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EXHIBIT 4-196
DTE CAPITAL CORPORATION
TO
THE BANK OF NEW YORK
TRUSTEE
_________________
INDENTURE
DATED AS OF JUNE 15, 1998
_________________
DEBT SECURITIES
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Table of Contents
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Page
SECTION 101. Definitions.....................................................................................1
SECTION 102. Compliance Certificates and Opinions............................................................9
SECTION 103. Form of Documents Delivered to Trustee..........................................................9
SECTION 104. Acts of Holders................................................................................10
SECTION 105. Notices, Etc...................................................................................12
SECTION 106. Notice to Holders of Securities; Waiver........................................................13
SECTION 107. Language of Notice, Etc........................................................................14
SECTION 108. Trust Indenture Act............................................................................14
SECTION 109. Effect of Headings And Table of Contents.......................................................14
SECTION 110. Successors and Assigns.........................................................................14
SECTION 111. Separability Clause............................................................................14
SECTION 112. Benefits of Indenture..........................................................................14
SECTION 113. Governing Law..................................................................................14
SECTION 114. Legal Holidays.................................................................................14
SECTION 115. Corporate Obligation...........................................................................15
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally................................................................................15
SECTION 202. Form of Trustee's Certificate of Authentication................................................15
SECTION 203. Securities in Global Form......................................................................16
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited: Issuable in Series...........................................................17
SECTION 302. Denominations..................................................................................23
SECTION 303. Execution; Authentication; Delivery and Dating.................................................23
SECTION 304. Temporary Securities; Exchange of Temporary Securities.........................................24
SECTION 305. Registration...................................................................................25
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons...................................28
SECTION 307. Payment of Interest; Interest Rights Preserved.................................................29
SECTION 308. Persons Deemed Owners..........................................................................30
SECTION 309. Cancellation...................................................................................31
SECTION 310. Computation of Interest........................................................................32
SECTION 311. Support Agreement..............................................................................32
SECTION 312. CUSIP Numbers..................................................................................32
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture........................................................32
SECTION 402. Application of Trust Money.....................................................................33
SECTION 403. Satisfaction, Discharge and Defeasance of Securities of any Series.............................34
SECTION 404. Reinstatement..................................................................................35
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default..............................................................................35
SECTION 502. Acceleration of Maturity: Rescission and Annulment.............................................37
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee................................38
SECTION 504. Trustee May File Proofs of Claim...............................................................39
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities or Coupons.......................................................................40
SECTION 506. Application of Money Collected.................................................................40
SECTION 507. Limitation on Suits............................................................................40
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium, Interest and
Additional Amounts.............................................................................41
SECTION 509. Restoration of Rights and Remedies.............................................................41
SECTION 510. Rights and Remedies Cumulative.................................................................41
SECTION 511. Delay or Omission Not Waiver...................................................................42
SECTION 512. Control by Holders of Securities...............................................................42
SECTION 513. Waiver of Past Defaults........................................................................42
SECTION 514. Undertaking for Costs..........................................................................43
SECTION 515. Waiver of Stay or Extension Laws...............................................................43
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.............................................................................43
SECTION 602. Certain Rights of Trustee......................................................................44
SECTION 603. Not Responsible for Recitals or Issuance of Securities.........................................45
SECTION 604. May Hold Securities............................................................................45
SECTION 605. Money Held in Trust............................................................................45
SECTION 606. Compensation and Reimbursement.................................................................46
SECTION 607. Corporate Trustee Required; Eligibility........................................................46
SECTION 608. Disqualification, Conflicting Interests........................................................47
SECTION 609. Resignation and Removal; Appointment of Successor..............................................47
SECTION 610. Acceptance of Appointment by Successor.........................................................48
SECTION 611. Merger, Conversion, Consolidation or Succession to Business....................................49
SECTION 612. Preferential Collection of Claims Against the Company..........................................50
SECTION 613. Appointment of Authenticating Agent............................................................50
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders......................................52
SECTION 702. Preservation of Information; Communications to Holders.........................................52
SECTION 703. Reports by Trustee.............................................................................52
SECTION 704. Reports by Company.............................................................................53
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc...................................................................55
SECTION 802. Successor Person Substituted...................................................................56
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.............................................56
SECTION 902. Supplemental Indentures with Consent of Holders................................................58
SECTION 903. Execution of Supplemental Indentures...........................................................59
SECTION 904. Effect of Supplemental Indentures..............................................................59
SECTION 905. Conformity with Trust Indenture Act............................................................59
SECTION 906. Reference in Securities to Supplemental Indentures.............................................59
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.....................................................59
SECTION 1002. Maintenance of Office or Agency................................................................60
SECTION 1003. Money for Securities Payments to Be Held in Trust..............................................61
SECTION 1004. Additional Amounts.............................................................................62
SECTION 1005. Existence......................................................................................63
SECTION 1006. Payment of Taxes and Other Claims..............................................................63
SECTION 1007. Change in Nature of Business...................................................................63
SECTION 1008. Accounting Changes.............................................................................63
SECTION 1009. Statement by Officers as to Default............................................................63
SECTION 1010. Waiver of Certain Covenants....................................................................64
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.......................................................................64
SECTION 1102. Election to Redeem; Notice to Trustee..........................................................64
SECTION 1103. Selection by Trustee of Securities to Be Redeemed..............................................64
SECTION 1104. Notice of Redemption...........................................................................65
SECTION 1105. Deposit of Redemption Price....................................................................66
SECTION 1106. Securities Payable on Redemption Date..........................................................66
SECTION 1107. Securities Redeemed in Part....................................................................67
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.......................................................................67
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities..........................................68
SECTION 1203. Redemption of Securities for Sinking Fund......................................................68
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. Purposes for Which Meetings May Be Called......................................................68
SECTION 1302. Call, Notice and Place of Meetings.............................................................69
SECTION 1303. Persons Entitled to Vote at Meetings...........................................................69
SECTION 1304. Quorum; Action.................................................................................69
SECTION 1305. Determination of Voting Rights; Conduct and Adjournment of Meetings............................70
SECTION 1306. Counting Votes and Recording Action of Meetings................................................71
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INDENTURE, dated as of June 15, 1998, between DTE CAPITAL CORPORATION,
a corporation duly organized and existing under the laws of the State of
Michigan (herein called the "Company"), having its principal office at 2000
Second Avenue, Detroit, Michigan 48226, and THE BANK OF NEW YORK, a New York
banking corporation, as Trustee (herein called the "Trustee"), the office of the
Trustee at which at the date hereof its corporate trust business is principally
administered being 101 Barclay Street, Floor 21W, New York, New York 10286.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture (as hereinafter defined) to provide for the issuance from time to time
of its debt securities (herein called the "Securities"), to be issued in one or
more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (hereinafter defined) thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders of
the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to themtherein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP, and, except as
otherwise herein expressly provided, the term "GAAP" with respect
to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States
of America at the date of such computation; and
(4) the words, "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
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Certain terms, used principally in certain Articles hereof, are
defined in those Articles.
"Accountant" means any Person engaged in the practice of accounting who
(except when this Indenture provides that an Accountant must be Independent) may
be employed by or affiliated with the Company or an Affiliate of the Company.
"Act", when used with respect to any holder of a Security, has the
meaning specified in Section 104.
"Additional Amounts" means any additional amounts which are required
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Company in respect of certain taxes imposed on Holders specified
therein and which are owing to such Holders.
"Affiliate" of any specified Person means any other person on directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting Securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any person authorized by the Trustee
pursuant to Section 613 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or in
an official language of the country of publication, customarily published on
each Business Day, whether or not published an Saturdays, Sundays or holidays,
and of general circulation in the place in which publication is required under
the terms hereof or under the terms of a Security or in the financial community
of such place. Where successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in the same or in
different newspapers in the same city meeting the foregoing requirements and in
each case on any Business Day.
"Bearer Security" means any Security established pursuant to Section
201 which is payable to bearer including, without limitation, unless the context
otherwise indicates, a Security in temporary or permanent global bearer form.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that Place of Payment, the State
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of Michigan or other location are authorized or obligated by or pursuant to law
or executive order to close.
"Cedel" means Cedel Bank, societe anonyme, a corporation organized
under the laws of the Grand Duchy of Luxembourg or, if any time after the
execution of this instrument Cedel is not existing and performing the duties now
being performed by it, then the successor Person performing such duties.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President, a
Vice President, its Treasurer, an Assistant Treasurer, its Controller, an
Assistant Controller, its Secretary or an Assistant Secretary, and delivered to
the Trustee.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Corporate Trust Office" means the principal office of the Trustee in
The City of New York, at which at any particular time its corporate trust
business shall be principally administered, which office at the date hereof is
that indicated in the introductory paragraph of this Indenture.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Debt" of any Person at any date of determination means, without
duplication, (a) all indebtedness of such Person for borrowed money, (b) all
obligations of such Person for the deferred purchase price of property or
services (other than trade payables not overdue by more than 60 days incurred in
the ordinary course of such Person's business), (c) all obligations of such
Person evidenced by notes, bonds, debentures or other similar instruments, (d)
all obligations of such Person created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such Person
(even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property), (e) all obligations of such Person as lessee under leases that have
been or should be, in accordance with GAAP, recorded as capital leases, (f) all
obligations, contingent or otherwise, of such Person in respect of acceptances,
letters of credit or similar extensions of credit, (g) all obligations of such
Person in respect of interest rate swap, cap or collar agreements, interest rate
future or option contracts, currency swap agreements, currency future or option
contracts and other similar agreements, (h) all Debt of others referred to in
clauses (a)
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through (g) above or clause (i) below guaranteed directly or indirectly in any
manner by such Person, or in effect guaranteed directly or indirectly by such
person through an agreement (1) to pay or purchase such Debt or to advance or
supply funds for the payment or purchase of such Debt, (2) to purchase, sell or
lease (as lessee or lessor) property, or to purchase or sell services, primarily
for the purpose of enabling the debtor to make payment of such Debt or to assure
the holder of such Debt against loss, (3) to supply funds to or in any other
manner invest in the debtor (including any agreement to pay for property or
services irrespective of whether such property is received or such services are
rendered) or (4) otherwise to assure a creditor against loss, and (i) all Debt
referred to in clauses (a) through (h) above secured by (or for which the holder
of such Debt has an existing right, contingent or otherwise, to be secured by)
any Lien on property (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not assumed or become
liable for the payment of such Debt.
"DECO" means The Detroit Edison Company, a Michigan corporation and a
regulated public utility.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"DTE Energy" means DTE Energy Company, a Michigan corporation and an
exempt holding company under the Public Utility Holding Company Act of 1935, as
amended.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear System, or, if at any time after the
execution of this instrument Morgan Guaranty Trust Company of New York, Brussels
Office, is not existing and performing the duties now being performed by it,
then the successor Person performing such duties.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Event of Default" has the meaning specified in Section 501.
"Exchange Date" has the meaning specified in Section 304.
"Exchange Rate" has the meaning specified in Section 501.
"GAAP" means generally accepted accounting principles, as in effect
from time to time, as used in the United States applied on a consistent basis.
"Holder", when used with respect to any Security, means in the case of
a Registered Security the Person in whose name the Security is registered in the
Security Register and in the case of a Bearer Security the bearer thereof and,
when used with respect to any coupon, means the bearer thereof.
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"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Independent", when used with respect to any specified Person, means
such a Person who is in fact independent of the Company and any other obligor
upon the Securities, does not have any direct financial interest or any material
indirect financial interest in the Company or in any such other obligor or in an
Affiliate of the Company or such other obligor and is not connected with the
Company or any such other obligor as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions.
Whenever it is herein provided that an opinion or certificate of any Independent
Person shall be furnished to the Trustee, such Person shall be appointed by
Company Order and approved by the Trustee in the exercise of reasonable care and
such opinion or certificate shall state that the signer has read this definition
and that the signer is Independent within the meaning thereof.
"Interest", when used with respect to an original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity and, with respect to any Security which provides for the
payment of Additional Amounts pursuant to Section 1004, includes such Additional
Amounts.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 506.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien
or charge of any kind (including, without limitation, any conditional sale or
other title retention agreement or lease in the nature thereof or any agreement
to give any security interest).
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity, by
declaration of acceleration, upon any redemption or otherwise.
"Officers' Certificate" means a certificate signed by (i) the Chairman
of the Board, the President or a Vice President of the Company, and (ii) the
Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel who shall be
acceptable to the Trustee and, where applicable, the Company which counsel may
be counsel for or an employee of the Company.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
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"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Security Registrar
or Authenticating Agent or delivered to the Security Registrar or an
Authenticating Agent for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities and any coupons
thereto appertaining; provided, that if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made; and
(iii) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee or Authenticating Agent proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities (a) the principal amount
of an Original Issue Discount Security that shall be deemed to be Outstanding
shall be the principal amount thereof that would be due and payable as of the
date of such determination upon acceleration of the Maturity thereof pursuant to
Section 502, (b) the principal amount of a Security denominated in a foreign
currency shall be the U.S. dollar equivalent, determined on the date of original
issuance of such Security by the Company in good faith, of the principal amount
(or, in the case of an Original Issue Discount Security, the U.S. dollar
equivalent, determined on the date of original issuance of such Security, of the
amount determined as provided in (a) above) , of such Security, and (c)
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver or upon any such determination as to the
presence of a quorum, only Securities which the Trustee knows to be so owned
shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person, including the Company, authorized by
the Company to pay the principal of (and premium, if any) or interest on any
Securities on behalf of the Company.
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"Person" means any individual, partnership, corporation (including a
business trust), joint-stock company, trust, unincorporated association, joint
venture, limited liability company or other entity or a government or any
political subdivision or agency thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the Corporate Trust Office of the Trustee or such place or places
specified in a supplemental indenture where, subject to the provisions of
Section 1002, the principal of (and premium, if any) and interest on the
Securities of that series are payable as specified in accordance with Section
301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"Redemption Date", when used with respect to any Security or portion
thereof to be redeemed, means the date fixed for such redemption by or pursuant
to this Indenture.
"Redemption Price", when used with respect to any Security or portion
thereof to be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
"Registered Security" means any Security established pursuant to
Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series means the date, if any,
specified in such Security as the "Regular Record Date".
"Responsible Officer", when used with respect to the Trustee, means any
officer within the Corporate Trust Division, Trustee Administration (or any
successor group of the Trustee), including any vice president, any assistant
vice president, the secretary, any assistant secretary, any trust officer or
assistant trust officer, or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" has the meaning specified in Section 305.
"Security Registrar" means the Person appointed by the Company to
register Registered Securities and transfers of Registered Securities as
provided in Section 305.
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"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any series means the date determined pursuant to
Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which) more
than 50% of (a) the issued and outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such limited
liability company, partnership or joint venture or (c) the beneficial interest
in such trust or estate is at the time directly owned or controlled by such
Person, by such Person and one or more of its other Subsidiaries or by one or
more of such Person's other Subsidiaries.
"Support Agreement" means an agreement, by and between the Company and
DTE Energy, in support of any series of Debt Securities.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that Series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof shall mean such Act or provision, as the case may be, as
amended or replaced from time to time or as supplemented from time to time by
rule or regulations adopted by the Commission under or in furtherance of the
purposes of such Act or provision, as the case may be except as provided in
Section 905.
"United States" means the United States of America (including the
states thereof and the District of Columbia), its territories, its possessions
and other areas subject to its jurisdiction.
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Depositary" or "Depositary" means, with respect to any Security
issuable or issued in the form of one or more global Securities, the Person
designated as U.S. Depositary by the Company pursuant to Section 301, which must
be a clearing agency registered under the Exchange Act, and, if so provided
pursuant to Section 301 with respect to any Security, any successor to such
Person. If at any time there is more than one such Person, "U.S. Depositary" or
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"Depositary" shall mean, with respect to any Securities, the qualifying entity
which has been appointed with respect to such Securities.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the election of directors
(or persons performing similar functions) of such Person, even if the right so
to vote has been suspended by the happening of such a contingency.
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company (i) to the Trustee to take any action
under any provision of this Indenture or (ii) to any Authenticating Agent to
authenticate Securities of any series upon original issuance, the Company shall
furnish to the Trustee or such Authenticating Agent (with a copy to the Trustee)
an Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with,
an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, and, in the case of
conditions precedent compliance with which is subject to verification by
Accountants, engineers, appraisers or other experts, a certificate or opinion of
an Accountant, engineer, appraiser or other expert (which Accountant, engineer,
appraiser or other expert shall be Independent if required by the Trust
Indenture Act) , except that in the case of any such application or request as
to which the furnishing of such documents is specifically required by. any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such covenant or condition has been complied with.
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SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous. Any Opinion of Counsel may be based on the written
opinion of other counsel, in which event such Opinion of Counsel shall be
accompanied by a copy of such other counsel's opinion and shall include a
statement to the effect that such counsel believes that such counsel and the
Trustee may reasonably rely upon the opinion of such other counsel.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given
or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing. If Securities of a
series are issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders of such
series may, alternatively, be embodied in and evidenced by the record
of Holders of Securities of such series voting in favor thereof, either
in person or by proxies duly appointed in writing, at any meeting of
Holders of Securities of such series duly called and held in accordance
with the provisions of Article Thirteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where
it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of
the Holders signing such instrument or instruments and so voting at any
such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and
conclusive
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in favor of the Trustee and the Company, if made in the manner provided
in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 1306.
Without limiting the generality of this Section 104, unless
otherwise established in or pursuant to a Board Resolution or set forth
or determined in an Officers' Certificate, or established in one or
more indentures supplemental hereto, pursuant to Section 301, a Holder,
including a U.S. Depositary that is a Holder of a global Security, may
make, give or take, by a proxy, or proxies, duly appointed in writing,
any request, demand, authorization, direction, notice, consent, waiver
or other action provided in this Indenture to be made, given or taken
by Holders, and a U.S. Depositary that is a Holder of a global Security
may provide its proxy or proxies to the beneficial owners of interests
in any such global Security through such U.S. Depositary's standing
instructions and customary practices.
The Trustee or the Company shall fix a record date, which
shall be not more than 60 days prior to the first solicitation of such
Holders, for the purpose of determining the Persons who are beneficial
owners of interest in any permanent global Security held by a U.S.
Depositary entitled under the procedures of such U.S. Depositary to
make, give or take, by a proxy or proxies duly appointed in writing,
any request, demand, authorization, direction, notice, consent, waiver
or other action provided in this Indenture to be made, given or taken
by Holders. If such a record date is fixed, the Holders on such record
date or their duly appointed proxy or proxies, and only such Persons
shall be entitled to make, give or take such request, demand,
authorization, direction, notice, consent, waiver or other action,
whether or not such Holders remain Holders after such record date. No
such request, demand, authorization, direction, notice, consent, waiver
or other action shall be valid or effective if made, given or taken
more than 120 days after such record date.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than his individual capacity,
such certificate or affidavit shall also constitute sufficient
proof of his authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems
sufficient.
(c) The ownership, principal amount and serial numbers of
Registered Securities held by any Person, and the date of commencement
and the date of termination of holding the same, shall be proved by
the Security Register.
(d) The ownership, principal amount and serial numbers
of Bearer Securities held by any Person, and the date of holding the
same, may be proved by the production of such Bearer Securities
or by a certificate executed, as depositary, by any trust company,
bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had
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on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities,
if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such
ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the
same Bearer Security is produced, or (2) such Bearer Security is
produced to the Trustee by some other Person, or (3) such Bearer
Security is surrendered in exchange for a Registered Security, or (4)
such Bearer Security is no longer Outstanding. The ownership, principal
amount and serial numbers of Bearer Securities held by any Person, and
the date of holding the same, may also be proved in any other manner
which the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of any
Registered Securities any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company may at its option, by
a Board Resolution, fix in advance a record date, which shall be not
more than 60 days prior to the first solicitation of such Holders, for
the determination of Holders of Registered Securities entitled to give
such request, demand, authorization, direction, notice, consent, waiver
or other Act, but the Company shall have no obligation to do so. If
such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or
after such record date, but only the Holders of Registered Securities
of record at the close of business on such record date shall be deemed
to be Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Securities have authorized or
agreed or consented to such request, demand, authorization, direction,
notice, consent, waiver or other Act, and for that purpose the
Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the
Holders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon
such Security. Notices, Etc., to Trustee and Company.
SECTION 105. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be made,
given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office and unless otherwise herein expressly provided,
any such document shall be deemed to be sufficiently made, given,
furnished or filed upon its receipt by a Responsible Officer of the
Trustee, or
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(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to
the Company addressed to it at the address of its principal office
specified in the first paragraph of this instrument, or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of Securities of any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security affected by such
event, at the address of such Holder as it appears in the Security
Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities if published on a Business Day in an Authorized Newspaper in
The City of New York and in such other city or cities as may be
specified in such Securities, at least twice, each such publication to
be not earlier than the earliest date, and not later than the latest
date, prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such
notice to Holders of Registered Securities by mail, then such
notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
In any case where notice to Holders of Registered Securities is
given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder of a
Registered Security, shall affect the sufficiency of such notice
with respect to other Holders of Registered Securities or the
sufficiency of any notice to Holders of Bearer Securities given
as provided herein..
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
holders of Registered Securities given as provided herein.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
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SECTION 107. Language of Notice, Etc.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
SECTION 108. Trust Indenture Act.
The parties hereto agree that this Indenture shall be subject to the
provisions of the Trust Indenture Act that are required to be part of an
Indenture to be qualified under the Trust Indenture Act, and that all provisions
which the Trust Indenture Act provides as automatically deemed to be included in
an indenture to be qualified thereunder shall be included herein. In the event
of any conflict between the provisions hereof and the provisions of the Trust
Indenture Act, the provisions of the Trust Indenture Act shall control.
SECTION 109. Effect of Headings And Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 111. Separability Clause.
In case any provision in this Indenture or the Securities or coupons
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 112. Benefits of Indenture.
Nothing in this Indenture or the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto, their
successors hereunder and the Holders of Securities and coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 113. Governing Law.
This Indenture and the Securities and coupons shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made or instruments entered into and, in each case, performed in such
state.
SECTION 114. Legal Holidays.
Except as specified pursuant to Section 301, in any case where any
Interest Payment Date, Redemption Date or Stated Maturity of any Security shall
not be a Business Day at any Place of Payment, or where any date on which notice
is required to be mailed or published shall
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not be a Business Day at the Corporate Trust Office, then (notwithstanding any
other provision of this Indenture or of the Securities or coupons other than a
provision in the Securities of any series which specifically states that such
provision shall apply in lieu of this Section) payment of interest or principal
(and premium, if any) or mailing or publication of such notice need not be made
at such Place of Payment or at such Corporate Trust Office on such date, but may
be made, mailed or published on the next succeeding Business Day at such Place
of Payment or at such Corporate Trust Office with the same force and effect as
if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, or other required date for the mailing or publication of such notice,
as the case may be, and in the case of payment to be made on any such Security,
no interest shall accrue or be payable as a result of the making of such payment
after any such nominal date, provided such payment is made in full on such next
succeeding Business Day.
SECTION 115. Corporate Obligation.
No recourse may be taken, directly or indirectly, against any
incorporator, subscriber to the capital stock, stockholder, officer, director or
employee of the Company or the Trustee or of any predecessor or successor of the
Company or the Trustee with respect to the Company's obligations on the
Securities or the obligations of the Company or the Trustee under this Indenture
or any certificate or other writing delivered in connection herewith or
therewith except as otherwise expressly provided in any such certificate or
other writing.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall be in such form
(including temporary or permanent global form) as shall be authorized by a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this 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
Securities or coupons, as evidenced by their execution of the Securities or
coupons.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities other than Bearer Securities in global form shall have interest
coupons attached.
The definitive Securities and coupons, if any, shall be printed,
typewritten, lithographed or engraved on steel engraved borders or may be
produced in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially
the following form:
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This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
The Bank of New York
as Trustee
By
__________________________________
Authorized Signatory
SECTION 203. Securities in Global Form.
If Securities of a series are issuable in global form, then any such
Security shall represent such of the Outstanding Securities of such series as
shall be specified therein and may provide that it shall represent the aggregate
amount of Outstanding Securities from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be reduced to reflect exchanges. Any endorsement of a Security in global
form to reflect the amount, or any increase or decrease in the amount, of
outstanding Securities represented thereby shall be made by the Security
Registrar in such manner and upon instructions given by such Person or Persons
as shall be specified in such Security or in a Company Order delivered to the
Security Registrar with such Security. Subject to the provisions of Section 303
and, if applicable, Section 304, the Trustee or Authenticating Agent shall
deliver and redeliver any Security in permanent global form in the manner and
upon instructions given by the Person or Persons specified in such Security or
in a Company Order delivered pursuant to Section 303 or Section 304, as
applicable. If a Company Order pursuant to Section 303 or Section 304 has been,
or simultaneously is, delivered, any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security in global form if such Security was never issued and sold by the
Company and the Company delivers to the Security Registrar the Security in
global form together with written instructions (which need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel) (a copy of
which instructions shall be delivered to the Trustee) with regard to the
reduction in the principal amount of Securities represented thereby, together
with the written statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of (and premium,
if any) and interest on any Security in permanent global form shall be made to
the Holder thereof.
Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
or of the Trustee shall treat a Person as the Holder of such principal amount of
Outstanding Securities represented by a global Security (i) in the case of a
permanent global Security in registered form, the Holder of such permanent
global Security in registered form, or (ii) in the case of a permanent global
Security in Bearer form, the Person or Persons as may be specified pursuant to
Section 301.
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ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited: Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to one or more Board Resolutions, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto:
(1) the title of the Securities of the series in which such
Securities shall be included;
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or
1107 and except for any Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered hereunder)
(3) whether Securities of the series are to represent senior or
subordinated indebtedness of the Company;
(4) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether Securities
of the series are to be issuable with or without coupons or both,
whether any Securities of the series are to be issuable initially in
temporary global form and whether any Securities of the series are to
be issuable in permanent global form and, if so, whether beneficial
owners of interests in any such permanent global Security may exchange
such interests for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which any
such exchanges may occur, if other than in the manner provided in
Section 305, the name of the Depositary or the U.S. Depositary, as the
case may be, with respect to such global Security;
(5) (i) the Person to whom any interest on any Registered Security
of the series shall be payable, if other than the Person in whose name
that Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest,
(ii) the manner in which, or the Person to whom, any interest on any
Bearer Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature, and (iii) the extent to which, or the manner in
which, any interest payable on a temporary global Security on an
Interest Payment Date will be paid if other than in the manner
provided in Section 304;
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(6) the date or dates on which the principal (and
premium, if any) of the Securities of the series is payable or the
method of determination thereof;
(7) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method or methods, if any,
pursuant to which such rate or rates shall be determined, the date or
dates from which any such interest shall accrue or the method or
methods, if any, by which such dates are to be determined, the
Interest Payment Dates on which any such interest shall be payable and
the Regular Record Date, if any, for any interest payable on any
Registered Securities on any Interest Payment Date whether and under
what circumstances Additional Amounts on such Securities or any of
them shall be payable, and the basis upon which interest shall be
calculated, if other than that of a 360-day year of twelve 30-day
months;
(8) the place or places where, subject to the provisions
of Section 1002, the principal of (and premium, if any) and
interest (including Additional Amounts) on Securities of the series
shall be payable, any Registered Securities of the series may be
surrendered for registration of transfer, Securities of the series
may be surrendered for exchange, notices and demands to or upon the
Company in respect of the Securities of the series and this Indenture
may be served and where notice to Holders pursuant to Section 106
will be published;
(9) whether the Securities of a series or any of them are
to be redeemable at the option of the Company and, if so, the date or
dates on which, the period or periods within which, the price or
prices at which and the terms and conditions upon which Securities of
the series may be redeemed, in whole or in part, at the option of the
Company;
(10) whether the Company is obligated to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the date or dates
on which, the period or period within which, the price or prices at
which and the terms and condition upon which Securities of the series
shall be redeemed or purchased, in whole or in part, pursuant to such
obligation and any provision for the remarketing of the Securities of
the series so redeemed or purchased;
(11) the denominations in which any Registered Securities
of the series shall be issuable, if other than the denominations
provided in Section 302, and the denomination or denominations in
which any Bearer Securities of the series shall be issuable, if other
than the denominations provided in Section 302;
(12) if other than the principal amount thereof, the
portion of the principal amount of the Securities of the series or
any of them which shall be payable upon declaration of acceleration
of the Maturity thereof pursuant to Section 502 or the method by
which such portion is to be determined;
(13) if other than such coin or currency of the United
States of America is at the time of payment legal tender for payment
of public or private debts, the coin or currency, composite
currencies or currency unit or units in which payment of the
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principal of (and premium, if any) or interest, if any, on or any
Additional Amounts in respect of the Securities of the series or any
of them shall be payable;
(14) if the principal of (and premium, if any) or interest
on the Securities of the series are to be payable, at the election of
the Company or a Holder thereof, in a coin or currency, composite
currencies or currency unit or units other than that in which the
Securities are stated to be payable, the currency in which payment of
the principal of (and premium, if any) and interest on Securities of
such series as to which such election is made shall be payable, and
the periods within which and the terms and conditions upon which such
election is to be made;
(15) whether the amount of payments of principal of
(and premium, if any) or interest (including Additional Amounts), if
any, on the Securities of the series may be determined with reference
to an index, formula or other method (which index, formula or method
may be based, without limitation, on one or more currencies, currency
units, composite currencies, commodities, equity indices or other
indices), and, if so, the terms and conditions upon which and the
manner in which such amounts shall be determined and paid or payable;
(16) whether the principal of (and premium, if any)
or interest (including Additional Amounts), if any, on the
Securities of the series are to be payable, at the election of the
Company or any Holder thereof or otherwise, in a currency or
currencies, currency unit or units or composite currency or
currencies other than that in which such Securities or any of them
are denominated or stated to be payable, the period or periods
within which, and the other terms and conditions upon which, such
election, if any, may be made, and the time and manner of
determining the exchange rate between the currency or currencies,
currency unit or units or composite currency or currencies in
which such Securities or any of them are denominated or stated to be
payable and the currency or currencies, currency unit or units or
composite currency or currencies in which such Securities or any of
them are to be so payable;
(17) any deletions from, modifications of or additions to
the Events of Default or covenants of the Company with respect to the
Securities of the series or any of them, whether or not such Events of
Default or covenants are consistent with the Events of Default or
covenants set forth herein;
(18) if the Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and terms of such certificates, documents or conditions;
(19) with respect to any Securities that may be issued
in a private offering, the restrictions on transfer and legends
relating to such Securities of the series and whether Securities of
the series are entitled to registration or exchange rights;
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(20) if there is more than one Trustee, the identity of the
Trustee and, if not the Trustee, the identity of each Security
Registrar, Paying Agent and/or Authenticating Agent with respect to
the Securities of the series;
(21) whether the Securities or such series will be entitled to
the benefit of a Support Agreement between the Company and DTE Energy,
or other form of credit enhancement;
(22) whether any of the Securities of a series shall be issued
as Original Issue Discount Securities;
(23) whether a credit facility or other form of credit
support will apply to Securities of such series, which may be
different from any credit facility for any other series; and
(24) any other terms of the Securities of the series or any of
them (which terms shall not be inconsistent with the provisions of
this Indenture).
All Securities of any one series, and the coupons
appertaining to any Bearer Securities of such series, shall be
substantially identical except as to denomination and the rate or
rates of interest, if any, and Stated Maturity, the date from which
interest, if any, shall accrue and except as may otherwise be provided
by the Company in or pursuant to one or more Board Resolutions and set
forth in such Officers' Certificate or in any indenture or indentures
supplemental hereto pertaining to such series of Securities. All
Securities of any one series need not be issued at the same time and,
unless otherwise so provided by the Company, a series may be reopened
for issuances of additional Securities of such series or to establish
additional terms of such series of Securities.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
(including but not limited to such Board Resolution) shall be certified by the
Secretary or an Assistant Secretary of the Company or certified by Company Order
and delivered to the Trustee at or prior to the delivery of the Officers'
Certificate or Company Order setting forth the terms of the series.
The Trustee shall be entitled to receive the following only at or
before the issuance of the first Security of each series issued under this
Indenture:
(a) Opinion(s) of Counsel. Opinion(s) of Counsel (such counsel
being entitled to rely upon certificates, opinions or by Section
103 and, as to matters involving the laws of any state other than the
state in which such counsel is admitted to practice, upon an Opinion
of Counsel who shall be satisfactory to the Trustee) complying with
the requirement of Section 102, if applicable, containing such
qualifications and assumptions as may be appropriate in the
circumstances, and addressed to the Trustee substantially to the
effect that:
(i) the Company is a corporation duly organized and validly
existing in good standing under the laws of the State of Michigan,
with corporate power and authority to own its properties and conduct
its business as currently conducted;
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(ii) the Indenture and, if applicable, any supplemental
indenture that is permitted by Sections 201 and 301 and which relates
to the series of Securities to which such opinion relates, have been
duly authorized, executed and delivered by the Company and constitute
the legal, valid and binding obligations of the Company, enforceable
(except for Section 111 of the Indenture as to which no opinion need
be expressed) in accordance with their terms (assuming the due
authorization, execution and delivery thereof by the Trustee), except
as such enforceability is subject to the effect of any applicable
bankruptcy, insolvency, reorganization or other law relating to or
affecting creditors' rights generally and to general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iii) the execution and delivery of the Indenture and, if
applicable, any supplemental indenture that is permitted by Sections
201 and 301 and which relates to the series of Securities to which
such opinion relates, do not and, assuming no change in the facts
existing on the date such opinion is rendered, the performance of and
compliance with the terms and provisions of the Indenture and, if
applicable, any such supplemental indenture, will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any existing statute, rule, regulation or
order of any governmental agency or body or any court having
jurisdiction over the Company or any of its properties or, to the best
of the knowledge of such counsel, any existing agreement or instrument
to which the Company is a party or by which the Company is bound or to
which any of the properties of the Company is subject, or the existing
charter or bylaws of the Company;
(iv) if applicable, the Indenture has been duly qualified
under the Trust Indenture Act.
(v) the series of Securities to which such opinion relates,
together with any coupons appertaining thereto, have been duly and
validly authorized by all necessary corporate action on the part of
the Company, and any such Security, when the terms thereof have been
established in accordance with the terms of the Indenture and when
such Security has been executed and authenticated in accordance with
the terms of the Indenture (assuming the due authentication, execution
and delivery thereof by the Trustee or any Authenticating Agent, which
fact counsel need not verify by an inspection of such Securities) and
delivered and paid for in accordance with the terms of any
underwriting agreement, agency agreement or other agreement providing
for the sale thereof, will constitute (assuming no change in the facts
or in the law and governmental rules and regulations, in either case
in existence on the date such Opinion of Counsel is rendered) the
legal, valid and binding obligation of the Company, enforceable in
accordance with its terms, except as such enforceability is subject to
the effect of any applicable bankruptcy, insolvency, reorganization or
other law relating to or affecting creditors' rights generally and
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
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(vi) the forms and terms of the series of Securities to which
such opinion relates and any coupons related thereto have been
established in conformity with the provisions of this Indenture or, if
such forms and terms are being established pursuant to one or more
instruments being furnished to the Trustee concurrently with the
delivery of such opinion, such instruments conform to the requirements
of this Indenture;
(vii) all instruments furnished to the Trustee in connection
with the first issuance of Securities of the series to which such
opinion relates (which instrument shall be listed in such opinion)
conform to the requirements of this Indenture and, except for (a)
Securities of such series, together with any coupons appertaining
thereto, to be delivered for authentication subsequent to the date of
such opinion pursuant to Section 303, (b) the Company Order(s) to be
delivered subsequent to the date of such opinion pursuant to Sections
201, 301 or 303 and (c) any certificate required to be delivered
subsequent to the date of such opinion pursuant to paragraph (b) of
this Section 301 and (d) any other documents or items required to be
delivered subsequent to the date of such opinion pursuant to such
instruments, such instruments constitute all the documents required by
this Indenture to be delivered hereunder at or before the first
issuance of Securities of the series to which the opinion relates;
(viii) the Company has good and marketable title to all
properties standing of record in its name and improvements thereon,
subject to minor exceptions and minor defects, irregularities and
deficiencies which, in the opinion of the Company, do not materially
impair the use of such property for the purpose for which it is held
by the Company; and
(ix) if applicable, a registration statement relating to the
series of Securities to which such opinion relates has become
effective under the Securities Act, and, to the best of the knowledge
of such counsel, no stop order suspending the effectiveness of such
registration statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Securities Act.
(b) Officers' Certificate. An Officers' Certificate stating
that no Event of Default has occurred and is continuing, and the execution and
delivery of the Indenture will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, the articles of
incorporation or bylaws of the Company, or any order of any court or
administrative agency entered in any proceeding to which the Company is a
party or by which it is bound or to which it is subject; and
(c) Board Resolution. A Board Resolution authorizing this
Indenture and, if applicable, any supplemental indenture that is permitted by
Sections 201 and 301 and that relates to such series of Securities.
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SECTION 302. Denominations.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, any Registered Securities of a series denominated
in Dollars shall be issuable in denominations of $1,000 and any integral
multiple thereof and any Bearer Securities of a series denominated in Dollars
shall be issuable in the denomination of $5,000. Unless otherwise provided as
contemplated by Section 301 with respect to any series of Securities, any
Securities of a series denominated in a currency other than Dollars shall be
issuable in denominations that are the equivalent, as determined by the Company
by reference to the noon buying rate in The City of New York for cable transfers
for such currency, as such rate is reported or otherwise made available by the
Federal Reserve Bank of New York, on the applicable trade date for such
Securities, of $100,000 (rounded down to an integral multiple of 10,000 units of
such currency), and any larger amount that is, as nearly as is practicable, an
integral multiple of $1,000.
SECTION 303. Execution; Authentication; Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, its Treasurer, any Assistant Treasurer or
one of its Vice Presidents attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile. Coupons shall bear the facsimile signature of the Chairman
of the Board of the Company, its President, its Treasurer, any Assistant
Treasurer or one of its Vice Presidents, attested by its Secretary or one of its
Assistant Secretaries.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
coupons or did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any coupons appertaining thereto, executed by the Company to the Trustee or
Authenticating Agent for authentication, together with a Company Order for the
authentication and delivery of such Securities and the Trustee or such
Authenticating Agent in accordance with the Company Order shall authenticate and
deliver such Securities; provided, however, that, in connection with its
original issuance, no Bearer Security shall be mailed or otherwise delivered to
any location in the United States; and provided further, that a Bearer Security
other than a temporary global Bearer Security may be delivered in connection
with its original issuance only if Cedel or Euroclear, as the case may be, shall
have furnished to the Security Registrar a certificate substantially to the
effect that the Person entitled to receive such Bearer Security shall have
furnished to Cedel or Euroclear, as the case may be, a certificate substantially
in the form set forth in Exhibit A to this Indenture or in such other form of
certificate as shall contain information then required by federal income tax
laws, dated no earlier than 15 days prior to the earlier of (i) the date on
which such Bearer Security is delivered and (ii) the date on which any temporary
Security first becomes exchangeable for such Bearer Security in accordance with
the terms of such temporary Security and this Indenture. A confirmation shall be
sent by the Company or an agent thereof to each purchaser of a Bearer Security.
If any Security shall be represented by a permanent global Bearer Security,
then, for
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purposes of this Section 303 and Section 304, the notation of a
beneficial owner's interest therein upon original issuance of such Security or
upon exchange of a portion of a temporary global Security shall be deemed to be
delivery in connection with its original issuance of such beneficial owner's
interest in such permanent global Bearer Security. Except as permitted by
Section 306, the Trustee or Authenticating Agent shall not authenticate and
deliver any Bearer Security unless all appurtenant coupons for interest then
matured have been detached and cancelled.
The Trustee or any Authenticating Agent shall have the right to decline
to authenticate and deliver such Securities if the Trustee or such
Authenticating Agent, being advised by counsel, determines that such action may
not lawfully be taken or if the Trustee or such Authenticating Agent, in good
faith by its board of directors or trustees, executive committee or a trust
committee of directors or trustees and/or vice presidents, shall determine that
such action would expose the Trustee or such Authenticating Agent to personal
liability to existing Holders.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security and any temporary Bearer Security in global form shall be
dated as of the date specified as contemplated by Section 301. Each Security
will also bear an original issue date (the "Issue Date") which, with respect to
any Security (or portion thereof), shall mean the date of its original issuance
and shall be specified therein. The Issue Date shall remain the same for all
Securities subsequently issued upon transfer, exchange or substitution of
Securities, regardless of their dates of authentication.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein executed by the Trustee or any Authenticating Agent by manual signature,
and such certificate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Security Registrar for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) (a copy of which statement shall be delivered to the Trustee) stating
that such Security has never been issued and sold by the Company, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. Temporary Securities; Exchange of Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and, upon Company Order, the Trustee or an Authenticating
Agent, as the case may be, shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued, in registered form or,
if authorized, in bearer form with one or more coupons or without coupons, and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities may
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determine, as evidenced by their execution of such Securities. In the case of
any series issuable as Bearer Securities, such temporary Securities may be in
global form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions thereof), if temporary Securities
of any series are issued, the Company will cause definitive Securities of that
series to be prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities of such series
shall be exchangeable for definitive Securities of such series upon surrender of
the temporary Securities of such series at the office or agency of the Company
maintained pursuant to Section 1002 in a Place of Payment for such series for
the purpose of exchanges of Securities of such series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Securities
of any series (accompanied by any unmatured coupons appertaining thereto) the
Company shall execute and the Trustee or any Authenticating Agent shall
authenticate and deliver in exchange therefor a like aggregate principal amount
of definitive Securities of authorized denominations of the same series
containing identical terms and provisions; provided, however, that no definitive
Bearer Security, except as provided pursuant to Section 301, shall be delivered
in exchange for a temporary Registered Security; and provided further, that a
definitive Bearer Security shall be delivered in exchange for a temporary Bearer
Security only in compliance with the conditions set forth in Section 303. Unless
otherwise specified as contemplated by Section 301 with respect to a temporary
global Security, until so exchanged the temporary Security of any series shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
SECTION 305. Registration. Registration of Transfer and Exchange.
The Company shall cause to be kept for each series of Securities at one
of the offices or agencies maintained pursuant to Section 1002 a register (each
such register being referred to herein as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Registered Securities and the registration of
transfers of Registered Securities. The Trustee is hereby appointed "Security
Registrar" for the purpose of registering Registered Securities and transfers
and exchanges of Registered Securities as herein provided; provided, that the
Company may, from time to time, designate (or change any designation of) any
other Person or Persons to act as Security Registrar or co-Security Registrars
with respect to the Securities of one or more series, with notice to the Trustee
and as provided in Section 106 to the Holders. At all reasonable times the
Security Register shall be open for inspection by the Company. In the event that
the Trustee shall not be the Security Registrar, it shall have the right to
examine the Security Register at all reasonable times.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained pursuant to
Section 1002 for such purpose in a Place of Payment for such series, the Company
shall execute, and the Trustee or an Authenticating Agent shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Registered Securities of the same series and of like tenor of any authorized
denominations and of a like aggregate principal amount and Stated Maturity.
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At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and Stated Maturity, upon
surrender of the Securities to be exchanged at any such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee or an Authenticating Agent shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
If specified as contemplated by Section 301 with respect to Securities
of any series, at the option of the Holder, Bearer Securities of any series may
be exchanged for Registered Securities of the same series and of like tenor, of
any authorized denominations and of a like aggregate principal amount and Stated
Maturity, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured coupons and all matured coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured coupon or coupons or matured coupon or coupons in default,
such exchange may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company in an amount equal to the face amount
of such missing coupon or coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee or an Authenticating Agent
if there is furnished to them such Security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to any Paying Agent any such missing coupon in
respect of which such a payment shall have been made, such Holder shall be
entitled to receive the amount of such payment; provided, however, that, except
as otherwise provided in Section 1002, interest represented by coupons shall be
payable only upon presentation and surrender of those coupons at an office or
agency located outside the United States. Notwithstanding the foregoing, in case
a Bearer Security of any series is surrendered at any such office or agency in
exchange for a Registered Security of the same series and of like tenor after
the close of business at such office or agency on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the coupon
relating to such Interest Payment Date or proposed date for payment, as the case
may be, and interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee or an Authenticating Agent shall authenticate and
deliver, the Securities which the holder making the exchange is entitled to
receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the beneficial owners of interests in a
permanent global Security are entitled to exchange such interests for Securities
of such series and of like tenor and principal amount of another authorized form
and denomination as specified as contemplated by Section 301, then without
unnecessary delay but in any event not later than the earliest date on which
such interests may be
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so exchanged, the Company shall deliver to the Trustee or Authenticating Agent
definitive Securities in aggregate principal amount equal to the principal
amount of such permanent global Security, executed by the Company. On or after
the earliest date on which such interests may be so exchanged, such permanent
global Security shall be surrendered by the U.S. Depositary or such other
Depositary as shall be specified in the Company Order with respect thereto, to
the Trustee or an Authenticating Agent, as the Company's agent for such purpose,
to be exchanged, in whole or from time to time in part, for definitive
Securities without charge and the Trustee or Authenticating Agent shall
authenticate and deliver, in exchange for each portion of such permanent global
Security, an equal aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of such
permanent global Security to be exchanged which, unless the Securities of the
series are not issuable both as Bearer Securities and as Registered Securities,
as specified as contemplated by Section 301, shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof; provided, however, that no such
exchanges may occur during a period beginning at the opening of business 15 days
before any selection of Securities of that series to be redeemed and ending on
the relevant Redemption Date; and provided further, that (unless otherwise
specified as contemplated by Section 301) no Bearer Security delivered in
exchange for a portion of a permanent global Security shall be mailed or
otherwise delivered to any location in the United States. If a Registered
Security is issued in exchange for any portion of a permanent global Security
after the close of business at the office or agency where such exchange occurs
on (i) any Regular Record Date and before the opening of business at such office
or agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, interest or Defaulted Interest, as the
case may be, will not be payable on such Interest Payment Date or proposed date
for payment, as the case may be, in respect of such Registered Security, but
will be payable on such Interest Payment Date or proposed date for payment, as
the case may be, only to the Person to whom interest in respect of such portion
of such permanent global Security is payable in accordance with the provisions
of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Security
Registrar or any transfer agent) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar or any transfer agent duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
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Except as otherwise specified as contemplated by Section 301, the
Company shall not be required to (i) issue, register the transfer of or exchange
Securities of any series during a period beginning at the opening of business 15
days before any selection of Securities of that series to be redeemed and ending
at the close of business on (A) if Securities of the series are issuable only as
Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if Securities of the series are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption, or, if Securities of the series are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) register the transfer of or exchange any Registered Security
so selected for redemption, in whole or in part, except the unredeemed portion
of any Security being redeemed in part, (iii) exchange any Bearer Security so
selected for redemption except that such a Bearer Security may be exchanged for
a Registered Security of the same series and of like tenor, provided that such
Registered Security shall be simultaneously surrendered for redemption or (iv)
issue, register the transfer of or exchange any Security which, in accordance
with its terms specified as contemplated by Section 301, has been surrendered
for repayment at the option of the Holder, except the portion, if any, of such
Security not repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee or an Authenticating Agent, the
Company shall execute and the Trustee or such Authenticating Agent shall
authenticate and deliver in exchange therefor a new Security of the same series
and of like tenor and principal amount and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to the surrendered Security.
If there shall be delivered to the Company and the Trustee or an
Authenticating Agent (i) evidence to their satisfaction of the destruction, loss
or theft of any Security or coupon and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee or such
Authenticating Agent that such Security or coupon has been acquired by a bona
fide purchaser, the Company shall execute and upon its request the Trustee or
such Authenticating Agent shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and of like tenor
and principal amount and bearing a number not contemporaneously outstanding,
with coupons corresponding to the coupons, if any, appertaining to such
destroyed, lost or stolen Security or to the Security to which such destroyed,
lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security or coupon;
provided, however, that principal of (and premium, if any) and interest on
Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an office or agency located outside the United States and unless
otherwise specified as contemplated by Section 301, any interest on Bearer
Securities shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
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Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee or Authenticating
Agent) connected therewith.
Every new Security of any series, with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to which a destroyed, lost or stolen coupon
appertains shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security and its coupons,
if any, or the destroyed, lost or stolen coupon shall be at any time enforceable
by anyone, and any such new Security and coupons, if any, shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Securities of that series and of like tenor and their coupons, if any,
duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest on any Registered Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest. In case a Bearer Security of any series is
surrendered in exchange for a Registered Security of such series after the close
of business (at an office or agency in a Place of Payment for such series) on
any Regular Record Date and before the opening of business (at such office or
agency) on the next succeeding Interest Payment Date, such Bearer Security shall
be surrendered without the coupon relating to such Interest Payment Date and
interest will not be payable on such Interest Payment Date in respect of the
Registered Security issued in exchange of such Bearer Security, but will be
payable only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
Any interest on any Registered Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of
such Defaulted Interest. The Company shall, no less than 15 calendar
days prior to the date of the Special Record Date (fixed as set forth
below), notify the Trustee and the Paying Agent in writing of the
amount of Defaulted Interest proposed to be paid on each Registered
Security of such series and the date of the proposed payment, and at
the same time the Company shall deposit with the Paying Agent an amount
of
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money equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements satisfactory to
the Paying Agent for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit
of the Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Special Record Date for the payment of such
Defaulted Interest shall be the close of business on the tenth calendar
day prior to the date of the proposed payment. The Trustee shall in the
name and at the expense of the Company, cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
to be mailed, first class postage prepaid, to each Holder of Registered
Securities of such series at the address of such Holder as it appears
in the Security Register, not less than 10 calendar days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
clause (2). In case a Bearer Security of any series is surrendered at
the office or agency in a Place of Payment for such series in exchange
for a Registered Security of such series after the close of business at
such office or agency on any Special Record Date and before the opening
of business at such office or agency an the related proposed date for
payment of Defaulted Interest, such Bearer Security shall be
surrendered with the coupon relating to such proposed date of payment
and Defaulted Interest will not be payable on such proposed date of
payment in respect of the Registered Security issued in exchange for
such Bearer Security, but will be payable only to the Holder of such
coupon when due in accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
and the Paying Agent of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the Paying Agent.
At the option of the Company, interest on the Registered Securities of
any series that bears interest may be paid by mailing a check to the address of
any Holder as such address shall appear in the Securities Register.
Subject to the foregoing provisions of this Section 307 and Section
305, each Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Sections
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305 and 307) any interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and none of the Company,
the Trustee or any agent of the Company or the Trustee shall be affected by
notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
No owner of any beneficial interest in any global Security held on its
behalf by a Depositary shall have any rights under this Indenture with respect
to such global Security, and such Depositary may be treated by the Company, the
trustee, and any agent of the Company or the trustee as the owner of such global
Security for all purposes whatsoever. None of the Company, the Trustee, any
Paying Agent or the Security Registrar will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests of a global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Security Registrar,
be delivered to the Security Registrar. All Registered Securities and matured
coupons so delivered shall be promptly cancelled by the Security Registrar. All
Bearer Securities and unmatured coupons so delivered shall be held by the
Security Registrar and, upon instruction of the Company, shall be cancelled or
held for reissuance. Bearer Securities and unmatured coupons held for reissuance
may be reissued only in replacement of mutilated, lost, stolen or destroyed
Bearer Securities of the same series and of like tenor or the related coupons
pursuant to Section 306. All Bearer Securities and unmatured coupons held by the
Security Registrar pending such cancellation or reissuance shall be deemed to be
delivered for cancellation for all purposes of this Indenture and the
Securities. The Company may at any time deliver to the Security Registrar for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever and may deliver to
the Security Registrar (or to any Person f or delivery to the Security
Registrar) for cancellation any Securities previously authenticated hereunder
which the Company has not issued and sold, and all Securities so delivered shall
be promptly cancelled by the Security Registrar. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities and coupons held by the Security Registrar shall be disposed of as
directed by the Company.
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SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. Support Agreement.
If so provided for in a supplemental indenture hereto with respect to a
series of Securities, Holders of such series of Securities and coupons and the
Trustee will be entitled to the benefits of a Support Agreement on the terms,
and subject to the conditions, set forth in such Support Agreement; it being
understood and agreed that such series of Securities, including any coupons
appertaining thereto, shall constitute Debt (as defined in any such Support
Agreement) for purposes of such Support Agreement.
SECTION 312. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for, and any right to receive Additional
Amounts, as provided in Section 1004), and the Trustee, at the expense of the
Company, when
(1) either
(A) all Securities theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other
than (i) coupons appertaining to Bearer Securities surrendered
in exchange for Registered Securities and maturing after such
exchange, whose surrender is not required or has been waived
as provided in Section 305, (ii) Securities and coupons which
have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306, (iii) coupons
appertaining to Securities called for redemption and maturing
after the relevant Redemption Date, whose surrender has been
waived as provided in Section 1106, and (iv) Securities and
coupons for whose payment money has
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theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have
been delivered to the Security Registrar for cancellation; or
(B) all such Securities and, in the case of (i)
or (ii) below, any coupons appertaining thereto not
theretofore delivered to the Security Registrar for
cancellation
(i) have become due and payable; or
(ii) will become due and payable at their
Stated Maturity within one year; or
(iii) are to be called for redemption
within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose
an amount sufficient to pay and discharge the entire indebtedness on such
Securities and coupons not theretofore delivered to the Security Registrar for
cancellation, for principal (and premium, if any) and interest to the date of
such deposit (in the case of Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the rights, privileges and immunities of the Trustee under
Article Seven, the obligations of the Company to the Trustee under Section 606,
the obligations of the Trustee to any Authenticating Agent under Section 613
and, if money shall have been deposited with the Trustee pursuant to subclause
(B) of Clause (1) of this Section, the obligations of the Trustee under
Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 501 shall be held in trust
and applied by it, in accordance with the provisions of the Securities, the
coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for the payment of which such money has been
deposited with the Trustee.
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SECTION 403. Satisfaction, Discharge and Defeasance of Securities of any
Series.
If this Section is specified, as contemplated by Section 301, to be
applicable to Securities of any series, the Company shall be deemed to have paid
and discharged the entire indebtedness on all the Outstanding Securities of any
such series and the Trustee, at the expense of the Company and upon Company
Request, shall execute proper instruments acknowledging satisfaction and
discharge of such indebtedness, if
(1) either
(A) with respect to all Outstanding Securities
of such series,
(i) the Company has deposited or caused to
be deposited with the Trustee as trust funds in trust
for the purpose an amount sufficient to pay and
discharge the entire indebtedness on all outstanding
Securities of such series for principal (and premium,
if any) and interest to the Stated Maturity or any
Redemption Date as contemplated by the penultimate
paragraph of this Section, as the case may be; or
(ii) the Company has deposited or caused to
be deposited with the Trustee as obligations in trust
for the purpose such amount of direct noncallable
obligations of, or noncallable obligations the
payment of principal of and interest on which is
fully guaranteed by, the United States of America, or
to the payment of which obligations or guarantees the
full faith and credit of the United States of America
is pledged, maturing as to principal and interest in
such amounts and at such times as will, without
consideration of any reinvestment thereof, be
sufficient to pay and discharge the entire
indebtedness on all out standing Securities of such
series for principal (and premium, if any) and
interest to the Stated Maturity or any Redemption
Date as contemplated by the penultimate paragraph of
this Section, as the case may be; or
(B) the Company has properly fulfilled such other
means of satisfaction and discharge as is specified, as contemplated
by Section 301, to be applicable to the Securities of such series; and
(2) the Company has paid or caused to be paid all other sums payable
with respect to the Outstanding Securities of such series; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of the entire
indebtedness on all outstanding Securities of any such series have been complied
with.
Any deposits with the Trustee referred to in Section 403(l)(A) above
shall be irrevocable and shall be made under the terms of an escrow trust
agreement. If any Outstanding Securities of such series are to be redeemed prior
to their Stated Maturity, whether pursuant to any optional redemption provisions
or in accordance with any mandatory sinking fund requirements, the
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applicable escrow trust agreement shall provide therefor and the Company shall
make such arrangements as are satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Company.
Upon the satisfaction of the conditions set forth in this Section with
respect to all the Outstanding Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided, that the Company shall not be discharged
from any payment obligations in respect of Securities of such series which are
deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law or pursuant to Section 305 or 306.
SECTION 404. Reinstatement.
If the Trustee is unable to apply any money in accordance with Section
40l or Section 403 by reason of any legal proceeding or by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities and coupons, if any, of such series shall be
revived and reinstated as though no deposit had occurred pursuant to Section 401
or Section 403 until such time as the Trustee is permitted to apply all such
money in accordance with Section 401 or Section 403; provided, however, that if
the Company has made any payment of interest on or principal of (and premium, if
any, on) any Securities and coupons, if any, of such series because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such series of Securities and coupons, if any, to receive such
payment from the money held by the Trustee.
ARTICLE FIVE
REMEDIES
SECTIONS 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any of the following events (whatsoever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body) unless
it is either inapplicable to a particular series or it is specifically deleted
or modified in or pursuant to the supplemental indenture or Board Resolution
establishing such series of Securities or in the form of Security for such
series:
(1) default in the payment of any interest upon or any Additional
Amounts payable in respect of any Security of such series when such
interest or Additional Amounts become due and payable, and continuance of
such default for a period of 30 days; or
(2) default in the payment of the principal of (or any premium, if any,
on) any Security of such series at its Maturity; or
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(3) default in the deposit of any sinking fund payment, when and as due by
the terms of a Security of that series; or
(4) default in the observance or performance of any covenant or
agreement on its part to be observed or performed contained in this Indenture
(other than a covenant or agreement a default in the performance of which is
elsewhere in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of one or more series of
Securities other than that series), and continuance of such default or breach
for a period of ten (10) days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in principal amount of the outstanding Securities
of that series a written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) default in the observance or performance by DTE Energy of any
covenant or agreement contained in a Support Agreement, if any, with respect to
the Securities of such series; or
(6) any event of default by the Company, DTE Energy or any of their
respective Subsidiaries as defined in any mortgage, indenture or instrument
under which there may be issued, or by which there may be secured or evidenced,
any Debt of the Company, DTE Energy or any of their respective Subsidiaries, as
the case may be, whether such Debt now exists or shall hereafter be created,
resulting in such Debt in principal amount of at least $10,000,000 becoming or
being declared due and payable prior to the date on which it would otherwise
become due and payable, and such acceleration shall not be rescinded or annulled
within a period of 30 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in principal amount of the outstanding Securities
of that series a written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(7) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company, DTE Energy or DECO
in an involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or (B) a decree or
order adjudging the Company, DTE Energy or DECO bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company, DTE Energy or DECO
under any applicable federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company, DTE Energy or DECO or of any substantial part the property of the
Company, DTE Energy or DECO, or ordering the winding up or liquidation of the
affairs of the Company, DTE Energy or DECO, and the continuance of any such
decree or order for relief or any such other decree or order unstayed and in
effect for a period of 90 consecutive days; or
(8) the commencement by the Company, DTE Energy or DECO of a voluntary
case or proceeding under any applicable federal or state bankruptcy, insolvency,
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reorganization or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by the Company, DTE Energy
or DECO to the entry of a decree or order for relief in respect of it in an
involuntary case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by the
Company, DTE Energy or DECO of a petition or answer or consent seeking
reorganization or relief under any applicable federal or state law, or the
consent by it to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or similar official of the Company, DTE Energy or DECO or of any substantial
part of their respective property, or the making by it of an assignment for the
benefit of creditors, or the admission by the Company, DTE Energy or DECO in
writing of its inability to pay its debts generally as they become due, or the
taking of corporate action by the Company, DTE Energy or DECO in furtherance of
any such action;
(9) final judgment of money in excess of $10,000,000, singularly or
in the aggregate, shall be rendered against the Company, DTE Energy or
any of their respective Subsidiaries and shall remain undischarged for
a period (during which execution shall not be effectively stayed) of 10
days after such judgment becomes final; or
(10) DTE Energy shall, at any time, directly or indirectly cease to
hold 100% of the Voting Stock of the Company or DECO; or
(11) any other Event of Default provided in or pursuant to this
Indenture with respect to Securities of such series.
SECTION 502. Acceleration of Maturity: Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case either the
Trustee or the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
any of the Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified in
the terms of that series) of all of the Securities of that series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal amount (or
specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made, but before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on and any Additional Amounts
payable in respect of all Securities of that series,
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(B) the principal of (and premium, if any, on) any
Securities of that series which has become due otherwise than
by such declaration of acceleration and any interest thereon
at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the non payment of the principal of Securities
which has become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 613.
No such rescission shall affect any subsequent default or, impair any
right consequent thereon.
An Event of Default described in paragraph (7) or (8) of Section 501
shall cause the principal amount and accrued interest (or such lessor amount as
provided for in the Securities of such series) to become immediately due and
payable without any declaration or other act by the Trustee or any Holder.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in payment of any interest on or any
Additional Amounts payable in respect of any Security when such
interest or Additional Amounts become due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and coupons, the whole amount then due and payable on
such Securities and coupons for principal (and premium, if any) and interest or
Additional Amounts, if any, and, to the extent that payment of such interest
shall be legally enforceable, interest on any overdue principal (and premium, if
any) and on any overdue interest or any Additional Amounts, at the rate or rates
prescribed therefor in such Securities and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect
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the moneys adjudged or decreed to be payable in the manner provided by law out
of the property of the Company or any other obligor upon such Securities,
wherever situated.
If an Event of Default occurs and is continuing with respect to
Securities of any series, the Trustee may in its discretion proceed to protect
and enforce its rights, including the rights of the Holders of Securities of
such series and any related coupons, by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy including, without limitation, instituting a proceeding
prior to any declaration of acceleration of the Maturity of the Securities for
the collection of all amounts then due and unpaid on the Securities, prosecuting
such proceeding to final judgment or decree and collecting out of the property,
wherever situated, of the Company the moneys adjudged or decreed to be payable
in the manner provided by law.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company, DTE Energy or DECO or any other
obligor upon the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal
of the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of any overdue principal or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest and any
Additional Amounts owing and unpaid in respect of the
Securities and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders of Securities and
coupons allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute
the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such Judicial proceeding is hereby authorized by
each Holder of Securities and coupons to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities and coupons, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any
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Holder thereof or to authorize the Trustee to vote in respect of the claim of
any Holder of a Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons.
All rights of action and claims under this Indenture or the Securities
or coupons may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or coupons or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities and coupons in respect
of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest or any Additional Amounts, upon presentation of the
Securities or coupons, or both, as the case may be, and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
606;
SECOND: To the payment of the amounts then due and unpaid for principal
of (and premium, if any) and interest or any Additional Amounts payable in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities and coupons for principal and any premium and
interest or any Additional Amounts, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related coupons shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made a written request to
the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
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(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture (including, without limitation, the provisions of Section 512)
to affect, disturb or prejudice the rights of any other of such Holders, or to
obtain or to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Sections 305 and 307) any interest on or any Additional Amounts in
respect of such Security or payment of such coupon on the Stated Maturity or
Maturities expressed in such Security or coupon (or, in the case of redemption,
on the Redemption Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, the Trustee
and the Holders of Securities and coupons shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or coupons in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders of Securities or coupons is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
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SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to the Holders of Securities or coupons may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders of Securities or coupons, as the case may be.
SECTION 512. Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series and any coupons appertaining thereto; provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) the Trustee shall have the right to decline to follow any such
direction if the Trustee in good faith shall, by a Responsible Officer or
officers of the Trustee, determine that the action so directed would
involve the Trustee in personal liability.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series and any related coupons waive any past default
hereunder with respect to the Securities of such series and its consequences,
except a default
(1) in the payment of the principal of (or premium, if any) or
interest on or Additional Amounts payable in respect of any Security of
such series or coupons appertaining thereto, or
(2) in respect of a covenant or provision hereof which under Article
Ten cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default with respect to such series arising therefrom shall be
deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
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SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security or
coupon by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder of any Security or coupon for the enforcement of the payment of the
principal of (or premium, if any) or interest on or any Additional Amounts in
respect of any Security or the payment of any coupon on or after the Stated
Maturity or Maturities expressed in such Security or coupon (or, in the case of
redemption, on or after the Redemption Date).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit in the
manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
notice of such default hereunder known to the Trustee, unless such default shall
have been cured or waived; provided, however, that, except in the case of a
default in the payment of the principal of (or premium, if any) or interest or
any Additional Amounts with respect to, any Security of such series, the Trustee
shall be protected in withholding such notice of and so long as the board of
directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders of Securities of
such series; and provided, further, that in the case of any default of the
character specified in Section 501(4) with respect to Securities of such series,
no such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event
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which is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
SECTION 602. Certain Rights of Trustee.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not herein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section. Subject to the provisions of Sections
315(a) through 315(d) of the Trust Indenture Act:
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon, other evidence of
indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or
Company Order or as otherwise expressly provided herein and any
resolution of the Board of Directors may be sufficiently evidenced
by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series or any
related coupons pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the
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Trustee shall determine to make such further inquiry or investigation,
it shall be entitled to examine the books, records and premises of
the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or
by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;
(h) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred upon it
by this Indenture; and
(i) the Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of
any of its duties hereunder or in the exercise of any of its rights or
powers if it shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
SECTION 603. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities (except the
Trustee's certificates of authentication) and in any coupons shall be taken as
the statements of the Company, and the Trustee or any Authenticating Agent
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and, if applicable, that the statements
made by it in a Statement of Eligibility on Form T-1 supplied to the Company are
true and accurate, subject to the qualifications set forth therein. The Trustee
or any Authenticating Agent shall not be accountable for the use or application
by the Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and coupons and, subject
to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise deal with
the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or other agent.
SECTION 605. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
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SECTION 606. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of (premium, if any) or
interest, if any, on particular Securities.
The obligations of the Company under this Section to compensate and
indemnify the Trustee for expenses, disbursements and advances shall constitute
additional indebtedness under this Indenture and shall survive the resignation
or removal of the Trustee, the satisfaction and discharge of this Indenture and
any rejection or termination of this Indenture under any applicable bankruptcy
law.
If the Trustee incurs expenses or renders services after an Event of
Default specified in Section 501(7) or (8) has occurred, those expenses
(including the reasonable charges and expenses of its agents and attorneys) and
its compensation for services shall be preferred over the status of the Holders
in any reorganization or similar proceeding and the parties hereto, and the
Holders, by their acceptance of the Securities, hereby agree that such expenses,
compensation and indemnity are intended to constitute expenses of administration
under any applicable bankruptcy law.
SECTION 607. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that is a corporation
permitted by Section 310(a)(1) and (5) of the Trust Indenture Act to act as
trustee under the Trust Indenture Act, and that has a combined capital, and
surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture
Act) of at least $50,000,000. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
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SECTION 608. Disqualification, Conflicting Interests.
If the Trustee has or shall acquire any conflicting interest, as
defined in Section 310(b) of the Trust Indenture Act, with respect to the
Securities of any series, the Trustee shall either eliminate such conflicting
interest or resign, to the extent and in the manner provided by, and subject to,
Section 310 of the Trust Indenture Act and this Indenture.
SECTION 609. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 610.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to
the Company. If the instrument of acceptance by a successor Trustee
required by Section 610 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities
of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered
to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the obligations
imposed on it under Section 310(b) of the Trust Indenture Act after
written request therefor by the Company or by any Holder of a
Security who has been a bona fide Holder of a Security for at least
six months, or
(2) the Trustee shall cease to be eligible under Section
607 and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by Company Order may remove the Trustee
with respect to all Securities, or (ii) subject to Section 514, any Holder of a
Security who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated (including those who
have been Holders for less than six months), petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
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(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, with respect to the Securities of one or more
series, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or
those series (it being understood that any such successor Trustee may
be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and such successor
Trustee or Trustees shall comply with the applicable requirements of
Section 610. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act
of the Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable
requirements of Section 610, become the successor Trustee with respect
to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee
with respect to the Securities of any series shall have been so
appointed by the Company or the Holders of Securities and accepted
appointment in the manner required by Section 610, any Holder of a
Security who has been a bona fide Holder of a Security of such series
for at least six months may, on behalf of himself and all others
similarly situated (including those who have been Holders for less than
six months), petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of
such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities
of any series by mailing written notice of such event by first class
mail, postage prepaid, to the Holders of Registered Securities, if any,
of such series as their names and addresses appear in the Security
Register and, if Securities of such series are issued as Bearer
Securities, by publishing notice of such event once in an Authorized
Newspaper in each Place of Payment located outside the United States.
Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its
Corporate Trust Office.
SECTION 610. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to
the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder.
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(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor Trustee
with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor Trustee
shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such
Trustees as co-trustees of the same trust and that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee;
and upon the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective
to the extent provided therein and each such successor Trustee, without
any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company or any
successor Trustee, such retiring Trustee shall duly assign, transfer
and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that
or those series to which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in paragraph (a) or (b) of this Section,
as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
SECTION 611. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
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authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 612. Preferential Collection of Claims Against the Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of Section 311 of the Trust Indenture Act regarding the collection of
claims against the Company (or any such other obligor).
SECTION 613. Appointment of Authenticating Agent.
The Trustee may, with the consent of the Company, appoint an
Authenticating Agent or Authenticating Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue or upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 306, and if the Trustee is required to appoint one or more
Authenticating Agents with respect to any series of Securities, to authenticate
Securities of such series upon original issuance and to take such other actions
as are specified in Sections 303, 304 and 309, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Notwithstanding
anything to the contrary in this Section 613 or in any other Section of this
Indenture, an Authenticating Agent shall not be authorized to authenticate
Securities constituting the first issuance of Securities of any series until and
unless the requirements of Section 301 hereof have been, or are concurrently
therewith being, complied with.
Each Authenticating Agent shall be acceptable to the Company, and
except as specified by Section 301, each Authenticating Agent shall at all times
be a corporation that would be permitted by Section 310(a) (1) and (5) of the
Trust Indenture Act to be able to act as a trustee under an indenture qualified
under the Trust Indenture Act, is authorized under applicable law and by its
charter to act as such and that has a combined capital and surplus (computed in
accordance with Section 310(a) (2) of the Trust Indenture Act) of not less than
$50,000,000. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this
Section. If the Authenticating Agent has or shall acquire any conflicting,
interest, as defined in Section 310(b) of the Trust Indenture Act, with respect
to Securities of any series, the Authenticating Agent shall take action as is
required pursuant to said Section 310(b).
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party or any corporation succeeding to the corporate agency or
corporate trust business of such Authenticating Agent, shall continue to be an
Authenticating Agent; provided, that such corporation shall be otherwise
eligible under
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this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or such Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first class mail, postage prepaid, to all Holders of
Registered Securities, if any, of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register. Any successor. Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section. If the Trustee
makes such payments, it shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 606.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
The Bank of New York
as Trustee
__________________________________
As Authenticating Agent
By________________________________
Authorized Signatory
If all of the Securities of a series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested by the Company in writing (which writing
need not comply with Section 102 and need not be accompanied by an opinion of
Counsel), shall appoint in, accordance with this Section an Authenticating Agent
having an office in a Place of Payment designated by the Company with respect to
such series of Securities.
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the
Company will furnish or cause to be furnished to the Trustee:
(a) semiannually, on dates mutually acceptable to the Trustee
and the Company, a list, in such form as the Trustee may reasonably
require, the names and addresses of the Holders of Securities as of a
date mutually acceptable to the Trustee and the Company, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content, such list to be dated as of a date
not more than 15 days prior to the time such list is furnished;
notwithstanding the foregoing, so long as the Trustee is the Security Registrar
with respect to a particular series of Securities, no such list shall be
required to be furnished in respect of such series.
SECTION 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders of Securities in accordance with Section 312 of the Trust Indenture Act,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under Section 312(b) of the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) Within 60 days after June 15 of each year commencing with
the year following the first issuance of Securities pursuant to Section
301, if required by Section 313(a) of the Trust Indenture Act, the
Trustee shall transmit pursuant to Section 313(c) of
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the Trust Indenture Act, a brief report dated as of such June 15
with respect to any of the events specified in said Section 313(g)
which may have occurred since the later of the immediately preceding
June 15 and the date of this Indenture.
(b) The Trustee shall transmit the reports required by Section
313(a) of the Trust Indenture Act at the times specified therein.
(c) Reports pursuant to this Section shall be transmitted in
the manner and to the Persons required by Sections 313(c) and (d) of
the Trust Indenture Act.
SECTION 704. Reports by Company.
(a) The Company, pursuant to Section 314(a) of the Trust Indenture
Act, shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required
to file information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Exchange Act in respect of a Security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(2) unless the Company furnishes information to the Commission in
accordance with Rule 12g3-2(b) under or pursuant to Section 13 or 15(d)
of the Exchange Act, the Company shall promptly furnish or cause to be
furnished such information as is specified pursuant to Rule 144(d)(4)
under the Securities Act (or any successor provision thereto) to any
Holder or beneficial owner of a Security or to a prospective purchaser
of a Security who is designated by such Holder or beneficial owner and
is a qualified institutional buyer (as defined in Rule 144A), upon the
request of such Holder or beneficial owner or prospective purchaser, in
order to permit compliance by such Holder or beneficial owner with Rule
144A under the Securities Act.
(3) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations;
(4) transmit within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in Section 313(c) of
the Trust Indenture Act, such summaries of any information, documents
and reports required to be filed by the Company pursuant to paragraphs
(1) and (2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission; and
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(5) transmit within 30 days after June 15 of each year to the
Trustee, a brief certificate from the principal executive officer,
principal financial officer or principal accounting officer of the
Company as to his or her knowledge of such obligor's compliance with
all conditions and covenants under the Indenture as determined without
regard to any period of grace or requirement of notice provided under
the Indenture.
In addition, the Company shall furnish, or cause to be furnished, to
the Trustee:
(6) as soon as available and in any event within 90 days after the
end of each fiscal year of the Company, a copy of the Consolidated (as
defined herein) balance sheet of the Company and its Subsidiaries, if
any, as of the end of such fiscal year and Consolidated statements of
income, cash flows and changes in shareholder's equity of the Company
and its Subsidiaries, if any, for such fiscal year, in each case
accompanied by an opinion by Deloitte & Touche LLP or other nationally
recognized firm of independent public accountants, in each case having
been prepared in accordance with GAAP;
(7) as soon as available and in any event within 45 days after the
end of each of the first three quarters of each fiscal year of the
Company, the unaudited Consolidated balance sheet of the Company and
its Subsidiaries, if any, as of the end of such quarter and unaudited
Consolidated statements of income, cash flows and changes in
shareholder's equity of the Company and its Subsidiaries, if any, for
such quarter and for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, duly certified
(subject to year-end audit adjustments) by a financial officer of the
Company as having been prepared in accordance with GAAP;
(8) as soon as available and in any event within 90 days after the
end of each fiscal year of DTE Energy, a copy of the annual report to
shareholders for such year for DTE Energy and its Subsidiaries,
containing the Consolidated balance sheet of DTE Energy and its
Subsidiaries as of the end of each fiscal year and Consolidated
statements of income, cash flows and changes in shareholders' equity of
DTE Energy and its Subsidiaries for such fiscal year, in each case
accompanied by an opinion by Deloitte & Touche LLP or other nationally
recognized firm of independent public accountants having been prepared
in accordance with GAAP;
(9) as soon as available and in any event within 45 days after the
end of each of the first three quarters of each fiscal year of DTE
Energy, the unaudited Consolidated balance sheet of DTE Energy and its
Subsidiaries as of the end of such quarter and unaudited Consolidated
statements of income, cash flows and changes in shareholders' equity of
DTE Energy and its Subsidiaries for such quarter and for the period
commencing at the end of the previous fiscal year and ending with the
end of such quarter; and
(10) promptly after sending or filing thereof, copies of all other
reports and registration statements that the Company or any of its
Subsidiaries, if any, files with the Commission or any national
securities exchange.
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(11) as soon as possible, and in any event within five days after
the occurrence of each Event of Default (or an event that, with the
passage of time or the giving of notice, or both, would become an Event
of Default) continuing on the date of such statement, a statement of
the chief financial officer of the Company setting forth details of
such Event of Default or event and the action that the Company has
taken and proposes to take with respect thereto.
(b) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein
or determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not merge or consolidate with or into any other
Person or convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired) to any Person, or permit any of
its Subsidiaries to do so, and the Company shall not permit any Person to
consolidate into with or merge with the Company or any Subsidiary or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions all or substantially all of its assets to the Company or
any Subsidiary, unless:
(1) in case the Company or any Subsidiary shall consolidate with
or merge into another Person or convey, transfer or lease its
properties and assets as an entity or substantially as an entirety to
any Person, the Person formed by such consolidation or into which the
Company or any Subsidiary is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and assets of
the Company or any Subsidiary as an entity or substantially as an
entirety shall be a [corporation, partnership or trust,] shall be
organized and validly existing under the laws of the United States of
America, any state thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, the due and punctual payment of the principal
of (and premium, if any) and interest (including all Additional
Amounts, if any, payable pursuant to Section 1004) on all the
Securities and the performance of every covenant of this Indenture on
the part of the Company to be performed or observed;
(2) at the time of such proposed transaction and immediately after
giving effect to such transaction and treating any indebtedness which
becomes an obligation of the Company or a Subsidiary as a result of
such transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of Default, and no
event which, after notice or lapse of time or both, would become an
Event of Default, shall have occurred and be continuing; and
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(3) the Company or the successor Person shall have delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance, transfer or lease
and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and
Article Nine and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 802. Successor Person Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company as an entity or substantially as an entirety in
accordance with Section 801, the successor Person formed by such consolidation
or into which the Company is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if
such successor Person had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities and coupons.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the
Company, when authorized by or pursuant to a Board Resolution, and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto for any of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the
Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are
to be for the benefit of less than all series of Securities, stating
that such covenants are expressly being included solely for the benefit
of such series) or to surrender any right or power herein conferred
upon the Company with respect to all or any series of the Securities;
or
(3) to add any additional Events of Default with respect to all or
any series of the Securities (and, if such Event of Default is
applicable to less than all series of Securities, specifying the series
to which such Event of Default is applicable); or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of (or
premium, if any) or interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered Securities,
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to permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit or facilitate
the issuance of Securities in uncertificated form; provided, that any
such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect; or
(5) to establish the form or terms of Securities of any series and
any related coupons as permitted by Sections 201 and 301; or
(6) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 610(b); or
(7) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make or amend any other provisions with respect to
matters or questions arising under this Indenture; provided, that such
other provisions as may be made shall not adversely affect the
interests of the Holders of Securities of any series or any related
coupons in any material respect; or
(8) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary or helpful to effect the
qualification of the Indenture under the Trust Indenture Act and to
modify, eliminate or add to the provisions of this Indenture to such
extent as shall be necessary or helpful to conform to any mandatory or
optional provisions of the Trust Indenture Act as the same may from
time to time be amended; or
(9) to add to, delete from or revise the conditions, limitations
and restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities, as herein set forth; or
(10) to modify, eliminate or add to the provisions of any Security
to allow for such Security to be held in certificated form by the
Holder thereof; or
(11) to secure the Securities of the applicable series; or
(12) to amend or supplement any provision contained herein or in
any supplemental indenture, provided that no such amendment or
supplement shall adversely affect the interests of the Holders of any
Securities then Outstanding in any material respect; or
(13) to modify, delete or add to any of the provisions of this
Indenture other than as contemplated by clauses (1) through (10) of
this Section, provided that any such modification, deletion or addition
shall become effective only with respect to series of Securities
established pursuant to Section 301 after the effective date of such
modification, deletion or addition.
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SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
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 modifying in any manner the rights of the
Holders of Securities of such series and any related coupons under this
Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security affected thereby,
(1)change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or change any obligation of the
Company to pay Additional Amounts pursuant to Section 1004 (except as
contemplated by Section 801(1) and permitted by Section 901(1)), or
reduce the amount of the principal of an original Issue Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or change
the Place of Payment, coin or currency in which any Security or any
premium or any interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date); or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or reduce the requirements of Section
1304 for quorum or voting; or
(3) change any obligation of the Company to maintain an office or
agency in the places and for the purposes specified in Section 1002(2);
or
(4) modify any of the provisions of this Section, Section 513 or
Section 1010, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
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It shall not be necessary for any Act of Holders of Securities under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 315 of the Trust Indenture Act) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties, immunities or liabilities under
this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
and of any coupons appertaining shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Company, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated delivered by the
Trustee or an Authenticating Agent in exchange for Outstanding Securities of
such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on or any Additional Amounts payable in respect of the
Securities of that series in accordance with the terms of the Securities, any
coupons appertaining thereto and this Indenture. Unless otherwise specified as
contemplated by Section 301 with respect to any series of Securities; any
interest due on and any Additional Amounts payable in respect of Bearer
Securities other than Additional Amounts, if
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any, payable as provided in Section 1004 in respect of principal of (or premium,
if any, on) such Security shall be payable only upon presentation and surrender
of the several coupons for such interest installments as are evidenced thereby
as they severally mature.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for such series (but
not Bearer Securities, except as otherwise provided below, unless such Place of
Payment is located outside the United States) an office or agency where
Securities of that series may be presented or surrendered for payments, where
Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. If Securities of a
series are issuable as Bearer Securities, the Company will maintain, subject to
any laws or regulations applicable thereto, in a Place of Payment for that
series located outside the United States, an office or agency where Securities
of that series and related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Securities of that
series pursuant to Section 1004); provided, however, that if the Securities of
that series are listed on The Stock Exchange of the United Kingdom and the
Republic of Ireland, the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so require, the
Company will maintain a Paying Agent for the Securities of that series in
London, Luxembourg or any other required city located outside the United States,
as the case may be, so long as the Securities of that series are listed on such
exchange. The Company will give prompt written notice to the Trustee and the
Holders of such series of the location, and any change in the location, of any
such office or agency. If at any time the Company shall fail to maintain any
such required office or agency in respect of any series of Securities or shall
fail to furnish the Trustee with the address thereof, such presentations and
surrenders of Securities of that series may be made and notices and demands may
be made or served at the Corporate Trust Office of the Trustee, except that
Bearer Securities of that series and the related coupons may be presented and
surrendered for payment (including payment of any Additional Amounts payable on
Bearer Securities of that series pursuant to Section 1004) at the place
specified for that purpose pursuant to Section 301, and the Company hereby
appoints the same as its agent to receive such respective presentations,
surrenders, notices and demands.
Except as otherwise specified or contemplated by Section 301, no
payment of principal, premium or interest on Bearer Securities shall be made at
any office or agency of the Company in the United States or by check mailed to
any address in the United States or by transfer to an account maintained with a
bank located in the United States; provided, however, that, if the Securities of
a series are denominated and payable in Dollars, payment of principal of (and
premium, if any) and interest on any Bearer Security (including any Additional
Amounts payable on Securities of such series pursuant to Section 1004) shall be
made at the office of the Company's Paying Agent in the Borough of Manhattan,
The City of New York, if (but only if) payment in Dollars of the full amount of
such principal, premium, interest or Additional Amounts, as the case may be, at
all offices or agencies outside the United States maintained for that purpose by
the Company in accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions.
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The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to the
Trustee and the Holders of such series of any such designation or rescission and
of any change in the location of any such other office or agency. Unless
otherwise specified as contemplated by Section 301, the Company hereby
designates as the Place of Payment for each series the Corporate Trust Office.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or before each due date of the principal of
(and premium, if any) or interest on any Securities of that series, deposit with
a Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1)hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Securities of that series in trust
for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal of (and premium, if any) or interest on the
Securities of that series and, if so, the amount of such defaulted
payment; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were
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held by the Company or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Except as otherwise provided hereby or pursuant hereto, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium, if any) or interest or
Additional Amounts on any Security of any series and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security or any coupon
appertaining thereto shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense and at the direction of the Company cause to be published
once, in an Authorized Newspaper in each Place of Payment, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 1004. Additional Amounts.
If the Securities of a series provide for the payment of Additional
Amounts, the Company will pay to the Holder of any Security of such series or
any coupon appertaining thereto Additional Amounts as provided therein. Whenever
in this Indenture there is mentioned, in any context, the payment of the
principal of or any premium or interest on, or in respect of, any Security of
any series or payment of any related coupon or the net proceeds received on the
sale or exchange of any Security of any series, such mention shall be deemed to
include mention of the payment of Additional Amounts provided for in this
Section to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to the provisions of this Section
and express mention of the payment of Additional Amounts (if applicable) in any
provisions hereof shall not be construed as excluding Additional Amounts in
those provisions hereof where such express mention is not made.
Except as otherwise provided herein or pursuant hereto, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of principal and any
premium or interest if there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certificate, the Company will furnish the
Trustee and the principal Paying Agent or Paying Agents, if other than the
Trustee, with an Officers Certificate instructing the Trustee and such Paying
Agent or Paying Agents whether such payment of principal of and any premium or
interest on the Securities of that series shall be made to Holders of Securities
of that series or any related coupons who are United States Aliens without
withholding for or on account of any tax, assessment or other governmental
charge described in the Securities of that series. If any such withholding shall
be required, then such Officers' Certificate shall specify by country the
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amount, if any, required to be withheld on such payments to such Holders of
Securities or coupons and the Company will pay to such Paying Agent the
Additional Amounts required by this Section. The Company covenants to indemnify
the Trustee and any Paying Agent for, and to hold them harmless against any
loss, liability or expense reasonably incurred without negligence or bad faith
on their part arising out of or in connection with actions taken or omitted by
any of them in reliance on any Officers' Certificate furnished pursuant to this
Section.
SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Company and the
Holders.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1007. Change in Nature of Business.
The Company will not make any material change in the nature of its
business as carried on at the date of the issuance of the Securities.
SECTION 1008. Accounting Changes.
The Company will not make or permit, or permit any of its Subsidiaries
to make or permit, any change in accounting policies or reporting practices,
except as required or permitted by GAAP.
SECTION 1009. Statement by Officers as to Default .
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company (which as of the date hereof ends on December
31 of each year) ending after the date hereof so long as any Security is
outstanding hereunder, an Officers' Certificate, stating that in the course of
the performance by the signers of their duties as such officers of the Company
or Company Agent(s) they would normally obtain knowledge of any default by the
Company in the performance or fulfillment of any covenant, agreement or
condition contained in this Indenture, and stating whether or not they have
obtained knowledge of any such default existing on the date
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of such statement and, if so, specifying each such default of which the signers
have knowledge and the nature thereof.
SECTION 1010. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1001 to 1008, inclusive, with
respect to the Securities of any series if before the time for such compliance
the Holders of at least 66-2/3% in principal amount of the outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise provided herein or therein pursuant hereto) in accordance with this
Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by either a Board Resolution or an Officers' Certificate. In the case
of any redemption at the election of the Company of less than all the Securities
of any series, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the principal amount
of Securities of such series to be redeemed. In the case of any redemption of
Securities (i) prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, or (ii)
pursuant to an election of the Company which is subject to a condition specified
in the terms of such Securities, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction or condition.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series with identical terms and
conditions are to be redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series not previously called for redemption,
by lot or by such other method as the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of portions (equal to the
minimum authorized denomination for Securities of that series or any integral
multiple thereof) of the principal amount of Registered Securities of such
series of a denomination larger than the minimum authorized denomination for
Securities of that series. Notwithstanding the preceding
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sentence, if the list of Holders of Securities of any series to be redeemed is
maintained by computer or other data processing equipment by a Security
Registrar, a Paying Agent or another Person authorized to maintain such a list
under this Indenture, the Trustee may, and if reasonably requested by the
Company shall, utilize the computer or data processing equipment of such
Security Registrar, Paying Agent or other authorized Person for the purpose of
determining by lot or by such other method as the Trustee shall deem fair and
appropriate the Securities to be redeemed. No partial redemption shall reduce
the portion of the principal amount of a Registered Security of a series not
redeemed to less than the minimum denominations for a Security of such series
established herein pursuant hereto.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
106 to the Holders of Securities to be redeemed not less than 30 nor more than
60 days prior to the Redemption Date unless a shorter period is specified
pursuant to Section 301 with respect to the Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to
be redeemed,
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon and Additional Amounts, if any,
will cease to accrue on and after said date,
(5) the place or places where such Securities, together in the
case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for
payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the
case, and
(7) The CUSIP numbers of the Securities to be so redeemed.
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A notice of redemption published as contemplated by Section 106
need not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company, in which event the
Company shall provide the Trustee with the information required by Clauses (1)
through (6) above.
If at the time notice of redemption shall be given the Company shall
not have deposited with a Paying Agent and/or irrevocably directed the Trustee
or a Paying Agent to apply, from money held by it available to be used for the
redemption of Securities which are to be redeemed, an amount in cash sufficient
to redeem all of the Securities called for redemption, including accrued
interest and Additional Amounts to the Redemption Date, such notice shall state
that it is subject to the receipt of the redemption monies by the Trustee or a
Paying Agent on or before the Redemption Date and such notice shall be of no
effect unless such monies are so received before such date.
SECTION 1105. Deposit of Redemption Price.
On or before any Redemption Date, the Company shall deposit with a
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 1003) an amount of money sufficient to
pay the Redemption Price of, and (except if the Redemption Date shall be an
Interest Payment Date) accrued interest on and any Additional Amounts with
respect thereto, all the Securities which are to be redeemed on that date The
Paying Agent shall provide notice to the Trustee of such deposit.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid if required
pursuant to the terms of the Securities being redeemed, the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be redeemed, except to the extent
provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest (and
any Additional Amounts) to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest; and provided, further,
that, unless otherwise specified as contemplated by Section 301, installments of
interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
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If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee or Authenticating
Agent if there be furnished to them such Security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to the Trustee or Authenticating Agent
or any paying Agent any such missing coupon in respect of which a deduction
shall have been made from the Redemption Price, such Holder shall be entitled to
receive the amount so deducted; provided, however, that interest represented by
coupons shall be payable only at an office or agency located outside the United
states (except as otherwise provided in Section 1002) and, unless otherwise
specified as contemplated by Section 301, only upon presentation and surrender
of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Security
Registrar so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Security Registrar duly executed by,
the Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Trustee or Authenticating Agent shall authenticate and
deliver to the Holder of such Security without service charge, a new Registered
Security or Securities of the same series and of like tenor, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered. If a Security in global form is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the U.S. Depositary
or other Depositary for such Security in global form as shall be specified in
the Company Order with respect thereto to the Trustee, without service charge, a
new Security in global form in a denomination equal to and in exchange for the
Unredeemed portion of the principal of the Security in global form so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series
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is herein referred to as an "optional sinking fund payment". If provided for by
the terms of Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto, and
(2) may apply as a credit Securities of a series which have been redeemed either
at the election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments pursuant to
the terms of such Securities, in each case in satisfaction of all or any part of
any sinking fund payment with respect to the Securities of such series required
to be made pursuant to the terms of such Securities as provided for by the terms
of such series; provided, that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Security Registrar at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for
Securities of any series, the Company will deliver to the Trustee a Company
Order specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities of that
series pursuant to Section 1202 and will also deliver to the Security Registrar
any Securities to be so delivered. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in or permitted by
Section 1103 and cause notice of the redemption thereof to be given in the name
of and at the expense of the Company in the manner provided in Section 1104.
Such notice having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any or all series may be called
at any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
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SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1301, to
be held at such time and at such place in the Borough of Manhattan, The
City of New York, or if the Securities of such series are issued as
Bearer Securities, in London as the Trustee shall determine. Notice of
every meeting of Holders of Securities of any series, setting forth the
time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, not less than 20 nor more than 180 days prior
to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in aggregate principal
amount of the outstanding Securities of any series shall have requested
the Trustee to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 1301, by written request
setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication
of the notice of such meeting within 20 days after receipt of such
request or shall not thereafter proceed to cause the meeting to be held
as provided herein, then the Company or the Holders of Securities of
such series in the amount above specified, as the case may be, may
determine the time and the place in the Borough of Manhattan, The City
of New York, or in London, as the case may be, for such meeting and may
call such meeting for such purposes by giving notice thereof as
provided in subsection (a) of this Section.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series; provided, however, that if any
action is to be taken at such meeting with respect to a consent or waiver which
this Indenture expressly provides may be given by the Holders of not less than
66-2/3% in aggregate principal amount of the Outstanding Securities of a series,
the Persons entitled to vote 66-2/3% in aggregate principal amount of the
Outstanding Securities of such series shall constitute a quorum. In the absence
of a quorum within 30 minutes of the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of Securities of such
series, be dissolved. In any other case, the meeting may be adjourned for a
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such
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adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1302(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the aggregate principal amount
of the outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of that
series; provided, however, that, except as limited by the proviso to Section
902, any resolution with respect to any consent or waiver which this Indenture
expressly provides may be given by the Holders of not less than 66-2/3% in
aggregate principal amount of the outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly convened and at which a quorum
is present as aforesaid only by the affirmative vote of the Holders of 66-2/3%
in aggregate principal amount of the outstanding Securities of that series; and
provided, further, that, except as limited by the proviso to Section 902, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is
less than a majority, in aggregate principal amount of the Outstanding
Securities of a series may be adopted at a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid by the affirmative vote
of the Holders of such specified percentage in aggregate principal amount of the
Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of a series and the related coupons,
whether or not present or represented at the meeting.
SECTION 1305. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable
for any meeting of Holders of Securities of a series in regard to proof
of the holding of Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors of
votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning
the conduct of the meeting as it shall deem appropriate. Except as
otherwise permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 104 and
the appointment of any proxy shall be proved in the manner specified in
Section 104 or by having the signature of the person executing the
proxy witnessed or guaranteed by any trust company, bank or banker
authorized by Section 104 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 104 or other proof.
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(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in
Section 1302(b), in which case the Company or the Holders of Securities
of the series calling the meeting, as the case may be, shall appoint a
temporary chairman. A permanent chairman and a permanent secretary of
the meeting shall be elected by vote of the Persons entitled to vote a
majority in aggregate principal amount of the Outstanding Securities of
such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series and
each proxy shall be entitled to one vote for each $1,000 principal
amount of the Outstanding Securities of such series held or represented
by him; provided, however, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not outstanding and
ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote, except as a Holder
of a Security of such series or as a proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1302 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of such series
represented at the meeting; and the meeting may be held as so adjourned
without further notice.
SECTION 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to such record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that such a notice was given as provided in Section 1302 and, if
applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed and attested, all as of the day and year first above written.
DTE CAPITAL CORPORATION
By:
__________________________________
Name: Christopher C. Arvani
Title: Assistant Treasurer
Attest:
THE BANK OF NEW YORK
By:
__________________________________
Name:
Title:
Attest:
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STATE OF MICHIGAN )
: ss.:
COUNTY OF WAYNE )
On the day of , 1998, before me personally came , to me
known, who., being by me duly sworn, did depose and say that he is of
DTE CAPITAL CORPORATION, one of the corporations described in and which
executed the foregoing instrument and that he signed his name thereto by like
authority.
________________________________
Notary Public, State of Michigan
My Commission Expires
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the [ ]th day of [ ] , 1998, before me personally came [ ],
to me known, who., being by me duly sworn, did depose and say that she is [ ]
of THE BANK OF NEW YORK, one of the corporations described in and which
executed the foregoing instrument and that she signed her name thereto by like
authority.
________________________________
Notary Public, State of New York
Commission Expires
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EXHIBIT A
[FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY]
CERTIFICATE
DTE CAPITAL CORPORATION
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that the above-captioned Securities are not being
acquired by or on behalf of a United States person or for offer to resell or for
resale to a United States person or any person inside the United States or, if a
beneficial interest in the Securities is being acquired by or on behalf of a
United States person or any person inside the United States, that such United
States person is a financial institution within the meaning of Section
1.165-12(c)(1)(v) of the United States Treasury regulations which agrees to
comply with the requirements of Section 165 (j) (3) (A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder and
which is not purchasing for offer to resell or for resale inside the United
States.
As used herein, "United States person" means any citizen or resident of
the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States and any estate the income of
which is subject to United States Federal income taxation regardless of its
source or a trust if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more United
States persons have authority to control all substantial decisions of the trust,
and "United States" means the United States of America (including the States and
the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
We undertake to advise you by telex if the above statement as to
beneficial ownership is not correct on the date of delivery of the
above-captioned Securities in bearer form as to all of such Securities.
This certificate excepts and does not relate to U.S. $ principal
amount of the above-captioned Securities appearing in your books as being held
for our account as to which we are not able to certify as to the matters set
forth herein and as to which we understand exchange and delivery of definitive
Securities cannot be made until we are able so to certify.
80
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:_______________, 19__
[To be dated on or after
_______________, 19____(the date
determined as provided in Section
303 of the Indenture)]
[Name of Person Entitled to
Receive Bearer Security]
_____________________________________
(Authorized Signatory]
Name:
Title:
2