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EXHIBIT 4(d)
SEVENTY-THIRD SUPPLEMENTAL INDENTURE
Providing among other things for
FIRST MORTGAGE BONDS
SENIOR REMARKETED SECURED NOTES, SERIES A
Due June 15, 2018
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Dated as of June 15, 1998
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CONSUMERS ENERGY COMPANY
TO
THE CHASE MANHATTAN BANK,
TRUSTEE
Counterpart ______ of 100
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SEVENTY-THIRD SUPPLEMENTAL INDENTURE, dated as of June 15,
1998 (herein sometimes referred to as "this Supplemental Indenture"), made and
entered into by and between CONSUMERS ENERGY COMPANY, a corporation organized
and existing under the laws of the State of Michigan, with its principal
executive office and place of business at 000 Xxxx Xxxxxxxx Xxxxxx, xx Xxxxxxx,
Xxxxxxx Xxxxxx, Xxxxxxxx 00000, formerly known as Consumers Power Company,
(hereinafter sometimes referred to as the "Company"), and THE CHASE MANHATTAN
BANK, a corporation organized and existing under the laws of the State of New
York, with its corporate trust offices at 000 X. 00xx Xxxxxx, xx xxx Xxxxxxx xx
Xxxxxxxxx, Xxx Xxxx xx Xxx Xxxx, New York 10001 (hereinafter sometimes referred
to as the "Trustee"), as Trustee under the Indenture dated as of September 1,
1945 between Consumers Power Company, a Maine corporation (hereinafter sometimes
referred to as the "Maine corporation"), and City Bank Farmers Trust Company
(Citibank, N.A., successor, hereinafter sometimes referred to as the
"Predecessor Trustee"), securing bonds issued and to be issued as provided
therein (hereinafter sometimes referred to as the "Indenture"),
WHEREAS at the close of business on January 30, 1959, City
Bank Farmers Trust Company was converted into a national banking association
under the title "First National City Trust Company"; and
WHEREAS at the close of business on January 15, 1963, First
National City Trust Company was merged into First National City Bank; and
WHEREAS at the close of business on October 31, 1968, First
National City Bank was merged into The City Bank of New York, National
Association, the name of which was thereupon changed to First National City
Bank; and
WHEREAS effective March 1, 1976, the name of First National
City Bank was changed to Citibank, N.A.; and
WHEREAS effective July 16, 1984, Manufacturers Hanover Trust
Company succeeded Citibank, N.A. as Trustee under the Indenture; and
WHEREAS effective June 19, 1992, Chemical Bank succeeded by
merger to Manufacturers Hanover Trust Company as Trustee under the Indenture;
and
WHEREAS effective July 15, 1996, The Chase Manhattan Bank
(National Association), merged with and into Chemical Bank which thereafter was
renamed The Chase Manhattan Bank as Trustee under the Indenture; and
WHEREAS the Indenture was executed and delivered for the
purpose of securing such bonds as may from time to time be issued under and in
accordance with the terms of the Indenture, the aggregate principal amount of
bonds to be secured thereby being limited to $5,000,000,000 at any one time
outstanding (except as provided in Section 2.01 of the Indenture), and the
Indenture describes and sets forth the property conveyed thereby and is filed in
the Office of the Secretary of State of the State of Michigan and is of record
in the Office of the Register of Deeds of each county in the State of Michigan
in which this Supplemental Indenture is to be recorded; and
WHEREAS the Indenture has been supplemented and amended by
various indentures supplemental thereto, each of which is filed in the Office of
the Secretary of State of the State of Michigan and is of record in the Office
of the Register of Deeds of each county in the State of Michigan in which this
Supplemental Indenture is to be recorded; and
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WHEREAS the Company and the Maine corporation entered into an
Agreement of Merger and Consolidation, dated as of February 14, 1968, which
provided for the Maine corporation to merge into the Company; and
WHEREAS the effective date of such Agreement of Merger and
Consolidation was June 6, 1968, upon which date the Maine corporation was merged
into the Company and the name of the Company was changed from "Consumers Power
Company of Michigan" to "Consumers Power Company"; and
WHEREAS the Company and the Predecessor Trustee entered into a
Sixteenth Supplemental Indenture, dated as of June 4, 1968, which provided,
among other things, for the assumption of the Indenture by the Company; and
WHEREAS said Sixteenth Supplemental Indenture became effective
on the effective date of such Agreement of Merger and Consolidation; and
WHEREAS the Company has succeeded to and has been substituted
for the Maine corporation under the Indenture with the same effect as if it had
been named therein as the mortgagor corporation; and
WHEREAS effective March 11, 1997, the name of Consumers Power
Company was changed to Consumers Energy Company; and
WHEREAS, the Company has entered into an Indenture dated as of
February 1, 1998 ("Senior Note Indenture") with The Chase Manhattan Bank, as
trustee ("Senior Note Trustee") providing for the issuance of notes thereunder,
and pursuant to such Senior Note Indenture the Company has agreed to issue to
the Senior Note Trustee, as security for the notes ("Senior Notes") to be issued
thereunder, a new series of bonds under the Indenture at the time of
authentication of each series of Senior Notes issued under such Senior Note
Indenture; and
WHEREAS, for such purposes the Company desires to issue a new
series of bonds, to be designated First Mortgage Bonds, Senior Remarketed
Secured Notes, Series A, due June 15, 2018, each of which bonds shall also bear
the descriptive title "First Mortgage Bond" (hereinafter provided for and
hereinafter sometimes referred to as the "Senior Remarketed Note Series A
Bonds"), the bonds of which series are to be issued as registered bonds without
coupons and are to bear interest at the rate per annum specified herein and are
to mature June 15, 2018; and
WHEREAS, the Senior Remarketed Note Series A Bonds shall be
issued to the Senior Note Trustee in connection with the issuance by the Company
of its Senior Remarketed Secured Notes, Series A, due June 15, 2018 (the "Series
A Notes"); and
WHEREAS each of the registered bonds without coupons of the
Senior Remarketed Note Series A Bonds and the Trustee's Authentication
Certificate thereon are to be substantially in the following forms, to wit:
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[FORM OF REGISTERED BOND OF THE SENIOR REMARKETED NOTE SERIES A BONDS]
[FACE]
NOTWITHSTANDING ANY PROVISIONS HEREOF OR IN THE INDENTURE,
THIS BOND IS NOT ASSIGNABLE OR TRANSFERABLE EXCEPT AS PERMITTED OR REQUIRED BY
SECTION 4.04 OF THE INDENTURE, DATED AS OF FEBRUARY 1, 1998 BETWEEN CONSUMERS
ENERGY COMPANY AND THE CHASE MANHATTAN BANK, AS TRUSTEE.
CONSUMERS ENERGY COMPANY
FIRST MORTGAGE BOND
SENIOR REMARKETED SECURED NOTES, SERIES A
DUE JUNE 15, 2018
No. 1 $200,000,000
CONSUMERS ENERGY COMPANY, a Michigan corporation (hereinafter
called the "Company"), for value received, hereby promises to pay to The Chase
Manhattan Bank, as trustee under the Senior Note Indenture hereinafter referred
to, or registered assigns, the principal sum of Two Hundred Million Dollars on
June 15, 2018, and to pay to the registered holder hereof interest on said sum
from the latest semi-annual interest payment date to which interest has been
paid on the bonds of this series preceding the date hereof, unless the date
hereof be an interest payment date to which interest is being paid, in which
case from the date hereof, or unless the date hereof is prior to December 15,
1998, in which case from June 24, 1998, (or if this bond is dated between the
record date for any interest payment date and such interest payment date, then
from such interest payment date, provided, however, that if the Company shall
default in payment of the interest due on such interest payment date, then from
the next preceding semi-annual interest payment date to which interest has been
paid on the bonds of this series, or if such interest payment date is December
15, 1998, from June 24, 1998), at the initial rate per annum of 6.50% through
June 15, 2005 (the "Initial Interest Rate"). Thereafter, the interest rate shall
be determined in accordance with the terms of the Series A Notes referred to
below (the "Remarketed Rate"); provided that during the continuation of a
Registration Default, as defined in the Registration Rights Agreement referred
to below, the rate shall be (i) the sum of the Initial Interest Rate and .25%
through June 15, 2005 and (ii) thereafter, the sum of the Remarketed Rate and
.25%, until the principal hereof shall have become due and payable, payable on
each June 15 and December 15 in each year, commencing December 15, 1998.
Under an Indenture dated as of February 1, 1998 (hereinafter
sometimes referred to as the "Senior Note Indenture"), between Consumers Energy
Company and The Chase Manhattan Bank, as trustee (hereinafter sometimes called
the "Senior Note Trustee"), the Company will issue, concurrently with the
issuance of this bond, an issue of notes under the Senior Note Indenture
entitled Senior Remarketed Secured Notes, Series A, due June 15, 2018 (the
"Series A Notes"). Pursuant to Article IV of the Senior Note Indenture, this
bond is issued to the Senior Note Trustee to secure any and all obligations of
the Company under the Series A Notes and any other series of senior notes from
time to time outstanding under the Senior Note Indenture. Payment of principal
of, or premium, if any, or interest on, the Series A Notes (and on any Exchange
Notes (as such term is defined on the reverse hereof and in the supplemental
indenture pursuant to which this bond has been issued (the "Supplemental
Indenture") issued in exchange therefor) shall constitute payments on this bond
as further provided herein and in the Supplemental Indenture.
The provisions of this bond are continued on the reverse
hereof and such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
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This bond shall not be valid or become obligatory for any
purpose unless and until it shall have been authenticated by the execution by
the Trustee or its successor in trust under the Indenture of the certificate
hereon.
IN WITNESS WHEREOF, Consumers Energy Company has caused this
bond to be executed in its name by its Chairman of the Board, its President or
one of its Vice Presidents by his signature or a facsimile thereof, and its
corporate seal or a facsimile thereof to be affixed hereto or imprinted hereon
and attested by its Secretary or one of its Assistant Secretaries by his
signature or a facsimile thereof.
CONSUMERS ENERGY COMPANY,
Dated: June 24, 1998 By ________________________________
Attest: _________________________
TRUSTEE'S AUTHENTICATION CERTIFICATE
This is one of the bonds, of the series designated therein,
described in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, Trustee
By _________________________________
Authorized Officer
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[REVERSE]
CONSUMERS ENERGY COMPANY
FIRST MORTGAGE BOND
SENIOR REMARKETED SECURED NOTES, SERIES A,
DUE JUNE 15, 2018
The interest payable on any June 15 and December 15 will,
subject to certain exceptions provided in the Indenture hereinafter mentioned,
be paid to the person in whose name this bond is registered at the close of
business on the record date, which shall be June 1 or December 1, as the case
may be, next preceding such interest payment date, or, if such June 1 or
December 1 shall be a legal holiday or a day on which banking institutions in
the City of New York, New York or the City of Detroit, Michigan are authorized
by law to close, the next succeeding day which shall not be a legal holiday or a
day on which such institutions are so authorized to close. The principal of and
the premium, if any, and the interest on this bond shall be payable at the
office or agency of the Company in the City of Jackson, Michigan designated for
that purpose, in any coin or currency of the United States of America which at
the time of payment is legal tender for public and private debts.
Upon payment of the principal of and interest by the Company
on the Series A Notes (or Exchange Notes (as defined below) issued in exchange
therefor), whether at maturity or prior to maturity by redemption or otherwise
or upon provision for the payment thereof having been made in accordance with
Section 5.01(a) of the Senior Note Indenture, the Senior Remarketed Note Series
A Bonds in a principal amount equal to the principal amount of such Series A
Notes (or Exchange Notes) and having both a corresponding maturity date and
interest rate shall, to the extent of such payment of principal and interest, be
deemed paid and the obligation of the Company thereunder to make such payment
shall be discharged to such extent and, in the case of the payment of principal
(and premium, if any) this bond shall be surrendered to the Company for
cancellation as provided in Section 4.08 of the Senior Note Indenture. The
Trustee may at anytime and all times conclusively assume that the obligation of
the Company to make payments with respect to the principal of and interest on
this bond, so far as such payments at the time have become due, has been fully
satisfied and discharged pursuant to the foregoing sentence unless and until the
Trustee shall have received a written notice from the Senior Note Trustee signed
by one of its officers stating (i) that timely payment of, or premium or
interest on, the Series A Notes has not been made, (ii) that the Company is in
arrears as to the payments required to be made by it to the Senior Note Trustee
pursuant to the Senior Note Indenture, and (iii) the amount of the arrearage.
For purposes of Section 4.09 of the Senior Note Indenture,
this bond shall be deemed to be the "related series of Senior Note First
Mortgage Bonds" in respect of (i) the Series A Notes, and (ii) any senior notes
issued in exchange therefor pursuant to the Registration Rights Agreement, dated
as of June 24, 1998, between the Company and Xxxxxxx, Xxxxx & Co., Xxxxxx
Xxxxxxx & Co. Incorporated and First Chicago Capital Markets, Inc. (the
"Exchange Notes").
This bond is one of the bonds issued and to be issued from
time to time under and in accordance with and all secured by an Indenture dated
as of September 1, 1945, given by the Company (or its predecessor, Consumers
Power Company, a Maine corporation) to City Bank Farmers Trust Company (The
Chase Manhattan Bank, successor) (hereinafter sometimes referred to as the
"Trustee"), and indentures supplemental thereto, heretofore or hereafter
executed, to which indenture and indentures supplemental thereto (hereinafter
referred to collectively as the "Indenture") reference is hereby made for a
description of the property mortgaged and pledged, the nature and extent of the
security and the rights, duties and immunities
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thereunder of the Trustee and the rights of the holders of said bonds and of the
Trustee and of the Company in respect of such security, and the limitations on
such rights. By the terms of the Indenture, the bonds to be secured thereby are
issuable in series which may vary as to date, amount, date of maturity, rate of
interest and in other respects as provided in the Indenture.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the holders of not less than seventy-five per
centum in principal amount of the bonds (exclusive of bonds disqualified by
reason of the Company's interest therein) at the time outstanding, including, if
more than one series of bonds shall be at the time outstanding, not less than
sixty per centum in principal amount of each series affected, to effect, by an
indenture supplemental to the Indenture, modifications or alterations of the
Indenture and of the rights and obligations of the Company and the rights of the
holders of the bonds and coupons; provided, however, that no such modification
or alteration shall be made without the written approval or consent of the
holder hereof which will (a) extend the maturity of this bond or reduce the rate
or extend the time of payment of interest hereon or reduce the amount of the
principal hereof, or (b) permit the creation of any lien, not otherwise
permitted, prior to or on a parity with the lien of the Indenture, or (c) reduce
the percentage of the principal amount of the bonds the holders of which are
required to approve any such supplemental indenture.
The Company reserves the right, without any consent, vote or
other action by holders of bonds of this series or any other series created
after the Sixty-eighth Supplemental Indenture to amend the Indenture to reduce
the percentage of the principal amount of bonds the holders of which are
required to approve any supplemental indenture (other than any supplemental
indenture which is subject to the proviso contained in the immediately preceding
sentence) (a) from not less than seventy-five per centum (including sixty per
centum of each series affected) to not less than a majority in principal amount
of the bonds at the time outstanding or (b) in case fewer than all series are
affected, not less than a majority in principal amount of the bonds of all
affected series, voting together.
This bond is redeemable on the respective dates and in the
respective principal amounts which correspond to the redemption dates for, and
the principal amounts to be redeemed of, the Series A Notes (or Exchange Notes),
including upon written demand of the Senior Note Trustee following the
occurrence of an Event of Default under the Senior Note Indenture and the
acceleration of the senior notes, as provided in Section 8.01 of the Senior Note
Indenture. This bond is not redeemable by the operation of the improvement fund
or the maintenance and replacement provisions of the Indenture or with the
proceeds of released property.
In the event that one or more Series A Notes shall have
different interest rates from other Series A Notes, the interest rate of each
allocable portion of the Senior Remarketed Note Series A Bonds shall be deemed
to correspond to the interest rate of each such Series A Note.
This bond shall not be assignable or transferable except as
permitted or required by Section 4.04 of the Senior Note Indenture. Any such
transfer shall be effected at the Investor Services Department of the Company,
as transfer agent (hereinafter referred to as "corporate trust office"). This
bond shall be exchangeable for other registered bonds of the same series, in the
manner and upon the conditions prescribed in the Indenture, upon the surrender
of such bonds at said corporate trust office of the transfer agent. However,
notwithstanding the provisions of Section 2.05 of the Indenture, no charge shall
be made upon any registration of transfer or exchange of bonds of said series
other than for any tax or taxes or other governmental charge required to be paid
by the Company.
As provided in Section 4.11 of the Senior Note Indenture, from
and after the Release Date (as defined in the Senior Note Indenture), the
obligations of the Company with respect to this bond shall be deemed to be
satisfied and discharged, this bond shall cease to secure in any manner any
senior notes
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outstanding under the Senior Note Indenture, and, pursuant to Section 4.08 of
the Senior Note Indenture, the Senior Note Trustee shall forthwith deliver this
bond to the Company for cancellation.
In case of certain defaults as specified in the Indenture, the
principal of this bond may be declared or may become due and payable on the
conditions, at the time, in the manner and with the effect provided in the
Indenture.
No recourse shall be had for the payment of the principal of
or premium, if any, or interest on this bond, or for any claim based hereon, or
otherwise in respect hereof or of the Indenture, to or against any incorporator,
stockholder, director or officer, past, present or future, as such, of the
Company, or of any predecessor or successor company, either directly or through
the Company, or such predecessor or successor company, or otherwise, under any
constitution or statute or rule of law, or by the enforcement of any assessment
or penalty, or otherwise, all such liability of incorporators, stockholders,
directors and officers, as such, being waived and released by the holder and
owner hereof by the acceptance of this bond and being likewise waived and
released by the terms of the Indenture.
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AND WHEREAS all acts and things necessary to make the bonds of
the Senior Remarketed Note Series A Bonds, when duly executed by the Company and
authenticated by the Trustee or its agent and issued as prescribed in the
Indenture, as heretofore supplemented and amended, and this Supplemental
Indenture provided, the valid, binding and legal obligations of the Company, and
to constitute the Indenture, as supplemented and amended as aforesaid, as well
as by this Supplemental Indenture, a valid, binding and legal instrument for the
security thereof, have been done and performed, and the creation, execution and
delivery of this Supplemental Indenture and the creation, execution and issuance
of bonds subject to the terms hereof and of the Indenture, as so supplemented
and amended, have in all respects been duly authorized;
NOW, THEREFORE, in consideration of the premises, of the
acceptance and purchase by the holders thereof of the bonds issued and to be
issued under the Indenture, as supplemented and amended as above set forth, and
of the sum of One Dollar duly paid by the Trustee to the Company, and of other
good and valuable considerations, the receipt whereof is hereby acknowledged,
and for the purpose of securing the due and punctual payment of the principal of
and premium, if any, and interest on all bonds now outstanding under the
Indenture and the $200,000,000 principal amount of the Senior Remarketed Note
Series A Bonds proposed to be issued initially and all other bonds which shall
be issued under the Indenture, as supplemented and amended from time to time,
and for the purpose of securing the faithful performance and observance of all
covenants and conditions therein, and in any indenture supplemental thereto, set
forth, the Company has given, granted, bargained, sold, released, transferred,
assigned, hypothecated, pledged, mortgaged, confirmed, set over, warranted,
alienated and conveyed and by these presents does give, grant, bargain, sell,
release, transfer, assign, hypothecate, pledge, mortgage, confirm, set over,
warrant, alien and convey unto The Chase Manhattan Bank, as Trustee, as provided
in the Indenture, and its successor or successors in the trust thereby and
hereby created and to its or their assigns forever, all the right, title and
interest of the Company in and to all the property, described in Section 13
hereof, together (subject to the provisions of Article X of the Indenture) with
the tolls, rents, revenues, issues, earnings, income, products and profits
thereof, excepting, however, the property, interests and rights specifically
excepted from the lien of the Indenture as set forth in the Indenture.
TOGETHER WITH all and singular the tenements, hereditaments
and appurtenances belonging or in any wise appertaining to the premises,
property, franchises and rights, or any thereof, referred to in the foregoing
granting clause, with the reversion and reversions, remainder and remainders and
(subject
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to the provisions of Article X of the Indenture) the tolls, rents, revenues,
issues, earnings, income, products and profits thereof, and all the estate,
right, title and interest and claim whatsoever, at law as well as in equity,
which the Company now has or may hereafter acquire in and to the aforesaid
premises, property, franchises and rights and every part and parcel thereof.
SUBJECT, HOWEVER, with respect to such premises, property,
franchises and rights, to excepted encumbrances as said term is defined in
Section 1.02 of the Indenture, and subject also to all defects and limitations
of title and to all encumbrances existing at the time of acquisition.
TO HAVE AND TO HOLD all said premises, property, franchises
and rights hereby conveyed, assigned, pledged or mortgaged, or intended so to
be, unto the Trustee, its successor or successors in trust and their assigns
forever;
BUT IN TRUST, NEVERTHELESS, with power of sale for the equal
and proportionate benefit and security of the holders of all bonds now or
hereafter authenticated and delivered under and secured by the Indenture and
interest coupons appurtenant thereto, pursuant to the provisions of the
Indenture and of any supplemental indenture, and for the enforcement of the
payment of said bonds and coupons when payable and the performance of and
compliance with the covenants and conditions of the Indenture and of any
supplemental indenture, without any preference, distinction or priority as to
lien or otherwise of any bond or bonds over others by reason of the difference
in time of the actual authentication, delivery, issue, sale or negotiation
thereof or for any other reason whatsoever, except as otherwise expressly
provided in the Indenture; and so that each and every bond now or hereafter
authenticated and delivered thereunder shall have the same lien, and so that the
principal of and premium, if any, and interest on every such bond shall, subject
to the terms thereof, be equally and proportionately secured, as if it had been
made, executed, authenticated, delivered, sold and negotiated simultaneously
with the execution and delivery thereof.
AND IT IS EXPRESSLY DECLARED by the Company that all bonds
authenticated and delivered under and secured by the Indenture, as supplemented
and amended as above set forth, are to be issued, authenticated and delivered,
and all said premises, property, franchises and rights hereby and by the
Indenture and indentures supplemental thereto conveyed, assigned, pledged or
mortgaged, or intended so to be, are to be dealt with and disposed of under,
upon and subject to the terms, conditions, stipulations, covenants, agreements,
trusts, uses and purposes expressed in the Indenture, as supplemented and
amended as above set forth, and the parties hereto mutually agree as follows:
SECTION 1. There is hereby created one series of bonds (the
"Senior Remarketed Note Series A Bonds") designated as hereinabove provided,
which shall also bear the descriptive title "First Mortgage Bond", and the form
thereof shall be substantially as hereinbefore set forth. The Senior Remarketed
Note Series A Bonds shall be issued in the aggregate principal amount of
$200,000,000, shall mature on June 15, 2018 and shall be issued only as
registered bonds without coupons in denominations of $1,000 and any multiple
thereof. The serial numbers of bonds of the Senior Remarketed Note Series A
Bonds shall be such as may be approved by any officer of the Company, the
execution thereof by any such officer either manually or by facsimile signature
to be conclusive evidence of such approval. The Senior Remarketed Note Series A
Bonds shall initially bear interest at a rate of 6.50% per annum through June
15, 2005 (the "Initial Interest Rate"). Thereafter, the interest rate shall be
determined in accordance with the terms of the Series A Notes (or Exchange Notes
(as defined below) issued in exchange therefor) (the "Remarketed Rate");
provided that during the continuation of a Registration Default, as defined in
the Registration Rights Agreement dated as of June 24, 1998, between the Company
and Xxxxxxx Xxxxx & Co., Xxxxxx Xxxxxxx & Co. Incorporated and First Chicago
Capital Markets, Inc., the rate shall be (i) the sum of the Initial Interest
Rate and .25% through June 15, 2005 and (ii) thereafter, the sum of the
Remarketed Rate and .25%, until the principal thereof shall have become due and
payable, payable semi-annually on June 15 and December 15 in each year
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commencing December 15, 1998. The principal of and the premium, if any, and the
interest on said bond shall be payable in any coin or currency of the United
States of America which at the time of payment is legal tender for public and
private debts, at the office or agency of the Company in the City of Jackson,
Michigan designated for that purpose.
Upon any payment by the Company of the principal of and
interest on, all or any portion of the Series A Notes (or Exchange Notes (as
defined below) issued in exchange therefor), whether at maturity or prior to
maturity by redemption or otherwise or upon provision for the payment thereof
having been made in accordance with Section 5.01(a) of the Senior Note
Indenture, the Senior Remarketed Note Series A Bonds in a principal amount equal
to the principal amount of such Series A Notes (or Exchange Notes) and having
both a corresponding maturity date and interest rate shall, to the extent of
such payment of principal and interest, be deemed paid and the obligation of the
Company thereunder to make such payment shall be discharged to such extent and,
in the case of the payment of principal (and premium, if any) such bonds of said
series shall be surrendered to the Company for cancellation as provided in
Section 4.08 of the Senior Note Indenture. The Trustee may at anytime and all
times conclusively assume that the obligation of the Company to make payments
with respect to the principal of and premium, if any, and interest on the Senior
Remarketed Note Series A Bonds, so far as such payments at the time have become
due, has been fully satisfied and discharged pursuant to the foregoing sentence
unless and until the Trustee shall have received a written notice from the
Senior Note Trustee signed by one of its officers stating (i) that timely
payment of or premium or interest on, the Series A Notes has not been so made,
(ii) that the Company is in arrears as to the payments required to be made by it
to the Senior Note Trustee pursuant to the Senior Note Indenture, and (iii) the
amount of the arrearage.
Each Senior Remarketed Note Series A Bond is to be issued to
and registered in the name of The Chase Manhattan Bank, as trustee, or a
successor trustee (said trustee or any successor trustee being hereinafter
referred to as the "Senior Note Trustee") under the Indenture, dated as of
February 1, 1998 (hereinafter sometimes referred to as the "Senior Note
Indenture") between Consumers Energy Company and the Senior Note Trustee, to
secure any and all obligations of the Company under the Series A Notes and any
other series of senior notes from time to time outstanding under the Senior Note
Indenture.
In the event that one or more Series A Notes shall have
different interest rates from other Series A Notes, the interest rate of each
allocable portion of the Senior Remarketed Note Series A Bonds shall be deemed
to correspond to the interest rate of each such Series A Note.
The Senior Remarketed Note Series A Bonds shall not be
assignable or transferable except as permitted or required by Section 4.04 of
the Senior Note Indenture. Any such transfer shall be effected at the Investor
Services Department of the Company, as transfer agent (hereinafter referred to
as "corporate trust office"). The Senior Remarketed Note Series A Bonds shall be
exchangeable for other registered bonds of the same series, in the manner and
upon the conditions prescribed in the Indenture, upon the surrender of such
bonds at said corporate trust office of the transfer agent. However,
notwithstanding the provisions of Section 2.05 of the Indenture, no charge shall
be made upon any registration of transfer or exchange of bonds of said series
other than for any tax or taxes or other governmental charge required to be paid
by the Company.
SECTION 2. The Senior Remarketed Note Series A Bonds are
redeemable at the option of the Company on the respective dates and in the
respective principal amounts which correspond to the redemption dates for, and
the principal amounts to be redeemed of, the Series A Notes (or Exchange Notes).
The Company agrees to give the Trustee notice of any such redemption on the same
date it gives notice of the redemption of the Series A Notes (or Exchange Notes)
to the Senior Note Trustee.
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The Senior Remarketed Note Series A Bonds are also redeemable
as set forth in Section 3 hereof.
The Senior Remarketed Note Series A Bonds are not redeemable
by the operation of the improvement fund or the maintenance and replacement
provisions of this Indenture or with the proceeds of released property.
SECTION 3. Upon the occurrence of an Event of Default under
the Senior Note Indenture and the acceleration of the Series A Notes (or
Exchange Notes), the Senior Remarketed Note Series A Bonds shall be redeemable
in whole upon receipt by the Trustee of a written demand (hereinafter called a
"Redemption Demand") from the Senior Note Trustee stating that there has
occurred under the Senior Note Indenture both an Event of Default and a
declaration of acceleration of payment of principal, accrued interest and
premium, if any, on the Series A Notes (or Exchange Notes), specifying the last
date to which interest on such notes has been paid (such date being hereinafter
referred to as the "Initial Interest Accrual Date") and demanding redemption of
the Senior Remarketed Note Series A Bonds. The Company waives any right it may
have to prior notice of such redemption under the Indenture. Upon surrender of
the Senior Remarketed Note Series A Bonds by the Senior Note Trustee to the
Trustee, the Senior Remarketed Note Series A Bonds shall be redeemed at a
redemption price equal to the principal amount thereof plus accrued interest
thereon from the Initial Interest Accrual Date to the date of the Redemption
Demand; provided, however, that in the event of a recision of acceleration of
senior notes pursuant to the last paragraph of Section 8.01(a) of the Senior
Note Indenture, then any Redemption Demand shall thereby be deemed to be
rescinded by the Senior Note Trustee; but no such recision or annulment shall
extend to or affect any subsequent default or impair any right consequent
thereon.
SECTION 4. For purposes of Section 4.09 of the Senior Note
Indenture, this bond shall be deemed to be the "related series of Senior Note
First Mortgage Bonds" in respect of (i) the Series A Notes, and (ii) any
Exchange Notes.
SECTION 5. As provided in Section 4.11 of the Senior Note
Indenture, from and after the Release Date (as defined in the Senior Note
Indenture), the obligations of the Company with respect to the Senior Remarketed
Note Series A Bonds (the "Bonds") shall be deemed to be satisfied and
discharged, the Bonds shall cease to secure in any manner any senior notes
outstanding under the Senior Note Indenture, and, pursuant to Section 4.08 of
the Senior Note Indenture, the Senior Note Trustee shall forthwith deliver the
Bonds to the Company for cancellation.
SECTION 6. The Company reserves the right, without any
consent, vote or other action by the holder of the Senior Remarketed Note Series
A Bonds or the holders of any Series A Notes or any Exchange Notes, or of any
subsequent series of bonds issued under the Indenture, to make such amendments
to the Indenture, as supplemented, as shall be necessary in order to amend
Section 17.02 to read as follows:
SECTION 17.02. With the consent of the holders of not
less than a majority in principal amount of the bonds at the
time outstanding or their attorneys-in-fact duly authorized,
or, if fewer than all series are affected, not less than a
majority in principal amount of the bonds at the time
outstanding of each series the rights of the holders of which
are affected, voting together, the Company, when authorized by
a resolution, and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture
or of any supplemental indenture or modifying the rights and
obligations of the
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Company and the rights of the holders of any of the bonds and
coupons; provided, however, that no such supplemental
indenture shall (1) extend the maturity of any of the bonds or
reduce the rate or extend the time of payment of interest
thereon, or reduce the amount of the principal thereof, or
reduce any premium payable on the redemption thereof, without
the consent of the holder of each bond so affected, or (2)
permit the creation of any lien, not otherwise permitted,
prior to or on a parity with the lien of this Indenture,
without the consent of the holders of all the bonds then
outstanding, or (3) reduce the aforesaid percentage of the
principal amount of bonds the holders of which are required to
approve any such supplemental indenture, without the consent
of the holders of all the bonds then outstanding. For the
purposes of this Section, bonds shall be deemed to be affected
by a supplemental indenture if such supplemental indenture
adversely affects or diminishes the rights of holders thereof
against the Company or against its property. The Trustee may
in its discretion determine whether or not, in accordance with
the foregoing, bonds of any particular series would be
affected by any supplemental indenture and any such
determination shall be conclusive upon the holders of bonds of
such series and all other series. Subject to the provisions of
Sections 16.02 and 16.03 hereof, the Trustee shall not be
liable for any determination made in good faith in connection
herewith.
Upon the written request of the Company, accompanied
by a resolution authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee
of evidence of the consent of bondholders as aforesaid (the
instrument or instruments evidencing such consent to be dated
within one year of such request), the Trustee shall join with
the Company in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own
rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion but
shall not be obligated to enter into such supplemental
indenture.
It shall not be necessary for the consent of the
bondholders under this Section to approve the particular form
of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance
thereof.
The Company and the Trustee, if they so elect, and
either before or after such consent has been obtained, may
require the holder of any bond consenting to the execution of
any such supplemental indenture to submit his bond to the
Trustee or to ask such bank, banker or trust company as may be
designated by the Trustee for the purpose, for the notation
thereon of the fact that the holder of such bond has consented
to the execution of such supplemental indenture, and in such
case such notation, in form satisfactory to the Trustee, shall
be made upon all bonds so submitted, and such bonds bearing
such notation shall forthwith be returned to the persons
entitled thereto.
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Prior to the execution by the Company and the Trustee
of any supplemental indenture pursuant to the provisions of
this Section, the Company shall publish a notice, setting
forth in general terms the substance of such supplemental
indenture, at least once in one daily newspaper of general
circulation in each city in which the principal of any of the
bonds shall be payable, or, if all bonds outstanding shall be
registered bonds without coupons or coupon bonds registered as
to principal, such notice shall be sufficiently given if
mailed, first class, postage prepaid, and registered if the
Company so elects, to each registered holder of bonds at the
last address of such holder appearing on the registry books,
such publication or mailing, as the case may be, to be made
not less than thirty days prior to such execution. Any failure
of the Company to give such notice, or any defect therein,
shall not, however, in any way impair or affect the validity
of any such supplemental indenture.
SECTION 7. As supplemented and amended as above set forth, the
Indenture is in all respects ratified and confirmed, and the Indenture and all
indentures supplemental thereto shall be read, taken and construed as one and
the same instrument.
SECTION 8. Nothing contained in this Supplemental Indenture
shall, or shall be construed to, confer upon any person other than a holder of
bonds issued under the Indenture, as supplemented and amended as above set
forth, the Company, the Trustee and the Senior Note Trustee, for the benefit of
the holder or holders of the Series A Notes and Exchange Notes, any right or
interest to avail himself of any benefit under any provision of the Indenture,
as so supplemented and amended.
SECTION 9. The Trustee assumes no responsibility for or in
respect of the validity or sufficiency of this Supplemental Indenture or of the
Indenture as hereby supplemented or the due execution hereof by the Company or
for or in respect of the recitals and statements contained herein (other than
those contained in the sixth and seventh recitals hereof), all of which recitals
and statements are made solely by the Company.
SECTION 10. This Supplemental Indenture may be simultaneously
executed in several counterparts and all such counterparts executed and
delivered, each as an original, shall constitute but one and the same
instrument.
SECTION 11. In the event the date of any notice required or
permitted hereunder or the date of maturity of interest on or principal of the
Senior Remarketed Note Series A Bonds or the date fixed for redemption or
repayment of the Senior Remarketed Note Series A Bonds shall not be a Business
Day, then (notwithstanding any other provision of the Indenture or of any
supplemental indenture thereto) such notice or such payment of such interest or
principal need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date fixed for
such notice or as if made on the date of maturity or the date fixed for
redemption or repayment, and no interest shall accrue for the period from and
after such date. "Business Day" means, with respect to this Section 11, a day of
the year on which banks are not required or authorized to close in New York City
or Detroit, Michigan.
SECTION 12. This Supplemental Indenture and the Senior
Remarketed Note Series A Bonds shall be governed by and deemed to be a contract
under, and construed in accordance with, the laws of the State of Michigan, and
for all purposes shall be construed in accordance with the laws of such state,
except as may otherwise be required by mandatory provisions of law.
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SECTION 13. Detailed Description of Property Mortgaged:
I.
ELECTRIC GENERATING PLANTS AND DAMS
All the electric generating plants and stations of the
Company, constructed or otherwise acquired by it and not heretofore described in
the Indenture or any supplement thereto and not heretofore released from the
lien of the Indenture, including all powerhouses, buildings, reservoirs, dams,
pipelines, flumes, structures and works and the land on which the same are
situated and all water rights and all other lands and easements, rights of way,
permits, privileges, towers, poles, wires, machinery, equipment, appliances,
appurtenances and supplies and all other property, real or personal, forming a
part of or appertaining to or used, occupied or enjoyed in connection with such
plants and stations or any of them, or adjacent thereto.
II.
ELECTRIC TRANSMISSION LINES
All the electric transmission lines of the Company,
constructed or otherwise acquired by it and not heretofore described in the
Indenture or any supplement thereto and not heretofore released from the lien of
the Indenture, including towers, poles, pole lines, wires, switches, switch
racks, switchboards, insulators and other appliances and equipment, and all
other property, real or personal, forming a part of or appertaining to or used,
occupied or enjoyed in connection with such transmission lines or any of them or
adjacent thereto; together with all real property, rights of way, easements,
permits, privileges, franchises and rights for or relating to the construction,
maintenance or operation thereof, through, over, under or upon any private
property or any public streets or highways, within as well as without the
corporate limits of any municipal corporation. Also all the real property,
rights of way, easements, permits, privileges and rights for or relating to the
construction, maintenance or operation of certain transmission lines, the land
and rights for which are owned by the Company, which are either not built or now
being constructed.
III.
ELECTRIC DISTRIBUTION SYSTEMS
All the electric distribution systems of the Company,
constructed or otherwise acquired by it and not heretofore described in the
Indenture or any supplement thereto and not heretofore released from the lien of
the Indenture, including substations, transformers, switchboards, towers, poles,
wires, insulators, subways, trenches, conduits, manholes, cables, meters and
other appliances and equipment, and all other property, real or personal,
forming a part of or appertaining to or used, occupied or enjoyed in connection
with such distribution systems or any of them or adjacent thereto; together with
all real property, rights of way, easements, permits, privileges, franchises,
grants and rights, for or relating to the construction, maintenance or operation
thereof, through, over, under or upon any private property or any public streets
or highways within as well as without the corporate limits of any municipal
corporation.
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IV.
ELECTRIC SUBSTATIONS,
SWITCHING STATIONS AND SITES
All the substations, switching stations and sites of the
Company, constructed or otherwise acquired by it and not heretofore described in
the Indenture or any supplement thereto and not heretofore released from the
lien of the Indenture, for transforming, regulating, converting or distributing
or otherwise controlling electric current at any of its plants and elsewhere,
together with all buildings, transformers, wires, insulators and other
appliances and equipment, and all other property, real or personal, forming a
part of or appertaining to or used, occupied or enjoyed in connection with any
of such substations and switching stations, or adjacent thereto, with sites to
be used for such purposes.
V.
GAS COMPRESSOR STATIONS, GAS PROCESSING PLANTS,
DESULPHURIZATION STATIONS, METERING STATIONS,
ODORIZING STATIONS, REGULATORS AND SITES
All the compressor stations, processing plants,
desulphurization stations, metering stations, odorizing stations, regulators and
sites of the Company, constructed or otherwise acquired by it and not heretofore
described in the Indenture or any supplement thereto and not heretofore released
from the lien of the Indenture, for compressing, processing, desulphurizing,
metering, odorizing and regulating manufactured or natural gas at any of its
plants and elsewhere, together with all buildings, meters and other appliances
and equipment, and all other property, real or personal, forming a part of or
appertaining to or used, occupied or enjoyed in connection with any of such
purposes, with sites to be used for such purposes.
VI.
GAS STORAGE FIELDS
The natural gas rights and interests of the Company, including
xxxxx and well lines (but not including natural gas, oil and minerals), the gas
gathering system, the underground gas storage rights, the underground gas
storage xxxxx and injection and withdrawal system used in connection therewith,
constructed or otherwise acquired by it and not heretofore described in the
Indenture or any supplement thereto and not heretofore released from the lien of
the Indenture: In the Overisel Gas Storage Field, located in the Township of
Overisel, Allegan County, and in the Township of Zeeland, Ottawa County,
Michigan; in the Northville Gas Storage Field located in the Township of Salem,
Washtenaw County, Township of Lyon, Oakland County, and the Townships of
Northville and Plymouth and City of Plymouth, Xxxxx County, Michigan; in the
Salem Gas Storage Field, located in the Township of Salem, Allegan County, and
in the Township of Jamestown, Ottawa County, Michigan; in the Ray Gas Storage
Field, located in the Townships of Ray and Armada, Macomb County, Michigan; in
the Lenox Gas Storage Field, located in the Townships of Lenox and Chesterfield,
Macomb County, Michigan; in the Ira Gas Storage Field, located in the Township
of Ira, St. Clair County, Michigan; in the Puttygut Gas Storage Field, located
in the Township of Casco, St. Clair County, Michigan; in the Four Corners Gas
Storage Field, located in the Townships of Casco, China, Cottrellville and Ira,
St. Clair County, Michigan; in the Swan Creek Gas Storage Field, located in the
Township of Casco and Ira, St. Clair County, Michigan; and in the Hessen Gas
Storage Field, located in the Townships of Casco and Columbus, St. Clair,
Michigan.
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VII.
GAS TRANSMISSION LINES
All the gas transmission lines of the Company, constructed or
otherwise acquired by it and not heretofore described in the Indenture or any
supplement thereto and not heretofore released from the lien of the Indenture,
including gas mains, pipes, pipelines, gates, valves, meters and other
appliances and equipment, and all other property, real or personal, forming a
part of or appertaining to or used, occupied or enjoyed in connection with such
transmission lines or any of them or adjacent thereto; together with all real
property, right of way, easements, permits, privileges, franchises and rights
for or relating to the construction, maintenance or operation thereof, through,
over, under or upon any private property or any public streets or highways,
within as well as without the corporate limits of any municipal corporation.
VIII.
GAS DISTRIBUTION SYSTEMS
All the gas distribution systems of the Company, constructed
or otherwise acquired by it and not heretofore described in the Indenture or any
supplement thereto and not heretofore released from the lien of the Indenture,
including tunnels, conduits, gas mains and pipes, service pipes, fittings,
gates, valves, connections, meters and other appliances and equipment, and all
other property, real or personal, forming a part of or appertaining to or used,
occupied or enjoyed in connection with such distribution systems or any of them
or adjacent thereto; together with all real property, rights of way, easements,
permits, privileges, franchises, grants and rights, for or relating to the
construction, maintenance or operation thereof, through, over, under or upon any
private property or any public streets or highways within as well as without the
corporate limits of any municipal corporation.
IX.
OFFICE BUILDINGS,
SERVICE BUILDINGS, GARAGES, ETC.
All office, garage, service and other buildings of the
Company, wherever located, in the State of Michigan, constructed or otherwise
acquired by it and not heretofore described in the Indenture or any supplement
thereto and not heretofore released from the lien of the Indenture, together
with the land on which the same are situated and all easements, rights of way
and appurtenances to said lands, together with all furniture and fixtures
located in said buildings.
X.
TELEPHONE PROPERTIES AND
RADIO COMMUNICATION EQUIPMENT
All telephone lines, switchboards, systems and equipment of
the Company, constructed or otherwise acquired by it and not heretofore
described in the Indenture or any supplement thereto and not heretofore released
from the line of the Indenture, used or available for use in the operation of
its properties,
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and all other property, real or personal, forming a part of or appertaining to
or used, occupied or enjoyed in connection with such telephone properties or any
of them or adjacent thereto; together with all real estate, rights of way,
easements, permits, privileges, franchises, property, devices or rights related
to the dispatch, transmission, reception or reproduction of messages,
communications, intelligence, signals, light, vision or sound by electricity,
wire or otherwise, including all telephone equipment installed in buildings used
as general and regional offices, substations and generating stations and all
telephone lines erected on towers and poles; and all radio communication
equipment of the Company, together with all property, real or personal (except
any in the Indenture expressly excepted), fixed stations, towers, auxiliary
radio buildings and equipment, and all appurtenances used in connection
therewith, wherever located, in the State of Michigan.
XI.
OTHER REAL PROPERTY
All other real property of the Company and all interests
therein, of every nature and description (except any in the Indenture expressly
excepted) wherever located, in the State of Michigan, acquired by it and not
heretofore described in the Indenture or any supplement thereto and not
heretofore released from the line of the Indenture.
SECTION 14. The Company is a transmitting utility under
Section 9401(5) of the Michigan Uniform Commercial Code (M.C.L. 440.9401(5)) as
defined in M.C.L. 440.9105(n).
IN WITNESS WHEREOF, said Consumers Energy Company has caused
this Supplemental Indenture to be executed in its corporate name by its Chairman
of the Board, President, a Vice President or its Treasurer and its corporate
seal to be hereunto affixed and to be attested by its Secretary or an Assistant
Secretary, and said The Chase Manhattan Bank, as Trustee as aforesaid, to
evidence its acceptance hereof, has caused this Supplemental Indenture to be
executed in its corporate name by a Vice President and its corporate seal to be
hereunto affixed and to be attested by a Trust Officer, in several counterparts,
all as of the day and year first above written.
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CONSUMERS ENERGY COMPANY
(SEAL) By
---------------------------------
Xxxx X. Xxxxxx
Attest: Senior Vice President and
Chief Financial Officer
----------------------------
Xxxxx X. Xxxxxx
Assistant Secretary
Signed, sealed and delivered
by CONSUMERS ENERGY COMPANY
in the presence of
----------------------------
Xxxxxxxx X. Xxxxxxxx
----------------------------
Xxxxxx X. Xxxxxx
STATE OF MICHIGAN )
ss.
COUNTY OF XXXXXXX )
The foregoing instrument was acknowledged before me this _____
day of June, 1998, by Xxxx X. Xxxxxx, Senior Vice President and Chief Financial
Officer of CONSUMERS ENERGY COMPANY, a Michigan corporation, on behalf of the
corporation.
-------------------------------------
Xxxxxxxx Xxxxxxx, Notary Public
[Seal] Xxxxxxx County, Michigan
My Commission Expires: June 14, 2000
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THE CHASE MANHATTAN BANK, AS TRUSTEE
(SEAL) By
---------------------------------------
Attest: Vice President
----------------------------
Trust Officer
Signed, sealed and delivered
by THE CHASE MANHATTAN BANK
in the presence of
----------------------------
----------------------------
STATE OF NEW YORK )
ss.
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me this
______ day of June, 1998, by _____________________________________, a Vice
President of THE CHASE MANHATTAN BANK, a New York corporation, on behalf of the
corporation.
----------------------------------------
Notary Public
[Seal] New York County, New York
My Commission Expires:
Prepared by: When recorded, return to:
Xxxxxxxx X. Xxxxxxxx Consumers Energy Company
000 Xxxx Xxxxxxxx Xxxxxx General Services Real Estate Department
Jackson, MI 49201 Attn: Xxxxx X. Xxxxxx, P-21-410B
0000 X. Xxxxxxx Xxxx
Xxxxxxx, XX 00000
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