<PAGE> 1
As filed with the Securities and Exchange Commission on October 10, 1995
REGISTRATION NO. XX-XXXXX
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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<TABLE>
<S> <C>
MCN INVESTMENT CORPORATION MCN CORPORATION
As Issuer and Registrant of Debt As Issuer and Registrant of
Securities Obligations
(Exact name of registrant as Pursuant to Support Agreement
specified in its charter) (Exact name of registrant as
specified in its charter)
MICHIGAN MICHIGAN
(State or other jurisdiction of (State or other jurisdiction of
Incorporation or organization) Incorporation or organization)
38-2663964 38-2820658
(I.R.S. Employer Identification (I.R.S. Employer Identification
No.) No.)
150 W. JEFFERSON AVE., SUITE 1800 500 GRISWOLD STREET
DETROIT, MICHIGAN 48226 DETROIT, MICHIGAN 48226
(313) 256-5500 (313) 256-5500
(Address, including zip code, and (Address, including zip code, and
telephone number, including telephone number, including
area code, of registrant's area code, of registrant's
principal executive office) principal executive office)
</TABLE>
DANIEL L. SCHIFFER, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
MCN CORPORATION
500 GRISWOLD STREET
DETROIT, MICHIGAN 48226
(313) 256-5500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copy To:
WILLIAM S. LAMB, ESQ.
LEBOEUF, LAMB, GREENE & MACRAE, L.L.P.
125 WEST 55TH STREET
NEW YORK, NEW YORK 10019-5389
(212) 424-8000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time as determined by market conditions after the effective
date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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TITLE OF EACH CLASS PROPOSED MAXIMUM PROPOSED MAXIMUM
OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Debt Securities................... $200,000,000 100% $200,000,000 $68,966
Obligations Pursuant to the
Support Agreement............... (2)
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) No separate consideration will be received for the obligations pursuant to
the Support Agreement.
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THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities
may not be sold nor may offers to buy be accepted prior to the time the
registration statement becomes effective. This prospectus shall not
constitute an offer to sell or the solicitation of an offer to buy nor
shall there be any sale of these securities in any State in which such
offer, solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED OCTOBER 10, 1995
PROSPECTUS
$200,000,000
MCN INVESTMENT CORPORATION
DEBT SECURITIES
ENTITLED TO THE BENEFITS OF A SUPPORT AGREEMENT BY
[MCN LOGO]
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MCN Investment Corporation, a Michigan Corporation ("MCN Investment" or the
"Company"), may offer, from time to time, its unsecured notes, debentures, or
other unsecured evidence of indebtedness (the "Debt Securities"), in one or more
series, in an aggregate principal amount of up to $200,000,000. Debt Securities
may be issued in registered form without coupons or in the form of one or more
global securities (each a "Global Security"). The Debt Securities are entitled
to the benefits of the Support Agreement between MCN Investment and its parent
company, MCN Corporation ("MCN"), whereby MCN will provide funds to MCN
Investment to pay principal, premium, if any, and interest on the Debt
Securities in the event of default by MCN Investment. See "Description of Debt
Securities" and "Support Agreement."
When a particular series of Debt Securities is offered, a supplement to
this Prospectus will be delivered (the "Prospectus Supplement") together with
this Prospectus setting forth the terms of such Debt Securities, including where
applicable, the specific designation, aggregate principal amount, denominations,
maturity, rate (which may be fixed or variable) and time of payment of interest,
any terms for redemption, any terms for repayment at the option of the holder,
any terms for sinking fund payments, the initial public offering price, the
names of, and the principal amounts to be purchased by or sold through,
underwriters, agents or dealers and the compensation of such underwriters,
agents or dealers, any listing of the Debt Securities on a securities exchange
and other terms in connection with the offering and sale of such Debt
Securities.
MCN Investment may sell the Debt Securities to or through dealers or
underwriters, directly to other purchasers or through agents. See "Plan of
Distribution." Underwriters may include Merrill Lynch & Co. (Merrill Lynch,
Pierce, Fenner & Smith Incorporated) or such other underwriter or underwriters
as may be designated by MCN Investment, or an underwriting syndicate represented
by one or more of such firms. Such firms may also act as agents. The Prospectus
Supplement will set forth the names of such underwriters, dealers or agents, if
any, any applicable commissions or discounts and the proceeds to MCN Investment
from such sales.
The Prospectus may not be used to consummate sales of Debt Securities
unless accompanied by a Prospectus Supplement applicable to the Debt Securities
being sold.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is , 1995.
<PAGE> 3
AVAILABLE INFORMATION
MCN is subject to the informational requirements of the Securities Exchange
Act of 1934, as amended (the "1934 Act") and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "SEC"). Reports, proxy statements and other information
concerning MCN can be inspected and copied at the SEC's Public Reference Room,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, DC 20549, as well as the
following Regional Offices of the SEC: 7 World Trade Center, Suite 1300, New
York, New York 10048; and Northwestern Atrium Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661-2511. Copies of such material can be
obtained from the Public Reference Section of the SEC at Judiciary Plaza, 450
Fifth Street, N.W., Washington, DC 20549, at prescribed rates. Such reports,
proxy statements and other information may also be inspected at the offices of
the New York Stock Exchange, Inc., on which MCN's common stock is traded, at 20
Broad Street, New York, New York 10005.
MCN Investment and MCN have filed a Registration Statement on Form S-3
(together with all amendments and exhibits thereto, the "Registration
Statement") with the SEC under the Securities Act of 1933, as amended (the
"Securities Act") with respect to the Debt Securities. This Prospectus does not
contain all of the information set forth in such Registration Statement, certain
parts of which are omitted in accordance with the rules and regulations of the
SEC. Reference is made to such Registration Statement and to the exhibits
relating thereto for further information with respect to MCN Investment, MCN and
the Debt Securities. Any statements contained herein concerning the provisions
of any document filed as an exhibit to the Registration Statement or otherwise
filed with the SEC or incorporated by reference herein are not necessarily
complete, and in each instance reference is made to the copy of such document so
filed for a more complete description of the matter involved. Each such
statement is qualified in its entirety by such reference.
On August 22, 1995, the staff of the SEC informed MCN Investment and MCN by
letter that it would not recommend enforcement action if MCN Investment did not
file periodic reports pursuant to Sections 13 and 15(d) of the 1934 Act, subject
to MCN Investment's compliance with the conditions set forth therein. In
reliance upon such letter, no documents have been or will be filed by MCN
Investment under the 1934 Act. MCN Investment does not intend to issue any
periodic or other reports to holders of the Debt Securities. Pursuant to
provisions of the above referenced letter, MCN's consolidating financial
statements, concerning MCN Investment, Michigan Consolidated Gas Company
("MichCon"), and MCN and other subsidiaries, will be included in the footnotes
to MCN's consolidated financial statements as long as the Debt Securities remain
outstanding and are subject to the Support Agreement. The consolidating
financial statements that are required to be included in the Registration
Statement begin on page F-1.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by MCN (File No. 1-10070) with the SEC
pursuant to the 1934 Act are incorporated by reference herein and made a part
hereof:
1. Annual Report on Form 10-K, for the year ended December 31, 1994.
2. Current Reports on Form 8-K, dated March 14, 1995.
3. Quarterly Reports on Form 10-Q, for the quarters ended March 31, 1995
and June 30, 1995.
All documents filed by MCN pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the 1934 Act subsequent to the date hereof and prior to the termination of
the offering of the Debt Securities pursuant hereto shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such documents.
Any statement contained herein or in a document incorporated or deemed to
be incorporated by reference in this Prospectus or in any Prospectus Supplement
shall be deemed to be modified or superseded for purposes of this Prospectus, or
in any Prospectus Supplement, to the extent that a statement contained in this
Prospectus or in any Prospectus Supplement or in any other subsequently filed
document which also is or is deemed to be incorporated by reference in this
Prospectus or in any Prospectus Supplement modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Prospectus or any
Prospectus Supplement.
MCN undertakes to provide without charge to each person to whom a copy of
this Prospectus has been delivered, upon the written or oral request of any such
person, a copy of any or all of the foregoing documents incorporated herein by
reference, other than exhibits to such documents (unless such exhibits are
specifically incorporated by reference into such documents). Such requests
should be directed to: Investor Relations, MCN Corporation, 500 Griswold Street,
Detroit, Michigan 48226; telephone 1-800-548-4655.
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MCN CORPORATION
MCN Corporation is a diversified natural gas holding company. Its principal
operating subsidiaries are MichCon, a natural gas distribution and intrastate
transmission company, and MCN Investment. MCN Investment owns subsidiaries
involved in gas marketing and cogeneration, exploration and production, gas
gathering and processing, gas storage and a computer operations management firm.
MCN's major business segments are Gas Distribution and, within MCN
Investment's Diversified Services group, Gas Services and Computer Operations
Services. See "MCN Investment Corporation" below for a description of
Diversified Services' businesses.
Gas Distribution operates the largest natural gas distribution and
intrastate transmission system in Michigan and one of the largest in the United
States. For the twelve months ended June 30, 1995, operating revenues in the Gas
Distribution segment exceeded $1.0 billion. In addition, at June 30, 1995, the
segment had total assets of approximately $1.5 billion. Gas Distribution serves
1.1 million customers in more than 500 communities throughout Michigan with gas
sales and transportation markets of about 650 billion cubic feet (Bcf). Gas
Distribution continues to increase its markets, reaching customers in new
communities, offering new services to current customers and expanding its
intrastate gas transportation network.
The mailing address of MCN's principal executive office is 500 Griswold
Street, Detroit, Michigan 48226, and its telephone number is (313) 256-5500.
MCN INVESTMENT CORPORATION
MCN Investment, a wholly-owned subsidiary of MCN, is a subsidiary holding
company for MCN's Diversified Services group. Operating under the two major
business segments described below, MCN Investment had total consolidated assets
of $698 million at June 30, 1995 and a $148 million share in the assets of
various joint ventures. The Company's investments in joint ventures totaled $39
million at June 30, 1995.
Gas Services is an integrated energy group with investments in
cogeneration, exploration and production, gas gathering and processing, and gas
storage fields. It also markets natural gas to large-volume users and utilities.
For the twelve months ended June 30, 1995, operating revenues for the segment
exceeded $350 million and, at June 30, 1995, assets totalled approximately $630
million. For 1995, MCN Investment anticipates investing approximately $400
million in various projects, of which $250 million will be in exploration and
production, $40 million to develop the 123 megawatt Michigan Power cogeneration
project in Ludington, Michigan and the remainder primarily in gas gathering and
processing projects. Approximately $90 million of capital expenditures have been
incurred on exploration and production projects during the six months ended June
30, 1995.
At December 31, 1994, MCN Investment owned 422 Bcf of proved reserves, 363
Bcf of potential reserves and 1.3 million barrels (equivalent to 8 Bcf) of
proved and potential oil reserves. Producing oil and gas wells totaled
approximately 1,500 at June 30, 1995.
To manage MCN Investment's exposure to the risk of fluctuating spot market
prices on profit margins, a comprehensive hedging program is in place. This
program utilizes natural gas futures, options and swap agreements to hedge
exposure to the risk of market price fluctuations on gas sales and purchase
contracts, gas production, gas inventories and certain anticipated transactions.
At the end of 1994, anticipated gas production for the next ten years was
largely hedged. MCN Investment's objective is to manage its risk exposure from
changes in natural gas prices to increase the likelihood of achieving targeted
rates of return on investments. Although this strategy reduces market price
risk, it also limits potential gains from favorable changes in commodity prices.
Expanding opportunities throughout North America should enable Gas Services to
continue to grow its 180 Bcf markets and asset-based investments.
Computer Operations Services has data centers in three states and is one of
the top ten computer operations management businesses in the United States. The
Genix Group provides computer operations
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management, data processing and related services to more than 100 corporate
clients, including many Fortune 500 companies. New value-added services,
aggressive pursuit of new customers and a focus on customized business solutions
should enable The Genix Group to grow its $100 million revenue base.
The mailing address of MCN Investment's principal executive office is 150
W. Jefferson Ave., Suite 1800, Detroit, Michigan 48226, and its telephone number
is (313) 256-5500.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
the periods indicated.
<TABLE>
<CAPTION>
TWELVE MONTHS
ENDED YEAR ENDED DECEMBER 31,
JUNE 30, --------------------------------------
1995 1994 1993 1992 1991 1990
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<S> <C> <C> <C> <C> <C> <C>
MCN Investment(1).............................. 1.46 1.52 1.74 2.45 0.95(2) 1.49
MCN(1)......................................... 2.13 2.64 3.04 2.74 2.08 2.06
</TABLE>
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(1) The Ratios of Earnings to Fixed Charges are based on continuing operations.
"Earnings" consist of the pre-tax income of majority-owned and 50%-owned
companies adjusted to include any income actually received from less than
50% owned companies, plus fixed charges, less interest capitalized during
the period for nonutility companies and less, in the case of MCN, the
preferred stock dividend requirements of MichCon included in fixed charges
but not deducted in the determination of pre-tax income. "Fixed Charges"
represent (a) interest (whether expensed or capitalized), (b) amortization
of debt discount, premium and expense, (c) an estimate of interest implicit
in rentals, and (d) in the case of MCN, the preferred securities dividend
requirements of subsidiaries (MichCon and MCN Michigan Limited
Partnership), increased to reflect the pre-tax earnings requirement for
MichCon.
(2) Earnings for the year ended December 31, 1991 were not adequate to cover
fixed charges. The amount of the coverage deficiency was $388,000.
USE OF PROCEEDS
MCN Investment intends to add the net proceeds from the sale of the Debt
Securities to its general funds, to be used for general corporate purposes,
including capital expenditures, investment in subsidiaries, working capital and
repayment of short-term borrowings.
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions
of the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the Debt Securities offered by any Prospectus Supplement and
the extent, if any, to which such general provisions may apply to the Debt
Securities so offered will be described in the Prospectus Supplement relating to
such Debt Securities.
The Debt Securities may be issued, from time to time, in one or more
series. Debt Securities will be issued under an Indenture, dated as of September
1, 1995 (the "Indenture"), between the Company and NBD Bank ("NBD"), as trustee
(the "Trustee"). A copy of the Indenture is filed as an exhibit to the
Registration Statement.
The following summary of certain provisions of the Debt Securities and the
Indenture do not purport to be complete and are subject to, and are qualified in
their entirety by express reference to, all the provisions of the Indenture,
including the definitions therein of certain terms. Certain capitalized terms
herein are defined in the Indenture.
GENERAL
The Debt Securities will be unsecured obligations of the Company.
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The Indenture does not limit the aggregate principal amount of Debt
Securities which may be issued thereunder and provides that Debt Securities may
be issued thereunder, from time to time, in one or more series. The Indenture
does not contain any debt covenants or provisions which would afford bondholders
protection in the event of a highly leveraged transaction.
Reference is made to the Prospectus Supplement relating to the Debt
Securities being offered (the "Offered Debt Securities") for, among other
things, the following terms thereof: (1) the title of the Offered Debt
Securities; (2) any limit on the aggregate principal amount of the Offered Debt
Securities; (3) the date or dates on which the Offered Debt Securities will
mature; (4) the rate or rates (which may be fixed or variable) per annum at
which the Offered Debt Securities will bear interest or the method by which such
rate or rates shall be determined and the date from which such interest will
accrue or the method by which such date or dates shall be determined; (5) the
dates on which such interest will be payable and the Regular Record Dates for
such Interest Payment Dates; (6) the dates, if any, on which, and the price or
prices at which, the Offered Debt Securities may, pursuant to any mandatory or
optional sinking fund provisions, be redeemed by the Company and other detailed
terms and provisions of such sinking funds; (7) the date, if any, after which,
and the price or prices at which, the Offered Debt Securities may, pursuant to
any optional redemption provisions, be redeemed at the option of the Company or
of the Holder thereof and other detailed terms and provisions of such optional
redemption; and (8) any other terms of the Offered Debt Securities (which terms
shall not be inconsistent with the provisions of the Indenture). For a
description of the terms of the Offered Debt Securities, reference must be made
to both the Prospectus Supplement relating thereto and to the description of
Debt Securities set forth herein.
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the principal of, and any premium or interest on, the Offered Debt Securities
will be payable, and the Offered Debt Securities will be exchangeable and
transfers thereof will be registrable, at the Place of Payment, provided that,
at the option of the Company, payment of interest may be made by check mailed,
or wire transfer, to the address of the person entitled thereto as it appears in
the Security Register.
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the Offered Debt Securities will be issued in United States dollars in fully
registered form, without coupons, in denominations of $1,000 or any integral
multiple thereof. No service charge will be made for any transfer or exchange of
the Offered Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
For purposes of the description of the Debt Securities, certain defined
terms have the following meanings:
"Indebtedness" of any Person means, without duplication, (i) the principal
of and premium (if any) in respect of (A) indebtedness of such Person for money
borrowed and (B) indebtedness evidenced by notes, debentures, bonds or other
similar instruments for the payment of which such Person is responsible or
liable; (ii) all Capitalized Lease Obligations of such Person; (iii) all
obligations of such Person issued or assumed as the deferred purchase price of
property, all conditional sale obligations and all obligations under any title
retention agreement (but excluding trade accounts payable arising in the
ordinary course of business); (iv) all obligations of such Person for the
reimbursement of any obligor on any letter of credit, banker's acceptance or
similar credit transaction (other than obligations with respect to letters of
credit securing obligations (other than obligations described in (i) through
(iii) above) entered into in the ordinary course of business of such Person to
the extent such letters of credit are not drawn upon or, if and to the extent
drawn upon, such drawing is reimbursed no later than the third Business Day
following receipt by such Person of a demand for reimbursement following payment
on the letter of credit); (v) all obligations of the type referred to in clauses
(i) through (iv) of other Persons and all dividends of other Persons for the
payment of which, in either case, such Person is responsible or liable as
obligor, guarantor or otherwise; and (vi) all obligations of the type referred
to in clauses (i) through (v) of other Persons secured by any Lien on any
property or asset of such Person (whether or not such obligation is assumed by
such Person), the amount of such obligation being deemed to be the lesser of the
value of such property or assets or the amount of the obligation so secured.
"Capitalized Lease Obligations" means an obligation under a lease that is
required to be capitalized for financial reporting purposes in accordance with
GAAP, and the amount of Indebtedness represented by such obligation shall be the
capitalized amount of such obligation determined in accordance with such
principles.
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"Project Finance Indebtedness" means Indebtedness of a Subsidiary (other
than a Utility and other than the Company) secured by a Lien on any property,
acquired, constructed or improved by such Subsidiary after the date of the
Indenture which Lien is created or assumed contemporaneously with, or within 120
days after, such acquisition or completion of such construction or improvement,
or within six months thereafter pursuant to a firm commitment for financing
arranged with a lender or investor within such 120-day period, to secure or
provide for the payment of all or any part of the purchase price of such
property or the cost of such construction or improvement, or on any property
existing at the time of acquisition thereof; provided that such a Lien shall not
apply to any property theretofore owned by any such Subsidiary other than, in
the case of any such construction or improvement, any theretofore unimproved
real property on which the property so constructed or the improvement is
located; and provided further that such Indebtedness, by its terms, shall limit
the recourse of any holder of such Indebtedness (or trustee on such holder's
behalf) in the event of any default in such Indebtedness to the assets subject
to such Liens and the capital stock of the Subsidiary issuing such Indebtedness.
Notwithstanding the foregoing, Project Finance Indebtedness shall include all
Indebtedness that would constitute Project Finance Indebtedness but for the fact
that such Indebtedness was issued prior to the date of this Indenture and taking
into account the fact that the property subject to the Lien may have been
acquired prior to the date of this Indenture.
The Debt Securities may be issued under the Indenture as Original Issue
Discount Securities to be offered and sold at a substantial discount below their
principal amount. Special federal income tax, accounting and other
considerations applicable to any such Original Issue Discount Securities will be
described in any Prospectus Supplement relating thereto. "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 as a result of the occurrence of an Event
of Default and the continuation thereof.
THE TRUSTEE
NBD is the Trustee under the Indenture. NBD is also the Trustee under MCN's
Senior and Subordinated Indentures. NBD has extended lines of credit to various
subsidiaries of MCN. MCN and various of its subsidiaries maintain bank accounts
and have other customary banking relationships with NBD in the ordinary course
of business. In addition, various MCN subsidiaries, including MCN Investment
borrow money from NBD. Mr. Thomas H. Jeffs II, President and Chief Operating
Officer of NBD, serves as a Director of MCN. Mr. Alfred R. Glancy III, Chairman,
President and Chief Executive Officer of MCN, serves as a Director of NBD.
RESTRICTIONS
The Indenture provides that neither the Company nor MCN shall consolidate
with, merge with or into any other corporation (whether or not the Company or
MCN, as the case may be, shall be the surviving corporation), or sell, assign,
transfer or lease all or substantially all of its properties and assets as an
entirety or substantially as an entirety to any Person or group of affiliated
Persons, in one transaction or a series of related transactions, unless: (1)
either the Company or MCN, as the case may be, shall be the continuing Person or
the Person (if other than the Company or MCN) formed by such consolidation or
with which or into which the Company or MCN is merged or the Person (or group of
affiliated Persons) to which all or substantially all the properties and assets
of the Company or MCN are sold, assigned, transferred or leased is a corporation
(or constitute corporations) organized under the laws of the United States or
any State thereof or the District of Columbia and expressly assumes, in the case
of the Company, by an indenture supplemental to the Indenture, all the
obligations of the Company under the Debt Securities and the Indenture, executed
and delivered to the Trustee in form satisfactory to the Trustee; and in the
case of MCN, the performance of every covenant of the Indenture on the part of
MCN, as applicable, and all the obligations under the Support Agreement to be
performed or observed; (2) immediately before and after giving effect to such
transaction or series of transactions, no Event of Default, and no Default, with
respect to the Debt Securities shall have occurred and be continuing; and (3)
the Company or MCN, as applicable, shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indentures comply with
the Indenture. Each of the Company and MCN covenants and agrees in
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the Indenture that if, upon its consolidation with or merger into any other
corporation, or upon any consolidation or merger of any other corporation with
or into it, or upon any sale or conveyance of all or substantially all of its
property and assets to any other corporation, any of its property or any
property of any Subsidiary or any Indebtedness issued by any Subsidiary owned by
it or by any other Subsidiary immediately prior thereto would thereupon become
subject to any mortgage, security interest, pledge, lien or other encumbrance
not permitted by the Indenture, prior to or concurrently with such
consolidation, merger, sale or conveyance, it will effectively secure the
Securities then Outstanding issued under the Indenture (equally and ratably with
(or prior to) any other Indebtedness of or guaranteed by it or such Subsidiary
then entitled thereto) by a direct lien, on such of its property or such
property of a Subsidiary or such other Indebtedness issued by a Subsidiary,
prior to all liens other than any theretofore existing thereon.
The Indenture also provides that neither the Company nor MCN will, nor will
MCN permit any Significant Subsidiary to, create, incur, or suffer to exist any
Lien in, of or on the property of the Company, MCN or any of their Subsidiaries,
except: (i) Liens for taxes, assessments or governmental charges or levies on
its property if the same shall not at the time be delinquent or thereafter can
be paid without penalty, or are being contested in good faith and by appropriate
proceedings and for which adequate reserves in accordance with generally
accepted principles of accounting shall have been set aside on its books; (ii)
Liens imposed by law, such as carriers', warehousemen's and mechanics' liens and
other similar liens arising in the ordinary course of business which secure
payment of obligations not more than 60 days past due or which are being
contested in good faith by appropriate proceedings and for which adequate
reserves shall have been set aside on its books; (iii) Liens arising out of
pledges or deposits under worker's compensation laws, unemployment insurance,
old age pensions, or other social security or retirement benefits, or similar
legislation; (iv) utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature generally
existing with respect to properties of a similar character and which do not in
any material way affect the marketability of the same or interfere with the use
thereof in the business of the Company, MCN or their Subsidiaries, as the case
may be; (v) Liens on the capital stock, partnership interest, or other evidence
of ownership of any Subsidiary or such Subsidiary's assets that secure Project
Finance Indebtedness for such Subsidiary; (vi) Liens arising in connection with
first mortgage bonds issued by any Significant Subsidiary pursuant to any first
mortgage indenture in effect as of the date of the Indenture, as such indenture
may be supplemented from time to time; (vii) purchase money liens upon or in
property now owned or hereafter acquired in the ordinary course of business
(consistent with the Company's or MCN's business practices, as the case may be)
to secure (A) the purchase price of such property or (B) Indebtedness incurred
solely for the purpose of financing the acquisition, construction, or
improvement of any such property to be subject to such liens, or Liens existing
on any such property at the time of acquisition, or extensions, renewals, or
replacements of any of the foregoing for the same or a lesser amount; provided
that no such lien shall extend to or cover any property other than the property
being acquired, constructed, or improved and replacements, modifications, and
proceeds of such property, and no such extension, renewal, or replacement shall
extend to or cover any property not theretofore subject to the Lien being
extended, renewed, or replaced; (viii) Liens existing on the date Debt
Securities are first issued; and (ix) Liens for no more than 90 days arising
from a transaction involving accounts receivable of the Company or MCN, as the
case may be (including the sale of such accounts receivable), where such
accounts receivable arose in the ordinary course of the Company's or MCN's
business, as the case may be.
The Indenture provides that neither the Company nor MCN will, nor will they
permit any Subsidiary to, enter into any arrangement with any lender or investor
(other than the Company, MCN or a Subsidiary), or to which such lender or
investor (other than the Company, MCN or a Subsidiary) is a party, providing for
the leasing by the Company, MCN or such Subsidiary for a period, including
renewals, in excess of three years of any real property located within the
United States which has been owned by the Company, MCN or such Subsidiary, as
the case may be, for more than six months and which has been or is to be sold or
transferred by the Company, MCN or such Subsidiary, as the case may be, to such
lender or investor or to any person to whom funds have been or are to be
advanced by such lender or investor on the security of such real property unless
either (a) the Company, MCN or such Subsidiary, as the case may be, could create
Indebtedness secured by a lien consistent with the restrictions set forth in the
foregoing paragraph on the real property to be leased in an amount equal to the
Value of such transaction without equally and ratably securing the Debt
Securities or (b) the Company or MCN, as the case may be, within six months
after the sale or transfer shall
7
<PAGE> 9
have been made, applies an amount equal to the greater of (i) the net proceeds
of the sale of the real property leased pursuant to such arrangement or (ii) the
fair market value of the real property so leased to the retirement of Debt
Securities and other obligations of the Company or MCN, as the case may be,
ranking on a parity with the Debt Securities. Debt Securities rank pari passu
with other unsecured indebtedness.
EVENTS OF DEFAULT AND NOTICE THEREOF
The following are Events of Default under the Indenture with respect to
Debt Securities of any series: (1) failure to pay interest on any Debt Security
of that series when due and payable, continued for 30 days; (2) failure to pay
the principal of (or premium, if any, on) any Debt Security of that series when
due and payable at Maturity, upon redemption or otherwise; (3) failure to
observe or perform any other covenant, warranty or agreement of the Company or
MCN contained in the Debt Securities of that series, the Indenture or the
Support Agreement (other than a covenant, agreement or warranty included in the
Indenture solely for the benefit of Debt Securities other than that series),
continued for a period of 60 days after notice has been given to the Company by
the Trustee or Holders of at least 25% in aggregate principal amount of the
Outstanding Debt Securities of that series; (4) failure to pay at final
maturity, or acceleration of, Indebtedness of the Company, MCN or a Subsidiary
(but excluding Project Finance Indebtedness and certain other gas and oil
reserve-based financing with limited recourse to MCN as described below) having
an aggregate principal amount of more than 1% of the consolidated total assets
of MCN (determined as of its most recent fiscal year-end), unless cured within
10 days after notice has been given to the Company by the Trustee or Holders of
at least 10% in aggregate principal amount of the Outstanding Debt Securities of
that series; (5) certain events of bankruptcy, insolvency or reorganization
relating to the Company, MCN or a Significant Subsidiary; and (6) any other
Event of Default with respect to Debt Securities of that series specified in the
Prospectus Supplement relating thereto or Supplemental Indenture under which
such series of Debt Securities is issued. As noted in (4) above, it will not be
an Event of Default under the Indenture if a default occurs in certain gas and
oil reserve-based financing of Supply Development Group, Inc. (a Subsidiary of
the Company) or its Subsidiaries if the obligations of MCN and its Subsidiaries
with respect to such Indebtedness (other than Supply Development Group, Inc. and
its Subsidiaries) are limited to (i) payments with respect to Section 29 tax
credits, (ii) payments with respect to certain material contracts of the
borrower (generally limited to gas and oil supply contracts and gas and oil
hedging contracts) and (iii) certain environmental obligations of the borrowers.
As of September 30, 1995, $100,000,000 of such gas and oil reserve-based
Indebtedness was outstanding. From time to time, MCN or its Subsidiaries may
establish additional similar reserve-based credit facilities with respect to
which a default would not result in an Event of Default under the Indenture.
The Indenture provides that the Trustee shall, within 30 days after the
occurrence of any Default or Event of Default with respect to Debt Securities of
any series, give the Holders of Debt Securities of that series notice of all
uncured Defaults or Events of Default known to it (the term "Default" includes
any event which after notice or passage of time or both would be an Event of
Default); provided, however, that, except in the case of an Event of Default or
a Default in payment on any Debt Securities of any series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or directors or Responsible Officers of the Trustee in
good faith determine that the withholding of such notice is in the interest of
the Holders of Debt Securities of that series.
If an Event of Default with respect to Debt Securities of any series (other
than due to events of bankruptcy, insolvency or reorganization) occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of the Outstanding Debt Securities of that series, by notice in writing
to the Company (and to the Trustee if given by the Holders of at least 25% in
aggregate principal amount of the Debt Securities of that series), may declare
the unpaid principal of and accrued interest to the date of acceleration on all
the Outstanding Debt Securities of that series to be due and payable immediately
and, upon any such declaration, the Outstanding Debt Securities of that series
shall become immediately due and payable.
If an Event of Default occurs due to bankruptcy, insolvency or
reorganization, all unpaid principal of and accrued interest on the Outstanding
Debt Securities of any series will become immediately due and payable
8
<PAGE> 10
without any declaration or other act on the part of the Trustee or any Holder of
any Debt Security of that series.
The Indenture provides that the Company shall periodically file statements
with the Trustee regarding compliance by the Company with certain of the
respective covenants thereof and shall specify any Event of Default or Defaults
with respect to Debt Securities of any series, in performing such covenants, of
which the signers may have knowledge.
MODIFICATION OF INDENTURE; WAIVER
The Indenture may be modified by the Company and the Trustee without the
consent of any Holders with respect to certain matters, including (i) to cure
any ambiguity, defect or inconsistency or to correct or supplement any provision
which may be inconsistent with any other provision of the Indenture and (ii) to
make any change that does not materially adversely affect the interests of any
Holder of Debt Securities of any series. In addition, under the Indenture,
certain rights and obligations of the Company and the rights of Holders of the
Debt Securities may be modified by the Company and the Trustee with the written
consent of the Holders of at least a majority in aggregate principal amount of
the Outstanding Debt Securities of each series affected thereby; but no
extension of the maturity of any Debt Securities of any series, reduction in the
interest rate or extension of the time for payment of interest, change in the
optional redemption or repurchase provisions in a manner adverse to any Holder
of Debt Securities of any series, other modification in the terms of payment of
the principal of, or interest on, any Debt Securities of any series, or
reduction of the percentage required for modification, will be effective against
any Holder of any Outstanding Debt Security of any series affected thereby
without the Holder's consent. The Indenture does not limit the aggregate amount
of Debt Securities of the Company which may be issued thereunder.
The Holders of a majority in aggregate principal amount of the Outstanding
Debt Securities of any series may on behalf of the Holders of all Debt
Securities of that series waive, insofar as that series is concerned, compliance
by the Company with certain restrictive covenants of the Indenture. The Holders
of not less than a majority in aggregate principal amount of the Outstanding
Debt Securities of any series may on behalf of the Holders of all Debt
Securities of that series waive any past Event of Default or Default under the
Indenture with respect to that series, except an Event of Default or a Default
in the payment of the principal of, or premium, if any, or any interest on any
Debt Security of that series or in respect of a provision which under the
Indenture cannot be modified or amended without the consent of the Holder of
each Outstanding Debt Security of that series affected.
DEFEASANCE
The Company may terminate its substantive obligations in respect of Debt
Securities of any series (except for its obligations to pay the principal of
(and premium, if any, on) and the interest on the Debt Securities of that
series) by (i) depositing with the Trustee, under the terms of an irrevocable
trust agreement, money or U.S. Government Obligations sufficient to pay all
remaining indebtedness on the Debt Securities of that series, (ii) delivering to
the Trustee either an Opinion of Counsel or a ruling directed to the Trustee
from the Internal Revenue Service to the effect that the Holders of the Debt
Securities of that series will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit and termination of obligations,
and (iii) complying with certain other requirements set forth in the Indenture.
BOOK-ENTRY DEBT SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities (as such term is defined below) that will
be deposited with, or on behalf of, a Depositary ("Depositary") or its nominee
identified in the applicable Prospectus Supplement. In such a case, one or more
Global Securities will be issued in a denomination or aggregate denomination
equal to the portion of the aggregate principal amount of outstanding Debt
Securities of the series to be represented by such Global Security or Global
Securities. Unless and until it is exchanged in whole or in part for Debt
Securities in registered form, a Global Security may not be registered for
transfer or exchange except as a whole by the Depositary for such Global
Security to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any nominee to a successor
9
<PAGE> 11
Depositary or a nominee of such successor Depositary and except in the
circumstances described in the applicable Prospectus Supplement. The term
"Global Security", when used with respect to any series of Debt Securities,
means a Debt Security that is executed by the Company and authenticated and
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction, which shall be registered in the name of the Depositary or its
nominee and which shall represent, and shall be denominated in an amount equal
to the aggregate principal amount of, all of the outstanding Debt Securities of
such series or any portion thereof, in either case having the same terms,
including, without limitation, the same original issue date, date or dates on
which principal is due, and interest rate or method of determining interest.
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Global Security
will be described in the applicable Prospectus Supplement. The Company expects
that the following provisions will apply to depositary arrangements.
Unless otherwise specified in the applicable Prospectus Supplement, Debt
Securities which are to be represented by a Global Security to be deposited with
or on behalf of a Depositary will be represented by a Global Security registered
in the name of such Depositary or its nominee. Upon the issuance of such Global
Security, and the deposit of such Global Security with or on behalf of the
Depositary for such Global Security, the Depositary will credit, on its
book-entry registration and transfer system, the respective principal amounts of
the Debt Securities represented by such Global Security to the accounts of
institutions that have accounts with such Depositary or its nominee
("participants"). The accounts to be credited will be designated by the
underwriters or agents of such Debt Securities or, if such Debt Securities are
offered and sold directly by the Company, by the Company. Ownership of
beneficial interests in such Global Security will be limited to participants or
Persons that may hold interests through participants. Ownership of beneficial
interests by participants in such Global Security will be shown on, and the
transfer of that ownership interest will be effected only through, records
maintained by the Depositary or its nominee for such Global Security. Ownership
of beneficial interests in such Global Security by Persons that hold through
participants will be shown on, and the transfer of that ownership interest
within such participant will be effected only through, records maintained by
such participant. The laws of some jurisdictions require that certain purchasers
of securities take physical delivery of such securities in certificated form.
The foregoing limitations and such laws may impair the ability to transfer
beneficial interests in such Global Securities.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or Holder of the Securities
represented by such Global Security for all purposes under the Indenture. Unless
otherwise specified in the applicable Prospectus Supplement, owners of
beneficial interests in such Global Security will not be entitled to have Debt
Securities of the series represented by such Global Security registered in their
names, will not receive or be entitled to receive physical delivery of Debt
Securities of such series in certificated form and will not be considered the
Holders thereof for any purposes under the Indenture. Accordingly, each Person
owning a beneficial interest in such Global Security must rely on the procedures
of the Depositary and, if such Person is not a participant, on the procedures of
the participant through which such Person owns its interest, to exercise any
rights of a Holder under the Indenture. The Company understands that under
existing industry practices, if the Company requests any action of Holders or an
owner of a beneficial interest in such Global Security desires to give any
notice or take any action a Holder is entitled to give or take under the
Indenture, the Depositary would authorize the participants to give such notice
or take such action, and participants would authorize beneficial owners owning
through such participants to give such notice or take such action or would
otherwise act upon the instructions of beneficial owners owning through them.
Principal of and any premium and interest on a Global Security will be
payable in the manner described in the applicable Prospectus Supplement.
SUPPORT AGREEMENT
The Support Agreement between the Company and MCN provides that, during the
term thereof, (i) MCN will own all of the voting stock of the Company, (ii) MCN
will cause the Company to have at all times a positive net worth (net assets,
less intangible assets, if any), as determined in accordance with
10
<PAGE> 12
generally accepted accounting principles and (iii) if the Company is unable to
make timely payment of principal of, or any premium or interest on, any Debt (as
defined below) issued by the Company, MCN will, at the request of the Company or
any Lender (as defined below), provide funds to the Company to make such
payments. The Support Agreement also provides that any Lender to the Company
shall have the right to demand that the Company enforce its rights against MCN
under the Support Agreement as described in the previous sentence, and in the
event that the Company fails to require MCN to perform such obligations or the
Company defaults in the timely payment of principal of, or any premium or
interest on, any Debt owed to a Lender, such Lender may proceed directly against
MCN to enforce the Company's rights against MCN under the Support Agreement or
to obtain payment of such defaulted principal, premium or interest owed to such
Lender.
The Support Agreement provides that in no event may any Lender, on default
of the Company or MCN or upon failure by the Company or MCN to comply with the
Support Agreement, have recourse to or against the stock or assets of MichCon,
or any interest of the Company or MCN therein. Notwithstanding this limitation,
the Support Agreement provides that funds available to MCN to satisfy any
obligations under the Support Agreement will include cash dividends paid by
MichCon to MCN. In addition to the cash dividends paid to MCN by any of its
subsidiaries, the assets of MCN other than the stock and assets of MichCon are
available as recourse to holders of the Company's Debt. The carrying value of
such assets reflected in MCN's balance sheet on an unconsolidated basis, at June
30, 1995 is approximately $300 million. The term "Debt" is defined in the
Support Agreement as debt securities or other obligations, and includes the Debt
Securities. The term "Lender" is defined in the Support Agreement as any person,
firm, corporation or other entity to which the Company is indebted for money
borrowed or to which the Company otherwise owes any Debt or which is acting as
trustee or authorized representative on behalf of such person, firm, corporation
or other entity. The Indenture provides that each Holder of a Debt Security, as
well as the Trustee, shall be considered a "Lender" for purposes of the Support
Agreement.
Funds to repay the Debt Securities at maturity pursuant to the Support
Agreement would come from earnings in the form of dividends paid to MCN by
MichCon and MCN's other subsidiaries, the earnings of other businesses of MCN
and its subsidiaries, or the proceeds of financing transactions.
The Support Agreement provides that MCN will not take any action (or
refrain from taking any action) to the extent that such action or inaction would
cause a default in the performance or breach of any term or provision of the
Indenture, or any Debt outstanding under the Indenture, and MCN will comply with
all covenants and provisions of the Indenture applicable to it as if it were a
party to the Indenture.
The Support Agreement may be amended or terminated at any time by agreement
of MCN and the Company, provided that (i) no amendment regarding the terms
described above may be made unless all Lenders consent in advance and in writing
to such amendment, (ii) no amendment regarding any other term of the Support
Agreement may be made in a manner that adversely affects the rights of Lenders
unless all affected Lenders consent in advance and in writing to such amendment
and (iii) no termination shall be effective until such time as all Debt
(including the Debt Securities) shall have been paid in full.
VALIDITY OF SECURITIES
The validity of the Debt Securities and obligations under the Support
Agreement of MCN will be passed upon by Daniel L. Schiffer, Esq., Senior Vice
President, General Counsel and Secretary of MCN Corporation, and for any agents
or underwriters by LeBoeuf, Lamb, Greene & MacRae, L.L.P., a limited liability
partnership including professional corporations, New York, New York. Mr.
Schiffer is a full-time employee and officer of MCN and owns 18,594 shares of
MCN Common Stock as of August 31, 1995. LeBoeuf, Lamb, Greene & MacRae, L.L.P.
from time to time renders legal services to MCN and the Company.
EXPERTS
The consolidated financial statements and the related financial statement
schedule incorporated in this prospectus by reference from MCN's Annual Report
on Form 10-K for the year ended December 31, 1994 have been audited by DELOITTE
& TOUCHE LLP, independent auditors, as stated in their reports, which
11
<PAGE> 13
are incorporated herein by reference (which reports express an unqualified
opinion and include an explanatory paragraph relating to MCN's adoption of
Statement of Financial Accounting Standards No. 106, "Employers' Accounting For
Postretirement Benefits Other Than Pensions"), and have been so incorporated in
reliance upon the reports of such firm given upon their authority as experts in
accounting and auditing.
MCN's Annual Report on Form 10-K for the year ended December 31, 1994,
includes various oil and gas reserve information summarized from reports
prepared by the independent petroleum consultants Ryder Scott Company and Miller
and Lents, Ltd. This reserve information and related schedules have been
incorporated herein by reference in reliance upon such reports given upon the
authority of said firms as experts in oil and gas reserve estimation.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities (i) to or through underwriters or
dealers, (ii) directly to purchasers, or (iii) through agents. A Prospectus
Supplement with respect to the Offered Debt Securities will set forth the terms
of the offering of the Offered Debt Securities, including the name or names of
any underwriters, dealers or agents; the purchase price of the Offered Debt
Securities and the proceeds to MCN Investment from such sale; any underwriting
discounts and commissions and other items constituting underwriters' or agents'
compensation; any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers; and any securities exchange on which
such Offered Debt Securities may be listed. Any initial public offering price,
discounts or concessions allowed or reallowed or paid to dealers may be changed
from time to time. Only firms named in the Prospectus Supplement or a related
pricing supplement, if applicable, will be deemed to be underwriters, dealers or
agents in connection with the Debt Securities offered thereby, and if any of the
firms expressly referred to below is not named in such Prospectus Supplement or
a related pricing supplement, then such firm will not be a party to the
underwriting or distribution agreement in respect of such Debt Securities, will
not be purchasing any such Debt Securities from the Company and will have no
direct or indirect participation in the underwriting or other distribution of
such Debt Securities, although it may participate in the distribution of such
Debt Securities under circumstances entitling it to a dealer's commission.
If underwriters are used in the sale, the Offered Debt Securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
The Offered Debt Securities may be offered to the public either through
underwriting syndicates represented by one or more managing underwriters or
directly by one or more firms acting as underwriters. The underwriter or
underwriters with respect to a particular underwritten offering of Offered Debt
Securities will be named in the Prospectus Supplement relating to such offering
and, if an underwriting syndicate is used, the managing underwriter or
underwriters will be set forth on the cover of such Prospectus Supplement.
Unless otherwise set forth in the Prospectus Supplement relating thereto, the
obligations of the underwriters to purchase the Offered Debt Securities will be
subject to certain conditions precedent, and the underwriters will be obligated
to purchase all the Debt Securities if any are purchased.
If dealers are utilized in the sale of Offered Debt Securities, MCN
Investment will sell such Offered Debt Securities to the dealers as principals.
The dealers may then resell such Offered Debt Securities to the public at
varying prices to be determined by such dealers at the time of resale. The names
of the dealers and the terms of the transaction will be set forth in the
Prospectus Supplement relating thereto.
The Debt Securities may be sold from time to time either directly by MCN
Investment or through agents designated by MCN Investment. Any agent involved in
the offer or sale of the Offered Debt Securities in respect to which this
Prospectus is delivered will be named, and any commissions payable by MCN
Investment to such agent will be set forth in the Prospectus Supplement relating
thereto. Unless otherwise indicated in the Prospectus Supplement, any such agent
will be acting on a best efforts basis for the period of its appointment.
The Debt Securities may be sold directly by MCN Investment to institutional
investors or others who may be deemed to be underwriters within the meaning of
the Securities Act with respect to any resale thereof. The terms of any such
sales will be described in the Prospectus Supplement relating thereto.
12
<PAGE> 14
If so indicated in the Prospectus Supplement, MCN Investment will authorize
agents, underwriters or dealers to solicit offers from certain types of
institutions to purchase Offered Debt Securities from MCN Investment at the
public offering price set forth in the Prospectus Supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in the
future. Such contracts will be subject only to those conditions set forth in the
Prospectus Supplement, and the Prospectus Supplement will set forth the
commission payable for solicitation of such contracts.
Agents, dealers and underwriters may be entitled under agreements with MCN
Investment and MCN to indemnification against certain civil liabilities,
including liabilities under the Securities Act, or to contribution with respect
to payments which such agents, dealers or underwriters may be required to make
in respect thereof. Agents, dealers and underwriters may be customers of, engage
in transactions with, or perform services for MCN Investment or MCN in the
ordinary course of business.
The Debt Securities may or may not be listed on a national securities
exchange. No assurance can be given that there will be a market for the Debt
Securities.
13
<PAGE> 15
MCN CORPORATION
INDEX TO CONSOLIDATING FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Consolidating Statements of Financial Position....................................... F-2
Consolidating Statements of Income................................................... F-8
Condensed Consolidating Statements of Cash Flows..................................... F-15
</TABLE>
The following unaudited consolidating financial statements present the
financial position, results of operations and cash flows of MCN Investment,
MichCon, and MCN and other subsidiaries, and the eliminations necessary to
arrive at the information for MCN on a consolidated basis. The other MCN
subsidiaries represent Citizens Gas Fuel Company, Blue Lake Holdings, Inc. and
MCN Michigan Limited Partnership. MCN has determined that separate financial
statements and other disclosures concerning MCN Investment are not material to
investors.
F-1
<PAGE> 16
MCN CORPORATION
CONSOLIDATING STATEMENTS OF FINANCIAL POSITION
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
MCN ELIMINATIONS
AND OTHER MCN AND CONSOLIDATED
SUBSIDIARIES INVESTMENT MICHCON RECLASSIFICATIONS TOTALS
------------ ---------- ---------- ----------------- ------------
JUNE 30, 1995
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents, at cost.............. $ 44 $ 10,826 $ 33,588 $ -- $ 44,458
Accounts receivable............................. 3,789 67,528 143,676 (7,379) 207,614
Less: allowance for doubtful accounts......... 83 420 20,537 -- 21,040
-------- --------- ---------- --------- ----------
Accounts receivable -- net...................... 3,706 67,108 123,139 (7,379) 186,574
Accrued unbilled revenue........................ 163 -- 14,356 -- 14,519
Gas in inventory................................ -- 36,122 51,427 -- 87,549
Property taxes assessed to applicable future
periods....................................... 53 1,527 31,537 -- 33,117
Gas receivable.................................. -- 17,162 4,198 -- 21,360
Other........................................... 2,066 6,677 20,831 (24) 29,550
-------- --------- ---------- --------- ----------
6,032 139,422 279,076 (7,403) 417,127
-------- --------- ---------- --------- ----------
DEFERRED CHARGES AND OTHER ASSETS
Investments in and advances to joint ventures
and subsidiaries.............................. 758,095 38,972 20,247 (748,943) 68,371
Deferred postretirement benefit cost............ 761 -- 16,853 -- 17,614
Other........................................... 12,170 75,025 60,573 1,316 149,084
-------- --------- ---------- --------- ----------
771,026 113,997 97,673 (747,627) 235,069
-------- --------- ---------- --------- ----------
PROPERTY, PLANT AND EQUIPMENT, at cost............ 25,047 489,746 2,257,745 -- 2,772,538
Less -- Accumulated depreciation and
depletion..................................... 8,902 45,510 1,113,687 -- 1,168,099
-------- --------- ---------- --------- ----------
16,145 444,236 1,144,058 -- 1,604,439
-------- --------- ---------- --------- ----------
$793,203 $ 697,655 $1,520,807 $(755,030) $2,256,635
======== ========= ========== ========= ==========
LIABILITIES
CURRENT LIABILITIES
Accounts payable................................ $ 977 $ 70,771 $ 84,779 $ (6,087) $ 150,440
Notes payable................................... -- 69,368 1,875 -- 71,243
Current portion of long-term debt, capital
leases and redeemable cumulative preferred
stock......................................... 486 2,697 3,904 -- 7,087
Gas inventory equalization...................... -- 3 36,605 -- 36,608
Federal income, property and other taxes
payable....................................... (148) 8,646 69,850 -- 78,348
Refunds payable to customers.................... -- -- 1,258 -- 1,258
Customer deposits............................... 17 -- 10,013 -- 10,030
Other........................................... 2,975 12,098 41,679 (4) 56,748
-------- --------- ---------- --------- ----------
4,307 163,583 249,963 (6,091) 411,762
-------- --------- ---------- --------- ----------
DEFERRED CHARGES AND OTHER LIABILITIES
Accumulated deferred income taxes............... (395) 39,285 61,609 -- 100,499
Unamortized investment tax credit............... 375 -- 37,366 -- 37,741
Tax benefits amortizable to customers........... 169 -- 112,470 -- 112,639
Accrued postretirement benefit cost............. 1,990 950 11,119 -- 14,059
Minority interest............................... -- 18,237 -- -- 18,237
Other........................................... 15,555 23,353 61,585 -- 100,493
-------- --------- ---------- --------- ----------
17,694 81,825 284,149 -- 383,668
-------- --------- ---------- --------- ----------
LONG-TERM DEBT, including capital lease
obligations..................................... 424 189,473 516,328 -- 706,225
-------- --------- ---------- --------- ----------
REDEEMABLE CUMULATIVE PREFERRED SECURITIES OF
SUBSIDIARIES.................................... 100,000 -- -- -- 100,000
-------- --------- ---------- --------- ----------
COMMON SHAREHOLDERS' EQUITY
Common Stock.................................... 660 5 10,300 (10,305) 660
Additional paid-in capital...................... 447,188 223,711 211,777 (443,615) 439,061
Retained earnings............................... 223,472 39,058 248,290 (295,019) 215,801
Unearned compensation and ESOP benefit.......... (542) -- -- -- (542)
-------- --------- ---------- --------- ----------
670,778 262,774 470,367 (748,939) 654,980
-------- --------- ---------- --------- ----------
$793,203 $ 697,655 $1,520,807 $(755,030) $2,256,635
======== ========= ========== ========= ==========
</TABLE>
F-2
<PAGE> 17
MCN CORPORATION
CONSOLIDATING STATEMENTS OF FINANCIAL POSITION (CONTINUED)
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
MCN ELIMINATIONS
AND OTHER MCN AND CONSOLIDATED
SUBSIDIARIES INVESTMENT MICHCON RECLASSIFICATIONS TOTALS
------------ ---------- ---------- ----------------- ------------
MARCH 31, 1995
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents....................... $ 102 $ 5,729 $ 6,933 $ -- $ 12,764
Accounts receivable............................. 4,692 78,489 214,758 (8,688) 289,251
Less: allowance for doubtful accounts......... 81 820 20,816 (500) 21,217
-------- --------- ---------- --------- ----------
Accounts receivable -- net...................... 4,611 77,669 193,942 (8,188) 268,034
Accrued unbilled revenue........................ 791 -- 59,532 -- 60,323
Gas in inventory................................ -- 30,366 28,911 -- 59,277
Property taxes assessed applicable to future
periods....................................... 111 -- 41,850 2,003 43,964
Gas receivable.................................. -- 22,779 5,626 -- 28,405
Other........................................... 1,671 8,161 18,888 (2,003) 26,717
-------- --------- ---------- --------- ----------
7,286 144,704 355,682 (8,188) 499,484
-------- --------- ---------- --------- ----------
DEFERRED CHARGES AND OTHER ASSETS
Investments in and advances to joint ventures
and subsidiaries.............................. 765,963 42,205 20,535 (764,501) 64,202
Deferred postretirement benefit cost............ 772 -- 19,095 -- 19,867
Other........................................... 12,806 77,444 51,057 229 141,536
-------- --------- ---------- --------- ----------
779,541 119,649 90,687 (764,272) 225,605
-------- --------- ---------- --------- ----------
PROPERTY, PLANT AND EQUIPMENT, at cost............ 24,035 433,682 2,214,163 -- 2,671,880
Less -- Accumulated depreciation and
depletion..................................... 8,531 38,870 1,092,497 -- 1,139,898
-------- --------- ---------- -------- ----------
15,504 394,812 1,121,666 -- 1,531,982
-------- --------- ---------- --------- ----------
$802,331 $ 659,165 $1,568,035 $(772,460) $2,257,071
======== ========= ========== ========= ==========
LIABILITIES
CURRENT LIABILITIES
Accounts payable................................ $ 880 $ 51,750 $ 69,487 $ (7,955) $ 114,162
Notes payable................................... -- 64,350 79,681 -- 144,031
Current portion of long-term debt, capital
leases and redeemable cumulative preferred
stock......................................... 485 2,313 3,873 -- 6,671
Gas inventory equalization...................... 2 -- 67,806 -- 67,808
Federal income, property and other taxes
payable....................................... 1,171 837 84,533 -- 86,541
Refunds payable to customers.................... 1 -- 5,759 -- 5,760
Customer deposits............................... 18 -- 10,467 -- 10,485
Other........................................... 3,549 4,373 53,373 (4) 61,291
-------- --------- ---------- --------- ----------
6,106 123,623 374,979 (7,959) 496,749
-------- --------- ---------- --------- ----------
DEFERRED CHARGES AND OTHER LIABILITIES
Accumulated deferred income taxes............... (184) 40,574 61,308 -- 101,698
Unamortized investment tax credit............... 383 -- 37,830 -- 38,213
Tax benefits amortizable to customers........... 165 -- 113,179 -- 113,344
Accrued postretirement benefit cost............. 2,694 -- 6,596 -- 9,290
Minority interest............................... -- 18,478 -- -- 18,478
Other........................................... 14,086 42,075 59,416 -- 115,577
-------- --------- ---------- --------- ----------
17,144 101,127 278,329 -- 396,600
-------- --------- ---------- --------- ----------
LONG-TERM DEBT, including capital lease
obligations..................................... 474 152,749 447,858 -- 601,081
-------- --------- ---------- --------- ----------
REDEEMABLE CUMULATIVE PREFERRED SECURITIES OF
SUBSIDIARIES.................................... 100,000 -- -- -- 100,000
-------- --------- ---------- --------- ----------
COMMON SHAREHOLDER'S EQUITY
Common Stock.................................... 658 5 10,300 (10,305) 658
Additional paid-in capital...................... 443,296 248,367 204,777 (461,964) 434,476
Retained earnings............................... 235,283 33,294 251,792 (292,232) 228,137
Unearned compensation and ESOP benefit.......... (630) -- -- -- (630)
-------- --------- ---------- --------- ----------
678,607 281,666 466,869 (764,501) 662,641
-------- --------- ---------- --------- ----------
$802,331 $ 659,165 $1,568,035 $(772,460) $2,257,071
======== ========= ========== ========= ==========
</TABLE>
F-3
<PAGE> 18
MCN CORPORATION
CONSOLIDATING STATEMENTS OF FINANCIAL POSITION (CONTINUED)
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
MCN ELIMINATIONS
AND OTHER MCN AND CONSOLIDATED
SUBSIDIARIES INVESTMENT MICHCON RECLASSIFICATIONS TOTALS
------------ ---------- ---------- ----------------- ------------
DECEMBER 31, 1994
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents, at cost.............. $ 29 $ 10,213 $ 1,305 $ -- $ 11,547
Accounts receivable............................. 2,754 84,657 150,302 (7,454) 230,259
Less: allowance for doubtful accounts......... 71 708 15,322 -- 16,101
-------- --------- ---------- --------- ----------
Accounts receivable -- net...................... 2,683 83,949 134,980 (7,454) 214,158
Accrued unbilled revenue........................ 820 -- 82,233 -- 83,053
Gas in inventory................................ -- 53,806 77,843 -- 131,649
Property taxes assessed applicable to future
periods....................................... 2,565 -- 52,163 -- 54,728
Gas receivable.................................. -- 16,925 4,144 -- 21,069
Other........................................... 927 7,421 18,958 -- 27,306
-------- --------- ---------- --------- ----------
7,024 172,314 371,626 (7,454) 543,510
-------- --------- ---------- --------- ----------
DEFERRED CHARGES AND OTHER ASSETS
Investments in and advances to joint ventures
and subsidiaries.............................. 615,131 42,613 20,791 (614,030) 64,505
Deferred postretirement benefit cost............ 783 -- 19,887 -- 20,670
Other........................................... 10,060 70,491 42,044 906 123,501
-------- --------- ---------- --------- ----------
625,974 113,104 82,722 (613,124) 208,676
-------- --------- ---------- --------- ----------
PROPERTY, PLANT AND EQUIPMENT, at cost............ 23,028 392,647 2,189,150 -- 2,604,825
Less -- Accumulated depreciation and
depletion..................................... 8,192 32,607 1,071,588 -- 1,112,387
-------- --------- ---------- --------- ----------
14,836 360,040 1,117,562 -- 1,492,438
-------- --------- ---------- --------- ----------
$647,834 $ 645,458 $1,571,910 $(620,578) $2,244,624
======== ========= ========== ========= ==========
LIABILITIES
CURRENT LIABILITIES
Accounts payable................................ $ 712 $ 67,963 $ 80,671 $ (6,699) $ 142,647
Notes payable................................... -- 60,350 168,457 -- 228,807
Current portion of long-term debt, capital
leases and redeemable cumulative preferred
stock......................................... (179) 3,273 4,225 -- 7,319
Federal income, property and other taxes
payable....................................... (751) 1,917 85,806 -- 86,972
Refunds payable to customers.................... 1 -- 19,559 -- 19,560
Customer deposits............................... 18 -- 11,563 -- 11,581
Other........................................... 4,588 12,558 50,670 (7) 67,809
-------- --------- ---------- --------- ----------
4,389 146,061 420,951 (6,706) 564,695
-------- --------- ---------- --------- ----------
DEFERRED CHARGES AND OTHER LIABILITIES
Accumulated deferred income taxes............... 41 40,889 52,396 -- 93,326
Unamortized investment tax credit............... 390 -- 38,294 -- 38,684
Tax benefits amortizable to customers........... 161 -- 114,906 -- 115,067
Accrued postretirement benefit cost............. 1,830 723 23,507 -- 26,060
Minority interest............................... -- 18,670 -- -- 18,670
Other........................................... 11,773 23,641 53,076 -- 88,490
-------- --------- ---------- --------- ----------
14,195 83,923 282,179 -- 380,297
-------- --------- ---------- --------- ----------
LONG-TERM DEBT, including capital lease
obligations..................................... 1,139 236,051 448,329 -- 685,519
-------- --------- ---------- --------- ----------
REDEEMABLE CUMULATIVE PREFERRED SECURITIES OF
SUBSIDIARIES.................................... 100,000 -- 2,618 -- 102,618
-------- --------- ---------- --------- ----------
COMMON SHAREHOLDERS' EQUITY
Common Stock.................................... 598 5 10,300 (10,305) 598
Additional paid-in capital...................... 341,680 151,025 204,777 (365,911) 331,571
Retained earnings............................... 186,369 28,393 202,756 (237,656) 179,862
Unearned compensation and ESOP benefit.......... (536) -- -- -- (536)
-------- --------- ---------- --------- ----------
528,111 179,423 417,833 (613,872) 511,495
-------- --------- ---------- --------- ----------
$647,834 $ 645,458 $1,571,910 $(620,578) $2,244,624
======== ========= ========== ========= ==========
</TABLE>
F-4
<PAGE> 19
MCN CORPORATION
CONSOLIDATING STATEMENTS OF FINANCIAL POSITION (CONTINUED)
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
MCN ELIMINATIONS
AND OTHER MCN AND CONSOLIDATED
SUBSIDIARIES INVESTMENT MICHCON RECLASSIFICATIONS TOTALS
------------ ---------- ---------- ----------------- ------------
JUNE 30, 1994
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents, at cost.............. $ 254 $ 8,796 $ 2,207 $ (50) $ 11,207
Accounts receivable............................. 5,924 73,144 187,584 (11,083) 255,569
Less: allowance for doubtful accounts......... 84 939 24,671 -- 25,694
-------- --------- ---------- --------- ----------
Accounts receivable -- net...................... 5,840 72,205 162,913 (11,083) 229,875
Accrued unbilled revenue........................ 123 -- 18,582 -- 18,705
Gas in inventory................................ -- 37,906 26,733 (1) 64,638
Property taxes assessed applicable to future
periods....................................... 28 296 28,246 -- 28,570
Gas receivable.................................. 71 3,459 10,155 -- 13,685
Other........................................... 1,270 9,512 16,103 1,486 28,371
-------- --------- ---------- --------- ----------
7,586 132,174 264,939 (9,648) 395,051
-------- --------- ---------- --------- ----------
DEFERRED CHARGES AND OTHER ASSETS
Investments in and advances to joint ventures
and subsidiaries.............................. 530,933 40,880 18,263 (529,750) 60,326
Deferred postretirement benefit cost............ 583 -- 24,144 -- 24,727
Other........................................... 6,314 42,601 38,110 808 87,833
-------- --------- ---------- --------- ----------
537,830 83,481 80,517 (528,942) 172,886
-------- --------- ---------- --------- ----------
PROPERTY, PLANT AND EQUIPMENT, at cost............ 22,529 281,116 2,129,144 -- 2,432,789
Less -- Accumulated depreciation and
depletion..................................... 8,259 24,213 1,063,128 -- 1,095,600
-------- --------- ---------- --------- ----------
14,270 256,903 1,066,016 -- 1,337,189
-------- --------- ---------- --------- ----------
$559,686 $ 472,558 $1,411,472 $(538,590) $1,905,126
======== ========= ========== ========= ==========
LIABILITIES
CURRENT LIABILITIES
Accounts payable................................ $ 797 $ 61,140 $ 91,278 $ (10,852) $ 142,363
Notes payable................................... -- 50,000 57,327 -- 107,327
Current portion of long-term debt, capital
leases and redeemable cumulative preferred
stock......................................... 110 5,660 4,167 -- 9,937
Gas inventory equalization...................... -- -- 34,156 -- 34,156
Federal income, property and other taxes
payable....................................... 3,010 6,462 76,591 -- 86,063
Refunds payable to customers.................... 1 -- 18,664 -- 18,665
Customer deposits............................... 18 -- 10,090 -- 10,108
Other........................................... 1,990 6,297 48,242 1,984 58,513
-------- --------- ---------- --------- ----------
5,926 129,559 340,515 (8,868) 467,132
-------- --------- ---------- --------- ----------
DEFERRED CHARGES AND OTHER LIABILITIES
Accumulated deferred income taxes............... (1,170) 27,810 46,573 -- 73,213
Unamortized investment tax credit............... 405 -- 39,224 -- 39,629
Tax benefits amortizable to customers........... 591 -- 125,153 -- 125,744
Accrued postretirement benefit cost............. 1,408 533 16,681 -- 18,622
Minority interest............................... -- 18,516 -- -- 18,516
Other........................................... 11,712 19,087 48,774 -- 79,573
-------- --------- ---------- --------- ----------
12,946 65,946 276,405 -- 355,297
-------- --------- ---------- --------- ----------
LONG-TERM DEBT, including capital lease
obligations..................................... 910 183,801 370,353 -- 555,064
-------- --------- ---------- --------- ----------
REDEEMABLE CUMULATIVE PREFERRED SECURITIES OF
SUBSIDIARIES.................................... -- -- 2,618 -- 2,618
-------- --------- ---------- --------- ----------
COMMON SHAREHOLDERS' EQUITY
Common Stock.................................... 594 5 10,300 (10,305) 594
Additional paid-in capital...................... 334,059 73,345 204,777 (287,732) 324,449
Retained earnings............................... 206,027 19,902 206,504 (231,685) 200,748
Unearned compensation and ESOP benefit.......... (776) -- -- -- (776)
-------- --------- ---------- --------- ----------
539,904 93,252 421,581 (529,722) 525,015
-------- --------- ---------- --------- ----------
$559,686 $ 472,558 $1,411,472 $(538,590) $1,905,126
======== ========= ========== ========= ==========
</TABLE>
F-5
<PAGE> 20
MCN CORPORATION
CONSOLIDATING STATEMENTS OF FINANCIAL POSITION (CONTINUED)
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
MCN ELIMINATIONS
AND OTHER MCN AND CONSOLIDATED
SUBSIDIARIES INVESTMENT MICHCON RECLASSIFICATIONS TOTALS
------------ ---------- ---------- ----------------- ------------
MARCH 31, 1994
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents....................... $ 966 $ 18,776 $ 5,064 $ (890) $ 23,916
Accounts receivable............................. 5,686 76,430 283,220 (9,572) 355,764
Less: allowance for doubtful accounts......... 83 804 28,743 -- 29,630
-------- --------- ---------- -------- ----------
Accounts receivable -- net...................... 5,603 75,626 254,477 (9,572) 326,134
Accrued unbilled revenue........................ 731 -- 83,201 -- 83,932
Gas in inventory................................ -- 5,684 9,904 (9) 15,579
Property taxes assessed applicable to future
periods....................................... 662 -- 39,427 -- 40,089
Gas receivable.................................. -- 7,287 10,413 (512) 17,188
Other........................................... 368 7,464 17,469 (1,981) 23,320
-------- --------- ---------- -------- ----------
8,330 114,837 419,955 (12,964) 530,158
-------- --------- ---------- -------- ----------
DEFERRED CHARGES AND OTHER ASSETS
Investments in and advances to joint ventures
and subsidiaries.............................. 537,412 41,015 19,236 (537,122) 60,541
Deferred postretirement benefit cost............ 549 -- 24,857 -- 25,406
Other........................................... 8,615 36,368 38,750 (30) 83,703
-------- --------- ---------- -------- ----------
546,576 77,383 82,843 (537,152) 169,650
-------- --------- ---------- -------- ----------
PROPERTY, PLANT AND EQUIPMENT, at cost............ 21,074 197,040 2,102,404 -- 2,320,518
Less -- Accumulated depreciation and
depletion..................................... 7,933 18,479 1,044,006 -- 1,070,418
-------- --------- ---------- -------- ----------
13,141 178,561 1,058,398 -- 1,250,100
-------- --------- ---------- -------- ----------
$568,047 $ 370,781 $1,561,196 $(550,116) $1,949,908
======== ========= ========== ======== ==========
LIABILITIES
CURRENT LIABILITIES
Accounts payable................................ $ 3,043 $ 64,511 $ 90,753 $ (9,900) $ 148,407
Notes payable................................... -- 890 105,043 (890) 105,043
Current portion of long-term debt, capital
leases and redeemable cumulative preferred
stock......................................... 110 1,760 4,139 -- 6,009
Gas inventory equalization...................... 532 -- 108,623 -- 109,155
Federal income, property and other taxes
payable....................................... 1,454 891 94,049 -- 96,394
Refunds payable to customers.................... 1 -- 11,119 -- 11,120
Customer deposits............................... 20 -- 10,920 -- 10,940
Other........................................... 3,063 2,794 69,837 (2,204) 73,490
-------- --------- ---------- -------- ----------
8,223 70,846 494,483 (12,994) 560,558
-------- --------- ---------- -------- ----------
DEFERRED CHARGES AND OTHER LIABILITIES
Accumulated deferred income taxes............... (1,053) 28,730 45,029 -- 72,706
Unamortized investment tax credit............... 412 -- 39,689 -- 40,101
Tax benefits amortizable to customers........... 668 -- 127,611 -- 128,279
Accrued postretirement benefit cost............. 1,635 -- 9,544 -- 11,179
Minority interest............................... -- 18,185 -- -- 18,185
Other........................................... 10,447 12,057 48,489 -- 70,993
-------- --------- ---------- -------- ----------
12,109 58,972 270,362 -- 341,443
-------- --------- ---------- -------- ----------
LONG-TERM DEBT, including capital lease
obligations..................................... 960 143,240 370,461 -- 514,661
-------- --------- ---------- -------- ----------
REDEEMABLE CUMULATIVE PREFERRED SECURITIES OF
SUBSIDIARIES.................................... -- -- 2,618 -- 2,618
-------- --------- ---------- -------- ----------
COMMON SHAREHOLDER'S EQUITY
Common Stock.................................... 591 5 10,300 (10,305) 591
Additional paid-in capital...................... 330,578 83,041 204,777 (297,489) 320,907
Retained earnings............................... 216,470 14,677 208,195 (229,328) 210,014
Unearned compensation and ESOP benefit.......... (884) -- -- -- (884)
-------- --------- ---------- -------- ----------
546,755 97,723 423,272 (537,122) 530,628
-------- --------- ---------- -------- ----------
$568,047 $ 370,781 $1,561,196 $(550,116) $1,949,908
======== ========= ========== ======== ==========
</TABLE>
F-6
<PAGE> 21
MCN CORPORATION
CONSOLIDATING STATEMENTS OF FINANCIAL POSITION (CONCLUDED)
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
MCN ELIMINATIONS
AND OTHER MCN AND CONSOLIDATED
SUBSIDIARIES INVESTMENT MICHCON RECLASSIFICATIONS TOTALS
------------ ---------- ---------- ----------------- ------------
DECEMBER 31, 1993
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents, at cost.............. $ 18,441 $ 10,013 $ 2,423 $ (18,403) $ 12,474
Accounts receivable............................. 10,558 77,840 182,435 (14,323) 256,510
Less: allowance for doubtful accounts......... 71 729 18,776 -- 19,576
-------- --------- ---------- -------- ----------
Accounts receivable -- net...................... 10,487 77,111 163,659 (14,323) 236,934
Accrued unbilled revenue........................ 1,111 -- 100,216 -- 101,327
Gas in inventory................................ -- 10,826 35,099 (30) 45,895
Property taxes assessed applicable to future
periods....................................... 79 -- 49,860 770 50,709
Gas receivable.................................. -- 3,168 7,791 (3,010) 7,949
Other........................................... 529 7,924 17,448 1,482 27,383
-------- --------- ---------- -------- ----------
30,647 109,042 376,496 (33,514) 482,671
-------- --------- ---------- -------- ----------
DEFERRED CHARGES AND OTHER ASSETS
Investments in and advances to joint ventures
and subsidiaries.............................. 529,581 40,876 18,784 (528,713) 60,528
Deferred postretirement benefit cost............ 422 -- 25,190 -- 25,612
Other........................................... 4,115 42,181 28,143 2,062 76,501
-------- --------- ---------- -------- ----------
534,118 83,057 72,117 (526,651) 162,641
-------- --------- ---------- -------- ----------
PROPERTY, PLANT AND EQUIPMENT, at cost............ 20,844 179,169 2,084,516 -- 2,284,529
Less -- Accumulated depreciation and
depletion..................................... 7,628 16,304 1,024,009 -- 1,047,941
-------- --------- ---------- -------- ----------
13,216 162,865 1,060,507 -- 1,236,588
-------- --------- ---------- -------- ----------
$577,981 $ 354,964 $1,509,120 $(560,165) $1,881,900
======== ========= ========== ======== ==========
LIABILITIES
CURRENT LIABILITIES
Accounts payable................................ $ 4,222 $ 44,630 $ 92,751 $ (11,545) $ 130,058
Notes payable................................... 1,709 38,403 260,304 (20,112) 280,304
Current portion of long-term debt, capital
leases and redeemable cumulative preferred
stock......................................... 108 1,760 4,112 -- 5,980
Federal income, property and other taxes
payable....................................... 2,159 1,088 60,543 -- 63,790
Refunds payable to customers.................... 1 -- 10,793 -- 10,794
Customer deposits............................... 22 -- 13,249 -- 13,271
Other........................................... 2,160 9,004 67,275 (293) 78,146
-------- --------- ---------- -------- ----------
10,381 94,885 509,027 (31,950) 582,343
-------- --------- ---------- -------- ----------
DEFERRED CHARGES AND OTHER LIABILITIES
Accumulated deferred income taxes............... 670 29,134 46,827 (1,418) 75,213
Unamortized investment tax credit............... 420 -- 40,151 -- 40,571
Tax benefits amortizable to customers........... 670 -- 127,413 -- 128,083
Accrued postretirement benefit cost............. 1,137 110 2,145 -- 3,392
Minority interest............................... -- 18,357 -- -- 18,357
Other........................................... 6,688 15,331 41,315 -- 63,334
-------- --------- ---------- -------- ----------
9,585 62,932 257,851 (1,418) 328,950
-------- --------- ---------- -------- ----------
LONG-TERM DEBT, including capital lease
obligations..................................... 72,862 51,120 370,839 -- 494,821
-------- --------- ---------- -------- ----------
REDEEMABLE CUMULATIVE PREFERRED SECURITIES OF
SUBSIDIARIES.................................... -- -- 5,618 -- 5,618
-------- --------- ---------- -------- ----------
COMMON SHAREHOLDERS' EQUITY
Common Stock.................................... 590 5 10,300 (10,305) 590
Additional paid-in capital...................... 326,775 134,446 203,616 (347,720) 317,117
Retained earnings............................... 158,916 11,576 151,869 (168,772) 153,589
Unearned compensation and ESOP benefit.......... (1,128) -- -- -- (1,128)
-------- --------- ---------- -------- ----------
485,153 146,027 365,785 (526,797) 470,168
-------- --------- ---------- -------- ----------
$577,981 $ 354,964 $1,509,120 $(560,165) $1,881,900
======== ========= ========== ======== ==========
</TABLE>
F-7
<PAGE> 22
MCN CORPORATION
CONSOLIDATING STATEMENTS OF INCOME
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
MCN ELIMINATIONS
AND OTHER MCN AND CONSOLIDATED
SUBSIDIARIES INVESTMENT MICHCON RECLASSIFICATIONS TOTALS
------------ ---------- ---------- ----------------- ------------
THREE MONTHS ENDED JUNE 30, 1995
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
OPERATING REVENUES................................ $ 2,505 $ 101,192 $ 184,968 $ (5,541) $ 283,124
-------- --------- ---------- -------- ----------
OPERATING EXPENSES
Cost of gas..................................... 1,155 53,002 72,030 (1,207) 124,980
Operation and maintenance....................... (195) 31,831 72,674 (4,334) 99,976
Depreciation, depletion and amortization........ 432 6,861 22,730 -- 30,023
Property and other taxes........................ 293 1,962 14,187 -- 16,442
-------- --------- ---------- -------- ----------
Total operating expenses.................... 1,685 93,656 181,621 (5,541) 271,421
-------- --------- ---------- -------- ----------
OPERATING INCOME.................................. 820 7,536 3,347 -- 11,703
-------- --------- ---------- -------- ----------
EQUITY IN EARNINGS OF JOINT VENTURES AND
SUBSIDIARIES.................................... 3,022 404 152 (2,755) 823
-------- --------- ---------- -------- ----------
OTHER INCOME AND (DEDUCTIONS)
Interest income................................. 28 296 1,061 149 1,534
Interest on long-term debt...................... (22) (1,381) (8,431) -- (9,834)
Other interest expense.......................... (2) (903) (679) (1) (1,585)
Dividends on preferred securities of
subsidiaries.................................. -- -- -- (2,397) (2,397)
Minority interest............................... -- (605) -- 1 (604)
Other........................................... 1,591 (214) (841) (152) 384
-------- --------- ---------- -------- ----------
Total other income and (deductions)......... 1,595 (2,807) (8,890) (2,400) (12,502)
-------- --------- ---------- -------- ----------
INCOME BEFORE INCOME TAXES........................ 5,437 5,133 (5,391) (5,155) 24
INCOME TAX PROVISION (BENEFIT).................... 286 (631) (1,943) -- (2,288)
-------- --------- ---------- -------- ----------
NET INCOME........................................ 5,151 5,764 (3,448) (5,155) 2,312
DIVIDENDS ON PREFERRED SECURITIES................. 2,343 -- 54 (2,397) --
-------- --------- ---------- -------- ----------
NET INCOME AVAILABLE FOR COMMON STOCK............. $ 2,808 $ 5,764 $ (3,502) $ (2,758) $ 2,312
======== ========= ========== ======== ==========
<CAPTION>
SIX MONTHS ENDED JUNE 30, 1995
<S> <C> <C> <C> <C> <C>
OPERATING REVENUES................................ $ 8,481 $ 230,867 $ 606,780 $ (15,036) $ 831,092
-------- --------- ---------- -------- ----------
OPERATING EXPENSES
Cost of gas..................................... 3,883 131,126 282,167 (3,901) 413,275
Operation and maintenance....................... (1,868) 67,305 150,003 (11,135) 204,305
Depreciation, depletion and amortization........ 812 13,343 44,881 -- 59,036
Property and other taxes........................ 769 3,806 30,689 -- 35,264
-------- --------- ---------- -------- ----------
Total operating expenses.................... 3,596 215,580 507,740 (15,036) 711,880
-------- --------- ---------- -------- ----------
OPERATING INCOME.................................. 4,885 15,287 99,040 -- 119,212
-------- --------- ---------- -------- ----------
EQUITY IN EARNINGS OF JOINT VENTURES AND
SUBSIDIARIES.................................... 64,491 1,064 376 (63,864) 2,067
-------- --------- ---------- -------- ----------
OTHER INCOME AND (DEDUCTIONS)
Interest income................................. 150 878 1,999 320 3,347
Interest on long-term debt...................... (43) (4,426) (16,684) -- (21,153)
Other interest expense.......................... (24) (2,034) (3,651) -- (5,709)
Dividends on preferred securities of
subsidiaries.................................. -- -- -- (4,815) (4,815)
Minority interest............................... -- (1,169) -- 1 (1,168)
Other........................................... 1,591 (387) (1,579) (322) (697)
-------- --------- ---------- -------- ----------
Total other income and (deductions)......... 1,674 (7,138) (19,915) (4,816) (30,195)
-------- --------- ---------- -------- ----------
INCOME BEFORE INCOME TAXES........................ 71,050 9,213 79,501 (68,680) 91,084
INCOME TAX PROVISION (BENEFIT).................... 1,295 (1,452) 27,339 -- 27,182
-------- --------- ---------- -------- ----------
NET INCOME........................................ 69,755 10,665 52,162 (68,680) 63,902
DIVIDENDS ON PREFERRED SECURITIES................. 4,687 -- 128 (4,815) --
-------- --------- ---------- -------- ----------
NET INCOME AVAILABLE FOR COMMON STOCK............. $ 65,068 $ 10,665 $ 52,034 $ (63,865) $ 63,902
======== ========= ========== ======== ==========
</TABLE>
F-8
<PAGE> 23
MCN CORPORATION
CONSOLIDATING STATEMENTS OF INCOME (CONTINUED)
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
MCN ELIMINATIONS
AND OTHER MCN AND CONSOLIDATED
SUBSIDIARIES INVESTMENT MICHCON RECLASSIFICATIONS TOTALS
------------ ---------- ---------- ----------------- ------------
TWELVE MONTHS ENDED JUNE 30, 1995
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
OPERATING REVENUES................................ $ 14,030 $ 448,614 $1,012,245 $ (27,321) $1,447,568
-------- --------- ---------- -------- ----------
OPERATING EXPENSES
Cost of gas..................................... 6,467 267,278 450,352 (6,187) 717,910
Operation and maintenance....................... (3,450) 124,072 308,279 (21,189) 407,712
Depreciation, depletion and amortization........ 1,499 22,730 86,528 -- 110,757
Property and other taxes........................ 1,166 6,819 55,075 -- 63,060
-------- --------- ---------- -------- ----------
Total operating expenses.................... 5,682 420,899 900,234 (27,376) 1,299,439
-------- --------- ---------- -------- ----------
OPERATING INCOME.................................. 8,348 27,715 112,011 55 148,129
-------- --------- ---------- -------- ----------
EQUITY IN EARNINGS OF JOINT VENTURES AND
SUBSIDIARIES.................................... 71,133 2,677 592 (69,834) 4,568
-------- --------- ---------- -------- ----------
OTHER INCOME AND (DEDUCTIONS)
Interest income................................. 202 2,111 4,013 320 6,646
Interest on long-term debt...................... (127) (10,446) (31,526) -- (42,099)
Other interest expense.......................... (87) (3,264) (9,075) -- (12,426)
Dividends on preferred securities of
subsidiaries.................................. -- -- -- (6,582) (6,582)
Minority interest............................... -- (2,580) -- 1 (2,579)
Other........................................... 306 196 (5,038) (261) (4,797)
-------- --------- ---------- -------- ----------
Total other income and (deductions)......... 294 (13,983) (41,626) (6,522) (61,837)
-------- --------- ---------- -------- ----------
INCOME BEFORE INCOME TAXES........................ 79,775 16,409 70,977 (76,301) 90,860
INCOME TAX PROVISION (BENEFIT).................... 2,086 (2,747) 22,333 117 21,789
-------- --------- ---------- -------- ----------
NET INCOME........................................ 77,689 19,156 48,644 (76,418) 69,071
DIVIDENDS ON PREFERRED SECURITIES................. 6,224 -- 358 (6,582) --
-------- --------- ---------- -------- ----------
NET INCOME AVAILABLE FOR COMMON STOCK............. $ 71,465 $ 19,156 $ 48,286 $ (69,836) $ 69,071
======== ========= ========== ======== ==========
<CAPTION>
THREE MONTHS ENDED MARCH 31, 1995
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
OPERATING REVENUES................................ $ 5,976 $ 129,675 $ 421,812 $ (9,495) $ 547,968
-------- --------- ---------- -------- ----------
OPERATING EXPENSES
Cost of gas..................................... 2,728 78,124 210,137 (2,694) 288,295
Operation and maintenance....................... (1,673) 35,474 77,329 (6,801) 104,329
Depreciation, depletion and amortization........ 380 6,482 22,151 -- 29,013
Property and other taxes........................ 476 1,844 16,502 -- 18,822
-------- --------- ---------- -------- ----------
Total operating expenses.................... 1,911 121,924 326,119 (9,495) 440,459
-------- --------- ---------- -------- ----------
OPERATING INCOME.................................. 4,065 7,751 95,693 -- 107,509
-------- --------- ---------- -------- ----------
EQUITY IN EARNINGS OF JOINT VENTURES AND
SUBSIDIARIES.................................... 61,469 660 224 (61,109) 1,244
-------- --------- ---------- -------- ----------
OTHER INCOME AND (DEDUCTIONS)
Interest income................................. 122 582 938 171 1,813
Interest on long-term debt...................... (21) (3,045) (8,253) -- (11,319)
Other interest expense.......................... (22) (1,131) (2,972) 1 (4,124)
Dividends on preferred securities of
subsidiaries.................................. -- -- -- (2,418) (2,418)
Minority interest............................... -- (564) -- -- (564)
Other........................................... -- (173) (738) (170) (1,081)
-------- --------- ---------- -------- ----------
Total other income and (deductions)......... 79 (4,331) (11,025) (2,416) (17,693)
-------- --------- ---------- -------- ----------
INCOME BEFORE INCOME TAXES........................ 65,613 4,080 84,892 (63,525) 91,060
INCOME TAX PROVISION (BENEFIT).................... 1,009 (821) 29,282 -- 29,470
-------- --------- ---------- -------- ----------
NET INCOME........................................ 64,604 4,901 55,610 (63,525) 61,590
DIVIDENDS ON PREFERRED SECURITIES................. 2,344 -- 74 (2,418) --
-------- --------- ---------- -------- ----------
NET INCOME AVAILABLE FOR COMMON STOCK............. $ 62,260 $ 4,901 $ 55,536 $ (61,107) $ 61,590
======== ========= ========== ======== ==========
</TABLE>
F-9
<PAGE> 24
MCN CORPORATION
CONSOLIDATING STATEMENTS OF INCOME (CONTINUED)
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
MCN ELIMINATIONS
AND OTHER MCN AND CONSOLIDATED
SUBSIDIARIES INVESTMENT MICHCON RECLASSIFICATIONS TOTALS
------------ ---------- ---------- ----------------- ------------
TWELVE MONTHS ENDED MARCH 31, 1995
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
OPERATING REVENUES................................ $ 13,890 $ 451,430 $ 999,134 $ (27,443) $1,437,011
-------- --------- ---------- -------- ----------
OPERATING EXPENSES
Cost of gas..................................... 6,550 279,607 439,440 (5,883) 719,714
Operation and maintenance....................... (2,846) 116,822 304,294 (21,615) 396,655
Depreciation, depletion and amortization........ 1,397 21,993 85,191 -- 108,581
Property and other taxes........................ 1,278 6,346 55,951 -- 63,575
-------- --------- ---------- -------- ----------
Total operating expenses.................... 6,379 424,768 884,876 (27,498) 1,288,525
-------- --------- ---------- -------- ----------
OPERATING INCOME.................................. 7,511 26,662 114,258 55 148,486
-------- --------- ---------- -------- ----------
EQUITY IN EARNINGS OF JOINT VENTURES AND
SUBSIDIARIES.................................... 73,292 3,499 831 (71,687) 5,935
-------- --------- ---------- -------- ----------
OTHER INCOME AND (DEDUCTIONS)
Interest income................................. 231 2,421 3,610 167 6,429
Interest on long-term debt...................... (128) (11,605) (29,660) -- (41,393)
Other interest expense.......................... (132) (2,488) (9,826) 7 (12,439)
Dividends on preferred securities of
subsidiaries.................................. -- -- -- (4,300) (4,300)
Minority interest............................... -- (2,682) -- -- (2,682)
Other........................................... (1,348) 294 (4,750) (228) (6,032)
-------- --------- ---------- -------- ----------
Total other income and (deductions)......... (1,377) (14,060) (40,626) (4,354) (60,417)
-------- --------- ---------- -------- ----------
INCOME BEFORE INCOME TAXES........................ 79,426 16,101 74,463 (75,986) 94,004
INCOME TAX PROVISION (BENEFIT).................... 2,337 (2,516) 23,947 -- 23,768
-------- --------- ---------- -------- ----------
NET INCOME........................................ 77,089 18,617 50,516 (75,986) 70,236
DIVIDENDS ON PREFERRED SECURITIES................. 3,881 -- 419 (4,300) --
-------- --------- ---------- -------- ----------
NET INCOME AVAILABLE FOR COMMON STOCK............. $ 73,208 $ 18,617 $ 50,097 $ (71,686) $ 70,236
======== ========= ========== ======== ==========
<CAPTION>
TWELVE MONTHS ENDED DECEMBER 31, 1994
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
OPERATING REVENUES................................ $ 14,401 $ 445,361 $1,111,678 $ (25,640) $1,545,800
-------- --------- ---------- -------- ----------
OPERATING EXPENSES
Cost of gas..................................... 7,230 293,285 529,426 (6,505) 823,436
Operation and maintenance....................... (691) 105,531 313,575 (19,190) 399,225
Depreciation, depletion and amortization........ 1,314 18,076 84,230 -- 103,620
Property and other taxes........................ 1,244 5,615 58,129 -- 64,988
-------- --------- ---------- -------- ----------
Total operating expenses.................... 9,097 422,507 985,360 (25,695) 1,391,269
-------- --------- ---------- -------- ----------
OPERATING INCOME.................................. 5,304 22,854 126,318 55 154,531
-------- --------- ---------- -------- ----------
EQUITY IN EARNINGS OF JOINT VENTURES AND
SUBSIDIARIES.................................... 81,547 3,332 1,043 (79,633) 6,289
-------- --------- ---------- -------- ----------
OTHER INCOME AND (DEDUCTIONS)
Interest income................................. 587 2,333 4,064 (491) 6,493
Interest on long-term debt...................... (590) (9,675) (27,948) -- (38,213)
Other interest expense.......................... (152) (1,981) (9,093) 491 (10,735)
Dividends on preferred securities of
subsidiaries.................................. -- -- -- (2,018) (2,018)
Minority interest............................... -- (2,879) -- -- (2,879)
Other........................................... (1,376) 468 (4,677) (56) (5,641)
-------- --------- ---------- -------- ----------
Total other income and (deductions)......... (1,531) (11,734) (37,654) (2,074) (52,993)
-------- --------- ---------- -------- ----------
INCOME BEFORE INCOME TAXES........................ 85,320 14,452 89,707 (81,652) 107,827
INCOME TAX PROVISION (BENEFIT).................... 2,585 (2,365) 29,839 -- 30,059
-------- --------- ---------- -------- ----------
NET INCOME........................................ 82,735 16,817 59,868 (81,652) 77,768
DIVIDENDS ON PREFERRED SECURITIES................. 1,537 -- 481 (2,018) --
-------- --------- ---------- -------- ----------
NET INCOME AVAILABLE FOR COMMON STOCK............. $ 81,198 $ 16,817 $ 59,387 $ (79,634) $ 77,768
======== ========= ========== ======== ==========
</TABLE>
F-10
<PAGE> 25
MCN CORPORATION
CONSOLIDATING STATEMENTS OF INCOME (CONTINUED)
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
MCN ELIMINATIONS
AND OTHER MCN AND CONSOLIDATED
SUBSIDIARIES INVESTMENT MICHCON RECLASSIFICATIONS TOTALS
------------ ---------- ---------- ----------------- ------------
THREE MONTHS ENDED JUNE 30, 1994
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
OPERATING REVENUES................................ $ 2,365 $ 104,008 $ 171,857 $ (5,663) $ 272,567
-------- --------- ---------- -------- ----------
OPERATING EXPENSES
Cost of gas..................................... 1,238 65,331 61,118 (903) 126,784
Operation and maintenance....................... 409 24,581 68,689 (4,760) 88,919
Depreciation, depletion and amortization........ 330 6,124 21,393 -- 27,847
Property and other taxes........................ 405 1,489 15,063 -- 16,957
-------- --------- ---------- -------- ----------
Total operating expenses.................... 2,382 97,525 166,263 (5,663) 260,507
-------- --------- ---------- -------- ----------
OPERATING INCOME.................................. (17) 6,483 5,594 -- 12,060
-------- --------- ---------- -------- ----------
EQUITY IN EARNINGS OF JOINT VENTURES AND
SUBSIDIARIES.................................... 5,181 1,226 391 (4,608) 2,190
-------- --------- ---------- -------- ----------
OTHER INCOME AND (DEDUCTIONS)
Interest income................................. 57 606 658 (4) 1,317
Interest on long-term debt...................... (23) (2,540) (6,565) -- (9,128)
Other interest expense.......................... (47) (127) (1,430) 6 (1,598)
Dividends on preferred securities of
subsidiaries.................................. -- -- -- (115) (115)
Minority interest............................... -- (707) -- -- (707)
Other........................................... (63) (116) (553) (119) (851)
-------- --------- ---------- -------- ----------
Total other income and (deductions)......... (76) (2,884) (7,890) (232) (11,082)
-------- --------- ---------- -------- ----------
INCOME BEFORE INCOME TAXES........................ 5,088 4,825 (1,905) (4,840) 3,168
INCOME TAX PROVISION (BENEFIT).................... 537 (400) (329) (117) (309)
-------- --------- ---------- -------- ----------
NET INCOME........................................ 4,551 5,225 (1,576) (4,723) 3,477
DIVIDENDS ON PREFERRED SECURITIES................. -- -- 115 (115) --
-------- --------- ---------- -------- ----------
NET INCOME AVAILABLE FOR COMMON STOCK............. $ 4,551 $ 5,225 $ (1,691) $ (4,608) $ 3,477
======== ========= ========== ======== ==========
<CAPTION>
SIX MONTHS ENDED JUNE 30, 1994
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
OPERATING REVENUES................................ $ 8,852 $ 227,614 $ 706,213 $ (13,355) $ 929,324
-------- --------- ---------- -------- ----------
OPERATING EXPENSES
Cost of gas..................................... 4,646 157,133 361,241 (4,219) 518,801
Operation and maintenance....................... 891 48,764 155,299 (9,136) 195,818
Depreciation, depletion and amortization........ 627 8,689 42,583 -- 51,899
Property and other taxes........................ 847 2,602 33,743 -- 37,192
-------- --------- ---------- -------- ----------
Total operating expenses.................... 7,011 217,188 592,866 (13,355) 803,710
-------- --------- ---------- -------- ----------
OPERATING INCOME.................................. 1,841 10,426 113,347 -- 125,614
-------- --------- ---------- -------- ----------
EQUITY IN EARNINGS OF JOINT VENTURES AND
SUBSIDIARIES.................................... 74,905 1,719 827 (73,663) 3,788
-------- --------- ---------- -------- ----------
OTHER INCOME AND (DEDUCTIONS)
Interest income................................. 535 1,100 2,050 (491) 3,194
Interest on long-term debt...................... (506) (3,655) (13,106) -- (17,267)
Other interest expense.......................... (89) (751) (3,669) 491 (4,018)
Dividends on preferred securities of
subsidiaries.................................. -- -- -- (251) (251)
Minority interest............................... -- (1,468) -- -- (1,468)
Other........................................... (91) (115) (1,218) (117) (1,541)
-------- --------- ---------- -------- ----------
Total other income and (deductions)......... (151) (4,889) (15,943) (368) (21,351)
-------- --------- ---------- -------- ----------
INCOME BEFORE INCOME TAXES........................ 76,595 7,256 98,231 (74,031) 108,051
INCOME TAX PROVISION (BENEFIT).................... 1,794 (1,070) 34,845 (117) 35,452
-------- --------- ---------- -------- ----------
NET INCOME........................................ 74,801 8,326 63,386 (73,914) 72,599
DIVIDENDS ON PREFERRED SECURITIES................. -- -- 251 (251) --
-------- --------- ---------- -------- ----------
NET INCOME AVAILABLE FOR COMMON STOCK............. $ 74,801 $ 8,326 $ 63,135 $ (73,663) $ 72,599
======== ========= ========== ======== ==========
</TABLE>
F-11
<PAGE> 26
MCN CORPORATION
CONSOLIDATING STATEMENTS OF INCOME (CONTINUED)
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
MCN ELIMINATIONS
AND OTHER MCN AND CONSOLIDATED
SUBSIDIARIES INVESTMENT MICHCON RECLASSIFICATIONS TOTALS
------------ ---------- ---------- ----------------- ------------
TWELVE MONTHS ENDED JUNE 30, 1994
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
OPERATING REVENUES................................ $ 15,496 $ 407,577 $1,162,019 $ (25,256) $1,559,836
-------- --------- ---------- -------- ----------
OPERATING EXPENSES
Cost of gas..................................... 8,428 272,199 589,576 (6,989) 863,214
Operation and maintenance....................... 120 95,714 287,947 (18,267) 365,514
Depreciation, depletion and amortization........ 1,174 12,213 79,383 -- 92,770
Property and other taxes........................ 1,345 4,199 60,832 96 66,472
-------- --------- ---------- -------- ----------
Total operating expenses.................... 11,067 384,325 1,017,738 (25,160) 1,387,970
-------- --------- ---------- -------- ----------
OPERATING INCOME.................................. 4,429 23,252 144,281 (96) 171,866
-------- --------- ---------- -------- ----------
EQUITY IN EARNINGS OF JOINT VENTURES AND
SUBSIDIARIES.................................... 94,993 2,929 1,798 (92,205) 7,515
-------- --------- ---------- -------- ----------
OTHER INCOME AND (DEDUCTIONS)
Interest income................................. 1,260 1,801 3,478 (1,191) 5,348
Interest on long-term debt...................... (250) (5,556) (25,949) -- (31,755)
Other interest expense.......................... (1,657) (1,829) (8,195) 1,210 (10,471)
Dividends on preferred securities of
subsidiaries.................................. -- -- -- (604) (604)
Minority interest............................... -- (3,211) -- -- (3,211)
Other........................................... (531) 364 (6,323) (41) (6,531)
-------- --------- ---------- -------- ----------
Total other income and (deductions)......... (1,178) (8,431) (36,989) (626) (47,224)
-------- --------- ---------- -------- ----------
INCOME BEFORE INCOME TAXES........................ 98,244 17,750 109,090 (92,927) 132,157
INCOME TAX PROVISION (BENEFIT).................... 3,807 1,071 37,989 (117) 42,750
-------- --------- ---------- -------- ----------
NET INCOME........................................ 94,437 16,679 71,101 (92,810) 89,407
DIVIDENDS ON PREFERRED SECURITIES................. -- -- 604 (604) --
-------- --------- ---------- -------- ----------
NET INCOME AVAILABLE FOR COMMON STOCK............. $ 94,437 $ 16,679 $ 70,497 $ (92,206) $ 89,407
======== ========= ========== ======== ==========
<CAPTION>
THREE MONTHS ENDED MARCH 31, 1994
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
OPERATING REVENUES................................ $ 6,487 $ 123,606 $ 534,356 $ (7,692) $ 656,757
-------- --------- ---------- -------- ----------
OPERATING EXPENSES
Cost of gas..................................... 3,408 91,802 300,123 (3,316) 392,017
Operation and maintenance....................... 482 24,183 86,610 (4,376) 106,899
Depreciation, depletion and amortization........ 297 2,565 21,190 -- 24,052
Property and other taxes........................ 442 1,113 18,680 -- 20,235
-------- --------- ---------- -------- ----------
Total operating expenses.................... 4,629 119,663 426,603 (7,692) 543,203
-------- --------- ---------- -------- ----------
OPERATING INCOME.................................. 1,858 3,943 107,753 -- 113,554
-------- --------- ---------- -------- ----------
EQUITY IN EARNINGS OF JOINT VENTURES AND
SUBSIDIARIES.................................... 69,724 493 436 (69,055) 1,598
-------- --------- ---------- -------- ----------
OTHER INCOME AND (DEDUCTIONS)
Interest income................................. 478 494 1,392 (487) 1,877
Interest on long-term debt...................... (483) (1,115) (6,541) -- (8,139)
Other interest expense.......................... (42) (624) (2,239) 485 (2,420)
Dividends on preferred securities of
subsidiaries.................................. -- -- -- (136) (136)
Minority interest............................... -- (761) -- -- (761)
Other........................................... (28) 1 (665) 2 (690)
-------- --------- ---------- -------- ----------
Total other income and (deductions)......... (75) (2,005) (8,053) (136) (10,269)
-------- --------- ---------- -------- ----------
INCOME BEFORE INCOME TAXES........................ 71,507 2,431 100,136 (69,191) 104,883
INCOME TAX PROVISION (BENEFIT).................... 1,257 (670) 35,174 -- 35,761
-------- --------- ---------- -------- ----------
NET INCOME........................................ 70,250 3,101 64,962 (69,191) 69,122
DIVIDENDS ON PREFERRED SECURITIES................. -- -- 136 (136) --
-------- --------- ---------- -------- ----------
NET INCOME AVAILABLE FOR COMMON STOCK............. $ 70,250 $ 3,101 $ 64,826 $ (69,055) $ 69,122
======== ========= ========== ======== ==========
</TABLE>
F-12
<PAGE> 27
MCN CORPORATION
CONSOLIDATING STATEMENTS OF INCOME (CONTINUED)
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
MCN ELIMINATIONS
AND OTHER MCN AND CONSOLIDATED
SUBSIDIARIES INVESTMENT MICHCON RECLASSIFICATIONS TOTALS
------------ ---------- ---------- ----------------- ------------
TWELVE MONTHS ENDED MARCH 31, 1994
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
OPERATING REVENUES................................ $ 16,421 $ 363,264 $1,233,590 $ (36,212) $1,577,063
-------- --------- ---------- -------- ----------
OPERATING EXPENSES
Cost of gas..................................... 9,413 247,208 662,388 (18,871) 900,138
Operation and maintenance....................... 779 88,470 287,202 (17,341) 359,110
Depreciation, depletion and amortization........ 1,035 7,810 76,590 -- 85,435
Property and other taxes........................ 1,231 3,470 60,783 96 65,580
-------- --------- ---------- -------- ----------
Total operating expenses.................... 12,458 346,958 1,086,963 (36,116) 1,410,263
-------- --------- ---------- -------- ----------
OPERATING INCOME.................................. 3,963 16,306 146,627 (96) 166,800
-------- --------- ---------- -------- ----------
EQUITY IN EARNINGS OF JOINT VENTURES AND
SUBSIDIARIES.................................... 95,094 2,872 2,300 (91,725) 8,541
-------- --------- ---------- -------- ----------
OTHER INCOME AND (DEDUCTIONS)
Interest income................................. 1,466 1,323 4,710 (1,420) 6,079
Interest on long-term debt...................... (489) (3,668) (25,748) -- (29,905)
Other interest expense.......................... (1,624) (1,941) (8,116) 1,421 (10,260)
Dividends on preferred securities of
subsidiaries.................................. -- -- -- (666) (666)
Minority interest............................... -- (3,336) -- 38 (3,298)
Other........................................... (510) 504 (5,534) (225) (5,765)
-------- --------- ---------- -------- ----------
Total other income and (deductions)......... (1,157) (7,118) (34,688) (852) (43,815)
-------- --------- ---------- -------- ----------
INCOME BEFORE INCOME TAXES........................ 97,900 12,060 114,239 (92,673) 131,526
INCOME TAX PROVISION (BENEFIT).................... 3,892 677 39,089 -- 43,658
-------- --------- ---------- -------- ----------
NET INCOME........................................ 94,008 11,383 75,150 (92,673) 87,868
DIVIDENDS ON PREFERRED SECURITIES................. -- -- 666 (666) --
-------- --------- ---------- -------- ----------
NET INCOME AVAILABLE FOR COMMON STOCK............. $ 94,008 $ 11,383 $ 74,484 $ (92,007) $ 87,868
======== ========= ========== ======== ==========
<CAPTION>
TWELVE MONTHS ENDED DECEMBER 31, 1993
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
OPERATING REVENUES................................ $ 16,155 $ 290,792 $1,223,515 $ (50,808) $1,479,654
-------- --------- ---------- -------- ----------
OPERATING EXPENSES
Cost of gas..................................... 9,314 185,733 685,679 (33,993) 846,733
Operation and maintenance....................... 1,445 79,900 280,182 (16,815) 344,712
Depreciation, depletion and amortization........ 923 6,857 73,866 -- 81,646
Property and other taxes........................ 1,131 3,273 58,177 96 62,677
-------- --------- ---------- -------- ----------
Total operating expenses.................... 12,813 275,763 1,097,904 (50,712) 1,335,768
-------- --------- ---------- -------- ----------
OPERATING INCOME.................................. 3,342 15,029 125,611 (96) 143,886
-------- --------- ---------- -------- ----------
EQUITY IN EARNINGS OF JOINT VENTURES AND
SUBSIDIARIES.................................... 78,892 2,704 1,826 (75,712) 7,710
-------- --------- ---------- -------- ----------
OTHER INCOME AND (DEDUCTIONS)
Interest income................................. 1,100 968 4,205 (1,086) 5,187
Interest on long-term debt...................... (102) (3,093) (25,594) -- (28,789)
Other interest expense.......................... (1,697) (1,371) (7,961) 1,090 (9,939)
Dividends on preferred securities of
subsidiaries.................................. -- -- -- (727) (727)
Minority interest............................... -- (3,331) -- 47 (3,284)
Other........................................... (519) 612 (4,772) (634) (5,313)
-------- --------- ---------- -------- ----------
Total other income and (deductions)......... (1,218) (6,215) (34,122) (1,310) (42,865)
-------- --------- ---------- -------- ----------
INCOME BEFORE INCOME TAXES........................ 81,016 11,518 93,315 (77,118) 108,731
INCOME TAX PROVISION (BENEFIT).................... 3,060 1,942 30,939 -- 35,941
-------- --------- ---------- -------- ----------
NET INCOME........................................ 77,956 9,576 62,376 (77,118) 72,790
DIVIDENDS ON PREFERRED SECURITIES................. -- -- 727 (727) --
-------- --------- ---------- -------- ----------
NET INCOME AVAILABLE FOR COMMON STOCK............. $ 77,956 $ 9,576 $ 61,649 $ (76,391) $ 72,790
======== ========= ========== ======== ==========
</TABLE>
F-13
<PAGE> 28
MCN CORPORATION
CONSOLIDATING STATEMENTS OF INCOME (CONCLUDED)
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
MCN ELIMINATIONS
AND OTHER MCN AND CONSOLIDATED
SUBSIDIARIES INVESTMENT MICHCON RECLASSIFICATIONS TOTALS
------------ ---------- ---------- ----------------- ------------
TWELVE MONTHS ENDED DECEMBER 31, 1992
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
OPERATING REVENUES................................ $ 15,313 $ 116,930 $1,357,785 $ (42,776) $1,447,252
-------- --------- ---------- -------- ----------
OPERATING EXPENSES
Cost of gas..................................... 8,664 30,210 833,805 (27,145) 845,534
Operation and maintenance....................... 4,199 60,814 287,867 (15,631) 337,249
Depreciation, depletion and amortization........ 614 6,047 69,773 -- 76,434
Property and other taxes........................ 693 3,144 58,705 -- 62,542
-------- --------- ---------- -------- ----------
Total operating expenses.................... 14,170 100,215 1,250,150 (42,776) 1,321,759
-------- --------- ---------- -------- ----------
OPERATING INCOME.................................. 1,143 16,715 107,635 -- 125,493
-------- --------- ---------- -------- ----------
EQUITY IN EARNINGS OF JOINT VENTURES AND
SUBSIDIARIES.................................... 57,385 (1,150) (728) (56,260) (753)
-------- --------- ---------- -------- ----------
OTHER INCOME AND (DEDUCTIONS)
Interest income................................. 651 1,025 6,278 (1,716) 6,238
Interest on long-term debt...................... (701) (2,189) (27,927) 14 (30,803)
Other interest expense.......................... (1,545) (152) (8,044) 1,670 (8,071)
Dividends on preferred securities of
subsidiaries.................................. -- -- -- (973) (973)
Minority interest............................... -- (3,626) -- 6 (3,620)
Other........................................... (159) 444 (599) (1,000) (1,314)
-------- --------- ---------- -------- ----------
Total other income and (deductions)......... (1,754) (4,498) (30,292) (1,999) (38,543)
-------- --------- ---------- -------- ----------
INCOME BEFORE INCOME TAXES........................ 56,774 11,067 76,615 (58,259) 86,197
INCOME TAX PROVISION (BENEFIT).................... (504) 3,789 25,794 -- 29,079
-------- --------- ---------- -------- ----------
NET INCOME........................................ 57,278 7,278 50,821 (58,259) 57,118
DIVIDENDS ON PREFERRED SECURITIES................. -- -- 973 (973) --
-------- --------- ---------- -------- ----------
NET INCOME AVAILABLE FOR COMMON STOCK............. $ 57,278 $ 7,278 $ 49,848 $ (57,286) $ 57,118
======== ========= ========== ======== ==========
</TABLE>
F-14
<PAGE> 29
MCN CORPORATION
CONDENSED CONSOLIDATING STATEMENTS OF CASH FLOWS
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
MCN ELIMINATIONS
AND OTHER MCN AND CONSOLIDATED
SUBSIDIARIES INVESTMENT MICHCON RECLASSIFICATIONS TOTALS
------------ ---------- ---------- ----------------- ------------
SIX MONTHS ENDED JUNE 30, 1995
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
NET CASH FLOW FROM OPERATING ACTIVITIES........... $ 17,064 $ 59,143 $ 207,842 $ (14,521) $ 269,528
-------- --------- ---------- -------- ----------
CASH FLOWS FROM FINANCING ACTIVITIES
Notes payable -- net............................ -- 9,018 (166,582) -- (157,564)
Capital contributions received from
(distributions paid to) subsidiaries, net..... (1,999) 72,686 7,000 (77,687) --
Common stock dividends paid..................... (27,963) -- (6,500) 6,500 (27,963)
Preferred securities dividends paid............. (4,688) -- (169) 4,857 --
Issuance of common stock........................ 107,569 -- -- -- 107,569
Issuance of long-term debt...................... -- -- 68,764 -- 68,764
Revolving credit facility -- net................ -- (45,000) -- -- (45,000)
Retirement of long-term debt and preferred
securities.................................... (247) (1,174) (3,763) -- (5,184)
Other........................................... -- (707) -- -- (707)
-------- --------- ---------- -------- ----------
NET CASH PROVIDED FROM (USED FOR) FINANCING
ACTIVITIES................................ 72,672 34,823 (101,250) (66,330) (60,085)
-------- --------- ---------- -------- ----------
CASH FLOWS FROM INVESTING ACTIVITIES
Capital expenditures............................ (2,169) (99,330) (75,891) -- (177,390)
Investment in joint ventures and subsidiaries... (87,462) (3,245) -- 79,686 (11,021)
Sale of investment in joint ventures............ -- 10,803 -- -- 10,803
Other........................................... (90) (1,581) 1,582 1,165 1,076
-------- --------- ---------- -------- ----------
NET CASH USED FOR INVESTING ACTIVITIES...... (89,721) (93,353) (74,309) 80,851 (176,532)
-------- --------- ---------- -------- ----------
NET INCREASE IN CASH AND CASH EQUIVALENTS......... 15 613 32,283 -- 32,911
CASH AND CASH EQUIVALENTS, JANUARY 1.............. 29 10,213 1,305 -- 11,547
-------- --------- ---------- -------- ----------
CASH AND CASH EQUIVALENTS, JUNE 30................ $ 44 $ 10,826 $ 33,588 $ -- $ 44,458
======== ========= ========== ======== ==========
<CAPTION>
THREE MONTHS ENDED MARCH 31, 1995
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
NET CASH FLOW FROM OPERATING ACTIVITIES........... $ 12,556 $ 18,599 $ 132,530 $ (12,339) $ 151,346
-------- --------- ---------- -------- ----------
CASH FLOWS FROM FINANCING ACTIVITIES
Notes payable -- net............................ -- 2,722 (88,776) (1) (86,055)
Capital contributions received from
(distributions paid to) subsidiaries, net..... (1,289) 97,342 -- (96,053) --
Common stock dividends paid..................... (13,315) -- (6,500) 6,500 (13,315)
Preferred securities dividends paid............. (2,344) -- (115) 2,459 --
Issuance of common stock........................ 102,964 -- -- -- 102,964
Revolving credit facility -- net................ -- (80,000) -- -- (80,000)
Retirement of long-term debt and preferred
securities.................................... -- (1,200) (3,471) -- (4,671)
Other........................................... -- (671) -- -- (671)
-------- --------- ---------- -------- ----------
NET CASH PROVIDED FROM (USED FOR) FINANCING
ACTIVITIES................................ 86,016 18,193 (98,862) (87,095) (81,748)
-------- --------- ---------- -------- ----------
CASH FLOWS FROM INVESTING ACTIVITIES
Capital expenditures............................ (1,102) (45,457) (28,209) -- (74,768)
Investment in joint ventures and subsidiaries... (97,342) (2,111) (167) 98,060 (1,560)
Sale of investment in joint ventures............ -- 7,628 -- -- 7,628
Other........................................... (55) (1,336) 336 1,374 319
-------- --------- ---------- -------- ----------
NET CASH USED FOR INVESTING ACTIVITIES...... (98,499) (41,276) (28,040) 99,434 (68,381)
-------- --------- ---------- -------- ----------
NET INCREASE (DECREASE) IN CASH AND CASH
EQUIVALENTS..................................... 73 (4,484) 5,628 -- 1,217
CASH AND CASH EQUIVALENTS, JANUARY 1.............. 29 10,213 1,305 -- 11,547
-------- --------- ---------- -------- ----------
CASH AND CASH EQUIVALENTS, MARCH 31............... $ 102 $ 5,729 $ 6,933 $ -- $ 12,764
======== ========= ========== ======== ==========
</TABLE>
F-15
<PAGE> 30
MCN CORPORATION
CONDENSED CONSOLIDATING STATEMENTS OF CASH FLOWS (CONTINUED)
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
MCN ELIMINATIONS
AND OTHER MCN AND CONSOLIDATED
SUBSIDIARIES INVESTMENT MICHCON RECLASSIFICATIONS TOTALS
------------ ---------- ---------- ----------------- ------------
TWELVE MONTHS ENDED DECEMBER 31, 1994
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
NET CASH FLOW FROM OPERATING ACTIVITIES........... $ 20,865 $ (7,677) $ 174,168 $ (12,374) $ 174,982
-------- --------- ---------- -------- ----------
CASH FLOWS FROM FINANCING ACTIVITIES
Notes payable -- net............................ -- 40,350 (91,847) -- (51,497)
Notes payable -- affiliate, net................. (1,428) (18,403) -- 19,831 --
Capital contributions received from
(distributions paid to) subsidiaries, net..... (1,816) 16,579 -- (14,763) --
Common stock dividends paid..................... (51,492) -- (8,500) 8,500 (51,492)
Preferred securities dividends paid............. (1,536) -- (522) 2,058 --
Issuance of common stock........................ 15,390 -- -- -- 15,390
Issuance of preferred securities................ 96,329 -- -- -- 96,329
Issuance of long-term debt...................... -- -- 78,620 -- 78,620
Revolving credit facility -- net................ (71,900) 182,000 -- -- 110,100
Retirement of long-term debt and preferred
securities.................................... (110) (2,748) (4,809) -- (7,667)
Other........................................... (2,335) (1,028) 1,161 -- (2,202)
-------- --------- ---------- -------- ----------
NET CASH PROVIDED FROM (USED FOR) FINANCING
ACTIVITIES................................ (18,898) 216,750 (25,897) 15,626 187,581
-------- --------- ---------- -------- ----------
CASH FLOWS FROM INVESTING ACTIVITIES
Capital expenditures............................ (3,312) (207,304) (145,421) -- (356,037)
Investment in joint ventures and subsidiaries... (16,579) (3,856) (1,992) 16,580 (5,847)
Repayments of advances from joint ventures...... -- 1,428 -- (1,428) --
Other........................................... (488) 859 (1,976) (1) (1,606)
-------- --------- ---------- -------- ----------
NET CASH USED FOR INVESTING ACTIVITIES...... (20,379) (208,873) (149,389) 15,151 (363,490)
-------- --------- ---------- -------- ----------
NET INCREASE (DECREASE) IN CASH AND CASH
EQUIVALENTS..................................... (18,412) 200 (1,118) 18,403 (927)
CASH AND CASH EQUIVALENTS, JANUARY 1.............. 18,441 10,013 2,423 (18,403) 12,474
-------- --------- ---------- -------- ----------
CASH AND CASH EQUIVALENTS, DECEMBER 31............ $ 29 $ 10,213 $ 1,305 $ -- $ 11,547
======== ========= ========== ======== ==========
<CAPTION>
SIX MONTHS ENDED JUNE 30, 1994
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
NET CASH FLOW FROM OPERATING ACTIVITIES $ 18,378 $ 15,549 $ 265,096 $ (11,363) $ 287,660
-------- --------- ---------- -------- ----------
CASH FLOWS FROM FINANCING ACTIVITIES
Notes payable -- net............................ -- 33,900 (202,977) -- (169,077)
Notes payable -- affiliate, net................. 50 (18,403) -- 18,353 --
Capital contributions received from
(distributions paid to) subsidiaries, net..... (2,571) (61,101) 1,161 62,511 --
Common stock dividends paid..................... (25,438) -- (8,500) 8,500 (25,438)
Preferred securities dividends paid............. -- -- (292) 292 --
Issuance of common stock........................ 7,354 -- -- -- 7,354
Revolving credit facility -- net................ (71,900) 132,000 -- -- 60,100
Retirement of long-term debt and preferred
securities.................................... (50) (1,195) (3,472) -- (4,717)
Other........................................... (261) (828) -- -- (1,089)
-------- --------- ---------- -------- ----------
NET CASH PROVIDED FROM (USED FOR) FINANCING
ACTIVITIES................................ (92,816) 84,373 (214,080) 89,656 (132,867)
-------- --------- ---------- -------- ----------
CASH FLOWS FROM INVESTING ACTIVITIES
Capital expenditures............................ (1,633) (100,169) (49,927) -- (151,729)
Investment in joint ventures and subsidiaries... (1,103) (2,339) -- 1,161 (2,281)
Return of investment in joint ventures.......... 61,101 -- -- (61,101) --
Other........................................... (2,114) 1,369 (1,305) -- (2,050)
-------- --------- ---------- -------- ----------
NET CASH PROVIDED FROM (USED FOR) INVESTING
ACTIVITIES................................ 56,251 (101,139) (51,232) (59,940) (156,060)
-------- --------- ---------- -------- ----------
NET DECREASE IN CASH AND CASH EQUIVALENTS......... (18,187) (1,217) (216) 18,353 (1,267)
CASH AND CASH EQUIVALENTS, JANUARY 1.............. 18,441 10,013 2,423 (18,403) 12,474
-------- --------- ---------- -------- ----------
CASH AND CASH EQUIVALENTS, JUNE 30................ $ 254 $ 8,796 $ 2,207 $ (50) $ 11,207
======== ========= ========== ======== ==========
</TABLE>
F-16
<PAGE> 31
MCN CORPORATION
CONDENSED CONSOLIDATING STATEMENTS OF CASH FLOWS (CONTINUED)
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
MCN ELIMINATIONS
AND OTHER MCN AND CONSOLIDATED
SUBSIDIARIES INVESTMENT MICHCON RECLASSIFICATIONS TOTALS
------------ ---------- ---------- ----------------- ------------
THREE MONTHS ENDED MARCH 31, 1994
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
NET CASH FLOW FROM OPERATING ACTIVITIES........... $ 15,344 $ 24,474 $ 189,452 $ (11,582) $ 217,688
-------- --------- ---------- -------- ----------
CASH FLOWS FROM FINANCING ACTIVITIES
Notes payable -- net............................ -- (20,000) (155,261) -- (175,261)
Notes payable -- affiliate, net................. (1,193) (17,513) -- 18,706
Capital contributions received from
(distributions paid to) subsidiaries, net..... -- (51,405) 1,161 50,244 --
Common stock dividends paid..................... (12,697) -- (8,500) 8,500 (12,697)
Preferred securities dividends paid............. -- -- (177) 177 --
Issuance of common stock........................ 3,885 -- -- -- 3,885
Revolving credit facility -- net................ (71,900) 93,000 -- -- 21,100
Retirement of long-term debt and preferred
securities.................................... -- (880) (3,372) -- (4,252)
Other........................................... (93) (694) -- -- (787)
-------- --------- ---------- -------- ----------
NET CASH PROVIDED FROM (USED FOR) FINANCING
ACTIVITIES................................ (81,998) 2,508 (166,149) 77,627 (168,012)
-------- --------- ---------- -------- ----------
CASH FLOWS FROM INVESTING ACTIVITIES
Capital expenditures............................ (1,048) (17,447) (20,156) -- (38,651)
Investment in joint ventures and subsidiaries... 50,244 (1,996) (18) (50,244) (2,014)
Return of investment in joint venture........... -- 318 -- 2,905 3,223
Repayments of advances from joint ventures...... -- 1,193 -- (1,193) --
Other........................................... (17) (287) (488) -- (792)
-------- --------- ---------- -------- ----------
NET CASH PROVIDED FROM (USED FOR) INVESTING
ACTIVITIES................................ 49,179 (18,219) (20,662) (48,532) (38,234)
-------- --------- ---------- -------- ----------
NET INCREASE (DECREASE) IN CASH AND CASH
EQUIVALENTS..................................... (17,475) 8,763 2,641 17,513 11,442
CASH AND CASH EQUIVALENTS, JANUARY 1.............. 18,441 10,013 2,423 (18,403) 12,474
-------- --------- ---------- -------- ----------
CASH AND CASH EQUIVALENTS, MARCH 31............... $ 966 $ 18,776 $ 5,064 $ (890) $ 23,916
======== ========= ========== ======== ==========
<CAPTION>
TWELVE MONTHS ENDED DECEMBER 31, 1993
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
NET CASH FLOW FROM OPERATING ACTIVITIES........... $ 85,320 $ (10,850) $ 146,363 $(110,717) $ 110,116
-------- --------- ---------- -------- ----------
CASH FLOWS FROM FINANCING ACTIVITIES
Notes payable -- net............................ -- 20,000 19,083 5,898 44,981
Notes payable -- affiliate, net................. (8,679) 13,211 -- (4,532) --
Capital contributions received from
(distributions paid to) subsidiaries, net..... 2,019 92,684 -- (94,703) --
Common stock dividends paid..................... (49,527) (5,900) (75,000) 80,900 (49,527)
Preferred securities dividends paid............. -- -- (768) 768 --
Issuance of common stock........................ 11,432 -- -- -- 11,432
Issuance of long-term debt...................... -- -- 118,129 -- 118,129
Revolving credit facility -- net................ 71,900 -- -- -- 71,900
Retirement of long-term debt and preferred
securities.................................... (1,920) (1,852) (84,160) -- (87,932)
Other........................................... 1,101 (1,294) -- -- (193)
-------- --------- ---------- -------- ----------
NET CASH PROVIDED FROM (USED FOR) FINANCING
ACTIVITIES................................ 26,326 116,849 (22,716) (11,669) 108,790
-------- --------- ---------- -------- ----------
CASH FLOWS FROM INVESTING ACTIVITIES
Capital expenditures............................ (3,608) (63,924) (141,279) -- (208,811)
Investment in joint ventures and subsidiaries... (94,703) (3,655) (2,802) 94,703 (6,457)
Sale (acquisition) of investment in joint
ventures...................................... -- (42,284) 19,898 22,386 --
Repayments from (advances to) joint ventures.... 5,898 (1,581) -- (4,317) --
Other........................................... (996) (2,486) 981 1,471 (1,030)
-------- --------- ---------- -------- ----------
NET CASH USED FOR INVESTING ACTIVITIES...... (93,409) (113,930) (123,202) 114,243 (216,298)
-------- --------- ---------- -------- ----------
NET INCREASE (DECREASE) IN CASH AND CASH
EQUIVALENTS..................................... 18,237 (7,931) 445 (8,143) 2,608
CASH AND CASH EQUIVALENTS, JANUARY 1.............. 204 17,944 1,978 (10,260) 9,866
-------- --------- ---------- -------- ----------
CASH AND CASH EQUIVALENTS, DECEMBER 31............ $ 18,441 $ 10,013 $ 2,423 $ (18,403) $ 12,474
======== ========= ========== ======== ==========
</TABLE>
F-17
<PAGE> 32
MCN CORPORATION
CONDENSED CONSOLIDATING STATEMENTS OF CASH FLOWS (CONCLUDED)
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
MCN ELIMINATIONS
AND OTHER MCN AND CONSOLIDATED
SUBSIDIARIES INVESTMENT MICHCON RECLASSIFICATIONS TOTALS
------------ ---------- ---------- ----------------- ------------
TWELVE MONTHS ENDED DECEMBER 31, 1992
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
NET CASH FLOW FROM OPERATING ACTIVITIES........... $ 735 $ 25,873 $ 51,871 $ 3,742 $ 82,221
-------- --------- ---------- -------- ----------
CASH FLOWS FROM FINANCING ACTIVITIES
Notes payable -- net............................ -- -- 60,831 (5,898) 54,933
Notes payable -- affiliate, net................. 10,260 (6,532) -- (3,728) --
Capital contributions received from
(distributions paid to) subsidiaries, net..... 7,637 6,260 25,000 (38,897) --
Common stock dividends paid..................... (44,940) -- -- -- (44,940)
Preferred securities dividends paid............. -- -- (1,014) 1,014 --
Issuance of common stock........................ 70,285 -- -- -- 70,285
Issuance of long-term debt...................... -- 30,000 118,724 -- 148,724
Revolving credit facility -- net................ (4,650) -- -- -- (4,650)
Retirement of long-term debt and preferred
securities.................................... (1,986) (1,938) (115,542) -- (119,466)
Other........................................... 739 (1,696) -- -- (957)
-------- --------- ---------- -------- ----------
NET CASH PROVIDED FROM FINANCING
ACTIVITIES................................ 37,345 26,094 87,999 (47,509) 103,929
-------- --------- ---------- -------- ----------
CASH FLOWS FROM INVESTING ACTIVITIES
Capital expenditures............................ (708) (37,023) (128,849) (4,729) (171,309)
Investment in joint ventures and subsidiaries... (32,582) (3,819) (12,505) 38,870 (10,036)
Repayments from (advances to) joint ventures.... 771 (137) 2,436 (634) 2,436
Other........................................... (5,489) 1,760 (1,876) -- (5,605)
-------- --------- ---------- -------- ----------
NET CASH USED FOR INVESTING ACTIVITIES...... (38,008) (39,219) (140,794) 33,507 (184,514)
-------- --------- ---------- -------- ----------
NET INCREASE (DECREASE) IN CASH AND CASH
EQUIVALENTS..................................... 72 12,748 (924) (10,260) 1,636
CASH AND CASH EQUIVALENTS, JANUARY 1.............. 132 5,196 2,902 -- 8,230
-------- --------- ---------- -------- ----------
CASH AND CASH EQUIVALENTS, DECEMBER 31............ $ 204 $ 17,944 $ 1,978 $ (10,260) $ 9,866
======== ========= ========== ======== ==========
</TABLE>
F-18
<PAGE> 33
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT IN
CONNECTION WITH AN OFFER MADE BY THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY, MCN OR BY ANY OTHER INDIVIDUAL,
UNDERWRITER, DEALER OR AGENT. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY
PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES
CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE
COMPANY OR MCN SINCE THE DATE HEREOF OR THEREOF. THIS PROSPECTUS AND ANY
PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN
ANY STATE IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE
PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE
TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PROSPECTUS
Available Information................. 2
Incorporation of Certain Documents
by Reference........................ 2
MCN Corporation....................... 3
MCN Investment Corporation............ 3
Ratio of Earnings to Fixed Charges.... 4
Use of Proceeds....................... 4
Description of Debt Securities........ 4
Support Agreement..................... 10
Validity of Securities................ 11
Experts............................... 11
Plan of Distribution.................. 12
MCN Corporation Index to Consolidating
Financial Statements................ F-1
</TABLE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
MCN INVESTMENT CORPORATION
DEBT SECURITIES
ENTITLED TO THE BENEFITS
OF A SUPPORT AGREEMENT
BY
[MCN LOGO]
---------------------------
PROSPECTUS
---------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 34
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution of the
securities being registered, other than underwriting compensation, are:
<TABLE>
<S> <C>
SEC Registration Fee...................................................... $ 68,966
Printing and Engraving.................................................... 50,000*
Trustee Fee............................................................... 10,000*
Legal Fee................................................................. 90,000*
Accounting Fee............................................................ 50,000*
Rating Agency Fees........................................................ 100,000*
Miscellaneous............................................................. 6,034*
--------
Total................................................................ $375,000
========
</TABLE>
- -------------------------
* Estimated, subject to future issuance of Debt Securities.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
MCN and the Company's By-Laws and the Michigan Business Corporation Act
("MBCA") permit MCN and the Company's officers and directors to be indemnified
under certain circumstances for expenses and, in some instances, for judgments,
fines or amounts paid in settlement of civil, criminal, administrative and
investigative suits or proceedings, including those involving alleged violations
of the Securities Act of 1933. There is directors' and officers' liability
insurance presently outstanding which insures the directors and officers of MCN
and the Company against claims arising out of the performance of their duties.
Any agreement relating to the issuance and sale of the Debt Securities may
provide for indemnification by the underwriters, dealers or agents of the
directors and officers of MCN and the Company against certain civil liabilities,
including liabilities under the Securities Act of 1933.
MCN has entered into indemnification contracts with each officer and
director of MCN, and certain officers of its subsidiaries, including MCN
Investment, that contain provisions similar to the provisions of the MBCA.
II-1
<PAGE> 35
ITEM 16. LIST OF EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- ------ ------------------------------------------------------------------------------------
<C> <S>
1-1 Form of Distribution Agreement (to be filed under subsequent Form 8-K).
3-1 Articles of Incorporation of MCN Investment Corporation, as amended.*
3-2 By-Laws of MCN Investment Corporation, as amended.*
4-1 Debt Securities Indenture between MCN Investment Corporation and NBD Bank as
Trustee.*
4-2 Form of Support Agreement with respect to Debt Securities.*
5-1 Opinion of Daniel L. Schiffer, Senior Vice President, General Counsel and Secretary
for MCN Corporation.*
12-1 Computation of Ratio of Earnings to Fixed Charges for MCN Investment Corporation.*
12-2 Computation of Ratio of Earnings to Fixed Charges for MCN Corporation.*
23-1 Independent Auditor's Consent -- DELOITTE & TOUCHE LLP.*
23-2 Consent of Ryder Scott Company.*
23-3 Consent of Miller and Lents, Ltd.*
23-4 Consent of Daniel L. Schiffer, Senior Vice President, General Counsel and Secretary
for MCN Corporation (included in Exhibit 5-1).
24-1 Powers of Attorney for MCN Corporation.*
24-2 Powers of Attorney for MCN Investment Corporation.*
24-3 Board Resolution authorizing issuance of the Debt Securities.*
25-1 Statement of Eligibility and Qualification of NBD Bank (T-1 Debt Securities).*
</TABLE>
- -------------------------
* Indicates document filed herewith.
ITEM 17. UNDERTAKINGS.
The Registrants hereby undertake:
(a) To file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to this
Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "1933 Act");
(ii) to reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represents a fundamental change in the information set forth
in this Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration
Statement;
provided, however, that the undertakings set forth in paragraphs (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
II-2
<PAGE> 36
periodic reports filed by the Registrants pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 (the "1934 Act") that are
incorporated by reference in this Registration Statement;
(b) That, for the purpose of determining any liability under the 1933
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof;
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering; and
(d) That, for purposes of determining any liability under the 1933
Act, each filing of MCN's annual report pursuant to Section 13(a) or
Section 15(d) of the 1934 Act that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
Insofar as indemnification for liabilities arising under the 1933 Act may
be permitted to directors, officers and controlling persons of the Registrants
pursuant to the foregoing provisions of their respective By-Laws, the Michigan
Business Corporation Act or otherwise, the Registrants have been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the 1933 Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrants of expenses incurred or
paid by a director, officer or controlling person of the Registrants, in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer, or controlling person in connection with the securities being
registered, the Registrants will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the 1933 Act and will be covered by the
final adjudication of such issue.
II-3
<PAGE> 37
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, MCN Investment
Corporation certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Detroit, State of Michigan, on the 10th day of
October, 1995.
MCN INVESTMENT CORPORATION
------------------------------
(Registrant)
By: /s/ PATRICK ZURLINDEN
------------------------------------
PATRICK ZURLINDEN
Vice President, Controller and
Chief Accounting Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities with MCN Investment Corporation and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------- -------------------------------- ------------------
<C> <S> <C>
* Chairman and Director October 10, 1995
- -------------------------------------
Alfred R. Glancy III
* President, Chief Executive October 10, 1995
- ------------------------------------- Officer and Director
Rai P. K. Bhargava
* Vice Chairman, Chief Financial October 10, 1995
- ------------------------------------- Officer and Director
William K. McCrackin
/s/ PATRICK ZURLINDEN Vice President, Controller and October 10, 1995
- ------------------------------------- Chief Accounting Officer
Patrick Zurlinden
*By: /s/ PATRICK ZURLINDEN
- -------------------------------------
Patrick Zurlinden
Attorney-in-Fact
</TABLE>
II-4
<PAGE> 38
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, MCN Corporation
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Detroit, State of Michigan, on the 10th day of
October, 1995.
MCN CORPORATION
--------------
(Registrant)
By: /s/ PATRICK ZURLINDEN
---------------------------------
PATRICK ZURLINDEN
Vice President, Controller and
Chief Accounting Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities with MCN Corporation and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ---------------------------------------- --------------------------------- -----------------
<S> <C> <C>
* Chairman, President, Chief October 10, 1995
- ---------------------------------------- Executive Officer and Director
Alfred R. Glancy III
* Vice Chairman, Chief Financial October 10, 1995
- ---------------------------------------- Officer and Director
William K. McCrackin
By: /s/ PATRICK ZURLINDEN Vice President, Controller and October 10, 1995
- ---------------------------------------- Chief Accounting Officer
Patrick Zurlinden
* Director October 10, 1995
- ----------------------------------------
Stephen E. Ewing
* Director October 10, 1995
- ----------------------------------------
Roger Fridholm
* Director October 10, 1995
- ----------------------------------------
Frank M. Hennessey
* Director October 10, 1995
- ----------------------------------------
Thomas H. Jeffs II
* Director October 10, 1995
- ----------------------------------------
Arthur L. Johnson
* Director October 10, 1995
- ----------------------------------------
Dale A. Johnson
* Director October 10, 1995
- ----------------------------------------
Helen O. Petrauskas
* Director October 10, 1995
- ----------------------------------------
Howard F. Sims
*By: /s/ PATRICK ZURLINDEN
- ----------------------------------------
Patrick Zurlinden
Attorney-in-Fact
</TABLE>
II-5
<PAGE> 39
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- ------- -----------------------------------------------------------------
<S> <C>
1-1 Form of Distribution Agreement (to be filed under subsequent Form 8-K).
3-1 Articles of Incorporation of MCN Investment Corporation, as amended.*
3-2 By-Laws of MCN Investment Corporation, as amended.*
4-1 Debt Securities Indenture between MCN Investment Corp. and NBD Bank as Trustee.*
4-2 Form of Support Agreement with respect to Debt Securities.*
5-1 Opinion of Daniel L. Schiffer, Senior Vice President, General Counsel and Secretary for MCN
Corporation.*
12-1 Computation of Ratio of Earnings to Fixed Charges for MCN Investment Corporation.*
12-2 Computation of Ratio of Earnings to Fixed Charges for MCN Corporation.*
23-1 Independent Auditor's Consent -- Deloitte & Touche LLP.*
23-2 Consent of Ryder Scott Company.*
23-3 Consent of Miller and Lents, Ltd.*
23-4 Consent of Daniel L. Schiffer, Senior Vice President, General Counsel and Secretary for MCN
Corporation (included in Exhibit 5-1).
24-1 Powers of Attorney for MCN Corporation.*
24-2 Powers of Attorney for MCN Investment Corporation.*
24-3 Board Resolution authorizing issuance of the Debt Securities.*
25-1 Statement of Eligibility and Qualification of NBD Bank (T-1 Debt Securities).*
_______________
* Indicates document filed herewith.
</TABLE>
<PAGE> 1
EXHIBIT 3-1
ARTICLES OF INCORPORATION
OF
MICHCON INVESTMENT CORPORATION
(A PROFIT CORPORATION)
These Articles of Incorporation are signed by the incorporator for the
purpose of forming a profit corporation pursuant to the provisions of Act 284,
Public Acts of 1972, as amended, as follows:
ARTICLE I. Name. The name of the Corporation is MichCon Investment
Corporation.
ARTICLE II. Purposes. The purpose or purposes for which the corporation
is organized is to engage in any activity within the purposes for which
corporations may be organized under the Business Corporation Act of Michigan
and to have and exercise all powers conferred by such Act upon corporations
organized thereunder.
ARTICLE III. Capital. The total authorized capital stock is:
Common Shares 50,000 Par Value Per Share $1.00
ARTICLE IV. Registered Office; Registered Agent.
1. The address of the initial registered office is: 500 Griswold Street,
Detroit, Michigan 48226.
2. The name of the initial resident agent at the registered office is
Pamela J. Liggett.
ARTICLE V. Incorporator. The name and business address of the
incorporator is: Pamela J. Liggett, Secretary, Michigan Consolidated Gas
Company, 500 Griswold Street, Detroit, Michigan 48226.
ARTICLE VI. Corporate Action. Any action required or permitted by Act
284, Public Acts of 1972, as amended, to be taken at an annual or special
meeting of shareholders may be taken without a meeting, without prior notice
and without a vote, if a consent in writing, setting forth the action so taken,
is signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take the action at a
meeting at which all shares entitled to vote thereon were present and voted.
ARTICLE VII. Indemnification. The corporation shall indemnify any person
who is or was a director,
<PAGE> 2
officer, employee or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
any threatened, pending or completed action, suit or proceeding to the full
extent provided by the Business Corporation Act of Michigan from time to time
in effect.
I, the incorporator sign my name this 11th day of April, 1986.
Pamela J. Liggett
---------------------
Pamela J. Liggett
- 2 -
<PAGE> 3
CERTIFICATE OF AMENDMENT
TO THE ARTICLES OF INCORPORATION
MICHCON INVESTMENT CORPORATION
Corporation Number 300-884
-------
The undersigned, MichCon Investment Corporation, executes this Certificate
of Amendment to its Articles of Incorporation pursuant to the provisions of
Section 631, Act 284, Public Acts of 1972, as amended.
The following amendment to the Articles of Incorporation of MichCon
Investment Corporation was adopted on the 11th day of May, 1988 by the
shareholders in accordance with Section 611(2), Act 284, Public Acts of 1972,
as amended. A consent adopting the amendment was signed on behalf of holders
of the necessary number of shares required by statute.
RESOLVED, That the Articles of Incorporation be amended by adding a new
Article VIII to read as follows:
ARTICLE VIII
------------
A director of the Corporation shall not be personally liable to the
Corporation or its shareholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of
the director's duty of loyalty to the Corporation or its shareholders,
(ii) for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of the law, (iii) for a violation of
Section 551(1) of the Michigan Business Corporation Act, or (iv) for any
transaction from which the director derived any improper personal benefit.
If the Michigan Business Corporation Act is amended after approval by the
shareholders of this provision to authorize corporate action further
eliminating or limiting the personal liability of directors, then the
liability of a director of the Corporation shall be eliminated or limited
to the fullest extent permitted by the Michigan Business Corporation Act,
as so amended.
<PAGE> 4
Any repeal or modification of the foregoing paragraph by the
shareholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such
repeal or modification.
Signed this 11th day of May, 1988
MICHCON INVESTMENT CORPORATION
By: A. R. Glancy III
------------------------------
A. R. Glancy III, Chairman
By: P. J. Liggett
------------------------------
P. J. Liggett, Secretary
<PAGE> 5
MICHIGAN DEPARTMENT OF COMMERCE - CORPORATION AND SECURITIES BUREAU
(FOR BUREAU USE ONLY) Date Received
FILED
AUG 12 1988 AUG 12 1988
Administrator
MICHIGAN DEPT. OF COMMERCE
Corporate & Securities Bureau
CERTIFICATE OF AMENDMENT TO THE ARTICLES OF INCORPORATION
FOR USE BY DOMESTIC CORPORATIONS
(Please read instructions and Paperwork Reduction Act notice on last page)
Pursuant to the provisions of Act 284, Public Acts of 1972, as amended
(profit corporations), or Act 162, Public Acts of 1982, as amended (nonprofit
corporations), the undersigned corporation executes the following Certificate:
1. The present name of the corporation is: MichCon Investment Corporation
2. The corporation identification number (CID) assigned by the Bureau is:
300-884
3. The location of its registered office is:
500 Griswold Street Detroit , Michigan 48226
------------------------------------------------- -------------
(Street Address) (City) (Zip Code)
4. Article I of the Articles of Incorporation is hereby
---------------------
amended to read as follows:
ARTICLE I. Name. The name of the Corporation is MCN Investment
Corporation.
<PAGE> 6
5. COMPLETE SECTION (a) IF THE AMENDMENT WAS ADOPTED BY THE UNANIMOUS CONSENT
OF THE INCORPORATOR(S) BEFORE THE FIRST MEETING OF THE BOARD OF DIRECTORS
OR TRUSTEES; OTHERWISE, COMPLETE SECTION (b)
a. / / The foregoing amendment to the Articles of Incorporation was duly
adopted on the _________ day of __________, 19 _____, in accordance
with the provisions of the Act by the unanimous consent of the
incorporator(s) before the first meeting of the board of directors
or trustees.
Signed this _________day of ___________________________, 19_____
_________________________________ ____________________________
_________________________________ ____________________________
_________________________________ ____________________________
_________________________________ ____________________________
(Signatures of all incorporators; type or print name
under each signature)
b. /X/ The foregoing amendment to the Articles of Incorporation was duly
adopted on the 12th day of, August, 1988. The amendment: (check one
of the following)
/ / was duly adopted in accordance with Section 611(2) of the Act by
the vote of the shareholders if a profit corporation, or by the
vote of the shareholders or members if a nonprofit corporation,
or by the vote of the directors if a nonprofit corporation
organized on a nonstock directorship basis. The necessary votes
were cast in favor of the amendment.
/ / was duly adopted by the written consent of all the directors
pursuant to Section 525 of the Act and the corporation is a
nonprofit corporation organized on a nonstock directorship basis.
/ / was duly adopted by the written consent of the shareholders or
members having not less than the minimum number of votes
required by statute in accordance with Section 407(1) and (2) of
the Act. Written notice to shareholders or members who have not
consented in writing has been given. (Note: Written consent by
less than all of the shareholders or members is permitted only
if such provision appears in the Articles of Incorporation.)
/X/ was duly adopted by the written consent of all the shareholders
or members entitled to vote in accordance with Section 407(3) of
the Act.
Signed this 12th day of August, 1988
By Alfred R. Glancy III
-------------------------------------
(Signature)
Alfred R. Glancy III Chairman
-------------------------------------------
(Type or Print Name) (Type or Print Title)
<PAGE> 7
<TABLE>
<S> <C>
DOCUMENT WILL BE RETURNED TO NAME AND MAILING ADDRESS Name of person or organization
INDICATED IN THE BOX BELOW. Include name, street and number remitting fees:
(or P.O. box), city, state and ZIP code. MichCon Investment Corporation
----------------------------------------
Daniel L. Schiffer, Secretary ----------------------------------------
MCN Investment Corporation Preparer's name and business
500 Griswold Street telephone number:
Detroit, Michigan 48226
Susan Kirk
----------------------------------------
(313) 256-5204
----------------------------------------
<CAPTION>
INFORMATION AND INSTRUCTIONS
<S> <C>
1. This form is issued under the authority of Act 284, P.A. of 1972, as amended, and Act 162, P.A. of 1982, as amended. The
amendment cannot be filed until this form, or a comparable document, is submitted.
2. Submit one original copy of this document. Upon filing, a microfilm copy will be prepared for the records of the Corporation
and Securities Bureau. The original copy will be returned to the address appearing in the box above as evidence of filing.
Since this document must be microfilmed, it is important that the filing be legible. Documents with poor black and white
contrast, or otherwise illegible, will be rejected.
3. This document is to be used pursuant to the provisions of section 631 of the Act for the purpose of amending the articles of
incorporation of a domestic profit or nonprofit corporation. Do not use this form for restated articles. A nonprofit
corporation is one incorporated to carry out any lawful purpose or purposes not involving pecuniary profit or gain for its
directors, officers, shareholders, or members. A nonprofit corporation organized on a nonstock directorship basis, as
authorized by Section 302 of the Act, may or may not have members, but if it has members, the members are not entitled to vote.
4. Item 2 -- Enter the identification number previously assigned by the Bureau. If this number is unknown, leave it blank.
5. Item 4 -- The entire article being amended must be set forth in its entirety. However, if the article being amended is divided
into separately identifiable sections, only the sections being amended need be included.
6. This document is effective on the date approved and filed by the Bureau. A later effective date, no more than 90 days after the
date of delivery, may be stated.
7. If the amendment is adopted before the first meeting of the board of directors, item 5(a) must be completed and signed in ink by
all of the incorporators listed in Article V of the Articles of Incorporation. If the amendment is otherwise adopted, item 5(b)
must be completed and signed in ink by the president, vice-president, chairperson, or vice-chairperson of the corporation.
8. FEES: Filing fee (Make remittance payable to State of Michigan) ........................................... $10.00
Franchise fee for profit corporations (payable only if authorized capital stock has increased) -- 1/2 mill (.0005) on
each dollar of increase over highest previous authorized capital stock.
9. Mail form and fee to:
Michigan Department of Commerce
Corporation and Securities Bureau
Corporation Division
P.O. Box 30054
Lansing, MI 48909
Telephone: (517) 373-0493
</TABLE>
<PAGE> 1
EXHIBIT 3-2
BY-LAWS
OF
MCN INVESTMENT CORPORATION
ARTICLE I
OFFICES
SECTION 1.1. Registered Office. The registered office of the
corporation shall be in Detroit, Michigan, at such place as the Board of
Directors may from time to time designate.
SECTION 1.2. Other Offices. The corporation may also have offices
at such other places both within and without the State of Michigan as the Board
of Directors may from time to time determine or the business of the corporation
may require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
SECTION 2.1. Annual Meeting. The annual meeting of shareholders
shall be held each year on such day during the month of June, and at such hour
of the day as shall be designated by the Board of Directors. At such meeting,
the shareholders shall elect Directors and transact such other business as may
come before the meeting. If the annual meeting is not held on the date
designated therefor, the Board of Directors shall cause the meeting to be held
as soon thereafter as convenient.
SECTION 2.2. Place of Meetings. The Board of Directors may
designate any place either within or without the State of Michigan as the place
of meeting for any annual meeting or for any special meeting of shareholders.
If no designation is made, the place of meeting shall be the registered office
of the corporation in the State of Michigan.
SECTION 2.3. Notice of Meetings. Except as otherwise provided by
law, written notice of the time, place
- 1 -
June 15, 1993
<PAGE> 2
and purpose or purposes for which a meeting is called, shall be given not less
than ten nor more than sixty days before the date of the meeting to each
shareholder of record entitled to vote at the meeting. If mailed, such notice
shall be deemed to be given when deposited in the United States mail by the
corporation or its duly authorized agent, addressed to the shareholder at his
or her address as it appears on the stock transfer books of the corporation,
with postage prepaid.
SECTION 2.4. Shareholder List. Before every meeting of
shareholders, the officer or agent having charge of the stock transfer books
shall prepare and certify a complete list of the shareholders entitled to vote
at the meeting, arranged in alphabetical order within each class, if any, the
address of, and number of voting shares registered in the name of each
shareholder. Such list shall be produced at the time and place of the meeting.
SECTION 2.5. Quorum. At each meeting of shareholders, the holders
of record of a majority of the issued and outstanding stock of the corporation
entitled to vote at such meeting, present in person or by proxy, shall
constitute a quorum for the transaction of business, except where otherwise
provided by law, the Articles of Incorporation or these By-Laws.
SECTION 2.6. Proxies. At every meeting of shareholders, each
shareholder has the right to vote in person or by proxy. Such proxy shall be
appointed by an instrument in writing subscribed by the shareholder or his or
her authorized agent or representative, and bearing a date not more than three
years prior to such meeting, unless the proxy provides for a longer period.
Each proxy shall be filed with the Secretary of the corporation prior to or at
the time of the meeting.
SECTION 2.7. Voting. Except as otherwise provided in the Articles
of Incorporation, at every meeting of shareholders each holder of record of the
issued and outstanding stock of the corporation entitled to vote thereat shall
be entitled to one vote, in person or by proxy, for each share of stock held by
such shareholder. At all meetings of shareholders, a quorum being present, the
vote of the holders of a majority of the stock having voting power present in
person or represented by proxy shall decide all matters presented to the
shareholders except as otherwise required by law or the Articles of
Incorporation.
SECTION 2.8. Action Without Meeting. Any action required or
permitted to be taken at an annual or special
- 2 -
June 15, 1993
<PAGE> 3
meeting of shareholders may be taken without a meeting, without prior notice
and without a vote, if all the shareholders entitled to vote thereon consent
thereto in writing.
SECTION 2.9. Adjournments. Any annual or special meeting of
shareholders, whether or not a quorum is present, may be adjourned from time to
time by a majority vote of the shares present in person or by proxy. Unless
the Board of Directors fixes a new record date for the adjourned meeting, it
shall not be necessary to give notice of the adjourned meeting if the date,
time and place to which the meeting is adjourned are announced at the meeting
at which the adjournment is taken and at the adjourned meeting only such
business is transacted as might have been transacted at the original meeting.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.1. Management Responsibility. The business and affairs of
the corporation shall be managed by the Board of Directors except as otherwise
provided by law or by the Articles of Incorporation.
SECTION 3.2. Number; Election; Term. The number of Directors shall
be fixed from time to time by resolution adopted by the affirmative vote of a
majority of the entire Board of Directors. The Directors shall be elected at
the annual meeting of shareholders or at any adjournment thereof. Each
Director elected shall hold office until the succeeding annual meeting and
until his or her successor shall be elected and shall qualify, or until his or
her earlier resignation or removal.
SECTION 3.3. Resignation and Vacancies. Any Director may resign at
any time by giving written notice to the corporation. Any such resignation
shall take effect at the date of the receipt of such notice or at any later
time specified therein, and unless otherwise specified therein, the acceptance
of such resignation shall not be necessary to make it effective. Any vacancy
occurring on the Board of Directors through death, resignation, retirement,
removal or other cause, or resulting from an increase in the number of
Directors, may be filled by the affirmative vote of a majority of the then
remaining Directors, though less than a quorum, or by the sole remaining
Director, for a term of office
- 3 -
June 15, 1993
<PAGE> 4
continuing only until the next election of Directors by the shareholders.
SECTION 3.4. Meetings.
(A) Annual Meetings. As soon as practicable after each annual
election of Directors, the Board of Directors shall meet for the purpose of
organization and the transaction of other business.
(B) Other Meetings. Other meetings of the Board of Directors shall
be held at such times and places as the Board shall from time to time determine
or upon call by the Chairman, the President or by the Secretary.
SECTION 3.5. Notice of Meetings. The Secretary shall give notice
to each Director of the time and place of such meeting. Notice of each meeting
shall be mailed to each Director at his or her residence or usual place of
business, at least three days before the day on which such meeting is to be
held, or shall be sent by telegraph, cable, or other form of recorded
communication or be delivered personally or by telephone not later than the day
before the day on which such meeting is to be held. The attendance or
participation of a Director at any meeting shall constitute a waiver of notice
of such meeting, except where a Director attends a meeting, promptly objects to
the meeting or the transacting of business at the meeting and does not
thereafter vote for or assent to any action taken at the meeting. A written
waiver of notice, signed by a Director, whether before or after the time stated
therein, shall be deemed equivalent to adequate notice.
SECTION 3.6. Quorum and Manner of Acting. At each meeting of the
Board of Directors, the presence of not less than a majority of the Board then
in office shall be necessary and sufficient to constitute a quorum for the
transaction of business, and the act of a majority of the Directors present at
any meeting at which there is a quorum shall be the act of the Board of
Directors, except as may be otherwise specifically provided by law. If a
quorum shall not be present at any meeting of Directors, the Directors present
thereat may adjourn the meeting from time to time, without notice until a
quorum shall be present.
SECTION 3.7. Action By Consent. Any action required or permitted
to be taken at any meeting of the Board of Directors or a Committee thereof may
be taken without a meeting if, before or after the action, all members of the
Board then in office or of the Committee consent thereto in writing. The
written consents shall be filed with the minutes
- 4 -
June 15, 1993
<PAGE> 5
of proceedings of the Board and shall have the same effect as a vote of the
Board for all purposes.
SECTION 3.8. Meetings By Telephone. Members of the Board of
Directors, or of any committee thereof, may participate in a meeting of the
Board, or of such committee, by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can communicate with each other. Participation in a meeting pursuant
to this section constitutes presence in person at such meeting.
SECTION 3.9. Compensation. Directors shall not receive any stated
salary or fees for their services as such. Members of the Board of Directors
and of any Committee thereof shall be allowed reimbursement of reasonable
expenses incurred by such member in connection with attending any meeting of
the Board or committee thereof. Nothing contained in this Section shall be
construed to preclude any Director from serving the corporation in any other
capacity and receiving compensation therefor.
ARTICLE IV
OFFICERS
SECTION 4.1. Officers. The officers of the corporation shall be a
President, a Secretary, and a Treasurer. The Board of Directors may elect or
appoint such other officers of the corporation, including a Chairman,
Controller, and one or more Vice Presidents, Assistant Secretaries and
Assistant Treasurers, as it deems necessary for the proper conduct and
regulation of the business of the corporation and who shall have such authority
and shall perform such duties as the Board of Directors or the President shall
prescribe.
SECTION 4.2. Election and Term of Office. The officers of the
corporation shall be elected by the Board of Directors at the annual meeting of
the Board of Directors. If the election of officers shall not be held at such
meeting of the Board, such election shall be held at a regular or special
meeting of the Board of Directors as soon thereafter as may be convenient.
Each officer shall hold office for the term for which he or she is elected and
until his or her successor is elected and qualified, or until his or her
earlier resignation or removal.
- 5 -
June 15, 1993
<PAGE> 6
SECTION 4.3. Removal or Resignation. Any officer may be removed,
with or without cause, by the Board of Directors. Any officer may resign at
any time by giving written notice to the corporation. Any such resignation
shall take effect at the date of the receipt of such notice or at any later
time specified therein; and, unless otherwise specified therein, the acceptance
of such resignation shall not be necessary to make it effective.
SECTION 4.4. Vacancies. Any vacancy occurring in any office of the
corporation because of death, resignation, removal or any other cause may be
filled for the unexpired portion of the term by the Board of Directors.
SECTION 4.5. President. The President, subject to the direction of
the Board of Directors, shall be the Chief Operating Officer of the corporation
and shall be responsible for directing and overseeing the administration and
operations of the corporation. In the absence or disability of the President,
the officer designated by the Board of Directors shall perform the duties and
have the authority and exercise the powers of the President.
SECTION 4.6. Secretary. The Secretary shall keep the minutes of
the meetings of the shareholders, the Board of Directors and committees of
Directors, in one or more books provided for that purpose; see that all notices
are duly given in accordance with the provisions of these By-Laws or as
required by law; and, have charge of the corporate records and of the seal of
the corporation. The Secretary shall perform such other duties and have such
other authority and powers as the Board of Directors or the President may from
time to time prescribe.
SECTION 4.7. Treasurer. The Treasurer shall be responsible to the
Board of Directors for the receipt, custody and disbursement of all funds and
securities of the corporation; receive and give receipts for moneys due and
payable to the corporation from any source whatsoever; designate banks, trust
companies, financial institutions and depositories for the collection,
investment and borrowing of funds of the corporation; disburse the funds of the
corporation as ordered by the Board of Directors, the President or as required
in the ordinary conduct of the business of the corporation; render to the
President or the Board of Directors, upon request, an account of all
transactions as Treasurer and a report on the financial condition of the
corporation; and in general, perform all the duties incident to the office of
Treasurer and such other
- 6 -
June 15, 1993
<PAGE> 7
duties as from time to time may be assigned to the Treasurer by the Board of
Directors, the President, or these By-Laws.
SECTION 4.8. Vice President, Controller, Assistant Treasurers,
Assistant Secretaries and Assistant Controllers, etc. Any Vice President,
Controller or other officer shall perform such duties as shall be assigned by
the Chairman, President or Board of Directors. The Assistant Treasurers,
Assistant Secretaries and Assistant Controllers shall, in general, perform such
duties as shall be assigned to them by the Treasurer, Secretary or Controller,
respectively.
ARTICLE V
COMMITTEES
SECTION 5.1. Committees. The Board of Directors may by resolution
establish such Committees as may be desirable, the responsibilities and duties
of which may be prescribed by the Board, subject to such limitations as
provided by law. In the absence or disqualification of a member of a
Committee, the members of the Committee present at a meeting and not
disqualified from voting, whether or not constituting a quorum, may unanimously
appoint another member of the Board of Directors to act in the place of the
absent or disqualified member.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 6.1. Indemnification. The Corporation shall indemnify its
directors and officers to the fullest extent permitted by law.
ARTICLE VII
CERTIFICATES FOR SHARES AND
THEIR TRANSFER
SECTION 7.1. Certificates for Shares. Any certificates for shares
of the capital stock of the corporation, shall be in such form as shall from
time to time be approved by the Board of Directors. A certificate shall be
signed by the President or a Vice President and may also be signed by the
Secretary or Treasurer. The signatures of the officers may be facsimiles if
the certificate is countersigned
- 7 -
June 15, 1993
<PAGE> 8
by a transfer agent or registered by a registrar other than the corporation
itself or its employees. In case an officer who has signed or whose facsimile
signature has been placed on a certificate ceases to be such officer before the
certificate is issued, it may be issued by the corporation with the same effect
as if he or she were such officer at the date of issue.
SECTION 7.2. Transfer of Shares. Shares shall be transferable only
on the books of the corporation by the holder thereof in person or by his or
her duly authorized attorney.
SECTION 7.3. Fixing Record Date. The record date for determining
shareholders for any purpose may be fixed by resolution of the Board of
Directors and, if so fixed, shall be not more than 60 days before any meeting,
payment date, or any other action and, in the case of a meeting, shall not be
less than 10 days before such meeting.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 8.1. Books and Records. The corporation shall keep current
and complete books and records of account and shall keep minutes of the
proceedings of the shareholders and Board of Directors, and shall keep at its
registered office or principal place of business, or at the office of its
transfer agent or registrar, a record of the names and addresses of all
shareholders and the number and class of shares held by each.
SECTION 8.2. Fiscal Year. The fiscal year of the corporation shall
commence on the first day of January, and end the thirty-first day in December
of each year.
SECTION 8.3. Corporate Seal. The corporate seal of the corporation
shall be circular in form, with the name of the corporation engraved around the
margin, and the figures "1986", the year of its incorporation, engraved in the
center.
SECTION 8.4. Voting of Stock. Unless otherwise ordered by the
Board of Directors, the President or any Vice President of the corporation
shall have full power and authority to act and vote, in the name and on behalf
of this corporation, at any meeting of shareholders of any corporation in which
this corporation may hold stock, and at any such meeting shall possess and may
exercise any and all of the rights and powers incident to the ownership of such
stock, and
- 8 -
June 15, 1993
<PAGE> 9
shall have full power and authority to execute, in the name and on behalf of
this corporation, proxies authorizing any suitable person or persons to act and
to vote at any meeting of shareholders of any corporation in which this
corporation may hold stock, and at any such meeting the person or persons so
designated shall possess and may exercise any and all of the rights and powers
incident to the ownership of such stock.
SECTION 8.5. Amendment of By-Laws. Subject to applicable law, the
Board of Directors shall have power to adopt, amend and repeal the By-laws of
the corporation. Nothing in this Section shall be construed to limit the power
of the shareholders to amend, alter or rescind any of the By-laws of the
corporation.
- 9 -
June 15, 1993
<PAGE> 1
EXHIBIT 4-1
__________________________________________________________________________
MCN INVESTMENT CORPORATION,
AS ISSUER
TO
NBD BANK,
AS TRUSTEE
_________________
INDENTURE
SENIOR DEBT SECURITIES
DATED AS OF SEPTEMBER 1, 1995
_________________
__________________________________________________________________________
<PAGE> 2
MCN INVESTMENT CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF SEPTEMBER 1, 1995
<TABLE>
<CAPTION>
TRUST INDENTURE INDENTURE SECTION
ACT SECTION
<S> <C> <C>
Section 310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608, 610
Section 311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
Section 312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701, 702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(c)
Section 313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a), 703(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(b)
Section 314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c)
(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(a), 601(c)
(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c)
(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514
Section 316 (a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 502, 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
Section 317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1009
Section 318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
</TABLE>
- ---------------
NOTE: THIS RECONCILIATION AND TIE SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE
A PART OF THIS INDENTURE.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
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----
<S> <C>
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Bankruptcy Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Capitalized Lease Obligation . . . . . . . . . . . . . . . . . . . . . . . . . 3
Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request or Company Order . . . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Custodian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Dollars and $ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Holder or Securityholder . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
MCN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . . . . 6
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Project Finance Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . 7
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
</TABLE>
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<TABLE>
<CAPTION>
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----
<S> <C>
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Registered Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Security Register and Security Registrar . . . . . . . . . . . . . . . . . . . 8
Significant Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Support Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Support Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
U.S. Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . 9
Utility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Value . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 102. Compliance Certificates and Opinions. . . . . . . . . . . . . . . . . 10
SECTION 103. Form of Documents Delivered to Trustee. . . . . . . . . . . . . . . . 11
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 105. Notices, Etc., to Trustee, Company and
MCN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 106. Notice to Holders; Waiver. . . . . . . . . . . . . . . . . . . . . . 14
SECTION 107. Conflict with Trust Indenture Act. . . . . . . . . . . . . . . . . . 14
SECTION 108. Effect of Headings and Table of
Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 109. Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 110. Separability Clause. . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 113. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 114. No Recourse Against Others. . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 202. Form of Face of Security . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 203. Form of Reverse of Security . . . . . . . . . . . . . . . . . . . . . 18
SECTION 204. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 205. Securities in Global Form . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 206. CUSIP Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 207. Form of Legend for the Securities in
Global Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
</TABLE>
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ARTICLE THREE
The Securities and the Support Agreement
<TABLE>
<CAPTION>
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<S> <C> <C>
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . 25
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 303. Execution, Authentication, Delivery
and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 305. Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 311. Support Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . 37
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE FIVE
Remedies
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 502. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . 43
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . . . . . . . . . . . . . 44
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . 44
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium and
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . 45
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . 46
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . 46
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . 47
</TABLE>
iii
<PAGE> 6
ARTICLE SIX
The Trustee
<TABLE>
<CAPTION>
PAGE
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<S> <C> <C>
SECTION 601. Certain Duties and Responsibilities of
the Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . 48
SECTION 604. Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . 50
SECTION 608. Disqualification; Conflicting Interests . . . . . . . . . . . . . . 51
SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . 51
SECTION 610. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . 53
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 613. Preferential Collection of Claims
Against Company . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 614. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . 55
ARTICLE SEVEN
Holders' Lists And Reports By Trustee And Company
SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 702. Preservation of Information;
Communications to Holders . . . . . . . . . . . . . . . . . . . . 57
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE EIGHT
Consolidation, Merger, Lease, Sale or Transfer
SECTION 801. When Company and MCN May Merge, Etc. . . . . . . . . . . . . . . . . 60
SECTION 802. Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 803. Successor Corporation Substituted . . . . . . . . . . . . . . . . . 61
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent
of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
</TABLE>
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<S> <C> <C>
SECTION 902. Supplemental Indentures with Consent
of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . 64
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . 65
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . 65
SECTION 906. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE TEN
Covenants
SECTION 1001. Payments of Securities . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . 66
SECTION 1003. Corporate Existence . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1004. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . 67
SECTION 1005. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1006. Compliance Certificates . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1007. Commission Reports . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1008. Waiver of Stay, Extension or Usury Laws . . . . . . . . . . . . . . . 69
SECTION 1009. Money for Securities Payments to Be
Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 1010. Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1011. Limitation on Sale and Leaseback
Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1012. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1013. Support Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . 74
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . 74
SECTION 1103. Selection by Trustee of Securities
to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . 76
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . 76
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . 77
ARTICLE TWELVE
Sinking Funds
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 1202. Satisfaction of Sinking Fund Payments
with Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 1203. Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
</TABLE>
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<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
SECTION 1301. Applicability of Article; Company's
Option to Effect Defeasance or
Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 1302. Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 1303. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 1304. Conditions to Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 1305. Deposited Money and Government
Obligations To Be Held In Trust . . . . . . . . . . . . . . . . . . 82
ARTICLE FOURTEEN
Miscellaneous
SECTION 1401. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
</TABLE>
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<PAGE> 9
INDENTURE, dated as of September 1, 1995, between MCN INVESTMENT
CORPORATION, a corporation duly organized and existing under the laws of the
State of Michigan (herein called the "COMPANY"), having its principal office at
150 West Jefferson Ave., Suite 1800, Detroit, Michigan 48226, and NBD Bank, as
Trustee (herein called the "TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"SECURITIES"), to be issued in one or more series as in this Indenture
provided.
The Company and MCN Corporation, a Michigan corporation and the
parent of the Company ("MCN"), have entered into a Support Agreement, dated as
of September 1, 1995 (as such Support Agreement may be hereafter amended,
modified or supplemented from time to time in accordance with its terms and the
provisions of this Indenture, the "Support Agreement"), a copy of which is
attached as Exhibit A hereto, pursuant to which MCN has agreed to ensure the
timely payment of principal of and premium, if any, and interest on Debt (as
defined in the Support Agreement) and to comply with all covenants and other
terms of this Indenture; provided, that, no holder of such Debt shall have
recourse against the stock or assets of Michigan Consolidated Gas Company, a
Michigan corporation ("MichCon"), or any interest of the Company or MCN
therein.
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 thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of
series thereof, 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;
<PAGE> 10
(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 them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(4) the word "INCLUDING" (and with correlative meaning "INCLUDE")
means including, without limiting the generality of, any description
preceding such term;
(5) 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; and
(6) the word "or" is always used inclusively (for example, the
phrase "A or B" means "A or B or both," not "either A or B but not both").
Certain terms, used principally in Article Six, are defined in that
Article.
"ACT," when used with respect to any Holder, has the meaning
specified in Section 104.
"AFFILIATE" of any specified Person means any other Person 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 to
act on behalf of the Trustee to authenticate Securities.
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"BOARD OF DIRECTORS" means the board of directors of the Company or
MCN, as the case may be; provided, however, that when the context refers to
actions or resolutions of the Board of Directors, then the term "Board of
Directors" shall also mean any duly authorized committee of the Board of
Directors of the Company or MCN, as the case may be or Officer authorized to
act with respect to any particular matter to exercise the power of the Board of
Directors of the Company or MCN, as the case may be.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the
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<PAGE> 11
Company or MCN, as the case may be 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, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or obligated
by law or regulation to close.
"CAPITALIZED LEASE OBLIGATION" means an obligation under a lease that
is required to be capitalized for financial reporting purposes in accordance
with GAAP, and the amount of Indebtedness represented by such obligation shall
be the capitalized amount of such obligations determined in accordance with
such principles.
"CAPITAL STOCK" of any Person shall mean any and all shares,
interests, participations or other equivalents of or interests in (however
designated) equity of such Person, including any preferred stock, but excluding
any debt securities convertible into such equity.
"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.
"COMMON DEPOSITARY" has the meaning specified in Section 304.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"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,
its Vice Chairman of the Board, its Chief Financial Officer or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Controller, an
Assistant Controller, its Secretary or an Assistant Secretary, and delivered to
the Trustee.
"CORPORATE TRUST OFFICE" means the office of the Trustee in Detroit,
Michigan at which at any particular time its corporate trust business shall be
principally administered, which office at the date hereof is located at 611
Woodward Avenue, 11th Floor-North, Detroit, MI 48226.
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<PAGE> 12
"COVENANT DEFEASANCE" has the meaning specified in Section 1303.
"CUSTODIAN" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"DEFAULT" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DEFEASANCE" has the meaning specified in Section 1302.
"DOLLARS" and "$" means lawful money of the United States of America.
"EVENT OF DEFAULT" has the meaning specified in Section 501.
"EXCHANGE ACT" means the Securities and Exchange Act of 1934, as
amended from time to time, and the rules and regulations promulgated
thereunder.
"HOLDER" or "SECURITYHOLDER" means a Person in whose name a Security
is registered in the Security Register.
"INDEBTEDNESS" of any Person means, without duplication, (i) the
principal of and premium (if any) in respect of (A) indebtedness of such Person
for money borrowed and (B) indebtedness evidenced by notes, debentures, bonds
or other similar instruments for the payment of which such Person is
responsible or liable; (ii) all Capitalized Lease Obligations of such Person;
(iii) all obligations of such Person issued or assumed as the deferred purchase
price of property, all conditional sale obligations and all obligations under
any title retention agreement (but excluding trade accounts payable arising in
the ordinary course of business); (iv) all obligations of such Person for the
reimbursement of any obligor on any letter of credit, banker's acceptance or
similar credit transaction (other than obligations with respect to letters of
credit securing obligations (other than obligations described in (i) through
(iii) above) entered into in the ordinary course of business of such Person to
the extent such letters of credit are not drawn upon or, if and to the extent
drawn upon, such drawing is reimbursed no later than the third Business Day
following receipt by such Person of a demand for reimbursement following
payment on the letter of credit); (v) all obligations of the type referred to
in clauses (i) through (iv) of other Persons and all dividends of other Persons
for the payment of which, in either case, such Person is responsible or liable
as obligor, guarantor or otherwise; and (vi) all obligations of the type
referred to in clauses (i) through (v) of other Persons secured by any Lien on
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<PAGE> 13
any property or asset of such Person (whether or not such obligation is assumed
by such Person), the amount of such obligation being deemed to be the lesser of
the value of such property or assets or the amount of the obligation so
secured.
"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
and shall include the terms of particular series of Securities established as
contemplated by Section 301.
"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.
"INTEREST PAYMENT DATE," when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"LIEN," means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, capitalized lease or other title retention
agreement).
"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 or by
declaration of acceleration, call for redemption or otherwise.
"MCN" means the Person named as "MCN" in the second recital of this
Indenture until a successor corporation shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "MCN" shall mean such
successor corporation.
"OFFICER" means the Chairman of the Board of Directors, the Vice
Chairman of the Board of Directors, the President, Chief Financial Officer, any
Vice President, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary or any Assistant Secretary of the Company or MCN, as the case may be.
"OFFICER'S CERTIFICATE" means a certificate signed by an Officer and
delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
an employee of or counsel for the Company or MCN, as the case may be, and who
shall be reasonably acceptable to the Trustee.
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<PAGE> 14
"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.
"OUTSTANDING," when used with respect to Securities or Securities of
any series, means, as of the date of determination, all such Securities
theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, 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; 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;
(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 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; and
(iv) Securities which have been defeased pursuant to Section 1302;
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, (a) the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding for such purposes shall be that portion of the principal amount
thereof that could be declared to be due and payable upon the occurrence of an
Event of Default and the continuation thereof pursuant to the terms of such
Original Issue Discount Security as of the date of such determination and (b)
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, only Securities which the Trustee knows
to be so owned shall be so disregarded. Securities so owned which have been
pledged in good
-6-
<PAGE> 15
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 authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company. The Company may act as Paying Agent with respect to any
Securities issued hereunder.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"PLACE OF PAYMENT," when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"PROJECT FINANCE INDEBTEDNESS" means Indebtedness of a Subsidiary
(other than a Utility and other than the Company) secured by a Lien on any
property, acquired, constructed or improved by such Subsidiary after the date
of this Indenture which Lien is created or assumed contemporaneously with, or
within 120 days after, such acquisition or completion of such construction or
improvement, or within six months thereafter pursuant to a firm commitment for
financing arranged with a lender or investor within such 120-day period, to
secure or provide for the payment of all or any part of the purchase price of
such property or the cost of such construction or improvement or on any
property existing at the time of acquisition thereof; provided that such a Lien
shall not apply to any property theretofore owned by any such Subsidiary other
than, in the case of any such construction or improvement, any theretofore
unimproved real property on which the property so constructed or the
improvement is located; and provided further that such Indebtedness, by its
terms, shall limit the recourse of any holder of such Indebtedness (or trustee
on such holder's behalf) in the event of any default in such Indebtedness to
the assets subject to such Liens and the capital stock of the Subsidiary
issuing such Indebtedness. Notwithstanding the foregoing, Project Finance
Indebtedness shall include all Indebtedness that would constitute Project
Finance Indebtedness but for the fact that such Indebtedness was issued prior
to the date of this Indenture and taking into account the fact that the
property subject to the Lien may have been acquired prior to the date of this
Indenture.
"REDEMPTION DATE," when used with respect to any Security of any
series 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 of any
series to be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
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<PAGE> 16
"REGISTERED SECURITY" means any Security issued hereunder and
registered in the Security Register.
"REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"RESPONSIBLE OFFICER," when used with respect to the Trustee, means
any officer of the Trustee in its Corporate Trust Offices 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.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 305.
"SIGNIFICANT SUBSIDIARY" means a Subsidiary or Subsidiaries of MCN
possessing assets (including the assets of its own Subsidiaries but without
regard to MCN or any other Subsidiary) having a book value, determined as of
the most recent past year end, in the aggregate, equal to not less than 10% of
the book value of the aggregate assets of MCN and its Subsidiaries calculated
on a consolidated basis.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest
means a date fixed by the Trustee 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 as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"SUBSIDIARY" of a Person means (i) any corporation more than 50% of
the outstanding securities having ordinary voting power of which shall at the
time be owned or controlled, directly or indirectly, by such Person or by one
or more of its Subsidiaries or by such Person and one or more of its
Subsidiaries, or (ii) any partnership, association, joint venture or similar
business organization more than 50% of the ownership interests having ordinary
voting power of which shall at the time be so owned or controlled. Unless
otherwise expressly provided, all references herein to a "Subsidiary" shall
mean a Subsidiary of the Company or MCN.
"SUPPORT AGREEMENT" has the meaning stated in the second recital of this
Indenture.
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<PAGE> 17
"SUPPORT OBLIGATIONS" means the obligations of MCN under the Support
Agreement.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this Indenture was executed;
provided, however, that in the event that such Act is amended after such date,
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as so amended.
"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.
"U.S. DEPOSITARY" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more
permanent 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 until a successor U.S. Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter "U.S.
Depositary" shall mean or include each Person who is then a U.S. Depositary
hereunder, and if at any time there is more than one such Person, "U.S.
Depositary" shall mean the U.S. Depositary with respect to the Securities of
that series.
"U.S. GOVERNMENT OBLIGATIONS" means securities which are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America the timely payment of which is unconditionally guaranteed by the
full faith and credit of the United States of America which, in either case,
are not callable or redeemable at the option of the issuer thereof or otherwise
subject to prepayment, and shall also include a depository receipt issued by a
New York Clearing House bank or trust company as custodian with respect to any
such U.S. Government Obligation or a specific payment or interest on or
principal of any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as
required by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depository receipt or from any amount
held by the custodian in respect of the U.S. Government Obligation or the
specific payment of interest on or principal of the U.S. Government Obligation
evidenced by such depository receipt.
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<PAGE> 18
"UTILITY" shall mean any Subsidiary of MCN or the Company engaged in
the business of distributing natural gas at retail.
"VALUE" means, with respect to a Sale and Leaseback Transaction, as
of any particular time, the amount equal to the greater of (i) the net proceeds
of the sale and transfer of the real property leased pursuant to such Sale and
Leaseback Transaction or (ii) the fair market value, in the good faith opinion
of the Board of Directors of the Company or MCN, as the case may be, of such
real property at the time of entering into such Sale and Leaseback transaction,
in either case divided first by the number of full years of the term of the
lease and then multiplied by the number of full years of such term remaining at
the time of determination, without regard to any renewal or extension options
contained in the lease.
"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".
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company or MCN, as the case
may be, to the Trustee to take any action under any provision of this
Indenture, other than as action permitted by Sections 205 and 704 hereof, the
Company or MCN, as the case may be, shall furnish to the Trustee an Officer's
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, 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:
a. a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
b. 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;
c. a statement that, in the opinion of each such
individual, he has made such examination or
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<PAGE> 19
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
d. a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
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 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 or MCN, as the case may be, stating that the
information with respect to such factual matters is in the possession of the
Company or MCN, as the case may be, 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.
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 agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are received
by the Trustee and, where it is hereby expressly required, to the Company.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "ACT" of the Holders signing
such instrument or
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<PAGE> 20
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 601) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
(b) Without limiting the generality of this Section 104, unless
otherwise provided in or pursuant to this Indenture, 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 or pursuant to
this Indenture to be made, given or taken by Holders, and a U.S. Depositary
that is a Holder of a global Security may give its proxy or proxies to the U.S.
Depositary's participants or the beneficial owners of interests in any such
global Security, as the case may be, through such U.S. Depositary's standing
instructions and customary practices.
(c) 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.
(d) The ownership of Registered Securities shall be proved by the
Security Register.
(e) 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.
(f) Subject to the next succeeding paragraph, if the Company shall
solicit from the Holders any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its option, by or pursuant to
a Board Resolution, fix in advance a record date for the determination of
Holders 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
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<PAGE> 21
record date, but only the Holders 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.
(g) The Company shall fix a record date for the purpose of determining
the Persons who are beneficial owners of interests in any permanent global
Security held by a U.S. Depositary and who are 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 or pursuant to 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 90 days after such
record date.
SECTION 105. Notices, Etc., to Trustee, Company and MCN.
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,
a. the Trustee by any Holder or by the Company or MCN shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee and received by the Trustee at its
Corporate Trust Office, or
b. 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 Indenture, attention: Secretary, or at any
other address previously furnished in writing to the Trustee by the
Company.
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<PAGE> 22
SECTION 106. Notice to Holders; Waiver.
Where this Indenture or any Security provides for notice to Holders
of any event, such notice shall be deemed sufficiently given (unless otherwise
herein or in such Security expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his
address 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. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders or the validity of the proceedings to which such notice relates.
Where this Indenture or any Security 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 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.
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 by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
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 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or shall be
excluded, as the case may be.
SECTION 108. 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.
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<PAGE> 23
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and
MCN shall bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities 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 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed
in accordance with the laws (other than the choice of law provisions) of the
State of New York.
SECTION 113. Legal Holidays.
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, then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day or on such other day as may be set out in the Officer's
Certificate pursuant to Section 301 at such Place of Payment with the same
force and effect as if made on the Interest Payment Date or Redemption Date, or
at the Stated Maturity, provided that no interest shall accrue for the period
from and after such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be.
SECTION 114. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the
Company or MCN shall not have any liability for any obligations of the Company
or MCN, as the case may be, under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Securityholder, by accepting a Security, waives and releases
all such liability. Such waivers and releases are part of the consideration
for the issuance of the Securities.
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<PAGE> 24
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to 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, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article or Section 614.
The definitive Securities shall be photocopied, printed,
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.
SECTION 202. Form of Face of Security.
[If the Security is an Original Issue Discount Security, insert--FOR
PURPOSES OF SECTION 1272 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), THE AMOUNT OF ORIGINAL ISSUE DISCOUNT (AS DEFINED IN SECTION
1273(a)(1) OF THE CODE AND TREASURY REGULATION SECTION 1.1273-1(a) WITH RESPECT
TO THIS SECURITY IS ________, THE ISSUE PRICE (AS DEFINED IN TREASURY
REGULATION SECTION 1.1273-2) OF THIS SECURITY IS __________,THE ISSUE DATE (AS
DEFINED IN SECTION 1275(a)(2) OF THE CODE AND TREASURY REGULATION SECTION
1.1273-2) OF THIS SECURITY IS _______ AND THE YIELD TO MATURITY OF THIS
SECURITY IS ________.
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<PAGE> 25
MCN INVESTMENT CORPORATION
.........................
No. _______
[$]________
MCN INVESTMENT CORPORATION, a corporation duly organized and
existing under the laws of Michigan (herein called the "Company," which term
includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to _____________________, or
registered assigns, the principal sum of ____________________ [Dollars] on
__________________________ [If the Security is to bear interest prior to
Maturity, insert--, and to pay interest thereon from _______________________ or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, [semi-annually] [quarterly] [monthly] on _______ and
________ in each year, commencing _____________________, at the rate of _____%
per annum, until the principal hereof is paid or made available for payment [If
applicable insert--, and (to the extent that the payment of such interest
shall be legally enforceable) at the rate of _____% per annum on any overdue
principal and premium and on any overdue installment of interest]. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest, which
shall be the ____ of _____ (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders
of Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert--The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of ___% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of
such default in payment to the date payment of
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<PAGE> 26
such principal has been made or duly provided for. Interest on any overdue
principal shall be payable on demand. Any such interest on any overdue
principal that is not so paid on demand shall bear interest at the rate of
____% per annum (to the extent that the payment of such interest shall be
legally enforceable), which shall accrue from the date of such demand for
payment to the date payment of such interest has been made or duly provided
for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if
applicable, insert--any such] interest on this Security will be made at the
office or agency of the Company maintained for that purpose in _________, in
Dollars [if applicable, insert--; provided, however, that at the option of the
Company payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register].
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
MCN INVESTMENT CORPORATION
By____________________________
Attest:
_________________________ [SEAL]
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be issued in one
or more series under an Indenture, dated as of ______________, 1995 (herein
called the "Indenture"), between the Company and
_______________________________________, as Trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture), to
which Indenture and
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<PAGE> 27
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered.
This Security is one of the series designated on the face hereof [, limited in
aggregate principal amount to $______].
[If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 nor more than 45 days' notice by
first class mail, [if applicable, insert--(1) on _______ in any year commencing
with the year _______ and ending with the year _____ through operation of the
sinking fund for this series at a Redemption Price equal to 100% of the
principal amount, and (2)] at any time [on or after __________, _________], as
a whole or in part, at the election of the Company, at the following Redemption
Prices (expressed as percentages of the principal amount):
If redeemed [on or before _______________, ____%, and if
redeemed] during the 12-month period beginning _____________ of the years
indicated,
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued and unpaid
interest to the Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders
of such Securities, or one or more Predecessor Securities, of record at the
close of business on the relevant Record Dates referred to on the face hereof,
all as provided in the Indenture.]
[If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 nor more than 45 days' notice by
first class mail, (1) on _____________ in any year commencing with the year
___________ and ending with the year ______ through operation of the sinking
fund for this series at the Redemption Prices for redemption through operation
of the sinking fund (expressed as percentages of the principal amount) set
forth in the table below, and (2) at any time [on or after ________], as a
whole or in part, at the election of the Company, at the Redemption Prices for
redemption otherwise than through
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<PAGE> 28
operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below:
If redeemed during a 12-month period beginning
_________________ of the years indicated,
<TABLE>
<CAPTION>
Redemption Price
For Redemption Redemption Price for
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
- ---- ----------------- ----------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to __% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued and unpaid interest to the Redemption
Date, but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
_______, redeem any Securities of this series as contemplated by [clause (2)
of] the preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than __% per annum.]
[The sinking fund for this series provides for the redemption
on _______ in each year beginning with the year _____ and ending with the year
_______ of [not less than] $____________ [("mandatory sinking fund") and not
more than $____________] aggregate principal amount of Securities of this
series.] [Securities of this series acquired or redeemed by the Company
otherwise than through [mandatory] sinking fund payments may be credited
against subsequent [mandatory] sinking fund payments otherwise required to be
made--in the [inverse] order in which they become due.]
[In the event of redemption of this Security in part only, a
new Security or Securities of this series for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.]
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<PAGE> 29
[If the Security is not an Original Issue Discount Security,
insert -- If any Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.] [If the Security is an Original Issue Discount Security,
insert -- If an Event of Default with respect to Securities of this series
shall occur and be continuing, an amount of principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal--insert formula for
determining the amount.] Upon payment (i) of the amount of principal so
declared due and payable and (ii) of interest on any overdue principal and
overdue interest (in each case to the extent that the payment of such interest
shall be legally enforceable), all of the Company's obligations in respect of
the payment of the principal of and interest, if any, on the Securities of this
series shall terminate.
[This Security is subject to Defeasance as described in the
Indenture.]
The Indenture may be modified by the Company and the Trustee
without consent of any Holder with respect to certain matters as described in
the Indenture. In addition, the Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of the rights and
obligations of the Company and MCN and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the
Company, MCN and the Trustee with the consent of the Holders of a majority in
principal amount of the Securities at the time Outstanding of each series to be
affected. The Indenture also contains provisions permitting the Holders of a
majority in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Company or MCN with certain provisions of the Indenture
and certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall bind such Holder and all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Security at the times, place and rate,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this
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<PAGE> 30
Security for registration of transfer at the office or agency of the Company in
any place where the principal of (and premium, if any) and interest on this
Security are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly
executed by the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities of this series, of authorized
denominations and for the same Stated Maturity and aggregate principal amount,
will be issued to the designated transferee or transferees.
The Securities of this series 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, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Indenture imposes certain limitations on the ability of
the Company and MCN to, among other things, merge or consolidate with any other
Person or sell, assign, transfer or lease all or substantially all of its
properties or assets [If other covenants are applicable pursuant to the
provisions of Section 301, insert here]. All such covenants and limitations
are subject to a number of important qualifications and exceptions. The
Company and MCN must report periodically to the Trustee on compliance with the
covenants in the Indenture.
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the Company under
this Security or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each Holder, by accepting a
Security, waives and releases all such liability. The waiver and release are
part of the consideration for the issuance of this Security.
[If applicable, insert -- Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures
("CUSIP"), the Company has caused CUSIP numbers to be printed on the Securities
of this series as a convenience to the
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<PAGE> 31
Holders of the Securities of this series. No representation is made as to the
correctness or accuracy of such numbers as printed on the Securities of this
series and reliance may be placed only on the other identification numbers
printed hereon.]
All capitalized terms used in this Security without definition which
are defined in the Indenture shall have the meanings assigned to them in the
Indenture.
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and
transfer this Security to
_________________________________________________________________
(Insert assignee's social security or tax I.D. number)
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Dated: _______________ Your Signature:__________________________
(Sign exactly as your name
appears on the other side
of this Security)
Signature Guaranty: ____________________________________
[Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Transfer
Agent, which requirements will include membership or
participation in STAMP or such other "signature
guarantee program" as may be determined by the Transfer
Agent in addition to, or in substitution for, STAMP, all
in accordance with the Exchange Act.]
Social Security Number or Taxpayer Identification
Number:__________________________________________
SECTION 204. Form of Trustee's Certificate of Authentication.
Dated: ________________
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<PAGE> 32
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
___________________________________
As Trustee
By ________________________________
Authorized Signatory
SECTION 205. Securities in Global Form.
If Securities of a series are issuable in global form, as contemplated
by Section 301, then, notwithstanding the provisions of Section 302, 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 in such
manner and upon instructions given by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 303 or Section 304. Subject to the provisions of Section
303 and, if applicable, Section 304, the Trustee shall deliver and redeliver
any Security in permanent global form in the manner and upon instructions given
by the Person or Persons specified therein or in the applicable Company Order.
If a Company Order pursuant to Section 303 or 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 Section 309 shall apply to any Security represented
by a Security in global form if such Security was never issued and sold by the
Company and the Company delivers to the Trustee 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) with regard to the reduction
in the principal amount of Securities represented thereby.
Notwithstanding the provisions of Sections 201 and 307, unless
otherwise specified as contemplated by Section 301, payment of principal of,
premium, if any, and interest on any Security in permanent global form shall be
made to the Person or Persons specified therein.
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<PAGE> 33
Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat a Person as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security as shall be
specified in a written statement of the Holder of such permanent global
Security.
SECTION 206. CUSIP Number
The Company in issuing Securities of any series may use a "CUSIP"
number, and, if so, the Trustee may use the CUSIP number in notices of
redemption or exchange as a convenience to Holders of such series; provided,
that any such notice may state that no representation is made as to the
correctness or accuracy of the CUSIP number printed on the notice or on the
Securities of such series, 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 number of any series of
Securities.
SECTION 207. Form of Legend for the Securities in Global Form.
Any Security in global form authenticated and delivered hereunder shall
bear a legend in substantially the following form:
"This Security is in global form within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Common Depositary or
a U.S. Depositary. Unless and until it is exchanged in whole or in part for
Securities in certificated form, this Security may not be transferred except as
a whole by the Common Depositary or a U.S. Depositary or by a nominee of the
Common Depositary or a nominee of the U.S. Depositary as the case may be."
ARTICLE THREE
THE SECURITIES AND THE SUPPORT AGREEMENT
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 from time to time in one or more series.
There shall be established in or pursuant to a Board Resolution, and set forth
in an Officer's Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
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(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from all other
Securities);
(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 Sections 304, 305,
306, 906 or 1107);
(3) whether any Securities of the series are to be
issuable in permanent global form with or without coupons and, if so,
(i) 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, and (ii) the name of the
Common Depositary (as defined in Section 304) or the U.S. Depositary,
as the case may be, with respect to any global Security;
(4) the date or dates on which the principal of the
Securities of the series is payable;
(5) the rate or rates at which the Securities of the
series shall bear interest, if any, or the method by which such rate
or rates shall be determined, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such
interest shall be payable and the Regular Record Date for the interest
payable on any Interest Payment Date and, if applicable to such series
of Securities, the basis points and United States Treasury rate(s) and
any other rates to be used in calculating the reset rate;
(6) the place or places where the principal of (and
premium, if any) and interest on Securities of the series shall be
payable;
(7) whether Securities of such series may be redeemed,
and if so, 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,
pursuant to any sinking fund or otherwise;
(8) the obligation, if any, of the Company 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
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series shall be
redeemed or purchased, in
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whole or in part, pursuant to such obligation, and, where applicable,
the obligation of the Company to select the Securities to be redeemed;
(9) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which Securities of
the series shall be issuable;
(10) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502;
(11) additional Events of Default with respect to
Securities of the series, if any, other than those set forth herein;
(12) if either or both of Section 1302 and Section 1303
shall be inapplicable to the Securities of the series (provided that
if no such inapplicability shall be specified, then both Section 1302
and Section 1303 shall be applicable to the Securities of the series);
(13) if other than U.S. dollars, the currency or
currencies or units based on or related to currencies in which the
Securities of such series shall be denominated and in which payments
or principal of, and any premium and interest on, such Securities
shall or may be payable;
(14) additional covenants of the Company or MCN with
respect to Securities of the series, if any, other than those set
forth herein;
(15) if other than the Trustee, the identity of the
Registrar and any Paying Agent; and
(16) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to such Board Resolution and set forth in such Officer's
Certificate or in any such Indenture supplemental hereto.
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 shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officer's Certificate setting forth, or providing the manner for determining,
the terms of the Securities of such series.
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SECTION 302. Denominations.
The Securities of each series shall be issuable in registered
form without coupons in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such provisions with
respect to the Securities of any series, the Securities of such series shall be
issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its Vice Chairman of the Board, its President, one
of its Vice Presidents or its Treasurer, under its corporate seal reproduced
thereon 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. The seal of the Company may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted or otherwise reproduced on the
Securities. Typographical and other minor errors or defects in any such
reproduction of the seal or any such signature shall not affect the validity or
enforceability of any Security that has been duly authenticated and delivered
by the Trustee.
Securities 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 did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and make such
Securities available for delivery; provided, however, that, with respect to
Securities of a series constituting a medium term note program, the Trustee
shall, authenticate and deliver Securities of such series for original issue
from time to time in the aggregate principal amount established for such series
pursuant to such procedures acceptable to the Trustee and to such recipients as
may be specified from time to time by such Company Order. The maturity dates,
original issue dates, interest rates and any other terms of the Securities of
such series shall be determined by or pursuant to such Company Order and
procedures. If provided for in such procedures, such Company Order may
authorize authentication and delivery pursuant to oral instructions from the
Company or its duly authorized agent, which instructions shall be promptly
confirmed in writing. If the form or terms of the Securities of the series
have been established in or pursuant to one or more Board Resolutions or
indentures
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supplemental hereto as permitted by Sections 201 and 301, in authenticating
such Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to Sections 315(a) through (d) of the Trust Indenture
Act) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established
by or pursuant to Board Resolution or by an indenture supplemental
hereto as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established
by or pursuant to Board Resolution or by an indenture supplemental
hereto as permitted by Section 301, that such terms have been
established in conformity with the provisions of this Indenture;
(c) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company,
entitled to the benefits provided by the Support Agreement and the
Indenture, enforceable in accordance with their terms, except to the
extent enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws
affecting the enforcement of creditors' rights generally and by the
effect of general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law); and
(d) that no consent, approval, authorization, order,
registration or qualification of or with any court or any governmental
agency or body having jurisdiction over the Company is required for
the execution and delivery of such Securities by the Company, except
such as have been obtained (except that no opinion need be expressed
as to state securities or Blue Sky laws).
With respect to each issuance of Securities of a series constituting a
medium term note program, the Trustee may conclusively rely on the documents
and opinion delivered in connection with the initial issuance thereof pursuant
to Sections 201 and 301 and this Section 303, as applicable (unless revoked by
superseding comparable documents or opinions), as to the authorization of the
Board of Directors of any Securities delivered hereunder, the form thereof and
the legality, validity, binding effect and enforceability thereof.
With respect to Securities of a series constituting a medium term note
program, if the form and general terms of the
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Securities of such series have been established by or pursuant to one or more
Board Resolutions or by an indenture supplemental hereto, as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Sections
315(a) through 315(d) of the Trust Indenture Act) shall be fully protected in
relying upon, in addition to the foregoing documents and Opinion of Counsel, or
in lieu of clause (c) above, an Opinion of Counsel stating that the Securities
have been duly authorized by the Company and, when duly executed by the Company
and completed and authenticated by the Trustee in accordance with the Indenture
and issued, delivered and paid for in accordance with any applicable
distribution agreement, will have been duly issued under the Indenture and will
constitute valid and legally binding obligations of the Company entitled to the
benefits provided by the Support Agreement and the Indenture, enforceable in
accordance with their respective terms, except to the extent that the
enforcement of such obligations may be subject to bankruptcy laws or insolvency
laws or other similar laws and to the exercise of judicial discretion in
accordance with general principles of equity.
If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonable acceptable to the Trustee, or in the written opinion of
counsel to the Trustee (which counsel may be an employee of the Trustee) such
authentication may not lawfully be made or would involve the Trustee in
personal liability.
Notwithstanding the provisions of Section 301 and of the immediately
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officer's
Certificate otherwise required pursuant to Section 301 or the Company Order and
Opinion of Counsel otherwise required pursuant to the immediately preceding
paragraph at or prior to the time of authentication of each Security of such
series if such documents are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued.
If the Company shall establish pursuant to Section 301 that the
Securities of a series are to be issued in the form of one or more global
Securities, then the Company shall execute and the Trustee shall, in accordance
with this Section and the Company Order with respect to the authentication and
delivery of such series, authenticate and deliver one or more global Securities
that (i) shall be in an aggregate amount equal to the aggregate principal
amount specified in such Company Order, (ii) shall be registered in the name of
the Common Depositary or U.S. Depositary, as the case may be, therefor or its
nominee, and
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(iii) shall be made available for delivery by the Trustee to such depositary or
pursuant to such depositary's instruction.
Each depositary designated pursuant to Section 301 must, at the time of
its designation and at all times while it serves as depositary, be a clearing
agency registered under the Exchange Act and any other applicable statute or
regulation.
Unless otherwise provided for in the form of Security, each Security
shall be dated the date of its authentication.
No Security 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 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 and is entitled to
the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
make available for delivery, 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 and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of
such Securities.
In the case of Securities of any series, such temporary Securities may
be in global form, representing all or a portion of the Outstanding Securities
of such series.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of Section 305), 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 in a Place of Payment for that series, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series, the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a like
principal amount of definitive Securities of the same series of authorized
denominations and of like tenor. Until so exchanged, the temporary Securities
of any series shall in all respects be
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entitled to the same benefits under this Indenture as definitive Securities of
such series.
If temporary Securities of any series are issued in global
form, any such temporary global Security shall, unless otherwise provided
therein, be delivered to the office of a depositary or common depositary (the
"COMMON DEPOSITARY") for credit to the respective accounts of the beneficial
owners of such Securities (or to such other accounts as they may direct).
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and in
any other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "SECURITY REGISTER") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and of registration of transfers of
Securities. The Trustee is hereby appointed "SECURITY REGISTRAR" for the
purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security of
any series at the office or agency of the Company in Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and make
available for delivery, in the name of the designated transferee or
transferees, one or more new Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and Stated Maturity.
At the option of the Holder, Securities of any series may be
exchanged for other 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 such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and make available for delivery,
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 and as subject to the
conditions contemplated by Section 301, then without unnecessary delay but in
any event not later than the earliest date on which such interests may be so
exchanged, the Company shall deliver to the Trustee definitive Securities of
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that series 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
Securities shall be surrendered from time to time by the Common Depositary or
the U.S. Depositary, as the case may be, and in accordance with instructions
given to the Trustee and the Common Depositary or the U.S. Depositary, as the
case may be (which instructions shall be in writing but need not comply with
Section 102 or be accompanied by an Opinion of Counsel), as shall be specified
in the Company Order with respect thereto to the Trustee, as the Company's
agent for such purpose, to be exchanged, in whole or in part, for definitive
Securities of the same series without charge. The Trustee shall authenticate
and make available for delivery, in exchange for each portion of such
surrendered permanent global Security, a like 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 shall be in the form of the Securities of such series; provided, however,
that no such exchanges may occur during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing. Promptly following any
such exchange in part, such permanent global Security shall be returned by the
Trustee to the Common Depositary or the U.S. Depositary, as the case may be, or
such other Common Depositary or U.S. Depositary referred to above in accordance
with the written instructions of the Company referred to above. If a Security
in the form specified for such series 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 before the opening of business at
such office or agency on the related proposed date for payment of interest or
Defaulted Interest, as the case may be, such interest or Defaulted Interest
will not be payable on such Interest Payment Date or proposed date for payment,
as the case may be, in respect of such Security in the form specified for such
series, 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 Security presented or surrendered for registration of
transfer or for exchange shall (if so required by
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the Company or the Trustee) be duly endorsed, or be accompanied by 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.
Unless otherwise provided in the Securities to be transferred
or exchanged, 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.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
1103 and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee 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.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security 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 that such Security has been acquired by a
bona fide purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
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.
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) connected therewith.
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Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series 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.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any 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.
Any interest on any 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 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, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security
of such series and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee 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 Section 307
provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the
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proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid, to each
Holder of Securities of such series at his address as it appears in
the Security Register, not less than 10 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 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).
(2) The Company may make payment of any Defaulted
Interest on the 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 of the proposed payment pursuant to this Section 307, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, 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 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 Security is registered as the owner of
such Security for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Section 307) interest on such Security and for
all other purposes whatsoever, whether or not such Security 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.
None of the Company, the Trustee or any agent of the Company
or the Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interest of a Security in global form, or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interest.
Notwithstanding the foregoing, with respect to any Security in global form,
nothing herein shall prevent the Company or the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy
or other authorization furnished by any Common Depositary (or its nominee), as
a Holder, with respect to such Security in global form or impair, as between
such Common Depositary and owners of beneficial interests in such Security in
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global form, the operation of customary practices governing the exercise of the
right of such Common Depositary (or its nominee) as holder of such Security in
global form.
SECTION 309. Cancellation.
All Securities 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 Trustee, be
delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. 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 shall be held by the Trustee and may be destroyed (and, if so
destroyed, certification of their destruction shall be delivered to the
Company, unless, by a Company Order, the Company shall direct that cancelled
Securities be returned to it).
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 year of twelve 30-day months.
SECTION 311. Support Agreement.
Holders of Securities and the Trustee are entitled to the
benefits of the Support Agreement available to Lenders (as defined in the
Support Agreement), it being understood and agreed that the Securities
constitute Debt (as defined in the Support Agreement) for the purposes of the
Support Agreement.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as
to any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for or in the form of Security for such series), when
the Trustee, upon Company Request and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(1) either
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(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306 and (ii) Securities for whose
payment money has 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 1009) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
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 with
the Trustee as trust funds in trust for the purpose an amount sufficient to pay
and discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee 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 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 Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for herein relating to the satisfaction and discharge of
this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Company to any Authenticating Agent under Section 614 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 1009 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1009, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
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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 whose payment such money has been deposited with or
received by the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"EVENT OF DEFAULT," wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or to 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):
(1) the Company defaults in the payment of interest on
any Security of that series when such interest becomes due and payable and the
default continues for a period of 30 days; or
(2) the Company defaults in the payment of the principal
of (or premium, if any, on) any Security of that series when the same becomes
due and payable at Maturity, upon redemption (including redemptions under
Article Eleven), or otherwise; or
(3) the Company or MCN fails to observe or perform any of
its other covenants, warranties or agreements in the Securities of that series,
this Indenture or the Support Agreement (other than a covenant, agreement or
warranty a default in whose performance or whose breach is elsewhere in this
Section specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of series of Securities other than that
series), and the failure to observe or perform continues for the period and
after the notice specified in the last paragraph of this Section; or
(4) any Event of Default under any series of Securities
issued pursuant to this Indenture or any event of default, as defined in any
other indenture, mortgage, indenture, or instrument under which there may be
issued, or by which there may be secured or evidenced, any Indebtedness of the
Company, MCN or a Subsidiary of either MCN or the Company (whether such
Indebtedness now exists or shall hereafter be created or incurred), but
excluding Project Finance Indebtedness, shall occur and shall consist of
default in the payment of such Indebtedness at the maturity thereof (after
giving effect to any
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applicable grace period) or shall result in Indebtedness becoming or being
declared due and payable prior to the date on which it would otherwise become
due and payable, and such default in payment is not cured or such acceleration
shall not be rescinded or annulled within 10 days after written notice to the
Company from the Trustee or to the Company and to the Trustee from the Holders
of at least 10% in aggregate principal amount of the Securities of that series
at the time outstanding; provided that it shall not be an Event of Default if
the principal amount of Indebtedness (other than Indebtedness represented by
Securities issued pursuant to this Indenture) which is not paid at maturity or
the maturity of which is accelerated is less than the amount equal to 1% of the
consolidated total assets of MCN (determined as of its most recent fiscal
year-end); provided further, that it shall not be an Event of Default if the
Indebtedness with respect to which such default has occurred is Indebtedness of
Supply Development Group, Inc. or its Subsidiaries and the obligations of MCN
and its Subsidiaries with respect to such Indebtedness (other than Supply
Development Group, Inc. and its Subsidiaries) are no greater than the
obligations of MCN pursuant to the Support Agreement of MCN Corporation made as
of August 23, 1995, as amended on October 4, 1995 (the "Supply Development
Agreement") among MCN, Supply Development Group, Inc. and certain of its
Subsidiaries and does not obligate payments by the obligor under such
agreement with respect to anything other than the payments specified in
Paragraphs 3, 4 and 5 of the Supply Development Agreement (limiting for these
purposes the term "Material Contracts" to the same general type of contracts
for which MCN is obligated to make payments under the Supply Development
Agreement); provided further that if, prior to a declaration of acceleration of
the maturity of the Securities of that series or the entry of judgment in favor
of the Trustee in a suit pursuant to Section 503, such default shall be
remedied or cured by the Company or waived by the holders of such Indebtedness,
then the Event of Default hereunder by reason thereof shall be deemed likewise
to have been thereupon remedied, cured or waived without further action upon
the part of either the Trustee or any of the Holders of the Securities of that
series, and provided further, that, subject to Sections 601 and 602, the
Trustee shall not be charged with knowledge of any such default unless written
notice of such default shall have been given to the Trustee by the Company, by
a holder or an agent of a holder of any such Indebtedness, by the trustee then
acting under any indenture or other instrument under which such default shall
have occurred, or by the Holders of at least five percent in aggregate
principal amount of the Securities of that series at the time outstanding; or
(5) the Company, MCN or a Significant Subsidiary pursuant
to or within the meaning of any Bankruptcy Law (A) commences a voluntary case
or proceeding under any Bankruptcy Law with respect to itself, (B) consents to
the entry of a judgment, decree or order for relief against it in an
involuntary case or proceeding under any Bankruptcy Law, (C) consents to or
acquiesces in the institution of bankruptcy or insolvency proceedings against
it, (D) applies for, consents to or acquiesces in the appointment of or taking
possession by a Custodian in respect of it or for any material part of its
property, (E) makes a general assignment for the benefit of its creditors or
(F) takes any corporate action in furtherance of or to facilitate,
conditionally or otherwise, any of the foregoing; or
(6) (i) a court of competent jurisdiction enters a judgment,
decree or order for relief in respect of the Company, MCN or a Significant
Subsidiary in an involuntary case or proceeding under any Bankruptcy Law which
shall (A) approve as properly filed a petition seeking reorganization,
arrangement, adjustment or composition in respect of the Company, MCN or a
Significant Subsidiary, as the case may be, (B) appoint a
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Custodian of the Company, MCN or a Significant Subsidiary, as the case may be,
or for any material part of its property or (C) order the winding-up or
liquidation of its affairs, and such judgment, decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or (ii) any
bankruptcy or insolvency petition or application is filed, or any bankruptcy or
insolvency proceeding is commenced against the Company, MCN or a Significant
Subsidiary and such petition, application or proceeding is not dismissed within
60 days; or (iii) a warrant of attachment is issued against any material
portion of the property of the Company, MCN or a Significant Subsidiary which
is not released within 60 days of service; or
(7) any other Event of Default provided with respect to
Securities of that series.
A Default under clause (3) above is not an Event of Default until the
Trustee or the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of that series notify the Company of the Default and the
Company does not cure the Default within 60 days after receipt of the notice.
The notice must specify the Default, demand that it be remedied and state that
the notice is a "Notice of Default." When a Default under clause (3) above is
cured within such 60-day period, it ceases.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series (other
than an Event of Default specified in clause (5) or (6) of Section 501) occurs
and is continuing, the Trustee by notice in writing to the Company, or the
Holders of at least 25% in aggregate principal amount of the Outstanding
Securities of that series by notice in writing to the Company and the Trustee,
may declare the unpaid principal of and accrued interest to the date of
acceleration (or, if the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) on all the Outstanding Securities of that series to be
due and payable immediately and, upon any such declaration, the Outstanding
Securities of that series (or specified principal amount) shall become and be
immediately due and payable.
If an Event of Default specified in clause (5) or (6) of Section 501
occurs, all unpaid principal of and accrued interest on the Outstanding
Securities of that series (or specified principal amount) shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder of any Security of that series.
Upon payment of all such principal and interest, all of the Company's
obligations under the Securities of that series and
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(upon payment of the Securities of all series) this Indenture shall terminate,
except obligations under Section 607.
The Holders of a majority in principal amount of the Outstanding
Securities of that series by notice to the Trustee may rescind an acceleration
and its consequences if (i) all existing Events of Default, other than the
nonpayment of the principal and interest of the Securities of that series that
has become due solely by such declaration of acceleration, have been cured or
waived, (ii) to the extent the payment of such interest is lawful, interest on
overdue installments of interest and overdue principal that has become due
otherwise than by such declaration of acceleration have been paid, (iii) the
rescission would not conflict with any judgment or decree of a court of
competent jurisdiction and (iv) all payments due to the Trustee and any
predecessor Trustee under Section 607 have been made.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest on any Security
of any series when such interest becomes 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 of any series at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest 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, at the
rate or rates prescribed therefor in such Securities, and, in addition thereto,
such further amount as shall be sufficient to cover the reasonable 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, MCN (pursuant to its Support Obligations) or any other
obligor upon such Securities and collect the moneys adjudged or decreed to be
payable in the manner provided by law out of the property of the Company, MCN
(subject to the limitations set forth in the Support Agreement) or any other
obligor upon such Securities, wherever situated.
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If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
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 the Support
Agreement or in aid of the exercise of any power granted herein, or to secure
any other proper remedy.
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, MCN or any other obligor upon the
Securities or the property of the Company, MCN 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 or MCN for the payment of 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 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 agent and counsel) and of the Holders allowed in such judicial
proceedings, 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 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,
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 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
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SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture, the Support
Agreement or the Securities may be prosecuted and enforced by the Trustee
without the possession of any of the Securities 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 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 in respect
of the Securities of any series 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, upon
presentation of the Securities in respect of which moneys have been collected
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 607
applicable to such series;
Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities of such
series 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 of such series for principal
(and premium, if any) and interest, respectively; and
Third: To the Company or MCN, as the case may be.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 506. At least fifteen (15) days before such
record date, the Trustee shall mail to each Holder and the Company a notice
that states the record date, the payment date and the amount to be paid.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series 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:
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(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 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;
(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 Holders of Securities
of any series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture or the Support Agreement 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 or the Support Agreement,
except in the manner herein provided and for the equal and ratable benefit of
all Holders of Securities of the affected series.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest on such Security on the Stated Maturity or Maturities
expressed in such Security (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 has instituted any proceeding to enforce
any right or remedy under this Indenture or the Support Agreement 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,
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subject to any determination in such proceeding, the Company, MCN, the Trustee
and the Holders 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 has 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 in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders 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.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities 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 may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or
by the Holders, as the case may be.
SECTION 512. Control by Holders.
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, 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) subject to Section 601, the Trustee need not take any
action which might involve the Trustee in personal liability or be unduly
prejudicial to the Holders not joining therein.
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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 by written notice to the Trustee on
behalf of the Holders of all the Securities of such series waive any Default or
Event of Default with respect to such series and its consequences, except a
Default or Event of Default
(1) in respect of the payment of the principal of (or premium,
if any) or interest on any Security of such series, or
(2) in respect of a covenant or other provision hereof which
under Article Nine 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 or Event of Default shall
cease to exist and shall be deemed to have been cured, for every purpose of this
Indenture and the Securities of such series; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security 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 for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Security on or after the
Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
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ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities of the Trustee.
(a) Except during the continuance of an Event of Default, the
Trustee's duties and responsibilities under this Indenture shall be governed
by Section 315(a) of the Trust Indenture Act.
(b) In case an Event of Default has occurred and is
continuing, and is known to the Trustee, the Trustee shall exercise the
rights and powers vested in it by this Indenture, and shall use the same degree
of care and skill in their exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs.
(c) None of the provisions of Section 315(d) of the Trust
Indenture Act shall be excluded from this Indenture.
SECTION 602. Notice of Defaults.
Within 30 days after the occurrence of any Default or Event
of Default with respect to the Securities of any series, the Trustee shall
give to all Holders of Securities of such series, as their names and
addresses appear in the Security Register, notice of such Default or Event of
Default known to the Trustee, unless such Default or Event of Default shall
have been cured or waived; provided, however, that, except in the case of a
Default or Event of Default in the payment of the principal of (or premium, if
any) or interest on any Security of such series or in the payment of any
sinking fund installment with respect to Securities of such series, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or directors or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
interest of the Holders of Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of the Trust Indenture Act:
(a) the Trustee may 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, 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;
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(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order 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 Officer's Certificate;
(d) the Trustee may consult with counsel and the written 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 pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity to its reasonable satisfaction
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) prior to the occurrence of an Event of Default with respect to
the Securities of any series and after the curing or waiving of all such Events
of Default which may have occurred, 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, approval or other paper or document, or the books and records of the
Company, unless requested in writing to do so by the Holders of a majority in
principal amount of the Outstanding Securities of any series; provided,
however, that if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the making of
such investigation is not, in the opinion of the Trustee, reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such costs, expenses or
liabilities as a condition to so proceeding; the reasonable expense of every
such investigation shall be paid by the Company or, if paid by the Trustee,
shall be repaid by the Company upon demand;
(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; and
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(h) 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 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 604. Not Responsible for Recitals or Issuance of Securities.
The recitals herein and in the Securities, except the Trustee's
certificates of authentication, 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, the Support Agreement or of
the Securities. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 605. 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, subject to
Sections 608 and 613, 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 such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder (including amounts
held by the Trustee as Paying Agent) 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
upon in writing with the Company.
SECTION 607. 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
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(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, damage, claim or expense, including taxes
(other than taxes based upon or determined or measured by the income of
the Trustee), incurred without gross 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.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(5) or Section 501(6), the
expenses (including the reasonable charges and expenses of its counsel) and
the compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section 607 shall survive this Indenture.
SECTION 608. Disqualification; Conflicting Interests.
The Trustee shall be disqualified only where such disqualification is
required by Section 310(b) of the Trust Indenture Act. Nothing shall prevent
the Trustee from filing with the Commission the application referred to in the
second to last paragraph of Section 310(b) of the Trust Indenture Act.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under Section 310(a)(1) of the Trust Indenture Act
having a combined capital and surplus of at least $50,000,000 subject to
supervision or examination by federal or State authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. Neither the Company nor any Person directly
or indirectly controlling, controlled by, or under common control with the
Company may serve as Trustee. 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 610. 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 611.
(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 611 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 Section 310(b) of
the Trust Indenture Act after written request therefor by the
Company or by any Holder 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 609
and shall fail to resign after written request therefor by the
Company or by any such Holder of a Security who has been a bona
fide Holder of a Security for at least six months; 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 a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 315(e) of
the Trust Indenture Act, any Holder 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, 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.
(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
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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 shall comply with the applicable requirements of Section
611. 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 611, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company with respect to such Securities. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder 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, 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 all Holders of Securities of such series as their names and
addresses appear in the Security Register. 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 611. 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
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and deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder.
(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 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 the Trust Indenture Act.
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SECTION 612. 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 authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the
Trust Indenture Act, excluding any creditor relationship listed in Section
311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed
shall be subject to Section 311(a) of the Trust Indenture Act to the extent
indicated therein.
SECTION 614. Appointment of Authenticating Agent.
At any time when any of the Securities remain
Outstanding the Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be authorized to act on
behalf of, and subject to the direction of, the Trustee to authenticate
Securities of such series issued upon exchange, registration of transfer or
partial redemption thereof or pursuant to Section 306, 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.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by federal or State authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said
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supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. 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.
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 an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the 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
Securities 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 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
alternate certificate of authentication in the following form:
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Form of Authenticating Agent's
Certificate of Authentication
Dated:_________________
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
_________________________
As Trustee
By____________________________
As Authenticating Agent
By____________________________
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to
the Trustee:
(a) semi-annually, not later than January 1 and July 1 in each
year, a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders as of the preceding December 15 or June 15, as the
case may be; 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 as of a date not more than 15 days prior to the time
such list is furnished;
provided, however, that so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
SECTION 702. Preservation of Information; Communications to Holders.
(a) 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.
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The Trustee may destroy any list furnished to it as provided in Section 701
upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred
to as "applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
with respect to their rights under this Indenture or under the Securities and
is accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either
(i) afford such applicants access to the
information preserved at the time by the Trustee in accordance with
Section 702(a); or
(ii) inform such applicants as to the
approximate number of Holders whose names and addresses appear in
the information preserved at the time by the Trustee in accordance
with Section 702(a), and as to the approximate cost of mailing to
such Holders the form of proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford such
applicants access to such information, the Trustee shall, upon the written
request of such applicants, mail to each Holder whose name and address appears
in the information preserved at the time by the Trustee in accordance with
Section 702(a) a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interest of the Holders or would be in violation of
applicable law. Such written statement shall specify the basis of such
opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all objections so sustained have been
met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Holders with reasonable promptness after the entry of
such order and the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
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(c) Every Holder of Securities, 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 in accordance with Section 702(b), 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 702(b).
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year
commencing with the year 1995, the Trustee shall transmit by mail to all
Holders of Securities as provided in Section 313(c) of the Trust Indenture Act,
a brief report dated as of May 15, if required by and in compliance with
Section 313(a) of the Trust Indenture Act.
(b) A copy of each such report shall, at the
time of such transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Securities are listed, with the Commission and with the
Company. The Company will notify the Trustee when any Securities are listed on
any stock exchange.
SECTION 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 30 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, 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
prescribed) which MCN may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act.
(2) 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;
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(3) transmit by mail to all Holders, as their
names and addresses appear in the Security Register, (a)
concurrently with furnishing the same to MCN's stockholders, MCN's
annual report to stockholders, containing certified financial
statements, and any other financial reports which MCN generally
furnishes to its stockholders, and (b) within 30 days after the
filing thereof with the Trustee, such summaries of any other
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
(4) furnish to the Trustee, on or before May 1
of each year, a brief certificate from the principal executive
officer, principal financial officer or principal accounting
officer as to his or her knowledge of the Company's compliance with
all conditions and covenants under this Indenture. For purposes of
this paragraph, such compliance shall be determined without regard
to any period of grace or requirement of notice provided under this
Indenture. Such certificate need not comply with Section 102.
ARTICLE EIGHT
CONSOLIDATION, MERGER, LEASE, SALE OR TRANSFER
SECTION 801. When Company and MCN May Merge, Etc.
Neither the Company nor MCN shall consolidate with, or
merge with or into any other corporation (whether or not the Company or MCN, as
the case may be, shall be the surviving corporation), or sell, assign, transfer
or lease all or substantially all of its properties and assets as an entirety
or substantially as an entirety to any Person or group of affiliated Persons,
in one transaction or a series of related transactions, unless:
(1) either the Company or MCN, as the case may
be, shall be the continuing Person or the Person (if other than the
Company or MCN) formed by such consolidation or with which or into
which the Company or MCN is merged or the Person (or group of
affiliated Persons) to which all or substantially all the
properties and assets of the Company or MCN as an entirety or
substantially as an entirety are sold, assigned, transferred or
leased shall be a corporation (or constitute corporations)
organized and existing under the laws of the United States of
America or any State thereof or the District of Columbia and shall
expressly assume, in the case of the Company by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of
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the Company under the Securities and this Indenture and in the
case of MCN, the performance of every covenant of this Indenture
on the part of MCN, as applicable, and all the obligations under
the Support Agreement to be performed or observed; and
(2) immediately before and after giving effect to such
transaction or series of related transactions, no Event of
Default, and no Default, shall have occurred and be continuing.
Each of the Company and MCN covenants and agrees that if, upon its
consolidation with or merger into any other corporation, or upon any
consolidation or merger of any other corporation with or into it, or upon any
sale or conveyance of all or substantially all of its property and assets to
any other corporation, any of its property or any property of any Subsidiary or
any Indebtedness issued by any Subsidiary owned by it or by any other
Subsidiary immediately prior thereto would thereupon become subject to any
mortgage, security interest, pledge, lien or other encumbrance not permitted by
Section 1010 hereof, prior to or concurrently with such consolidation, merger,
sale or conveyance, it will effectively secure the Securities then Outstanding
(equally and ratably with (or prior to) any other Indebtedness of or guaranteed
by it or such Subsidiary then entitled thereto) by a direct lien, on such of
its property or such property of a Subsidiary or such other Indebtedness issued
by a Subsidiary, prior to all liens other than any theretofore existing
thereon.
SECTION 802. Opinion of Counsel.
The Company or MCN, as applicable, shall deliver to the Trustee prior
to the proposed transaction(s) covered by Section 801 an Officer's Certificate
and an Opinion of Counsel stating that the transaction(s) and such supplemental
indenture comply with this Indenture and that all conditions precedent to the
consummation of the transaction(s) under this Indenture have been met.
SECTION 803. Successor Corporation Substituted.
Upon any consolidation by the Company or MCN with or merger by
the Company or MCN into any other corporation or any lease, sale, assignment,
or transfer of all or substantially all of the property and assets of the
Company or MCN in accordance with Section 801, the successor corporation
formed by such consolidation or into which the Company or MCN is merged or the
successor corporation or affiliated group of corporations to which such lease,
sale, assignment, or transfer is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company or MCN, as applicable,
under this Indenture or the Support Agreement with the same effect as if such
successor corporation or corporations had been named as the
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Company or MCN, as applicable, herein, and thereafter, except in the case of a
lease, the predecessor corporation or corporations shall be relieved of all
obligations and covenants under this Indenture and the Securities and, in the
case of MCN, the Support Agreement, and in the event of such conveyance or
transfer, except in the case of a lease, any such predecessor corporation may
be dissolved and liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without notice to or the consent of any Holders, the Company,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another
corporation to the Company or MCN and the assumption by any such
successor of the covenants of the Company or MCN, as the case may
be, herein and in the Securities; or
(2) to add to the covenants of the Company or MCN 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; or
(3) to add any additional Events of Default with
respect to all or any series of Securities; or
(4) to add or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities in bearer form, registrable
or not registrable as to principal, and with or without interest
coupons; or
(5) to change or eliminate any of the provisions of
this Indenture, provided that any such change or elimination shall
become effective only when there is no Security Outstanding of any
series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision; or
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(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(8) 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 611(b); or
(9) to cure any ambiguity, defect or inconsistency or to
correct or supplement any provision herein which may be inconsistent
with any other provision herein; or
(10) to make any change that does not materially adversely
affect the interests of the Holders of Securities of any series.
Upon request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon receipt
by the Trustee of the documents described in (and subject to the last sentence
of) Section 903, the Trustee shall join with the Company in the execution of
any supplemental indenture authorized or permitted by the terms of this
Indenture.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the written consent of the Holders of 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 shall, subject to Section 903, 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
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 extend the time for payment thereof, or reduce the
amount of the principal of an Original Issue Discount Security
that would be due and payable upon a
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declaration of acceleration of the Maturity thereof pursuant to
Section 502, or change any Place of Payment where, or the coin or
currency in which, any Security or any premium or the 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);
(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 Defaults or Events of Default
hereunder and their consequences provided for in this Indenture; or
(3) change the redemption provisions (including
Article Eleven) hereof in a manner adverse to such Holder; or
(4) modify any of the provisions of this Section or
Section 513, 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; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this
Section, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provisions 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.
It shall not be necessary for any Act of Holders 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.
The Trustee shall sign any supplemental indenture
authorized pursuant to this Article, subject to the last sentence of this
Section 903. 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
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(subject to Section 601) shall be fully protected in relying
upon, an Officer's Certificate and 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 or immunities
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 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 Trustee, 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 and delivered by the Trustee in exchange for Outstanding
Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payments of Securities.
With respect to each series of Securities, the Company
will duly and punctually pay the principal of (and premium, if any) and
interest on such Securities in accordance with their terms and this Indenture,
and will duly comply with all the other terms, agreements and conditions
contained in, or made in the Indenture for the benefit of, the Securities of
such series.
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SECTION 1002. Maintenance of Office or Agency.
The Company will maintain an office or agency in each Place of
Payment where Securities may be surrendered for registration of transfer or
exchange or for presentation for payment, where notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served.
The Company will give prompt written notice to the Trustee of the
location, and any change in location, of such office or agency. If at any time
the Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee as set forth in Section 105 hereof.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations. The Company will give prompt written notice to the Trustee of
any such designation or rescission and of any change in the location of any
such other office or agency.
Unless otherwise set forth in, or pursuant to, a Board
Resolution or Indenture supplemental hereto with respect to a series of
Securities, the Company hereby initially designates the office of NBD Bank,
N.A., Bond Processing Department located in 9000 Haggerty Road, Belleville, MI
48111, as such office of the Company.
SECTION 1003. Corporate Existence.
Subject to Article 8 hereof, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and that of each of its Subsidiaries and the
rights (charter and statutory) of the Company and its Subsidiaries; provided,
however, that (a) the Company shall not be required to preserve any such right,
license or franchise or the corporate existence of any of its Subsidiaries if
the Board of Directors, or the board of directors of the Subsidiary concerned,
as the case may be, shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company or any of its
Subsidiaries and that the loss thereof is not materially disadvantageous to the
Holders, and (b) nothing herein contained shall prevent any Subsidiary of the
Company from liquidating or dissolving, or merging into, or consolidating with
the Company (provided that the Company shall be the continuing or surviving
corporation) or with any one or more Subsidiaries if the Board of Directors or
the board of directors of the Subsidiary concerned, as the case may be, shall
so determine.
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Subject to Article 8 hereof, (a) MCN will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and that of its Significant Subsidiaries and its rights (charter and
statutory) and those of its Significant Subsidiaries provided, however, that
MCN shall not be required to preserve any such right, license or franchise or
the corporate existence of its Significant Subsidiaries if in the judgment of
MCN, the preservation thereof is no longer desirable in the conduct of the
business and that the loss thereof is not materially disadvantageous to the
Holders, and (b) MCN will continue to own, directly or indirectly all of the
outstanding common stock of any Significant Subsidiary it owns as of the date
of this Indenture; provided, however, that MCN may sell or otherwise transfer
any or all of the outstanding common stock of any such Significant Subsidiary
if two nationally recognized statistical rating organizations confirm in
writing that their ratings for the Securities would remain the same after such
sale or transfer.
SECTION 1004. Payment of Taxes and Other Claims.
Each of the Company and MCN will pay or discharge, or cause to be paid
or discharged, before the same shall become delinquent, (1) all material taxes,
assessments and governmental charges levied or imposed upon the Company, MCN or
any Subsidiary or upon the income, profits or property of the Company, MCN or
any Subsidiary, and (2) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a material lien upon the property of the
Company, MCN or any Subsidiary; provided, however, that neither the Company nor
MCN shall 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 and for which
adequate provision has been made.
SECTION 1005. Maintenance of Properties.
Each of the Company and MCN will cause all material properties used or
useful in the conduct of its business or the business of any of their
Subsidiaries to be maintained and kept in good condition, repair and working
order (normal wear and tear excepted) and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company or
MCN, as the case may be, may be necessary, so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent the Company or
MCN from discontinuing the operation or maintenance of any of such properties,
or disposing of any of them, if such discontinuance or disposal is, in the
judgment of the Board of Directors or of
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the board of directors of the Subsidiary concerned, as the case may be,
desirable in the conduct of the business of the Company, MCN or any Subsidiary
of the Company or MCN and not materially disadvantageous to the Holders.
SECTION 1006. Compliance Certificates.
(a) The Company shall deliver to the Trustee within 120 days
after the end of each fiscal year of the Company (which fiscal year
currently ends on December 31), an Officer's Certificate stating
whether or not the signer knows of any Default or Event of Default
by the Company that occurred prior to the end of the fiscal year
and is then continuing. If the signer does know of such a Default
or Event of Default, the certificate shall describe each such
Default or Event of Default and its status and the specific section
or sections of this Indenture in connection with which such Default
or Event of Default has occurred. The Company shall also promptly
notify the Trustee in writing should the Company's fiscal year be
changed so that the end thereof is on any date other than the date
on which the Company's fiscal year currently ends. The certificate
need not comply with Section 102 hereof.
(b) The Company shall deliver to the Trustee, within 10 days
after the occurrence thereof, notice of any acceleration which with
the giving of notice and the lapse of time would be an Event of
Default within the meaning of Section 501(4) hereof.
(c) The Company shall deliver to the Trustee forthwith upon
becoming aware of a Default or Event of Default (but in no event
later than 10 days after the occurrence of each Default or Event of
Default that is continuing), an Officer's Certificate setting forth
the details of such Default or Event of Default and the action that
the Company proposes to take with respect thereto and the specific
section or sections of this Indenture in connection with which such
Default or Event of Default has occurred.
SECTION 1007. Commission Reports.
(a) The Company shall file with the Trustee, within 30 days
after it files them with the Commission, copies of the quarterly
and annual reports and of the information, documents, and other
reports (or copies of such portions of any of the foregoing as the
Commission may by rules and regulations prescribe) which the
Company is required to file with the Commission pursuant to Section
13 or 15(d) of the Exchange Act. If the Company is not subject to
the requirement of such Section 13 or 15(d) of the Exchange Act,
the Company shall file with the Trustee, within 30 days
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after it would have been required to file such
information with the Commission, copies of the quarterly and
annual reports and of the information, documents, and other
reports (or copies of such portions of any of the foregoing as
the Commission may by rules and regulations prescribe) which
MCN is required to file with the Commission pursuant to Section
13 or 15(d) of the Exchange Act.
(b) So long as the Securities remain outstanding and
the Company is required to furnish annual or quarterly reports
to its stockholders pursuant to the Exchange Act, the Company
shall cause its (and, if the Support Agreement is still in
effect, MCN's) annual report to stockholders and any other
financial reports, if such reports are required to be provided
by the Exchange Act, furnished by it (or MCN as the case may
be) to stockholders generally, to be mailed to the Holders at
their addresses appearing in the register of Securities
maintained by the Security Registrar in each case at the time
of such mailing or furnishing to stockholders. If the Company
is not required to furnish annual or quarterly reports to its
stockholders pursuant to the Exchange Act, the Company shall
cause MCN's financial statements (or, if the Support Agreement
is no longer in effect, the Company's financial statements),
including any notes thereto and, with respect to annual
reports, an auditors' report by an accounting firm of
established national reputation and a "Management's Discussion
and Analysis of Financial Condition and Results of
Operations," to be so filed with the Trustee and mailed to the
Holders within 90 days after the end of each of MCN's (or the
Company's as the case may be) fiscal years and within 45 days
after the end of each of the first three quarters of each
fiscal year.
(c) The Company shall provide the Trustee with a
sufficient number of copies of all reports and other documents
and information that the Company may be required to deliver to
the Holders under this Section 1007.
SECTION 1008. Waiver of Stay, Extension or Usury Laws.
Each of the Company and MCN 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, and will actively resist any and all efforts
to be compelled to take the benefit or advantage of, any stay or extension law
or any usury law or other law, which would prohibit or forgive the Company from
paying all or any portion of the principal of and/or interest on the Securities
as contemplated herein, wherever enacted, now or at any time hereafter in
force, or which may affect the covenants or the performance of this Indenture;
and (to the extent that it may lawfully do so) each of the Company and MCN
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.
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SECTION 1009. 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, prior to 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 to so 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 (and premium, if any) or interest
on the Securities of that series; 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 held by the
Company or such Paying Agent; and, upon such payment by any
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Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
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 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 on Company Request, or (if then held
by the Company) shall be discharged from such trust; and the Holder of such
Security 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 of
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of
general circulation in New York, New York, 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 1010. Limitation on Liens.
Neither the Company nor MCN will (nor will MCN permit any
Significant Subsidiary to) create, incur, or suffer to exist any Lien in,
of or on the property of the Company, MCN or any of their Subsidiaries,
except:
(i) Liens for taxes, assessments or governmental charges or
levies on its property if the same shall not at the
time be delinquent or thereafter can be paid without
penalty, or are being contested in good faith and by
appropriate proceedings and for which adequate reserves
in accordance with generally accepted principles of
accounting shall have been set aside on its books.
(ii) Liens imposed by law, such as carriers', warehousemen's
and mechanics' liens and other similar liens arising in
the ordinary course of business which secure payment of
obligations not more than 60 days past due or which are
being contested in good faith by appropriate
proceedings and for which adequate reserves shall have
been set aside on its books.
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment
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insurance, old age pensions, or other social security
or retirement benefits, or similar legislation.
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of
a nature generally existing with respect to properties
of a similar character and which do not in any material
way affect the marketability of the same or interfere
with the use thereof in the business of the Company,
MCN or their Subsidiaries, as the case may be.
(v) Liens on the capital stock, partnership interest, or
other evidence of ownership of any Subsidiary or such
Subsidiary's assets that secure Project Finance
Indebtedness for such Subsidiary.
(vi) Liens arising in connection with first mortgage bonds
issued by any Significant Subsidiary pursuant to any
first mortgage indenture in effect as of the date of
this Indenture, as such indenture may be supplemented
from time to time.
(vii) Purchase money liens upon or in property now owned or
hereafter acquired in the ordinary course of business
(consistent with the Company's or MCN's business
practices, as the case may be) to secure (A) the
purchase price of such property or (B) Indebtedness
incurred solely for the purpose of financing the
acquisition, construction, or improvement of any such
property to be subject to such liens, or Liens existing
on any such property at the time of acquisition, or
extensions, renewals, or replacements of any of the
foregoing for the same or a lesser amount; provided
that no such lien shall extend to or cover any property
other than the property being acquired, constructed, or
improved and replacements, modifications, and proceeds
of such property, and no such extension, renewal, or
replacement shall extend to or cover any property not
theretofore subject to the Lien being extended,
renewed, or replaced.
(viii) Liens existing on the date Securities are first issued
hereunder.
(ix) Liens for no more than 90 days arising from a
transaction involving accounts receivable of the
Company or MCN, as the case may be (including the sale
of such accounts receivable), where such
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accounts receivable arose in the ordinary course of
the Company's or MCN's business, as the case may be.
SECTION 1011. Limitation on Sale and Leaseback Transactions.
Neither the Company nor MCN will itself, or will they permit
any Subsidiary to, enter into any arrangement with any bank, insurance
company or other lender or investor (not including the Company, MCN or any
Subsidiary), or to which such lender or investor (other than the Company, MCN
or a Subsidiary) is a party, providing for the leasing by the Company, MCN or
such Subsidiary for a period, including renewals, in excess of three years of
any real property located within the United States of America which has been
owned by the Company, MCN or such Subsidiary, as the case may be, for more
than six months and which has been or is to be sold or transferred by the
Company, MCN or such Subsidiary, as the case may be, to such lender or investor
or to any person to whom funds have been or are to be advanced by such lender
or investor on the security of such real property (a "Sale and Leaseback
Transaction") unless either:
(a) the Company, MCN or such Subsidiary, as the case may be,
could create indebtedness secured by a lien pursuant to Section
1010 hereof on the real property to be leased, in an amount equal
to the Value of such Sale and Leaseback Transaction, without
equally and ratably securing the Securities; or
(b) the Company or MCN, as the case may be, within six months
after the sale or transfer shall have been made, applies an amount
equal to the greater of (i) the net proceeds of the sale of the
real property leased pursuant to such arrangement or (ii) the fair
market value of the real property so leased at the time of entering
into such arrangement (as determined by the Board of Directors of
the Company or MCN, as the case may be) to the retirement of the
Securities and other obligations of the issuer ranking on a parity
with the Securities. No retirement referred to in this paragraph
(b) may be effected by payment at maturity or pursuant to any
mandatory sinking fund or prepayment provision.
SECTION 1012. Waiver of Certain Covenants.
The Company and MCN may omit in any particular instance to
comply with any covenant or condition set forth in Sections 1010 or 1011
hereof, if before or after the time for such compliance the Holders of not less
than a majority in principal amount of the Securities at the time Outstanding
of each series which is affected thereby, shall, by consent in writing of such
Holders, either waive such compliance in such instance or
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generally waive compliance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or conditions except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company and MCN and the duties of the Trustee in respect of
any such covenant or condition shall remain in full force and effect.
SECTION 1013. Support Agreement.
Each of the Company and MCN covenants and agrees for the
benefit of each series of Securities that (a) it will perform its respective
obligations under the Support Agreement and (b) it will not agree to any
amendment or termination of the Support Agreement as in effect on the date
of this Indenture, except in accordance with the terms of the Support Agreement
as in effect on the date of this Indenture.
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 specified as contemplated by Section 301 for Securities of
any series) 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 a Board Resolution. In case of any redemption at the
election of the Company of less than all the Securities of any series, the
Company shall, at least 45 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
prior to the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officer's Certificate evidencing compliance with
such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 90 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not
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previously called for redemption, substantially pro rata, by lot or by any
other method as the Trustee considers fair and appropriate and that complies
with the requirements of the principal national securities exchange, if any, on
which such Securities are listed, 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 Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series; provided that in case
the Securities of such series have different terms and maturities, the
Securities to be redeemed shall be selected by the Company and the Company
shall give notice thereof to the Trustee.
The Trustee shall promptly notify the Company 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 the 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 by first-class
mail, postage prepaid, mailed not less than 30 nor more than 45 days prior to
the Redemption Date, to each Holder of Securities to be redeemed, at his
address appearing in the Security Register.
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 be come due and payable upon each such Security to be
redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date;
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(5) the place or places where such Securities 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 number, if any, of the Securities to
be redeemed; and
(8) unless otherwise provided as to a particular
series of Securities, if at the time of publication or mailing of any
notice of redemption the Company shall not have deposited with the
Trustee or Paying Agent and/or irrevocably directed the Trustee or
Paying Agent to apply, from money held by it available to be used for
the redemption of Securities, an amount in cash sufficient to redeem
all of the Securities called for redemption, including accrued
interest to the Redemption Date, such notice shall state that it is
subject to the receipt of the redemption moneys by the Trustee or
Paying Agent before the Redemption Date (unless such redemption is
mandatory) and such notice shall be of no effect unless such moneys
are so received before such date.
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.
SECTION 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 1009) 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, all the
Securities which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid,
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. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; provided, however, that installments
of interest whose Stated Maturity is on or prior to the Redemption Date shall
be payable to the
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Holders of such Securities, or one or more Predecessor Securities, registered
as such at the close of business on the relevant Regular or Special Record
Dates according to their terms and the provisions of Section 307.
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 Security which is to be redeemed only in part shall
be surrendered at an office or agency of the Company at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by,
or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new Security
or Securities of the same series and Stated Maturity, 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.
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 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.
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SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities.
The Company (1) may deliver Securities of a series
(other than any Securities previously called for redemption) 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 Trustee 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 45 days prior to each sinking fund
payment date for any series of Securities, the Company will deliver to the
Trustee an Officer's Certificate specifying the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of that series, 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
Trustee 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 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
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance.
Unless pursuant to Section 301 provision is made for
the inapplicability of either or both of (a) Defeasance of the Securities of a
series under Section 1302 or (b) Covenant Defeasance of the Securities of a
series under Section 1303, then
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<PAGE> 87
the provisions of such Section or Sections, as the case may be, together with
the other provisions of this Article, shall be applicable to the Securities of
such series, and the Company may at its option by Board Resolution, at any
time, with respect to the Securities of such series, elect to have either
Section 1302 (unless inapplicable) or Section 1303 (unless inapplicable) be
applied to the Outstanding Securities of such series upon compliance with the
applicable conditions set forth below in this Article.
SECTION 1302. Defeasance and Discharge.
Upon the Company's exercise of the option provided in
Section 1301 to defease the Outstanding Securities of a particular series, the
Company shall be discharged from its obligations with respect to the
Outstanding Securities of such series on the date the applicable conditions set
forth in Section 1304 are satisfied (hereinafter, "DEFEASANCE"). Defeasance
shall mean that the Company shall be deemed to have paid and discharged the
entire indebtedness represented by the Outstanding Securities of such series
and to have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same); provided, however, that the following rights, obligations, powers,
trusts, duties and immunities shall survive until otherwise terminated or
discharged hereunder: (A) the rights of Holders of Outstanding Securities of
such series to receive, solely from the trust fund provided for in Section
1304, payments in respect of the principal of (and premium, if any) and
interest on such Securities when such payments are due, (B) the Company's
obligations with respect to such Securities under Sections 304, 305, 306, 1002
and 1009, (C) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (D) this Article. Subject to compliance with this Article, the
Company may exercise its option with respect to Defeasance under this Section
1302 notwithstanding the prior exercise of its option with respect to Covenant
Defeasance under Section 1303 in regard to the Securities of such series.
SECTION 1303. Covenant Defeasance.
Upon the Company's exercise of the option provided in
Section 1301 to obtain a Covenant Defeasance with respect to the Outstanding
Securities of a particular series, the Company shall be released from its
obligations under this Indenture (except its obligations under Sections 304,
305, 306, 506, 509, 610, 1001, 1002, 1006, 1008 and 1009) with respect to the
Outstanding Securities of such series on and after the date the applicable
conditions set forth in Section 1304 are satisfied (hereinafter, "COVENANT
DEFEASANCE"). Covenant Defeasance shall mean that, with respect to the
Outstanding Securities of such series, the
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<PAGE> 88
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in this Indenture (except its
obligations under Sections 304, 305, 306, 506, 509, 610, 1001, 1002, 1006, 1008
and 1009), whether directly or indirectly by reason of any reference elsewhere
herein or by reason of any reference to any other provision herein or in any
other document, and such omission to comply shall not constitute an Event of
Default under Section 501(4) with respect to Outstanding Securities of such
series, and the remainder of this Indenture and of the Securities of such
series shall be unaffected thereby.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to Defeasance
under Section 1302 and Covenant Defeasance under Section 1303 with respect to
the Outstanding Securities of a particular series:
(1) the Company shall irrevocably have
deposited or caused to be deposited with the Trustee
(or another trustee satisfying the requirements of
Section 609 who shall agree to comply with the
provisions of this Article applicable to it), under the
terms of an irrevocable trust agreement in form and
substance reasonably satisfactory to such Trustee, as
trust funds in trust for the purpose of making the
following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the
Holders of such Securities, (A) Dollars in an amount,
or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide,
not later than the due date of any payment, money in an
amount, or (C) a combination thereof, in each case
sufficient, after payment of all federal, state and
local taxes or other charges or assessments in respect
thereof payable by the Trustee, in the opinion of a
nationally recognized firm of independent public
accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (i) the
principal of (and premium, if any, on) and each
installment of principal of (and premium, if any) and
interest on the Outstanding Securities of such series
on the Stated Maturity of such principal or installment
of principal or interest and (ii) any mandatory sinking
fund payments or analogous payments applicable to the
Outstanding Securities of such series on the day on
which such payments are due and payable in accordance
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<PAGE> 89
with the terms of this Indenture and of such Securities.
(2) No Default or Event of Default with
respect to the Securities of such series shall have
occurred and be continuing on the date of such deposit
or shall occur as a result of such deposit, and no
Default or Event of Default under clause (5) or (6) of
Section 501 hereof shall occur and be continuing, at
any time during the period ending on the 91st day after
the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the
expiration of such period).
(3) Such deposit, Defeasance or Covenant
Defeasance shall not result in a breach or violation
of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by
which it is bound.
(4) Such Defeasance or Covenant Defeasance
shall not cause any Securities of such series then
listed on any national securities exchange registered
under the Exchange Act to be delisted.
(5) In the case of an election with
respect to Section 1302, the Company shall have
delivered to the Trustee either (A) a ruling directed
to the Trustee received from the Internal Revenue
Service to the effect that the Holders of the
Outstanding Securities of such series will not
recognize income, gain or loss for federal income tax
purposes as a result of such Defeasance and will be
subject to federal income tax on the same amounts, in
the same manner and at the same times as would have
been the case if such Defeasance had not occurred or
(B) an Opinion of Counsel, based on such ruling or on a
change in the applicable federal income tax law since
the date of this Indenture, in either case to the
effect that, and based thereon such opinion shall
confirm that, the Holders of the Outstanding Securities
of such series will not recognize income, gain or loss
for federal income tax purposes as a result of such
Defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same
times as would have been the case if such Defeasance
had not occurred.
(6) In the case of an election with
respect to Section 1303, the Company shall have
delivered to the Trustee an Opinion of Counsel or a
ruling directed to the Trustee received from the
Internal Revenue Service to the effect that the Holders
of the Outstanding
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<PAGE> 90
Securities of such series will not recognize income,
gain or loss for federal income tax purposes as a
result of such Covenant Defeasance and will be subject
to federal income tax on the same amounts, in the same
manner and at the same times as would have been the
case if such Covenant Defeasance had not occurred.
(7) Such Defeasance or Covenant Defeasance
shall be effected in compliance with any additional
terms, conditions or limitations which may be imposed
on the Company in connection therewith pursuant to
Section 301.
(8) The Company shall have delivered to
the Trustee an Officer's Certificate and an Opinion of
Counsel, each stating that all conditions precedent
provided for relating to either the Defeasance under
Section 1302 or the Covenant Defeasance under Section
1303 (as the case may be) have been complied with.
SECTION 1305. Deposited Money and Government Obligations To Be Held
In Trust.
Subject to the provisions of the last paragraph of
Section 1009, all money and Government Obligations (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee--collectively
for purposes of this Section 1305, the "Trustee") pursuant to Section 1304 in
respect of the Outstanding Securities of a particular series shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities 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 Holders of such Securities of all sums due and to
become due thereon in respect of principal (and premium, if any) and interest,
but such money need not be segregated from other funds except to the extent
required by law.
The Company shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 1304 or the principal and interest
received in respect thereof, other than any such tax, fee or other charge which
by law is for the account of the Holders of the Outstanding Securities of such
series.
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver to pay to the Company from time to time upon Company
Request any money or Government Obligations held by it as provided in Section
1304 which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee, are in excess of the amount thereof
-82-
<PAGE> 91
which would then be required to be deposited for the purpose for which such
money or Government Obligations were deposited.
ARTICLE FOURTEEN
MISCELLANEOUS
SECTION 1401. Miscellaneous.
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.
-83-
<PAGE> 92
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
MCN INVESTMENT CORPORATION
By /s/ Sebastian Coppola
-------------------------------
Name: Sebastian Coppola
Title: Vice President and Treasurer
Attest:
/s/ Daniel L. Schiffer
----------------------------
Name: Daniel L. Schiffer
Title: Senior Vice President, General
Counsel and Secretary
NBD BANK, as Trustee
By /s/ Joseph L. Weidenbach
-------------------------------
Name: Joseph L. Weidenbach
Title: Trust Officer, Trust Division
Attest:
/s/ Steven D. Vander Clay
----------------------------
Name: Steven D. Vander Clay
Title: Vice President and
Assistant Secretary
MCN Investment Corporation and NBD Bank
Senior Debt Securities Indenture
dated as of September 1, 1995
<PAGE> 1
EXHIBIT 4-2
SUPPORT AGREEMENT
BETWEEN
MCN CORPORATION
AND
MCN INVESTMENT CORPORATION
This Agreement, made the ____ day of ____, 1995, by and between MCN
Corporation, a Michigan corporation ("Parent") and MCN Investment Corporation,
a Michigan corporation ("Subsidiary").
WITNESSETH:
WHEREAS, Parent is the owner of 100% of the outstanding common stock of
Subsidiary;
WHEREAS, Subsidiary intends to make borrowings from, and issue debt
securities or other obligations to, parties other than Parent ("Debt"), from
time to time, so that Subsidiary will be in a position to provide financing for
itself;
WHEREAS, Parent and Subsidiary desire to take certain actions to
enhance and maintain the financial condition of Subsidiary as hereinafter set
forth in order to enable Subsidiary to issue such Debt on more advantageous and
reasonable terms;
WHEREAS, third party creditors will rely upon this Agreement in making
loans or extending credit to Subsidiary; and
NOW, THEREFORE, in consideration of the premises, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Execution and Delivery of this Agreement. Parent and
Subsidiary represent that the execution and delivery of this Agreement has been
duly authorized by Parent and Subsidiary and this Agreement will constitute the
legal, valid and binding obligations of the parties thereto in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
2. Stock ownership. Parent owns and, at all times during the term
of this Agreement shall continue to own, all of the voting stock of Subsidiary.
<PAGE> 2
3. Net Worth. Parent agrees that it shall cause Subsidiary to
have at all times a positive net worth (net assets less intangible assets, if
any), as determined in accordance with generally accepted accounting
principles.
4. Liquidity Provision. If, during the term of this Agreement,
Subsidiary is unable to make timely payment of interest, principal or premium,
if any, on any Debt issued by it, Parent promptly shall provide to Subsidiary,
at its request or the request of any Lender (as hereinafter defined), such
funds (in the form of cash or liquid assets) as equity or if Parent and
Subsidiary shall agree as a loan. If such funds are advanced to Subsidiary as
a loan, such loan shall be on such terms and conditions, including maturity and
rate of interest, as Parent and Subsidiary shall agree. Notwithstanding the
foregoing, any such loan shall be subordinated in all respects to any and all
Debt of Subsidiary, whether or not such Debt is outstanding at the time of such
loan.
5. Waivers. Parent hereby waives any failure or delay on the part
of Subsidiary in asserting or enforcing any of its rights or in making any
claims or demands hereunder. Subsidiary or any Lender may at any time,
without Parent's consent, without notice to Parent and without affecting or
impairing Subsidiary's or such Lender's rights or Parent's obligations
hereunder, do any of the following with respect to any Debt: (a) make changes,
modifications, amendments or alterations, by operation of law or otherwise, (b)
grant renewals and extensions of time, for payment or otherwise, (c) accept
new or additional documents, instruments or agreements relating to or in
substitution of said Debt, or (d) otherwise handle the enforcement of their
respective rights and remedies in accordance with their business judgment.
6. Termination; Amendment. This Agreement may be amended or
terminated at any time by written amendment or agreement signed by both
parties; provided, however, that:
(a) no modification of or amendment to the provisions of
paragraphs 2, 3, 4, 5, 7 and 8 of this Agreement may be made unless all Lenders
(as defined below) consent in advance and in writing to such modification or
amendment;
(b) no modification of or amendment to this Agreement may
be made in a manner that adversely affects the rights of Lenders unless (i)
such modification or amendment occurs after all Debt theretofore issued by
Subsidiary shall have been paid in full or (ii) all affected Lenders consent in
advance and in writing to such modification or amendment; and
(c) this Agreement may be terminated only after all Debt
issued by Subsidiary shall have been paid in full.
-2-
<PAGE> 3
7. Rights of Lenders. Any Lender (defined below) shall have the
right to demand that Subsidiary enforce Subsidiary's rights under paragraphs 2,
3, 4, 8 and 12 of this Agreement, and, if Subsidiary fails or refuses to take
timely action to enforce its rights under paragraphs 2, 3 or 4 of this
Agreement or if Subsidiary defaults in the timely payment of interest, principal
or premium, if any, on any Debt owed to Lender when due, such Lender may
proceed directly against Parent to enforce Subsidiary's rights under paragraphs
2, 3, 4, 8 and 12 of this Agreement or to obtain payment of such defaulted
interest, principal or premiums, if any, owed to such Lender. However, in no
event may any Lender, on default by Parent or Subsidiary or upon failure to
comply with this Agreement by Parent or Subsidiary, have recourse to or against
the stock or assets of Michigan Consolidated Gas Company (the "MichCon") or any
interest of Parent or Subsidiary therein. Despite this limitation, funds
available to the Parent to satisfy any obligation under this Agreement will
include dividends paid by MichCon. The term "Lender", as used in this
Agreement, shall mean any person, firm, corporation or other entity to
which Subsidiary is indebted for money borrowed or to which Subsidiary
otherwise owes any Debt or which is acting as trustee or authorized
representative on behalf of such person, firm, corporation or other entity.
8. Indenture of Subsidiary. Parent agrees that it will:
(a) not take any action (or refrain from taking any action)
to the extent that such action or inaction would cause a default in the
performance or breach of any term or provision of the Indenture dated as of
______, 1995 (the "Indenture"), between the Subsidiary and NBD Bank, N.A., as
trustee, or any Debt outstanding under the Indenture; and
(b) comply with all covenants and other provisions of the
Indenture applicable to it as if it were a party to the Indenture.
9. Notices. Any notice, instruction, request, consent, demand or
other communication required or contemplated by this Agreement shall be in
writing, shall be given or made or communicated by United States first class
mail, telex, facsimile transmission or hand delivery, addressed as follows:
If to Parent: MCN Corporation
500 Griswold Street
Detroit, Michigan 48226
Attention: [ ]
If to Subsidiary: MCN Investment Corporation
150 West Jefferson Avenue
Detroit, Michigan 48226
Attention: [ ]
-3-
<PAGE> 4
10. Successors. This Agreement shall be binding upon the parties
hereto and their respective successors and assigns and is also intended for
the benefit of the holders from time to time of the Debt and, notwithstanding
that such holders are not parties hereto, each such holder shall be entitled to
the full benefits of this Agreement and to enforce the covenants and agreements
contained herein. This Agremeent is not intended for the benefit of any
person other than holders of Debt, and except as may be expressly provided
herein shall not confer or be deemed to confer upon any other such person any
benefits, rights or remedies hereunder.
11. Governing Law. This Agreement shall be governed by the laws of
the State of Michigan.
12. Remedies. The parties to this Agreement acknowledge and agree
that breach of any of the covenants of Parent set forth herein may not be
compensable by payment of money damages and, therefore, that the covenants of
Parent set forth herein may be enforced in equity by a decree requiring
specific performance. Such remedies shall be cumulative and non-exclusive and
shall be in addition to any other rights and remedies Subsidiary or any other
person seeking enforcement of this Agreement may have under this Agreement.
IN WITNESS WHEREOF, the parties hereto have set their hands and affixed
their corporate seals as of the last day and year above written.
(SEAL) MCN Corporation
Attest:_________________________ By:_________________________
Assistant Secretary Name:
Title:
(SEAL) MCN Investment Corporation
Attest:__________________________ By:__________________________
Assistant Secretary Name:
Title:
-4-
<PAGE> 1
EXHIBIT 5-1
October 5, 1995
MCN Corporation
500 Griswold Street
Detroit, MI 48226
Ladies and Gentlemen:
I am acting as counsel for MCN Corporation ("MCN") and MCN Investment
Corporation ("MCN Investment"), both Michigan corporations, in connection with
the registration of up to $200,000,000 of Debt Securities to be offered on a
continuous or delayed basis pursuant to the provisions of Rule 415. The Debt
Securities are being registered under the Securities Act of 1933, as amended,
by a Registration Statement on Form S-3 filed with the Securities and Exchange
Commission on October 5, 1995. Capitalized terms used but not defined
herein are used as defined in the Registration Statement.
In preparation for rendering my opinion hereafter expressed, I have examined
the originals or copies, certified to my satisfaction, of such corporate
records and other documents and certificates as I have deemed necessary.
Based on the above, I am of the opinion that:
1. MCN and MCN Investment are corporations duly organized and validly
existing under and pursuant to the laws of the State of Michigan.
2. The Debt Securities when sold, will be legally issued by MCN Investment,
duly authorized, fully paid and nonassessable and will be binding
obligations of MCN Investment.
I hereby consent to the use of this opinion as Exhibit 5-1 to the
Registration Statement and to the use of my name under the caption "Validity of
Securities" in the Registration Statement.
Very truly yours,
/s/ Daniel L. Schiffer
--------------------------------
Daniel L. Schiffer
Senior Vice President, General
Counsel and Secretary
MCN Corporation
<PAGE> 1
EXHIBIT 12-1
MCN INVESTMENT AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Dollars in Thousands)
<TABLE>
<CAPTION>
Twelve Months Twelve Months Ended December 31,
Ended ----------------------------------------------------------
June 30, 1995 1994 1993 1992 1991 1990
------------- --------- -------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS AS DEFINED (1)
Pre-tax income (2) $15,420 $12,440 $ 9,588 $10,618 ($388) $3,239
Fixed charges (3) 20,794 17,814 9,307 6,955 8,240 4,696
------- ------- ------- ------- ------ ------
Earnings as defined $36,214 $30,254 $18,895 $17,573 $7,852 $7,935
FIXED CHARGES AS DEFINED (1)
Interest, expensed $13,710 $11,656 $ 4,464 $ 2,341 $3,123 $1,050
Interest, capitalized 3,976 2,089 1,579 211 0 639
Amortization of debt discounts,
premium and expense 406 289 96 67 21 0
Interest implicit in rentals 6,678 5,869 4,747 4,547 5,096 3,646
------- ------- ------- ------- ------ ------
Fixed charges as defined $24,770 $19,903 $10,886 $ 7,166 $8,240 $5,335
Ratio of Earnings to Fixed Charges 1.46 1.52 1.74 2.45 0.95 1.49
======= ======= ======= ======= ====== ======
</TABLE>
Notes:
(1) Earnings and fixed charges are defined and computed in accordance with
Item 503 of Regulation S-K.
(2) This amount represents the aggregate of (a) the pre-tax income of MCN
Investment and its majority-owned subsidiaries, (b) MCN Investment's share
of pre-tax income of its 50% owned companies, and (c) any income actually
received from less than 50% owned companies.
(3) Fixed charges added to earnings are adjusted to exclude interest capitalized
during the period and, therefore, may differ from fixed charges as defined.
<PAGE> 1
EXHIBIT 12-2
MCN CORPORATION AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Dollars in Thousands)
<TABLE>
<CAPTION>
Twelve Months Twelve Months Ended December 31,
Ended -----------------------------------------------------------------
June 30, 1995 1994 1993 1992 1991 1990
-------------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS AS DEFINED (1)
Pre-tax income (2) $ 90,445 $105,887 $106,987 $ 85,984 $ 54,225 $50,543
Fixed charges (3) 72,293 60,910 48,955 48,414 49,076 44,777
-------- -------- -------- -------- -------- -------
Earnings as defined $162,738 $166,797 $155,942 $134,398 $103,301 $95,320
FIXED CHARGES AS DEFINED (1) (4)
Interest, expensed $ 54,525 $ 48,948 $ 38,728 $ 38,874 $ 39,686 $36,385
Interest, capitalized 5,217 2,928 3,966 1,650 737 1,211
Amortization of debt discounts, premium
and expense 1,465 1,332 1,153 830 629 618
Interest implicit in rentals 8,568 7,773 6,350 6,298 6,804 5,732
Preferred securities dividend requirements
of subsidiaries 6,699 2,203 1,086 1,468 1,884 2,277
-------- -------- -------- -------- -------- -------
Fixed charges as defined $ 76,474 $ 63,184 $ 51,283 $ 49,120 $ 49,740 $46,223
Ratio of Earnings to Fixed Charges 2.13 2.64 3.04 2.74 2.08 2.06
======== ======== ======== ======== ======== =======
</TABLE>
Notes:
(1) Earnings and fixed charges are defined and computed in accordance with
Item 503 of Regulation S-K.
(2) This amount represents the aggregate of (a) the pre-tax income of MCN and
its majority-owned subsidiaries, (b) MCN's share of pre-tax income of its
50% owned companies, and (c) any income actually received from less than 50%
owned companies.
(3) Fixed charges added to earnings are adjusted to exclude interest capitalized
during the period for nonutility companies and the preferred securities
dividend requirements of MichCon included in fixed charges but not deducted
in the determination of pre-tax income.
(4) Fixed charges represent (a) interest, whether expensed or capitalized, (b)
amortization of debt discount, premium and expense, (c) an estimate of
interest implicit in rentals, and (d) preferred securities dividend
requirements of subsidiaries (MichCon and MCN Michigan Limited Partnership),
increased to reflect the pre-tax earnings requirement for MichCon.
<PAGE> 1
EXHIBIT 23-1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-3 of our reports dated February 6, 1995, appearing in and incorporated
by reference in the Annual Report on Form 10-K of MCN Corporation for the year
ended December 31, 1994 and to the reference to us under the heading "Experts"
in the Prospectus, which is part of this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
Detroit, Michigan
October 10, 1995
<PAGE> 1
EXHIBIT 23-2
[RYDER SCOTT COMPANY LETTERHEAD]
September 22, 1995
MCN Corporation
500 Griswold
Detroit, Michigan 48226
Re: MCN Corporation
MCN Investment Corporation
Form S-3 Registration Statement
Ladies and Gentlemen:
The firm of Ryder Scott Company Petroleum Engineers consents to the
incorporation by reference in this Registration Statement on Form S-3 of our
report dated January 26, 1995, appearing in the Annual Report on Form 10-K of
MCN Corporation for the year ended December 31, 1994 and to the reference to us
under the heading "Experts" in the Prospectus, which is part of this
Registration Statement.
Very truly yours,
/s/ RYDER SCOTT COMPANY
PETROLEUM ENGINEERS
-----------------------
RYDER SCOTT COMPANY
PETROLEUM ENGINEERS
<PAGE> 1
EXHIBIT 23-3
[MILLER AND LENTS, LTD. LETTERHEAD]
September 22, 1995
MCN Corporation
500 Griswold
Detroit, MI 48226
Re: MCN Corporation
MCN Investment Corporation
Form S-3 Registration Statement
Ladies and Gentlemen:
The firm of Miller and Lents, Ltd., consents to the incorporation by
reference in the Registration Statement of MCN Corporation and MCN Investment
Corporation filed on Securities and Exchange Commission Form S-3 of our report
dated January 19, 1995, regarding MCN Corporation Reserves and Future Net
Revenues as of December 31, 1994.
In addition, Miller and Lents, Ltd., consents to the reference to our
firm under the heading of "Experts" in the Prospectus that is part of the Form
S-3 Registration Statement.
Miller and Lents, Ltd., has no interest in MCN Corporation or in MCN
Investment Corporation or in any affiliated companies or subsidiaries and is
not to receive such interest as payment for such report and has no director,
officer, or employee otherwise connected with MCN Corporation or MCN
Investment Corporation. We are not employed by either corporation on a
contingent basis.
Yours very truly,
MILLER AND LENTS, LTD.
By /s/ Walter Crow
-------------------------
Walter Crow
Chairman
CAB/mk
<PAGE> 1
EXHIBIT 24-1
POWER OF ATTORNEY
Know All Men By These Presents:
That the undersigned director or officer of MCN Corporation, a corporation
formed under the laws of the State of Michigan, does constitute and appoint
Daniel L. Schiffer and Patrick Zurlinden, and each of them, his true and lawful
attorneys and agents, each with full power and authority (acting alone and
without the other) to execute in the name and on behalf of the undersigned as
such director or officer, a Registration Statement on Form S-3, including any
post-effective amendments or other filings in connection therewith, under the
Securities Act of 1933, as amended, with respect to the issuance of up to
$200,000,000 maximum aggregate offering price of debt securities of MCN
Investment Corporation; granting to such attorneys and agents, and each of
them, full power of substitution and revocation in the premises; and ratifying
and confirming all that such attorneys and agents, or either of them, may do or
cause to be done by virtue of these presents.
In Witness Whereof, I have executed this Power of Attorney this 27th day of
April, 1995.
/s/ Alfred R. Glancy III
--------------------------
Alfred R. Glancy III
<PAGE> 2
EXHIBIT 24-1
POWER OF ATTORNEY
Know All Men By These Presents:
That the undersigned director or officer of MCN Corporation, a corporation
formed under the laws of the State of Michigan, does constitute and appoint
Alfred R. Glancy III, Daniel L. Schiffer and Patrick Zurlinden, and each of
them, his true and lawful attorneys and agents, each with full power and
authority (acting alone and without the others) to execute in the name and on
behalf of the undersigned as such director or officer, a Registration Statement
on Form S-3, including any post-effective amendments or other filings in
connection therewith, under the Securities Act of 1933, as amended, with
respect to the issuance of up to $200,000,000 maximum aggregate offering price
of debt securities of MCN Investment Corporation; granting to such attorneys
and agents, and each of them, full power of substitution and revocation in the
premises; and ratifying and confirming all that such attorneys and agents, or
any of them, may do or cause to be done by virtue of these presents.
In Witness Whereof, I have executed this Power of Attorney this 27th day of
April, 1995.
/s/ William K. McCrackin
--------------------------
William K. McCrackin
<PAGE> 3
EXHIBIT 24-1
POWER OF ATTORNEY
Know All Men By These Presents:
That the undersigned director or officer of MCN Corporation, a corporation
formed under the laws of the State of Michigan, does constitute and appoint
Alfred R. Glancy III and Daniel L. Schiffer, and each of them, his true and
lawful attorneys and agents, each with full power and authority (acting alone
and without the other) to execute in the name and on behalf of the undersigned
as such director or officer, a Registration Statement on Form S-3, including
any post-effective amendments or other filings in connection therewith, under
the Securities Act of 1933, as amended, with respect to the issuance of up to
$200,000,000 maximum aggregate offering price of debt securities of MCN
Investment Corporation; granting to such attorneys and agents, and each of
them, full power of substitution and revocation in the premises; and ratifying
and confirming all that such attorneys and agents, or either of them, may do or
cause to be done by virtue of these presents.
In Witness Whereof, I have executed this Power of Attorney this 27th day of
April, 1995.
/s/ Patrick Zurlinden
--------------------------
Patrick Zurlinden
<PAGE> 4
EXHIBIT 24-1
POWER OF ATTORNEY
Know All Men By These Presents:
That the undersigned director or officer of MCN Corporation, a corporation
formed under the laws of the State of Michigan, does constitute and appoint
Alfred R. Glancy III, Daniel L. Schiffer and Patrick Zurlinden, and each of
them, his true and lawful attorneys and agents, each with full power and
authority (acting alone and without the others) to execute in the name and on
behalf of the undersigned as such director or officer, a Registration Statement
on Form S-3, including any post-effective amendments or other filings in
connection therewith, under the Securities Act of 1933, as amended, with
respect to the issuance of up to $200,000,000 maximum aggregate offering price
of debt securities of MCN Investment Corporation; granting to such attorneys
and agents, and each of them, full power of substitution and revocation in the
premises; and ratifying and confirming all that such attorneys and agents, or
any of them, may do or cause to be done by virtue of these presents.
In Witness Whereof, I have executed this Power of Attorney this 27th day of
April, 1995.
/s/ Stephen E. Ewing
--------------------------
Stephen E. Ewing
<PAGE> 5
EXHIBIT 24-1
POWER OF ATTORNEY
Know All Men By These Presents:
That the undersigned director or officer of MCN Corporation, a corporation
formed under the laws of the State of Michigan, does constitute and appoint
Alfred R. Glancy III, Daniel L. Schiffer and Patrick Zurlinden, and each of
them, his true and lawful attorneys and agents, each with full power and
authority (acting alone and without the others) to execute in the name and on
behalf of the undersigned as such director or officer, a Registration Statement
on Form S-3, including any post-effective amendments or other filings in
connection therewith, under the Securities Act of 1933, as amended, with
respect to the issuance of up to $200,000,000 maximum aggregate offering price
of debt securities of MCN Investment Corporation; granting to such attorneys
and agents, and each of them, full power of substitution and revocation in the
premises; and ratifying and confirming all that such attorneys and agents, or
any of them, may do or cause to be done by virtue of these presents.
In Witness Whereof, I have executed this Power of Attorney this 27th day of
April, 1995.
/s/ Roger Fridholm
--------------------------
Roger Fridholm
<PAGE> 6
EXHIBIT 24-1
POWER OF ATTORNEY
Know All Men By These Presents:
That the undersigned director or officer of MCN Corporation, a corporation
formed under the laws of the State of Michigan, does constitute and appoint
Alfred R. Glancy III, Daniel L. Schiffer and Patrick Zurlinden, and each of
them, his true and lawful attorneys and agents, each with full power and
authority (acting alone and without the others) to execute in the name and on
behalf of the undersigned as such director or officer, a Registration Statement
on Form S-3, including any post-effective amendments or other filings in
connection therewith, under the Securities Act of 1933, as amended, with
respect to the issuance of up to $200,000,000 maximum aggregate offering price
of debt securities of MCN Investment Corporation; granting to such attorneys
and agents, and each of them, full power of substitution and revocation in the
premises; and ratifying and confirming all that such attorneys and agents, or
any of them, may do or cause to be done by virtue of these presents.
In Witness Whereof, I have executed this Power of Attorney this 27th day of
April, 1995.
/s/ Frank M. Hennessey
--------------------------
Frank M. Hennessey
<PAGE> 7
EXHIBIT 24-1
POWER OF ATTORNEY
Know All Men By These Presents:
That the undersigned director or officer of MCN Corporation, a corporation
formed under the laws of the State of Michigan, does constitute and appoint
Alfred R. Glancy III, Daniel L. Schiffer and Patrick Zurlinden, and each of
them, his true and lawful attorneys and agents, each with full power and
authority (acting alone and without the others) to execute in the name and on
behalf of the undersigned as such director or officer, a Registration Statement
on Form S-3, including any post-effective amendments or other filings in
connection therewith, under the Securities Act of 1933, as amended, with
respect to the issuance of up to $200,000,000 maximum aggregate offering price
of debt securities of MCN Investment Corporation; granting to such attorneys
and agents, and each of them, full power of substitution and revocation in the
premises; and ratifying and confirming all that such attorneys and agents, or
any of them, may do or cause to be done by virtue of these presents.
In Witness Whereof, I have executed this Power of Attorney this 27th day of
April, 1995.
/s/ Thomas H. Jeffs II
--------------------------
Thomas H. Jeffs II
<PAGE> 8
EXHIBIT 24-1
POWER OF ATTORNEY
Know All Men By These Presents:
That the undersigned director or officer of MCN Corporation, a corporation
formed under the laws of the State of Michigan, does constitute and appoint
Alfred R. Glancy III, Daniel L. Schiffer and Patrick Zurlinden, and each of
them, his true and lawful attorneys and agents, each with full power and
authority (acting alone and without the others) to execute in the name and on
behalf of the undersigned as such director or officer, a Registration Statement
on Form S-3, including any post-effective amendments or other filings in
connection therewith, under the Securities Act of 1933, as amended, with
respect to the issuance of up to $200,000,000 maximum aggregate offering price
of debt securities of MCN Investment Corporation; granting to such attorneys
and agents, and each of them, full power of substitution and revocation in the
premises; and ratifying and confirming all that such attorneys and agents, or
any of them, may do or cause to be done by virtue of these presents.
In Witness Whereof, I have executed this Power of Attorney this 27th day of
April, 1995.
/s/ Arthur L. Johnson
--------------------------
Arthur L. Johnson
<PAGE> 9
EXHIBIT 24-1
POWER OF ATTORNEY
Know All Men By These Presents:
That the undersigned director or officer of MCN Corporation, a corporation
formed under the laws of the State of Michigan, does constitute and appoint
Alfred R. Glancy III, Daniel L. Schiffer and Patrick Zurlinden, and each of
them, his true and lawful attorneys and agents, each with full power and
authority (acting alone and without the others) to execute in the name and on
behalf of the undersigned as such director or officer, a Registration Statement
on Form S-3, including any post-effective amendments or other filings in
connection therewith, under the Securities Act of 1933, as amended, with
respect to the issuance of up to $200,000,000 maximum aggregate offering price
of debt securities of MCN Investment Corporation; granting to such attorneys
and agents, and each of them, full power of substitution and revocation in the
premises; and ratifying and confirming all that such attorneys and agents, or
any of them, may do or cause to be done by virtue of these presents.
In Witness Whereof, I have executed this Power of Attorney this 27th day of
April, 1995.
/s/ Dale A. Johnson
--------------------------
Dale A. Johnson
<PAGE> 10
EXHIBIT 24-1
POWER OF ATTORNEY
Know All Men By These Presents:
That the undersigned director or officer of MCN Corporation, a corporation
formed under the laws of the State of Michigan, does constitute and appoint
Alfred R. Glancy III, Daniel L. Schiffer and Patrick Zurlinden, and each of
them, her true and lawful attorneys and agents, each with full power and
authority (acting alone and without the others) to execute in the name and on
behalf of the undersigned as such director or officer, a Registration Statement
on Form S-3, including any post-effective amendments or other filings in
connection therewith, under the Securities Act of 1933, as amended, with
respect to the issuance of up to $200,000,000 maximum aggregate offering price
of debt securities of MCN Investment Corporation; granting to such attorneys
and agents, and each of them, full power of substitution and revocation in the
premises; and ratifying and confirming all that such attorneys and agents, or
any of them, may do or cause to be done by virtue of these presents.
In Witness Whereof, I have executed this Power of Attorney this 27th day of
April, 1995.
/s/ Helen O. Petrauskas
--------------------------
Helen O. Petrauskas
<PAGE> 11
EXHIBIT 24-1
POWER OF ATTORNEY
Know All Men By These Presents:
That the undersigned director or officer of MCN Corporation, a corporation
formed under the laws of the State of Michigan, does constitute and appoint
Alfred R. Glancy III, Daniel L. Schiffer and Patrick Zurlinden, and each of
them, his true and lawful attorneys and agents, each with full power and
authority (acting alone and without the others) to execute in the name and on
behalf of the undersigned as such director or officer, a Registration Statement
on Form S-3, including any post-effective amendments or other filings in
connection therewith, under the Securities Act of 1933, as amended, with
respect to the issuance of up to $200,000,000 maximum aggregate offering price
of debt securities of MCN Investment Corporation; granting to such attorneys
and agents, and each of them, full power of substitution and revocation in the
premises; and ratifying and confirming all that such attorneys and agents, or
any of them, may do or cause to be done by virtue of these presents.
In Witness Whereof, I have executed this Power of Attorney this 27th day of
April, 1995.
/s/ Howard F. Sims
--------------------------
Howard F. Sims
<PAGE> 1
EXHIBIT 24-2
POWER OF ATTORNEY
Know All Men By These Presents:
That the undersigned director or officer of MCN Investment Corporation, a
corporation formed under the laws of the State of Michigan, does constitute and
appoint Daniel L. Schiffer and Patrick Zurlinden, and each of them, his true
and lawful attorneys and agents, each with full power and authority (acting
alone and without the other) to execute in the name and on behalf of the
undersigned as such director or officer, a Registration Statement on Form S-3,
including any post-effective amendments or other filings in connection
therewith, under the Securities Act of 1933, as amended, with respect to the
issuance of up to $200,000,000 maximum aggregate offering price of debt
securities; granting to such attorneys and agents, and each of them, full power
of substitution and revocation in the premises; and ratifying and confirming
all that such attorneys and agents, or either of them, may do or cause to be
done by virtue of these presents.
In Witness Whereof, I have executed this Power of Attorney this 15th day of
September, 1995.
/s/ Alfred R. Glancy III
-----------------------
Alfred R. Glancy III
<PAGE> 2
EXHIBIT 24-2
POWER OF ATTORNEY
Know All Men By These Presents:
That the undersigned director or officer of MCN Investment Corporation, a
corporation formed under the laws of the State of Michigan, does constitute and
appoint Alfred R. Glancy III, Daniel L. Schiffer and Patrick Zurlinden, and
each of them, his true and lawful attorneys and agents, each with full power
and authority (acting alone and without the others) to execute in the name and
on behalf of the undersigned as such director or officer, a Registration
Statement on Form S-3, including any post-effective amendments or other filings
in connection therewith, under the Securities Act of 1933, as amended, with
respect to the issuance of up to $200,000,000 maximum aggregate offering price
of debt securities; granting to such attorneys and agents, and each of them,
full power of substitution and revocation in the premises; and ratifying and
confirming all that such attorneys and agents, or any of them, may do or cause
to be done by virtue of these presents.
In Witness Whereof, I have executed this Power of Attorney this 15th day of
September, 1995.
/s/ Rai P. K. Bhargava
-----------------------
Rai P. K. Bhargava
<PAGE> 3
EXHIBIT 24-2
POWER OF ATTORNEY
Know All Men By These Presents:
That the undersigned director or officer of MCN Investment Corporation, a
corporation formed under the laws of the State of Michigan, does constitute and
appoint Alfred R. Glancy III, Daniel L. Schiffer and Patrick Zurlinden, and
each of them, his true and lawful attorneys and agents, each with full power
and authority (acting alone and without the others) to execute in the name and
on behalf of the undersigned as such director or officer, a Registration
Statement on Form S-3, including any post-effective amendments or other filings
in connection therewith, under the Securities Act of 1933, as amended, with
respect to the issuance of up to $200,000,000 maximum aggregate offering price
of debt securities; granting to such attorneys and agents, and each of them,
full power of substitution and revocation in the premises; and ratifying and
confirming all that such attorneys and agents, or any of them, may do or cause
to be done by virtue of these presents.
In Witness Whereof, I have executed this Power of Attorney this 15th day of
September, 1995.
/s/ William K. McCrackin
-----------------------
William K. McCrackin
<PAGE> 4
EXHIBIT 24-2
POWER OF ATTORNEY
Know All Men By These Presents:
That the undersigned director or officer of MCN Investment Corporation, a
corporation formed under the laws of the State of Michigan, does constitute and
appoint Alfred R. Glancy III and Daniel L. Schiffer, and each of them, his true
and lawful attorneys and agents, each with full power and authority (acting
alone and without the other) to execute in the name and on behalf of the
undersigned as such director or officer, a Registration Statement on Form S-3,
including any post-effective amendments or other filings in connection
therewith, under the Securities Act of 1933, as amended, with respect to the
issuance of up to $200,000,000 maximum aggregate offering price of debt
securities; granting to such attorneys and agents, and each of them, full power
of substitution and revocation in the premises; and ratifying and confirming
all that such attorneys and agents, or either of them, may do or cause to be
done by virtue of these presents.
In Witness Whereof, I have executed this Power of Attorney this 15th day of
September, 1995.
/s/ Patrick Zurlinden
-----------------------
Patrick Zurlinden
<PAGE> 1
EXHIBIT 24-3
MCN INVESTMENT CORPORATION
DIRECTORS' CONSENT
MARCH 23, 1995
The undersigned, being all of the Directors of MCN Investment
Corporation, a Michigan corporation, acting pursuant to the provisions of
Section 3.7 of the By-Laws of the Corporation, do hereby consent to the
adoption of the following resolutions by the Board of Directors, to have the
same force and effect as though evidenced by the unanimous vote of the Board at
a meeting duly called for such purposes:
RESOLVED, That the officers of the Corporation, and each of
them, are authorized to borrow:
(a) on behalf of MCN Investment Corporation or
MCN Investment Corporation's subsidiaries;
(b) issuing promissory notes or other debt
instruments to, or entering into loan and financing
arrangements with, banks, insurance companies, and other
parties;
(c) in an aggregate amount of up to $400 million
for such term as the officers of the Corporation deem
appropriate to meet the Corporation's permanent and working
capital requirements; and
FURTHER RESOLVED, That the officers of the Corporation, and
each of them, are authorized to execute and deliver any and all such
documents on behalf of the Corporation, on such terms and conditions
as they may deem necessary and appropriate to effectuate the purposes
of the foregoing resolutions.
<PAGE> 2
RESOLVED, It is in the best interests of MCN
Investment Corporation ("MCNIC"), to issue, from time to time,
debentures, notes and/or other debt obligations (the "Debt
Securities") which may be denominated or payable in or issued for an
equivalent amount of foreign currencies or foreign currency units or
which may be issued at original issue discount, the aggregate amount
of Debt Securities hereby authorized being that amount as may result
in the initial offering prices to the public for all Debt Securities
aggregating up to $200 million, (determined in the case of foreign
currencies or foreign currency units based upon the equivalent in U.S.
Dollars).
FURTHER RESOLVED, That MCNIC is authorized, subject
to the limitations set forth below, to create, issue and sell the Debt
Securities on such terms and conditions as shall be determined by the
pricing committee of directors and officers of MCNIC (the "Pricing
Committee") appointed by the Board of Directors' resolutions.
FURTHER RESOLVED, That the Chairman of the Board,
Vice Chairman, or any Vice President (an "Authorized Officer") is
hereby authorized and empowered to execute and deliver on behalf of
MCNIC an indenture or indentures, including one or more supplements to
any indenture, in the form approved by them after consultation with
counsel and other advisors, under its corporate seal to be thereto
affixed and attested by its Secretary, with the Trustee or Trustees
appointed, such indenture or indentures, or supplement or supplements,
to be in such form and content and bear such date as may be approved
by the Authorized Officer executing the same, such approval to be
conclusively evidenced by the execution of said indenture or
indentures, or supplement or supplements.
FURTHER RESOLVED, That subject to the authority of
the Pricing Committee to determine any discount received by, or
commission paid to, any underwriters or agents, any one Authorized
Officer is hereby authorized and empowered to execute from time to
time, on behalf of MCNIC, an underwriting agreement or agreements or
any other type of agreement between MCNIC and the underwriter or
representatives of the underwriters appointed and named in such
underwriting agreement or agreements providing for the sale by MCNIC
and the purchase of Debt Securities by said underwriters or any agency
or distribution agreements with agents from time to time providing for
the solicitation of sales of the Debt Securities by such agents for
the term of their appointment (and any related terms agreements).
FURTHER RESOLVED, That any one Authorized Officer be,
and each of them hereby is, authorized, in the name and
- 2 -
<PAGE> 3
on behalf of MCNIC, to execute and deliver such other agreements,
documents, certificates, and instruments as may be required by any
Fiduciary in connection with an indenture or as may be necessary or
appropriate in connection with the issuance and sale of the Debt
Securities.
FURTHER RESOLVED, That any one Authorized Officer,
and each of them, is hereby authorized and empowered to execute the
Debt Securities in temporary and definitive form, under his manual or
facsimile signature and under the facsimile seal of MCNIC, attested by
the manual or facsimile signature of the Secretary.
FURTHER RESOLVED, That the Authorized Officers of
MCNIC be, and each of them hereby is, authorized, in the name and on
behalf of MCNIC to prepare, execute and file, or cause to be prepared
and filed, with the Securities and Exchange Commission (the "SEC") one
or more Registration Statements with respect to the Debt Securities
under the Securities Act of 1933, as amended, together with all
documents required as exhibits to said Registration Statement or
Statements, or any amendments or supplements thereto, and all
certificates, letters, instruments, applications and other documents
which may be required to be filed with the SEC with respect to the
registration and offering of Debt Securities, and to take any and all
actions that any such Authorized Officer shall deem necessary or
advisable.
FURTHER RESOLVED, That it is desirable and in the
best interest of MCNIC that the Debt Securities be qualified or
registered for sale in various states; that any Authorized Officer of
MCNIC is authorized to determine the states in which appropriate
action shall be taken to qualify or register for sale all or such part
of the Debt Securities as said officers may deem advisable; that said
officers are authorized to perform on behalf of MCNIC any and all such
acts as they may deem necessary or advisable in order to comply with
the applicable laws of any such states, and in connection therewith to
execute and file all requisite papers and documents, including, but
not limited to, applications, reports, surety bonds, irrevocable
consents and appointments of attorneys for service of process; and the
execution by such officers of any such paper or document or the doing
by them of any act in connection with the foregoing matters shall
conclusively establish their authority therefor from MCNIC and the
approval and ratification by MCNIC of the papers and documents so
executed and the actions so taken.
FURTHER RESOLVED, That the Authorized Officers of MCNIC be, and
each of them hereby is, authorized, in the
-3-
<PAGE> 4
name and on behalf of MCNIC, to make application to such securities
exchange as the officer acting shall deem necessary or appropriate for
the listing thereon of any issues of Debt Securities and that each
such officer, or such other person as such officer may designate, is
authorized to execute and deliver any and all papers and agreements,
and to do any and all things which may be necessary to effect such
listing, including registration of Debt Securities under the
Securities Exchange Act of 1934, as amended.
FURTHER RESOLVED, That the Authorized Officers of
MCNIC be, and each of them hereby is, authorized, and directed to do
and perform, or cause to be done and performed, all such acts, deeds
and things and to make, execute and deliver, or cause to be made,
executed and delivered, all such agreements, undertakings, documents,
instruments or certificates in the name and on behalf of MCNIC as each
such officer may deem necessary or appropriate to effectuate or carry
out fully the purpose and intent of the foregoing resolutions,
including the performance of the obligations of MCNIC under
Underwriting Agreements or Sales Agreements, selling Agency or
Distribution Agreements, Indentures, the Debt Securities, any
Registration Statement or any agreements related to the Debt
Securities.
Dated as of this 23rd day of March, 1995.
Rai P. K. Bhargava Alfred R. Glancy III
______________________________ _________________________
Rai P. K. Bhargava Alfred R. Glancy III
William K. McCrackin
_______________________
William K. McCrackin
-4-
<PAGE> 1
EXHIBIT 25-1
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED, OF A CORPORATION DESIGNATED
TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) ___
____________________________
NBD BANK
(Exact name of Trustee as specified in its charter)
611 Woodward Avenue
Detroit, Michigan 48226 38-0864715
(Address of principal (Zip Code) (I.R.S. Employer
executive offices) Identification No.)
NBD BANK
611 WOODWARD AVENUE
DETROIT, MICHIGAN 48226
CORPORATE TRUST DEPARTMENT
ATTN: JOSEPH L. WEIDENBACH (313) 225-2211
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
MCN INVESTMENT CORPORATION
(Exact name of obligor as specified in its charter)
Michigan 38-2663964
(State or jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
150 W. Jefferson Ave., Suite 1800
Detroit, Michigan 48226
(Address of principal executive offices) (Zip Code)
% SENIOR DEBT SECURITIES
(Title of the indenture securities)
<PAGE> 2
1. GENERAL INFORMATION
(a) The following are the names and addresses of each examining or
supervising authority to which the Trustee is subject:
State of Michigan Department of Commerce Financial
Institutions Bureau, Lansing, Michigan
Federal Reserve Bank of Chicago, Chicago, Illinois
Federal Deposit Insurance Corporation, Washington, D.C.
(b) The Trustee is authorized to exercise corporate trust powers.
2. AFFILIATIONS WITH OBLIGOR.
The obligor is not an affiliate of the Trustee.
3. VOTING SECURITIES OF THE TRUSTEE.
The following information is furnished as to each class of voting
securities of the Trustee:
<TABLE>
<CAPTION>
AS OF SEPTEMBER 15, 1995
<S> <C>
-------------------------------------------------------------------------------------------
COLUMN A COLUMN B
-------------------------------------------------------------------------------------------
TITLE OF CLASS AMOUNT OUTSTANDING
-------------------------------------------------------------------------------------------
Common Stock, par value $12.50 per share 8,948,648 shares
</TABLE>
4. TRUSTEESHIPS UNDER OTHER INDENTURES.
The Trustee is Trustee under another Indenture, dated September 1,
1994, with MCN Corporation ("MCN"), the parent company of MCN Investment
Corporation ("MCN Investment"), securing an issue of $101,100,000 9-3/8%
Series A Subordinated Deferrable Interest Debt Securities due November 30,
2024. The Trustee is not aware of any default under this existing
Indenture.
5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR
OR UNDERWRITERS.
Neither the Trustee nor any of the directors nor executive officers of
the Trustee is a director, officer, partner, employee, appointee or
representative of the underwriter for the obligor.
Alfred R. Glancy III, Chairman, President and CEO of MCN, and Chairman
of MCN Investment, is a member of the Board of Directors of NBD Bancorp, Inc.
Thomas H. Jeffs II, President and Chief Operating Officer of NBD
Bancorp, Inc. and NBD Bank is a member of the Board of Directors of MCN.
<PAGE> 3
6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS.
Voting securities of the Trustee owned by the obligor and its
directors, partners and executive officers, taken as a group, do not
exceed one percent of the outstanding voting securities of the Trustee.
7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR OFFICIALS.
Voting securities of the Trustee owned by any underwriter and its
directors, partners and executive officers, taken as a group, do not exceed
one percent of the outstanding voting securities of the Trustee.
8. SECURITIES OF OBLIGOR OWNED OR HELD BY THE TRUSTEE.
The amount of securities of the obligor which the Trustee owns
beneficially or holds as collateral security for obligations in default does
not exceed one percent of the outstanding securities of the obligor.
9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
The Trustee does not own beneficially or hold as collateral security
for obligations in default any securities of an underwriter for the obligor.
10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
The Trustee does not own beneficially or hold as collateral security
for obligations in default voting securities of a person who, to the
knowledge of the Trustee (1) owns 10% or more of the voting securities of the
obligor, or (2) is an affiliate, other than a subsidiary, of the obligor.
11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON OWNING
50 PER CENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
The Trustee does not own beneficially or hold as collateral security
for obligations in default any securities of a person who, to the
knowledge of the Trustee, owns 50 percent or more of the voting securities of
the obligor.
<PAGE> 4
12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE AS OF SEPTEMBER 15, 1995.
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
COLUMN A COLUMN B COLUMN C
- ----------------------------------------------------------------------------------------------------------------------------------
NATURE OF INDEBTEDNESS AMOUNT OUTSTANDING DATE DUE
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
$30 million participation in a $300 million $0 July 30, 1998
revolving credit facility
Standby letter of credit $455,828.94 June 30, 1996
Standby letter of credit $25,000.00 August 2, 1996
Standby letter of credit $25,000.00 November 21, 1995
Standby letter of credit $25,000.00 November 21, 1995
Standby letter of credit $25,000.00 November 21, 1995
Standby letter of credit $25,000.00 September 1, 1996
</TABLE>
13. DEFAULTS BY THE OBLIGOR.
Not applicable.
14. AFFILIATIONS WITH THE UNDERWRITERS.
No underwriter is an affiliate of the Trustee.
15. FOREIGN TRUSTEE.
Not applicable.
16. LIST OF EXHIBITS.
(1) Articles of Association of the Trustee. Attached hereto as
Exhibit A.
(2) Certificate of Authority of the Trustee to commence business.
See Exhibit A.
(3) Authorization of the Trustee to exercise corporate trust
powers. Attached hereto as Exhibit B.
(4) By-Laws of the Trustee. Attached hereto as Exhibit C.
(5) Not Applicable.
<PAGE> 5
(6) Consent by the Trustee required by Section 321 (b) of the
Trust Indenture Act of 1939. Incorporated by reference to
Exhibit (6) filed with Amendment No. 1 to Form T-1 Statement,
Registration No. 22-4501.
(7) Report of condition of Trustee. Attached hereto as Exhibit D.
(8) Not applicable.
(9) Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended,
the Trustee, NBD Bank, a Michigan banking corporation, has duly caused this
statement of eligibility and qualification to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Detroit, State of
Michigan on the 15th day of September, 1995.
NBD BANK
(Trustee)
By:/s/ Joseph L. Weidenbach
____________________________
Joseph L. Weidenbach
Trust Officer
<PAGE> 6
EXHIBIT A
NBD BANK
DETROIT, MICHIGAN
Charter No. 970
ARTICLES OF INCORPORATION
EFFECTIVE JANUARY 1, 1995
FIRST.
The name of this Bank shall be NBD Bank.
SECOND.
The place where the principal office of this Bank is located is in the City of
Detroit, Wayne County, State of Michigan.
The Board of Directors shall have the power to change the location of the main
office anywhere within the City of Detroit without the approval of the
shareholders and shall have the power to establish or change the location of
any branch or branches of this Bank to any other location without the approval
of the shareholders.
THIRD.
The purpose of this Bank is to carry on the business of banking pursuant to the
Michigan Banking Code of 1969, as amended.
FOURTH.
The authorized amount of the capital stock of this Bank shall be 10,000,000
shares of common stock of the par value of $12.50 each. The authorized amount
of the capital stock of this Bank may be increased or decreased from time to
time in accordance with provisions of the laws of the State of Michigan.
FIFTH.
The period for which this Bank is organized is perpetual.
SIXTH.
A Director of the Bank shall not be personally liable to the Bank or its
shareholders for monetary damages for a breach of fiduciary duty as a Director,
except for liability: (a) for any breach of the Director's duty of loyalty to
the Bank or its shareholders; (b) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law; (c)
resulting from a violation of Section 43 of the Michigan Banking Code, as
amended; (d) for any transaction from which the Director derived an improper
personal benefit; or (e) for any act or omission occurring prior to the date
upon which this Article is duly adopted and filed as required by law. If,
following approval of this Article by the shareholders, the Michigan Banking
Code is amended to authorize corporate action further eliminating or limiting
the personal liability of
<PAGE> 7
Directors, then the liability of a Director of the Bank shall be eliminated or
limited to the fullest extent permitted by the Michigan Banking Code, as
amended. Any repeal, modification or adoption of any provisions in these
Articles of Incorporation inconsistent with this Article shall not adversely
affect any right or protection of a Director of the Bank existing at the time of
such repeal, modification or adoption.
SEVENTH.
These Articles of Incorporation may be changed or amended at any time by a vote
of the shareholders owning a majority of the stock of this Bank in any manner
not inconsistent with the provisions of law.
<PAGE> 8
EXHIBIT B
STATE OF MICHIGAN
DEPARTMENT OF COMMERCE
FINANCIAL INSTITUTIONS BUREAU
[STATE EMBLEM]
OFFICE OF THE COMMISSIONER
I, Patrick M. McQueen, Commissioner, do hereby certify, that
NBD BANK
in the City of Detroit, County of Wayne, State of Michigan, a financial
institution existing and operating under the provisions of the banking code of
1969, having satisfactorily complied with all statutory requirements obtaining
in such matter, is hereby authorized to exercise FULL TRUST POWERS as provided
in sections 181 through 186 of the banking code of 1969, effective 11:59 p.m.
on December 31, 1994.
[STATE SEAL] SIGNED AND SEALED this 21st day of
DECEMBER 1994, at Lansing, Michigan.
/s/ Patrick M. McQueen
----------------------
Patrick M. McQueen
Commissioner
<PAGE> 9
EXHIBIT C
NBD BANK
DETROIT, MICHIGAN
________________________________________________________________
BYLAWS
EFFECTIVE JANUARY 1, 1995
________________________________________________________________
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. Annual Meetings. The regular Annual Meeting of the stockholders of
this Bank for the election of directors and for the transaction of any other
business as may properly come before the meeting shall be held on the third
Monday in May of each year or at such other date as from time to time may be
designated by the Board of Directors. If the election of directors shall not
be held on the day designated for an annual meeting, or at any adjournment
thereof, the Board of Directors shall cause the election to be held at a
meeting of the stockholders as soon thereafter as convenient. Nominations for
election to the Board of Directors may be made by the Board of Directors or by
any stockholders entitled to vote for the election of directors.
Section 2. Special Meetings. Except as otherwise specifically provided by
statute, special meetings of the stockholders may be called for any purpose at
any time by the Board of Directors or by the holders of at least ten per cent
(10%) of the then outstanding shares of stock.
Section 3. Place of Meetings. Annual meetings or special meetings of the
stockholders shall be held at the main office of the Bank or at such other
place within or without the State of Michigan as is established by the Board of
Directors.
Section 4. Proxies. All proxies secured for any annual or special meeting of
stockholders shall be dated and filed by the Secretary with the records of the
meeting.
Section 5. Notice of Meetings. Written notice stating the place, day and hour
of the meeting and, in case of a special meeting, the purpose or purposes for
which the meeting is called, shall be delivered not less than ten days, before
the date of the meeting either personally or by mail, by or at the direction of
the President, or the Secretary, or the officer or persons calling the meeting
to each stockholder of record entitled to vote at such meeting. If mailed,
such notices shall be deemed to be delivered when deposited in the United
States mail, addressed to the stockholder at his address as it appears on the
records of the Bank with postage thereon prepaid. Such notice may be waived in
writing.
Section 6. Fixing the Record Date. For the purpose of determining stockholders
entitled to
<PAGE> 10
notice of or to vote at any meeting of stockholders, annual or special, or
entitled to receive payment of any dividend, or in order to make a
determination of stockholders for any other proper purpose, the Board of
Directors shall fix in advance a record date and hour for any such
determination of stockholders, such date in any case to be not more than fifty
(50) days and, in case of a meeting of stockholders, not less than ten (10)
days prior to the date on which the particular action, requiring such
determination of stockholders, is to be taken. When a determination of
stockholders entitled to vote at any meeting of stockholders has been made as
provided in this section, such determination shall apply to any adjournment
thereof.
Section 7. Stockholders' Action Without A Meeting. Unless otherwise
restricted in the Articles of Incorporation or these Bylaws, any action which
may be taken at the annual or any special meeting of stockholders may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by all stockholders
entitled to vote with respect to the subject matter thereof.
ARTICLE II
DIRECTORS
Section 1. Size and Vacancies. The Board of Directors shall consist of such
number of persons, not less than five nor more than twenty-five, as from time
to time shall be determined by a majority of the votes to which all
stockholders are at the time entitled or by resolution adopted by the
affirmative vote of a majority of the Board of Directors. Any vacancies in the
Board of Directors may be filled by action of a majority of the remaining
Directors between meetings of stockholders. Subject to the limitation as to
the number of Directors, the stockholders may elect not to exceed two less than
the full Board, and the unfilled directorships shall be considered as vacancies
and may be filled thereafter by the Board of Directors.
Section 2. Powers. The Board of Directors, a majority of whom shall be a
quorum to transact business, shall have power to manage and administer the
business and affairs of the Bank and to prescribe Bylaws for the regulation of
the business of the Bank and the conduct of its affairs not inconsistent with
law, the Articles of Incorporation and these Bylaws. Except as expressly
limited by law, all corporate powers of the Bank shall be vested in and may be
exercised by the Board of Directors.
Section 3. Officers and Employees. The Board of Directors shall have power to
elect or appoint such officers and employees as may be required to transact the
business of the Bank, to define their duties, to require bonds from them and to
fix the penalty thereof, and to continue them in office or dismiss them.
Section 4. Meetings. The regular meetings of the Board of Directors shall be
held on such date and at such time each month, within or without the State of
Michigan as shall from time to time be determined by the Board of Directors by
resolution, except that in the month in which the regular annual meeting of the
stockholders is held, the regular meeting of the Board of Directors shall be
held following and on the same day as the regular meeting of the stockholders.
When any regular meeting of the Board of Directors falls upon a holiday, the
meeting shall be held on
<PAGE> 11
such other day as the Board of Directors may previously designate. Special
meetings of the Board of Directors may be called at any time by the Secretary or
by any officer of higher rank than Vice President, or any three Directors.
Notice of each special meeting shall be given personally or by duly mailing,
telephoning, or telegraphing the same, at least twenty-four hours before the
meeting. Any or all Directors may waive notice of any meeting either before or
after the meeting.
Section 5. Participation In Meetings By Telephone. Unless otherwise
restricted by the Articles of Incorporation or these Bylaws, members of the
Board of Directors or any committee designated by the Board may participate in
a meeting of the Board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
Section 6. Directors' Action Without A Meeting. Unless otherwise restricted
by the Articles of Incorporation or these Bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if a written consent thereto
is signed by all members of the Board or of such committee as the case may be,
and such written consent is filed with the minutes of proceedings of the Board
or committee.
ARTICLE III
COMMITTEES OF THE BOARD
Section 1. Executive Committee. There shall be a committee composed of not
less than four (4) members to be known as the Executive Committee which shall
consist of all the officer-directors of the Bank and two (2) other directors
appointed as shall be provided by the Board of Directors. Provision shall be
made by the Board of Directors for the appointment of alternates to act for
members in the event of their absence or disability.
1.1 Presiding Officer. The Chairman of the Board shall act as presiding
officer at any meeting of the Executive Committee. In the event of the absence
or disability of the Chairman of the Board, the President shall act as
presiding officer. In the event of the absence or disability of the Chairman
of the Board and President, another officer-director, if present, shall act as
presiding officer. If no officer-director member is present, an Executive
Vice President of the Bank may serve as the presiding officer or the other
members present at the meeting shall elect one of their members as presiding
officer.
1.2 Quorum. Any two (2) persons, each of whom is a member or alternate
member of the Executive Committee, of whom not less than one (1) shall be
non-officer directors, shall constitute a quorum for the transaction of
business at any meeting of the Executive Committee.
1.3 Duties. The Executive Committee shall function from day to day or
such other short intervals as shall be found requisite and expedient in the
carrying on of the business and affairs of the Bank, and between meetings of the
Board of Directors, said Committee, within the scope of the jurisdiction and
functions assigned by the Board of Directors to such Committee, shall
<PAGE> 12
have and may exercise, so far as may be permitted by law, all power and
authority of the Board of Directors (including the right to authorize the seal
of the Bank to be affixed to all instruments on which the same may be required
or appropriate) and shall have power, but not by way of limitation of its
general powers, to discount and purchase bills, notes, and other evidences of
debt, and to buy and sell bills of exchange. A record of the meetings of the
Committee shall be kept, which shall be accessible to inspection by the
Directors at all times, and the Committee shall, at each regular meeting of the
Board of Directors and at such other times as the Board of Directors may
request, submit in writing a full report of its actions. The Board of Directors
shall approve or disapprove the report of the Executive Committee, such action
to be recorded in the minutes of the meeting; provided, however, that no rights
of third parties shall be affected by any action of the Board of Directors, if
such rights have attached by virtue of action of the Executive Committee within
the scope of the jurisdiction and functions assigned by the Board of Directors
to said Committee.
Section 2. Audit Committee. There shall be appointed annually by the Board of
Directors an Audit Committee composed of not less than three (3) Directors none
of whom shall be officers of the Bank.
2.1 Duties. The Audit Committee shall:
(i) Cause to be made by the Auditing Department of the Bank a
suitable examination of the financial records and operations of the Bank
through a program of continuous internal audits. The Committee may employ
independent certified public accounting firms of recognized standing to make
such additional examinations and audits as it may deem advisable. The
examinations caused to be made by the Committee shall meet any examination
requirements prescribed from time to time by the Michigan Financial
Institutions Bureau or other regulatory authorities having jurisdiction and may
be made in conjunction with examinations of the Michigan Financial Institutions
Bureau.
(ii) Report to the Board of Directors at least once in each
calendar year the results of the examinations made and such conclusions and
recommendations as the Committee deems appropriate.
Section 3. Other Committees. The Board of Directors may create and appoint
such other committees as it may, at any time or from time to time, find
necessary or desirable to facilitate and expedite the management and
administration of the affairs of the Bank. The Board of Directors shall have
power to specify the number of members of any such other committee, to
designate the powers and duties of any such other committee, and to provide for
the tenure in office of its members, its method of organization, and its
procedure for the transaction of business.
ARTICLE IV
OFFICERS
<PAGE> 13
Section 1. Appointment and Titles. The officers of this Bank shall include a
Chairman of the Board and a President and may include one or more Vice Chairman
of the Board, each of whom shall be a member of the Board of Directors, and
shall further include one or more Vice Presidents, a Secretary, one or more
Assistant Secretaries, and such other officers as may be from time to time
required for the prompt and orderly transaction of its business, to be elected
by the Board of Directors. The same person may hold any two or more offices,
and in any such case, these Bylaws shall be construed and understood
accordingly; provided that the same person may not hold the offices of Chairman
of the Board and Secretary or President and Secretary. The duties and
authorities of the officers of the Bank, other than those mentioned in these
Bylaws, shall be those usually pertaining to their respective offices, or as
may be designated by the Chairman of the Board, subject to the supervision and
direction of the Board of Directors.
Section 2. Term of Office of Officer-Directors. The Chairman of the Board,
the President and any Vice Chairman of the Board shall hold office for the
current year for which the Board of Directors of which they shall be members
was elected, unless they shall resign, become disqualified, or be removed; and
any vacancy occurring in any of such offices may be filled by the remaining
members of the Board of Directors.
Section 3. Chairman of the Board and President. The Chairman of the Board
shall be the chief executive officer of the Bank, shall preside at meetings of
stockholders and directors, shall have general supervision and direction of the
business of the Bank, and perform such other duties as may be designated by the
Board of Directors. The President shall perform such duties as may be
designated by the Board of Directors and, in the event of the absence or
disability of the Chairman of the Board, shall have his powers and duties. The
Vice Chairman of the Board shall perform such duties as may be designated by
the Board of Directors.
Section 4. Officers. All other officers shall be elected to hold their
respective offices at the pleasure of the Board of Directors of the Bank, and
shall have such duties, other than those mentioned herein, as shall be
prescribed by the Board of Directors.
Section 5. Secretary. The Secretary or Assistant Secretary or other officers
designated by the Board of Directors shall be responsible for stock books and
records, and other valuables of the Bank, and shall keep accurate minutes of
all meetings. The Secretary shall attend to the giving of all notices required
by these Bylaws to be given. He shall be custodian of the corporate seal,
records, documents and papers of the Bank. He shall provide for the keeping of
proper records of all transactions of the Bank. The Secretary, or Assistant
Secretary in his absence, shall have the power to sign indemnity agreements and
appoint agents by executing powers of attorney or such other similar documents
deemed necessary in the ordinary course of transacting the Bank's business. He
shall serve as Cashier, and he or his Deputy Cashiers shall have and may
exercise any and all other powers and duties pertaining by law, regulation or
practice, to the office of the Cashier, or imposed by these Bylaws. He shall
also perform such other duties as may be assigned to him, from time to time, by
the Board of Directors.
Section 6. Officers, Employees and Agents. All other officers, employees and
agents of this Bank shall be responsible for all such sums of money and
property of every kind as may be entrusted to their care or placed in their
hands by the Board of Directors, or otherwise come into
<PAGE> 14
their hands as officers, employees or agents; and shall qualify under the
bankers blanket bond covering the bank officers and employees, approved as to
type and amount from year to year by the Board of Directors, conditioned for
the honest and faithful discharge of their duties as such officers, employees
or agents, and that they will faithfully and honestly apply and account for all
sums of money and other property of this Bank that may come into their hands as
such officers, employees or agents and pay over and deliver the same to the
order of the Board of Directors, or to any other person or persons authorized
by the Board of Directors to receive the same.
ARTICLE V
SEAL
The Board may adopt a seal of the Bank in any form including a raised
impression or a stamp bearing the name of the Bank and the city and state of
its principal place of business. The Secretary shall be the official custodian
of the seal and shall be responsible for the safekeeping and proper use
thereof. The seal shall not be used or affixed to any paper or document
whatsoever except by the Secretary or any Assistant Secretary, or such other
officers or employees of the Bank as may be authorized by the Secretary or any
Assistant Secretary to affix the seal.
ARTICLE VI
EXECUTION OF INSTRUMENTS
Section 1. Conveyance of Real Estate. All transfers and conveyances of real
estate shall be made by the Bank, under seal, and shall be signed by the
President or any Vice President or any other officer, employee or agent of the
Bank as may be designated by the Secretary, and shall be attested by the
Secretary or any Assistant Secretary, or such other officer or employee of this
Bank as may be authorized by the Secretary to affix the seal.
Section 2. Contracts. All contracts, checks, drafts, etc., shall be signed by
the Secretary, or any officer of the rank of Vice President or higher rank, or
any other officer or employee designated by the Secretary.
Section 3. Absence of Resolution. No resolution of the Board of Directors
shall be necessary in order to authorize the execution, acknowledgement or
verification of any document by any officer who is authorized under these
Bylaws to do so, and he or she shall have full authority to act as if he or she
were duly authorized by resolution of the Board of Directors in each particular
case.
<PAGE> 15
ARTICLE VII
BANKING HOURS
The Bank shall be open for business upon such hours of each day of the
year as the Chief Executive Officer or his delegate shall from time to time
direct and the Chief Executive Officer or his delegate may, in his discretion,
prescribe different banking hours for different classes of business and
different banking hours for one or more branch offices, than prescribed for the
principal banking office.
ARTICLE VIII
MINUTE BOOK
The organization papers of this Bank, the returns of the judges of the
elections, the proceedings of all regular and special meetings of the Board of
Directors and of the stockholders, the Bylaws and any amendments thereto, and
reports of the committees of the Board of Directors shall be recorded in the
minute book and the minutes of each meeting shall be signed by the person
presiding at such meeting and attested by the Secretary.
ARTICLE IX
TRANSFERS OF STOCK
Section 1. Transfers. The stock of this Bank shall be assignable and
transferable only on the books of this Bank, subject to the restrictions and
provisions of the law; and a transfer book shall be provided in which all
assignments and transfers of stock shall be made.
Section 2. Record Date. The stock transfer books of the Bank shall not be
closed for the determination of stockholders entitled to dividends, but any
dividend can be made payable to stockholders of record on the date such
dividend is declared, or any subsequent date. The Bank shall be fully
protected in giving notices of meetings, paying dividends and doing such other
things as require a knowledge of the names of the stockholders of the Bank, in
relying upon the names of the stockholders as they appear upon the stock books
of the Bank.
Section 3. Form and Issuance. Certificates of stock, bearing the manual or
facsimile signature of the Chairman of the Board, President or any Vice
President, and the Secretary, or the manual or facsimile signature of any two
of such other employees of the Bank as may be designated for such purpose from
time to time by resolution of the Board of Directors, and bearing the impressed
or facsimile seal of the Bank, may be issued to stockholders. The death,
resignation, discharge or incapacity of any person whose manual or facsimile
signature appears on any certificate, shall not affect the validity of such
certificate of stock, whether such certificate has theretofore or is thereafter
issued. All certificates of stock shall state upon the face thereof that the
stock is transferable only upon the books of the Bank; and when stock is
transferred, the certificates therefore shall be returned to the Bank,
canceled, preserved and new certificates issued.
<PAGE> 16
ARTICLE X
PROXIES AND CONSENTS
Proxies to vote and written consent with respect to shares of stock of
other corporations owned by or standing in the name of the Bank may be executed
and delivered from time to time on behalf of the Bank by two officers, one of
whom shall be the Chairman, President, Executive Vice President, Senior Vice
President or a Vice President and the other of whom shall be the Secretary or
an Assistant Secretary of the Bank; or by any other person or persons duly
authorized by the Board of Directors.
ARTICLE XI
TRUST DIVISION
Section 1. Exercise of Fiduciary Powers. All fiduciary powers of the Bank
shall be exercised through the Trust Division under the supervision of the
Trust Committee, subject to the Michigan Banking Code and subject to such
regulations as the Michigan Financial Institutions Bureau shall from time to
time establish. All books and records relating to fiduciary activities shall
be kept separate and distinct from the other books and records of the Bank.
Section 2. Officer in Charge. The Trust Division shall be placed under the
management and immediate supervision of an officer in charge appointed by the
Board of Directors. The duties of such officer shall be to cause the policies
and instructions of the Board of Directors, the chief executive officer and the
Trust Committee, with respect to the fiduciary accounts entrusted to the Bank,
to be carried out, and to supervise the due performance of such accounts in
accordance with law and their terms.
Section 3. Other Officers. Any other officer specifically appointed for the
performance of fiduciary activities shall exercise such powers and perform such
duties as are prescribed by these Bylaws, or as may be assigned to them by the
Board of Directors, the chief executive officer or the officer in charge of
fiduciary activities.
Section 4. Signature and Authentication of Instruments. All instruments in
which the Bank is named as Trustee or in any other fiduciary capacity and all
authentications or certificates by the Bank as Trustee under any mortgage, deed
of trust or other instrument securing bonds, debentures, notes or other
obligations of any individual, association or corporation, and all certificates
as Registrar or Transfer Agent and all certificates of deposit for stocks and
bonds, interim certificates, trust certificates and any other certificates,
document or instrument requiring execution may be signed or countersigned in
behalf of the Bank by any Trust Officer or officer of equal or higher rank
specifically elected or appointed for the performance of fiduciary duties or
the Secretary or any officer of the rank of Vice President or higher rank or by
any other person appointed for that purpose by the Board of Directors.
<PAGE> 17
Section 5. Custody of Investments. The investments of each fiduciary account
shall be kept separate from the assets of the Bank, and shall be placed in the
joint custody or control of not less than two of the officers or employees of
the Bank designated for that purpose by the Board of Directors. All such
officers and employees shall be adequately bonded. The investments of each
such fiduciary account shall be either: kept separate from those of all other
accounts, except as provided under the regulations of the Michigan Financial
Institutions Bureau for collective investment, or adequately identified as the
property of the relevant account.
Section 6. Trust Committee. There shall be a Trust Committee which shall be
composed of not less than five (5) members of the Board of Directors, at least
three (3) of whom shall be non-officer directors, and may include one or more
officers of the Bank who are not directors, appointed by the Board of Directors
to serve during its pleasure. The Trust Committee shall have general
supervision of and shall determine the policies relating to the administration
of fiduciary relationships. It shall have general supervision of the Trust
Division, the other committees to which the exercise of fiduciary powers of the
Bank are assigned, and the investment of funds and disposition of investments
held by the Bank in a fiduciary capacity. It shall have such other powers and
duties relating to the administration of fiduciary accounts entrusted to the
Bank as may be conferred upon it from time to time by the Board of Directors.
The Trust Committee shall meet at least once a month and shall keep minutes of
its meetings showing the disposition of all matters considered and passed upon,
and shall make monthly reports to the Board of Directors. Any three (3)
persons, each of whom is a member of the Trust Committee, of whom not less than
two (2) shall be nonofficer directors, shall constitute a quorum for the
transaction of business at any meeting of the Trust Committee.
ARTICLE XII
QUORUM
Except as otherwise provided by statute or in the Articles of Incorporation
or these Bylaws, a majority of all the stockholders or Directors, as the case
may be, shall be required to constitute a quorum to do business. Should there
be no quorum at any regular or special meeting of stockholders or Directors,
the stockholders or Directors present may adjourn from day to day until a
quorum is in attendance.
ARTICLE XIII
INDEMNIFICATION AND INSURANCE
The Bank shall indemnify and reimburse any director, officer, employee, or
agent to the fullest extent permitted by the laws of the State of Michigan, as
amended from time to time.
<PAGE> 18
ARTICLE XIV
AMENDMENTS TO BYLAWS
These Bylaws may be repealed, altered, or amended, in whole or in part, by
the vote of a majority of the Directors, at any regular or special meeting of
the Board of Directors.
CERTIFICATION
I, _________________________________, ________________________________ of NBD
Bank of Detroit, Michigan, certify that the foregoing is a true and exact copy
of the Articles of Incorporation and Bylaws of NBD Bank effective January 1,
1995.
IN WITNESS WHEREOF, I have executed this certification and caused the corporate
seal of the Bank to be affixed on _______________________, 19___ .
_________________________________________
<PAGE> 19
EXHIBIT D
Charter No. 13671 Comptroller of the Currency District
REPORT OF CONDITION CONSOLIDATING
DOMESTIC AND FOREIGN SUBSIDIARIES OF THE
NBD BANK
in the State of Michigan, at the close of business on
June 30, 1995, Published in response to call made by Comptroller
of the Currency, under title 12, United States Code, Section 161.
<TABLE>
<CAPTION>
ASSETS
Thousands
of dollars
<S> <C>
Cash and balances due from depository institutions
Noninterest-bearing balances and currency
and coin........................................ 1,430,852
Interest-bearing balances....................... 578,134
Securities:
Held-to-maturity securities..................... 5,368,700
Available-for-sale securities................... 2,305,758
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and of its Edge and Agreement
subsidiaries, and in IBFs:
Federal funds sold.......................... 864,881
Securities purchased
under agreements to resell................. 162,937
Loans and lease financing receivables:
Loans and leases, net of unearned income........ 19,072,346
LESS: Allowance for loan and lease losses....... 243,726
Loans and leases, net of unearned income and
allowance....................................... 18,828,620
Assets held in trading accounts..................... 218,769
Premises and fixed assets (including
capitalized leases)............................. 312,245
Other real estate owned............................. 14,030
Investments in unconsolidated subsidiaries and
associated companies............................ 0
Customers' liability to this bank on acceptances
outstanding..................................... 174,911
Intangible assets................................... 36,323
Other assets........................................ 674,657
----------
Total assets........................................ 30,970,817
==========
LIABILITIES
Deposits:
In domestic offices............................. 15,501,033
Noninterest-bearing......................... 4,298,090
Interest-bearing............................ 11,202,943
In foreign offices, Edge and Agreement
subsidiaries, and IBFs.......................... 3,658,783
Noninterest-bearing......................... 61,481
Interest-bearing............................ 3,597,302
Federal funds purchased and securities sold
under agreements to repurchase in domestic
offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
Federal funds purchased..................... 953,342
Securities sold under
agreements to repurchase................... 1,526,684
Demand notes issued to the U.S. Treasury............ 873,583
Trading liabilities................................. 81,760
Other borrowed money:
With original maturity of one year or less.. 3,397,638
With original maturity of
more than one year......................... 1,559,917
Mortgage indebtedness and obligations
under capitalized leases........................ 15,228
Bank's liability on acceptances executed and
outstanding..................................... 174,911
Notes and debentures subordinated to
deposits........................................ 700,000
Other liabilities................................... 514,043
----------
Total liabilities................................... 28,956,922
==========
EQUITY CAPITAL
Common stock........................................ 111,858
Surplus............................................. 619,544
Undivided profits and capital reserves.............. 1,308,287
Net unrealized holding gains (losses)
on available-for-sale securities................... (35,238)
Cumulative foreign currency translation
adjustments..................................... 9,444
----------
Total equity capital................................ 2,013,895
----------
Total liabilities and equity capital................ 30,970,817
==========
</TABLE>
I, Jason N. Hansen, Second Vice President of the above-named bank
do hereby declare that this Report of Condition is true and correct
to the best of my knowledge and belief.
JASON N. HANSEN
July 27, 1995
We, the undersigned directors, attest to the correctness of this
statement of resources and liabilities. We declare that it has been examined
by us, and to the best of our knowledge and belief has been prepared in
conformance with the instructions and is true and correct. WILLIAM T.
McCORMICK, JR. JOHN E. LOBBIA THOMAS H. JEFFS II Directors
