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EXHIBIT 4(w)
CMS ENERGY CORPORATION
and
THE BANK OF NEW YORK
as Trustee
% Subordinated Deferrable Notes due 2004
FOURTH SUPPLEMENTAL INDENTURE
Dated as of August 22, 2000
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Table of Contents
Page
----
ARTICLE I DEFINITIONS.......................................................................2
Section 1.1 Definition of Terms......................................................2
ARTICLE II TERMS AND ISSUANCE OF THE SUBORDINATED NOTES......................................4
Section 2.1 Issue of Subordinated Notes..............................................4
Section 2.2 Maturity.................................................................4
Section 2.3 Global Subordinated Notes................................................5
Section 2.4 Interest.................................................................6
Section 2.5 Redemption...............................................................6
Section 2.6 Events of Default.......................................................10
Section 2.7 Paying Agent; Security Registrar........................................10
Section 2.8 Extension of Interest Payment Period....................................10
Section 2.9 Notice of Extension.....................................................11
Section 2.10 Place of Payment........................................................12
ARTICLE III EXPENSES.........................................................................12
Section 3.1 Payment of Expenses.....................................................12
ARTICLE IV COVENANTS........................................................................13
Section 4.1 Covenants in the Event of an Event of Default...........................13
Section 4.2 Additional Covenants Relating to the Trust..............................13
ARTICLE V ORIGINAL ISSUE OF SUBORDINATED NOTES.............................................14
Section 5.1 Original Issue of Subordinated Notes....................................14
ARTICLE VI RIGHTS OF HOLDERS OF PREFERRED SECURITIES........................................15
Section 6.1 Preferred Security Holders' Rights......................................15
Section 6.2 Direct Action...........................................................15
Section 6.3 Payments Pursuant to Direct Actions.....................................15
Section 6.4 Modifications...........................................................15
ARTICLE VII REMARKETING............................................................................16
Section 7.1 Effectiveness of this Article...........................................16
ARTICLE VIII ACCELERATION OF MATURITY..............................................................16
Section 8.1 Automatic Acceleration..................................................16
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ARTICLE IX MISCELLANEOUS....................................................................16
Section 9.1 Execution of Fourth Supplemental Indenture..............................16
Section 9.2 Conflict with Trust Indenture Act.......................................16
Section 9.3 Effect of Headings......................................................17
Section 9.4 Successors and Assigns..................................................17
Section 9.5 Separability Clause.....................................................17
Section 9.6 Benefits of Fourth Supplemental Indenture...............................17
Section 9.7 Governing Law...........................................................17
EXHIBIT A [FORM OF FACE OF SUBORDINATED
DEFERRABLE NOTE]................................................................A-1
EXHIBIT B [FORM OF FACE OF SUBORDINATED
DEFERRABLE NOTE]................................................................B-1
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THIS FOURTH SUPPLEMENTAL INDENTURE, dated as of August 22,
2000, (herein called the "Fourth Supplemental Indenture"), between CMS Energy
Corporation, a corporation duly organized and existing under the laws of the
State of Michigan (hereinafter called the "Company"), party of the first part,
and The Bank of New York, a New York banking corporation, as Trustee under the
Indenture referred to below (hereinafter called the "Trustee"), party of the
second part.
WITNESSETH:
WHEREAS, the Company has heretofore executed and delivered to
the Trustee an Indenture, dated as of June 1, 1997 (hereinafter called the
"Indenture"), to provide for the issuance from time to time of certain of its
unsecured notes (hereinafter called the "Securities"), the form and terms of
which are to be established as set forth in Sections 2.1 and 2.3 of the
Indenture; and
WHEREAS, Section 8.1 of the Indenture provides, among other
things, that the Company and the Trustee may enter into indentures supplemental
to the Indenture for, among other things, the purpose of establishing the form
or terms of the Securities of any series as permitted in Sections 2.1 and 2.3 of
the Indenture; and
WHEREAS, the Company desires to create a series of the
Securities in an aggregate principal amount of up to $257,731,975 to be
designated the " % Subordinated Deferrable Notes due 2004" (the "Subordinated
Notes"), and all action on the part of the Company necessary to authorize the
issuance of the Subordinated Notes under the Indenture and this Fourth
Supplemental Indenture has been duly taken; and
WHEREAS, all acts and things necessary to make the
Subordinated Notes when executed by the Company and completed, authenticated and
delivered by the Trustee as in the Indenture and this Fourth Supplemental
Indenture provided, the valid and binding obligations of the Company and to
constitute these presents a valid and binding supplemental indenture and
agreement according to its terms, have been done and performed; and
WHEREAS, Section 8.1 of the Indenture provides, among other
things, that the Company and the Trustee may enter into indentures supplemental
to the Indenture to, among other things, add to the covenants of the Company for
the benefit of the Holders of all or any series of Securities; and
WHEREAS, CMS Energy Trust III, a Delaware statutory business
trust (the "Trust"), has offered to the public up to $250,000,000 in aggregate
liquidation amount of its % Trust Preferred Securities (the "Preferred
Securities") and, in connection therewith, the Company has agreed to purchase up
to $7,731,975 in value of the aggregate liquidation amount of the Trust's common
securities (the
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"Common Securities" and together with the Preferred Securities, the "Trust
Securities"), each representing an undivided beneficial interest in the assets
of the Trust, and proposes to invest the proceeds from such offerings in up to
$257,731,975 aggregate principal amount of the Subordinated Notes;
NOW, THEREFORE, THIS FOURTH SUPPLEMENTAL INDENTURE WITNESSETH:
That in consideration of the premises, the Company covenants
and agrees with the Trustee, for the equal benefit of holders of the
Subordinated Notes, as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definition of Terms. Unless the context otherwise
requires:
(a) a term not defined herein that is defined in the Indenture
has the same meaning when used in this Fourth Supplemental Indenture;
(b) a term defined anywhere in this Fourth Supplemental
Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or
Article of this Fourth Supplemental Indenture;
(e) headings are for convenience of reference only and do not
affect interpretation;
(f) the following terms have the meanings given to them in the
Declaration: (i) Applicable Margin; (ii) Applicable Principal Amount; (iii) Cash
Merger Event; (iv) Cash Merger Early Redemption; (v) Cash Merger Early
Redemption Date; (vi) Common Securities; (vii) Delaware Trustee; (viii) Failed
Remarketing; (ix) Guarantee; (x) Majority in Liquidation Amount; (xi) Preferred
Securities; (xii) Preferred Security Certificate; (xiii) Property Trustee; (xiv)
Redemption Amount; (xv) Redemption Price; (xvi) Regular Trustees; (xvii)
Remarketing Agreement; (xviii) Tax Event; (xix) Remarketing Date; (xx) Reset
Rate;
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(xxi) Tax Event Redemption; (xxii) Treasury Portfolio; and (xxiii) Two-Year
Benchmark Treasury Rate;
(g) the following terms have the meanings given to them in the
Purchase Contract Agreement: (i) Cash Merger Early Settlement; (ii) Cash
Settlement; (iii) PEPS Units; (iv) Pledge Agreement; (v) Purchase Contract and
(vi) Purchase Contract Settlement Date; (vii) Treasury PEPS Unit; (viii) Global
Certificate;
(h) the following terms have the meanings given to them in
this Section 1.1(h):
"Business Day" means a day on which banking
institutions in New York, New York or Delaware are not
authorized or required by law to close.
"Declaration" means the Amended and Restated
Declaration of Trust of the Trust, dated as of August 22,
2000, as amended and restated from time to time.
"Direct Action" has the meaning specified in Section
6.2.
"Primary Treasury Dealer" means a primary U.S.
government securities dealer in New York City.
"Purchase Contract Agreement" means the Purchase
Contract Agreement dated as of August 22, 2000 between the
Company and The Bank of New York, as Purchase Contract Agent.
"Quotation Agent" means (i) Xxxxxx Xxxxxxx & Co.
Incorporated and its respective successors, provided that if
Xxxxxx Xxxxxxx & Co. Incorporated ceases to be a Primary
Treasury Dealer, the Company will substitute another Primary
Treasury Dealer therefor, or (ii) any other Primary Treasury
Dealer selected by the Company.
"Remarketing" means (i) as long as the Trust has not
been liquidated, the operation of the procedures for
remarketing specified in Section 7.13 of the Declaration and
(ii) if the Trust has been liquidated, the operation of the
procedures for remarketing specified in Section 5.02 of the
Purchase Contract Agreement.
"Remarketing Agent" shall mean Xxxxxx Xxxxxxx &
Co. Incorporated or any successor remarketing agent selected
by the Company.
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ARTICLE II
TERMS AND ISSUANCE OF THE SUBORDINATED NOTES
Section 2.1 Issue of Subordinated Notes. A series of
Securities which shall be designated the " % Subordinated Deferrable Notes due
2004" shall be executed, authenticated and delivered in accordance with the
provisions of, and shall in all respects be subject to, the terms, conditions
and covenants of the Indenture and this Fourth Supplemental Indenture
(including the form of Subordinated Note set forth as Exhibits A and B hereto).
The aggregate principal amount of Subordinated Notes of the series created
hereby which may be authenticated and delivered under the Indenture shall not,
except as permitted by the provisions of the Indenture, exceed $257,731,975. The
Subordinated Notes shall be initially issued in certificated form to the Trust
(the "Initial Subordinated Notes") and shall be substantially in the Form of
Exhibit B attached hereto. The terms of such Subordinated Notes are herein
incorporated by reference and are part of the Fourth Supplemental Indenture.
Section 2.2 Maturity. Unless a Tax Event Redemption or Cash
Merger Early Redemption occurs, the entire principal amount of the Subordinated
Notes will mature and become due and payable together with any accrued and
unpaid interest thereon, on August 18, 2004 (the "Maturity Date").
Section 2.3 Global Subordinated Notes. If distributed to
holders of Preferred Securities in connection with the involuntary or voluntary
liquidation and dissolution of the Trust:
(a) If the Preferred Securities are held in book-entry form,
the Initial Subordinated Notes may be presented to the Trustee by the Property
Trustee in exchange for a Global Security in the form of Exhibit A in an
aggregate principal amount equal to all Outstanding Subordinated Notes (a
"Global Subordinated Note"). The Depositary for the Global Subordinated Note
will be The Depository Trust Company. The Global Subordinated Note will be
registered in the name of the Depositary or its nominee, Cede & Co., and
delivered by the Trustee to the Depositary or a custodian appointed by the
Depositary for crediting to the accounts of its participants pursuant to the
instructions of the Property Trustee. The Company upon any such presentation
shall execute a Global Subordinated Note in such aggregate principal amount and
deliver the same to the Trustee for authentication and delivery in accordance
with the Indenture and this Fourth Supplemental Indenture. Payments on the
Subordinated Notes issued as a Global Subordinated Note will be made to the
Depositary or its nominee.
(b) If any Preferred Securities are held in non book-entry
certificated form ("Non Book-Entry Preferred Securities"), the Initial
Subordinated Notes may be presented to the Trustee by the Property Trustee, and
such Non
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Book-Entry Preferred Securities will be deemed to represent beneficial
interests in Subordinated Notes presented to the Trustee by the Property
Trustee having an aggregate principal amount equal to the aggregate liquidation
amount of the Non Book-Entry Preferred Securities until the Preferred Security
Certificates representing such Non Book-Entry Preferred Securities are presented
to the Security Registrar for transfer or reissuance, at which time such
Preferred Security Certificates will be canceled and a Subordinated Note
registered in the name of the holder of the Preferred Security Certificate or
the transferee of the holder of such Preferred Security Certificate, as the case
may be, with an aggregate principal amount equal to the aggregate liquidation
amount of the Preferred Security Certificate canceled will be executed by the
Company and delivered to the Trustee for authentication and delivery in
accordance with the Indenture and this Fourth Supplemental Indenture. On issue
of such Subordinated Notes, Subordinated Notes with an equivalent aggregate
principal amount that were presented by the Property Trustee to the Trustee will
be deemed to have been canceled.
Section 2.4 Interest. (a) Each Subordinated Note will bear
interest at the rate of % per annum from August 22, 2000 until the Purchase
Contract Settlement Date, and at the Reset Rate thereafter, payable quarterly in
arrears on August 18, November 18, February 18 and May 18 of each year,
commencing November 18, 2000 (the "Interest Payment Dates").
(b) The Regular Record Dates for the payment of
interest on the Subordinated Notes on any Interest Payment Date, shall be (i) as
long as the Subordinated Notes are represented by a Global Subordinated Note or
the Initial Subordinated Notes, the Business Day preceding each Interest Payment
Date or (ii) if the Subordinated Notes are issued pursuant to Section 2.3(b)
above, the fifteenth Business Day prior to each Interest Payment Date.
(c) The interest rate on the Subordinated Notes
outstanding on and after the Remarketing Date will be reset to the Reset Rate.
The Reset Rate will be equal to the rate per annum that results from the
Remarketing, provided that if a Failed Remarketing occurs, the Reset Rate will
be equal to (i) the Two-Year Benchmark Treasury Rate plus (ii) the Applicable
Margin.
(d) The amount of interest payable on the Subordinated
Notes for any period will be computed (i) for any full quarterly period on the
basis of a 360-day year of twelve 30-day months and (ii) for any period shorter
than a full quarterly period, on the basis of a 30-day month and, for any period
less than a month, on the basis of the actual number of days elapsed per 30-day
month. In the
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event that any date on which interest is payable on the Subordinated Notes is
not a Business Day, then payment of the interest payable on such date will be
made on the next day that is a Business Day (and without interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next calendar year, then such payment will be made on the preceding Business
Day.
Section 2.5 Redemption. (a) If a Tax Event occurs and is
continuing, the Company may, at its option and upon not less than 30 nor more
than 60 days' notice to the Holders of the Subordinated Notes, redeem the
Subordinated Notes in whole (but not in part) within 90 days following the
occurrence of such Tax Event, at a price equal to, for each Subordinated Note,
the applicable Redemption Price. The aggregate Redemption Price shall be paid
prior to 12:00 noon, New York City time, on the date of redemption (the "Tax
Event Redemption Date") or such earlier time as the Company determines, provided
that the Company shall have deposited with the Trustee an amount sufficient to
pay the aggregate Redemption Price by 10:00 a.m. on the Tax Event Redemption
Date. Such redemption shall otherwise be in accordance with the provisions of
Article XI of the Indenture.
(b) (i) In connection with a Cash Merger Event so long
as the Subordinated Notes are held by the Trust, then the Company shall redeem
Subordinated Notes in an aggregate principal amount equal to the aggregate
liquidation amount of Preferred Securities to be redeemed in a Cash Merger Early
Redemption at a price per Subordinated Note equal to the applicable Redemption
Price (the "Cash Merger Event Redemption Price").
(ii) In connection with a Cash Merger Event, in the event the
Trust has been dissolved or liquidated and the Subordinated Notes have been
distributed to Holders other than the Trust, each Holder of Subordinated Notes
shall have the right to require the Company to redeem all or any part (equal to
$25 or an integral multiple thereof) of such Holder's Subordinated Notes
pursuant to the offer described below (the "Cash Merger Event Offer") at an
offer price in cash equal to the applicable Redemption Price had Preferred
Securities been outstanding at the time and a Cash Merger Early Redemption right
been triggered in respect of such Preferred Securities (also, the "Cash Merger
Event Redemption Price").
No later than the day of the Cash Merger Event, the Company
shall mail or cause to be mailed a notice of a pending Cash Merger Event to each
Holder (at its last registered address with a copy to the Trustee and the Paying
Agent) offering to repurchase the Subordinated Notes held by such Holder
pursuant to the procedures specified in such notice. The Cash Merger Event Offer
shall remain open
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from the time of mailing until at least 5:00 p.m. on the Business Day
immediately preceding the Cash Merger Early Redemption Date (as such term is
defined below). The notice, which shall govern the terms of the Cash Merger
Event Offer, shall contain all instructions and materials necessary to enable
the Holders to tender Subordinated Notes pursuant to the Cash Merger Event Offer
and shall state:
(A) that the Cash Merger Event Offer is being made pursuant
to this Section 2.5(b)(ii) and that all Subordinated
Notes tendered will be accepted for payment;
(B) the applicable Cash Merger Event Redemption Price and
the Cash Merger Early Redemption Date (as such term is
defined below in this Section 2.5), which date shall be
no earlier than 20 business days from the date such
notice is mailed;
(C) that any Subordinated Note not tendered will continue
to accrue interest in accordance with the terms of this
Fourth Supplemental Indenture and the Indenture;
(D) that, unless the Company defaults in the payment of the
applicable Cash Merger Event Redemption Price, all
Subordinated Notes accepted for payment pursuant to the
Cash Event Merger Offer will cease to accrue interest
after the Cash Merger Early Redemption Date;
(E) that Holders electing to have a Subordinated Note
purchased pursuant to any Cash Event Merger Offer will
be required to surrender the Subordinated Note, with
the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Subordinated Note completed, to
the Company, a depositary, if appointed by the Company,
or a Paying Agent at the address specified in the
notice prior to the 5:00 p.m. on the Business Day
immediately preceding the Cash Merger Early Redemption
Date;
(F) that Holders will be entitled to withdraw their
election if the Company, depositary or Paying Agent, as
the case may be, receives, not later than 5:00 p.m. on
the last Business Day of the corresponding Early
Settlement Week, a facsimile trans mission or letter
setting forth the name of the Holder, the principal
amount of the Subordinated Note the Holder delivered
for purchase, and a statement that such Holder is with
drawing his election to have such Subordinated Note
purchased;
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(G) that Holders whose Subordinated Notes are being
purchased only in part will be issued new Subordinated
Notes equal in principal amount to the unpurchased
portion of the Subordinated Notes surrendered, which
unpurchased portion must be equal to $25 in principal
amount or an integral multiple thereof; and
(H) the circumstances and relevant facts regarding such
Cash Merger Event and any other information that would
be material to a decision as to whether to tender a
Subordinated Note pursuant to the Cash Merger Event
Offer.
On the Cash Merger Early Redemption Date, the Company shall,
to the extent lawful, (i) accept for payment all Subordinated Notes or portions
thereof properly tendered and not withdrawn pursuant to the Cash Merger Event
Offer, (ii) deposit with the Paying Agent an amount equal to the Cash Merger
Event Payment in respect of all Subordinated Notes or portions thereof so
tendered and (iii) deliver or cause to be delivered to the Trustee the
Subordinated Notes so accepted together with an Officers' Certificate stating
the aggregate principal amount of Subordinated Notes or portions thereof being
purchased by the Company. The Paying Agent shall promptly mail to each Holder of
Subordinated Notes so tendered the Cash Merger Event Redemption Price for each
such Subordinated Note, and the Trustee shall promptly authenticate and mail (or
cause to be transferred by book entry) to each Holder a new Subordinated Note
equal in principal amount to any unpurchased portion of the Subordinated Notes
surrendered, if any; provided that each such new Subordinated Note shall be in a
principal amount of $25 or an integral multiple thereof. The Company shall
publicly announce the results of the Cash Merger Event Offer on or as soon as
practicable after the applicable Cash Merger Event Redemption Date.
The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
redemption of Subordinated Notes as a result of a Cash Merger Event.
The aggregate Redemption Price to be paid in connection with
this Section 2.5(b) shall be paid prior to 12:00 noon, New York City time, on
the Cash Merger Early Redemption Date or such earlier time as the Company
determines, provided that the Company shall have deposited with the Trustee an
amount sufficient to pay the aggregate Redemption Price by 10:00 a.m. on the
Cash Merger Early Redemption Date.
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(c) Except as provided in Sections 2.5(a) and 2.5(b),
the Company will have no right to redeem the Subordinated Notes.
(d) The Subordinated Notes will not be subject to a
sinking fund provision.
Section 2.6 Events of Default. So long as the Subordinated
Notes are held by the Trust, it shall be an Event of Default with respect to the
Subordinated Notes if the Trust shall have voluntarily or involuntarily
dissolved, wound up its business or otherwise terminated its existence except in
connection with (i) the distribution of the Subordinated Notes held by the Trust
to the holders of the Preferred Securities and Common Securities in liquidation
of their interests in the Trust, (ii) the redemption of all of the outstanding
Preferred Securities and Common Securities or (iii) a consolidation, conversion,
amalgamation, merger or other transaction involving the Trust that is permitted
under Section 3.15 of the Declaration.
Section 2.7 Paying Agent; Security Registrar. If the
Subordinated Notes are issued in certificated form, the Paying Agent and the
Security Registrar for the Subordinated Notes shall be the Property Trustee.
Section 2.8 Extension of Interest Payment Period. The Company
shall have the right at any time and from time to time, prior to August 18,
2003, to defer payments of interest by extending the interest payment period of
such Subordinated Notes for a period not exceeding 12 consecutive quarters or
extending beyond o, 2003 (the "Extension Period"), during which Extension Period
no interest shall be due and payable. To the extent permitted by applicable law,
interest, the payment of which has been deferred because of the extension of the
interest payment period pursuant to this Section 2.8, will bear interest thereon
at the rate of o% compounded quarterly for each quarter of the Extension Period
("Compounded Interest"). At the end of the Extension Period, the Company shall
pay all interest accrued and unpaid on the Subordinated Notes and Compounded
Interest (together, "Deferred Interest") that shall be payable to the Holders of
the Subordinated Notes in whose names the Subordinated Notes are registered in
the Security Register on the first Regular Record Date after the end of the
Extension Period. So long as Preferred Securities are outstanding, the Company
shall not (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any of the
Company's capital stock (which includes common and preferred stock), (ii) make
any payment of principal, interest or premium, if any, on or repay or repurchase
or redeem any debt securities of the Company that rank paripassu with or junior
in right of payment to the Subordinated Notes or (iii) make any guarantee
payments with respect to any guarantee by the Company of any securities of any
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subsidiary of the Company if such guarantee ranks paripassu or junior in right
of payment to the Subordinated Notes (other than in the case of clauses (i),
(ii) and (iii), (a) dividends or distributions in shares of, or options,
warrants or rights to subscribe for or purchase shares of, common stock of the
Company, (b) any declaration of a dividend in connection with the implementation
of a stockholders' rights plan, or the issuance of stock under any such plan in
the future, or the redemption or repurchase of any such rights pursuant thereto,
(c) payments under the Preferred Securities Guarantee Agreement, dated as of
August 22, 2000, by and between the Company, as guarantor, and The Bank of New
York, as guarantee trustee (the "Preferred Securities Guarantee Agreement"), (d)
as a result of a reclassification of the Company's capital stock solely into
shares of one or more classes or series of the Company's capital stock or the
exchange or the conversion of one class or series of the Company's capital stock
for another class or series of the Company's capital stock, (e) the purchase of
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged and (f) purchases of the Company's common stock in
connection with the satisfaction by the Company of its obligations (including
purchases related to the issuance of such common stock or rights) under any of
the Company's benefit plans for its and its subsidiaries' directors, officers or
employees or any of the Company's dividend reinvestment plans), (x) if at such
time an Event of Default or an "Event of Default," as defined in the Preferred
Securities Guarantee Agreement, shall have occurred and be continuing or (y)
during any Extension Period. Prior to the expiration of any Extension Period,
the Company may further extend such period, provided that such period together
with all such previous and further extensions thereof shall not exceed 12
quarters or extend beyond August 18, 2003. Upon termination of any Extension
Period and the payment of all Deferred Interest then due, the Company may
commence a new Extension Period, subject to the foregoing requirements. No
interest shall be due and payable during an Extension Period except at the end
thereof, but the Company, at its option, may prepay on any Interest Payment Date
all or any portion of the interest accrued during the then elapsed portion of an
Extension Period.
Section 2.9 Notice of Extension. The Company shall give
written notice to the Trustee of its election of any Extension Period (or any
further extension thereof) at least five Business Days before the earlier of (i)
the date the interest on the Subordinated Notes would have been payable except
for the election to begin or extend the Extension Period; (ii) the date the
Trustee is required to give notice to any securities exchange or to Holders of
Subordinated Notes of the Record Date or the Interest Payment Date, and (iii)
the Record Date.
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Section 2.10 Place of Payment. The Place of Payment will be
initially the principal corporate trust office of the Trustee which, at the date
hereof, is located at 000 Xxxxxxx, 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Corporate Trust Administration Department.
ARTICLE III
EXPENSES
Section 3.1 Payment of Expenses. In connection with the
offering, sale and issuance of the Subordinated Notes to the Trust in connection
with the sale of the Preferred Securities and Common Securities by the Trust,
the Company will:
(a) pay for all costs and expenses relating to the
offering, sale and issuance of the Subordinated Notes, including compensation of
the Trustee under the Indenture; and
(b) pay for all costs and expenses of the Trust,
including, but not limited to, costs and expenses relating to the organization
of the Trust, the offering, sale and issuance of the Trust Securities; the fees
and expenses of the Property Trustee (including, without limitation, those
incurred in connection with the enforcement by the Property Trustee of the
rights of the holders of the Preferred Securities), the Delaware Trustee and the
Regular Trustees; the costs and expenses relating to the operation of the Trust
(including, without limitation, costs and expenses of accountants, attorneys,
statistical or bookkeeping services, expenses for printing and engraving and
computing or accounting equipment, paying agent(s), registrar(s), transfer
agent(s), duplicating, travel and telephone and other telecommunications
expenses); and costs and expenses incurred in connection with the acquisition,
financing and disposition of Trust assets;
(c) be primarily liable for any indemnification
obligations arising with respect to the Declaration; and
(d) pay any and all taxes (other than United States
with holding taxes attributable to the Trust or its assets) and all liabilities,
costs and expenses with respect to such taxes of the Trust.
ARTICLE IV
COVENANTS
Section 4.1 Covenants in the Event of an Event of Default. As
long
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as Preferred Securities are outstanding, if an Event of Default occurs and is
continuing, then the Company may not:
(a) declare or pay any dividends or distributions on,
or redeem, purchase, acquire, or make a liquidation payment with respect to, any
of the Company's capital stock (which includes common and preferred stock);
(b) make any payment of principal, interest or premium,
if any, on or repay or repurchase or redeem any debt securities of the Company
that rank paripassu with or junior in right of payment to the Subordinated
Notes; or
(c) make any guarantee payments with respect to any
guarantee by the Company of any securities of any subsidiary of the Company if
such guarantee ranks paripassu or junior in right of payment to the
Subordinated Notes (other than in the case of clauses (a), (b) and (c), (i)
dividends or distributions in shares of, or options, warrants or rights to
subscribe for or purchase shares of, common stock of the Company, (ii) any
declaration of a dividend in connection with the implementation of a
stockholders' rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto,
(iii) payments under the Preferred Securities Guarantee Agreement, (iv) as a
result of a reclassification of the Company's capital stock solely into shares
of one or more classes or series of the Company's capital stock or the exchange
or the conversion of one class or series of the Company's capital stock for
another class or series of the Company's capital stock, (v) the purchase of
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged and (vi) purchases of the Company's common stock in
connection with the satisfaction by the Company of its obligations (including
purchases related to the issuance of such common stock or rights) under any of
the Company's benefit plans for its and its subsidiaries' directors, officers or
employees or any of the Company's dividend reinvestment plans).
Section 4.2 Additional Covenants Relating to the Trust. For as
long as the Preferred Securities remain outstanding, the Company will:
(a) maintain, directly or indirectly, 100% ownership of
the Common Securities;
(b) cause the Trust to remain a statutory business
trust and not to voluntarily dissolve, wind up, liquidate or be terminated,
except as permitted by the Declaration;
(c) use its commercially reasonable efforts to ensure
that the Trust will not be an "investment company" required to be registered
under the Investment Company Act of 1940;
16
(d) not take any action that would be reasonably likely
to cause the Trust to be classified as an association or a publicly traded
partnership taxable as a corporation for United States federal income tax
purposes; and
(e) pay all of the debts and obligations of the Trust
(other than with respect to the securities issued by the Trust) and all costs
and expenses of the Trust (including, but not limited to, all costs and expenses
relating to the organization of the Trust, the fees and expenses of the
trustees and all costs and expenses relating to the operation of the Trust) and
any and all taxes, duties, assessments or governmental charges of whatever
nature (other than withholding taxes) imposed on the Trust by the United States,
or any other taxing authority, so that the net amounts received and retained by
the Trust after paying such expenses will be equal to the amounts the Trust
would have received had no such costs or expenses been incurred by or imposed on
the Trust.
ARTICLE V
ORIGINAL ISSUE OF SUBORDINATED NOTES
Section 5.1 Original Issue of Subordinated Notes. Subordinated
Notes in an aggregate principal amount of up to $257,731,975 may, upon execution
of this Fourth Supplemental Indenture, be executed by the Company and delivered
to the Trustee for authentication, and the Trustee shall thereupon authenticate
and deliver said Subordinated Notes upon receipt of a Company Order for
authentication and delivery, without any further action by the Company.
ARTICLE VI
RIGHTS OF HOLDERS OF PREFERRED SECURITIES
Section 6.1 Preferred Security Holders' Rights.
Notwithstanding Section 5.6 of the Indenture, if the Property Trustee fails to
enforce its rights under the Subordinated Notes after a holder of Preferred
Securities has made a written request, the holder of Preferred Securities may,
to the fullest extent permitted by law, institute a legal proceeding directly
against the Company to enforce the Property Trustee's rights under the Indenture
without first instituting any legal proceeding against the Property Trustee or
any other Person.
Section 6.2 Direct Action. Notwithstanding any other provision
of the Indenture, for as long as any Preferred Securities remain outstanding, to
the fullest extent permitted by law, if an Event of Default has occurred and is
continuing and
17
such event is attributable to the failure of the Company to pay interest or
principal on the Subordinated Notes on the date such interest or principal is
other wise payable (or in the case of redemption, the redemption date), then a
holder of Preferred Securities may institute a proceeding directly against the
Company (a "Direct Action") to enforce payment to such holder of the principal
or interest on Subordinated Notes having an aggregate principal amount equal to
the aggregate liquidation amount of the Preferred Securities of such holder.
Section 6.3 Payments Pursuant to Direct Actions. The Company
will have the right to set off against its obligations to the Trust, as Holder
of the Subordinated Notes, any payment made to a holder of Preferred Securities
in connection with a Direct Action.
Section 6.4 Modifications. So long as any Preferred Securities
remain outstanding, (i) no amendment to this Indenture shall be made that
adversely affects the holders of the Preferred Securities in any material
respect, and no termination of this Indenture shall occur, and no waiver of any
Event of Default or compliance with any covenant under this Indenture shall be
effective, without the prior consent of the holders of at least a Majority in
Liquidation Amount (as defined in the Declaration) of the Preferred Securities
then outstanding unless and until the principal of (and premium, if any, on)
the Subordinated Note and all accrued and unpaid interest thereon have been paid
in full, and (ii) no amendment shall be made to this Article VI of this Fourth
Supplemental Indenture that would impair the rights of the holders of the
Preferred Securities without the prior consent of the holders of each Preferred
Security then outstanding unless and until the principal of (and premium, if
any, on) the Subordinated Note and all accrued and unpaid interest thereon have
been paid in full.
ARTICLE VII
REMARKETING
Section 7.1 Effectiveness of this Article. Upon a distribution
of the Subordinated Notes upon the liquidation and dissolution of the Trust
which occurs prior to the Remarketing of the Preferred Securities pursuant to
the Declaration, the Subordinated Notes shall be Remarketed in accordance with
the Remarketing procedures of the Declaration where all references in the
Remarketing procedures to Preferred Securities shall be read as references to
the Subordinated Notes, unless the context requires otherwise. Until such a
distribution, or if such distribution occurs after the Remarketing of the
Preferred Securities pursuant to the Declaration, this Article VII will have no
effect.
18
ARTICLE VIII
ACCELERATION OF MATURITY
Section 8.1 Automatic Acceleration. Notwithstanding Section
5.1 of the Indenture, if an Event of Default with respect to the Subordinated
Notes specified in clauses (e) or (f) of Section 5.1 of the Indenture occurs and
is continuing, the principal of the Subordinated Notes shall become due and
payable immediately, without any declaration, notice or other act on the part of
the Trustee or any holder thereof.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Execution of Fourth Supplemental Indenture. This
Fourth Supplemental Indenture is executed and shall be construed as an indenture
Fourth Supplemental to the Indenture and, as provided in the Indenture, this
Fourth Supplemental Indenture forms a part thereof.
Section 9.2 Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with another provision hereof
which is required to be included in this Fourth Supplemental Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
Section 9.3 Effect of Headings. The Article and Section
headings herein are for convenience only and shall not affect the construction
hereof.
Section 9.4 Successors and Assigns. All covenants and
agreements in this Fourth Supplemental Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
Section 9.5 Separability Clause. In case any provision in this
Fourth Supplemental Indenture or in the Subordinated Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section 9.6 Benefits of Fourth Supplemental Indenture. Nothing
in this Fourth Supplemental Indenture or in the Subordinated Notes, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the holders, any benefit or any legal or equitable
right, remedy or claim under this Fourth Supplemental Indenture.
Section 9.7 Governing Law. This Fourth Supplemental Indenture
and each Subordinated Note shall be deemed to be a contract made under the laws
of the State of Michigan, and for all purposes shall be governed by and
construed in accordance with the laws of said State.
19
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Supplemental Indenture to be duly executed and attested and the Company has
caused its corporate seal to be hereunto affixed and attested, all as of the day
and year first above written.
CMS ENERGY CORPORATION
[Seal] By:
-----------------------------------
Senior Vice President
and Chief Financial Officer
Attest:
------------------------
Secretary
THE BANK OF NEW YORK
as Trustee
By:
-----------------------------------
Name:
-----------------------------
Title:
-----------------------------
Attest:
------------------------
Name:
------------------------
Title:
------------------------
20
STATE OF )
-------- ) ss.:
COUNTY OF )
--------
On the 22nd day of August 2000, before me personally came Xxxx
X. Xxxxxx, to me known, who, being by me duly sworn, did depose and say that he
is Senior Vice President and Chief Financial Officer of CMS Energy Corporation,
the corporation described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
Notary Public,
State of Michigan
STATE OF )
-------- ) ss.:
COUNTY OF )
--------
On the 22nd day of 2000, before me personally came
, to me known, who, being by me duly sworn, did depose and say
that he is of The Bank of New York, the New York banking
corporation described in and which executed the foregoing instrument; that he
knows the seal of said association; that the seal affixed to said instrument is
such association seal; that it was so affixed by authority of the Board of
Directors of said association, and that he signed his name thereto by like
authority.
Notary Public,
State of
------------------
21
EXHIBIT A
[FORM OF FACE OF SUBORDINATED DEFERRABLE NOTE]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS GLOBAL SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY
IN THE LIMITED CIRCUMSTANCES HEREINAFTER DESCRIBED AND MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY
OR BY THE DEPOSITARY OR ANY NOMINEE TO A SUCCESSOR OF THE DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR.
REGISTEREDREGISTERED
CMS ENERGY CORPORATION
% SUBORDINATED DEFERRABLE NOTE DUE 2004
------
$
-----------
CMS ENERGY CORPORATION, a corporation duly organized and
existing under the laws of Michigan (herein called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay CMS Energy Trust III, or registered
assigns, the principal sum of Dollars on August 18,
2004, and to pay interest on said principal sum from August 22, 2000, or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, quarterly in arrears on August 18, November 18, February 18 and
May 18 of each year (an
22
"Interest Payment Date") commencing November 18, 2000, at the rate of % per
annum until August 18, 2003, and at the Reset Rate thereafter, until the
principal hereof shall have become due and payable, and on any overdue principal
and premium, if any, and (without duplication and to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum compounded quarterly. Any deferred interest
shall accrue interest at the rate set forth in the Fourth Supplemental
Indenture. The amount of interest payable for any period will be computed (1)
for any full quarterly period on the basis of a 360-day year of twelve 30-day
months and (2) for any period shorter than a full quarterly period, on the basis
of a 30-day month and, for any period less than a month, on the basis of the
actual number of days elapsed per 30-day month. In the event that any date on
which interest is payable is not a Business Day, then payment of the interest
payable on such date will be made on the next day that is a Business Day (and
without any interest or other payment in respect of such delay), except that, if
such Business Day is in the next calendar year, then such payment will be made
on the preceding Business Day. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, referred to on the reverse side hereof, be paid to
the Holder in whose name this Security (or one or more Predecessor Securities,
as defined in said Indenture) is registered at the close of business on the
Regular Record Date for such interest installment, which, shall be the close of
business on the Business Day preceding such Interest Payment Date. Any such
interest installment not punctually paid or duly provided for shall forthwith
cease to be payable to the Holder on such Regular Record Date, and may be paid
to the Holder in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date to
be fixed by the Trustee referred to on the reverse side hereof for the payment
of such defaulted interest, notice whereof shall be given to the Holders of the
Security not less than 10 days prior to such Special Record Date, or may be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Security may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in the
Indenture.
Payment of the principal of and premium, if any, and interest
on this Security will be made at the office or agency of the Trustee maintained
for that purpose in such coin or currency of the United States of America that
at the time of payment is legal tender for payment of public and private debts.
The Company may pay principal and interest by check payable in such money mailed
to the Holder's registered address or by wire transfer to a dollar account
designated by the Holder.
Interest on the Securities is deferrable in accordance with
the terms of the Fourth Supplemental Indenture.
This Security is, to the extent provided in the Indenture, a
subordinated, unsecured obligation of the Company, subject in right to the
prior
23
payment in full of all Senior Indebtedness (as such term is defined in the
Indenture).
Unless the Certificate of Authentication hereon has been
executed by or on behalf of the Trustee, this Security shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose. The
provisions of this Security are continued on the reverse side hereof, and such
continued provisions shall for all purposes have the same effect as though fully
set forth at this place.
24
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
CMS ENERGY CORPORATION
Dated: By:
---------------------------------
Name:
Title:
Attest:
By:
---------------------------------
Name:
Title:
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series referred to in the
within-mentioned Indenture.
Dated: THE BANK OF NEW YORK, as
Trustee
By:
---------------------------------
Authorized Signatory
25
(FORM OF REVERSE OF SUBORDINATED DEFERRABLE NOTE)
CMS ENERGY CORPORATION
% SUBORDINATED DEFERRABLE NOTE DUE 2004
----
This Subordinated Deferrable Note is one of a duly authorized
series of securities of the Company (herein called the "Securities"), issued and
to be issued in one or more series under an Indenture, dated as of June 1, 1997,
as amended and supplemented (as amended and supplemented, the "Indenture"),
between the Company and The Bank of New York as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to $ .
All terms used in this Security that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
This Security is not subject to any sinking fund, nor may this
Security be redeemed at the option of the Company prior to the Maturity Date
except upon the occurrence of a Tax Event as described below.
The Indenture contains provisions for defeasance at any time
of the entire indebtedness of this Security upon compliance by the Company with
certain conditions set forth therein.
If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture.
If a Tax Event occurs and is continuing, the Company may, at
its option and upon not less than 30 nor more than 60 days' notice to the
Holders of the Securities, redeem the Securities in whole (but not in part)
within 90 days following the occurrence of such Tax Event at the applicable
Redemption Price. The Redemption Price shall be paid prior to 12:00 noon, New
York City time, on the Tax Event Redemption Date, by check or wire transfer in
immediately available funds at such place and to such account as may be
designated by each such Holder.
In a Cash Merger Event occurs, then the Company shall redeem
26
Subordinated Notes as set forth in the Fourth Supplemental Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities at the time of all series to be
affected (voting as a class). The Indenture also contains provisions permitting
the Holders of a majority in aggregate principal amount of the Outstanding
Securities of each series at the time, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest, if any, on this Security at the times, place and
rate, and in the coin or currency, herein prescribed.
This Security shall be exchangeable for Securities registered
in the names of Persons other than the Depositary with respect to such series or
its nominee only as provided in this paragraph. This Security shall be so
exchangeable if (x) the Depositary is at any time unwilling or unable to
continue as Depositary for such series, (y) the Company executes and delivers to
the Trustee a Company Order providing that this Security shall be so
exchangeable or (z) there shall have occurred and be continuing an Event of
Default with respect to the Securities of such series. Securities so issued in
exchange for this Security shall be of the same series, having the same interest
rate, if any, and maturity and having the same terms as this Security, in
authorized denominations and in the aggregate having the same principal amount
as this Security and registered in such names as the Depositary for such Global
Security shall direct.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of a Security of the series of which
this Security is a part is registrable in the Security Register, upon surrender
of this Security for registration of transfer at the office or agency of the
Company in any place where the principal of and premium, if any, and interest,
if any, on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his
27
attorney duly authorized in writing, and thereupon one or more new Securities of
this series, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Securities of the series of which this Security is a part
are issuable only in registered form without coupons in denominations of $25 and
in integral multiples thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series
and of like tenor of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Holder in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Security shall be governed by and construed in accordance
with the laws of the State of Michigan.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
28
OPTION OF HOLDER TO ELECT PURCHASE
This form is to be used to make an election in the event of a Cash
Merger Event Offer, as set forth in Section 2.5(b)(ii) of the Fourth
Supplemental Indenture. If you want to have only part of the Security purchased
by the Company pursuant to Section 2.5(b)(ii) of the Declaration, state the
amount you elect to have purchased:
$
-----------------------
Date:
--------------------
Your Signature:
----------------------------------
(Sign exactly as your name appears
on the face of this Security)
Signature Guarantee
29
EXHIBIT B
[FORM OF FACE OF SUBORDINATED DEFERRABLE NOTE]
No. REGISTERED
------
CMS ENERGY CORPORATION
% SUBORDINATED DEFERRABLE NOTE DUE 2004
$
-----------
CMS ENERGY CORPORATION, a corporation duly organized and
existing under the laws of Michigan (herein called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay CMS Energy Trust III, or registered
assigns, the principal sum of Dollars on August 18, 2004, and to pay
interest on said principal sum from August 22, 2000, or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
quarterly in arrears on August 18, November 18, February 18 and May 18 of each
year (an "Interest Payment Date") commencing August 22, 2000, at the rate of o%
per annum until August 18, 2003, and at the Reset Rate thereafter, until the
principal hereof shall have become due and payable, and on any overdue principal
and premium, if any, and (without duplication and to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum compounded quarterly. Any deferred interest
shall accrue interest at the rate set forth in the Fourth Supplemental
Indenture. The amount of interest payable for any period will be computed (1)
for any full quarterly period on the basis of a 360-day year of twelve 30-day
months and (2) for any period shorter than a full quarterly period, on the basis
of a 30-day month and, for any period less than a month, on the basis of the
actual number of days elapsed per 30-day month. In the event that any date on
which interest is payable is not a Business Day, then payment of the interest
payable on such date will be made on the next day that is a Business Day (and
without any interest or other payment in respect of such delay), except that, if
such Business Day is in the next calendar year, then such payment will be made
on the preceding Business Day. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, referred to on the reverse side hereof, be paid to
the Holder in whose name this Security (or one or more Predecessor Securities as
defined in said Indenture) is
30
registered at the close of business on the Regular Record Date for such interest
installment, which, shall be the close of business on the Business Day preceding
such Interest Payment Date. Any such interest installment not punctually paid or
duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date, and may be paid to the Holder in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date to be fixed by the Trustee referred to on the reverse
side hereof for the payment of such defaulted interest, notice whereof shall be
given to the Holders of the Security not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Security may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture.
Payment of the principal of and premium, if any, and interest
on this Security will be made at the office or agency of the Trustee maintained
for that purpose in such coin or currency of the United States of America that
at the time of payment is legal tender for payment of public and private debts.
The Company may pay principal and interest by check payable in such money mailed
to the Holder's registered address or by wire transfer to a dollar account
designated by the Holder
Interest on the Securities is deferrable in accordance with
the terms of the Fourth Supplemental Indenture.
This Security is, to the extent provided in the Indenture, a
subordinated, unsecured obligation of the Company, subject in right to the
prior payment in full of all Senior Indebtedness (as such term is defined in the
Indenture).
Unless the Certificate of Authentication hereon has been
executed by or on behalf of the Trustee, this Security shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose. The
provisions of this Security are continued on the reverse side hereof, and such
continued provisions shall for all purposes have the same effect as though fully
set forth at this place.
31
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
CMS ENERGY CORPORATION
Dated: By:
---------------------------------
Name:
Title:
Attest:
-----------------------------
By:
---------------------------------
Name:
Title:
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series referred to in the
within- mentioned Indenture.
Dated: THE BANK OF NEW YORK,
as Trustee
By:
--------------------------------
Authorized Signatory
32
(FORM OF REVERSE OF SUBORDINATED DEFERRABLE NOTE)
CMS ENERGY CORPORATION
% SUBORDINATED DEFERRABLE NOTE DUE 2004
This Subordinated Deferrable Note is one of a duly authorized
series of securities of the Company (herein called the "Securities"), issued and
to be issued in one or more series under an Indenture, dated as of June 1, 1997,
as amended and supplemented (as amended and supplemented, the "Indenture"),
between the Company and The Bank of New York, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregate principal amount to $ .
All terms used in this Security that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
This Security is not subject to any sinking fund, nor may this
Security be redeemed at the option of the Company prior to the Maturity Date
except upon the occurrence of a Tax Event as described below.
The Indenture contains provisions for defeasance at any time
of the entire indebtedness of this Security upon compliance by the Company with
certain conditions set forth therein.
If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture.
If a Tax Event occurs and is continuing, the Company may, at
its option and upon not less than 30 nor more than 60 days' notice to the
Holders of the Securities, redeem the Securities in whole (but not in part)
within 90 days following the occurrence of such Tax Event at the applicable
Redemption Price. The Redemption Price shall be paid prior to 12:00 noon, New
York City time, on the Tax Event Redemption Date, by check or wire transfer in
immediately available funds at such place and to such account as may be
designated by each such Holder.
In a Cash Merger Event occurs, then the Company shall redeem
33
Subordinated Notes as set forth in the Fourth Supplemental Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities at the time of all series to be
affected (voting as a class). The Indenture also contains provisions permitting
the Holders of a majority in aggregate principal amount of the Outstanding
Securities of each series at the time, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest, if any, on this Security at the times, place and
rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of a Security of the series of which
this Security is a part is registrable in the Security Register, upon surrender
of this Security for registration of transfer at the office or agency of the
Company in any place where the principal of and premium, if any, and interest,
if any, on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of the series of which this Security is a part
are issuable only in registered form without coupons in denominations of $25 and
in integral multiples thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series
and of like tenor of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
34
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Holder in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Security shall be governed by and construed in accordance
with the laws of the State of Michigan.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
