[CMS ENERGY LETTERHEAD]
February 26, 1999
Mr. Alan M. Wright and
Mr. Thomas A. McNish
CMS Energy Corporation
Fairlane Plaza South, Suite 1100
330 Town Center Drive
Dearborn, MI 48126
We hereby appoint each of you lawful attorney for each of us and in each of our
names to sign and cause to be filed with the Securities and Exchange Commission
registration statement(s) and/or any amendment(s) thereto, including
post-effective amendment or amendments, to be accompanied in each case by a
prospectus or supplemental prospectus and any necessary exhibits with respect to
the issue and sale of up to $300 million net aggregate principal amount of debt
securities of the Corporation (plus an additional 20% for the purpose of
covering underwriters' over-allotments, price adjustments, or sale of additional
securities) including but not limited to (i) unsecured senior or subordinated
debt securities, (ii) trust securities of one or more trusts, (iii) debt
securities issued solely in connection with the sale of the trust securities,
and (iv) the Corporation's guarantee of trust securities of one or more trusts.
Very truly yours,
/s/ William T. McCormick, Jr. /s/ Earl D. Holton
- ------------------------------- ---------------------------
William T. McCormick, Jr. Earl D. Holton
/s/ John Deutch /s/ W. U. Parfet
- ------------------------------- ---------------------------
John M. Deutch William U. Parfet
/s/ James J. Duderstadt /s/ Percy A. Pierre
- ------------------------------- ---------------------------
James J. Duderstadt Percy A. Pierre
/s/ K. R. Flaherty /s/ K. L. Way
- ------------------------------- ---------------------------
Kathleen R. Flaherty Kenneth L. Way
/s/ V. J. Fryling /s/ Whipple
- ------------------------------- ---------------------------
Victor J. Fryling Kenneth Whipple
/s/ John B. Yasinsky
-------------------------------
John B. Yasinsky
<PAGE> 2
2
Extract from the Minutes of a Meeting of the Board of Directors of CMS Energy
Corporation (the "Corporation") held February 26, 1999.
- - - - - - - - - -
Proposed Issue and Sale of Securities
* * *
RESOLVED: That the Board of Directors authorizes the issue
and sale, from time to time, at private placement or public sale, of up
to $300 million net aggregate principal amount of debt securities of the
Corporation (plus an additional 20% for the purpose of covering
underwriters' over-allotments, price adjustments, or sale of additional
securities), including but not limited to (i) unsecured senior or
subordinated debt securities, (ii) Trust Securities ("Trust Securities")
of one or more Trusts (the "Trust"), (iii) debt securities issued solely
in connection with the sale of the Trust Securities and (iv) the
Corporation's guarantee of Trust Securities of the Trust (collectively,
the "Securities") as discussed at the meeting, each to be sold for the
best price and on the best terms obtainable in the judgment of a Special
Committee of the Board of Directors appointed for such purposes; and
RESOLVED FURTHER: That Victor J. Fryling, with William T.
McCormick, Jr., as alternate, is appointed to a Special Committee of
this Board of Directors, which shall have the full authority to act on
behalf of the Board for the purposes stated in the foregoing resolution
with respect to (a) determining the offering price, any underwriting
discounts and the proceeds to the Corporation of the proposed issue and
sale of the Securities, and (b) authorizing the officers to take such
further actions as they may deem advisable to carry out the issue and
sale of such Securities; and
RESOLVED FURTHER: That Messrs. Alan M. Wright, Thomas A.
McNish, and Martin R. Walicki (or successors, appointed in writing, by
the Chairman of the Board, Vice Chairman of the Board or the President
of the Corporation, and filed in the Corporate Secretary's office) are
appointed to serve, at the Corporation's request, and are authorized and
empowered, for and on behalf of the Corporation, to act as the
Corporation's trustees in accordance with the trust agreement, and any
amendments thereto, of the Trust; and
RESOLVED FURTHER: That the officers of the Corporation,
and each of them, are authorized and empowered, for and on behalf of the
Corporation, to establish one or more Trusts, for the purpose of issuing
and selling Trust Securities; and
RESOLVED FURTHER: That the above-designated Corporation
trustees, and each of them, are authorized and empowered, to execute and
deliver all documents, papers, applications, agreements and instruments,
including but not limited to, a declaration of trust and/or trust
agreement, and any amendments thereto, and to do all acts and things
they deem necessary or appropriate and as counsel may advise to carry
out the intent and purpose of the foregoing resolutions; and
<PAGE> 3
3
RESOLVED FURTHER: That the officers of the Corporation,
and each of them, are authorized and empowered to prepare, execute, and
file, or cause to be prepared and filed, one or more Registration
Statement with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (each a "Registration Statement"),
together with all documents required as exhibits to such Registration
Statement, with respect to the issue and sale of the Securities, such
registration to be in such form as may be approved by the officers
executing the same, and to do all other things necessary to make such
registration effective, including the execution and filing of any
necessary or appropriate amendments, including post-effective
amendments; and
RESOLVED FURTHER: That any Securities issued in a private
placement may be offered with registration rights permitting the
Corporation to (i) file a Registration Statement for the resale of such
Securities, or (ii) exchange, in a registered exchange offer pursuant to
a Registration Statement, such Securities for substantially similar
securities; and
RESOLVED FURTHER: That the officers of the Corporation,
and each of them, are authorized and empowered to appoint an
institutional trustee, and any agent or trustees necessary or
appropriate in connection with the issuance and sale of the Securities;
and
RESOLVED FURTHER: That the officers of the Corporation,
and each of them, are authorized and directed to determine the
jurisdictions in which appropriate action shall be taken to qualify or
register for sale all or such part of the Securities of the Corporation
as they may deem advisable; to perform on behalf of the Corporation any
and all such acts as they may deem necessary or advisable in order to
comply with the applicable laws of any such jurisdictions, and in
connection therewith, to execute and file all requisite papers and
documents, including but not limited to, applications, reports, surety
bonds, irrevocable consents and appointments of attorneys for service of
process; and the execution by such officers or any of them of any such
paper or document or the doing by them of any act in connection with the
foregoing matters shall conclusively establish their authority therefor
from the Corporation; and
RESOLVED FURTHER: That the officers of the Corporation,
and each of them, are authorized and empowered to cause the Corporation
to make application to the New York Stock Exchange, or on such other
exchange as the officers may decide, for the listing on such Exchange,
upon notice of issuance of the Securities, and to represent the
Corporation in connection with any application or applications for
listing and to appear on behalf of the Corporation before such official
or body of said Exchange as may be appropriate, with authority to make
such changes, upon the advice of counsel, in said application(s) or in
any agreements or other papers relating thereto as may be necessary or
appropriate to conform with the requirements for listing; and
RESOLVED FURTHER: That the officers of the Corporation,
and each of them, are authorized and empowered to execute and deliver on
behalf of the Corporation (i) an indenture or indentures, including one
or more supplements to any indenture, in the form approved or authorized
by the Special Committee under the corporate seal to be thereto affixed
and attested, with the trustee or trustees appointed, such indenture or
indentures, supplement or supplements and
<PAGE> 4
4
(ii) Corporation guarantee or guarantees relating to the Trust
Securities, each to be in such form and content and bear such date
as may be approved by the officer of the Corporation executing the same,
such approval to be conclusively evidenced by the execution of said
indenture or indentures, or supplement or supplements, guarantee or
guarantees; and
RESOLVED FURTHER: That the officers of the Corporation,
and each of them, are authorized and empowered to execute one or more
underwriting agreements, purchase agreements, or any other type of
agreements between the Corporation and the underwriter or
representatives of the underwriters (or any agents) or any other
purchaser appointed or named in such agreement or agreements, as they
may deem appropriate for the proposed sale of the Securities; and
RESOLVED FURTHER: That the officers of the Corporation,
and each of them, are authorized and empowered to do and to perform, or
cause to be done and performed, all such acts, deeds, and things and to
make, execute, and deliver, or cause to be made, executed, and
delivered, all such agreements, undertakings, documents, instruments, or
certificates in the name and on the behalf of the Corporation or
otherwise as each such officer may deem necessary or appropriate to
effectuate or carry out fully the purpose and intent of the foregoing
resolutions, including the performance of the obligations of the
Corporation under purchase agreements, underwriting agreements and sales
agreements, indentures, registration rights agreements, or other similar
agreements, certificates or declarations, the Securities, any
Registration Statement or any other agreements related to the issuance
and sale of the Securities; and
RESOLVED FURTHER: That the resolutions adopted by the
Board of Directors on January 24, 1992 authorizing the issue and sale of
securities, including securities which may be convertible to the
Corporation's Common Stock, remain in full force and effect with $84
million of such securities remaining available for issue and sale under
Registration No. 33-47629 and amendments thereto.
- - - - - - - - - -
I, Thomas A. McNish, Vice President and Secretary of CMS Energy Corporation,
CERTIFY that the foregoing is a true and correct copy of resolutions duly and
regularly adopted at a meeting of the Board of Directors of CMS Energy
Corporation duly held on February 26, 1999 at which a quorum was in attendance
and voting throughout, and that said resolutions have not since been rescinded
but are still in full force and effect.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the
Corporation this 24th day of March 1999.
( S E A L ) /s/ Thomas A. McNish
--------------------------------------
Thomas A. McNish
Vice President and Secretary
<PAGE> 1
EXHIBIT 25(a)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
-----------------------------
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED,
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2)
--------------------------------------------
NBD BANK
(Exact name of Trustee as specified in its charter)
611 WOODWARD AVENUE
DETROIT, MICHIGAN 48226 38-0864715
(Address of principal (Zip Code) (I.R.S. Employer
executive offices) Identification No.)
NBD BANK
611 WOODWARD AVENUE
DETROIT, MICHIGAN 48226
CORPORATE TRUST ADMINISTRATION
ATTN: ERNEST J. PECK, VICE PRESIDENT
TELEPHONE: (313) 225-2025
(Name, Address and Telephone number of agent for service)
CMS ENERGY CORPORATION
(Exact name of obligor as specified in its charter)
MICHIGAN 38-2726431
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
FAIRLANE PLAZA SOUTH, SUITE 1100
330 TOWN CENTER DRIVE
DEARBORN, MICHIGAN 48126
(Address of principal executive offices) (Zip Code)
SENIOR DEBT SECURITIES
(Title of Indenture Securities)
1
<PAGE> 2
ITEM 1 GENERAL INFORMATION.
Furnish the following information as to the Trustee:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT:
State of Michigan Financial Institutions Bureau, Lansing, MI
Federal Reserve Bank of Chicago, Chicago, Illinois
Federal Deposit Insurance Corporation, Washington, D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
The Trustee is authorized to exercise corporate trust powers.
ITEM 2 AFFILIATIONS WITH THE OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the Trustee.
ITEM 3 VOTING SECURITIES OF THE TRUSTEE.
The following information is furnished as to each class of voting
securities of the Trustee:
As of December 9, 1998
- ------------------------------------------------------------------------------
Column A Column B
- ------------------------------------------------------------------------------
Title of Class Amount Outstanding
- ------------------------------------------------------------------------------
Common Stock, par value $12.50 per share 8,948,648 shares
ITEM 4 TRUSTEESHIPS UNDER OTHER INDENTURES
None.
ITEM 5 THROUGH ITEM 15 Not applicable
ITEM 16 LIST OF EXHIBITS:
EXHIBIT (1) A COPY OF THE ARTICLES OF INCORPORATION OF THE TRUSTEE
NOW IN EFFECT
Incorporated by reference to Exhibit (1) to Item 16 of Form T-1
filed as Exhibit 25 to Registration Statement, Securities and Exchange
Commission, Registration No. 33-51775.*
EXHIBIT (2) CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO COMMENCE
BUSINESS
Incorporated by reference to Exhibit (2) to Item 16 of Form
T-1 filed with Amendment No. 1, Securities and Exchange Commission,
Registration No. 22-4501.*
EXHIBIT (3) AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE TRUST
POWERS
Incorporated by reference to Exhibit (3) to Item 16 of Form T-1
filed with Amendment No. 1, Securities and Exchange Commission,
2
<PAGE> 3
Registration No. 22-4501.*
EXHIBIT (4) BY-LAWS OF THE TRUSTEE, AS PRESENTLY IN EFFECT
Incorporated by reference to Exhibit (4) to Item 16 of Form T-1
filed as Exhibit 25 to Registration Statement, Securities and Exchange
Commission, Registration No. 33-51775.*
EXHIBIT (5) Not Applicable.
EXHIBIT (6) CONSENT BY THE TRUSTEE REQUIRED BY SECTION 321 (B) OF
THE ACT.
Incorporated by reference to Exhibit (6) to Item 16 of Form
T-1, filed with Amendment No. 1, Securities and Exchange Commission,
Registration No. 22-4501.*
EXHIBIT (7) A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE
PUBLISHED PURSUANT TO LAW OR THE REQUIREMENTS OF ITS SUPERVISING OR
EXAMINING AUTHORITY.
EXHIBIT (8) Not applicable.
EXHIBIT (9) Not applicable.
* Exhibits thus designated are incorporated herein by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 filed by the Trustee with
the Securities and Exchange Commission with the specific references noted.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the
Trustee, NBD Bank, a Michigan banking corporation organized and existing under
the laws of the State of Michigan, has duly caused this Statement of Eligibility
and Qualification to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Detroit, State of Michigan on the 26th day of
March, 1999.
NBD BANK, Trustee
By: /s/ Ernest J. Peck
---------------------------------
Ernest J. Peck
Vice President
3
<PAGE> 1
Exhibit 25(b)
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
---------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
CMS ENERGY CORPORATION
(Exact name of obligor as specified in its charter)
Michigan 38-2726431
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
Fairlane Plaza South 48126
330 Town Center Drive, Suite 1100 (Zip code)
Dearborn, Michigan
(Address of principal executive offices)
---------------------------
Subordinated Debt Securities
(Title of the indenture securities)
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
<TABLE>
<CAPTION>
- -------------------------------------------------------- --------------------------------------------
Name Address
- -------------------------------------------------------- --------------------------------------------
<S> <C>
Superintendent of Banks of the State of New York 2 Rector Street, New York, N.Y. 10006,
and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 26th day of March, 1999.
THE BANK OF NEW YORK
By: /s/MICHELE L. RUSSO
---------------------------------
Name: MICHELE L. RUSSO
Title: ASSISTANT TREASURER
-3-
<PAGE> 4
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
in Thousands
<S> <C>
ASSETS Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ................. $ 3,951,273
Interest-bearing balances .......................................... 4,134,162
Securities:
Held-to-maturity securities ........................................ 932,468
Available-for-sale securities ...................................... 4,279,246
Federal funds sold and Securities purchased under
agreements to resell ............................................... 3,161,626
Loans and lease financing receivables:
Loans and leases, net of unearned income .................37,861,802
LESS: Allowance for loan and lease losses ...................619,791
LESS: Allocated transfer risk reserve .........................3,572
Loans and leases, net of unearned income, allowance, and reserve ... 37,238,439
Trading Assets ........................................................ 1,551,556
Premises and fixed assets (including capitalized leases) .............. 684,181
Other real estate owned ............................................... 10,404
Investments in unconsolidated subsidiaries and
associated companies ............................................... 196,032
Customers' liability to this bank on acceptances outstanding .......... 895,160
Intangible assets ..................................................... 1,127,375
Other assets .......................................................... 1,915,742
------------
Total assets .......................................................... $ 60,077,664
============
</TABLE>
-4-
<PAGE> 5
<TABLE>
<S> <C>
LIABILITIES
Deposits:
In domestic offices ................................................ $ 27,020,578
Noninterest-bearing ......................................11,271,304
Interest-bearing .........................................15,749,274
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ........................................... 17,197,743
Noninterest-bearing .........................................103,007
Interest-bearing .........................................17,094,736
Federal funds purchased and Securities sold under
agreements to repurchase ........................................... 1,761,170
Demand notes issued to the U.S.Treasury ............................... 125,423
Trading liabilities ................................................... 1,625,632
Other borrowed money:
With remaining maturity of one year or less ........................ 1,903,700
With remaining maturity of more than one year
through three years .............................................. 0
With remaining maturity of more than three years ................... 31,639
Bank's liability on acceptances executed and outstanding .............. 900,390
Subordinated notes and debentures ..................................... 1,308,000
Other liabilities ..................................................... 2,708,852
Total liabilities ..................................................... 54,583,127
EQUITY CAPITAL
Common stock .......................................................... 1,135,284
Surplus ............................................................... 764,443
Undivided profits and capital reserves ................................ 3,542,168
Net unrealized holding gains (losses) on
available-for-sale securities ...................................... 82,367
Cumulative foreign currency translation adjustments (29,725)
Total equity capital .................................................. 5,494,537
------------
Total liabilities and equity capital .................................. $ 60,077,664
============
</TABLE>
-5-
<PAGE> 6
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Reyni
Gerald L. Hassell Directors
Alan R. Griffith
- --------------------------------------------------------------------------------
-6-
