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EXHIBIT 4(e)
SEVENTY-FOURTH SUPPLEMENTAL INDENTURE
Providing among other things for
FIRST MORTGAGE BONDS,
____% Senior Secured Insured Quarterly Notes due October 1, 2028
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Dated as of October ___, 1998
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CONSUMERS ENERGY COMPANY
TO
THE CHASE MANHATTAN BANK,
TRUSTEE
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SEVENTY-FOURTH SUPPLEMENTAL INDENTURE, dated as of October ___, 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 212 West Michigan Avenue, in Jackson,
Jackson County, Michigan 49201, 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 450 W. 33rd Street, in the Borough of
Manhattan, The City of New York, 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, as amended and supplemented, ("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 Secured Insured
Quarterly Notes due October 1, 2028 each of which bonds shall also bear the
descriptive title "First Mortgage Bond" (hereinafter provided for and
hereinafter sometimes referred to as the "Senior IQ Note 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 October
1, 2028; and
WHEREAS, the Senior IQ Note Bonds shall be issued to the Senior Note
Trustee in connection with the issuance by the Company of its ___% Senior
Secured Insured Quarterly Notes due October 1, 2028, (the "Notes"); and
WHEREAS each of the registered bonds without coupons of the Senior IQ
Note 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 IQ NOTE 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 SECURED INSURED QUARTERLY NOTES
DUE OCTOBER 1, 2028
No. $
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 One Hundred Fifty Million
Dollars on October 1, 2028, and to pay to the registered holder hereof interest
on said sum from the latest quarterly 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 January
1, 1999, in which case from October ___, 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 quarterly interest payment date to which interest has
been paid on the bonds of this series, or if such interest payment date is
January 1, 1999, from October ___, 1998), at the rate per annum of ___% until
the principal hereof shall have become due and payable, payable on each January
1, April 1, July 1 and October 1 in each year, commencing January 1, 1999.
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 Secured Insured Quarterly Notes due October 1, 2028 (the "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
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 Notes shall constitute payments on this bond as further
provided herein and in the supplemental indenture pursuant to which this bond
has been issued (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.
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
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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: By
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Its
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Attest:
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Secretary
[FORM OF TRUSTEE'S AUTHENTICATION CERTIFICATE]
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
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Authorized Officer
[REVERSE]
CONSUMERS ENERGY COMPANY
FIRST MORTGAGE BOND, ____% SENIOR SECURED INSURED QUARTERLY NOTES
DUE OCTOBER 1, 2028
The interest payable on any January 1, April 1, July 1 and October 1
(each "Interest Payment Date") 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
on the fifteenth calendar day of the month preceding the month in which the
respective Interest Payment Date occurs ("Record Date"), or, if such Record Date
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.
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Upon any payment of the principal of, premium, if any, and interest on,
all or any portion of the Notes, 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, Senior IQ
Note Bonds in a principal amount equal to the principal amount of such Notes and
having both a corresponding maturity date and interest rate shall, to the extent
of such payment of principal, premium, if any, 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 IQ Note 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 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 the 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 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
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(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 not redeemable except on the respective dates, in the
respective principal amounts and for the respective redemption prices which
correspond to the redemption dates for, the principal amounts to be redeemed of,
and the redemption prices for, the Notes, and except 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.
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 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 IQ Note 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;
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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
$150,000,000 principal amount of Senior IQ Note 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
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
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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 IQ
Note 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. Senior IQ Note Bonds shall be issued in
the aggregate principal amount of $150,000,000, shall mature on October 1, 2028
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 IQ
Note 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. Senior IQ Note Bonds shall bear
interest at a rate of ____% per annum until the principal thereof shall have
become due and payable, payable quarterly on January 1, April 1, July 1 and
October 1 in each year commencing January 1, 1999. The principal of and the
premium, if any, and the interest on said bonds 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 of the principal of, premium, if any, and interest on,
all or any portion of the Notes 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, Senior IQ
Note Bonds in a principal amount equal to the principal amount of such Notes and
having both a corresponding maturity date and interest rate shall, to the extent
of such payment of principal, premium, if any, 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 IQ Note 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 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 IQ Note 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 Notes and any other series of senior notes from time to time
outstanding under the Senior Note Indenture.
The Senior IQ Note 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 IQ Note 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
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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. Senior IQ Note Bonds shall not be redeemable except on the
respective dates, in the respective principal amounts and for the respective
redemption prices which correspond to the redemption dates for, the principal
amounts to be redeemed of, and the redemption prices for, the Notes, and except
as set forth in Section 3 hereof.
In the event the Company redeems any Notes prior to maturity in
accordance with the provisions of the Senior Note Indenture or in accordance
with the provisions of the Third Supplemental Indenture to the Senior Note
Indenture dated as of October ___, 1998 (the "Third Supplemental Indenture to
the Senior Note Indenture"), the Senior Note Trustee shall on the same date
deliver to the Company the Senior IQ Note Bonds in principal amounts
corresponding to the Notes so redeemed, as provided in Section 4.08 of the
Senior Note Indenture. The Company agrees to give the Senior Note Trustee notice
of any such redemption of the Notes on or before the date fixed for any such
redemption.
In the event a Beneficial Owner (as such term is defined in the Third
Supplemental Indenture to the Senior Note Trust Indenture) redeems any Notes
prior to maturity in accordance with the provisions of the Third Supplemental
Indenture to the Senior Note Indenture, the Senior Note Trustee shall on the
same date deliver to the Company the Senior IQ Note Bonds in principal amounts
corresponding to the Notes so redeemed, as provided in Section 4.08 of the
Senior Note Indenture. The Company agrees to give the Senior Note Trustee notice
of any such redemption of the Notes on or before the date fixed for any such
redemption.
Senior IQ Note 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 Notes, the Senior IQ Note 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 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 Senior IQ Note
Bonds. The Company waives any right it may have to prior notice of such
redemption under the Indenture. Upon surrender of the Senior IQ Note Bonds by
the Senior Note Trustee to the Trustee, the Senior IQ Note 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 the 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 IQ Note 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.
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SECTION 6. The Company reserves the right, without any consent, vote or
other action by the holder of the Senior IQ Note Bonds or the holders of any
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 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.
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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.
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 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.
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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 IQ
Note Bonds or the date fixed for redemption or repayment of the Senior IQ Note
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 IQ Note 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.
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.
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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.
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 wells
and well lines (but not including natural gas, oil and minerals), the gas
gathering system, the underground gas storage rights, the
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underground gas storage wells 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, Wayne 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.
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.
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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, 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.)
[Insert legal descriptions for land in each county.]
SECTION 9. 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
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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
-----------------------------------
Attest:
- ----------------------------
Signed, sealed and delivered
by CONSUMERS ENERGY COMPANY
in the presence of
- ----------------------------
- ----------------------------
STATE OF MICHIGAN )
ss.
COUNTY OF JACKSON )
The foregoing instrument was acknowledged before me this
______ day of ______________, 1998, by _______________________________,
_________________________________________________ of CONSUMERS ENERGY COMPANY, a
Michigan corporation, on behalf of the corporation.
----------------------------------------
, Notary Public
[Seal] Jackson County, Michigan
My Commission Expires:
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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 ________________, 1998, by _____________________________________,
a Vice President of THE CHASE MANHATTAN BANK, a New York corporation, on behalf
of the corporation.
--------------------------------------
Notary Public
New York County, New York
My Commission Expires:
Prepared by: When recorded, return to:
Kimberly A. Connelly Consumers Energy Company
212 West Michigan Avenue General Services Real Estate Department
Jackson, MI 49201 Attn: Nancy P. Fisher, P-21-410B
1945 W. Parnall Road
Jackson, MI 49201
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