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EXHIBIT 4(e)(ii)
FOURTEENTH SUPPLEMENTAL INDENTURE
DATED AS OF JULY 17, 2003
This Fourteenth Supplemental Indenture, dated as of the 17th day
of
July, 2003 between CMS Energy Corporation,
a corporation duly organized and
existing under the laws of the State of
Michigan (hereinafter called the
"Issuer") and having its principal office
at One Energy Plaza, Jackson, Michigan
49201, and Bank One Trust Company, N.A., a
national banking association
(hereinafter called the "Trustee") and
having its Corporate Trust Office at 1
BankOne Plaza, Mail Code ILI-0823, Chicago,
IL 60670.
WITNESSETH:
WHEREAS,
the Issuer and the Trustee (successor to NBD Bank, National
Association) entered into an Indenture,
dated as of September 15, 1992 (the
"Original Indenture"), pursuant to which
one or more series of debt securities
of the Issuer (the "Securities") may be
issued from time to time; and
WHEREAS, Section 2.3 of the Original Indenture permits the terms of
any
series of Securities to be established in
an indenture supplemental to the
Original Indenture; and
WHEREAS, Section 8.1(e) of the Original Indenture provides that
a
supplemental indenture may be entered into
by the Issuer and the Trustee without
the consent of any Holders (as defined in
the Original Indenture) of the
Securities to establish the form and terms
of the Securities of any series; and
WHEREAS, the Issuer has requested the Trustee to join with it in
the
execution and delivery of this Fourteenth
Supplemental Indenture in order to
supplement and amend the Original Indenture
by, among other things, establishing
the form and terms of a series of
Securities to be known as the Issuer's "7.75%
Senior Notes due 2010" (the "2010 Notes"),
providing for the issuance of the
2010 Notes and amending and adding certain
provisions thereof for the benefit of
the Holders of the 2010 Notes; and
WHEREAS, the Issuer and the Trustee desire to enter into this
Fourteenth Supplemental Indenture for the
purposes set forth in Sections 2.3 and
8.1(e) of the Original Indenture as
referred to above; and
WHEREAS, the Issuer has furnished the Trustee with a copy of
the
resolutions of its Board of Directors
certified by its Secretary or Assistant
Secretary authorizing the execution of this
Fourteenth Supplemental Indenture;
and
WHEREAS, all things necessary to make this Fourteenth
Supplemental
Indenture a valid agreement of the Issuer
and the Trustee and a valid supplement
to the Original Indenture have been
done;
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NOW, THEREFORE, for and in consideration of the premises and
the
purchase of the 2010 Notes to be issued
hereunder by holders thereof, the Issuer
and the Trustee mutually covenant and
agree, for the equal and proportionate
benefit of the respective holders from time
to time of the 2010 Notes, as
follows:
ARTICLE I
STANDARD PROVISIONS; DEFINITIONS
SECTION 1.01. Standard Provisions. The Original Indenture together
with
this Fourteenth Supplemental Indenture and
all previous indentures supplemental
thereto entered into pursuant to the
applicable terms thereof are hereinafter
sometimes collectively referred to as the
"Indenture." All capitalized terms
which are used herein and not otherwise
defined herein are defined in the
Indenture and are used herein with the same
meanings as in the Indenture.
SECTION 1.02. Definitions.
(a) The
following terms have the meanings set forth in the
Sections hereof set forth below:
<TABLE>
<CAPTION>
Term
Section
---------------------------------
--------------
<S>
<C>
Additional Amounts
2.04
Applicable Premium
2.04
Application Period
4.06
Asset Sale
4.06
Change in Control Date
3.01
Change in Control Purchase Notice
3.01(b)
Change in Control Purchase Price
3.01
Company
2.03
Depositary
Article VI
DTC
2.03
Events of Default
5.01
Excess Proceeds
4.06
Global Note
Article VI
Indenture
1.01; 2.04
Interest Payment Date
2.03
issue
4.04(a)
Issuer
Preamble; 2.03
Lien
4.02(a)
Maturity
2.03
Original Indenture
Recitals
Original Issue Date
2.03
Place of Payment
2.03
Purchase Date
3.01(a)(iii)
Record Date
2.03
Required Repurchase
3.01
Required Repurchase Notice
3.01(a)
</TABLE>
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<TABLE>
<CAPTION>
Term
Section
---------------------------------
--------------
<S>
<C>
Restricted Payment
4.05(a)
Rule 144A
2.03
Securities
Recitals
Securities Act
2.03
Treasury Rate
2.04
Trustee
Preamble; 2.04
2010 Notes
Recitals; 2.04
</TABLE>
(b) Section
1.1 of the Original Indenture is amended to insert the
new definitions applicable to the 2010
Notes, in the appropriate alphabetical
sequence, as follows:
"Amortization Expense" means, for any period, amounts recognized
during
such period as amortization of capital
leases, depletion, nuclear fuel, goodwill
and assets classified as intangible assets
in accordance with generally accepted
accounting principles.
"Average Life" means, as of the date of determination, with respect
to
any Indebtedness, the quotient obtained by
dividing (i) the sum of the products
of (x) the number of years from the date of
determination to the dates of each
successive scheduled principal payment of
such Indebtedness and (y) the amount
of such principal payment by (ii) the sum
of all such principal payments.
"Capital Lease Obligation" of a Person means any obligation that
is
required to be classified and accounted for
as a capital lease on the face of a
balance sheet of such Person prepared in
accordance with generally accepted
accounting principles; the amount of such
obligation shall be the capitalized
amount thereof, determined in accordance
with generally accepted accounting
principles; the stated maturity thereof
shall be the date of the last payment of
rent or any other amount due under such
lease prior to the first date upon which
such lease may be terminated by the lessee
without payment of a penalty; and
such obligation shall be deemed secured by
a Lien on any property or assets to
which such lease relates.
"Capital Stock" means any and all shares, interests, rights to
purchase, warrants, options, participations
or other equivalents of or interests
in (however designated) corporate stock,
including any Preferred Stock or Letter
Stock; provided that Hybrid Preferred
Securities shall not be considered Capital
Stock for purposes of this definition.
"Change in Control" means an event or series of events by which:
(i)
the Issuer ceases to own beneficially,
directly or indirectly, at least 80% of
the total voting power of all classes of
Capital Stock then outstanding of
Consumers (whether arising from issuance of
securities of the Issuer or
Consumers, any direct or indirect transfer
of securities by the Issuer or
Consumers, any merger, consolidation,
liquidation or dissolution of the Issuer
or Consumers or otherwise); (ii) any
"person" or "group" (as such terms are used
in Sections 13(d) and 14(d) of the Exchange
Act) becomes the
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"beneficial owner" (as such term is used in
Rules 13d-3 and 13d-5 under the
Exchange Act, except that a person or group
shall be deemed to have "beneficial
ownership" of all shares that such person
or group has the right to acquire,
whether such right is exercisable
immediately or only after the passage of
time), directly or indirectly, of more than
35% of the Voting Stock of the
Issuer; or (iii) the Issuer consolidates
with or merges into another corporation
or directly or indirectly conveys,
transfers or leases all or substantially all
of its assets to any Person, or any
corporation consolidates with or merges into
the Issuer, in either event pursuant to a
transaction in which the outstanding
Voting Stock of the Issuer is changed into
or exchanged for cash, securities, or
other property, other than any such
transaction in which (A) the outstanding
Voting Stock of the Issuer is changed into
or exchanged for Voting Stock of the
surviving corporation and (B) the holders
of the Voting Stock of the Issuer
immediately prior to such transaction
retain, directly or indirectly,
substantially proportionate ownership of
the Voting Stock of the surviving
corporation immediately after such
transaction.
"CMS Electric and Gas" means CMS Electric and Gas Company, a
Michigan
corporation and wholly-owned subsidiary of
Enterprises.
"CMS Gas Transmission" means CMS Gas Transmission Company
(formerly
known as CMS Gas Transmission and Storage
Company), a Michigan corporation and
wholly-owned subsidiary of Enterprises.
"CMS Generation" means CMS Generation Co., a Michigan corporation
and
wholly-owned subsidiary of Enterprises.
"CMS MST" means CMS Marketing, Services and Trading Company, a
Michigan
corporation and wholly-owned subsidiary of
Enterprises.
"Consolidated Assets" means, at any date of determination, the
aggregate assets of the Issuer and its
Consolidated Subsidiaries determined on a
consolidated basis in accordance with
generally accepted accounting principles.
"Consolidated Coverage Ratio" with respect to any period means
the
ratio of (i) the aggregate amount of
Operating Cash Flow for such period to (ii)
the aggregate amount of Consolidated
Interest Expense for such period.
"Consolidated Current Liabilities" means, for any period, the
aggregate
amount of liabilities of the Issuer and its
Consolidated Subsidiaries which may
properly be classified as current
liabilities (including taxes accrued as
estimated), after (i) eliminating all
inter-company items between the Issuer and
any Consolidated Subsidiary and (ii)
deducting all current maturities of
long-term Indebtedness, all as determined
in accordance with generally accepted
accounting principles.
"Consolidated Indebtedness" means, at any date of determination,
the
aggregate Indebtedness of the Issuer and
its Consolidated Subsidiaries
determined on a consolidated basis in
accordance with generally accepted
accounting principles; provided that
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Consolidated Indebtedness shall not include
any subordinated debt owned by any
Hybrid Preferred Securities Subsidiary.
"Consolidated Interest Expense" means, for any period, the
total
interest expense in respect of Consolidated
Indebtedness of the Issuer and its
Consolidated Subsidiaries, including,
without duplication, (i) interest expense
attributable to capital leases, (ii)
amortization of debt discount, (iii)
capitalized interest, (iv) cash and noncash
interest payments, (v) commissions,
discounts and other fees and charges owed
with respect to letters of credit and
bankers' acceptance financing, (vi) net
costs under Interest Rate Protection
Agreements (including amortization of
discount) and (vii) interest expense in
respect of obligations of other Persons
deemed to be Indebtedness of the Issuer
or any Consolidated Subsidiaries under
clause (v) or (vi) of the definition of
Indebtedness, provided, however, that
Consolidated Interest Expense shall
exclude (A) any costs otherwise included in
interest expense recognized on early
retirement of debt and (B) any interest
expense in respect of any Indebtedness
of any Subsidiary of Consumers, CMS
Generation, CMS Electric and Gas, CMS Gas
Transmission, CMS MST or any other
Designated Enterprises Subsidiary, provided
that such Indebtedness is without recourse
to any assets of the Issuer,
Consumers, Enterprises, CMS Generation, CMS
Electric and Gas, CMS Gas
Transmission, CMS MST or any other
Designated Enterprises Subsidiary.
"Consolidated Net Income" means, for any period, the net income of
the
Issuer and its Consolidated Subsidiaries
determined on a consolidated basis in
accordance with generally accepted
accounting principles; provided, however,
that there shall not be included in such
Consolidated Net Income:
(i) any net
income of any Person if such Person is not a
Subsidiary, except that (A) the Issuer's
equity in the net income of any such
Person for such period shall be included in
such Consolidated Net Income up to
the aggregate amount of cash actually
distributed by such Person during such
period to the Issuer or a Consolidated
Subsidiary as a dividend or other
distribution and (B) the Issuer's equity in
a net loss of any such Person for
such period shall be included in
determining such Consolidated Net Income;
(ii)
any net income of any Person acquired by the Issuer or a
Subsidiary in a pooling of interests
transaction for any period prior to the
date of such acquisition;
(iii) any
gain or loss realized upon the sale or other disposition
of any property, plant or equipment of the
Issuer or its Consolidated
Subsidiaries which is not sold or otherwise
disposed of in the ordinary course
of business and any gain or loss realized
upon the sale or other disposition of
any Capital Stock of any Person; and
(iv)
any net income of any Subsidiary of Consumers, CMS Generation,
CMS Electric and Gas, CMS Gas Transmission,
CMS MST or any other Designated
Enterprises Subsidiary whose interest
expense is excluded from Consolidated
Interest Expense, provided, however, that
for purposes of this subsection (iv),
any cash, dividends or distributions of any
such Subsidiary to the Issuer shall
be included in calculating Consolidated Net
Income.
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<PAGE>
"Consolidated Net Tangible Assets" means, for any period, the
total
amount of assets (less accumulated
depreciation or amortization, allowances for
doubtful receivables, other applicable
reserves and other properly deductible
items) as set forth on the most recently
available quarterly or annual
consolidated balance sheet of the Issuer
and its Consolidated Subsidiaries,
determined on a consolidated basis in
accordance with generally accepted
accounting principles, and after giving
effect to purchase accounting and after
deducting therefrom, to the extent
otherwise included, the amounts of: (i)
Consolidated Current Liabilities; (ii)
minority interests in Consolidated
Subsidiaries held by Persons other than the
Issuer or a Restricted Subsidiary;
(iii) excess of cost over fair value of
assets of businesses acquired, as
determined in good faith by the Board of
Directors as evidenced by Board of
Directors resolutions; (iv) any revaluation
or other write-up in value of assets
subsequent to December 31, 1996, as a
result of a change in the method of
valuation in accordance with generally
accepted accounting principles; (v)
unamortized debt discount and expenses and
other unamortized deferred charges,
goodwill, patents, trademarks, service
marks, trade names, copyrights, licenses,
organization or developmental expenses and
other intangible items; (vi) treasury
stock; and (vii) any cash set apart and
held in a sinking or other analogous
fund established for the purpose of
redemption or other retirement of Capital
Stock to the extent such obligation is not
reflected in Consolidated Current
Liabilities.
"Consolidated Net Worth" of any Person means the total of the
amounts
shown on the consolidated balance sheet of
such Person and its consolidated
subsidiaries, determined on a consolidated
basis in accordance with generally
accepted accounting principles, as of any
date selected by such Person not more
than 90 days prior to the taking of any
action for the purpose of which the
determination is being made (and adjusted
for any material events since such
date), as (i) the par or stated value of
all outstanding Capital Stock plus (ii)
paid-in capital or capital surplus relating
to such Capital Stock plus (iii) any
retained earnings or earned surplus less
(A) any accumulated deficit, (B) any
amounts attributable to Redeemable Stock
and (C) any amounts attributable to
Exchangeable Stock.
"Consolidated Subsidiary" means any Subsidiary whose accounts are
or
are required to be consolidated with the
accounts of the Issuer in accordance
with generally accepted accounting
principles.
"Consumers" means Consumers Energy Company, a Michigan corporation,
all
of whose common stock is on the date hereof
owned by the Issuer.
"Designated Enterprises Subsidiary" means any wholly-owned
subsidiary
of Enterprises formed after the date of
this Fourteenth Supplemental Indenture
which is designated a Designated
Enterprises Subsidiary by the Board of
Directors.
"Enterprises" means CMS Enterprises Company, a Michigan corporation
and
wholly-owned subsidiary of the Issuer.
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"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchangeable Stock" means any Capital Stock of a corporation that
is
exchangeable or convertible into another
security (other than Capital Stock of
such corporation that is neither
Exchangeable Stock or Redeemable Stock).
"Hybrid Preferred Securities" means any preferred securities issued
by
a Hybrid Preferred Securities Subsidiary,
where such preferred securities have
the following characteristics:
(i) such
Hybrid Preferred Securities Subsidiary lends
substantially all of the proceeds from the
issuance of such preferred securities
to the Issuer or Consumers in exchange for
subordinated debt issued by the
Issuer or Consumers respectively;
(ii)
such preferred securities contain terms providing for the
deferral of distributions corresponding to
provisions providing for the deferral
of interest payments on such subordinated
debt; and
(iii) the
Issuer or Consumers (as the case may be) makes periodic
interest payments on such subordinated
debt, which interest payments are in turn
used by the Hybrid Preferred Securities
Subsidiary to make corresponding
payments to the holders of the Hybrid
Preferred Securities.
"Hybrid Preferred Securities Subsidiary" means any business trust
(or
similar entity) (i) all of the common
equity interest of which is owned (either
directly or indirectly through one or more
wholly-owned Subsidiaries of the
Issuer or Consumers) at all times by the
Issuer or Consumers, (ii) that has been
formed for the purpose of issuing Hybrid
Preferred Securities and (iii)
substantially all of the assets of which
consist at all times solely of
subordinated debt issued by the Issuer or
Consumers (as the case may be) and
payments made from time to time on such
subordinated debt.
"Indebtedness" of any Person means, without duplication:
(i) the
principal of and premium (if any) in respect of (A)
indebtedness of such Person for money
borrowed and (B) indebtedness evidenced by
notes, debentures, bonds or other similar
instruments for the payment of which
such Person is responsible or liable;
(ii)
all Capital Lease Obligations of such Person;
(iii) all
obligations of such Person issued or assumed as the
deferred purchase price of property, all
conditional sale obligations and all
obligations under any title retention
agreement (but excluding trade accounts
payable arising in the ordinary course of
business);
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(iv)
all obligations of such Person for the reimbursement of any
obligor on any letter of credit, bankers'
acceptance or similar credit
transaction (other than obligations with
respect to letters of credit securing
obligations (other than obligations
described in clauses (i) through (iii)
above) entered into in the ordinary course
of business of such Person to the
extent such letters of credit are not drawn
upon or, if and to the extent drawn
upon, such drawing is reimbursed no later
than the third Business Day following
receipt by such Person of a demand for
reimbursement following payment on the
letter of credit);
(v) all
obligations of the type referred to in clauses (i) through
(iv) above of other Persons and all
dividends of other Persons for the payment
of which, in either case, such Person is
responsible or liable as obligor,
guarantor or otherwise; and
(vi)
all obligations of the type referred to in clauses (i) through
(v) above of other Persons secured by any
Lien on any property or asset of such
Person (whether or not such obligation is
assumed by such Person), the amount of
such obligation being deemed to be the
lesser of the value of such property or
assets or the amount of the obligation so
secured.
"Initial Purchasers" has the meaning ascribed to such term in
the
Purchase Agreement.
"Interest Rate Protection Agreement" means any interest rate
swap
agreement, interest rate cap agreement or
other financial agreement or
arrangement designed to protect the Issuer
or any Subsidiary against
fluctuations in interest rates.
"Letter Stock", as applied to the Capital Stock of any
corporation,
means Capital Stock of any class or classes
(however designated) which is
intended to reflect the separate
performance of certain of the businesses or
operations conducted by such corporation or
any of its subsidiaries.
"Net Cash Proceeds" means, (a) with respect to any Asset Sale,
the
aggregate proceeds of such Asset Sale
including the fair market value (as
determined by the Board of Directors and
net of any associated debt and of any
consideration other than Capital Stock
received in return) of property other
than cash, received by the Issuer, net of
(i) brokerage commissions and other
fees and expenses (including fees and
expenses of counsel and investment
bankers) related to such Asset Sale, (ii)
provisions for all taxes (whether or
not such taxes will actually be paid or are
payable) as a result of such Asset
Sale without regard to the consolidated
results of operations of the Issuer and
its Restricted Subsidiaries, taken as a
whole, (iii) payments made to repay
Indebtedness or any other obligation
outstanding at the time of such Asset Sale
that either (A) is secured by a Lien on the
property or assets sold or (B) is
required to be paid as a result of such
sale and (iv) appropriate amounts to be
provided by the Issuer or any Restricted
Subsidiary of the Issuer as a reserve
against any liabilities associated with
such Asset Sale including, without
limitation, pension and other
post-employment benefit liabilities, liabilities
related to environmental matters and
liabilities under any indemnification
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obligations associated with such Asset
Sale, all as determined in conformity
with generally accepted accounting
principles and (b) with respect to any
issuance or sale or contribution in respect
of Capital Stock, the aggregate
proceeds of such issuance, sale or
contribution, including the fair market value
(as determined by the Board of Directors
and net of any associated debt and of
any consideration other than Capital Stock
received in return) of property other
than cash, received by the Issuer, net of
attorneys' fees, accountants' fees,
underwriters' or placement agents' fees,
discounts or commissions and brokerage,
consultant and other fees incurred in
connection with such issuance or sale and
net of taxes paid or payable as a result
thereof, provided, however, that if
such fair market value as determined by the
Board of Directors of property other
than cash is greater than $25 million, the
value thereof shall be based upon an
opinion from an independent nationally
recognized firm experienced in the
appraisal or similar review of similar
types of transactions.
"Non-Convertible Capital Stock" means, with respect to any
corporation,
any non-convertible Capital Stock of such
corporation and any Capital Stock of
such corporation convertible solely into
non-convertible Capital Stock other
than Preferred Stock of such corporation;
provided, however, that
Non-Convertible Capital Stock shall not
include any Redeemable Stock or
Exchangeable Stock.
"Operating Cash Flow" means, for any period, with respect to the
Issuer
and its Consolidated Subsidiaries, the
aggregate amount of Consolidated Net
Income after adding thereto Consolidated
Interest Expense (adjusted to include
costs recognized on early retirement of
debt), income taxes, depreciation
expense, Amortization Expense and any
noncash amortization of debt issuance
costs, any nonrecurring, noncash charges to
earnings and any negative accretion
recognition.
"Other Rating Agency" means any one of Fitch, Inc. or Moody's
Investors
Service, Inc., and any successor to any of
these organizations which is a
nationally recognized statistical rating
organization.
"Paying Agent" means any Person authorized by the Issuer to pay
the
principal of (and premium, if any) or
interest on any of the 2010 Notes on
behalf of the Issuer. Initially, the Paying
Agent shall be the Trustee.
"Predecessor 2010 Note" of any particular 2010 Note means every
previous 2010 Note evidencing all or a
portion of the same debt as that
evidenced by such particular 2010 Note;
and, for the purposes of the definition,
any 2010 Note authenticated and delivered
under Section 2.9 of the Indenture in
exchange for or in lieu of a mutilated,
destroyed, lost or stolen 2010 Note
shall be deemed to evidence the same debt
as the mutilated, destroyed, lost or
stolen 2010 Note.
"Preferred Stock", as applied to the Capital Stock of any
corporation,
means Capital Stock of any class or classes
(however designated) that is
preferred as to the payment of dividends,
or as to the distribution of assets
upon any voluntary or involuntary
liquidation or dissolution of such
corporation, over shares of Capital Stock
of
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any other class of such corporation;
provided that Hybrid Preferred
Securities shall not be considered
Preferred Stock for purposes of this
definition.
"Purchase Agreement" means that certain Purchase Agreement dated
July
9, 2003 among the Issuer and the Initial
Purchasers which provides for the sale
by the Issuer to the Initial Purchasers of
the 2010 Notes.
"Redeemable Stock" means any Capital Stock that by its terms or
otherwise is required to be redeemed prior
to the first anniversary of the
Stated Maturity of the outstanding 2010
Notes or is redeemable at the option of
the holder thereof at any time prior to the
first anniversary of the Stated
Maturity of the outstanding 2010 Notes.
"Registrable Securities" has the meaning ascribed to such term in
the
Registration Rights Agreement.
"Registration Default" has the meaning ascribed to such term in
the
Registration Rights Agreement.
"Registration Rights Agreement" means that certain Registration
Rights
Agreement, dated as of July 17, 2003, by
and among the Issuer and the Initial
Purchasers.
"Regulation S" means Regulation S under the Securities Act.
"Restricted Subsidiary" means any Subsidiary (other than Consumers
and
its Subsidiaries) of the Issuer which, as
of the date of the Issuer's most
recent quarterly consolidated balance
sheet, constituted at least 10% of the
total Consolidated Assets of the Issuer and
its Consolidated Subsidiaries and
any other Subsidiary which from time to
time is designated a Restricted
Subsidiary by the Board of Directors;
provided that no Subsidiary may be
designated a Restricted Subsidiary if,
immediately after giving effect thereto,
an Event of Default or event that, with the
lapse of time or giving of notice or
both, would constitute an Event of Default
would exist or the Issuer and its
Restricted Subsidiaries could not incur at
least one dollar of additional
Indebtedness under Section 4.04 hereof, and
(i) any such Subsidiary so
designated as a Restricted Subsidiary must
be organized under the laws of the
United States or any State thereof, (ii)
more than 80% of the Voting Stock of
such Subsidiary must be owned of record and
beneficially by the Issuer or a
Restricted Subsidiary and (iii) such
Restricted Subsidiary must be a
Consolidated Subsidiary.
"Standard & Poor's" means Standard & Poor's Ratings Group,
a division
of The McGraw-Hill Companies, Inc., and any
successor thereto which is a
nationally recognized statistical rating
organization, or if such entity shall
cease to rate the 2010 Notes or shall cease
to exist and there shall be no such
successor thereto, any other nationally
recognized statistical rating
organization selected by the Issuer which
is acceptable to the Trustee.
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"Subordinated Indebtedness" means any Indebtedness of the
Issuer
(whether outstanding on the date of this
Fourteenth Supplemental Indenture or
thereafter incurred) which is contractually
subordinated or junior in right of
payment to the 2010 Notes.
"Support Obligations" means, for any Person, without duplication,
any
financial obligation, contingent or
otherwise, of such Person guaranteeing or
otherwise supporting any debt or other
obligation of any other Person in any
manner, whether directly or indirectly, and
including, without limitation, any
obligation of such Person, direct or
indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or
payment of) such debt or to purchase
(or to advance or supply funds for the
purchase of) any security for the payment
of such debt, (ii) to purchase property,
securities or services for the purpose
of assuring the owner of such debt of the
payment of such debt, (iii) to
maintain working capital, equity capital,
available cash or other financial
statement condition of the primary obligor
so as to enable the primary obligor
to pay such debt, (iv) to provide equity
capital under or in respect of equity
subscription arrangements (to the extent
that such obligation to provide equity
capital does not otherwise constitute
debt), or (v) to perform, or arrange for
the performance of, any non-monetary
obligations or non-funded debt payment
obligations of the primary obligor.
"Tax Sharing Agreement" means the Amended and Restated Agreement
for
the Allocation of Income Tax Liabilities
and Benefits, dated January 1, 1994, as
amended or supplemented from time to time,
by and among Issuer, each of the
members of the Consolidated Group (as
defined therein), and each of the
corporations that become members of the
Consolidated Group.
"Voting Stock" means securities of any class or classes the holders
of
which are ordinarily, in the absence of
contingencies, entitled to vote for
corporate directors (or persons performing
similar functions).
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ARTICLE II
DESIGNATION AND TERMS OF THE 2010 NOTES; FORMS
SECTION 2.01. Establishment of Series.
(a) There is
hereby created a series of Securities to be known and
designated as the "7.75% Senior Notes due
2010" to be issued in aggregate
principal amount of $300,000,000.
Additional Securities, without limitation as
to amount, having substantially the same
terms as the 2010 Notes (except a
different issue date, issue price and
bearing interest from the last Interest
Payment Date to which interest has been
paid or duly provided for on the 2010
Notes, and, if no interest has been paid,
from July 17, 2003), may also be
issued by the Issuer pursuant to the
Indenture without the consent of the
existing Holders of the 2010 Notes. Such
additional Securities shall be part of
the same series as the 2010 Notes. The
Stated Maturity of the 2010 Notes is
August 1, 2010; the principal amount of the
2010 Notes shall be payable on such
date unless the 2010 Notes are earlier
redeemed or purchased in accordance with
the terms of the Indenture.
(b) The 2010
Notes will bear interest from the Original Issue
Date, or from the most recent date to which
interest has been paid or duly
provided for, at the rate of 7.75% per
annum stated therein until the principal
thereof is paid or made available for
payment. Interest will be payable
semiannually on each Interest Payment Date
and at Maturity, as provided in the
form of the 2010 Note in Section 2.03
hereof.
(c) The Record
Date referred to in Section 2.3(f)(4) of the
Indenture for the payment of the interest
on any 2010 Note payable on any
Interest Payment Date (other than at
Maturity) shall be the 15th day preceding
the relevant Interest Payment Date (whether
or not a Business Day) except that
the Record Date for interest payable at
Maturity shall be the date of Maturity.
(d) The
payment of the principal of, premium (if any) and interest
on the 2010 Notes shall not be secured by a
security interest in any property.
(e) The 2010
Notes shall be redeemable at the option of the
Issuer, in whole or in part, at any time
and from time to time, or not less than
30 days notice at a redemption price equal
to 100% of the principal amount of
such 2010 Notes being redeemed plus the
Applicable Premium, if any, thereon at
the time of redemption, together with
accrued interest, if any, thereon to the
redemption date. In no event will the
redemption price ever be less than 100% of
the principal amount of the 2010 Notes plus
accrued interest to the redemption
date. The 2010 Notes shall be purchased by
the Issuer at the option of the
Holders thereof as provided in Article III
hereof.
(f) The 2010
Notes shall not be convertible.
(g) The 2010
Notes will not be subordinated to the payment of
Senior Debt.
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(h) The Issuer
will not pay any additional amounts on the 2010
Notes held by a Person who is not a U.S.
person (as defined in Regulation S) in
respect of any tax, assessment or
government charge withheld or deducted.
(i) The events
specified in Events of Default with respect to the
2010 Notes shall include the events
specified in Article V of this Fourteenth
Supplemental Indenture. In addition to the
covenants set forth in Article Three
of the Original Indenture, the Holders of
the 2010 Notes shall have the benefit
of the covenants of the Issuer set forth in
this Fourteenth Supplemental
Indenture.
SECTION 2.02. Forms Generally. The 2010 Notes and Trustee's
certificates of authentication shall be in
substantially the form set forth in
this Article II, with such appropriate
insertions, omissions, substitutions and
other variations as are required or
permitted by the Indenture, and may have
such letters, numbers or other marks of
identification and such legends or
endorsements placed thereon as may be
required to comply with the rules of any
securities exchange or as may, consistently
herewith, be determined by the
officers executing such 2010 Notes, as
evidenced by their execution thereof.
The definitive 2010 Notes shall be printed, lithographed or
engraved on
steel engraved borders or may be produced
in any other manner, all as determined
by the officers executing such 2010 Notes,
as evidenced by their execution
thereof.
SECTION 2.03. Form of Face of 2010 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 SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED
IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE 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.
Unless this Global 2010 Note is presented by an authorized
representative of The Depository Trust
Company, a New York corporation ("DTC"),
to CMS Energy Corporation or its agent for
registration of transfer, exchange or
payment, and any certificate issued is
registered in the name of a nominee of
DTC or in such other name as is requested
by an authorized representative of DTC
(and any payment is made to such nominee of
DTC or to such other entity as is
requested by an authorized representative
of DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof has an interest
herein.
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CMS ENERGY CORPORATION
7.75% SENIOR NOTES DUE 2010
No. ________
$300,000,000
CUSIP No.: [125896AU4/U12660AC7]
ISIN No.: [US125896AU48/USU12660AC70]
CMS Energy Corporation, a corporation duly organized and existing
under
the laws of the State of Michigan (herein
called the "Issuer" or "Company",
which term includes any successor Person
under the Indenture hereinafter
referred to), for value received, hereby
promises to pay to CEDE & Co., or
registered assigns, the principal sum of
Three Hundred Million Dollars on August
1, 2010 ("Maturity") and to pay interest
thereon from July 17, 2003 (the
"Original Issue Date") or from the most
recent Interest Payment Date to which
interest has been paid or duly provided
for, semi-annually in arrears on
February 1 and August 1 in each year,
commencing on February 1, 2004 (each an
"Interest Payment Date") to the Persons in
whose names the 2010 Notes are
registered at the close of business on the
15th day preceding the relevant
Interest Payment Date (each a "Record
Date"), and at Maturity, at the rate of
7.75% per annum, until the principal hereof
is paid or made available for
payment. The amount of interest payable on
any Interest Payment Date shall be
computed on the basis of a 360-day year of
twelve 30-day months. The interest so
payable, and punctually paid or duly
provided for, on any Interest Payment Date
will, as provided in such Indenture, be
paid to the Person in whose name this
2010 Note (or one or more Predecessor 2010
Notes) is registered at the close of
business on the Record Date for such
interest, which shall be the 15th day
preceding the relevant Interest Payment
Date (whether or not a Business Day)
except that the Record Date for interest
payable at Maturity shall be the date
of Maturity. Any such interest not so
punctually paid or duly provided for will
forthwith cease to be payable to the Holder
on such Record Date and may either
be paid to the Person in whose name this
2010 Note (or one or more Predecessor
2010 Notes) is registered at the close of
business on a subsequent Record Date
(which shall be not less than five Business
Days prior to the date of payment of
such defaulted interest) for the payment of
such defaulted interest to be fixed
by the Trustee, notice whereof shall be
given to Holders of 2010 Notes not less
than 15 days preceding such subsequent
Record Date.
This 2010 Note is subject to redemption at the option of the Issuer
and
to purchase by the Issuer at the option of
the Holder as specified on the
reverse of this 2010 Note.
Payment of the principal of (and premium, if any) and interest, if
any,
on this 2010 Note will be made at the
office or agency of the Issuer maintained
for that purpose in New York, New York (the
"Place of Payment"), in such coin or
currency of the United States of America as
at the time of payment is legal
tender for payment of public and private
debts; provided, however, that at the
option of the Issuer payment of interest
(other than interest payable at
Maturity) may be made by check mailed to
the address of
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the Person entitled thereto as such address
shall appear in the Security
Register or by wire transfer to an account
designated by such Person not later
than ten days prior to the date of such
payment.
Reference is hereby made to the further provisions of this 2010
Note
set forth on the reverse hereof, which
further provisions shall for all purposes
have the same effect as if set forth at
this place.
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER
THE UNITED STATES SECURITIES ACT OF
1933 (THE "SECURITIES ACT"), AND THIS
SECURITY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THIS
SECURITY IS HEREBY NOTIFIED THAT THE
SELLER OF THIS SECURITY MAY BE RELYING ON
THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER. THE HOLDER OF
THIS SECURITY AGREES FOR THE BENEFIT OF THE
COMPANY THAT (A) THIS SECURITY MAY
BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY (I) IN THE UNITED
STATES TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT ("RULE
144A")) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF
