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EXHIBIT 1(d)
CMS ENERGY CORPORATION
CMS ENERGY TRUST III
% PREMIUM EQUITY PARTICIPATING SECURITY UNITS -
PEPS(SM) UNITS
(Stated Amount $25 per Unit)
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UNDERWRITING AGREEMENT
August , 2000
Morgan Stanley & Co. Incorporated
Banc of America Securities LLC
Donaldson, Lufkin & Jenrette Securities Corporation
As Representatives of the several Underwriters
named in Schedule II hereto
c/o Morgan Stanley Dean Witter
1585 Broadway
New York, New York 10036-8293
Ladies and Gentlemen:
CMS Energy Trust III, a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), and CMS Energy Corporation, a Michigan
corporation, as sponsor of the Trust and as guarantor (the "Company"), propose,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters (as defined in Section 14 hereof) an aggregate of 8,800,000 %
Premium Equity Participating Security Units (the "Firm Units"). The Underwriters
have designated the representatives named in Schedule I hereto (the
"Representatives") to execute this Agreement on their behalf and to act for them
in the manner provided in this Agreement.
Each Unit (as defined below) will initially consist of (a) a stock
purchase contract (a "Purchase Contract") under which the holder of a PEPS Units
will purchase from the Company on August 18, 2003, for an amount in cash equal
to the stated amount per Security of $25 (the "Stated Amount"), a number of
shares ("Purchase Contract Shares") of
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common stock, par value $0.01 per share, of the Company, (the "Common Stock"),
as set forth in such Purchase Contract, and (b) a Trust Preferred Security (a
"Trust Preferred Security") having a stated liquidation amount of $25 per Trust
Preferred Security, representing an undivided beneficial ownership interest in
the assets of the Trust and guaranteed by the Company as to the payment of cash
distributions, out of moneys held by the Trust, and as to payments on
liquidation or redemption and described in any Prospectus (as defined in Section
1(a) hereof).
In accordance with the terms of a Purchase Contract Agreement (the
"Purchase Contract Agreement") to be entered into between the Company and The
Bank of New York, as Purchase Contract Agent (the "Purchase Contract Agent"),
the holders of the PEPS Units will pledge the Trust Preferred Securities to
Chase Manhattan Bank, as Collateral Agent (the "Collateral Agent"), pursuant to
a Pledge Agreement (the "Pledge Agreement") to be entered into between the
Company and the Collateral Agent, to secure the holders' obligations to purchase
Common Stock under the Purchase Contracts.
In the event any Optional Units (as defined below) are purchased, the
holders will pledge to the Collateral Agent the additional Trust Preferred
Securities having an aggregate principal amount equal to the aggregate Stated
Amount times the number of Optional Units to be purchased by the Underwriters
upon the exercise of such option.
The Company will own all of the beneficial ownership interests
represented by the common securities (the "Common Securities" and, together with
the Trust Preferred Securities, the "Trust Securities") of the Trust.
Concurrently with the issuance of the Trust Preferred Securities and the
Company's purchase of all of the Common Securities, the Trust will invest the
proceeds of each thereof in the Company's Subordinated Deferrable Notes due
August 18, 2003 (the "Subordinated Deferrable Notes") to be issued pursuant to
an Indenture, dated as of June 1, 1997, as supplemented by a Supplemental
Indenture dated as of the Closing Date (the "Indenture"), between the Company
and The Bank of New York, as trustee (the "Debenture Trustee").
The Company will guarantee (the "Guarantee") the Trust Securities to
the extent set forth in a Guarantee Agreement (the "Guarantee Agreement") to be
entered into between the Company and The Bank of New York, as trustee (the
"Guarantee Trustee"), for the benefit of the holders from time to time of the
Trust Securities.
The Trust Securities will be issued pursuant to the amended and
restated declaration of trust of the Trust (the "Amended Declaration"), among
the Company, as Sponsor, and the trustee parties thereto (collectively, the
"Trustees"), including The Bank of New York, as property trustee (the "Property
Trustee"), and the holders from time to time of the undivided beneficial
ownership interests in the assets of the Trust. The Company together with the
Trust shall be hereinafter referred to as the "Issuers".
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In addition, subject to the terms and conditions herein, the Company
proposes to grant the Underwriters an option to purchase up to1,200,000
additional % Premium Equity Participating Security Units (the "Optional
Units"). The Firm Units and any Optional Units purchased by the Underwriters are
herein called the "Units".
1. Representations and Warranties of the Company and the Trust. Each of
the Trust and the Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) A registration statement on Form S-3, as amended (Registration
Nos. 333-68937 and 333-68937-02) (the "Initial Registration Statement") in
respect of the Units, including the Purchase Contracts, the Purchase
Contract Shares, the Trust Preferred Securities, the Subordinated Deferrable
Notes and the Guarantee, has been filed with the Securities and Exchange
Commission (the "Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered or
to be delivered to the Representatives and, excluding exhibits to such
registration statement, but including all documents incorporated by
reference in the prospectus included therein, to the Representatives for
each of the other Underwriters, have been declared effective by the
Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a "Rule 462(b) Registration
Statement"), filed pursuant to Rule 462(b) under the Securities Act of 1933,
as amended (the "Act"), which became effective upon filing, no other
document with respect to the Initial Registration Statement or document
incorporated by reference therein has heretofore been filed, or transmitted
for filing, with the Commission (other than prospectuses filed pursuant to
Rule 424(b) of the rules and regulations of the Commission under the Act
each in the form heretofore delivered to the Representatives); no stop order
suspending the effectiveness of the Initial 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 (any preliminary
prospectus included in such registration statement or filed with the
Commission pursuant to Rule 424(a) under the Act, is hereinafter called a
"Preliminary Prospectus"); the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and the documents incorporated by reference in the
prospectus contained in the Initial Registration Statement at the time such
part of the registration statement became effective or such part of the Rule
462(b) Registration Statement, if any, became or hereafter becomes
effective, each as amended at the time such part of the registration
statement became effective, are hereinafter collectively called the
"Registration Statement"; the prospectus relating to the Units, in the form
in which it has most recently been filed, or transmitted for filing, with
the Commission on or prior to the date of this Agreement, is hereinafter
called the "Prospectus"; any reference herein to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the documents
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incorporated by reference therein pursuant to the applicable form under the
Act, as of the date of such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus or Prospectus,
as the case may be, under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any amendment
to the Registration Statement shall be deemed to refer to and include any
report of the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Initial Registration Statement
that is incorporated by reference in the Registration Statement; and any
reference to the Prospectus as amended or supplemented shall be deemed to
refer to the Prospectus as amended or supplemented in relation to the
Securities in the form in which it is filed with the Commission pursuant to
Rule 424(b) under the Act in accordance with Section 4(a) hereof, including
any documents incorporated by reference therein as of the date of such
filing);
(b) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the
Act and the rules and regulations of the Commission thereunder and do not
and will not, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable filing date as
to the Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by or through the
Representatives on behalf of any Underwriter expressly for use in the
Prospectus as amended or supplemented relating to the Units or to any
statements in or omissions from that part of the Registration Statement that
shall constitute the Statements of Eligibility and Qualification under the
Trust Indenture Act of the Debenture Trustee, the Guarantee Trustee and the
Property Trustee;
(c) The documents incorporated by reference in the Registration
Statement 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 filed (or, if an amendment with respect to any such document
was
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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 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;
(d) There has not been any material and adverse change in the
business, properties or financial condition of the Company and its
Subsidiaries (as defined in Rule 405 under the Act, and hereinafter called
the "Subsidiaries"), taken as a whole, from that set forth in the
Registration Statement and the Prospectus (other than changes referred to in
or contemplated by the Registration Statement or the Prospectus);
(e) 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 and its Subsidiaries, taken as a whole; 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; and the Company has the requisite power and authority to authorize
the offering of the Subordinated Deferrable Notes and the Purchase Contract
Shares, to execute, deliver and perform the Purchase Contracts, the Purchase
Contract Agreement, the Pledge Agreement, the Guarantee, the Indenture, the
Amended Declaration, the Remarketing Agreement (the "Remarketing Agreement")
to be entered into by and among the Company, the Trust and Morgan, Stanley &
Co. Incorporated, as Remarketing Agent (the "Remarketing Agent"), and this
Agreement, and to issue, sell and deliver the Subordinated Deferrable Notes
and the Purchase Contract Shares;
(f) The shares of Common Stock of the Company issued and outstanding
prior to the issuance and sale of the Units have been duly authorized and
are validly
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issued, fully paid and non-assessable; the Purchase Contract Shares to be
issued and sold by the Company pursuant to the Purchase Contracts have been
duly authorized and reserved for issuance and, when issued and delivered
against payment therefor as provided in the Purchase Contracts, and the
Purchase Contract Agreement will be validly issued, fully paid and
non-assessable and conform to the description of Common Stock in the
Prospectus;
(g) The Trust Preferred Securities underlying the Units have been duly
and validly authorized by the Trust, and, when the Trust Preferred
Securities are issued and delivered, such Trust Preferred Securities will be
validly issued, fully paid and non-assessable undivided beneficial interests
in the assets of the Trust; the Trust Preferred Securities will conform in
all material respects to the description thereof contained in the
Prospectus; the issuance of the Trust Preferred Securities is not subject to
any preemptive or other similar rights; the Trust Preferred Securities will
have the rights set forth in the Amended Declaration, and the terms of the
Trust Preferred Securities are valid and binding on the Trust;
(h) The Trust Common Securities have been duly and validly authorized
by the Trust and upon delivery by the Trust to the Company against payment
therefor as described in the Prospectus, will be duly and validly issued
undivided beneficial interests in the assets of the Trust and will conform
in all material respects to the description thereof contained in the
Prospectus; the issuance of the Trust Common Securities is not subject to
preemptive or other similar rights; at each Time of Delivery (as defined in
Section 3 hereof), all of the issued and outstanding Trust Common Securities
will be directly owned by the Company free and clear of any security
interest, mortgage, pledge, claim, lien or encumbrance (each, a "Lien"); and
the Trust Common Securities and the Trust Preferred Securities are the only
interests authorized to be issued by the Trust;
(i) 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, the 8.20% Trust Originated Preferred Securities
of Consumers Energy Financing II, the 9-1/4% Trust Originated Preferred
Securities of Consumers Energy Financing III, the 7.75% Convertible
Quarterly Income Preferred Securities of CMS Energy Trust I, the 8.750%
Adjustable Convertible Trust Securities of CMS Energy Trust II and the
Redeemable Hybrid Income Overnight Shares of CMS RHINOS Trust, 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 Lien, and 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
Enterprises Company or any contract, commitment, agreement, understanding or
arrangement of any kind relating to the
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issuance of any such capital stock, any such convertible or exchangeable
securities or any such rights, warrants or options;
(j) The capital stock of the Company, including the Common Stock,
conforms in all material respects to the description thereof in the
Prospectus;
(k) Each of the Company and its Significant Subsidiaries 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 that the
failure to obtain or file would not have a material adverse effect on the
Company and its Subsidiaries, taken as a whole;
(l) No order, license, consent, authorization or approval of, or
exemption by, or the giving of notice to, or the registration with any
federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, and no filing, recording,
publication or registration in any public office or any other place, was or
is now required to be obtained by the Company to authorize its execution or
delivery of, or the performance of its obligations under, this Agreement,
except such as have been obtained or may be required under state securities
or Blue Sky laws or as referred to in the Prospectus in connection with the
purchase and distribution of the Units, in connection with the execution,
delivery or performance of the Purchase Contract Agreement, the Pledge
Agreement, the Guarantee, the Amended Declaration, the Indenture and the
Remarketing Agreement, or to issue, sell and deliver the Purchase Contracts,
Subordinated Deferrable Notes and the Purchase Contract Shares;
(m) No order, license, consent, authorization or approval of, or
exemption by, or the giving of notice to, or the registration with any
federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, and no filing, recording,
publication or registration in any public office or any other place, was or
is now required to be obtained by the Trust to authorize its execution or
delivery of, or the performance of its obligations under, this Agreement,
except such as have been obtained or may be required under state securities
or Blue Sky laws or as referred to in the Prospectus in connection with the
purchase and distribution of the Units, in connection with the execution,
delivery or performance of the Amended Declaration and the Remarketing
Agreement, or to issue, sell and deliver the Trust Preferred Securities and
the Trust Common Securities;
(n) The execution and delivery by the Trust of this Agreement and the
Remarketing Agreement, the compliance by the Trust with all of the
provisions of this Agreement, the Remarketing Agreement, the issuance and
sale of the Trust Preferred
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Securities and the Trust Common Securities by the Trust, the purchase of the
Subordinated Deferrable Notes by the Trust, the distribution of the
Subordinated Deferrable Notes by the Trust in the circumstances contemplated
by the Amended Declaration, the performance of this Agreement, the Amended
Declaration and the Remarketing Agreement, and the consummation of each of
the transactions contemplated thereby did not and will not 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 Amended Declaration,
any material terms or provisions of any material agreement or instrument to
which the Trust is a party, any existing material applicable law, rule or
regulation or any judgment, order or decree of any governmental
instrumentality or court, domestic or foreign, having jurisdiction over the
Trust or any of its properties or assets, or did or will result in the
creation or imposition of any Lien on the Trust's properties or assets;
(o) The execution and delivery by the Company of this Agreement, the
Purchase Contracts, the Purchase Contract Agreement, the Pledge Agreement,
the Guarantee, the Amended Declaration, the Indenture and the Remarketing
Agreement, the compliance by the Company with all of the provisions of this
Agreement, the Purchase Contracts, the Purchase Contract Agreement, the
Pledge Agreement, the Guarantee, the Amended Declaration, the Indenture and
the Remarketing Agreement, the entry into the Purchase Contracts by the
Company, the issuance and sale of the Trust Preferred Securities and the
Trust Common Securities by the Trust, the sale of the Subordinated
Deferrable Notes by the Company to the Trust, the distribution of the
Subordinated Deferrable Notes by the Trust in the circumstances contemplated
by the Amended Declaration, the issuance and sale by the Company of the
Purchase Contract Shares, the performance of this Agreement, the Purchase
Contracts, the Purchase Contract Agreement, the Pledge Agreement, the
Guarantee, the Amended Declaration, the Indenture and the Remarketing
Agreement, and the consummation of each of the transactions contemplated
thereby, did not and will not 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 terms or provisions of any material agreement or instrument to
which the Company is a party, any existing material applicable law, rule or
regulation or any judgment, order or decree of any 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;
(p) Except as disclosed in the 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
or any Subsidiary by any governmental authority that (i) questions the
validity, enforceability or performance of this Agreement or the Units or
(ii) if determined adversely, is likely to have a material adverse effect on
the business or financial condition of the Company and its
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Subsidiaries, taken as a whole, or materially adversely affect the ability
of the Company to perform its obligations hereunder or the consummation of
the transactions contemplated by this Agreement;
(q) Except as set forth in the 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 or any of its Significant Subsidiaries in any material respect under
any indenture, mortgage, loan agreement, lease or other material agreement
or instrument to which the Company or any of its Significant Subsidiaries is
a party or by which it or any of its Significant Subsidiaries, or any of
their respective properties, may be bound;
(r) Neither the Company, the Trust nor any of the Subsidiaries is,
after giving effect to the offering and sale of the Units, will be an
"investment company" within the meaning of the Investment Company Act of
1940, as amended (the "Investment Company Act"). The Trust is not required
to be registered under the Investment Company Act;
(s) The Units have been approved for listing on the New York Stock
Exchange, subject to notice of issuance;
(t) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Business Trust Act of
the State of Delaware (the "Delaware Business Trust Act") with the trust
power and authority to own property and conduct its business as described in
the Prospectus, and has conducted and will conduct no business other than
the transactions contemplated by this Agreement and described in the
Prospectus; the Trust is not a party to or bound by any agreement or
instrument other than this Agreement, the Amended Declaration and the
Remarketing Agreement and the agreements and instruments contemplated by the
Amended Declaration and described in the Prospectus; based on expected
operations and current law, the Trust is not and will not be classified as
an association taxable as a corporation for United States federal income tax
purposes; and, to the knowledge of each of the Company and the Trust, the
Trust is not a party to or subject to any action, suit or proceeding of any
nature;
(u) This Agreement has been duly authorized, executed and delivered by
the Company and the Trust and constitutes a valid and binding obligation of
each of the Company and the Trust, enforceable in accordance with its terms,
subject, as to enforcement, to 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);
(v) The Purchase Contracts underlying the Units have been duly
authorized
<PAGE> 10
and when validly executed and delivered by the Company and the other parties
thereto pursuant to this Agreement and the Purchase Contract Agreement, will
constitute valid and binding obligations of the Company, enforceable in
accordance with their terms, subject, as to enforcement, to 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);
and the Purchase Contracts will conform to the descriptions thereof in the
Prospectus;
(w) The Purchase Contract Agreement and the Pledge Agreement, have
each been duly authorized by the Company and, when executed and delivered by
the Company and the other parties thereto, will constitute valid and binding
obligations, enforceable in accordance with their respective terms, subject,
as to enforcement, to 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 Purchase Contract Agreement and the
Pledge Agreement conform or will conform to the descriptions thereof in the
Prospectus; and the Pledge Agreement creates, as collateral security, for
the performance when due, by the Holders, of the respective obligations
created under the Purchase Contracts, a legal, valid and perfected security
interest (as that term is defined in the Uniform Commercial Code, as adopted
and in effect in the State of New York), in favor of the Collateral Agent,
in the right, title and interest of such Holders in the Pledged Securities
that constitute a part of the Units;
(x) The Guarantee, the Subordinated Deferrable Notes, the Amended
Declaration and the Indenture have each been duly authorized and when
validly executed and delivered by the Company and, in the case of the
Guarantee, by the Guarantee Trustee and, in the case of the Amended
Declaration, by the CMS Trustees and, in the case of the Indenture, by the
Debenture Trustee, and, in the case of the Subordinated Deferrable Notes,
when validly authenticated and delivered by the Debenture Trustee and, in
the case of the Guarantee, upon due execution, authentication and delivery
of the Subordinated Deferrable Notes and upon payment therefor, will
constitute valid and binding obligations of the Company, enforceable in
accordance with their respective terms, subject, as to enforcement, to
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 Subordinated Deferrable Notes are entitled to the benefits
of the Indenture; the Amended Declaration, the Indenture and the Guarantee
have been duly qualified under the Trust Indenture Act;
(y) The Remarketing Agreement has been duly authorized; and
(z) Each of the Amended Declaration, the Guarantee, the Indenture, the
Subordinated Deferrable Notes and the Remarketing Agreement will conform in
all
<PAGE> 11
material respects to the description thereof contained in the Prospectus.
2. Sale of Units.
(a) Subject to the terms and conditions set forth herein:
(i) the Company and each of the Underwriters, severally and not
jointly, agree to enter into the Purchase Contracts underlying the
number of Firm Units set forth opposite the name of such Underwriter in
Schedule II hereto,
(ii) the Company and the Trust agree that the Trust will sell to
each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Trust, the number of
Trust Preferred Securities underlying the number of Firm Units set
forth opposite the name of such Underwriter in Schedule II hereto,
(iii) the Company and the Trust agree to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company and the Trust, at a purchase
price of $ per Firm Unit, the number of Firm Units set forth opposite
the name of such Underwriter in Schedule II hereto, and
(iv) in the event and to the extent that the Underwriters shall
exercise the election to enter into additional Purchase Contracts
underlying Optional Units as provided in sub-section (b) below,
(1) the Company and each of the Underwriters, severally and
not jointly, agree to enter into that number of additional
Purchase Contracts as to which such election shall have been
exercised (to be adjusted by you so as to eliminate fractional
Purchase Contracts) determined by multiplying such number of
additional Purchase Contracts by a fraction, the numerator of
which is the maximum number of Optional Units set forth opposite
the name of such Underwriter in Schedule II hereto and the
denominator of which is the maximum number of Optional Units set
forth in total opposite the names of all such Underwriters in
Schedule II hereto,
(2) the Company and the Trust agree that the Trust will sell
to each of the Underwriters and each of the Underwriters agrees,
severally and not jointly, to purchase from the Trust, a number of
Trust Preferred Securities equal to such number of additional
Purchase Contracts, and
<PAGE> 12
(3) the Company and the Trust agree to sell to each of the
Underwriters and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company and the Trust at the
purchase price set forth in clause (a) of this Section 2, a number
of Optional Units equal to such number of additional Purchase
Contracts.
(b) The Company and the Trust hereby grant to the Underwriters the
right to enter into at their election up to 1,200,000 Optional Units for the
sole purpose of covering overallotments in the sale of the Firm Units. Any
such election to enter into such additional Purchase Contracts and purchase
such Trust Preferred Securities may be exercised only by written notice from
you to the Company and the Trust, given within a period of 30 calendar days
after the date of this Agreement and setting forth the aggregate number of
such additional Purchase Contracts to be entered into and Trust Preferred
Securities to be purchased (which shall be an identical number) and the date
on which the related Optional Units are to be delivered, as determined by
you but in no event earlier than the First Time of Delivery (as defined in
Section 3 hereof) or, unless you and the Company otherwise agree in writing,
earlier than two or later than ten business days after the date of such
notice.
(c) The Underwriters agree to pledge to the Collateral Agent, on
behalf of the initial purchasers of the Units, the Trust Preferred
Securities underlying the Firm Units and the Optional Units with respect to
which the Company and the Underwriters have entered into Purchase Contracts.
Such pledge shall be effected by the delivery by the Underwriters to the
Collateral Agent in New York of the Trust Preferred Securities to be pledged
at the appropriate Time of Delivery (as defined below) in accordance with
the Pledge Agreement.
(d) Unless the context otherwise requires, for purposes of this
Agreement, the act of entering into a Purchase Contract and purchasing a
Trust Preferred Security shall be referred to as the "purchase" of a Unit.
3. Delivery of Units.
(a) The Units to be purchased by each Underwriter shall be delivered
by or on behalf of the Company to such Underwriter, through the facilities
of the Depository Trust Company ("DTC"), for the account of such
Underwriter, against (i) payment by or on behalf of such Underwriter of the
purchase price therefor by certified or official bank check or checks,
payable to the order of, or by wire transfer to the account designated by,
the Company in federal or other immediately available funds and (ii)
delivery to the Collateral Agent of the Trust Preferred Securities relating
to such Units. The Company will cause the certificates representing the
Units to be made available for checking and packaging at least twenty-four
hours prior to the Time of Delivery (as defined below) at the office of DTC
or its designated custodian (the "Designated
<PAGE> 13
Office"). The Units to be purchased by each Underwriter hereunder will be
represented by one or more definitive global Units in book- entry form which
will be deposited by or on behalf of the Company with the DTC or its
designated custodian. The time and date of such delivery and payment shall
be 9:30 a.m., New York City time, on August 22, 2000 or such other time and
date as the Underwriters, the Trust and the Company may agree upon in
writing, and, with respect to the Optional Units, 9:30 a.m., New York City
time, on the date specified by the Representatives in the written notice
given by the Representatives of the Underwriters' election to purchase such
Optional Units, or such other time and date as the Representatives and the
Company may agree upon in writing. Such time and date for delivery of the
Firm Units is herein called the "First Time of Delivery," such time and date
for delivery of the Optional Units, if not the First Time of Delivery, is
herein called the "Second Time of Delivery," and each such time and date for
delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 6 hereof, including the
cross-receipt for the Units, will be delivered at such time and date at the
offices of Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New
York, New York 10036 (the "Closing Location"), and the Units will be
delivered at the Designated Office, all at each Time of Delivery. A meeting
will be held at the Closing Location prior to each Time of Delivery, at
which meeting the final drafts of the documents to be delivered pursuant to
the preceding sentence will be available for review by the parties hereto.
For the purposes of this Agreement, "New York Business Day" shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or obligated by
law or executive order to close.
4. Covenants of the Trust and the Company. The Trust and the Company,
jointly and severally, agree with each of the Representatives and each of the
Underwriters:
(a) To prepare the Prospectus as amended and supplemented in relation
to the Units in a form approved by the Representatives and to file such
Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement or, if applicable, such earlier
time as may be required by Rule 424(b); prior to each Time of Delivery, to
make no further amendment or any supplement to the Registration Statement or
Prospectus as amended or supplemented unless the Company has furnished the
Representatives and their counsel with a copy, for their review and comment,
a reasonable time prior to filing and has reasonably considered any comments
of the Representatives, and to make no such amendment or supplement to which
such counsel shall reasonably object on legal grounds in writing, after
consultation with the Representatives; to timely file all reports and any
definitive proxy
<PAGE> 14
or information statements required to be filed by the Trust or the Company
with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Units, and during such same
period to advise the Representatives, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed with the Commission, of the issuance by
the Commission of any stop order or of any order preventing or suspending
the use of any prospectus relating to the Units, of the suspension of the
qualification of the Units for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the Units or
suspending any such qualification, promptly to use its best efforts to
obtain the withdrawal of such order;
(b) Prior to 10:00 a.m., New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to time during
the period of time (not exceeding nine months) after the date of the
Prospectus when a Prospectus is required to be delivered under the Act to
furnish the Representatives in New York City with copies of the Prospectus
as amended or supplemented in such quantities as the Representatives may
reasonably request, and, if the delivery of a prospectus is required at any
time after the expiration of nine months in connection with the offering or
sale of the Units, and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act,
to prepare and file such document and to furnish without charge as many
copies as the Representatives may reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance;
(c) If the Company and the Trust elect to rely upon Rule 462(b), the
Company and the Trust shall file a Rule 462(b) Registration Statement with
the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington,
D.C. time, on the date of this Agreement, and the Company shall at the time
of filing either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment of
such fee pursuant to Rule 111(b) under the
<PAGE> 15
Act;
(d) To make generally available to the Company's securityholders, as
soon as practicable but in any event not later than eighteen months after
the effective date of the Registration Statement, an "earning statement"
(which need not be audited by independent 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 the provisions of Section 11(a) of the Act and
Rule 158 under the Act);
(e) To use its best efforts to qualify the Units for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the
Representatives may reasonably request, to comply with such laws so as to
permit the continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of the Units,
and to pay (or cause to be paid), or reimburse (or cause to be reimbursed)
the Representatives and their counsel for, reasonable filing fees and
expenses in connection therewith (including the reasonable fees and
disbursements of counsel to the Representatives 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;
(f) During the period beginning from the date hereof and continuing
for a period of 60 days after the issuance of the Units, not to offer, sell,
contract to sell or otherwise dispose of any Units, Trust Preferred
Securities or Common Stock or any other securities of the Company which are
substantially similar to the Units, including any guarantee of such
securities, or any securities convertible into or exchangeable for or
representing the right to receive any of the foregoing securities, other
than shares of Common Stock issuable upon conversion of the Units or
pursuant to the Company's Stock Purchase Plan, Performance Incentive Stock
Plan, Employee Stock Ownership Plan and Employee Savings and Incentive Plan,
without the prior written consent of the Representatives;
(g) To use the net proceeds received by it from the sale of the Units,
pursuant to this Agreement in the manner specified in the Prospectus under
the caption "Use of Proceeds"; and
(h) To use its best efforts to list, subject to notice of issuance,
the Units on the New York Stock Exchange.
5. Expenses. The Company covenants and agrees with the several
Representatives and the several Underwriters that the Company will pay or cause
to be paid the following: (i)
<PAGE> 16
the fees, disbursements and expenses of the Trust's and the Company's counsel
and accountants in connection with the registration of the Units under the Act
and all other expenses in connection with the preparation, printing and filing
of the Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the dealers and the Underwriters; (ii) the cost of any delivery to
the Underwriters of any Blue Sky Memorandum; (iii) all expenses in connection
with the qualification of the Units for offering and sale under state securities
laws as provided in Section 4(e) hereof, including the fees and disbursements of
counsel for the Representatives in connection with such qualification and in
connection with the Blue Sky survey(s) up to an aggregate amount not to exceed
$5,000; (iv) any fees charged by securities rating services for rating the
Units, the Trust Preferred Securities and the Subordinated Deferrable Notes; (v)
the cost of preparing the certificates for the Units, the Trust Preferred
Securities, the Subordinated Deferrable Notes, the Trust Common Securities and
any Purchase Contract Shares; (vi) the fees and expenses of the CMS Trustees,
the Debenture Trustee and the Guarantee Trustee and any other agent thereof and
the fees and disbursements of their counsel (it being understood that as among
the Company and the Trust and such trustees, such fees and expenses shall not
exceed $5,000); (vii) the cost and charges of any transfer agent or registrar or
dividend disbursing agent; (viii) the fees and expenses of the Purchase Contract
Agent, Collateral Agent, Remarketing Agent and Debenture Trustee and any agent
of the Purchase Contract Agent, Collateral Agent, Remarketing Agent and
Debenture Trustee and the fees and disbursements of any counsel for the Purchase
Contract Agent, Collateral Agent, Remarketing Agent or Trustee in connection
with the Purchase Contract Agreement, the Pledge Agreement, the Remarketing
Agreement, the Indenture and the Subordinated Deferrable Notes, as the case may
be and (ix) all other reasonable costs and expenses incident to the performance
of its obligations hereunder which are not otherwise specifically provided for
in this Section. It is understood, however, that, except as provided in this
Section, and Section 8 hereof, the Representatives and the Underwriters will pay
all of their own costs and expenses, including, without limitation, the fees of
their counsel.
6. Conditions on the Obligations of the Underwriters. The obligations of
the Underwriters shall be subject to the condition that all representations and
warranties and other statements of the Trust and the Company herein are, at and
as of such Time of Delivery, true and correct, the condition that the Trust and
the Company shall have performed all of their respective obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
Securities shall have been filed with the Commission pursuant to Rule 424(b)
within the applicable time period prescribed for such filing by the rules
and regulations under the Act and in accordance with Section 4(a) hereof; if
the Company has elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall have become effective by 10:00 p.m.,
Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have
<PAGE> 17
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information on
the part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) Skadden, Arps, Slate, Meagher & Flom LLP ("Skadden Arps"), counsel
for the Underwriters, shall have furnished to the Representatives such
written opinion or opinions, dated the appropriate Time of Delivery, with
respect to the formation of the Trust, insofar as the federal laws of the
United States and the laws of the State of New York or the General
Corporation Law of the State of Delaware or the Delaware Business Trust Act
are concerned, the validity of the Units, the Trust Preferred Securities,
the Subordinated Deferrable Notes, the Guarantee and the Prospectus, as well
as such other related matters as the Representatives may reasonably request,
and such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) Michael D. Van Hemert, Assistant General Counsel to the Company,
shall have furnished to the Representatives his written opinion or opinions,
dated such Time of Delivery, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company is a duly organized and validly existing
corporation in good standing under the laws of Michigan, with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus, as amended and supplemented;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus, as amended or supplemented, and all of the issued
shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable;
(iii) The Purchase Contract Shares to be issued and sold by the
Company pursuant to the Purchase Contracts and the Purchase Contract
Agreement have been duly authorized and reserved for issuance and, when
issued and delivered against payment therefor as provided in the
Purchase Contracts and the Purchase Contract Agreement, will be duly
and validly issued, fully paid and non-assessable and will conform to
the description of the Common Stock in the Prospectus;
(iv) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its Subsidiaries is
a party or of which any property of the Company or any of its
Subsidiaries is the subject which, if
<PAGE> 18
determined adversely to the Company or any of its Subsidiaries, would
in the aggregate have a material adverse effect on the current or
future consolidated financial position, securityholders' equity or
results of operations of the Company and its Subsidiaries; and to the
best of such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(v) This Agreement has been duly authorized, executed and
delivered by the Company;
(vi) The Remarketing Agreement has been duly authorized,
executed and delivered by the Company;
(vii) To the best knowledge of such counsel, there are no
outstanding subscriptions, rights, warrants, options, calls,
convertible securities, commitments or sale or Liens related to or
entitling any person to purchase or otherwise to acquire any shares of
the capital stock of, or other ownership interest in, any Significant
Subsidiary;
(viii) The issuance and sale of the Units being delivered at such
Time of Delivery, the entry by the Company into the Purchase Contracts,
the compliance by the Company with all the provisions of this
Agreement, the issuance and sale of the Trust Preferred Securities and
the Trust Common Securities by the Trust, the sale of the Subordinated
Deferrable Notes by the Company to the Trust, the issuance by the
Company of the Purchase Contract Shares pursuant to the Purchase
Contracts and the Purchase Contract Agreement, the distribution of the
Subordinated Deferrable Notes by the Trust in the circumstances
contemplated by the Amended Declaration and the execution, delivery and
performance of this Agreement, the Purchase Contracts, the Purchase
Contract Agreement, the Pledge Agreement, the Remarketing Agreement,
the Guarantee, the Amended Declaration and the Indenture and the
consummation of each of the transactions contemplated thereby, will not
conflict with or result in a breach or violation of any of the material
terms or provisions of, or constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument known to such counsel to which the Company or any of its
Subsidiaries is a party or by which the Company is bound or to which
any of the property or assets of the Company or any of its Subsidiaries
is subject (except for such breaches or violations or defaults that
would not have a material adverse effect on the business, property or
financial condition of the Trust or of the Company and its
Subsidiaries, taken as a whole), nor will such action result in any
violation of the provisions of the Articles of Incorporation or by-laws
of the Company or any statute or any currently existing order, rule or
regulation known to such counsel of any court
<PAGE> 19
or governmental agency or body having jurisdiction over the Company or
any of its Subsidiaries or any of its properties (other than the
securities or Blue Sky laws of the various states, as to which such
counsel need express no opinion);
(ix) No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or
body is required for the issuance and sale of the Units or the
consummation by the Company of the transactions contemplated herein,
except such as have been obtained under the Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws (as to which such
counsel need express no opinion) in connection with the purchase and
distribution of the Units;
(x) Neither the Company nor any of its Significant
Subsidiaries is in violation of its respective charters or bylaws or in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument
to which it is a party or by which it or any of its properties may be
bound, except for such violations or defaults the existence of which
would not have a material adverse effect on the Company and its
Subsidiaries, taken as a whole;
(xi) The statements made in the Prospectus under the captions
"Description of the PEPS Units,""Description of the Purchase
Contracts," "Certain Provisions of the Purchase Contracts, the Purchase
Contract Agreement and the Pledge Agreement," "Description of the Trust
Preferred Securities," "Description of the Subordinated Deferrable
Notes" and "Description of the Guarantee," insofar as such statements
constitute summaries of legal matters or documents referred to therein,
are accurate in all material respects; the Units, the Trust Preferred
Securities, the Subordinated Deferrable Notes, the Guarantee, the
Amended Declaration, the Indenture and the Trust Common Securities
conform as to legal matters to the description thereof and to the
statements in regard thereto contained in the Registration Statement
and the Prospectus as amended or supplemented;
(xii) The Company is not an "investment company" within the
meaning of the Investment Company Act. The Trust is not required to be
registered under the Investment Company Act;
(xiii) The documents incorporated by reference in the Prospectus
as amended or supplemented (other than the operating statistics,
financial statements, notes, auditors' reports and related schedules
therein, and any other financial or statistical data included or
incorporated by reference therein, as to
<PAGE> 20
which such counsel need express no opinion), when they became effective
or were filed with the Commission, as the case may be, complied as to
form in all material respects with the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder; and they have no reason to believe that any of
such documents, when they became effective or were so filed, as the
case may be, contained, in the case of a registration statement which
became effective under the Act, 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 not misleading, or, in the
case of other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading;
(xiv) The Registration Statement and the Prospectus as amended
or supplemented, and any further amendments and supplements thereto
made by the Company prior to such Time of Delivery (other than the
operating statistics, financial statements, notes, auditors' reports
and related schedules and any other financial or statistical data
included or incorporated by reference therein, as to which such counsel
need express no opinion), comply as to form in all material respects
with the requirements of the Act and the Trust Indenture Act and the
rules and regulations thereunder; although he does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus,
except for those referred to in the opinion in subsection (ix) of this
Section 6(c), he has no reason to believe that, as of its effective
date, the Registration Statement or any further amendment thereto made
by the Company prior to such Time of Delivery (other than the operating
statistics, financial statements, notes, auditors' reports and related
schedules and any other financial or statistical data included or
incorporated by reference therein, as to which such counsel need
express no opinion) 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 not misleading or that, as of
its date, the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company prior to such Time
of Delivery (other than the operating statistics, financial statements,
notes, auditors' reports and related schedules and any other financial
or statistical data included or incorporated by reference therein, as
to which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that, as of
such Time of Delivery, either the Registration Statement or the
Prospectus as amended or supplemented or any further amendment or
supplement thereto
<PAGE> 21
made by the Company prior to such Time of Delivery (other than the
operating statistics, financial statements, notes, auditors' reports
and related schedules and any other financial or statistical data
included or incorporated by reference therein, as to which such counsel
need express no opinion) contains an untrue statement of a material
fact or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; and he does not know of any amendment to the
Registration Statement required to be filed or any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference into
the Prospectus as amended or supplemented or required to be described
in the Registration Statement or the Prospectus as amended or
supplemented which are not filed or incorporated by reference or
described as required;
(xv) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding obligation
of the Company, enforceable against the Company in accordance with its
terms, except to the extent that (a) enforcement thereof may be limited
by (i) bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law) and (b)
the waiver of usury contained in Section 5.13 of the Base Indenture may
be unenforceable;
(xvi) The Subordinated Deferrable Notes have been duly
authorized for issuance by the Company and, when authenticated by the
Debenture Trustee in accordance with the terms of the Indenture, will
be validly issued by the Company and will constitute valid and binding
obligations of the Company entitled to the benefits of the Indenture
and enforceable against the Company in accordance with their terms,
except to the extent that (a) enforcement thereof may be limited by (i)
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law) and (b)
the waiver of usury contained in Section 5.13 of the Base Indenture may
be unenforceable;
(xvii) The Amended Declaration has been duly authorized, executed
and delivered by the Company, and constitutes a valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement
thereof may be limited by (a) bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent
<PAGE> 22
transfers), reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (b)
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law);
(xviii) The Guarantee has been duly authorized, executed and
delivered by the Company, and constitutes a valid and binding agreement
of the Company, enforceable against the Company in accordance with its
terms, except to the extent that enforcement thereof may be limited by
(i) bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law);
(xix) Each of the Purchase Contract Agreement, the Purchase
Contracts being delivered at such Time of Delivery and the Pledge
Agreement has been duly authorized, executed and delivered by the
Company and, assuming due authorization, execution and delivery by the
other parties thereto, constitutes a valid and legally binding
agreement of the Company enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization,
fraudulent transfer, fraudulent conveyance, moratorium and similar laws
of general applicability relating to or affecting creditors' rights and
to general principles (whether such principles are considered in a
proceeding in equity or in law); the Purchase Contract Agreement, the
Pledge Agreement, the Remarketing Agreement and the Purchase Contracts
conform in all material respects to the descriptions thereof in the
Prospectus as amended or supplemented; and
(xx) To the best of such counsel's knowledge, the Trust is not
a party to or bound by any agreement or instrument other than this
Agreement, the Amended Declaration, the Remarketing Agreement and the
agreements and instruments contemplated by the Amended Declaration and
described in the Prospectus; and to the best of such counsel's
knowledge, there are no legal or governmental proceedings pending to
which the Trust is a party or of which any property of the Trust is the
subject and no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
The foregoing opinions may be limited to the laws of Delaware, Michigan
and the federal law of the United States. In giving such opinion, such counsel
may rely, as to matters of Delaware law, upon the opinion of Skadden Arps,
special Delaware counsel to the Trust and the Company, in which case the opinion
shall state that such counsel believes that you and he are entitled to so rely.
<PAGE> 23
(d) The opinion of Skadden Arps, dated as of such Time of Delivery, in
form and substance to the effect that:
(i) Assuming that:(i) the Pledge Agreement has been duly
authorized executed and delivered by the Purchase Contract Agent on
behalf of each of the Holders from time to time, (ii) the Pledge
Agreement constitutes the legal, valid and binding obligation of the
Purchase Contract Agent on behalf of each Holder and of each other
party to such agreement enforceable against the Purchase Contract
Agent, each Holder and each other party in accordance with its terms;
(iii) the Purchase Contract Agent and each Holder has full power,
authority and legal right (including, without limitation, any legal
right dependent upon there being no conflict with laws, governing
documents or contracts) to make and perform its obligations under the
Pledge Agreement; then such counsel is of the opinion that the
provisions of the Pledge Agreement are effective to create, in favor of
the Collateral Agent for the benefit of the Company to secure the
obligations of the Holders under the Purchase Contracts, a valid
security interest in all rights of each Holder and Purchase Contract
Agent in the certificates identified on Schedule I to the opinion (the
"Pledged Trust Securities"). Upon delivery of the Pledged Trust
Securities to the Collateral Agent in the State of New York, the
security interest of the Collateral Agent for the benefit of the
Company in the Pledged Trust Securities will be perfected. Such opinion
will be subject to customary assumptions and qualifications; and
(ii) Assuming that the Purchase Contract Agreement, the Purchase
Contract underlying the Units being delivered at such Time of Delivery,
and the Pledge Agreement have been duly authorized, executed and
delivered by the Company under Michigan law, and subject to the
enforceability of the choice of law provisions thereof, each is a valid
and legally binding agreement of the Company enforceable against the
Company in accordance with its terms, except as may be limited by (a)
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (b) general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law);
provided, however, that based on a review of applicable case law, upon
the occurrence of a Termination Event (as defined in the Purchase
Contract Agreement), Section 365 (e)(2) of the Bankruptcy Code (11
U.S.C. ss.ss. 101-1330, as amended) should not substantively limit the
provisions of Sections 3.15 and 5.06 of the Purchase Contract Agreement
and Section 5.4 of the Pledge Agreement that require termination of the
Purchase Contracts and release of the Collateral Agent's security
interest in the Trust Preferred Securities or other Pledged Securities;
provided, however, that procedural restrictions respecting relief from
the automatic stay under Section 362 of the Bankruptcy Code may affect
the timing of the exercise of such rights and remedies.
<PAGE> 24
(e) Skadden, Arps, special tax counsel to the Trust and the Company,
shall have furnished to the Representatives such opinion or opinions, dated
such Time of Delivery, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Trust will be classified as a grantor trust and not as an
association taxable as a corporation; and
(ii) Although the discussion set forth in the Prospectus included
as part of the Registration Statement under the heading "UNITED STATES
FEDERAL INCOME TAX CONSEQUENCES" does not purport to discuss all
possible United States federal income tax consequences of the purchase,
ownership, and disposition of Trust Preferred Securities and Firm
Units, such discussion constitutes, in all material respects, a fair
and accurate summary under current law of the material United States
federal income tax consequences of the purchase, ownership, and
disposition of the Trust Preferred Securities, Firm Units and Common
Stock to investors generally.
(f) Skadden Arps, special Delaware counsel to the Trust and the
Company, shall have furnished to the Representatives, the Company and the
Trust their written opinion or opinions, dated as of such Time of Delivery,
in form and substance satisfactory to the Representatives, to the effect
that:
(i) This Agreement has been duly authorized, executed and
delivered by the Trust;
(ii) The Remarketing Agreement has been duly authorized, executed
and delivered by the Trust;
(iii) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act
and has the trust power and authority to conduct its business as
described in the Amended Declaration;
(iv) The Amended Declaration is a valid and binding agreement of
each of the Company and the Trust, enforceable against the Company in
accordance with its terms, except as enforcement thereof may be limited
by (a) bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (b) general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law);
(v) Under the Delaware Business Trust Act and the Amended
Declaration, the Trust has the power and authority to (a) execute and
deliver, and
<PAGE> 25
to perform its obligations pursuant to, this Agreement, and (b) issue
and perform its obligations under the Trust Preferred Securities;
(vi) The Trust Preferred Securities have been duly authorized
for issuance by the Trust and, when executed and authenticated by the
Property Trustee in accordance with the terms of the Amended
Declaration and delivered and paid for in accordance with this
Agreement, will be fully paid and non-assessable undivided beneficial
interests in the assets of the Trust and will entitle the holders
thereof to the benefits of this Agreement except to the extent that
enforcement of the Amended Declaration may be limited by (a)
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (b) general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law); and the
holders of the Trust Preferred Securities will be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of
the State of Delaware, except that the holders of Trust Preferred
Securities may be obligated, pursuant to the Amended Declaration, to
make payments, including (i) to provide indemnity and/or security in
connection with and pay taxes or governmental charges arising from
transfers of the Trust Preferred Securities and (ii) to provide
security and indemnity in connection with requests of or directions to
the Property Trustee to exercise its rights and powers under the
Amended Declaration; the issuance of the Trust Preferred Securities is
not subject to preemptive or other similar rights under the Delaware
Business Trust Act or the Amended Declaration;
(vii) None of the execution and delivery by the Trust of, or the
performance by the Trust of its obligations under, this Agreement, or
the issuance and sale of the Trust Preferred Securities by the Trust in
accordance with the terms of this Agreement or the consummation of the
other transactions contemplated hereby, will contravene any provision
of applicable law or the Amended Declaration or any agreement or other
instrument governed by the laws of the State of Delaware binding upon
the Trust as set forth in the Trust's certificate, or any judgment,
order or decree applicable to the Trust as set forth in the Trust's
certificate, of any governmental authority;
(viii) No governmental approval is required for the issuance and
sale of the Trust Preferred Securities and the Trust Common Securities
by the Trust pursuant to this Agreement or the consummation of the
other transactions contemplated hereby, except such as have been
obtained and made;
(g) On the date of the Prospectus and also at such Time of Delivery,
the independent accountants of the Company who have certified the financial
statements of the Company and its consolidated Subsidiaries included or
incorporated by reference in
<PAGE> 26
the Registration Statement shall have furnished to the Representatives a
letter, 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
Representatives reasonably request;
(h) That, between the date of the execution of this Agreement and such
Time of Delivery, no material and adverse change shall have occurred in the
business, properties or financial condition of the Company and its
Subsidiaries, taken as a whole, which, in the judgment of the
Representatives, impairs the marketability of the Units (other than changes
referred to in or contemplated by the Registration Statement or Prospectus);
(i) That, between the date of the execution of this Agreement and such
Time of Delivery, there has been no downgrading of the investment ratings of
the Company's debt securities or preferred stock 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 judgment of the
Representatives, after reasonable inquiries on the part of the
Representatives, impair the marketability of the Units;
(j) Each of the Purchase Contracts, the Purchase Contract Agreement,
the Pledge Agreement, the Amended Declaration, the Guarantee, the Indenture
and the Remarketing Agreement shall have been executed and delivered, in
each case in a form reasonably satisfactory to the Representatives;
(k) The Units shall have been duly listed, subject to notice of
issuance, on the New York Stock Exchange;
(l) The Company shall have complied with the provisions of Section
4(b) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement; and
(m) The Trust and the Company shall have furnished or caused to be
furnished to the Representatives at such Time of Delivery certificates of
officers of the Trust and the Company to the effect that to the best of such
person's knowledge, information and belief (i) there has been no material
adverse change in the business, properties or financial condition of the
Company and its Subsidiaries, taken as a whole or the Trust from that set
forth in the Registration Statement or Prospectus (other than changes
referred to in or contemplated by the Registration Statement or Prospectus),
(ii) the representations and
<PAGE> 27
warranties of the Trust and the Company herein at and as of the Time of
Delivery are true and correct, (iii) the Trust and the Company have complied
with all agreements and satisfied all conditions on their part to be
performed or satisfied at or prior to the Time of Delivery, and (iv) no stop
order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been initiated or threatened
by the Commission.
7. Condition on the Obligations of the Company and the Trust. The
obligations of the Company and the Trust shall be subject, in the discretion of
the Company and the Trust, to the condition that the Registration Statement
shall be effective under the Act and no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the Act or
proceedings therefor initiated or threatened by the Commission.
8. Indemnification.
(a) The Trust and the Company, jointly and severally, will, to the
extent permitted by law, indemnify and hold harmless each Underwriter against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that neither
the Trust nor the Company shall be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Units, or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the Trust
and the Company by the Representatives expressly for use in the Prospectus as
amended or supplemented relating to the Units or with any statements in or
omissions from that part of the Registration Statement that shall constitute the
Statements of Eligibility and Qualification under the Trust Indenture Act of the
Debenture Trustee, the Guarantee Trustee and the Property Trustee, 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 Units
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
<PAGE> 28
occurring prior to the payment for and delivery to such person of the Units
involved in such sale, and the omission or alleged omission or untrue statement
or alleged untrue statement was corrected in the Prospectus as supplemented or
amended at such time.
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Trust and the Company against any losses, claims, damages or
liabilities to which the Trust and the Company may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Units, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Trust and the
Company by Underwriter through the Representatives expressly for use therein;
and will reimburse the Trust and the Company for any legal or other expenses
reasonably incurred by the Trust and the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(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 subsection (a) or (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 subsection (a) or (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 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 Representatives in the case
of parties indemnified pursuant to subsection (b) and by the Company in the case
of parties indemnified pursuant to subsection (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
<PAGE> 29
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 for 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
Representatives and the Company agree that the Indemnifying Person's obligations
to pay such fees and expenses shall be conditioned upon the following:
(i) 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;
(ii) 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
(iii) the Company and the Representatives 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 themselves and counsel to the
Indemnifying Person.
The Indemnifying Person shall not be liable for any settlement of any
litigation or proceeding effected without the written consent of the
Indemnifying Person, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees,
<PAGE> 30
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.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party 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 Trust and the Company on the one hand and the
Underwriters on the other from the offering of the Units. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above and such failure resulted in the indemnifying party
being prejudiced in a material way, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Trust and the Company on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Trust and the Company on the one hand and such
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from such offering (before deducting expenses) received by
the Trust and the Company bear to the total placement fees received by such
Underwriters. 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 Trust and the Company on the one hand or such
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Trust, the Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (d) 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 subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim, provided that the provisions of
subsection (d) have been complied with (in all material respects) in respect of
any separate counsel for such indemnified party. Notwithstanding the provisions
of this subsection (d), no Underwriter shall be required to contribute any
amount greater than the excess of (i) the total price at which the Units placed
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
<PAGE> 31
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 fraudulent misrepresentation. The
obligations of the Underwriters in this subsection (d) to contribute are several
in proportion to their respective placement fees and not joint.
(e) The obligations of the Trust and the Company under this Section 8
shall be in addition to any liability which the Trust and the Company may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Agents under this Section 8 shall be in addition to any
liability which the respective Agents may otherwise have and shall extend, upon
the same terms and conditions, to each officer and director of the Company, each
Administrative Trustee under the Amended Declaration and to each person, if any,
who controls the Trust and the Company within the meaning of the Act.
9. Survival. The respective indemnities, agreements, representations,
warranties and other statements of the Trust and the Company and the several
Agents, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Trust, the Company, or any officer, director, Administrative
Trustee or controlling person of the Trust or the Company, and shall survive
delivery of and payment for the Units.
10. Termination.
(a) This Agreement may be terminated at any time prior to such Time of
Delivery by the Representatives if, prior to such time, any of the following
events shall have occurred: (i) a suspension or material limitation in trading
in securities generally on the New York Stock Exchange; (ii) a suspension or
material limitation in trading in the Company's securities on the New York Stock
Exchange; (iii) a general moratorium on commercial banking activities declared
by either Federal or New York State authorities; or (iv) the outbreak or
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any such event
specified in this Clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Securities on the terms and in the manner contemplated in the Prospectus.
(b) If the Representatives elect to terminate this Agreement, as
provided in this Section 10, the Representatives 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 Units 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 Underwriters shall be under no
<PAGE> 32
liability to the Company nor be under any liability under this Agreement to one
another.
(c) Notwithstanding the foregoing, the provisions of Sections 5 and 8
shall survive any termination of this Agreement.
11. 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
Representatives, to the Representatives at the address or number, as
appropriate, designated in Schedule I hereto, and, if to the Company, to CMS
Energy Corporation, Fairlane Plaza South, Suite 1100, 330 Town Center Drive,
Dearborn, Michigan 48126, attention: Alan M. Wright, Senior Vice President and
Chief Financial Officer.
12. Parties in Interest. This Agreement shall be binding upon, and inure
solely to the benefit of, the Underwriters, the Trust, the Company and, to the
extent provided in Sections 8 and 9 hereof, the officers, directors and
administrative trustees of the Trust, the Company and each person who controls
the Trust, the Company or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Units from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
13. Time of the Essence. Time shall be of the essence 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 Representatives herein mentioned, if so
named), and the term "Representatives," as used herein, shall be deemed to mean
the Representatives or Representatives 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 "Representatives," 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 "Representatives," 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 Units 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 and thereto 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.
<PAGE> 33
If the foregoing is in accordance with your understanding, please sign
and return to us one for the Trust, the Company, each of the Underwriters and
each of the Representatives plus one for each counsel counterparts hereof.
Very truly yours,
CMS ENERGY TRUST III
By:
Alan M. Wright
Administrative Trustee
CMS ENERGY CORPORATION
By:
Alan M. Wright
Senior Vice President and
Chief Financial Officer
Accepted as of the date hereof:
MORGAN STANLEY & CO. INCORPORATED
BANC OF AMERICA SECURITIES LLC
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
As Representatives of the several
Underwriters named in Schedule II hereto
By: MORGAN STANLEY & CO. INCORPORATED
By:
Name:
Title: Authorized Signatory
<PAGE> 34
SCHEDULE I
REPRESENTATIVES
MORGAN STANLEY & CO. INCORPORATED
BANC OF AMERICA SECURITIES LLC
DONALDSON LUFKIN& JENRETTE
SECURITIES CORPORATION
c/o MORGAN STANLEY DEAN WITTER
1585 BROADWAY
NEW YORK, NEW YORK 10036-8293
ATTN:
TELEPHONE:
FACSIMILE:
<PAGE> 35
SCHEDULE II
<TABLE>
<CAPTION>
NUMBER OF OPTIONAL
NUMBER OF FIRM UNITS TO BE PURCHASED IF
UNDERWRITERS UNITS TO BE PURCHASED MAXIMUM OPTION EXERCISED
---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Morgan Stanley & Co.
Incorporated
---------------------------------------------------------------------------------------------------------------------------
Banc of America Securities
LLC
---------------------------------------------------------------------------------------------------------------------------
Donaldson Lufkin & Jenrette
Securities Corporation
---------------------------------------------------------------------------------------------------------------------------
================================ ===================================
8,800,000 1,200,000
Total
===========================================================================================================================
</TABLE>
