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EXHIBIT 4-226
Conformed Copy
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DTE ENERGY COMPANY
AND
THE BANK OF NEW YORK
TRUSTEE
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SUPPLEMENTAL INDENTURE
DATED AS OF MAY 30, 2001
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SUPPLEMENTING THE AMENDED AND RESTATED INDENTURE
DATED AS OF APRIL 9, 2001
PROVIDING FOR
6.00% SENIOR NOTES DUE 2004
6.45% SENIOR NOTES DUE 2006
7.05% SENIOR NOTES DUE 2011
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SUPPLEMENTAL INDENTURE, dated as of the 30th day of May, 2001, between
DTE ENERGY COMPANY, a corporation organized and existing under the laws of the
State of Michigan (the "Company"), and THE BANK OF NEW YORK, a New York banking
corporation, having its principal office in The City of New York, New York, as
trustee (the "Trustee");
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Amended and Restated Indenture, dated as of April 9, 2001 (the
"Original Indenture"), as amended, supplemented or modified (as so amended,
supplemented or modified, the "Indenture") providing for the issuance by the
Company from time to time of its debt securities; and
WHEREAS, the Company now desires to provide for the issuance of three
series of its unsecured, senior debt securities pursuant to the Original
Indenture; and
WHEREAS, the Company, in the exercise of the power and authority
conferred upon and reserved to it under the provisions of the Original
Indenture, including Section 901 thereof, and pursuant to appropriate
resolutions of the Board of Directors, has duly determined to make, execute and
deliver to the Trustee this Supplemental Indenture to the Original Indenture as
permitted by Section 201 and Section 301 of the Original Indenture in order to
establish the form or terms of, and to provide for the creation and issue of,
three series of its debt securities under the Original Indenture, which shall be
known as the "6.00% Senior Notes due 2004" (the "6.00% Notes"); the "6.45%
Senior Notes due 2006" (the "6.45% Notes") and the "7.05% Senior Notes due 2011"
(the "7.05% Notes" and together with the 6.00% Notes and the 6.45% Notes, the
"Notes"); and
WHEREAS, all things necessary to make such debt securities, when
executed by the Company and authenticated and delivered by the Trustee or any
Authenticating Agent and issued upon the terms and subject to the conditions
hereinafter and in the Original Indenture set forth against payment therefor,
the valid, binding and legal obligations of the Company and to make this
Supplemental Indenture a valid, binding and legal agreement of the Company, have
been done;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH that, in order
to establish the terms of a series of debt securities, and for and in
consideration of the premises and of the covenants contained in the Original
Indenture and in this Supplemental Indenture and for other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, it
is mutually covenanted and agreed as follows:
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ARTICLE ONE
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. Each capitalized term that is used herein and
is defined in the Original Indenture shall have the meaning specified in the
Original Indenture unless such term is otherwise defined herein. The following
terms shall have the respective meanings set forth below:
"Business Day" means any day other than a Saturday or Sunday or a day
on which commercial banks in The City of New York are required or authorized by
law or executive order to be closed.
SECTION 102. Section References. Each reference to a particular section
set forth in this Supplemental Indenture shall, unless the context otherwise
requires, refer to this Supplemental Indenture.
ARTICLE TWO
TITLE AND TERMS OF THE SECURITIES
SECTION 201. Title of the Securities; Stated Maturity. This
Supplemental Indenture hereby establishes three separate series of Securities,
which shall be known as the Company's "6.00% Senior Notes due 2004" (the "6.00%
Notes"), the "6.45% Senior Notes due 2006" (the "6.45% Notes") and the "7.05%
Senior Notes due 2011" (the "7.05% Notes" and together with the 6.00% Notes and
the 6.45% Notes, the "Notes"). For purposes of the Original Indenture, each
series of the Notes shall separately constitute a single series of Securities.
The Stated Maturity on which the principal of the 6.00% Notes shall be due and
payable will be June 1, 2004. The Stated Maturity on which the principal of the
6.45% Notes shall be due and payable will be June 1, 2006. The Stated Maturity
on which the principal of the 7.05% Notes shall be due and payable will be June
1, 2011.
SECTION 202. Rank. The Notes shall rank equally with all other
unsecured and unsubordinated indebtedness of the Company from time to time
outstanding.
SECTION 203. Variations from the Original Indenture. Section 1009 of
the Original Indenture shall be applicable to the Notes. Section 403(2) and
Section 403(3) shall be applicable to the Notes; the Company's obligations under
Section 1009, without limitation, shall be subject to defeasance in accordance
with Section 403(3).
SECTION 204. Amount and Denominations; DTC.
(a) The aggregate principal amount of Notes that may be issued under
this Supplemental Indenture is limited initially to $250,000,000 (in the case of
the 6.00% Notes),
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$500,000,000 (in the case of the 6.45% Notes) and $600,000,000 (in the case of
the 7.05% Notes) (except, in each case, as provided in Section 301(2) of the
Original Indenture); provided that the Company may, without the consent of the
Holders of the Outstanding Notes of any series, "reopen" each series of Notes so
as to increase the aggregate principal amount of such Notes Outstanding in
compliance with the procedures set forth in the Original Indenture, including
Section 301 and Section 303 thereof, so long as any such additional Notes have
the same tenor and terms (including, without limitation, rights to receive
accrued and unpaid interest) as the Notes of such series then Outstanding. No
additional Notes of a series may be issued if an Event of Default has occurred
with respect to the applicable series. The Notes shall be issuable only in fully
registered form and, as permitted by Section 301 and Section 302 of the Original
Indenture, in denominations of $1,000 and integral multiples thereof. The Notes
will initially be issued in global form (the "Global Notes") under a book-entry
system, registered in the name of The Depository Trust Company, as depository
("DTC"), or its nominee, which is hereby designated as "Depositary" under the
Indenture.
(b) Further to Section 305 of the Original Indenture, any Global Note
shall be exchangeable for Notes registered in the name of, and a transfer of a
Global Note of any series may be registered to, any Person other than the
Depositary for such Note or its nominee only if (i) such Depositary notifies the
Company that it is unwilling or unable to continue as Depositary for such Global
Note or if at any time such Depositary ceases to be a clearing agency registered
under the Exchange Act, and, in either such case, the Company does not appoint a
successor Depositary within 90 days thereafter, (ii) the Company executes and
delivers to the Trustee a Company Order that such Global Note shall be so
exchangeable and the transfer thereof so registrable or (iii) there shall have
occurred and be continuing an Event of Default or an event which, with the
giving of notice or lapse of time, or both, would constitute an Event of Default
with respect to the Notes of such series. Upon the occurrence in respect of any
Global Note of any series of any or more of the conditions specified in clause
(i), (ii) or (iii) of the preceding sentence, such Global Note may be exchanged
for Notes registered in the name of, and the transfer of such Global Note may be
registered to, such Persons (including Persons other than the Depositary with
respect to such series and its nominees) as such Depositary, in the case of an
exchange, and the Company, in the case of a transfer, shall direct.
SECTION 205. Common Terms of the Notes.
(a) The Notes of each series shall bear interest at the rate of 6.00%
per annum (in the case of the 6.00% Notes), 6.45% per annum (in the case of the
6.45% Notes) and 7.05% per annum (in the case of the 7.05% Notes) on the
respective principal amount thereof from May 30, 2001, or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
until the principal of such series of Notes becomes due and payable, and on any
overdue principal and premium and (to the extent that payment of such interest
is enforceable under applicable law) on any overdue installment of interest at
the same rate per annum during such overdue period. Interest on the Notes will
be payable semiannually in arrears on June 1 and December 1 of each year (each
such date, an "Interest Payment Date"), commencing December
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1, 2001. The amount of interest payable for any period shall be computed on the
basis of twelve 30-day months and a 360-day year.
(b) In the event that any Interest Payment Date, redemption date or
other date of Maturity of the Notes is not a Business Day, then payment of the
amount payable on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay), in each case with the same force and effect as if made on such date. The
interest installment so payable, and punctually paid or duly provided for, on
any Interest Payment Date with respect to any Note will, as provided in the
Original Indenture, be paid to the person in whose name the Note (or one or more
Predecessor Securities, as defined in said Indenture) is registered at the close
of business on the relevant record date for such interest installment, which
shall be the fifteenth calendar day (whether or not a Business Day) prior to the
relevant Interest Payment Date (the "Regular Record Date"). Any such interest
installment not punctually paid or duly provided for shall forthwith cease to be
payable to the registered Holders on such Regular Record Date, and may either be
paid to the person in whose name the Note (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date to
be fixed by the Trustee for the payment of such defaulted interest, notice
whereof shall be given to the registered Holders of the applicable series of
Notes not less than ten days prior to such Special Record Date, or may be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in the Original
Indenture. The principal of, and premium, if any, and the interest on the Notes
shall be payable at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York, in any coin or
currency of the United States of America which at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest may be made at the option of the Company by check mailed to the
registered Holder at the close of business on the Regular Record Date at such
address as shall appear in the Security Register.
(c) The Notes are not subject to repayment at the option of the Holders
thereof and are not subject to any sinking fund. As provided in the forms of
Note attached hereto as Exhibit A, Exhibit B and Exhibit C, respectively, the
Notes are subject to mandatory redemption, as a whole, and to optional
redemption, as a whole or in part, by the Company prior to Stated Maturity of
the principal thereof on the terms set forth therein. Except as modified in the
forms of the Notes, redemptions shall be effected in accordance with Article
Eleven of the Original Indenture.
(d) The Notes shall have such other terms and provisions as are set
forth in the form of Note attached hereto as Exhibit A, Exhibit B or Exhibit C,
as applicable (all of which are incorporated by reference in and made a part of
this Supplemental Indenture as if set forth in full at this place).
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SECTION 206. Form of Notes. Attached hereto as Exhibit A is the form of
the definitive 6.00% Notes. Attached hereto as Exhibit B is the form of the
definitive 6.45% Notes. Attached hereto as Exhibit C is the form of the
definitive 7.05% Notes.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
The Trustee makes no undertaking or representations in respect of, and
shall not be responsible in any manner whatsoever for and in respect of, the
validity or sufficiency of this Supplemental Indenture or the proper
authorization or the due execution hereof by the Company or for or in respect of
the recitals and statements contained herein, all of which recitals and
statements are made solely by the Company.
Except as expressly amended hereby, the Original Indenture shall
continue in full force and effect in accordance with the provisions thereof and
the Original Indenture is in all respects hereby ratified and confirmed. This
Supplemental Indenture and all its provisions shall be deemed a part of the
Original Indenture in the manner and to the extent herein and therein provided.
This Supplemental Indenture shall be governed by, and construed in
accordance with, the laws of the State of New York.
This Supplemental Indenture 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 Supplemental
Indenture to be duly executed and attested, all as of the day and year first
above written.
DTE ENERGY COMPANY
By: /s/ X.X. Xxxxxx
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Name: X.X. Xxxxxx
Title: Vice President and Treasurer
ATTEST:
By: /s/ Xxxx X. Xxxxxx
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THE BANK OF NEW YORK
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
Title: Vice President
ATTEST:
By: /s/ Xxxxxx X. Xxxxxxxxxx
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EXHIBIT A
FORM OF 6.00% NOTE
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A
DEPOSITARY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TRUST COMPANY ("DTC"), TO A NOMINEE OF DTC OR BY DTC OR ANY SUCH
NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR. UNLESS THIS NOTE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO., OR IN SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.,
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL, INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
CUSIP NO.: 233331 AC1 $-
NO. R--
DTE ENERGY COMPANY
6.00% SENIOR NOTES DUE 2004
DTE ENERGY COMPANY, a corporation duly organized and existing under the
laws of the State of Michigan (herein referred to as the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of $___________ on June 1, 2004 ("Stated Maturity" with respect to
the principal of this Note), unless previously redeemed, and to pay interest at
the rate of 6.00% per annum on said principal sum from May 30, 2001, or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, until the principal of this Note becomes due and payable, and on
any overdue principal and premium and (to the extent that payment of such
interest is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum during such overdue period. Interest on this
Note will be payable semiannually in arrears on June 1 and December 1 of each
year (each such date, an "Interest Payment Date"), commencing December 1, 2001.
The amount of interest payable for any period shall be computed on the basis of
twelve 30-day months and a 360-day year.
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In the event that any Interest Payment Date, redemption date or other
date of Maturity of the Notes is not a Business Day, then payment of the amount
payable on such date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of any such delay), in
each case with the same force and effect as if made on such date. A "Business
Day" means any day other than a Saturday or Sunday or a day on which commercial
banks in The City of New York are required or authorized by law or executive
order to be closed. The interest installment so payable, and punctually paid or
duly provided for, on any Interest Payment Date with respect to this Note will,
as provided in the Indenture, be paid to the person in whose name this Note is
registered at the close of business on the relevant record date for such
interest installment, which shall be the fifteenth calendar day (whether or not
a Business Day) prior to the relevant Interest Payment Date (the "Regular Record
Date"). Any such interest installment not punctually paid or duly provided for
shall forthwith cease to be payable to the registered Holders on such Regular
Record Date, and may either be paid to the person in whose name this Note is
registered at the close of business on a Special Record Date to be fixed by the
Trustee for the payment of such defaulted interest, notice whereof shall be
given to the registered Holders of this series of Notes not less than ten days
prior to such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. The principal of,
and premium, if any, and the interest on the Notes shall be payable at the
office or agency of the Company maintained for that purpose in the Borough of
Manhattan, The City of New York, in any coin or currency of the United States of
America which at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest may be made at the
option of the Company by check mailed to the registered Holder at the close of
business on the Regular Record Date at such address as shall appear in the
Security Register. Notwithstanding anything else contained herein, if this Note
is a Global Note and is held in book-entry form through the facilities of the
Depositary, payments on this Note will be made to the Depositary or its nominee
in accordance with arrangements then in effect between the Trustee and the
Depositary.
This Note is one of a duly authorized series of Securities of the
Company, designated as the "6.00% Senior Notes due 2004" (the "Notes"),
initially limited to an aggregate principal amount of $250,000,000 (except for
Notes authenticated and delivered upon transfer of, or in exchange for, or in
lieu of other Notes, and except as further provided in the Indenture), all
issued or to be issued under and pursuant to an Amended and Restated Indenture,
dated as of April 9, 2001, as supplemented by the Supplemental Indenture dated
as of May 30, 2001 (together, as amended, supplemented or modified, the
"Indenture"), duly executed and delivered between the Company and The Bank of
New York, a New York banking corporation, as Trustee (herein referred to as the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture reference is hereby made for a description of the respective
rights, limitations of rights, obligations, duties and immunities thereunder of
the Trustee, the Company and the registered Holders of the Notes and of the
terms upon which the Notes are, and are to be, authenticated and delivered.
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This Note is not subject to repayment at the option of the Holder
hereof. Except as provided below, this Note is not redeemable by the Company
prior to maturity and is not subject to any sinking fund.
In the event that, for any reason, (i) the proposed acquisition (the
"Merger") by the Company of MCN Energy Group Inc. ("MCN") pursuant to the
Agreement and Plan of Merger, dated as of October 4, 1999, as amended as of
November 12, 1999, and as further amended as of February 28, 2001 (the "Merger
Agreement"), among the Company, MCN and DTE Enterprises Inc., has not been
completed on or prior to July 30, 2001 (the "Deadline Date") without waiver or
amendment of any material term thereof (unless waived in writing by the
underwriters of the initial offering of the Notes) as in effect on May 23, 2001
or (ii) the Company elects to abandon the Merger or the Merger Agreement is
terminated, in either case, on or prior to the Deadline Date, the Company shall
redeem this Note, in whole but not in part (the "Mandatory Redemption"), at the
applicable Mandatory Redemption Price on the applicable Mandatory Redemption
Date (each term as defined below).
"Mandatory Redemption Price" means 100.75% of the principal amount of
this Note, together with accrued and unpaid interest hereon from and including
May 30, 2001 to but excluding the Mandatory Redemption Date, and shall be a
"Redemption Price" for purposes of the Indenture.
"Mandatory Redemption Date" means the earlier to occur of (i) August
20, 2001 if the Merger has not been completed on or prior to the Deadline Date
or (ii) the 20th day (or if such day is not a Business Day, the first Business
Day thereafter) following the date on which the Company elects to abandon the
Merger or the Merger Agreement is terminated, in either case, on or prior to the
Deadline Date, and shall be a "Redemption Date" for purposes of the Indenture.
The Company shall notify the Trustee and concurrently mail, or cause to
be mailed, notice of any Mandatory Redemption promptly after the occurrence of
the event triggering such redemption to the Holder hereof at its registered
address. Such notice shall not be subject to the provisions of Section 1104 of
the Indenture that otherwise require notice to be given not less that 30 nor
more than 60 days prior to the Redemption Date.
In addition, this Note will be redeemable at the option of the Company,
in whole at any time or in part from time to time, after the last date on which
a Mandatory Redemption may occur (any such date of optional redemption, an
"Optional Redemption Date," which shall be a "Redemption Date" for purposes of
the Indenture), at an optional redemption price (which shall be a "Redemption
Price" for purposes of the Indenture) equal to the greater of (i) 100% of the
principal amount of this Note to be redeemed and (ii) the sum of the present
values of the principal amount of this Note to be redeemed and the remaining
scheduled payments of interest on the principal amount of this Note to be
redeemed (exclusive of interest accrued to the related Optional Redemption Date)
until Stated Maturity, in each case discounted from their respective scheduled
payment dates to such Optional Redemption Date on a semiannual basis (assuming a
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360-day year consisting of 30-day months) at the Adjusted Treasury Rate (as
defined below) plus 20 basis points, plus in either case, accrued interest
thereon to the date of redemption.
"Adjusted Treasury Rate" means, with respect to any Optional Redemption
Date, the rate per annum equal to the semiannual yield to maturity of the
Comparable Treasury Issue, calculated on the third Business Day preceding such
Optional Redemption Date, using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Optional Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
determined by the Reference Treasury Dealer selected by the Company as having a
maturity comparable to the remaining term of this Note that would be utilized,
at the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity with the
remaining term of this Note.
"Comparable Treasury Price" means, with respect to any Optional
Redemption Date, (i) the average of the Reference Treasury Dealer Quotations for
such Optional Redemption Date, after excluding the highest and lowest such
Reference Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than
three such Reference Treasury Dealer Quotations, the average of all such
quotations, or (iii) if only one Reference Treasury Dealer Quotation is
received, such quotation.
"Reference Treasury Dealer" means each of: (i) Xxxxxxx, Xxxxx & Co.,
UBS Warburg LLC, Banc One Capital Markets, Inc., Barclays Capital Inc., X. X.
Xxxxxx Securities Inc., Xxxxxxx Xxxxx Xxxxxx Inc. and The Xxxxxxxx Capital
Group, L.P. (or their respective affiliates which are Primary Treasury Dealers),
and their respective successors; provided, however, that if any of the foregoing
cease to be a primary U.S. Government securities dealer in The City of New York
(a "Primary Treasury Dealer"), the Company shall substitute therefor another
Primary Treasury Dealer; and (ii) any other Primary Treasury Dealer(s) selected
by the Trustee after consultation with the Company.
"Reference Treasury Dealer Quotation" means, with respect to each
Reference Treasury Dealer and any Optional Redemption Date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third Business Day preceding such Optional Redemption
Date.
Notice of any optional redemption will be mailed at least 30 days but
not more than 60 days before the Optional Redemption Date to the Holder hereof
at its registered address.
Unless the Company defaults in payment of the applicable Redemption
Price, on and after the applicable Redemption Date interest will cease to accrue
on the principal amount of this Note called for redemption.
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If money sufficient to pay the applicable Redemption Price with respect
to the principal amount of and accrued interest on the principal amount of this
Note to be redeemed on the applicable Redemption Date is deposited with the
Trustee or Paying Agent on or before the related Redemption Date and certain
other conditions are satisfied, then on or after such date, interest will cease
to accrue on the principal amount of this Note called for redemption.
If the Notes are only partially redeemed by the Company, the Trustee
shall select which Notes are to be redeemed in a manner it deems fair and
appropriate in accordance with the terms of the Indenture.
In the event of redemption of this Note in part only, a new Note or
Notes of this series for the unredeemed portion hereof will be issued in the
name of the registered Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal hereof may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Note upon compliance by the Company with certain
conditions set forth therein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes under the Indenture at any
time by the Company and the Trustee with the consent of the Holders of a
majority of the aggregate principal amount of all Notes issued under the
Indenture at the time outstanding and affected thereby; provided, however, that
no such amendment shall without the consent of the Holder of each Note so
affected, among other things (i) change the stated maturity of the principal of,
or any installment of principal of or interest on any Notes of any series, or
reduce the principal amount thereof, or reduce the rate of interest thereon, or
reduce any premium payable upon the redemption thereof or (ii) reduce the
percentage of Notes, the Holders of which are required to consent to any
amendment or waiver or for certain other matters as set forth in the Indenture.
The Indenture also contains provisions permitting (i) the registered Holders of
66 2/3% in aggregate principal amount of the Securities of each series at the
time outstanding affected thereby, on behalf of the registered Holders of the
Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and (ii) the registered Holders of not less than a
majority in aggregate principal amount of the Securities of any series at the
time outstanding affected thereby, on behalf of the registered Holders of the
Securities of such series, to waive certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the registered Holder of
this Note (unless revoked as provided in the Indenture) shall be conclusive and
binding upon such registered Holder and upon all future registered Holders and
owners of this Note and of any Note issued in exchange hereof or in place hereof
(whether by registration of transfer or otherwise), irrespective of whether or
not any notation of such consent or waiver is made upon this Note.
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No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Note at the time and place and at the rate and in the coin or
currency herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Security Register of
the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company in any place where the principal of and any
interest on this Note are payable or at such other offices or agencies as the
Company may designate, duly endorsed by or accompanied by a written instrument
or instruments of transfer in form satisfactory to the Company and the Security
Registrar or any transfer agent duly executed by the registered Holder hereof or
his or her attorney duly authorized in writing, and thereupon one or more new
Notes of this series and of like tenor, of authorized denominations and for the
same aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Note, the
Company, the Trustee, any paying agent and any Security Registrar may deem and
treat the registered Holder hereof as the absolute owner hereof (whether or not
this Note shall be overdue and notwithstanding any notice of ownership or
writing hereon made by anyone other than the Security Registrar) for the purpose
of receiving payment of or on account of the principal hereof and interest due
hereon and for all other purposes, and neither the Company nor the Trustee nor
any paying agent nor any Security Registrar shall be affected by any notice to
the contrary.
The Notes of this series are issuable only in fully registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
This Global Note is exchangeable for Notes in definitive form only under certain
limited circumstances set forth in the Indenture. Notes of this series so issued
are issuable only in registered form without coupons in denominations of $1,000
and any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Notes of this series are exchangeable for
a like aggregate principal amount of Notes of this series of a different
authorized denomination, as requested by the registered Holder surrendering the
same.
As set forth in, and subject to the provisions of, the Indenture, no
registered owner of any Note will have any right to institute any proceeding
with respect to the Indenture or for any remedy thereunder, unless (i) such
registered owner shall have previously given to the Trustee written notice of a
continuing Event of Default with respect to the Notes of this series, (ii) the
registered owners of not less than 25% in principal amount of the outstanding
Notes of this series shall have made written request, and offered reasonable
indemnity, to the Trustee to institute such proceeding as trustee, (iii) the
Trustee shall have failed to institute such proceeding within 60 days and (iv)
the Trustee shall not have received from the registered owners of a majority in
principal amount of the outstanding Notes of this series a direction
inconsistent with such request
A-6
14
within such 60-day period; provided, however, that such limitations do not apply
to a suit instituted by the registered owner hereof for the enforcement of
payment of the principal of or premium, if any, or any interest on this Note on
or after the respective due dates expressed herein.
Unless the Certificate of Authentication hereon has been executed by
the Trustee or a duly appointed Authentication Agent referred to herein, this
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
A-7
15
IN WITNESS WHEREOF, the Company has caused this Instrument to be duly
executed.
DTE ENERGY COMPANY
By_____________________________
Date: May 30, 2001
Attest:
By_______________________________________
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes described in the within
mentioned Indenture.
THE BANK OF NEW YORK
as Trustee
By__________________________
Authorized Signatory
Date: May 30, 2001
A-8
16
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
(Please insert Social Security or Other Identifying Number of Assignee)
________________________________________________________________________________
(Please print or type name and address, including zip code of assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorneys to transfer the within Note on the books of the
Issuer, with full power of substitution in the premises.
Dated:________________________
NOTICE: The signature of this assignment must correspond with the name as
written upon the face of the within Note in every particular, without alteration
or enlargement or any change whatever and NOTICE: Signature(s) must be
guaranteed by a financial institution that is a member of the Securities
Transfer Agents Medallion Program ("STAMP"), the Stock Exchange, Inc. Medallion
Signature Program ("MSP"). When assignment is made by a guardian, trustee,
executor or administrator, an officer of a corporation, or anyone in a
representative capacity, proof of his or her authority to act must accompany
this Note.
A-9
17
EXHIBIT B
FORM OF 6.45% NOTE
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A
DEPOSITARY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TRUST COMPANY ("DTC"), TO A NOMINEE OF DTC OR BY DTC OR ANY SUCH
NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR. UNLESS THIS NOTE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO., OR IN SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.,
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL, INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
CUSIP NO.: 233331 AD 9 $-
NO. R--
DTE ENERGY COMPANY
6.45% SENIOR NOTES DUE 2006
DTE ENERGY COMPANY, a corporation duly organized and existing under the
laws of the State of Michigan (herein referred to as the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of $___________ on June 1, 2006 ("Stated Maturity" with respect to
the principal of this Note), unless previously redeemed, and to pay interest at
the rate of 6.45% per annum on said principal sum from May 30, 2001, or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, until the principal of this Note becomes due and payable, and on
any overdue principal and premium and (to the extent that payment of such
interest is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum during such overdue period. Interest on this
Note will be payable semiannually in arrears on June 1 and December 1 of each
year (each such date, an "Interest Payment Date"), commencing December 1, 2001.
The amount of interest payable for any period shall be computed on the basis of
twelve 30-day months and a 360-day year.
B-1
18
In the event that any Interest Payment Date, redemption date or other
date of Maturity of the Notes is not a Business Day, then payment of the amount
payable on such date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of any such delay), in
each case with the same force and effect as if made on such date. A "Business
Day" means any day other than a Saturday or Sunday or a day on which commercial
banks in The City of New York are required or authorized by law or executive
order to be closed. The interest installment so payable, and punctually paid or
duly provided for, on any Interest Payment Date with respect to this Note will,
as provided in the Indenture, be paid to the person in whose name this Note is
registered at the close of business on the relevant record date for such
interest installment, which shall be the fifteenth calendar day (whether or not
a Business Day) prior to the relevant Interest Payment Date (the "Regular Record
Date"). Any such interest installment not punctually paid or duly provided for
shall forthwith cease to be payable to the registered Holders on such Regular
Record Date, and may either be paid to the person in whose name this Note is
registered at the close of business on a Special Record Date to be fixed by the
Trustee for the payment of such defaulted interest, notice whereof shall be
given to the registered Holders of this series of Notes not less than ten days
prior to such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. The principal of,
and premium, if any, and the interest on the Notes shall be payable at the
office or agency of the Company maintained for that purpose in the Borough of
Manhattan, The City of New York, in any coin or currency of the United States of
America which at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest may be made at the
option of the Company by check mailed to the registered Holder at the close of
business on the Regular Record Date at such address as shall appear in the
Security Register. Notwithstanding anything else contained herein, if this Note
is a Global Note and is held in book-entry form through the facilities of the
Depositary, payments on this Note will be made to the Depositary or its nominee
in accordance with arrangements then in effect between the Trustee and the
Depositary.
This Note is one of a duly authorized series of Securities of the
Company, designated as the "6.45% Senior Notes due 2006" (the "Notes"),
initially limited to an aggregate principal amount of $500,000,000 (except for
Notes authenticated and delivered upon transfer of, or in exchange for, or in
lieu of other Notes, and except as further provided in the Indenture), all
issued or to be issued under and pursuant to an Amended and Restated Indenture,
dated as of April 9, 2001, as supplemented by the Supplemental Indenture dated
as of May 30, 2001 (together, as amended, supplemented or modified, the
"Indenture"), duly executed and delivered between the Company and The Bank of
New York, a New York banking corporation, as Trustee (herein referred to as the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture reference is hereby made for a description of the respective
rights, limitations of rights, obligations, duties and immunities thereunder of
the Trustee, the Company and the registered Holders of the Notes and of the
terms upon which the Notes are, and are to be, authenticated and delivered.
B-2
19
This Note is not subject to repayment at the option of the Holder
hereof. Except as provided below, this Note is not redeemable by the Company
prior to maturity and is not subject to any sinking fund.
In the event that, for any reason, (i) the proposed acquisition (the
"Merger") by the Company of MCN Energy Group Inc. ("MCN") pursuant to the
Agreement and Plan of Merger, dated as of October 4, 1999, as amended as of
November 12, 1999, and as further amended as of February 28, 2001 (the "Merger
Agreement"), among the Company, MCN and DTE Enterprises Inc., has not been
completed on or prior to July 30, 2001 (the "Deadline Date") without waiver or
amendment of any material term thereof (unless waived in writing by the
underwriters of the initial offering of the Notes) as in effect on May 23, 2001
or (ii) the Company elects to abandon the Merger or the Merger Agreement is
terminated, in either case, on or prior to the Deadline Date, the Company shall
redeem this Note, in whole but not in part (the "Mandatory Redemption"), at the
applicable Mandatory Redemption Price on the applicable Mandatory Redemption
Date (each term as defined below).
"Mandatory Redemption Price" means 100.75% of the principal amount of
this Note, together with accrued and unpaid interest hereon from and including
May 30, 2001 to but excluding the Mandatory Redemption Date, and shall be a
"Redemption Price" for purposes of the Indenture.
"Mandatory Redemption Date" means the earlier to occur of (i) August
20, 2001 if the Merger has not been completed on or prior to the Deadline Date
or (ii) the 20th day (or if such day is not a Business Day, the first Business
Day thereafter) following the date on which the Company elects to abandon the
Merger or the Merger Agreement is terminated, in either case, on or prior to the
Deadline Date, and shall be a "Redemption Date" for purposes of the Indenture.
The Company shall notify the Trustee and concurrently mail, or cause to
be mailed, notice of any Mandatory Redemption promptly after the occurrence of
the event triggering such redemption to the Holder hereof at its registered
address. Such notice shall not be subject to the provisions of Section 1104 of
the Indenture that otherwise require notice to be given not less that 30 nor
more than 60 days prior to the Redemption Date.
In addition, this Note will be redeemable at the option of the Company,
in whole at any time or in part from time to time, after the last date on which
a Mandatory Redemption may occur (any such date of optional redemption, an
"Optional Redemption Date," which shall be a "Redemption Date" for purposes of
the Indenture), at an optional redemption price (which shall be a "Redemption
Price" for purposes of the Indenture) equal to the greater of (i) 100% of the
principal amount of this Note to be redeemed and (ii) the sum of the present
values of the principal amount of this Note to be redeemed and the remaining
scheduled payments of interest on the principal amount of this Note to be
redeemed (exclusive of interest accrued to the related Optional Redemption Date)
until Stated Maturity, in each case discounted from their respective scheduled
payment dates to such Optional Redemption Date on a semiannual basis (assuming a
B-3
20
360-day year consisting of 30-day months) at the Adjusted Treasury Rate (as
defined below) plus 20 basis points, plus in either case, accrued interest
thereon to the date of redemption.
"Adjusted Treasury Rate" means, with respect to any Optional Redemption
Date, the rate per annum equal to the semiannual yield to maturity of the
Comparable Treasury Issue, calculated on the third Business Day preceding such
Optional Redemption Date, using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Optional Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
determined by the Reference Treasury Dealer selected by the Company as having a
maturity comparable to the remaining term of this Note that would be utilized,
at the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity with the
remaining term of this Note.
"Comparable Treasury Price" means, with respect to any Optional
Redemption Date, (i) the average of the Reference Treasury Dealer Quotations for
such Optional Redemption Date, after excluding the highest and lowest such
Reference Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than
three such Reference Treasury Dealer Quotations, the average of all such
quotations, or (iii) if only one Reference Treasury Dealer Quotation is
received, such quotation.
"Reference Treasury Dealer" means each of: (i) Xxxxxxx, Xxxxx & Co.,
UBS Warburg LLC, Banc One Capital Markets, Inc., Barclays Capital Inc., X. X.
Xxxxxx Securities Inc., Xxxxxxx Xxxxx Xxxxxx Inc. and The Xxxxxxxx Capital
Group, L.P. (or their respective affiliates which are Primary Treasury Dealers),
and their respective successors; provided, however, that if any of the foregoing
cease to be a primary U.S. Government securities dealer in The City of New York
(a "Primary Treasury Dealer"), the Company shall substitute therefor another
Primary Treasury Dealer; and (ii) any other Primary Treasury Dealer(s) selected
by the Trustee after consultation with the Company.
"Reference Treasury Dealer Quotation" means, with respect to each
Reference Treasury Dealer and any Optional Redemption Date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third Business Day preceding such Optional Redemption
Date.
Notice of any optional redemption will be mailed at least 30 days but
not more than 60 days before the Optional Redemption Date to the Holder hereof
at its registered address.
Unless the Company defaults in payment of the applicable Redemption
Price, on and after the applicable Redemption Date interest will cease to accrue
on the principal amount of this Note called for redemption.
B-4
21
If money sufficient to pay the applicable Redemption Price with respect
to the principal amount of and accrued interest on the principal amount of this
Note to be redeemed on the applicable Redemption Date is deposited with the
Trustee or Paying Agent on or before the related Redemption Date and certain
other conditions are satisfied, then on or after such date, interest will cease
to accrue on the principal amount of this Note called for redemption.
If the Notes are only partially redeemed by the Company, the Trustee
shall select which Notes are to be redeemed in a manner it deems fair and
appropriate in accordance with the terms of the Indenture.
In the event of redemption of this Note in part only, a new Note or
Notes of this series for the unredeemed portion hereof will be issued in the
name of the registered Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal hereof may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Note upon compliance by the Company with certain
conditions set forth therein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes under the Indenture at any
time by the Company and the Trustee with the consent of the Holders of a
majority of the aggregate principal amount of all Notes issued under the
Indenture at the time outstanding and affected thereby; provided, however, that
no such amendment shall without the consent of the Holder of each Note so
affected, among other things (i) change the stated maturity of the principal of,
or any installment of principal of or interest on any Notes of any series, or
reduce the principal amount thereof, or reduce the rate of interest thereon, or
reduce any premium payable upon the redemption thereof or (ii) reduce the
percentage of Notes, the Holders of which are required to consent to any
amendment or waiver or for certain other matters as set forth in the Indenture.
The Indenture also contains provisions permitting (i) the registered Holders of
66 2/3% in aggregate principal amount of the Securities of each series at the
time outstanding affected thereby, on behalf of the registered Holders of the
Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and (ii) the registered Holders of not less than a
majority in aggregate principal amount of the Securities of any series at the
time outstanding affected thereby, on behalf of the registered Holders of the
Securities of such series, to waive certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the registered Holder of
this Note (unless revoked as provided in the Indenture) shall be conclusive and
binding upon such registered Holder and upon all future registered Holders and
owners of this Note and of any Note issued in exchange hereof or in place hereof
(whether by registration of transfer or otherwise), irrespective of whether or
not any notation of such consent or waiver is made upon this Note.
B-5
22
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Note at the time and place and at the rate and in the coin or
currency herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Security Register of
the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company in any place where the principal of and any
interest on this Note are payable or at such other offices or agencies as the
Company may designate, duly endorsed by or accompanied by a written instrument
or instruments of transfer in form satisfactory to the Company and the Security
Registrar or any transfer agent duly executed by the registered Holder hereof or
his or her attorney duly authorized in writing, and thereupon one or more new
Notes of this series and of like tenor, of authorized denominations and for the
same aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Note, the
Company, the Trustee, any paying agent and any Security Registrar may deem and
treat the registered Holder hereof as the absolute owner hereof (whether or not
this Note shall be overdue and notwithstanding any notice of ownership or
writing hereon made by anyone other than the Security Registrar) for the purpose
of receiving payment of or on account of the principal hereof and interest due
hereon and for all other purposes, and neither the Company nor the Trustee nor
any paying agent nor any Security Registrar shall be affected by any notice to
the contrary.
The Notes of this series are issuable only in fully registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
This Global Note is exchangeable for Notes in definitive form only under certain
limited circumstances set forth in the Indenture. Notes of this series so issued
are issuable only in registered form without coupons in denominations of $1,000
and any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Notes of this series are exchangeable for
a like aggregate principal amount of Notes of this series of a different
authorized denomination, as requested by the registered Holder surrendering the
same.
As set forth in, and subject to the provisions of, the Indenture, no
registered owner of any Note will have any right to institute any proceeding
with respect to the Indenture or for any remedy thereunder, unless (i) such
registered owner shall have previously given to the Trustee written notice of a
continuing Event of Default with respect to the Notes of this series, (ii) the
registered owners of not less than 25% in principal amount of the outstanding
Notes of this series shall have made written request, and offered reasonable
indemnity, to the Trustee to institute such proceeding as trustee, (iii) the
Trustee shall have failed to institute such proceeding within 60 days and (iv)
the Trustee shall not have received from the registered owners of a majority in
principal amount of the outstanding Notes of this series a direction
inconsistent with such request
B-6
23
within such 60-day period; provided, however, that such limitations do not apply
to a suit instituted by the registered owner hereof for the enforcement of
payment of the principal of or premium, if any, or any interest on this Note on
or after the respective due dates expressed herein.
Unless the Certificate of Authentication hereon has been executed by
the Trustee or a duly appointed Authentication Agent referred to herein, this
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
B-7
24
IN WITNESS WHEREOF, the Company has caused this Instrument to be duly
executed.
DTE ENERGY COMPANY
By_____________________________
Date: May 30, 2001
Attest:
By_______________________________________
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes described in the within
mentioned Indenture.
THE BANK OF NEW YORK
as Trustee
By__________________________
Authorized Signatory
Date: May 30, 2001
B-8
25
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
(Please insert Social Security or Other Identifying Number of Assignee)
________________________________________________________________________________
(Please print or type name and address, including zip code of assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorneys to transfer the within Note on the books of the
Issuer, with full power of substitution in the premises.
Dated:________________________
NOTICE: The signature of this assignment must correspond with the name as
written upon the face of the within Note in every particular, without alteration
or enlargement or any change whatever and NOTICE: Signature(s) must be
guaranteed by a financial institution that is a member of the Securities
Transfer Agents Medallion Program ("STAMP"), the Stock Exchange, Inc. Medallion
Signature Program ("MSP"). When assignment is made by a guardian, trustee,
executor or administrator, an officer of a corporation, or anyone in a
representative capacity, proof of his or her authority to act must accompany
this Note.
B-9
26
EXHIBIT C
FORM OF 7.05% NOTE
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A
DEPOSITARY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TRUST COMPANY ("DTC"), TO A NOMINEE OF DTC OR BY DTC OR ANY SUCH
NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR. UNLESS THIS NOTE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO., OR IN SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.,
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL, INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
CUSIP NO.: 233331 AE 7 $-
NO. R--
DTE ENERGY COMPANY
7.05% SENIOR NOTES DUE 2011
DTE ENERGY COMPANY, a corporation duly organized and existing under the
laws of the State of Michigan (herein referred to as the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of $___________ on June 1, 2011 ("Stated Maturity" with respect to
the principal of this Note), unless previously redeemed, and to pay interest at
the rate of 7.05% per annum on said principal sum from May 30, 2001, or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, until the principal of this Note becomes due and payable, and on
any overdue principal and premium and (to the extent that payment of such
interest is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum during such overdue period. Interest on this
Note will be payable semiannually in arrears on June 1 and December 1 of each
year (each such date, an "Interest Payment Date"), commencing December 1, 2001.
The amount of interest payable for any period shall be computed on the basis of
twelve 30-day months and a 360-day year.
C-1
27
In the event that any Interest Payment Date, redemption date or other
date of Maturity of the Notes is not a Business Day, then payment of the amount
payable on such date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of any such delay), in
each case with the same force and effect as if made on such date. A "Business
Day" means any day other than a Saturday or Sunday or a day on which commercial
banks in The City of New York are required or authorized by law or executive
order to be closed. The interest installment so payable, and punctually paid or
duly provided for, on any Interest Payment Date with respect to this Note will,
as provided in the Indenture, be paid to the person in whose name this Note is
registered at the close of business on the relevant record date for such
interest installment, which shall be the fifteenth calendar day (whether or not
a Business Day) prior to the relevant Interest Payment Date (the "Regular Record
Date"). Any such interest installment not punctually paid or duly provided for
shall forthwith cease to be payable to the registered Holders on such Regular
Record Date, and may either be paid to the person in whose name this Note is
registered at the close of business on a Special Record Date to be fixed by the
Trustee for the payment of such defaulted interest, notice whereof shall be
given to the registered Holders of this series of Notes not less than ten days
prior to such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. The principal of,
and premium, if any, and the interest on the Notes shall be payable at the
office or agency of the Company maintained for that purpose in the Borough of
Manhattan, The City of New York, in any coin or currency of the United States of
America which at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest may be made at the
option of the Company by check mailed to the registered Holder at the close of
business on the Regular Record Date at such address as shall appear in the
Security Register. Notwithstanding anything else contained herein, if this Note
is a Global Note and is held in book-entry form through the facilities of the
Depositary, payments on this Note will be made to the Depositary or its nominee
in accordance with arrangements then in effect between the Trustee and the
Depositary.
This Note is one of a duly authorized series of Securities of the
Company, designated as the "7.05% Senior Notes due 2011" (the "Notes"),
initially limited to an aggregate principal amount of $600,000,000 (except for
Notes authenticated and delivered upon transfer of, or in exchange for, or in
lieu of other Notes, and except as further provided in the Indenture), all
issued or to be issued under and pursuant to an Amended and Restated Indenture,
dated as of April 9, 2001, as supplemented by the Supplemental Indenture dated
as of May 30, 2001 (together, as amended, supplemented or modified, the
"Indenture"), duly executed and delivered between the Company and The Bank of
New York, a New York banking corporation, as Trustee (herein referred to as the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture reference is hereby made for a description of the respective
rights, limitations of rights, obligations, duties and immunities thereunder of
the Trustee, the Company and the registered Holders of the Notes and of the
terms upon which the Notes are, and are to be, authenticated and delivered.
C-2
28
This Note is not subject to repayment at the option of the Holder
hereof. Except as provided below, this Note is not redeemable by the Company
prior to maturity and is not subject to any sinking fund.
In the event that, for any reason, (i) the proposed acquisition (the
"Merger") by the Company of MCN Energy Group Inc. ("MCN") pursuant to the
Agreement and Plan of Merger, dated as of October 4, 1999, as amended as of
November 12, 1999, and as further amended as of February 28, 2001 (the "Merger
Agreement"), among the Company, MCN and DTE Enterprises Inc., has not been
completed on or prior to July 30, 2001 (the "Deadline Date") without waiver or
amendment of any material term thereof (unless waived in writing by the
underwriters of the initial offering of the Notes) as in effect on May 23, 2001
or (ii) the Company elects to abandon the Merger or the Merger Agreement is
terminated, in either case, on or prior to the Deadline Date, the Company shall
redeem this Note, in whole but not in part (the "Mandatory Redemption"), at the
applicable Mandatory Redemption Price on the applicable Mandatory Redemption
Date (each term as defined below).
"Mandatory Redemption Price" means 100.75% of the principal amount of
this Note, together with accrued and unpaid interest hereon from and including
May 30, 2001 to but excluding the Mandatory Redemption Date, and shall be a
"Redemption Price" for purposes of the Indenture.
"Mandatory Redemption Date" means the earlier to occur of (i) August
20, 2001 if the Merger has not been completed on or prior to the Deadline Date
or (ii) the 20th day (or if such day is not a Business Day, the first Business
Day thereafter) following the date on which the Company elects to abandon the
Merger or the Merger Agreement is terminated, in either case, on or prior to the
Deadline Date, and shall be a "Redemption Date" for purposes of the Indenture.
The Company shall notify the Trustee and concurrently mail, or cause to
be mailed, notice of any Mandatory Redemption promptly after the occurrence of
the event triggering such redemption to the Holder hereof at its registered
address. Such notice shall not be subject to the provisions of Section 1104 of
the Indenture that otherwise require notice to be given not less that 30 nor
more than 60 days prior to the Redemption Date.
In addition, this Note will be redeemable at the option of the Company,
in whole at any time or in part from time to time, after the last date on which
a Mandatory Redemption may occur (any such date of optional redemption, an
"Optional Redemption Date," which shall be a "Redemption Date" for purposes of
the Indenture), at an optional redemption price (which shall be a "Redemption
Price" for purposes of the Indenture) equal to the greater of (i) 100% of the
principal amount of this Note to be redeemed and (ii) the sum of the present
values of the principal amount of this Note to be redeemed and the remaining
scheduled payments of interest on the principal amount of this Note to be
redeemed (exclusive of interest accrued to the related Optional Redemption Date)
until Stated Maturity, in each case discounted from their respective scheduled
payment dates to such Optional Redemption Date on a semiannual basis (assuming a
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360-day year consisting of 30-day months) at the Adjusted Treasury Rate (as
defined below) plus 25 basis points, plus in either case, accrued interest
thereon to the date of redemption.
"Adjusted Treasury Rate" means, with respect to any Optional Redemption
Date, the rate per annum equal to the semiannual yield to maturity of the
Comparable Treasury Issue, calculated on the third Business Day preceding such
Optional Redemption Date, using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Optional Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
determined by the Reference Treasury Dealer selected by the Company as having a
maturity comparable to the remaining term of this Note that would be utilized,
at the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity with the
remaining term of this Note.
"Comparable Treasury Price" means, with respect to any Optional
Redemption Date, (i) the average of the Reference Treasury Dealer Quotations for
such Optional Redemption Date, after excluding the highest and lowest such
Reference Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than
three such Reference Treasury Dealer Quotations, the average of all such
quotations, or (iii) if only one Reference Treasury Dealer Quotation is
received, such quotation.
"Reference Treasury Dealer" means each of: (i) Xxxxxxx, Xxxxx & Co.,
UBS Warburg LLC, Banc One Capital Markets, Inc., Barclays Capital Inc., X. X.
Xxxxxx Securities Inc., Xxxxxxx Xxxxx Xxxxxx Inc. and The Xxxxxxxx Capital
Group, L.P. (or their respective affiliates which are Primary Treasury Dealers),
and their respective successors; provided, however, that if any of the foregoing
cease to be a primary U.S. Government securities dealer in The City of New York
(a "Primary Treasury Dealer"), the Company shall substitute therefor another
Primary Treasury Dealer; and (ii) any other Primary Treasury Dealer(s) selected
by the Trustee after consultation with the Company.
"Reference Treasury Dealer Quotation" means, with respect to each
Reference Treasury Dealer and any Optional Redemption Date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third Business Day preceding such Optional Redemption
Date.
Notice of any optional redemption will be mailed at least 30 days but
not more than 60 days before the Optional Redemption Date to the Holder hereof
at its registered address.
Unless the Company defaults in payment of the applicable Redemption
Price, on and after the applicable Redemption Date interest will cease to accrue
on the principal amount of this Note called for redemption.
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If money sufficient to pay the applicable Redemption Price with respect
to the principal amount of and accrued interest on the principal amount of this
Note to be redeemed on the applicable Redemption Date is deposited with the
Trustee or Paying Agent on or before the related Redemption Date and certain
other conditions are satisfied, then on or after such date, interest will cease
to accrue on the principal amount of this Note called for redemption.
If the Notes are only partially redeemed by the Company, the Trustee
shall select which Notes are to be redeemed in a manner it deems fair and
appropriate in accordance with the terms of the Indenture.
In the event of redemption of this Note in part only, a new Note or
Notes of this series for the unredeemed portion hereof will be issued in the
name of the registered Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal hereof may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Note upon compliance by the Company with certain
conditions set forth therein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes under the Indenture at any
time by the Company and the Trustee with the consent of the Holders of a
majority of the aggregate principal amount of all Notes issued under the
Indenture at the time outstanding and affected thereby; provided, however, that
no such amendment shall without the consent of the Holder of each Note so
affected, among other things (i) change the stated maturity of the principal of,
or any installment of principal of or interest on any Notes of any series, or
reduce the principal amount thereof, or reduce the rate of interest thereon, or
reduce any premium payable upon the redemption thereof or (ii) reduce the
percentage of Notes, the Holders of which are required to consent to any
amendment or waiver or for certain other matters as set forth in the Indenture.
The Indenture also contains provisions permitting (i) the registered Holders of
66 2/3% in aggregate principal amount of the Securities of each series at the
time outstanding affected thereby, on behalf of the registered Holders of the
Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and (ii) the registered Holders of not less than a
majority in aggregate principal amount of the Securities of any series at the
time outstanding affected thereby, on behalf of the registered Holders of the
Securities of such series, to waive certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the registered Holder of
this Note (unless revoked as provided in the Indenture) shall be conclusive and
binding upon such registered Holder and upon all future registered Holders and
owners of this Note and of any Note issued in exchange hereof or in place hereof
(whether by registration of transfer or otherwise), irrespective of whether or
not any notation of such consent or waiver is made upon this Note.
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No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Note at the time and place and at the rate and in the coin or
currency herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Security Register of
the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company in any place where the principal of and any
interest on this Note are payable or at such other offices or agencies as the
Company may designate, duly endorsed by or accompanied by a written instrument
or instruments of transfer in form satisfactory to the Company and the Security
Registrar or any transfer agent duly executed by the registered Holder hereof or
his or her attorney duly authorized in writing, and thereupon one or more new
Notes of this series and of like tenor, of authorized denominations and for the
same aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Note, the
Company, the Trustee, any paying agent and any Security Registrar may deem and
treat the registered Holder hereof as the absolute owner hereof (whether or not
this Note shall be overdue and notwithstanding any notice of ownership or
writing hereon made by anyone other than the Security Registrar) for the purpose
of receiving payment of or on account of the principal hereof and interest due
hereon and for all other purposes, and neither the Company nor the Trustee nor
any paying agent nor any Security Registrar shall be affected by any notice to
the contrary.
The Notes of this series are issuable only in fully registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
This Global Note is exchangeable for Notes in definitive form only under certain
limited circumstances set forth in the Indenture. Notes of this series so issued
are issuable only in registered form without coupons in denominations of $1,000
and any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Notes of this series are exchangeable for
a like aggregate principal amount of Notes of this series of a different
authorized denomination, as requested by the registered Holder surrendering the
same.
As set forth in, and subject to the provisions of, the Indenture, no
registered owner of any Note will have any right to institute any proceeding
with respect to the Indenture or for any remedy thereunder, unless (i) such
registered owner shall have previously given to the Trustee written notice of a
continuing Event of Default with respect to the Notes of this series, (ii) the
registered owners of not less than 25% in principal amount of the outstanding
Notes of this series shall have made written request, and offered reasonable
indemnity, to the Trustee to institute such proceeding as trustee, (iii) the
Trustee shall have failed to institute such proceeding within 60 days and (iv)
the Trustee shall not have received from the registered owners of a majority in
principal amount of the outstanding Notes of this series a direction
inconsistent with such request
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within such 60-day period; provided, however, that such limitations do not apply
to a suit instituted by the registered owner hereof for the enforcement of
payment of the principal of or premium, if any, or any interest on this Note on
or after the respective due dates expressed herein.
Unless the Certificate of Authentication hereon has been executed by
the Trustee or a duly appointed Authentication Agent referred to herein, this
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
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IN WITNESS WHEREOF, the Company has caused this Instrument to be duly
executed.
DTE ENERGY COMPANY
By_____________________________
Date: May 30, 2001
Attest:
By_______________________________________
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes described in the within
mentioned Indenture.
THE BANK OF NEW YORK
as Trustee
By______________________________
Authorized Signatory
Date: May 30, 2001
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FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
(Please insert Social Security or Other Identifying Number of Assignee)
________________________________________________________________________________
(Please print or type name and address, including zip code of assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorneys to transfer the within Note on the books of the
Issuer, with full power of substitution in the premises.
Dated:________________________
NOTICE: The signature of this assignment must correspond with the name as
written upon the face of the within Note in every particular, without alteration
or enlargement or any change whatever and NOTICE: Signature(s) must be
guaranteed by a financial institution that is a member of the Securities
Transfer Agents Medallion Program ("STAMP"), the Stock Exchange, Inc. Medallion
Signature Program ("MSP"). When assignment is made by a guardian, trustee,
executor or administrator, an officer of a corporation, or anyone in a
representative capacity, proof of his or her authority to act must accompany
this Note.
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