<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 29, 1994
REGISTRATION NO. 33-
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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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MCN CORPORATION MCN MICHIGAN LIMITED PARTNERSHIP
(Exact name of registrant (Exact name of coregistrant
as specified in its as specified in its charter)
charter)
MICHIGAN MICHIGAN
(State or other (State or other jurisdiction of
jurisdiction Incorporation or organization)
of Incorporation or
organization)
38-2820658 APPLIED FOR
(I.R.S. Employer (I.R.S. Employer Identification
Identification No.) No.)
500 GRISWOLD STREET
DETROIT, MICHIGAN 48226
(313) 256-5500
(Address, including zip code, and telephone number, including
area code, of registrants' principal executive office)
------------------
DANIEL L. SCHIFFER, ESQ., 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)
------------------
Copy to:
WILLIAM S. LAMB, ESQ.
MICHAEL GROLL, ESQ.
LEBOEUF, LAMB, GREENE & MACRAE
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/
CALCULATION OF REGISTRATION FEE
<TABLE>
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF TO BE PRICE PER OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED SECURITY(1) PRICE(1) FEE
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<S> <C> <C> <C> <C>
MCN Corporation Senior Debt Securities
MCN Corporation Subordinated Debt Securities
MCN Corporation Common Stock, $.01 par value(2)
MCN Michigan Limited Partnership Preferred
Securities {$300,000,000 100% $300,000,000 $103,448
MCN Guarantee with respect to MCN Michigan Limited
Partnership Preferred Securities(3)
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</TABLE>
(1) Estimated solely for the purposes of calculating the registration fee.
(2) Includes Preferred Share Purchase Rights ("Rights"). The Rights are
associated with and trade with the Common Stock. The value, if any,
attributable to the Rights is reflected in the market price of the Common
Stock.
(3) No separate consideration will be received for the Guarantee offered with
respect to the MCN Michigan Limited Partnership Preferred Securities.
------------------
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 supplement 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 SEPTEMBER 29, 1994
PROSPECTUS SUPPLEMENT
(TO PROSPECTUS DATED , 1994)
PREFERRED SECURITIES
MCN MICHIGAN LIMITED PARTNERSHIP
% CUMULATIVE PREFERRED SECURITIES, SERIES A
(LIQUIDATION PREFERENCE $25 PER PREFERRED SECURITY)
GUARANTEED TO THE EXTENT SET FORTH HEREIN BY
[LOGO]
------------------------
The % Cumulative Preferred Securities, Series A (the "Series A
Preferred Securities"), representing the limited partner interests offered
hereby are being issued by MCN Michigan Limited Partnership, a limited
partnership formed under the laws of the State of Michigan ("MCN Michigan"). MCN
Corporation, a Michigan corporation ("MCN", the "Company" or the "General
Partner"), is the General Partner in MCN Michigan. MCN Michigan exists for the
sole purpose of issuing its limited partnership interests and investing the
proceeds thereof in debt securities of MCN. The limited partner interests
represented by the Series A Preferred Securities will have a preference with
respect to cash distributions and amounts payable on liquidation over the
General Partner's interest in MCN Michigan.
(continued on next page)
------------------------
SEE "INVESTMENT CONSIDERATIONS" FOR CERTAIN INFORMATION RELEVANT TO AN
INVESTMENT IN THE SERIES A PREFERRED SECURITIES, INCLUDING THE PERIOD AND
CIRCUMSTANCES DURING AND UNDER WHICH PAYMENTS OF DIVIDENDS ON THE SERIES A
PREFERRED SECURITIES MAY BE DEFERRED AND THE RELATED FEDERAL INCOME TAX
CONSEQUENCES.
Application will be made to list the Series A Preferred Securities on the
New York Stock Exchange.
------------------------
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 SUPPLEMENT OR THE PROSPECTUS TO WHICH IT RELATES.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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<TABLE>
<CAPTION>
INITIAL PUBLIC UNDERWRITING PROCEEDS TO
OFFERING PRICE(1) COMMISSION(2) MCN MICHIGAN(3)(4)
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<S> <C> <C> <C>
Per Series A Preferred Security.............. $ (3) $
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Total........................................ $ (3) $
</TABLE>
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(1) Plus accrued dividends, if any, from , 1994.
(2) MCN Michigan and MCN have agreed to indemnify the several Underwriters
against certain liabilities, including liabilities under the Securities Act
of 1933, as amended. See "Underwriting".
(3) In view of the fact that the proceeds of the sale of the Series A Preferred
Securities will ultimately be invested in Series A Subordinated Debt
Securities, under the Underwriting Agreement, MCN has agreed to pay to the
Underwriters as compensation ("Underwriters' Compensation") for their
arranging the investment therein of such proceeds, $ per Series A
Preferred Security (or $ in the aggregate); provided, that such
compensation for sales of 10,000 or more to a single purchaser will be
$ per Series A Preferred Security. Therefore, to the extent of such
sales, the actual amount of Underwriters' Compensation will be less than the
aggregate amount specified in the preceding sentence. See "Underwriting".
(4) Expenses of the offering which are payable by MCN are estimated to be
$[ ].
------------------------
The Series A Preferred Securities offered hereby are offered severally by
the Underwriters, as specified herein, subject to receipt and acceptance by them
and subject to their right to reject any order in whole or in part. It is
expected that delivery of the Series A Preferred Securities will be made only in
book-entry form through the facilities of The Depository Trust Company on or
about , 1994.
------------------------
MERRILL LYNCH & CO.
------------------------
The date of this Prospectus Supplement is , 1994.
<PAGE> 3
(continued from previous page)
Holders of the Series A Preferred Securities will be entitled to receive
cumulative cash distributions at an annual rate of [ ]% of the liquidation
preference of $25 per Series A Preferred Security, accruing from the date of
original issuance and payable monthly in arrears on the last day of each
calendar month of each year, commencing , 1994 ("dividends"). The
payment of dividends, out of moneys held by MCN Michigan, and payments on
liquidation of MCN Michigan or the redemption of Series A Preferred Securities,
as set forth below, are guaranteed by MCN to the extent described in the
accompanying Prospectus (the "Guarantee"). See "Description of the Guarantee" in
the accompanying Prospectus. If MCN fails to make interest payments on the
Series A Subordinated Deferrable Interest Debt Securities ("Series A
Subordinated Debt Securities") purchased by MCN Michigan, MCN Michigan will not
have sufficient funds to pay dividends on the Series A Preferred Securities. The
Guarantee does not cover payment of dividends when MCN Michigan does not have
sufficient funds to pay such dividends. In such event, the remedy of a holder of
Series A Preferred Securities is to enforce the rights of MCN Michigan under the
Series A Subordinated Debt Securities purchased by MCN Michigan from MCN.
The Series A Preferred Securities are redeemable at the option of MCN
Michigan, in whole or in part, from time to time, on or after ,
1999, at $25 per Series A Preferred Security plus accrued and unpaid dividends
thereon (the "Redemption Price") to the date fixed for redemption. See
"Description of the Series A Preferred Securities -- Optional Redemption". In
addition, upon the occurrence of certain events arising from a change in law or
a change in legal interpretation regarding tax matters, the Series A Preferred
Securities are redeemable in whole at the Redemption Price at the option of MCN,
in its capacity as the General Partner of MCN Michigan, or MCN may dissolve MCN
Michigan and cause to be distributed to the holders of the Series A Preferred
Securities, on a pro rata basis, Series A Subordinated Debt Securities in lieu
of any cash distribution. See "Description of the Series A Subordinated Debt
Securities". If the Series A Subordinated Debt Securities are distributed to the
holders of the Series A Preferred Securities, MCN will use its best efforts to
have the Series A Subordinated Debt Securities listed on the New York Stock
Exchange or on such other exchange as the Series A Preferred Securities are then
listed. See "Description of the Series A Preferred Securities -- Tax Event
Redemption or Distribution" and "Description of the Series A Subordinated Debt
Securities." The obligations of MCN under the Guarantee are subordinate and
junior in right of payment to all other liabilities of MCN and pari passu with
the most senior preferred stock issued by MCN. The obligations of MCN under the
Series A Subordinated Debt Securities are subordinate and junior in right of
payment to all present and future Senior Indebtedness of MCN, which aggregated
approximately $220 million at June 30, 1994, and pari passu with MCN trade
creditors.
In the event of the dissolution of MCN Michigan, the holders of the Series
A Preferred Securities will be entitled to receive for each Series A Preferred
Security, a liquidation preference of $25, plus accrued and unpaid dividends
thereon (including interest thereon) to the date of payment, unless in
connection with such dissolution, the Series A Subordinated Debt Securities are
distributed to the holders of the Series A Preferred Securities. See
"Description of the Series A Preferred Securities -- Liquidation Distribution
Upon Dissolution".
------------------------
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SECURITIES
OFFERED HEREBY AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE, IN THE
OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
S-2
<PAGE> 4
MCN CORPORATION
SELECTED FINANCIAL AND OPERATING INFORMATION
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
TWELVE MONTHS
ENDED YEAR ENDED DECEMBER 31,
JUNE 30, ----------------------------------------------------------------------------------
1994 1993 1992 1991 1990 1989
-------------- -------------- -------------- -------------- -------------- --------------
<S> <C> <C> <C> <C> <C> <C>
OPERATING RESULTS:
Operating Revenues........ $1,559,836 $ 1,469,579 $ 1,438,280 $ 1,276,279 $ 1,209,339 $ 1,296,645
Operating Income.......... 171,866 143,886 125,493 98,641 84,964 100,835
Net Income................ 89,407 72,790 57,118 35,078 32,336 49,785
Earnings Per Share........ 3.03 2.48 2.11 1.42 1.38 2.20
Average Number of Common
Shares Outstanding
(000's)................. 29,504 29,321 27,108 24,693 23,516 22,662
OPERATING DATA:
Utility Gas Markets
(Millions of Cubic Feet)
Gas Sales(1).......... 215,980 205,372 203,110 192,770 188,066 214,051
============== ========== ========== ========== ========== ==========
Gas Transported(1).... 454,967 409,759 313,700 225,342 184,703 174,946
============== ========== ========== ========== ========== ==========
Average Utility
Customers............... 1,135,582 1,129,752 1,119,740 1,112,651 1,103,616 1,078,682
============== ========== ========== ========== ========== ==========
Nonutility Gas Markets
(Millions of Cubic Feet)
Gas Sales(1).......... 128,822 122,849 112,263 91,968 74,380 55,164
============== ========== ========== ========== ========== ==========
Gas Transported....... 21,250 21,840 25,382 25,335 -- --
============== ========== ========== ========== ========== ==========
CAPITAL INVESTMENTS(2):
Utility Services........ $ 129,837 $ 142,428 $ 129,423 $ 118,245 $ 114,987 $ 74,165
Nonutility Services..... 131,791 66,248 41,445 21,637 53,757 3,595
MCN's Share of Joint
Ventures.............. 18,286 36,502 31,203 5,139 8,923 5,273
-------------- -------------- -------------- -------------- -------------- --------------
Total................. $ 279,914 $ 245,178 $ 202,071 $ 145,021 $ 177,667 $ 83,033
============== ========== ========== ========== ========== ==========
TOTAL ASSETS:............... $1,888,210 $ 1,864,430 $ 1,648,989 $ 1,517,387 $ 1,500,360 $ 1,365,318
============== ========== ========== ========== ========== ==========
LONG-TERM DEBT AND CAPITAL
LEASE OBLIGATIONS(3):..... $ 555,064 $ 494,821 $ 379,811 $ 328,052 $ 320,516 $ 307,421
============== ========== ========== ========== ========== ==========
REDEEMABLE CUMULATIVE
PREFERRED STOCK OF
SUBSIDIARY(3):............ $ 2,618 $ 5,618 $ 9,000 $ 12,000 $ 15,000 $ 18,000
============== ========== ========== ========== ========== ==========
COMMON STOCK:
Market Price per share
(end of period)......... $ 40.00 $ 34.75 $ 30.88 $ 24.38 $ 21.50 $ 23.38
Dividends Paid Per
Share................... $ 1.71 $ 1.69 $ 1.65 $ 1.64 $ 1.59 $ 1.58
</TABLE>
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(1) Includes intercompany volumes.
(2) Capital investments represent consolidated capital expenditures,
acquisitions, and MCN's share of capital expenditures of joint ventures,
less the minority partners' share of consolidated capital expenditures.
(3) Excluding current requirements.
S-3
<PAGE> 5
The following information concerning the Series A Preferred Securities, the
Guarantee and the Series A Subordinated Debt Securities supplements and should
be read in conjunction with the information contained in the accompanying
Prospectus. Capitalized terms used in this Prospectus Supplement have the same
meanings as in the accompanying Prospectus.
MCN CORPORATION
MCN, a Michigan corporation organized in 1988, is the holding company for
(i) Michigan Consolidated Gas Company ("MichCon"), a public utility engaged in
the distribution, transmission and storage of natural gas to more than 1.1
million customers throughout Michigan; (ii) Citizens Gas Fuel Company
("Citizens"), a natural gas utility servicing Adrian, Michigan; and (iii) MCN
Investment Corporation ("MCN Investment"), the holding company for its
nonutility businesses. MCN's principal executive office is located at 500
Griswold, Detroit, MI 48226, telephone number (313) 256-5500.
Utility Services. MichCon and Citizens provide gas sales service primarily
to residential and commercial customers and transportation service to
large-volume customers. MichCon also provides transportation service to other
gas utilities, gas marketers and producers.
Gas Services. MCN Investment, through its subsidiary companies and various
joint ventures, markets natural gas to large-volume customers, develops gas
cogeneration facilities, provides gas gathering and processing services, engages
in gas exploration and production and provides gas storage services.
Computer Operations Services. The Genix Group, a wholly-owned subsidiary of
MCN Investment, provides data processing, computer operations management, data
telecommunications design and management, large-scale electronic printing and
mailing, and business process solution services to more than 100 corporate
clients in financial services, insurance, retailing, food processing, education,
manufacturing and other industries. These services are provided through
facilities located in Michigan, Pennsylvania and North Carolina.
Gas Technology. MCN's gas technology programs are developing products to
expand demand for natural gas.
Capital investments will exceed $400 million in 1994, with over $250
million being invested in nonutility businesses, primarily to purchase gas
reserves and for exploration and development. Approximately $150 million will be
invested in MCN's utility services operations.
MCN MICHIGAN LIMITED PARTNERSHIP
MCN Michigan is a limited partnership formed under the Michigan Revised
Uniform Limited Partnership Act (the "Partnership Act") by filing a certificate
of limited partnership with the Michigan Secretary of State on September 28,
1994. The initial partners in MCN Michigan are MCN, as General Partner, and MCN
Finance Corporation, a Michigan corporation and a wholly-owned subsidiary of MCN
("MCN Finance"), as limited partner. Upon the issuance of the Series A Preferred
Securities, which securities represent limited partner interests in MCN
Michigan, MCN Finance will withdraw as a limited partner, so that thereafter all
of the limited partner interests will be owned by holders of the Series A
Preferred Securities. The General Partner will agree to contribute capital to
MCN Michigan to the extent required to maintain its capital at an amount equal
to at least 1% of the total capital contributions to MCN Michigan. MCN and MCN
Finance entered into a limited partnership agreement dated as of September 28,
1994. Such limited partnership agreement will be amended and restated in its
entirety (as so amended and restated, the "Limited Partnership Agreement")
substantially in the form filed as an exhibit to the Registration Statement of
which this Prospectus Supplement and the accompanying Prospectus form a part.
MCN Michigan will not file, as a separate registrant, the periodic reports
required by Sections 13 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "1934 Act") with respect to the Series A Preferred Securities
because: (1) MCN Michigan is managed by MCN, a reporting company under the 1934
Act, as the sole General Partner, (2) MCN Michigan has no independent operations
but exists for the sole
S-4
<PAGE> 6
purpose of issuing its limited partnership interests and investing the proceeds
thereof in the Subordinated Debt Securities, and (3) any holders of the Series A
Preferred Securities may proceed directly against MCN to enforce its rights
under the Guarantee (see "Description of the Guarantee" in the accompanying
Prospectus).
The rights of the holders of the Series A Preferred Securities including
economic rights, rights to information and voting rights, are set forth in the
Limited Partnership Agreement and the Partnership Act. See "Description of the
Series A Preferred Securities".
INVESTMENT CONSIDERATIONS
Prospective purchasers of Series A Preferred Securities should carefully
review the information contained elsewhere in this Prospectus Supplement and in
the accompanying Prospectus and should particularly consider the following
matters:
SUBORDINATE OBLIGATIONS UNDER GUARANTEE AND SERIES A SUBORDINATED DEBT
SECURITIES
MCN's obligations under the Guarantee are subordinate and junior in right
of payment to all other liabilities of MCN and pari passu with the most senior
preferred stock issued by MCN. The obligations of MCN under the Series A
Subordinated Debt Securities are subordinate and junior in right of payment to
all present and future Senior Indebtedness of MCN and pari passu with MCN trade
creditors. At June 30, 1994, Senior Indebtedness of MCN aggregated approximately
$220 million. There are no terms in the Series A Preferred Securities, the
Series A Subordinated Debt Securities or the Guarantee that limit MCN's ability
to incur additional indebtedness, including indebtedness that ranks senior to
the Series A Subordinated Debt Securities and the Guarantee. See "Description of
the Guarantee -- Status of the Guarantee" and "Description of MCN Debt
Securities -- Particular Terms of the Subordinated Debt Securities --
Subordination" in the accompanying Prospectus. The Limited Partnership Agreement
provides that each holder of Preferred Securities by acceptance thereof agrees
to the subordination provisions of the Guarantee and the Subordinated Debt
Securities Indenture.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
MCN has the right under the Indenture (as such term is defined in
"Description of the Series A Subordinated Debt Securities") to extend the
interest payment period at any time, and from time to time, on the Series A
Subordinated Debt Securities, and, as a consequence, monthly dividends on the
Series A Preferred Securities would be deferred (but would continue to accrue
with interest thereon) by MCN Michigan during any such extended interest payment
period. Such right to extend the interest payment period for the Series A
Subordinated Debt Securities is limited to a period not exceeding 60 consecutive
months. In the event that MCN exercises this right to extend, MCN may not
declare or pay dividends on, or redeem, purchase or acquire, any of its capital
stock until deferred interest on the Series A Subordinated Debt Securities is
paid in full. Prior to the termination of any such extension period, MCN may
further extend the interest payment period, provided that such extension period
together with all such previous and further extensions thereof may not exceed 60
consecutive months. Upon the termination of any extension period and the payment
of all amounts then due, MCN may select a new extension period subject to the
above requirements. See "Description of the Series A Preferred Securities --
Dividends" and "Description of the Series A Subordinated Debt Securities --
Option to Extend Interest Payment Period".
Should an extended interest payment period occur, MCN Michigan will
continue to accrue income for United States federal income tax purposes which
will be allocated, but not distributed, to holders of record of Series A
Preferred Securities. As a result, such holder will include such interest in
gross income for United States federal income tax purposes in advance of the
receipt of cash and will not receive the cash from MCN Michigan related to such
income if such holder disposes of its Series A Preferred Securities prior to the
record date for payment of dividends. See "United States Federal Income Taxation
- - - -- Potential Extension of Interest Payment Period".
S-5
<PAGE> 7
TAX EVENT REDEMPTION OR DISTRIBUTION
Upon the occurrence of a Tax Event (as defined herein), the General Partner
may elect to dissolve MCN Michigan and cause Series A Subordinated Debt
Securities to be distributed to the holders of the Series A Preferred Securities
in connection with the liquidation of MCN Michigan. If the General Partner has
received a Redemption Tax Opinion (as defined herein) or has been notified that
a No Recognition Opinion (as defined herein) cannot be delivered to the General
Partner, the General Partner shall have the right to redeem the Series A
Preferred Securities in whole (and not in part). See "Description of the Series
A Preferred Securities -- Tax Event Redemption or Distribution".
Under current United States federal income tax law, such a distribution of
Series A Subordinated Debt Securities would not be a taxable event to holders of
the Series A Preferred Securities. Under a change in law, a change in legal
interpretation or the other circumstances giving rise to a Tax Event, however,
the dissolution in which holders of the Series A Preferred Securities receive
cash would be a taxable event to such holders. See "United States Federal Income
Taxation -- Receipt of Series A Subordinated Debt Securities or Cash Upon
Liquidation of MCN Michigan".
CAPITALIZATION OF MCN AT JUNE 30, 1994 (UNAUDITED)
(THOUSANDS, EXCEPT PERCENTAGES)
The following table sets forth the unaudited summary capitalization of MCN
and its consolidated subsidiaries as of June 30, 1994, and as adjusted to
reflect the application of the estimated net proceeds from the sale of the
Series A Preferred Securities. See "Use of Proceeds". The table should be read
in conjunction with MCN's consolidated financial statements and notes thereto
and other financial data incorporated by reference herein. See "Incorporation of
Certain Documents by Reference" in the accompanying Prospectus.
<TABLE>
<CAPTION>
AT JUNE 30, 1994
----------------------------------------------
ACTUAL AS ADJUSTED(3)
--------------------- ---------------------
AMOUNT PERCENT AMOUNT PERCENT
---------- ------- ---------- -------
<S> <C> <C> <C> <C>
BALANCE SHEET DATA:
Long-Term Debt (including capital
leases)(1)(2).................................. $ 555,064 51.3% $ %
Preferred Units of Subsidiary.................... 0 0
Redeemable Preferred Stock of Subsidiary(2)...... 2,618 .2
Common Shareholders' Equity...................... 525,015 48.5
---------- ------- ---------- -------
Total.......................................... $1,082,697 100% $ 100%
========= ===== ========= =====
</TABLE>
- - - -------------------------
(1) Senior Indebtedness of MCN, for purposes of the subordination provisions of
the Series A Subordinated Debt Securities, includes only indebtedness of MCN
on an unconsolidated basis. As of June 30, 1994, such Senior Indebtedness
aggregated $220,067,275 which includes $186,488,151 under various revolving
lines of credit for MCN and MCN Investment. These lines of credit currently
permit total borrowings of up to $320,000,000. MCN has agreed to support MCN
Investment for its obligations under these lines of credit if MCN Investment
is unable to make timely payment of its indebtedness under them.
(2) Excluding current maturities.
(3) Adjusted for the sale of the Series A Preferred Securities.
S-6
<PAGE> 8
USE OF PROCEEDS
The proceeds from the sale of the Series A Preferred Securities will be
invested in the Series A Subordinated Debt Securities issued pursuant to the
Indenture described herein, and ultimately will be used by MCN for general
corporate purposes, including capital expenditures, investment in subsidiaries,
working capital, repayment of loans under bank credit agreements and repayment
of other short-term borrowings.
DESCRIPTION OF THE SERIES A PREFERRED SECURITIES
The following summary of the principal terms and provisions of the Series A
Preferred Securities does not purport to be complete and is subject to, and
qualified in its entirety by reference to, the Limited Partnership Agreement, a
copy of which is filed as an exhibit to the Registration Statement, of which
this Prospectus Supplement is a part, and the Partnership Act.
GENERAL
All of the partnership interests in MCN Michigan, other than the Series A
Preferred Securities offered hereby, are owned directly or indirectly by MCN.
The Limited Partnership Agreement and the action of the General Partner dated
, 1994 authorize and create the Series A Preferred Securities, which
represent limited partner interests in MCN Michigan. Preferred securities of MCN
Michigan ("Preferred Securities") may be issued from time to time in one or more
series. See "Description of the MCN Michigan Preferred Securities" in the
accompanying Prospectus. The limited partner interests represented by the Series
A Preferred Securities will have a preference with respect to dividends and
amounts payable on liquidation over the General Partner's interest in MCN
Michigan. The Limited Partnership Agreement does not permit the issuance by MCN
Michigan of any Preferred Securities ranking, as to participation in profits and
dividends and in the assets of MCN Michigan, senior or junior to the Series A
Preferred Securities or the incurrence of any indebtedness by MCN Michigan.
DIVIDENDS
Dividends on the Series A Preferred Securities will be fixed at a rate per
annum of [ ]% of the stated liquidation preference of $25 per Preferred
Security. Dividends in arrears for more than one month will bear interest
thereon at the rate per annum of [ ]% thereof. The term "dividends" as used
herein includes any such interest payable unless otherwise stated. The amount of
dividends payable for any period will be computed on the basis of a 360-day year
of twelve 30-day months.
Dividends on the Series A Preferred Securities will be cumulative, will
accrue from , 1994 and will be payable monthly in arrears on the
last day of each calendar month of each year, commencing , 1994,
when, as and if available and determined to be so payable by MCN as the General
Partner, except as otherwise described below.
MCN has the right under the Indenture to extend the interest payment period
from time to time on the Series A Subordinated Debt Securities and, as a
consequence, monthly dividends on the Series A Preferred Securities would be
deferred (but would continue to accrue with interest) by MCN Michigan during any
such extended interest payment period. Such right to extend the interest payment
period for the Series A Subordinated Debt Securities is limited to a period not
exceeding 60 consecutive months. In the event that MCN exercises this right, MCN
may not declare or pay dividends on, or redeem, purchase or acquire, any of its
capital stock. Prior to the termination of any such extension period, MCN may
further extend the interest payment period, provided that such extension period
together with all such previous and further extensions thereof may not exceed 60
consecutive months. Upon the termination of any extension period and the payment
of all amounts then due, MCN may select a new extension period, subject to the
above requirements. See "Description of the Series A Subordinated Debt
Securities -- Interest" and "-- Option to Extend Interest Payment Period". If
dividends are deferred, the deferred dividends and accrued interest thereon
shall be paid to holders of record of the Series A Preferred Securities as they
appear on the records of MCN Michigan on the record date next following such
deferral period.
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Dividends on the Series A Preferred Securities must be paid on the dates
payable to the extent that MCN Michigan has (i) funds legally available for the
payment of such dividends and (ii) cash on hand sufficient to permit such
payments. It is anticipated that MCN Michigan's earnings available for
distribution to the holders of the Series A Preferred Securities will be limited
to payments under the Series A Subordinated Debt Securities in which MCN
Michigan will invest the proceeds from the issuance and sale of the Series A
Preferred Securities and the General Partner's capital contribution. See
"Description of the Series A Subordinated Debt Securities". The payment of
dividends, out of moneys held by MCN Michigan, are guaranteed by MCN as set
forth under "Description of the Guarantee" in the accompanying Prospectus.
Dividends on the Series A Preferred Securities will be payable to the
holders thereof as they appear on the books and records of MCN Michigan on the
relevant record dates, which, as long as the Series A Preferred Securities
remain in book-entry-only form, will be one Business Day (as defined below)
prior to the relevant payment dates. Subject to any applicable laws and
regulations and the provisions of the Limited Partnership Agreement, each such
payment will be made as described under "Book-Entry-Only Issuance -- The
Depository Trust Company" below. In the event the Series A Preferred Securities
shall not continue to remain in book-entry-only form, the General Partner shall
have the right to select relevant record dates which shall be more than one
Business Day prior to the relevant payment dates. In the event that any date on
which dividends are payable on the the Series A Preferred Securities is not a
Business Day, then payment of the dividend payable on such date will be made on
the next succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such Business Day is
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date. A "Business Day" shall mean any day other than a day on
which banking institutions in The City of New York are authorized or required by
law to close.
CERTAIN RESTRICTIONS ON MCN MICHIGAN
If dividends have not been paid in full on the Series A Preferred
Securities, MCN Michigan shall not:
(i) pay or declare and set aside for payment any dividends on any
other series of Preferred Securities, unless the amount of any dividends
paid on all other series of Preferred Securities is paid on such other
series of Preferred Securities and the Series A Preferred Securities on a
pro rata basis on the date such dividends are paid on all such other series
of Preferred Securities, so that
(x) the aggregate amount of dividends paid on the Series A
Preferred Securities bears to the aggregate amount of dividends paid on
all such Preferred Securities the same ratio as
(y) the aggregate of all accrued and unpaid dividends in respect of
the Series A Preferred Securities bears to the aggregate of all accrued
and unpaid dividends in respect of all such Preferred Securities; or
(ii) pay any distribution on any interest of any General Partner in
MCN Michigan ("General Partner Interest"); or
(iii) redeem, purchase or otherwise acquire any other series of
Preferred Securities or any General Partner Interest;
until, in each case, such time as all accrued and unpaid dividends on the Series
A Preferred Securities shall have been paid in full for all dividend periods
terminating on or prior to, in the case of clause (i), such payment and, in the
case of clause (ii), the date of such redemption, purchase or acquisition.
As of the date of this Prospectus Supplement, there are no series of
Preferred Securities outstanding.
OPTIONAL REDEMPTION
The Series A Preferred Securities are redeemable, at the option of MCN
Michigan, in whole or in part, from time to time, on or after , 1999,
upon not less than 30 nor more than 60 days' notice, at the Redemption Price. In
the event that fewer than all the outstanding Series A Preferred Securities are
to be so redeemed, the Series A Preferred Securities to be redeemed will be
selected as described under "Book-Entry-
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Only Issuance -- The Depository Trust Company" below. If a partial redemption
would result in the delisting of the Series A Preferred Securities, MCN Michigan
may only redeem the Series A Preferred Securities in whole. If MCN Michigan
redeems the Series A Preferred Securities in accordance with the terms thereof,
the Series A Subordinated Debt Securities will become due and payable in a
principal amount equal to the aggregate stated liquidation preference of the
Series A Preferred Securities so redeemed, together with any accrued and unpaid
interest, including Additional Interest (as defined below), if any.
TAX EVENT REDEMPTION OR DISTRIBUTION
"Tax Event" means that the General Partner shall have received an opinion
of nationally recognized independent tax counsel experienced in such matters (a
"Dissolution Tax Opinion") to the effect that, as a result of (a) any amendment
to, or change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein or (b) any amendment to or change in an
interpretation or application of such laws or regulations by any legislative
body, court, governmental agency or regulatory authority (including the
enactment of any legislation and the publication of any judicial decision or
regulatory determination on or after such date), there is more than an
insubstantial risk that (i) MCN Michigan is subject to federal income tax with
respect to interest received on the Series A Subordinated Debt Securities, (ii)
interest payable to MCN Michigan on the Series A Subordinated Debt Securities
will not be deductible by MCN for federal income tax purposes or (iii) MCN
Michigan is subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
If a Tax Event (as defined above) shall occur and be continuing, the
General Partner may elect to dissolve MCN Michigan and cause Series A
Subordinated Debt Securities with an aggregate principal amount equal to the
aggregate stated liquidation preference of, with an interest rate identical to
the dividend rate of, and accrued and unpaid interest equal to accrued and
unpaid dividends (whether or not declared) on, the Series A Preferred
Securities, to be distributed to the holders of the Series A Preferred
Securities in liquidation of such holders' interests in MCN Michigan, within 90
days following the occurrence of such Tax Event; provided, however, that as a
condition of such dissolution and distribution, the General Partner and MCN
Michigan shall have received an opinion of nationally recognized independent tax
counsel experienced in such matters (a "No Recognition Opinion") to the effect
that the holders of the Series A Preferred Securities will not recognize any
gain or loss for federal income tax purposes as a result of such dissolution and
distribution of Series A Subordinated Debt Securities; provided, further, that,
if at the time there is available to the General Partner the opportunity to
eliminate, within such 90 day period, the Tax Event by taking some ministerial
action, such as filing a form or making an election, or pursuing some other
similar reasonable measure, which has no adverse effect on MCN Michigan, MCN or
the holders of the Series A Preferred Securities, the General Partner will
pursue such measure in lieu of dissolution. Furthermore, if the General Partner
(i) has received an opinion (a "Redemption Tax Opinion") of nationally
recognized independent tax counsel experienced in such matters that, as a result
of a Tax Event, there is more than an insubstantial risk that MCN would be
precluded from deducting the interest on the Series A Subordinated Debt
Securities for federal income tax purposes even if the Series A Subordinated
Debt Securities were distributed to the holders of Series A Preferred Securities
in liquidation of such holders' interests in MCN Michigan as described above or
(ii) after its receipt of a Dissolution Tax Opinion, the General Partner shall
have been informed by such tax counsel that a No Recognition Opinion cannot be
delivered to the General Partner and MCN Michigan, the General Partner shall
have the right, upon not less than 30 nor more than 60 days notice to redeem the
Series A Preferred Securities, in whole (and not in part), for cash at the
Redemption Price within 90 days following the occurrence of such Tax Event;
provided, however, that, if at the time there is available to the General
Partner the opportunity to eliminate, within such 90 day period, the Tax Event
by taking some ministerial action, such as filing a form or making an election,
or pursuing some other similar reasonable measure, which has no adverse effect
on MCN Michigan, MCN or the holders of the Series A Preferred Securities, the
General Partner will pursue such measure in lieu of redemption.
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If the Series A Subordinated Debt Securities are distributed to the holders
of the Series A Preferred Securities, MCN will use its best efforts to have the
Series A Subordinated Debt Securities listed on the New York Stock Exchange or
on such other exchange as the Series A Preferred Securities are then listed.
After the date fixed for any distribution of Series A Subordinated Debt
Securities, upon dissolution of MCN Michigan, (i) the Series A Preferred
Securities will no longer be deemed to be outstanding, (ii) the Depositary or
its nominee, as the record holder of the Series A Preferred Securities, will
receive a registered global certificate or certificates representing the Series
A Subordinated Debt Securities to be delivered upon such distribution and (iii)
any certificates representing Series A Preferred Securities not held by the
Depositary or its nominee will be deemed to represent Series A Subordinated Debt
Securities having an aggregate principal amount equal to the aggregate stated
liquidation preference of, with an interest rate identical to the dividend rate
of, and accrued and unpaid interest equal to accrued and unpaid dividends
(whether or not declared) on, such Series A Preferred Securities until such
certificates are presented to MCN or its agent for transfer or reissuance.
MANDATORY REDEMPTION
Upon the redemption or payment at maturity of the Series A Subordinated
Debt Securities, the proceeds from such redemption or payment will be applied to
redeem the Series A Preferred Securities, in whole, upon not less than 30 nor
more than 60 days' notice, at the Redemption Price.
REDEMPTION PROCEDURES
MCN Michigan may not redeem fewer than all the outstanding Series A
Preferred Securities unless all accrued and unpaid dividends have been paid on
all Series A Preferred Securities for all monthly dividend periods terminating
on or prior to the date of redemption.
If MCN Michigan gives a notice of redemption in respect of Series A
Preferred Securities (which notice will be irrevocable), then, by 12:00 noon,
New York time, on the redemption date, MCN Michigan will irrevocably deposit
with the Depositary funds sufficient to pay the applicable Redemption Price and
will give the Depositary irrevocable instructions and authority to pay the
Redemption Price to the holders of the Series A Preferred Securities. See
"Book-Entry-Only Issuance -- The Depository Trust Company". If notice of
redemption shall have been given and funds deposited as required, then
immediately prior to the close of business on the date of such deposit, all
rights of holders of such Series A Preferred Securities so called for redemption
will cease, except the right of the holders of such Series A Preferred
Securities to receive the Redemption Price, but without interest on such
Redemption Price. In the event that any date fixed for redemption of Series A
Preferred Securities is not a Business Day, then payment of the Redemption Price
payable on such date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of any such delay),
except that, if such Business Day falls in the next calendar year, such payment
will be made on the immediately preceding Business Day. In the event that
payment of the Redemption Price in respect of Series A Preferred Securities is
improperly withheld or refused and not paid either by MCN Michigan or by MCN
pursuant to the Guarantee described under "Description of the Guarantee" in the
accompanying Prospectus, dividends on such Series A Preferred Securities will
continue to accrue at the then applicable rate, from the original redemption
date to the date of payment, in which case the actual payment date will be
considered the date fixed for redemption for purposes of calculating the
Redemption Price.
In the event that fewer than all of the outstanding Series A Preferred
Securities are to be redeemed, the Series A Preferred Securities to be redeemed
will be selected by lot as described under "Book-Entry-Only Issuance -- The
Depository Trust Company" below.
Subject to the foregoing and applicable law (including, without limitation,
United States federal securities laws), MCN or its subsidiaries may at any time
and, from time to time, purchase outstanding Series A Preferred Securities by
tender, in the open market or by private agreement.
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LIQUIDATION DISTRIBUTION UPON DISSOLUTION
In the event of any voluntary or involuntary liquidation, dissolution,
winding-up or termination of MCN Michigan, the holders of the Series A Preferred
Securities at the time will be entitled to receive out of the assets of MCN
Michigan available for distribution to partners after satisfaction of
liabilities of creditors as required by the Partnership Act, before any
distribution of assets is made to the General Partner, but together with the
holders of every other series of Preferred Securities outstanding, an amount
equal to, in the case of holders of Series A Preferred Securities, the aggregate
of the stated liquidation preference of $25 per Series A Preferred Security and
accrued and unpaid dividends thereon to the date of payment (the "Liquidation
Distribution"), unless, in connection with such liquidation, dissolution,
winding-up or termination, Series A Subordinated Debt Securities in an aggregate
principal amount equal to the Liquidation Distribution have been distributed on
a pro rata basis to the holders of the Series A Preferred Securities.
If, upon any such dissolution, the Liquidation Distribution can be paid
only in part because MCN Michigan has insufficient assets available to pay in
full the aggregate Liquidation Distribution and the aggregate maximum
liquidation distributions on all other series of Preferred Securities, then the
amounts payable directly by MCN Michigan on the Series A Preferred Securities
and on such other series of Preferred Securities shall be paid on a pro rata
basis, so that
(i) the aggregate amount paid in respect of the Liquidation
Distribution bears to the aggregate amount paid as liquidation
distributions on all other series of Preferred Securities the same ratio as
(ii) the aggregate Liquidation Distribution bears to the aggregate
maximum liquidation distributions on the other series of Preferred
Securities.
Pursuant to the Limited Partnership Agreement, MCN Michigan shall be
dissolved and its affairs shall be wound up: (i) on December 31, 2093, the
expiration of the term of MCN Michigan, (ii) upon the bankruptcy of the General
Partner, (iii) upon the assignment by the General Partner of its entire interest
in MCN Michigan when the assignee is not admitted to MCN Michigan as a general
partner of MCN Michigan in accordance with the Limited Partnership Agreement, or
the filing of a certificate of dissolution or its equivalent with respect to the
General Partner, or the revocation of the General Partner's charter and the
expiration of 90 days after the date of notice to the General Partner of
revocation without a reinstatement of its charter, or any other event occurs
which causes the General Partner to cease to be a general partner of MCN
Michigan under the Partnership Act, unless the business of MCN Michigan is
continued in accordance with the Partnership Act, (iv) the election of the
General Partner upon the occurrence of a Tax Event or any event specified in an
action of the General Partner as an event permitting the dissolution of MCN
Michigan, (v) upon the entry of a decree of a judicial dissolution or (vi) upon
the written consent of all partners of MCN Michigan.
MERGER, CONSOLIDATION OR AMALGAMATION OF MCN MICHIGAN
MCN Michigan may not consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except as
described below. MCN Michigan may, without the consent of the holders of the
Series A Preferred Securities, consolidate, amalgamate, merge with or into, or
be replaced by a limited partnership, limited liability corporation or a trust
organized as such under the laws of any state of the United States of America;
provided, that (i) such successor entity either (x) expressly assumes all of the
obligations of MCN Michigan under the Series A Preferred Securities or (y)
substitutes for the Series A Preferred Securities other securities having
substantially the same terms as the Series A Preferred Securities (the
"Successor Securities") so long as the Successor Securities rank, with respect
to participation in the profits and dividends or in the assets of the successor
entity, at least as high as the Series A Preferred Securities rank with respect
to participation in the profits and dividends or in the assets of MCN Michigan,
(ii) MCN expressly acknowledges such successor entity as the holder of the
Series A Subordinated Debt Securities, (iii) the Series A Preferred Securities
or any Successor Securities are listed, or any Successor Securities will be
listed upon notification of issuance, on any national securities exchange or
other organization on which the Series A Preferred Securities are then listed,
(iv) such merger, consolidation, amalgamation or replacement does not cause the
Series A Preferred
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Securities (including any Successor Securities) to be downgraded by any
nationally recognized statistical rating organization, (v) such merger,
consolidation, amalgamation or replacement does not adversely affect the powers,
preferences and other special rights of the holders of the Series A Preferred
Securities (including any Successor Securities) in any material respect (other
than with respect to any dilution of the holders' interest in the new entity),
(vi) such successor entity has a purpose substantially identical to that of MCN
Michigan and (vii) prior to such merger, consolidation, amalgamation or
replacement, MCN has received an opinion of nationally recognized independent
counsel to MCN Michigan experienced in such matters to the effect that (x) such
successor entity will be treated as a partnership for federal income tax
purposes, (y) following such merger, consolidation, amalgamation or replacement,
MCN and such successor entity will be in compliance with the Investment Company
Act of 1940, as amended (the "1940 Act"), without registering thereunder as an
investment company and (z) such merger, consolidation, amalgamation or
replacement will not adversely affect the limited liability of the holders of
the Series A Preferred Securities.
VOTING RIGHTS
Except as provided below and under "Description of the Guarantee --
Amendments and Assignment" in the accompanying Prospectus and as otherwise
required by law and the Limited Partnership Agreement, the holders of the Series
A Preferred Securities will have no voting rights.
If (i) MCN Michigan fails to pay dividends in full on the Series A
Preferred Securities for 18 consecutive monthly dividend periods; (ii) an Event
of Default (as defined in the Indenture) occurs and is continuing on the Series
A Subordinated Debt Securities; or (iii) MCN is in default on any of its payment
or other obligations under the Guarantee (as described under "Description of the
Guarantee -- Certain Covenants of MCN" in the accompanying Prospectus), then the
holders of the Series A Preferred Securities, together with the holders of any
other series of Preferred Securities having the right to vote for the
appointment of a special representative of MCN Michigan and the limited partners
(a "Special Representative") in such event, acting as a single class, will be
entitled by the majority vote of such holders to appoint a Special
Representative and, if an Event of Default occurs under the Subordinated Debt
Securities Indenture, the Special Representative shall be authorized to enforce
MCN Michigan's creditor rights under the Series A Subordinated Debt Securities,
to enforce the rights of the holders of the Series A Preferred Securities under
the Guarantee and to enforce the rights of the holders of the Series A Preferred
Securities to receive dividends on the Series A Preferred Securities. The
Special Representative shall not be admitted as a partner in MCN Michigan or
otherwise be deemed to be a partner in MCN Michigan and shall have no liability
for the debts, obligations or liabilities of MCN Michigan. For purposes of
determining whether MCN Michigan has failed to pay dividends in full for 18
consecutive monthly dividend periods, dividends shall be deemed to remain in
arrears, notwithstanding any payments in respect thereof, until full cumulative
dividends have been or contemporaneously are paid with respect to all monthly
dividend periods terminating on or prior to the date of payment of such full
cumulative dividends. Not later than 30 days after such right to appoint a
Special Representative arises, the General Partner will convene a meeting for
the purpose of appointing a Special Representative. If the General Partner fails
to convene such meeting within such 30-day period, the holders of not less than
10% of the aggregate liquidation preference of the outstanding Preferred
Securities will be entitled to convene such meeting. The provisions of the
Limited Partnership Agreement relating to the convening and conduct of the
meetings of the partners will apply with respect to any such meeting. Any
Special Representative so appointed shall cease to be a Special Representative
of MCN Michigan and the limited partners if MCN Michigan (or MCN pursuant to the
Guarantee) shall have paid in full all accrued and unpaid dividends on the
Preferred Securities or such default or breach, as the case may be, shall have
been cured and MCN, in its capacity as the General Partner, shall continue the
business of MCN Michigan without dissolution. Notwithstanding the appointment of
any such Special Representative, MCN shall continue as General Partner and shall
retain all rights under the Indenture, including the right to extend the
interest payment period as provided under "Description of the Series A
Subordinated Debt Securities -- Option to Extend Interest Payment Period". If
such an extension occurs, there will be no Event of Default under the
Subordinated Debt Securities Indenture for failure to make any scheduled
interest payment during the Extension Period on the date originally scheduled.
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If any proposed amendment to the Limited Partnership Agreement provides
for, or the General Partner otherwise proposes to effect, (i) any action which
would adversely affect the powers, preferences or special rights of the Series A
Preferred Securities, whether by way of amendment to the Limited Partnership
Agreement or otherwise (including, without limitation, the authorization or
issuance of any limited partner interests in MCN Michigan ranking, as to
participation in the profits and dividends or in the assets of MCN Michigan,
senior to the Series A Preferred Securities), or (ii) the dissolution,
winding-up or termination of MCN Michigan, other than (x) in connection with the
distribution of Series A Subordinated Debt Securities upon the occurrence of a
Tax Event or (y) as described under "Merger, Consolidation or Amalgamation of
MCN Michigan" above, then the holders of outstanding Series A Preferred
Securities will be entitled to vote on such amendment or proposal of the General
Partner (but not on any other amendment or proposal) as a class with all other
holders of series of Preferred Securities similarly affected, and such amendment
or proposal shall not be effective except with the approval of the holders of
66 2/3% or more of the aggregate liquidation preference of the outstanding
Preferred Securities having a right to vote on the matter; provided, however,
that no such approval shall be required if the dissolution, winding-up or
termination of MCN Michigan is proposed or initiated upon the initiation of
proceedings, or after proceedings have been initiated, for the dissolution,
winding-up, liquidation or termination of MCN.
The rights attached to the Series A Preferred Securities will be deemed not
to be adversely affected by the creation or issue of, and no vote will be
required for the creation or issue of any further limited partner interests of
MCN Michigan ranking pari passu with the Series A Preferred Securities with
regard to participation in the profits and dividends or in the assets of MCN
Michigan.
So long as any Series A Subordinated Debt Securities are held by MCN
Michigan, the General Partner shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or executing
any trust or power conferred on the Trustee with respect to such series, (ii)
waive any past default which is waivable under Section 513 of the Indenture,
(iii) exercise any right to rescind or annul a declaration that the principal of
all the Series A Subordinated Debt Securities shall be due and payable or (iv)
consent to any amendment, modification or termination of the Indenture, where
such consent shall be required, without, in each case, obtaining the prior
approval of the holders of at least 66 2/3% in liquidation preference of all
series of Preferred Securities affected thereby, acting as a single class;
provided, however, that where a consent under the Indenture would require the
consent of each holder affected thereby, no such consent shall be given by the
General Partner without the prior consent of each holder of all series of
Preferred Securities affected thereby. The General Partner shall not revoke any
action previously authorized or approved by a vote of any series of Preferred
Securities. The General Partner shall notify all holders of the Series A
Preferred Securities of any notice of default received from the Trustee with
respect to the Series A Subordinated Debt Securities.
Any required approval of holders of Series A Preferred Securities may be
given at a separate meeting of holders of Preferred Securities convened for such
purpose, at a meeting of all of the partners in MCN Michigan or pursuant to
written consent. MCN Michigan will cause a notice of any meeting at which
holders of Series A Preferred Securities are entitled to vote, or of any matter
upon which action by written consent of such holders is to be taken, to be
mailed to each holder of record of Series A Preferred Securities. Each such
notice will include a statement setting forth (i) the date of such meeting or
the date by which such action is to be taken, (ii) a description of any
resolution proposed for adoption at such meeting on which such holders are
entitled to vote or of such matter upon which written consent is sought and
(iii) instructions for the delivery of proxies or consents.
No vote or consent of the holders of Series A Preferred Securities will be
required for MCN Michigan to redeem and cancel Series A Preferred Securities in
accordance with the Limited Partnership Agreement.
Notwithstanding that holders of Series A Preferred Securities are entitled
to vote or consent under any of the circumstances described above, any of the
Series A Preferred Securities and any other series of Preferred Securities that
are entitled to vote or consent with such Series A Preferred Securities as a
single class at such time that are owned by MCN or any entity owned more than
20% by MCN, either directly or indirectly, shall
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not be entitled to vote or consent and shall, for purposes of such vote or
consent, be treated as if they were not outstanding.
Holders of the Series A Preferred Securities will have no rights to remove
or replace the General Partner.
BOOK-ENTRY-ONLY ISSUANCE -- THE DEPOSITORY TRUST COMPANY
The Depository Trust Company ("DTC") will act as securities depositary for
the Series A Preferred Securities. The Series A Preferred Securities will be
issued only as fully-registered securities registered in the name of Cede & Co.
(DTC's nominee). One or more fully-registered global Series A Preferred Security
certificates will be issued, representing in the aggregate the total number of
Series A Preferred Securities, and will be deposited with DTC.
The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of securities in definitive form. Such laws
may impair the ability to transfer beneficial interests in a global Preferred
Security.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the 1934 Act. DTC holds
securities that its participants ("Participants") deposit with DTC. DTC also
facilitates the settlement among Participants of securities transactions, such
as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Participants' accounts, thereby eliminating
the need for physical movement of securities certificates. Direct Participants
include securities brokers and dealers, banks, trust companies, clearing
corporations, and certain other organizations ("Direct Participants"). DTC is
owned by a number of its Direct Participants and by the New York Stock Exchange,
Inc. (the "New York Stock Exchange"), the American Stock Exchange, Inc., and the
National Association of Securities Dealers, Inc. Access to the DTC system is
also available to others such as securities brokers and dealers, banks and trust
companies that clear through or maintain a custodial relationship with a Direct
Participant, either directly or indirectly ("Indirect Participants"). The rules
applicable to DTC and its Participants are on file with the Securities and
Exchange Commission.
Purchases of Series A Preferred Securities within the DTC system must be
made by or through Direct Participants, which will receive a credit for the
Series A Preferred Securities on DTC's records. The ownership interest of each
actual purchaser of each Series A Preferred Security ("Beneficial Owner") is in
turn to be recorded on the Direct and Indirect Participants' records. Beneficial
Owners will not receive written confirmation from DTC of their purchases, but
Beneficial Owners are expected to receive written confirmations providing
details of the transactions, as well as periodic statements of their holdings,
from the Direct or Indirect Participants through which the Beneficial Owners
purchased Series A Preferred Securities. Transfers of ownership interests in the
Series A Preferred Securities are to be accomplished by entries made on the
books of Participants acting on behalf of Beneficial Owners. Beneficial Owners
will not receive certificates representing their ownership interests in Series A
Preferred Securities, except in the event that use of the book-entry system for
the Series A Preferred Securities is discontinued.
To facilitate subsequent transfers, all the Series A Preferred Securities
deposited by Participants with DTC are registered in the name of DTC's
partnership nominee, Cede & Co. The deposit of Series A Preferred Securities
with DTC and their registration in the name of Cede & Co. effect no change in
beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of
the Series A Preferred Securities. DTC's records reflect only the identity of
the Direct Participants to whose accounts such Series A Preferred Securities are
credited, which may or may not be the Beneficial Owners. The Participants will
remain responsible for keeping account of their holdings on behalf of their
customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be
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governed by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
Redemption notices shall be sent to Cede & Co. If less than all of the
Series A Preferred Securities are being redeemed, DTC's practice is to determine
by lot the amount of the interest of each Direct Participant in such series to
be redeemed.
Although voting with respect to the Series A Preferred Securities is
limited, in those cases where a vote is required, neither DTC nor Cede & Co.
will itself consent or vote with respect to Series A Preferred Securities. Under
its usual procedures, DTC would mail an Omnibus Proxy to MCN Michigan as soon as
possible after the record date. The Omnibus Proxy assigns Cede & Co.'s
consenting or voting rights to those Direct Participants to whose accounts the
Series A Preferred Securities are credited on the record date (identified in a
listing attached to the Omnibus Proxy).
Dividend payments on the Series A Preferred Securities will be made to DTC.
DTC's practice is to credit Direct Participants' accounts on the relevant
payment date in accordance with their respective holdings shown on DTC's records
unless DTC has reason to believe that it will not receive payments on such
payment date. Payments by Participants to Beneficial Owners will be governed by
standing instructions and customary practices, as in the case with securities
held for the account of customers in bearer form or registered in "street name,"
and will be the responsibility of such Participant and not of DTC, MCN Michigan
or MCN, subject to any statutory or regulatory requirements as may be in effect
from time to time. Payment of dividends to DTC is the responsibility of MCN
Michigan, disbursement of such payments to Direct Participants is the
responsibility of DTC, and disbursement of such payments to the Beneficial
Owners is the responsibility of Direct and Indirect Participants.
Except as provided herein, a Beneficial Owner in a global Preferred
Security will not be entitled to receive physical delivery of Preferred
Securities. Accordingly, each Beneficial Owner must rely on the procedures of
DTC to exercise any rights under the Series A Preferred Securities.
DTC may discontinue providing its services as securities depository with
respect to the Series A Preferred Securities at any time by giving reasonable
notice to MCN Michigan. Under such circumstances, in the event that a successor
securities depository is not obtained, Series A Preferred Security certificates
are required to be printed and delivered. Additionally, MCN Michigan (with the
consent of MCN) may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor depositary). In that event, certificates
for the Series A Preferred Securities will be printed and delivered. In each of
the above circumstances, the General Partner will appoint a paying agent with
respect to the Series A Preferred Securities.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that MCN Michigan believes to be reliable, but
MCN Michigan takes no responsibility for the accuracy thereof.
REGISTRAR AND TRANSFER AGENT
In the event that the Preferred Securities do not remain in book-entry-only
form, the following provisions would apply:
First Chicago Trust Company of New York will act as registrar, transfer
agent and paying agent for the Series A Preferred Securities, but the Company
may designate an additional or substitute registrar, transfer agent and paying
agent at any time.
Registration of transfers of Series A Preferred Securities will be effected
without charge by or on behalf of MCN Michigan, but upon payment (with the
giving of such indemnity as MCN Michigan or MCN may require) in respect of any
tax or other government charges which may be imposed in relation to it.
MCN Michigan will not be required to register or cause to be registered the
transfer of Series A Preferred Securities after such Series A Preferred
Securities have been called for redemption.
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MISCELLANEOUS
The General Partner is authorized and directed to conduct its affairs and
to operate MCN Michigan in such a way that MCN Michigan will not be deemed to be
an "investment company" required to be registered under the 1940 Act or taxed as
a corporation for federal income tax purposes and so that the Series A
Subordinated Debt Securities will be treated as indebtedness of MCN for federal
income tax purposes. In this connection, the General Partner is authorized to
take any action, not inconsistent with applicable law, the certificate of
limited partnership or the Limited Partnership Agreement, that the General
Partner determines in its discretion to be necessary or desirable for such
purposes, as long as such action does not adversely affect the interests of the
holders of the Series A Preferred Securities.
Holders of the Series A Preferred Securities have no preemptive rights.
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DESCRIPTION OF THE SERIES A SUBORDINATED DEBT SECURITIES
Set forth below is a description of the specific terms of the Series A
Subordinated Debt Securities in which MCN Michigan will invest with the proceeds
of the issuance and sale of (i) the Series A Preferred Securities and (ii) the
General Partner's capital contribution with respect to the Series A Preferred
Securities (the "General Partnership Payment"). This description supplements the
description of the general terms and provisions of the Series A Subordinated
Debt Securities set forth in the accompanying Prospectus under the caption
"Particular Terms of the Subordinated Debt Securities". The following
description does not purport to be complete and is subject to, and is qualified
in its entirety by reference to, the description in the accompanying Prospectus
and the Subordinated Debt Securities Indenture, dated as of September 1, 1994,
between MCN and NBD Bank, N.A., as Trustee, (the "Indenture"), a copy of which
is filed as an Exhibit to the Registration Statement of which this Prospectus
Supplement forms a part. Certain capitalized terms used herein are defined in
the Indenture.
Under certain circumstances involving the dissolution of MCN Michigan
following the occurrence of a Tax Event, Series A Subordinated Debt Securities
may be distributed to the holders of the Series A Preferred Securities in
liquidation of MCN Michigan. See "Description of the Series A Preferred
Securities -- Tax Event Redemption or Distribution".
If the Series A Subordinated Debt Securities are distributed to the holders
of the Series A Preferred Securities, MCN will use its best efforts to have the
Series A Subordinated Debt Securities listed on the New York Stock Exchange or
on such other exchange as the Series A Preferred Securities are then listed.
GENERAL
The Series A Subordinated Debt Securities will be issued as unsecured debt
under the Indenture. The Series A Subordinated Debt Securities will be limited
in aggregate principal amount to approximately $[ ] million, such amount
being the sum of the aggregate stated liquidation preference of the Series A
Preferred Securities and the General Partnership Payment.
The Series A Subordinated Debt Securities are not subject to a sinking fund
provision. The entire principal amount of the Series A Subordinated Debt
Securities will become due and payable, together with any accrued and unpaid
interest thereon, including Additional Interest (as hereinafter defined), if
any, on , 2024.
If Series A Subordinated Debt Securities are distributed to holders of
Series A Preferred Securities in liquidation of such holders' interests in MCN
Michigan, such Series A Subordinated Debt Securities will initially be issued as
a Global Security (as defined below). As described herein, under certain limited
circumstances, Series A Subordinated Debt Securities may be issued in
certificated form in exchange for a Global Security (as defined below). See "--
Book-Entry and Settlement". In the event that Series A Subordinated Debt
Securities are issued in certificated form, such Series A Subordinated Debt
Securities will be in denominations of $25 and integral multiples thereof and
may be transferred or exchanged at the offices described below. Payments on
Series A Subordinated Debt Securities issued as a Global Security will be made
to the depositary for the Series A Subordinated Debt Securities. In the event
Series A Subordinated Debt Securities are issued in certificated form, principal
and interest will be payable, the transfer of the Series A Subordinated Debt
Securities will be registrable and Series A Subordinated Debt Securities will be
exchangeable for Series A Subordinated Debt Securities of other denominations of
a like aggregate principal amount at the corporate trust office of the Trustee
in Detroit, Michigan; provided, that payment of interest may be made at the
option of MCN by check mailed to the address of the persons entitled thereto.
MANDATORY PREPAYMENT
If MCN Michigan redeems Series A Preferred Securities in accordance with
the terms thereof, the Series A Subordinated Debt Securities will become due and
payable in a principal amount equal to the aggregate stated liquidation
preference of the Series A Preferred Securities so redeemed, together with any
accrued and unpaid interest, including Additional Interest, if any, to the date
fixed for redemption. Any
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payment pursuant to this provision shall be made prior to 12:00 noon, New York
time, on the date of such redemption or at such other time on such earlier date
as the parties thereto shall agree.
OPTIONAL REDEMPTION
If there shall be no Series A Preferred Securities outstanding, MCN shall
have the right to redeem the Series A Subordinated Debt Securities, in whole or
in part, from time to time, on or after , 1999, upon not less than 30
nor more than 60 days' notice, at a redemption price equal to 100% of the
principal amount to be redeemed plus any accrued and unpaid interest, including
Additional Interest, if any, to the redemption date.
INTEREST
Each Series A Subordinated Debt Security shall bear interest at the rate of
[ ]% per annum from the original date of issuance, payable monthly in
arrears on the last day of each calendar month of each year (each, an "Interest
Payment Date"), commencing , 1994, to the person in whose name such
Series A Subordinated Debt Security is registered, subject to certain
exceptions, at the close of business on the Business Day next preceding such
Interest Payment Date. In the event the Series A Subordinated Debt Securities
shall not continue to remain in book-entry-only form, MCN shall have the right
to select record dates which shall be more than one Business Day prior to the
Interest Payment Date.
The amount of interest payable for any period will be computed on the basis
of a 360-day year of twelve 30-day months. In the event that any date on which
interest is payable on the Series A Subordinated Debt Securities is not a
Business Day, then payment of the interest payable on such date will be made on
the next succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay), except that, if such Business Day
is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
MCN shall have the right at any time, and from time to time, during the
term of the Series A Subordinated Debt Securities to extend the interest payment
period for a period not exceeding 60 consecutive months (the "Extension
Period"), at the end of which Extension Period, MCN shall pay all interest then
accrued and unpaid (including any Additional Interest) (together with interest
thereon at the rate specified for the Series A Subordinated Debt Securities to
the extent permitted by applicable law); provided, that, during any such
Extension Period, MCN shall not declare or pay any dividend on, or redeem,
purchase, acquire or make a liquidation payment with respect to any of its
capital stock until deferred interest on the Series A Subordinated Debt
Securities is paid in full. Prior to the termination of any such Extension
Period, MCN may further extend the interest payment period, provided that such
Extension Period together with all such previous and further extensions thereof
may not exceed 60 consecutive months. Upon the termination of any Extension
Period and the payment of all amounts then due, MCN may select a new Extension
Period, subject to the above requirements. No interest during an Extension
Period, except at the end thereof, shall be due and payable. If MCN Michigan
shall be the sole holder of the Series A Subordinated Debt Securities, MCN shall
give MCN Michigan notice of its selection of such Extension Period one Business
Day prior to the earlier of (i) the date the dividends on the Series A Preferred
Securities are payable or (ii) the date MCN Michigan is required to give notice
to the New York Stock Exchange or other applicable self-regulatory organization
or to holders of the Series A Preferred Securities of the record date or the
date such dividend is payable, but in any event not less than one Business Day
prior to such record date. MCN shall cause MCN Michigan to give notice of MCN's
selection of such Extension Period to the holders of the Series A Preferred
Securities. If MCN Michigan shall not be the sole holder of the Series A
Subordinated Debt Securities, MCN shall give the holders of the Series A
Subordinated Debt Securities notice of its selection of such Extension Period
ten Business Days prior to the earlier of (i) the Interest Payment Date or (ii)
the date MCN is required to give notice to the New York Stock Exchange or other
applicable self-regulatory organization or to holders of the Series A
Subordinated Debt Securities, of the record or payment date of such related
interest payment but in any event not less than two Business Days prior to such
record date.
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ADDITIONAL INTEREST
If at any time MCN Michigan shall be required to pay any interest on
dividends in arrears in respect of the Series A Preferred Securities pursuant to
the terms thereof, then MCN will pay as interest to MCN Michigan as the holder
of the Series A Subordinated Debt Securities ("Additional Interest") an amount
equal to such interest on dividends in arrears. In addition, if MCN Michigan
would be required to pay any taxes, duties, assessments or governmental charges
of whatever nature (other than withholding taxes) imposed by the United States,
or any other taxing authority, then, in any such case, MCN also will pay as
Additional Interest such amounts as shall be required so that the net amounts
received and retained by MCN Michigan after paying any such taxes, duties,
assessments or other governmental charges will be not less than the amounts MCN
Michigan would have received had no such taxes, duties, assessments or other
governmental charges been imposed.
SET-OFF
Notwithstanding anything to the contrary in the Indenture, MCN shall have
the right to set-off any payment it is otherwise required to make thereunder
with and to the extent MCN has theretofore made, or is concurrently on the date
of such payment making, a payment under the Guarantee.
EVENTS OF DEFAULT
In the case any Event of Default (as defined in the Indenture) shall occur
and be continuing, MCN Michigan will have the right to declare the principal of
and the interest on the Series A Subordinated Debt Securities (including any
Additional Interest) and any other amounts payable under the Indenture to be
forthwith due and payable and to enforce its other rights as a creditor with
respect to the Series A Subordinated Debt Securities. See "Enforcement of
Certain Rights by Special Representative" below for a discussion of certain
rights available to holders of the Series A Preferred Securities upon the
occurrence of an Event of Default.
ENFORCEMENT OF CERTAIN RIGHTS BY SPECIAL REPRESENTATIVE
If (i) MCN Michigan fails to pay dividends in full on the Series A
Preferred Securities for 18 consecutive monthly dividend periods; (ii) an Event
of Default (as defined in the Indenture) occurs and is continuing on the Series
A Subordinated Debt Securities; or (iii) MCN is in default on any of its payment
of other obligations under the Guarantee, under the terms of the Series A
Preferred Securities, the holders of outstanding Series A Preferred Securities
will have the rights referred to under "Description of the Series A Preferred
Securities -- Voting Rights", including the right to appoint a Special
Representative, which Special Representative shall, if an Event of Default
occurs under the Subordinated Debt Securities Indenture, be authorized to
exercise MCN Michigan's right to accelerate the principal amount of the Series A
Subordinated Debt Securities and to enforce MCN Michigan's other creditor rights
under the Series A Subordinated Debt Securities. Notwithstanding the appointment
of any such Special Representative, MCN shall continue as General Partner and
shall retain all rights under the Indenture, including the right to extend the
interest payment period. See "-- Option to Extend Interest Payment Period". If
such an extension occurs, there will be no Event of Default under the
Subordinated Debt Securities Indenture for failure to make any scheduled
interest payment during the Extension Period on the date originally scheduled.
BOOK-ENTRY AND SETTLEMENT
If distributed to holders of Series A Preferred Securities in connection
with the dissolution of MCN Michigan as a result of the occurrence of a Tax
Event, the Series A Subordinated Debt Securities will be issued in the form of
one or more global certificates (each, a "Global Security") registered in the
name of the depositary or its nominee. Except under the limited circumstances
described below, Series A Subordinated Debt Securities represented by the Global
Security will not be exchangeable for, and will not otherwise be issuable as,
Series A Subordinated Debt Securities in definitive form. The Global Securities
described above
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may not be transferred except by the depositary to a nominee of the depositary
or by a nominee of the depositary to the depositary or another nominee of the
depositary or to a successor depositary or its nominee.
The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
laws may impair the ability to transfer beneficial interests in such a Global
Security.
Except as provided below, owners of beneficial interests in such a Global
Security will not be entitled to receive physical delivery of Series A
Subordinated Debt Securities in definitive form and will not be considered the
Holders (as defined in the Indenture) thereof for any purpose under the
Indenture, and no Global Security representing Series A Subordinated Debt
Securities shall be exchangeable, except for another Global Security of like
denomination and tenor to be registered in the name of the depositary or its
nominee or to a successor depositary or its nominee. Accordingly, each
beneficial owner 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 DEPOSITARY
If Series A Subordinated Debt Securities are distributed to holders of
Series A Preferred Securities in liquidation of such holders' interests in MCN
Michigan, DTC will act as securities depositary for the Series A Subordinated
Debt Securities. For a description of DTC and the specific terms of the
depository arrangements, see "Description of the Series A Preferred Securities
- - - -- Book-Entry-Only Issuance -- The Depository Trust Company". As of the date of
this Prospectus Supplement, the description therein of DTC's book-entry system
and DTC's practices as they relate to purchases, transfers, notices and payments
with respect to the Series A Preferred Securities apply in all material respects
to any debt obligations represented by one or more Global Securities held by
DTC. MCN may appoint a successor to DTC or any successor depositary in the event
DTC or such successor depositary is unable or unwilling to continue as
depositary.
None of MCN, MCN Michigan, the Trustee, any paying agent and any other
agent of MCN or the Trustee will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests in a Global Security for such Series A Subordinated Debt
Securities or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
DISCONTINUANCE OF THE DEPOSITARY'S SERVICES
A Global Security shall be exchangeable for Series A Subordinated Debt
Securities registered in the names of persons other than the depositary or its
nominee only if (i) the depositary notifies MCN that it is unwilling or unable
to continue as a depositary for such Global Security and no successor depositary
shall have been appointed, or if any time the depositary ceases to be a clearing
agency registered under the 1934 Act at a time when the depositary is required
to be so registered to act as such depositary and no successor depositary shall
have been appointed, (ii) MCN in its sole discretion determines that such Global
Security shall be so exchangeable or (iii) there shall have occurred an Event of
Default with respect to such Series A Subordinated Debt Securities. Any Global
Security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Series A Subordinated Debt Securities registered in such names
as the depositary shall direct. It is expected that such instructions will be
based upon directions received by the depositary from its Participants with
respect to ownership of beneficial interests in such Global Security.
MISCELLANEOUS
For restrictions on certain actions of the General Partner with respect to
Series A Subordinated Debt Securities held by MCN Michigan, see "Description of
the Series A Preferred Securities -- Voting Rights".
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EFFECT OF OBLIGATIONS UNDER THE
SERIES A SUBORDINATED DEBT SECURITIES AND THE GUARANTEE
As set forth in the Limited Partnership Agreement, the sole purpose of MCN
Michigan is to issue limited partnership interests in MCN Michigan, including,
without limitation, the Series A Preferred Securities, and to use the proceeds
thereof to purchase the Series A Subordinated Debt Securities or other similar
debt instruments of MCN.
As long as payments of interest and other payments are made when due on the
Series A Subordinated Debt Securities, such payments will be sufficient to cover
dividends and payments due on the Series A Preferred Securities primarily
because (i) the aggregate principal amount of Series A Subordinated Debt
Securities will be equal to the sum of the aggregate stated liquidation
preference of the Series A Preferred Securities and the General Partnership
Payment; (ii) the interest rate and interest and other payment dates on the
Series A Subordinated Debt Securities will match the dividend rate and dividend
and other payment dates for the Series A Preferred Securities; (iii) the Limited
Partnership Agreement provides that MCN, as General Partner, shall pay for all,
and MCN Michigan shall not be obligated to pay, directly or indirectly, for any,
costs and expenses of MCN Michigan; and (iv) the Limited Partnership Agreement
further provides that the General Partner shall not cause or permit MCN Michigan
to, among other things, engage in any activity that is not consistent with the
purposes of MCN Michigan.
If MCN fails to make interest or other payments on the Series A
Subordinated Debt Securities when due (taking account of any Extension Period),
the Limited Partnership Agreement provides a mechanism whereby the holders of
the Series A Preferred Securities may enforce the rights of MCN Michigan under
the Series A Subordinated Debt Securities through the appointment of a Special
Representative. Payments of dividends and other payments due on the Series A
Preferred Securities out of moneys held by MCN Michigan are guaranteed by MCN to
the extent set forth under "Description of the Guarantee" in the accompanying
Prospectus. The Limited Partnership Agreement also provides, and MCN, under the
Guarantee, acknowledges, that a Special Representative may be appointed to
enforce the Guarantee if MCN is in default on any of its payment obligations
under the Guarantee. In addition, if the General Partner or the Special
Representative fails to enforce the Guarantee, a holder of a Series A Preferred
Security may institute a legal proceeding directly against MCN to enforce its
rights under the Guarantee without first instituting a legal proceeding against
MCN Michigan or any other person or entity.
UNITED STATES FEDERAL INCOME TAXATION
GENERAL
This section is a summary of certain United States federal income tax
considerations that may be relevant to prospective purchasers of Series A
Preferred Securities and represents the opinion of Sidley & Austin, special tax
counsel to MCN and MCN Michigan, insofar as it relates to matters of law and
legal conclusions. This section is based upon current provisions of the Internal
Revenue Code of 1986, as amended (the "Code"), existing and proposed regulations
thereunder and current administrative rulings and court decisions, all of which
are subject to change. Subsequent changes may cause tax consequences to vary
substantially from the consequences described below.
No attempt has been made in the following discussion to comment on all
United States federal income tax matters affecting purchasers of Series A
Preferred Securities. Moreover, the discussion focuses on initial purchasers of
Series A Preferred Securities that are individual citizens or residents of the
United States that hold the Series A Preferred Securities as a capital asset and
has only limited application to corporations, estates, trusts or non-resident
aliens. Accordingly, each prospective purchaser of Series A Preferred Securities
should consult, and should depend on, its own tax advisor in analyzing the
federal, state, local and foreign tax consequences of the purchase, ownership or
disposition of Series A Preferred Securities.
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INCOME FROM SERIES A PREFERRED SECURITIES
MCN Michigan will be treated as a partnership and the Series A Subordinated
Debt Securities will be treated as indebtedness for federal income tax purposes.
Accordingly, each holder of Series A Preferred Securities (a "Preferred
Securityholder") will be required to include in gross income the Preferred
Securityholder's distributive share of the net income of MCN Michigan. Such
income will not exceed the dividends received on such Series A Preferred
Securities, except in limited circumstances as described below under "Potential
Extension of Interest Payment Period". Any amount so included in a Preferred
Securityholders' gross income will increase its tax basis in the Series A
Preferred Securities, and the amount of cash dividends to the Preferred
Securityholder will reduce its tax basis in the Series A Preferred Securities.
No portion of such income will be eligible for the dividends received deduction.
DISPOSITION OF SERIES A PREFERRED SECURITIES
A Preferred Securityholder will recognize gain or loss on a sale of Series
A Preferred Securities, including a redemption for cash of all of a Preferred
Securityholder's Series A Preferred Securities, equal to the difference between
the amount realized and the Preferred Securityholder's tax basis for the Series
A Preferred Securities sold or redeemed. In the case of a cash distribution in
partial redemption of a Preferred Securityholder's Series A Preferred
Securities, no loss will be recognized, such holder's tax basis in the Series A
Preferred Securities will be reduced by the amount of the distribution, and such
holder will recognize gain to the extent, if any, that the amount of the
distribution exceeds such holder's tax basis in the Series A Preferred
Securities. Gain or loss recognized by a Preferred Securityholder on the sale or
exchange of a Series A Preferred Security held for more than one year will
generally be taxable as long-term capital gain or loss.
RECEIPT OF SERIES A SUBORDINATED DEBT SECURITIES OR CASH UPON LIQUIDATION OF MCN
MICHIGAN
Under certain circumstances, as described under the caption "Description of
the Series A Preferred Securities -- Tax Event Redemption or Distribution",
Series A Subordinated Debt Securities may be distributed to Preferred
Securityholders in exchange for the Series A Preferred Securities and in
liquidation of MCN Michigan. Under current United States federal income tax law,
such a distribution would be treated as a non-taxable exchange to each Preferred
Securityholder and each Preferred Securityholder would receive an aggregate tax
basis in the Series A Subordinated Debt Securities equal to such holder's
aggregate tax basis in its Series A Preferred Securities. A holder's holding
period in the Series A Subordinated Debt Securities so received in liquidation
of MCN Michigan would include the period for which the Series A Preferred
Securities were held by such holder. Under a change in law, a change in legal
interpretation or the other circumstances giving rise to a Tax Event, however,
the dissolution in which Preferred Securityholders receive cash in exchange for
Series A Preferred Securities generally will be taxable to a Preferred
Securityholder and such holder will recognize gain or loss measured by the
difference between the amount of the cash received and such holder's tax basis
in its Series A Preferred Securities.
POTENTIAL EXTENSION OF INTEREST PAYMENT PERIOD
MCN has the right to extend, from time to time, the interest payment period
on the Series A Subordinated Debt Securities to a period not exceeding 60
consecutive months. In the event that the interest payment period is extended,
MCN Michigan will continue to accrue income, equal to the amount of the interest
payment due at the end of the Extension Period, over the length of the Extension
Period.
Accrued income for any month will be allocated, but not distributed, to
Preferred Securityholders of record on the Business Day preceding the last day
of each calendar month. As a result, Preferred Securityholders of record during
an Extension Period will include interest in gross income in advance of the
receipt of cash, and any such holders who dispose of Series A Preferred
Securities prior to the record date for the payment of dividends following such
Extension Period will include interest in gross income but will not receive any
cash related thereto from MCN Michigan. The tax basis of a Series A Preferred
Security will be
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increased by the amount of any interest that is included in income without a
receipt of cash, and will be decreased again when and if such cash is
subsequently received from MCN Michigan.
USE OF CONVENTION
MCN Michigan will adopt a convention under which all of the net income
accrued by MCN Michigan in any calendar month will be allocated to the holders
of record on the record date for dividends in respect of such month. It is
unclear whether this convention will be respected for federal income tax
purposes. If it is not respected, the distributive share of MCN Michigan's net
income allocable to Series A Preferred Securities in respect of a month in which
such Series A Preferred Securities are sold may be allocated between the seller
and the purchaser on some other basis. Any amount so allocated to the holder,
whether as seller or purchaser, would be includible in the holder's income and
would increase such holder's tax basis in the Series A Preferred Securities.
MCN MICHIGAN INFORMATION RETURNS AND AUDIT PROCEDURES
MCN, as the General Partner in MCN Michigan, will furnish each Preferred
Securityholder with a Schedule K-1 each year setting forth such Preferred
Securityholder's allocable share of income for the prior calendar year. MCN is
required to furnish such Schedule K-1 as soon as practicable following the end
of the year, but in any event within 90 days after the end of MCN Michigan's
fiscal year.
Any person who holds Series A Preferred Securities as a nominee for another
person is required to furnish to MCN Michigan (a) the name, address and taxpayer
identification number of the Beneficial Owner and the nominee; (b) information
as to whether the Beneficial Owner is (i) a person that is not a United States
person, (ii) a foreign government, an international organization or any
wholly-owned agency or instrumentality of either of the foregoing, or (iii) a
tax-exempt entity; (c) the amount and description of Series A Preferred
Securities held, acquired or transferred for the Beneficial Owner; and (d)
certain information including the dates of acquisitions and transfers, means of
acquisitions and transfers, and acquisition cost for purchases, as well as the
amount of net proceeds from sales. Brokers and financial institutions are
required to furnish additional information, including whether they are United
States persons and certain information on Series A Preferred Securities they
acquire, hold or transfer for their own accounts. A penalty of $50 per failure
(up to a maximum of $100,000 per calendar year) is imposed by the Code for
failure to report such information to MCN Michigan. The nominee is required to
supply the Beneficial Owners of the Series A Preferred Securities with the
information furnished to MCN Michigan.
UNITED STATES ALIEN HOLDERS
For purposes of this discussion, a "United States Alien Holder" is any
Preferred Securityholder who or which is (i) a nonresident alien individual or
(ii) a foreign corporation, partnership or estate or trust, in either case not
subject to United States federal income tax on a net income basis in respect of
a Series A Preferred Security.
Under current United States federal income tax law, subject to the
discussion below with respect to backup withholding:
(i) Payments by MCN Michigan or any of its paying agents to any holder
of a Series A Preferred Security who or which is a United States Alien
Holder will not be subject to United States federal withholding tax
provided that (a) the Beneficial Owner of the Series A Preferred Security
does not actually or constructively own 10% or more of the total combined
voting power of all classes of capital stock of MCN entitled to vote, (b)
the Beneficial Owner of the Series A Preferred Security is not a controlled
foreign corporation that is related to MCN through stock ownership and (c)
either (x) the Beneficial Owner of the Series A Preferred Security
certifies to MCN Michigan or its agent, under penalties of perjury, that it
is a United States Alien Holder and provides its name and address or (y)
the holder of the Series A Preferred Security is a securities clearing
organization, bank or other financial institution that holds customers'
securities in the ordinary course of its trade or business (a "financial
institution"), and such holder certifies to MCN Michigan or its agent under
penalties of perjury that such
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statement has been received from the Beneficial Owner by it or by a
financial institution between it and the Beneficial Owner and furnishes MCN
Michigan or its agent with a copy thereof; and
(ii) a United States Alien Holder of a Series A Preferred Security
will generally not be subject to United States federal withholding tax on
any gain realized on the sale or exchange of a Series A Preferred Security
unless such holder is present in the United States for 183 days or more in
the taxable year of sale and either has a "tax home" in the United States
or certain other requirements are met.
BACKUP WITHHOLDING AND INFORMATION REPORTING
In general, information reporting requirements will apply to payments to
noncorporate United States holders of the proceeds of the sale of Series A
Preferred Securities within the United States and "backup withholding" at a rate
of 31% will apply to such payments if the United States holder fails to provide
an accurate taxpayer identification number.
Payments of the proceeds from the sale by a United States Alien Holder of
Series A Preferred Securities made to or through a foreign office of a broker
generally will not be subject to information reporting or backup withholding,
except that, if the broker is a United States person, a controlled foreign
corporation for United States tax purposes, or a foreign person 50% or more of
whose gross income is effectively connected with a United States trade or
business for a specified three-year period, information reporting may apply to
such payments. Payments of the proceeds from the sale of Series A Preferred
Securities to or through the United States office of a broker is subject to
information reporting and backup withholding unless the holder or beneficial
owner certifies as to its non-United States status or otherwise establishes an
exemption from information reporting and backup withholding.
THE FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL
INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON A HOLDER'S PARTICULAR
SITUATION. HOLDERS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE TAX
CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE SERIES A
PREFERRED SECURITIES, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL, FOREIGN
AND OTHER TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN FEDERAL OR OTHER TAX
LAWS.
UNDERWRITING
Subject to the terms and conditions set forth in an underwriting agreement
(the "Underwriting Agreement"), MCN Michigan has agreed to sell to each of the
Underwriters named below, and each of the Underwriters, for whom Merrill Lynch,
Pierce, Fenner & Smith Incorporated, and , are acting as
representatives (the "Representatives"), has severally agreed to purchase the
number of Series A Preferred Securities set forth opposite its name below. In
the Underwriting Agreement, the several Underwriters have agreed, subject to the
terms and conditions set forth therein, to purchase all the Series A Preferred
Securities offered hereby if any of the Series A Preferred Securities are
purchased. In the event of default by an Underwriter, the Underwriting Agreement
provides that, in certain circumstances, the purchase commitments of the
nondefaulting Underwriters may be increased or the Underwriting Agreement may be
terminated.
<TABLE>
<CAPTION>
NUMBER OF
PREFERRED
UNDERWRITERS SECURITIES
------------ ----------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated.........................................
----------
Total................................................
=========
</TABLE>
S-24
<PAGE> 26
The Underwriters propose to offer the Series A Preferred Securities in part
directly to the public at the initial public offering price set forth on the
cover page of this Prospectus Supplement, and in part to certain securities
dealers at such price less a concession of $ per Series A Preferred
Security. The Underwriters may allow, and such dealers may reallow, a concession
not in excess of $ per Series A Preferred Security to certain brokers and
dealers. After the Series A Preferred Securities are released for sale to the
public, the offering price and other selling terms may from time to time be
varied by the Representatives.
In view of the fact that the proceeds of the sale of the Series A Preferred
Securities will ultimately be used to purchase the Series A Subordinated Debt
Securities, the Underwriting Agreement provides that MCN has agreed to pay as
compensation ("Underwriters' Compensation") for the Underwriters' arranging the
investment therein of such proceeds, an amount in New York Clearing House (next
day) funds of $ per Series A Preferred Security (or $ in the
aggregate) for the accounts of the several Underwriters provided that such
compensation for sales of 10,000 or more Series A Preferred Securities to any
single purchaser will be $ per Series A Preferred Security. Therefore,
to the extent of such sales, the actual amount of Underwriters Compensation will
be less than the aggregate amount specified in the preceding sentence.
MCN and MCN Michigan have agreed, during the period beginning from the date
of the Underwriting Agreement and continuing to and including the earlier of (i)
the date after the closing date on which the distribution of the Series A
Preferred Securities and the Guarantee ceases, as determined by the
Underwriters, or (ii) 90 days after the closing date, not to offer, sell,
contract to sell, or otherwise dispose of any Series A Preferred Securities, any
limited partnership interests of MCN Michigan, or any preferred stock or any
other securities of MCN Michigan or MCN which are substantially similar to the
Series A Preferred Securities including the Guarantee, or any securities
convertible into or exchangeable for Series A Preferred Securities, limited
partnership interests, preferred stock or such substantially similar securities
of either MCN Michigan or MCN, without the prior written consent of the
Underwriters.
Prior to this offering, there has been no public market for the Series A
Preferred Securities. In order to meet one of the requirements for listing the
Series A Preferred Securities on the New York Stock Exchange, the Underwriters
will undertake to sell lots of 100 or more Series A Preferred Securities to a
minimum of [400] beneficial holders.
MCN Michigan and MCN have agreed to indemnify the Underwriters against, or
contribute to payments that the Underwriters may be required to make in respect
of, certain liabilities, including liabilities under the Securities Act of 1933,
as amended.
Certain of the Underwriters engage in transactions with, and, from time to
time, have performed services for, MCN and its subsidiaries in the ordinary
course of business.
LEGAL MATTERS
Certain matters of Michigan law relating to the formation of MCN Michigan,
the status of the Preferred Securities, and certain effects of the Limited
Partnership Agreement with respect to Preferred Partners (as such term is
defined in the Limited Partnership Agreement) are being passed upon by
Dickinson, Wright, Moon, Van Dusen & Freeman, special Michigan counsel to MCN
Michigan. The validity of the Indenture, the Guarantee and the Series A
Subordinated Debt Securities will be passed upon on behalf of MCN Michigan and
MCN by Daniel L. Schiffer, Vice President, General Counsel and Secretary of MCN
and on behalf of the Underwriters by LeBoeuf, Lamb, Greene and MacRae, a
partnership including professional corporations, New York, New York. Statements
as to United States taxation in the Prospectus Supplement in the second
paragraph under the caption "Investment Considerations -- Tax Event Redemption
or Distribution", and under the caption "United States Federal Income Taxation",
have been passed upon for MCN and MCN Michigan by Sidley & Austin, special tax
counsel to MCN Michigan and MCN, and are stated herein on their authority.
S-25
<PAGE> 27
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 SEPTEMBER 29, 1994
PROSPECTUS
$300,000,000
[MCN LOGO]
SENIOR DEBT SECURITIES
SUBORDINATED DEBT SECURITIES
COMMON STOCK
AND
MCN MICHIGAN LIMITED PARTNERSHIP PREFERRED SECURITIES
------------------------
MCN Corporation, a Michigan Corporation, ("MCN" or the "Company") may
offer, from time to time, (i) unsecured senior debt securities (the "Senior Debt
Securities") consisting of debentures, notes or other unsecured evidences of
indebtedness, (ii) unsecured subordinated debt securities (the "Subordinated
Debt Securities") consisting of debentures, notes and other unsecured evidence
of indebtedness (item (i) or (ii) above being referred to herein as the "Debt
Securities"), (iii) MCN Common Stock $.01 par value ("MCN Common Stock"), and
(iv) its guarantee of MCN Michigan Limited Partnership preferred securities
("Preferred Securities"), or any combination of the foregoing, in each case in
one or more series and in amounts, at prices and on terms to be determined at or
prior to the time of sale.
MCN Michigan Limited Partnership ("MCN Michigan"), a Michigan special
purpose limited partnership in which MCN is the general partner, may offer, from
time to time, its Preferred Securities, representing limited partner interests
in one or more series. The payment of periodic cash distributions ("dividends")
with respect to Preferred Securities of any series, out of moneys held by MCN
Michigan, and payments on liquidation or redemption with respect to the
Preferred Securities are guaranteed by MCN to the extent described herein (the
"Guarantee"). MCN's obligations under the Guarantee are subordinate and junior
in right of payment to all other liabilities of MCN and pari passu with the most
senior preferred stock issued by MCN. Subordinated Debt Securities also may be
issued and sold from time to time in one or more series by MCN to MCN Michigan
in connection with the investment of the proceeds from the offering of Preferred
Securities. MCN's obligations under the Subordinated Debt Securities are
subordinate to the Senior Indebtedness (as defined herein) and pari passu with
MCN trade creditors. The Subordinated Debt Securities subsequently may be
distributed pro rata to holders of Preferred Securities in connection with the
dissolution of MCN Michigan upon the occurrence of certain events as may be
described in an accompanying Prospectus Supplement (a "Prospectus Supplement").
Specific terms of the particular Debt Securities, MCN Common Stock and
Preferred Securities in respect of which this Prospectus is being delivered (the
"Offered Securities") will be set forth in an accompanying Prospectus Supplement
or Supplements, together with the terms of the offering of the Offered
Securities, the initial price thereof and the net proceeds from the sale
thereof. The Prospectus Supplement will set forth with regard to the particular
Offered Securities, without limitation, the following: (i) in the case of Debt
Securities, the designation, aggregate principal amount, denomination, maturity,
any exchange, conversion, redemption or sinking fund provisions, interest rate
(which may be fixed or variable), the time and method of calculating interest
payments, the right of the Company, if any, to defer payment of interest on the
Subordinated Debt Securities and the maximum length of such deferral period, any
listing on a securities exchange and other specific terms of the offering, (ii)
in the case of MCN Common Stock, the designation, number of shares, public
offering price and other specific terms of the offering and (iii) in the case of
Preferred Securities, the designation, number of shares, liquidation preference
per security, initial public offering price, any listing on a securities
exchange, dividend rate (or method of calculation thereof), dates on which
dividends shall be payable and dates from which dividends shall accrue, any
voting rights, any redemption, exchange or sinking fund provisions, any other
rights, preferences, privileges, limitations or restrictions relating to the
Preferred Securities of a specific series and the terms upon which the proceeds
of the sale of the Preferred Securities will be loaned to MCN. The offering
price to the public of the Offered Securities will be limited to $300,000,000 in
the aggregate.
The Company's Common Stock is traded on the New York Stock Exchange
("NYSE") under the symbol MCN. See "Description of MCN Capital Stock -- Price
Range of MCN Common Stock and Common Stock Dividends".
MCN and/or MCN Michigan may sell the Offered Securities directly, through
agents designated from time to time or through underwriters or dealers. See
"Plan of Distribution." If any agents of MCN and/or MCN Michigan or any
underwriters or dealers are involved in the sale of the Offered Securities, the
names of such agents, underwriters or dealers and any applicable commissions and
discounts will be set forth in the related Prospectus Supplement.
This Prospectus may not be used to consummate sales of Offered Securities
unless accompanied by a Prospectus Supplement.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECU-RITIES 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.
------------------------
THE DATE OF THIS PROSPECTUS IS , 1994.
<PAGE> 28
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 NYSE, on which MCN Common Stock is traded, at 20 Broad Street, New York, New
York 10005.
This Prospectus constitutes a part of a Registration Statement on Form S-3
(together with all amendments and exhibits thereto, the "Registration
Statement") filed with the SEC under the Securities Act of 1933, as amended (the
"Securities Act") with respect to the Offered 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 and the Offered
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.
No separate financial statements of MCN Michigan have been included herein.
MCN and MCN Michigan do not consider that such financial statements would be
material to holders of Preferred Securities because MCN Michigan is a newly
organized special purpose entity, has no operating history and no independent
operations and is not engaged in, and does not propose to engage in, any
activity other than the issuance of its Preferred Securities and the lending of
the proceeds thereof to MCN. MCN Michigan is a limited partnership organized
under the laws of the State of Michigan. MCN is the sole general partner in MCN
Michigan and, as of the date hereof, directly or indirectly beneficially owns
all of MCN Michigan's partnership interests. See "MCN Michigan Limited
Partnership".
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, 1993.
2. Quarterly Reports on Form 10-Q for the quarters ended March 31, 1994 and
June 30, 1994.
3. The description of MCN's Common Stock as contained in its Form 8-B dated
September 29, 1988.
4. The description of MCN's Preferred Share Purchase Rights contained in its
Form 8-A dated December 28, 1989.
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 Offered 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 shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained in this Prospectus or in any other subsequently filed document which
also is or is deemed to be incorporated by reference in this Prospectus 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.
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.
2
<PAGE> 29
MCN CORPORATION
MCN, a Michigan corporation organized in 1988, is the holding company for
(i) Michigan Consolidated Gas Company ("MichCon"), a public utility engaged in
the distribution, transmission and storage of natural gas to more than 1.1
million customers throughout Michigan; (ii) Citizens Gas Fuel Company
("Citizens"), a natural gas utility servicing Adrian, Michigan; and (iii) MCN
Investment Corporation ("MCN Investment"), the holding company for its
nonutility businesses. MCN's principal executive office is located at 500
Griswold Street, Detroit, Michigan 48226, telephone number (313) 256-5500.
Utility Services. MichCon and Citizens provide gas sales service primarily
to residential and commercial customers and transportation service to
large-volume customers. MichCon also provides transportation service to other
gas utilities, gas marketers and producers.
Gas Services. MCN Investment, through its subsidiary companies and various
joint ventures, markets natural gas to large-volume customers, develops gas
cogeneration facilities, provides gas gathering and processing services, engages
in gas exploration and production and provides gas storage services.
Computer Operations Services. The Genix Group, a wholly-owned subsidiary of
MCN Investment, provides data processing, computer operations management, data
telecommunications design and management, large-scale electronic printing and
mailing, and business process solution services to more than 100 corporate
clients in financial services, insurance, retailing, food processing, education,
manufacturing and other industries. These services are provided through
facilities located in Michigan, Pennsylvania and North Carolina.
Gas Technology. MCN's gas technology programs are developing products to
expand demand for natural gas.
Capital investments will exceed $400 million in 1994, with over $250
million being invested in nonutility businesses, primarily to purchase gas
reserves and for exploration and development. Approximately $150 million will be
invested in MCN's utility services operations.
MCN MICHIGAN LIMITED PARTNERSHIP
MCN Michigan is a limited partnership formed under the laws of the State of
Michigan. MCN Michigan exists for the sole purpose of issuing its limited
partnership interests and investing the net proceeds thereof in Subordinated
Debt Securities. All of its partnership interests, as of the date hereof, are
beneficially owned, directly or indirectly, by MCN. MCN is the sole general
partner in MCN Michigan (the "General Partner"). MCN Finance Corporation, a
Michigan corporation and wholly-owned subsidiary of MCN ("MCN Finance"), is, as
of the date hereof, the sole limited partner in MCN Michigan. Upon the issuance
of Preferred Securities, which securities represent limited partner interests in
MCN Michigan, MCN Finance will withdraw as a limited partner. MCN Michigan has a
term of approximately 99 years, unless earlier dissolved. MCN Michigan's
registered office in the State of Michigan is 500 Griswold Street, Detroit,
Michigan 48226, telephone number: (313) 256-5500. All of MCN Michigan's business
and affairs will be conducted by MCN, as the sole general partner. The principal
place of business of MCN Michigan is c/o MCN Corporation, 500 Griswold Street,
Detroit, Michigan 48226, telephone number: (313) 256-5500.
USE OF PROCEEDS
MCN intends to add the net proceeds from the sale of Offered Securities to
its general funds, to be used for general corporate purposes, including capital
expenditures, investment in subsidiaries, working capital, repayment of loans
under bank credit agreements and repayment of other short-term borrowings. MCN
Michigan will loan to MCN all proceeds received by MCN Michigan from the sale of
its Preferred Securities.
3
<PAGE> 30
RATIO OF EARNINGS TO FIXED CHARGES AND
RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the ratio of earnings to fixed charges and
the ratio of earnings to fixed charges and preferred stock dividends for the
periods indicated.
<TABLE>
<CAPTION>
TWELVE MONTHS
ENDED YEAR ENDED DECEMBER 31,
JUNE 30, ----------------------------------------
1994 1993 1992 1991 1990 1989
------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges(1)......... 3.38 3.04 2.74 2.08 2.06 3.45
</TABLE>
- - - -------------------------
(1) MCN has authority to issue up to 25,000,000 shares of preferred stock, no
par value, however, there are currently no shares outstanding and MCN
currently does not have a preferred stock dividend obligation. Therefore,
the Ratio of Earnings to Fixed Charges and Preferred Stock Dividends is
equal to the Ratio of Earnings to Fixed Charges and is not disclosed
separately.
The Ratio of Earnings to Fixed Charges, and the Ratio of Earnings to Fixed
Charges and Preferred Stock Dividends are based on continuing operations.
"Earnings" consist of the consolidated pre-tax income of MCN adjusted to exclude
any income not actually received from less than 50% owned companies, plus fixed
charges, less interest capitalized for nonutility operations. "Fixed Charges"
represent (a) interest (whether expensed or capitalized), (b) amortization of
debt discount or premium and expense, (c) an estimate of interest implicit in
rentals and (d) preferred stock dividend requirements of MichCon, increased to
reflect the pre-tax earnings requirement.
DESCRIPTION OF MCN 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
and will constitute either Senior Debt Securities or Subordinated Debt
Securities. Senior Debt Securities will be issued under an Indenture (the
"Senior Debt Securities Indenture"), between the Company and NBD Bank, N.A.
("NBD"), as trustee (the "Senior Debt Securities Trustee"). The Subordinated
Debt Securities will be issued under an Indenture (the "Subordinated Debt
Securities Indenture") between the Company and NBD as trustee (the "Subordinated
Debt Securities Trustee").
The Senior Debt Securities Indenture and the Subordinated Debt Securities
Indenture are referred to herein individually as an "Indenture" and,
collectively, as the "Indentures," and the Senior Debt Securities Trustee and
the Subordinated Debt Securities Trustee are referred to herein as the
"Trustee." A copy of each Indenture is filed as an exhibit to the Registration
Statement.
The following summaries of certain provisions of the Debt Securities and
the Indentures 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
Indentures, including the definitions therein of certain terms. Certain
capitalized terms herein are defined in the Indentures.
GENERAL
The Debt Securities will be unsecured obligations of the Company.
The Indentures do not limit the aggregate principal amount of Debt
Securities which may be issued thereunder and provide that Debt Securities may
be issued thereunder, from time to time, in one or more series.
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
4
<PAGE> 31
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; (8) the right of the Company, if any, to defer payment of interest
on the Subordinated Debt Securities and the maximum length of any such deferral
period; and (9) any other terms of the Offered Debt Securities (which terms
shall not be inconsistent with the appropriate 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 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 descriptions of both the Senior Debt Securities and the
Subordinated 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.
"Significant Subsidiary" means a Subsidiary or Subsidiaries of the Company
possessing assets (including the assets of its own Subsidiaries but without
regard to the Company or any other Subsidiary) having a book value, in the
aggregate, equal to not less than 10% of the book value of the aggregate assets
of the Company and its Subsidiaries calculated on a consolidated basis.
5
<PAGE> 32
"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.
The Debt Securities may be issued under the Indentures 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.
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 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.
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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.
THE TRUSTEE
NBD is the Trustee under the Senior Debt Securities Indenture and the
Subordinated Debt Securities Indenture. 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 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.
PARTICULAR TERMS OF THE SENIOR DEBT SECURITIES
The following description of the Senior Debt Securities sets forth certain
general terms and provisions of the Senior Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Senior Debt
Securities offered by any Prospectus Supplement and the extent, if any, to which
such general provisions may apply to the Senior Debt Securities so offered will
be described in the Prospectus Supplement relating to such Senior Debt
Securities.
RESTRICTIONS
The Senior Debt Securities Indenture provides that the Company shall not
consolidate with, merge with or into any other corporation (whether or not the
Company 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 shall be the continuing Person or the Person (if other than the Company)
formed by such consolidation or with which or into which the Company is merged
or the Person (or group of affiliated Persons) to which all or substantially all
the properties and assets of the Company 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, by an indenture supplemental to the Senior Debt Securities Indenture,
all the obligations of the Company under the Senior Debt Securities and the
Senior Debt Securities Indenture, executed and delivered to the Trustee in form
satisfactory to the Trustee; (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 Senior Debt Securities shall have occurred and be
continuing; and (3) the Company 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 Senior Debt
Securities Indenture.
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The Senior Debt Securities Indenture also provides that the Company will
not, nor will it permit any Significant Subsidiary to, create, incur, or suffer
to exist any Lien in, of or on the property of the Company or any of its
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 or its Subsidiaries; (v) Liens on the
capital stock, partnership interest, or other evidence of ownership of any
Subsidiary or such Subsidiary's assets that secure project financing 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 Senior Debt Securities 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 business practices) 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 Senior Debt Securities are first issued; and (ix)
Liens for no more than 90 days arising from a transaction involving accounts
receivable of the Company (including the sale of such accounts receivable),
where such accounts receivable arose in the ordinary course of the Company's
business.
The Senior Debt Securities Indenture provides that the Company will not,
nor will it permit any Subsidiary to, enter into any arrangement with any lender
or investor (other than the Company or a Subsidiary), or to which such lender or
investor (other than the Company or a Subsidiary) is a party, providing for the
leasing by the Company 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 or such Subsidiary for more than six months
and which has been or is to be sold or transferred by the Company or such
Subsidiary 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 or such Subsidiary 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 Senior Debt
Securities or (b) the Company, 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 to the retirement of
Senior Debt Securities and other obligations of the Company ranking on a parity
with the Senior Debt Securities.
RANKING OF SENIOR DEBT SECURITIES
The Senior Debt Securities will rank pari passu in right of payment with
all other unsecured indebtedness of the Company, except that the Senior Debt
Securities will be senior in right of payment to any subordinated indebtedness
which, by its terms, is subordinate to the Senior Debt Securities.
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EVENTS OF DEFAULT AND NOTICE THEREOF
The following are Events of Default under the Senior Debt Securities
Indenture with respect to Senior Debt Securities of any series: (1) failure to
pay interest on any Senior Debt Security of that series when due, continued for
30 days; (2) failure to pay the principal of (or premium, if any, on) any Senior
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 contained in the Senior Debt Securities of that series or in the
Senior Debt Securities Indenture (other than a covenant, agreement or warranty
included in the Senior Debt Securities Indenture solely for the benefit of
Senior 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 Senior Debt
Securities of that series; (4) failure to pay at final maturity, or acceleration
of, Indebtedness of the Company having an aggregate principal amount of more
than 1% of the Company's consolidated total assets (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 Senior Debt Securities of that series; (5) certain
events of bankruptcy, insolvency or reorganization relating to the Company; and
(6) any other Event of Default with respect to Senior Debt Securities of that
series specified in the Prospectus Supplement relating thereto or Supplemental
Indenture under which such series of Senior Debt Securities is issued.
The Senior Debt Securities Indenture provides that the Trustee shall,
within 30 days after the occurrence of any Default or Event of Default with
respect to Senior Debt Securities of any series, give the Holders of Senior 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 Senior 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 Senior Debt
Securities of that series.
If an Event of Default with respect to Senior 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 Senior 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 Senior Debt Securities of that
series), may declare the unpaid principal of and accrued interest to the date of
acceleration on all the Outstanding Senior Debt Securities of that series to be
due and payable immediately and, upon any such declaration, the Senior 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
Senior Debt Securities of any series will become immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder of
any Senior Debt Security of that series.
Any such declaration with respect to Senior Debt Securities of any series
may be annulled and past Events of Default and Defaults (except, unless
theretofore cured, an Event of Default or a Default in payment of principal of
or interest on the Senior Debt Securities of that series) may be waived by the
Holders of a majority of the principal amount of the Outstanding Senior Debt
Securities, upon the conditions provided in the Senior Debt Securities
Indenture.
The Senior Debt Securities 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 Senior Debt Securities of any
series, in performing such covenants, of which the signers may have knowledge.
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MODIFICATION OF SENIOR DEBT SECURITIES INDENTURE; WAIVER
The Senior Debt Securities 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 Senior Debt Securities Indenture and (ii) to make any change that does not
materially adversely affect the interests of any Holder of Senior Debt
Securities of any series. In addition, under the Senior Debt Securities
Indenture, certain rights and obligations of the Company and the rights of
Holders of the Senior 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 Senior Debt Securities of each
series affected thereby; but no extension of the maturity of any Senior 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 Senior Debt Securities of any
series, other modification in the terms of payment of the principal of, or
interest on, any Senior Debt Securities of any series, or reduction of the
percentage required for modification, will be effective against any Holder of
any Outstanding Senior Debt Security of any series affected thereby without the
Holder's consent. The Senior Debt Securities Indenture does not limit the
aggregate amount of Senior Debt Securities of the Company which may be issued
thereunder.
The Holders of a majority in aggregate principal amount of the Outstanding
Senior Debt Securities of any series may on behalf of the Holders of all Senior
Debt Securities of that series waive, insofar as that series is concerned,
compliance by the Company with certain restrictive covenants of the Senior Debt
Securities Indenture. The Holders of not less than a majority in aggregate
principal amount of the Outstanding Senior Debt Securities of any series may on
behalf of the Holders of all Senior Debt Securities of that series waive any
past Event of Default or Default under the Senior Debt Securities 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 Senior Debt
Security of that series or in respect of a provision which under the Senior Debt
Securities Indenture cannot be modified or amended without the consent of the
Holder of each Outstanding Senior Debt Security of that series affected.
DEFEASANCE
The Company may terminate its substantive obligations in respect of Senior
Debt Securities of any series (except for its obligations to pay the principal
of (and premium, if any, on) and the interest on the Senior 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 Senior 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 Senior 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 Senior Debt Securities Indenture.
PARTICULAR TERMS OF THE SUBORDINATED DEBT SECURITIES
The following description of the Subordinated Debt Securities sets forth
the general terms and provisions of the Subordinated Debt Securities to which
any Prospectus Supplement may relate. The particular terms of the Subordinated
Debt Securities offered by any Prospectus Supplement and the extent, if any, to
which such general provisions may apply will be described in the Prospectus
Supplement relating to such Subordinated Debt Securities.
For purposes of the description of the Subordinated Debt Securities,
certain defined terms have the following meanings:
"Senior Indebtedness" means the principal of and premium, if any, and
interest on the following, whether outstanding on the date of execution of
the Subordinated Debt Securities Indenture or thereafter incurred or
created: (i) indebtedness of the Company for money borrowed by the Company
(including
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purchase money obligations with an original maturity in excess of one year)
or evidenced by debentures (other than the Subordinated Debt Securities),
notes, bankers' acceptances or other corporate debt securities or similar
instruments issued by the Company; (ii) obligations with respect to letters
of credit; (iii) indebtedness of the Company constituting a guarantee of
indebtedness of others of the type referred to in the preceding clauses (i)
and (ii); or (iv) renewals, extensions or refundings of any of the
indebtedness referred to in the preceding clauses (i), (ii) and (iii)
unless, in the case of any particular indebtedness, renewal, extension or
refunding, under the express provisions of the instrument creating or
evidencing the same, or pursuant to which the same is outstanding, such
indebtedness or such renewal, extension or refunding thereof is not
superior in right of payment to the Subordinated Debt Securities.
RESTRICTIONS
The Subordinated Debt Securities Indenture provides that the Company shall
not consolidate with, merge with or into any other corporation (whether or not
the Company 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 shall be the continuing Person or the Person (if other than the Company)
formed by such consolidation or with which or into which the Company is merged
or the Person (or group of affiliated Persons) to which all or substantially all
the properties and assets of the Company 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, by indentures supplemental to the Subordinated Debt Securities
Indenture executed and delivered to the Trustee in form satisfactory to the
Trustee, all the obligations of the Company under the Subordinated Debt
Securities and the Subordinated Debt Securities Indenture; (2) immediately
before and after giving effect to such transaction or series of related
transactions or series of transactions, no Event of Default, and no Default,
with respect to the Subordinated Debt Securities shall have occurred and be
continuing; and (3) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger or sale, assignment, transfer or lease and such supplemental indentures
comply with the Subordinated Debt Securities Indenture.
The Subordinated Debt Securities Indenture also provides that the Company
will not, nor will it permit any Significant Subsidiary to, create, incur, or
suffer to exist any Lien in, of or on the property of the Company or any of its
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 or its Subsidiaries; (v) Liens on the
capital stock, partnership interest, or other evidence of ownership of any
Subsidiary or such Subsidiary's assets that secure project financing 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 Subordinated Debt Securities 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 business practices) 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
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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
Subordinated Debt Securities are first issued; and (ix) Liens for no more than
90 days arising from a transaction involving accounts receivable of the Company
(including the sale of such accounts receivable), where such accounts receivable
arose in the ordinary course of the Company's business.
The Subordinated Debt Securities Indenture provides that the Company will
not, nor will it permit any Subsidiary to, enter into any arrangement with any
lender or investor (other than the Company or a Subsidiary), or to which such
lender or investor (other than the Company or a Subsidiary) is a party,
providing for the leasing by the Company 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 or such Subsidiary for
more than six months and which has been or is to be sold or transferred by the
Company or such Subsidiary 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 or such Subsidiary 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
Subordinated Debt Securities or (b) the Company, 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 to the
retirement of Subordinated Debt Securities and other obligations of the Company
ranking senior to or on a parity with the Subordinated Debt Securities.
EVENTS OF DEFAULT AND NOTICE THEREOF
The following are Events of Default under the Subordinated Debt Securities
Indenture with respect to the Subordinated Debt Securities of any series: (1)
failure to pay interest on any Subordinated Debt Securities of that series when
due, continued for 30 days; however, if the Company is permitted by the terms of
the Subordinated Debt Securities of the applicable series to defer the payment
in question, the date on which such payment is due and payable shall be the date
on which the Company is required to make payment following such deferral, if
such deferral has been elected pursuant to the terms of the Subordinated Debt
Securities; (2) failure to pay the principal of (or premium, if any, on) any
Subordinated Debt Securities of that series when due and payable at Maturity,
upon redemption or otherwise; however, if the Company is permitted by the terms
of the Subordinated Debt Securities, of the applicable series to defer the
payment in question, the date on which such payment is due and payable shall be
the date on which the Company is required to make payment following such
deferral, if such deferral has been elected pursuant to the terms of the
Subordinated Debt Securities; (3) failure to observe or perform any other
covenant, warranty or agreement contained in the Subordinated Debt Securities of
that series or in the Subordinated Debt Securities Indenture (other than a
covenant, agreement or warranty included in the Subordinated Debt Securities
Indenture solely for the benefit of Subordinated Debt Securities of a series
other than that series), continued for a period of 60 days after notice has been
given to the Company by the applicable Trustee or Holders of at least 25% in
aggregate principal amount of the Outstanding Subordinated Debt Securities of
that series; (4) failure to pay at final maturity, or acceleration of,
Indebtedness of the Company having an aggregate principal amount of more than 1%
of the Company's consolidated total assets (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 Subordinated Debt Securities of that series; (5) certain
events of bankruptcy, insolvency or reorganization relating to the Company; and
(6) any other Event of Default with respect to Subordinated Debt Securities of
that series specified in the Prospectus Supplement relating thereto.
The Subordinated Debt Securities Indenture provides that the Trustee shall,
within 30 days after the occurrence of any Default or Event of Default with
respect Subordinated Debt Securities of any series, give the Holders of
Subordinated 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
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<PAGE> 39
Event of Default); provided, however, that, except in the case of an Event of
Default or a Default in payment on any Subordinated 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 Subordinated Debt Securities of that
series.
If an Event of Default with respect to Subordinated 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 Subordinated 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 Subordinated
Debt Securities of that series), may declare the unpaid principal of and accrued
interest to the date of acceleration on all the Outstanding Subordinated Debt
Securities of that series to be due and payable immediately and, upon any such
declaration, the Subordinated 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
Subordinated Debt Securities of any series will become immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder of any Subordinated Debt Security of that series.
Any such declaration with respect to Subordinated Debt Securities of any
series may be annulled and past Events of Default and Defaults (except, unless
theretofore cured, an Event of Default or a Default in payment of principal of
or interest on the Subordinated Debt Securities of that series) may be waived by
the Holders of a majority of the principal amount of the Outstanding
Subordinated Debt Securities of that series, upon the conditions provided in the
Subordinated Debt Securities Indenture.
The Subordinated Debt Securities Indenture provides that the Company shall
periodically file statements with the Trustees regarding compliance by the
Company with certain of the respective covenants thereof and shall specify any
Event of Default or Defaults with respect to Subordinated Debt Securities of any
series, in performing such covenants, of which the signers may have knowledge.
MODIFICATION OF SUBORDINATED DEBT SECURITIES INDENTURE; WAIVER
The Subordinated Debt Securities 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 Subordinated Debt Securities Indenture and (ii) to make any
change that does not materially adversely affect the interests of any Holder of
Subordinated Debt Securities of any series. In addition, under the Subordinated
Debt Securities Indenture, certain rights and obligations of the Company and the
rights of Holders of the Subordinated 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 Subordinated Debt
Securities of each series affected thereby; but no extension of the maturity of
any Subordinated 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
Subordinated Debt Securities of any series, other modification in the terms of
payment of the principal of, or interest on, any Subordinated Debt Securities of
any series, or reduction of the percentage required for modification, will be
effective against any Holder of any Outstanding Subordinated Debt Security of
any series affected thereby without the Holder's consent. The Subordinated Debt
Securities Indenture does not limit the aggregate amount of Subordinated Debt
Securities of the Company which may be issued thereunder.
The Holders of a majority in aggregate principal amount of the Outstanding
Subordinated Debt Securities of any series may on behalf of the Holders of all
Subordinated Debt Securities of that series waive, insofar as that series is
concerned, compliance by the Company with certain restrictive covenants of the
Subordinated Debt Securities Indenture. The Holders of not less than a majority
in aggregate principal amount of the Outstanding Subordinated Debt Securities of
any series may on behalf of the Holders of all Subordinated Debt Securities of
that series waive any past Event of Default or Default under the Subordinated
Debt Securities Indenture with respect to that series, except an Event of
Default or a Default in
13
<PAGE> 40
the payment of the principal of, or premium, if any, or any interest on any
Subordinated Debt Security of that series or in respect of a provision which
under the Subordinated Debt Securities Indenture cannot be modified or amended
without the consent of the Holder of each Outstanding Subordinated Debt Security
of that series affected.
DEFEASANCE
The Company may terminate its substantive obligations in respect of
Subordinated Debt Securities of any series (except for its obligations to pay
the principal of (and premium, if any, on) and the interest on the Subordinated
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 Subordinated 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 Subordinated 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 Subordinated Debt Securities Indenture.
SUBORDINATION
The payment of the principal of, premium, if any, and interest on the
Subordinated Debt Securities will be subordinated in right of payment to the
prior payment in full of all Senior Indebtedness of the Company and pari passu
with MCN trade creditors. No payment on account of principal of, premium, if
any, or interest on the Subordinated Debt Securities and no acquisition of, or
payment on account of any sinking fund for, the Subordinated Debt Securities may
be made unless full payment of amounts then due for principal, premium, if any,
and interest then due on all Senior Indebtedness by reason of the maturity
thereof (by lapse of time, acceleration or otherwise) has been made or duly
provided for in cash or in a manner satisfactory to the Holders of such Senior
Indebtedness. In addition, the Subordinated Debt Securities Indenture provides
that if a default has occurred giving the holders of such Senior Indebtedness
the right to accelerate the maturity thereof, or an event has occurred which,
with the giving of notice, or lapse of time, or both, would constitute such an
event of default, then unless and until such event shall have been cured or
waived or shall have ceased to exist, no payment on account of principal,
premium, if any, or interest on the Subordinated Debt Securities and no
acquisition of, or payment on account of a sinking fund for, the Subordinated
Debt Securities may be made. The Company shall give prompt written notice to the
Trustee of any default under any Senior Indebtedness or under any agreement
pursuant to which Senior Indebtedness may have been issued. The Subordinated
Debt Securities Indenture provisions described in this paragraph, however, do
not prevent the Company from making a sinking fund payment with Subordinated
Debt Securities acquired prior to the maturity of Senior Indebtedness or, in the
case of default, prior to such default and notice thereof. Upon any distribution
of its assets in connection with any dissolution, liquidation or reorganization
of the Company, all Senior Indebtedness must be paid in full before the Holders
of the Subordinated Debt Securities are entitled to any payments whatsoever. As
a result of these subordinated provisions, in the event of the Company's
insolvency, holders of the Subordinated Debt Securities may recover ratably less
than senior creditors of the Company.
DESCRIPTION OF MCN CAPITAL STOCK
The following is a brief description of certain provisions relating to MCN
capital stock:
MCN has authority to issue up to 125,000,000 shares of capital stock, which
are divided into two classes as follows: 25,000,000 shares of MCN Preferred
Stock, no par value ("MCN Preferred Stock") and 100,000,000 shares of MCN Common
Stock, par value $.01 per share. On August 31, 1994, there were no shares of MCN
Preferred Stock outstanding and 29,754,426 shares of MCN Common Stock
outstanding.
14
<PAGE> 41
MCN COMMON STOCK
Voting Rights: The holders of MCN Common Stock are entitled to one vote for
each share on all matters voted upon by MCN's shareholders and, subject to any
voting rights of outstanding MCN Preferred Stock, the holders of such shares
possess all voting power.
Any action required or permitted to be taken by any shareholder of MCN must
be effected at a duly called annual or special meeting of such shareholders and
may not be effected by any consent in writing by such shareholders. Except as
otherwise permitted by law, special shareholder meetings of MCN may be called
only pursuant to a resolution approved by the Board.
The holders of MCN Common Stock have noncumulative voting rights, which
means that the holders of more than 50% of the shares of MCN Common Stock voting
for the election of directors can elect 100% of the directors standing for
election at any meeting if they choose to do so and, in such event, the holders
of the remaining shares voting for the election of directors would not be able
to elect any person or persons to the Board at that meeting.
Dividend Rights: The holders of MCN Common Stock are entitled to such
dividends as may be declared from time to time by the Board from funds legally
available therefor subject to: (1) preferential dividend rights, if any, of any
series of MCN Preferred Stock then outstanding; and (2) applicable requirements,
if any, with respect to the setting aside of sums for purchase, retirement or
sinking funds for MCN Preferred Stock.
Liquidation Rights: In the event of liquidation, the holders of MCN Common
Stock will be entitled to receive pro rata any assets distributable to
shareholders in respect of shares held by them, subject to the rights of any
holders of MCN Preferred Stock.
No Preemptive Rights: No holder of MCN Common Stock has any right to
subscribe to any additional securities which may be issued by MCN.
Redemption and Conversion Provisions: MCN Common Stock does not have any
redemption provisions or conversion rights.
Preferred Share Purchase Rights: MCN Common Stock currently trades with
Preferred Share Purchase Rights. The Rights, which cannot be traded separately
from MCN Common Stock, are intended to protect shareholders in the event of an
unsolicited attempt to acquire MCN and become exercisable upon the occurrence of
certain triggering events. Triggering events include acquisition by a person or
group of beneficial ownership of 20% or more of MCN's Common Stock. The Rights
could also have the effect of delaying, deferring or preventing a takeover or
change in control of MCN that has not been approved by the Board of Directors.
Transfer Agent: The transfer agent and registrar for MCN Common Stock is
First Chicago Trust Company of New York, 525 Washington Boulevard, Jersey City,
New Jersey 07310.
15
<PAGE> 42
PRICE RANGE OF MCN COMMON STOCK AND COMMON STOCK DIVIDENDS
MCN Common Stock began trading on the NYSE on January 4, 1989, following
the effective date of the restructuring of MichCon and subsequent formation of
MCN as its holding company. The high and low sales prices of the Common Stock of
MCN, reported as composite transactions, have been as follows:
<TABLE>
<CAPTION>
CASH
DIVIDENDS
PAID PER
HIGH LOW SHARE
----- ----- ---------
<S> <C> <C> <C>
1992
First Quarter....................................... $24 1/2 $21 3/4 $ .41
Second Quarter...................................... 24 7/8 21 5/8 .41
Third Quarter....................................... 28 1/8 24 5/8 .41
Fourth Quarter...................................... 31 25 1/4 .42
1993
First Quarter....................................... 33 5/8 29 .42
Second Quarter...................................... 34 7/8 30 7/8 .42
Third Quarter....................................... 36 1/2 33 .42
Fourth Quarter...................................... 36 5/8 33 7/8 .43
1994
First Quarter....................................... 40 33 3/4 .43
Second Quarter...................................... 40 1/4 35 1/4 .43
Third Quarter (through August 31, 1994)............. 40 1/2 37 7/8 .43
</TABLE>
The closing price of MCN Common Stock on September 28, 1994 was $36.125 per
share. The book value of the Company's Common Stock on June 30, 1994 was $17.68
per share.
The timing and amount of future cash dividends will depend on the financial
condition of MCN, the income from its subsidiaries, primarily MichCon, internal
cash requirements and other factors deemed relevant by MCN's Board of Directors.
MCN sponsors a dividend reinvestment and stock purchase plan under which
holders of record of MCN Common Stock and MichCon's $2.05 Series Preferred Stock
may purchase a limited amount of MCN Common Stock without paying brokerage fees
and other expenses. Under this plan, the MCN Common Stock may be purchased in
the open market at prevailing prices or purchased from MCN at the average of the
high and low sales prices on the NYSE during the five trading days immediately
preceding the purchase.
MCN PREFERRED STOCK
The Board of Directors of MCN is authorized, without further action by the
shareholders of MCN, to issue up to 25,000,000 shares of MCN Preferred Stock,
without par value, in one or more series, from time to time, with such voting
powers, full or limited, or without voting powers, and with such designations,
preferences and relative, participating, optional or other special rights and
qualifications, limitations or restrictions thereof, as may be provided in a
resolution or resolutions adopted by the Board of Directors. The authority of
the Board of Directors includes, but is not limited to, the determination or
fixing of the following with respect to shares of such class or any series
thereof: (i) the number of shares and designation; (ii) the dividend rate and
whether the dividends are to be cumulative; (iii) whether shares are to be
redeemable and, if so, the terms and provisions applying; (iv) whether the
shares are subject to a purchase, retirement or sinking fund and, if so, the
terms and provisions applying; (v) whether shares shall be convertible and, if
so, the terms and provisions applying; (vi) what voting rights are to apply, if
any, not to exceed one vote per share; (vii) the rights to which the holders of
shares are entitled upon voluntary or involuntary liquidation or dissolution;
and (viii) what restrictions are to apply, if any, on the issue or reissue of
any additional MCN Preferred Stock. If MCN Preferred Stock of a class were to be
issued, it would be preferred to the MCN Common Stock with respect to dividends
and other matters and might have the effect of making more difficult any change
in control of MCN.
16
<PAGE> 43
Management cannot currently foresee whether or when MCN might issue any
shares of MCN Preferred Stock.
OTHER PROVISIONS
The Articles of Incorporation of MCN provide for a classified Board of
Directors; the removal of directors by a two-thirds vote of shareholders (but
only for cause) or by vote of two-thirds of the other directors (with or without
cause); procedures for nomination by shareholders of candidates for election as
a director; director consideration of other constituencies when evaluating a
business combination; the prohibition of shareholder action by written consent;
supermajority (two-thirds) shareholder vote to amend or repeal the foregoing
provisions; and limitations on the personal liability of directors. These
provisions are generally intended to enhance the likelihood of continuity and
stability in the composition of the Board of Directors and ensure the careful
consideration of proposed business combinations and any appropriate alternatives
for MCN's stockholders. Such provisions may have the effect of making more
difficult or discouraging a proxy contest, or delaying, deferring or preventing
a future takeover or change in control of MCN.
DESCRIPTION OF THE MCN MICHIGAN PREFERRED SECURITIES
MCN Michigan may issue, from time to time, Preferred Securities, in one or
more series, having terms described in the Prospectus Supplement relating
thereto. The limited partnership agreement of MCN Michigan will be amended and
restated (as so amended and restated, the "Limited Partnership Agreement") to
authorize the establishment of one or more series of Preferred Securities,
having such terms, including dividends, redemption, voting, liquidation rights
and such other preferred, deferred or other special rights or such restrictions
as shall be set forth therein or otherwise established by the General Partner
pursuant thereto. Reference is made to the Prospectus Supplement relating to the
Preferred Securities of a particular series for specific terms, including (i)
the distinctive designation of such series which shall distinguish it from other
series; (ii) the number of Preferred Securities included in such series, which
number may be increased or decreased from time to time unless otherwise provided
by the General Partner in creating the series; (iii) the annual dividend rate
(or method of determining such rate) for Preferred Securities of such series and
the date or dates upon which such dividends shall be payable, provided, however,
dividends on any series of Preferred Securities shall be payable on a monthly
basis to holders of such series of Preferred Securities as of a record date in
each month during which such series of Preferred Securities are outstanding;
(iv) whether dividends on Preferred Securities of such series shall be
cumulative, and, in the case of Preferred Securities of any series having
cumulative dividend rights, the date or dates or method of determining the date
or dates from which dividends on Preferred Securities of such series shall be
cumulative; (v) the amount or amounts which shall be paid out of the assets of
MCN Michigan to the holders of Preferred Securities of such series upon
voluntary or involuntary dissolution, winding-up or termination of MCN Michigan;
(vi) the price or prices at which, the period or periods within which and the
terms and conditions upon which Preferred Securities of such series may be
redeemed or purchased, in whole or in part, at the option of MCN Michigan or the
General Partner; (vii) the obligation, if any, of MCN Michigan to purchase or
redeem Preferred Securities of such series pursuant to a sinking fund or
otherwise and the price or prices at which, the period or periods within which
and the terms and conditions upon which Preferred Securities of such series
shall be purchased or redeemed, in whole or in part, pursuant to such
obligation; (viii) the period or periods within which and the terms and
conditions, if any, including the price or prices or the rate or rates of
conversion or exchange and the terms and conditions of any adjustments thereof,
upon which the Preferred Securities of such series shall be convertible or
exchangeable at the option of the holder of the Preferred Security, or MCN
Michigan, into any other Interests (as such term is defined in the Limited
Partnership Agreement) or securities or other property or cash or into any other
series of Preferred Securities; (ix) the voting rights, if any, of Preferred
Securities of such series in addition to those required by law or set forth in
the Limited Partnership Agreement, and any requirement for the approval by the
holders of Preferred Securities, or of Preferred Securities of one or more
series, or of both, as a condition to specified action or amendments to the
Limited Partnership Agreement; (x) the additional amounts, if any, which MCN
Michigan will pay as a distribution as necessary in order that the net amounts
received by holders of Preferred Securities of such series after withholding or
deduction of
17
<PAGE> 44
certain taxes, duties, assessments or governmental charges will equal the amount
which would have been receivable in respect of such Preferred Securities in the
absence of such withholding or deduction; and (xi) any other relative rights,
powers, preferences, privileges, limitations or restrictions of Preferred
Securities of the series not inconsistent with the Limited Partnership Agreement
or with applicable law. All Preferred Securities offered hereby will be
guaranteed by MCN to the limited extent set forth below under "Description of
the Guarantee." Any applicable federal income tax considerations applicable to
any offering of Preferred Securities will be described in the Prospectus
Supplement relating thereto. The aggregate number of Preferred Securities which
MCN Michigan shall have authority to issue is unlimited.
DESCRIPTION OF THE GUARANTEE
Set forth below is a summary of information concerning the Guarantee which
will be executed and delivered by MCN for the benefit of the holders, from time
to time, of Preferred Securities. The summary does not purport to be complete
and is subject in all respects to the provisions of, and is qualified in its
entirety by reference to, the Guarantee, which is filed as an exhibit to the
Registration Statement of which this Prospectus forms a part.
GENERAL
MCN will irrevocably and unconditionally agree, to the extent set forth
herein, to pay in full, to the holders of the Preferred Securities of each
series, the Guarantee Payments (as defined below) (except to the extent paid by
MCN Michigan), as and when due, regardless of any defense, right of set-off or
counterclaim which MCN may have or assert against MCN Michigan or the General
Partner. The following payments with respect to any series of Preferred
Securities to the extent not paid by MCN Michigan (the "Guarantee Payments")
will be subject to the Guarantee (without duplication): (i) any accrued and
unpaid dividends which are required to be paid on the Preferred Securities of
such series, to the extent MCN Michigan shall have funds legally available
therefor, (ii) the redemption price, including all accrued and unpaid dividends
(the "Redemption Price"), payable out of funds legally available therefor with
respect to any Preferred Securities called for redemption by MCN Michigan and
(iii) upon a liquidation of MCN Michigan, the lesser of (a) the aggregate of the
liquidation preference and all accrued and unpaid dividends on the Preferred
Securities of such series to the date of payment and (b) the amount of assets of
MCN Michigan remaining available for distribution to holders of Preferred
Securities of such series in liquidation of MCN Michigan. MCN's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by MCN to the holders of Preferred Securities or by causing MCN Michigan
to pay such amounts to such holders.
CERTAIN COVENANTS OF MCN
In the Guarantee, MCN will covenant that, so long as any Preferred
Securities remain outstanding, MCN will not declare or pay any dividend on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
its capital stock if at such time MCN shall be in default with respect to its
payment or other obligations under the Guarantee or there shall have occurred
any event that, with the giving of notice or lapse of time or both, would
constitute an Event of Default under the Subordinated Debt Securities Indenture.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not adversely affect the rights
of holders of Preferred Securities (in which case no vote will be required), the
Guarantee may be changed only with the prior approval of the holders of not less
than 66 2/3% in liquidation preference of the outstanding Preferred Securities.
All guarantees and agreements contained in the Guarantee shall bind the
successors, assignees, receivers, trustees and representatives of MCN and shall
inure to the benefit of the holders of the Preferred Securities then
outstanding.
18
<PAGE> 45
TERMINATION OF THE GUARANTEE
The Guarantee will terminate and be of no further force and effect as to
the Preferred Securities of any series upon full payment of the Redemption Price
of all Preferred Securities of such series and will terminate completely upon
full payment of the amounts payable upon liquidation of MCN Michigan. The
Guarantee will continue to be effective or will be reinstated, as the case may
be, if at any time any holder of Preferred Securities of any series must restore
payment of any sums paid under such series of Preferred Securities or the
Guarantee.
STATUS OF THE GUARANTEE
The Guarantee will constitute an unsecured obligation of MCN and will rank
(i) subordinate and junior in right of payment to all other liabilities of MCN,
(ii) pari passu with the most senior preferred or preference stock now or
hereafter issued by MCN and with any guarantee now or hereafter entered into by
MCN in respect of any preferred or preference stock of any affiliate of MCN and
(iii) senior to MCN's common stock. The Limited Partnership Agreement provides
that each holder of Preferred Securities by acceptance thereof agrees to the
subordination provisions and other terms of the Guarantee.
The Guarantee will constitute a guarantee of payment and not of collection.
The Guarantee will be deposited with the General Partner to be held for the
benefit of the holders of each series of Preferred Securities. In the event of
the appointment of a Special Representative to, among other things, enforce the
Guarantee, the Special Representative may take possession of the Guarantee for
such purpose. If no Special Representative has been appointed to enforce the
Guarantee, the General Partner has the right to enforce the Guarantee on behalf
of the holders of each series of Preferred Securities. The holders of not less
than 10% in aggregate liquidation preference of the Preferred Securities have
the right to direct the time, method and place of conducting any proceeding for
any remedy available in respect of the Guarantee, including the giving of
directions to the General Partner or the Special Representative, as the case may
be. If the General Partner or the Special Representative fails to enforce the
Guarantee as provided above, any holder of Preferred Securities may institute a
legal proceeding directly against the Guarantor to enforce its rights under the
Guarantee, without first instituting a legal proceeding against MCN Michigan or
any other person or entity. The Guarantee will not be discharged except by
payment of the Guarantee Payments in full to the extent not paid by MCN Michigan
and by complete performance of all obligations under the Guarantee.
GOVERNING LAW
The Guarantee will be governed by and construed in accordance with the laws
of the State of New York.
PLAN OF DISTRIBUTION
MCN and/or MCN Michigan may sell the Offered Securities (i) to or through
underwriters or dealers; (ii) directly to purchasers; or (iii) through agents.
The Prospectus Supplement with respect to the Offered Securities will set forth
the terms of the offering of the Offered Securities, including the name or names
of any underwriters, dealers or agents; the purchase price of the Offered
Securities and the proceeds to MCN and/or MCN Michigan from such sale; any
underwriting discounts and commissions and other items constituting
underwriters' 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 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.
If underwriters are used in the sale, the Offered 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 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 Securities will be
named in the
19
<PAGE> 46
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 Securities will be subject to certain conditions precedent,
and the underwriters will be obligated to purchase all the Offered Securities if
any are purchased.
If dealers are utilized in the sale of Offered Securities, MCN and/or MCN
Michigan will sell such Offered Securities to the dealers as principals. The
dealers may then resell such Offered 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 Offered Securities may be sold directly by MCN and/or MCN Michigan or
through agents designated by MCN and/or MCN Michigan from time to time. Any
agent involved in the offer or sale of the Offered Securities in respect to
which this Prospectus is delivered will be named, and any commissions payable by
MCN and/or MCN Michigan 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 Offered Securities may be sold directly by MCN and/or MCN Michigan 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.
If so indicated in the Prospectus Supplement, MCN and/or MCN Michigan will
authorize agents, underwriters or dealers to solicit offers from certain types
of institutions to purchase Offered Securities from MCN and/or MCN Michigan 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
and/or MCN Michigan to indemnification by MCN and/or MCN Michigan 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 and/or
MCN Michigan in the ordinary course of business.
The Offered 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 Offered
Securities.
VALIDITY OF SECURITIES
The validity of the Offered Securities of MCN will be passed upon for MCN
and/or MCN Michigan by Daniel L. Schiffer, Esq., Vice President, General Counsel
and Secretary of MCN Corporation, and for the underwriters by LeBoeuf, Lamb,
Greene and MacRae, a partnership including professional corporations, New York,
New York. Mr. Schiffer is a full-time employee and officer of MCN and owns 9,984
shares of MCN Common Stock as of August 31, 1994.
EXPERTS
The consolidated financial statements and related financial statement
schedules incorporated in this prospectus by reference from the Company's Annual
Report on Form 10-K for the year ended December 31, 1993 have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their reports, which
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 Benefit Plans 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.
20
<PAGE> 47
- - - ------------------------------------------------------
- - - ------------------------------------------------------
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 IN CONNECTION WITH THE OFFER MADE
BY THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR UNDERWRITER.
THIS PROSPECTUS SPEAKS AS OF ITS DATE AND NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCE CREATE AN
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE
THE DATE HEREOF. THIS PROSPECTUS DOES 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 SUPPLEMENT
Selected Financial and Operating
Information.............................. S-3
MCN Corporation............................ S-4
MCN Michigan Limited Partnership .......... S-4
Investment Considerations.................. S-5
Capitalization of MCN at June 30, 1994..... S-6
Use of Proceeds............................ S-7
Description of the Series A Preferred
Securities............................... S-7
Description of the Series A Subordinated
Debt Securities.......................... S-17
Effect of Obligations Under the Series A
Subordinated Debt Securities and the
Guarantee................................ S-21
United States Federal Income Taxation...... S-21
Underwriting............................... S-24
Legal Matters.............................. S-25
PROSPECTUS
Available Information...................... 2
Incorporation of Certain Documents by
Reference................................ 2
MCN Corporation............................ 3
MCN Michigan Limited Partnership .......... 3
Use of Proceeds............................ 3
Ratio of Earnings to Fixed Charges and
Ratio of Earnings to Fixed Charges and
Preferred Stock Dividends................ 4
Description of MCN Debt Securities......... 4
General.................................. 4
Particular Terms of the Senior Debt
Securities............................. 7
Particular Terms of the Subordinated Debt
Securities............................. 10
Description of MCN Capital Stock........... 14
MCN Common Stock......................... 15
Price Range of MCN Common Stock and
Common Stock Dividends................. 16
MCN Preferred Stock...................... 16
Other Provisions......................... 17
Description of the MCN Michigan Preferred
Securities............................... 17
Description of the Guarantee............... 18
Plan of Distribution....................... 19
Validity of Securities..................... 20
Experts.................................... 20
</TABLE>
- - - ------------------------------------------------------
- - - ------------------------------------------------------
- - - ------------------------------------------------------
- - - ------------------------------------------------------
PREFERRED SECURITIES
MCN MICHIGAN
LIMITED PARTNERSHIP
GUARANTEED TO THE EXTENT
SET FORTH HEREIN BY
[MCN LOGO]
% CUMULATIVE
PREFERRED SECURITIES,
SERIES A
--------------------------------------------
PROSPECTUS SUPPLEMENT
--------------------------------------------
MERRILL LYNCH & CO.
- - - ------------------------------------------------------
- - - ------------------------------------------------------
<PAGE> 48
PART II
INFORMATION NOT REQUIRED IN THE 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............................................... $103,448
NYSE Listing Fee................................................... 50,000*
Printing and Engraving............................................. 100,000*
Rating Agency Fee.................................................. 125,000*
Accounting Fees.................................................... 60,000*
Legal Fees......................................................... 50,000*
Blue Sky Fees...................................................... 12,000*
Transfer Agent's Fees.............................................. 4,000*
Miscellaneous...................................................... 20,000*
--------
Total............................................................ $524,448*
========
</TABLE>
* Estimated, subject to future issuance of certain classes of Offered
Securities.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 561 through 571 of the Michigan Business Corporation Act (the
"MBCA") contain detailed provisions concerning the indemnification of directors
and officers against judgments, penalties, fines and amounts paid in settlement
of litigation.
Article VI, Section 6.1 of the By-Laws of MCN provides that MCN shall
indemnify its officers, directors, employees, agents and other persons to the
fullest extent of the MBCA.
Article NINTH of MCN's Articles of Incorporation provides that a director
of MCN shall not be personally liable to MCN or its shareholders for monetary
damages for breach of fiduciary duty as a director, except for liability for (i)
any breach of the director's duty of loyalty to MCN or its shareholders, (ii)
acts or omissions not in good faith or that involve intentional misconduct or a
knowing violation of law, (iii) a violation of Section 551(1) of the MBCA, or
(iv) any transaction from which the director derived an improper personal
benefit. If the MBCA is amended after the date of MCN's Articles of
Incorporation to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of MCN shall
be eliminated or limited to the fullest extent permitted by the MBCA, as so
amended.
MCN has entered into indemnification contracts with each officer and
director of MCN, and certain officers of its subsidiaries, that contain
provisions essentially similar to the provisions of the MBCA and MCN's Articles
of Incorporation referred to above. In addition, MCN maintains directors' and
officers' liability insurance which covers certain liabilities arising from the
performance of their responsibilities as directors and officers.
Section 9.03 of the Limited Partnership Agreement provides that, to the
fullest extent permitted by applicable law, MCN Michigan shall indemnify the
General Partner, the Special Representative, any affiliate of the General
Partner or Special Representative, any officer, director, shareholder, partner,
member, employee, representative or agent of the General Partner, the Special
Representative, or any affiliate of the General Partner or Special
Representative, and any employee or agent of MCN Michigan or its affiliates for
any loss, damage or claim incurred by such person by reason of any act or
omission performed or omitted by such person in good faith on behalf of MCN
Michigan and in a manner reasonably believed to be within the scope of authority
conferred on such person by the Limited Partnership Agreement, except that no
such person shall be entitled to be indemnified in respect of any loss, damage
or claim incurred by such person by reason of willful misconduct, gross
negligence or fraud with respect to such acts or omissions. Section 9.03 also
II-1
<PAGE> 49
requires that expenses (including legal fees) be advanced to any such person to
the fullest extent permitted by applicable law upon receipt by MCN Michigan of
an undertaking from such person to repay such amount if it shall be determined
that the person is not entitled to be indemnified. In addition, Section 8.02(a)
of the Limited Partnership Agreement provides that the provisions of the Limited
Partnership Agreement, to the extent that they restrict the duties and
liabilities of any of the foregoing persons otherwise existing at law or in
equity, are agreed by the parties to the Limited Partnership Agreement to
replace such duties and liabilities.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- - - ------- -----------------------------------------------------------------------------------
<S> <C>
1-1 Form of Underwriting Agreement with respect to the MCN Senior Debt Securities (to
be filed under subsequent Form 8-K).
1-2 Form of Underwriting Agreement with respect to the MCN Subordinated Debt Securities
(to be filed under subsequent Form 8-K).
1-3 Form of Underwriting Agreement with respect to MCN Common Stock (to be filed under
subsequent Form 8-K).
1-4 Form of Underwriting Agreement with respect to MCN Michigan Limited Partnership
Preferred Securities (to be filed under subsequent Form 8-K).
4-1 Articles of Incorporation of MCN Corporation (Exhibit 3-1 to MCN's March 31, 1994
Form 10-Q).
4-2 By-Laws of MCN Corporation, as amended (Exhibit 3-2 to MCN's March 31, 1993 Form
10-Q).
4-3 Description of MCN's Preferred Share Purchase Rights (Form 8-A dated December 28,
1989).
4-4 Senior Debt Securities Indenture between MCN Corp. and NBD Bank, N.A., as Trustee.*
4-5 Subordinated Debt Securities Indenture between MCN Corp. and NBD Bank, N.A., as
Trustee.*
4-6 Certificate of Limited Partnership of MCN Michigan Limited Partnership.*
4-7 Form of Amended and Restated Limited Partnership Agreement of MCN Michigan Limited
Partnership.*
4-8 Form of Guarantee Agreement with respect to Preferred Securities.*
5-1 Opinion of Daniel L. Schiffer, Vice President, General Counsel and Secretary for
MCN Corporation regarding the validity of the Offered Securities.*
8-1 Tax Opinion of Sidley & Austin.*
12-1 Computation of Ratio of Earnings to Fixed Charges and Ratio of Earnings to Fixed
Charges and Preferred Stock Dividends.*
23-1 Independent Auditors' Consent -- Deloitte & Touche LLP.*
23-2 Consent of Daniel L. Schiffer, Vice President, General Counsel and Secretary for
MCN Corporation (included in Exhibit 5-1).
23-3 Consent of Sidley & Austin (included in Exhibit 8-1).
24-1 Powers of Attorney.*
24-2 Board Resolution authorizing issuance of the Offered Securities.*
25-1 Statement of Eligibility and Qualification of NBD Bank, N.A. (T-1 Senior Debt
Securities).*
25-2 Statement of Eligibility and Qualification of NBD Bank, N.A. (T-1 Subordinated Debt
Securities).*
</TABLE>
- - - -------------------------
* Indicates document filed herewith.
References are to MCN (File No. 1-10070) for documents incorporated by
reference.
II-2
<PAGE> 50
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required in Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by MCN pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment that contains a
form of prospectus 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;
(3) 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
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of MCN's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that
is incorporated by reference in the 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 Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant 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 Registrant 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 Act and will
be governed by the final adjudication of such issue.
II-3
<PAGE> 51
SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, MCN Michigan
Limited Partnership 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 29th day of
September, 1994.
MCN MICHIGAN LIMITED PARTNERSHIP
------------------------------
(Co-Registrant)
By: MCN CORPORATION,
GENERAL PARTNER
By: /s/ PATRICK ZURLINDEN
---------------------------------
PATRICK ZURLINDEN
Vice President and Controller
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, as general partner of MCN Michigan Limited
Partnership, and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- - - ---------------------------------------- ------------------------------ -------------------
<S> <C> <C>
* Chairman, President, Chief September 29, 1994
- - - ---------------------------------------- Executive Officer and
Alfred R. Glancy III Director
* Vice Chairman, Chief Financial September 29, 1994
- - - ---------------------------------------- Officer and Director
William K. McCrackin
By: /s/ PATRICK ZURLINDEN Vice President and Controller September 29, 1994
- - - ----------------------------------------
Patrick Zurlinden
* Director September 29, 1994
- - - ----------------------------------------
Stephen E. Ewing
* Director September 29, 1994
- - - ----------------------------------------
Roger Fridholm
* Director September 29, 1994
- - - ----------------------------------------
Frank M. Hennessey
* Director September 29, 1994
- - - ----------------------------------------
Thomas H. Jeffs II
* Director September 29, 1994
- - - ----------------------------------------
Arthur L. Johnson
* Director September 29, 1994
- - - ----------------------------------------
Dale A. Johnson
* Director September 29, 1994
- - - ----------------------------------------
Helen O. Petrauskas
* Director September 29, 1994
- - - ----------------------------------------
Howard F. Sims
*By: /s/ PATRICK ZURLINDEN
- - - ----------------------------------------
Patrick Zurlinden
Attorney-in-Fact
</TABLE>
II-4
<PAGE> 52
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
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 September 29, 1994.
MCN CORPORATION
--------------
(Registrant)
By: /s/ PATRICK ZURLINDEN
---------------------------------
PATRICK ZURLINDEN
Vice President and Controller
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 September 29, 1994
- - - ---------------------------------------- Executive Officer and
Alfred R. Glancy III Director
* Vice Chairman, Chief Financial September 29, 1994
- - - ---------------------------------------- Officer and Director
William K. McCrackin
By: /s/ PATRICK ZURLINDEN Vice President and Controller September 29, 1994
- - - ----------------------------------------
Patrick Zurlinden
* Director September 29, 1994
- - - ----------------------------------------
Stephen E. Ewing
* Director September 29, 1994
- - - ----------------------------------------
Roger Fridholm
* Director September 29, 1994
- - - ----------------------------------------
Frank M. Hennessey
* Director September 29, 1994
- - - ----------------------------------------
Thomas H. Jeffs II
* Director September 29, 1994
- - - ----------------------------------------
Arthur L. Johnson
* Director September 29, 1994
- - - ----------------------------------------
Dale A. Johnson
* Director September 29, 1994
- - - ----------------------------------------
Helen O. Petrauskas
* Director September 29, 1994
- - - ----------------------------------------
Howard F. Sims
*By: /s/ PATRICK ZURLINDEN
- - - ----------------------------------------
Patrick Zurlinden
Attorney-in-Fact
</TABLE>
II-5
<PAGE> 53
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- - - ------- -----------------------------------------------------------------------------------
<S> <C>
1-1 Form of Underwriting Agreement with respect to the MCN Senior Debt Securities (to
be filed under subsequent Form 8-K).
1-2 Form of Underwriting Agreement with respect to the MCN Subordinated Debt Securities
(to be filed under subsequent Form 8-K).
1-3 Form of Underwriting Agreement with respect to MCN Common Stock (to be filed under
subsequent Form 8-K).
1-4 Form of Underwriting Agreement with respect to MCN Michigan Limited Partnership
Preferred Securities (to be filed under subsequent Form 8-K).
4-1 Articles of Incorporation of MCN Corporation (Exhibit 3-1 to MCN's March 31, 1994
Form 10-Q).
4-2 By-Laws of MCN Corporation, as amended (Exhibit 3-2 to MCN's March 31, 1993 Form
10-Q).
4-3 Description of MCN's Preferred Share Purchase Rights (Form 8-A dated December 28,
1989).
4-4 Senior Debt Securities Indenture between MCN Corp. and NBD Bank, N.A., as Trustee.*
4-5 Subordinated Debt Securities Indenture between MCN Corp. and NBD Bank, N.A., as
Trustee.*
4-6 Certificate of Limited Partnership of MCN Michigan Limited Partnership.*
4-7 Form of Amended and Restated Limited Partnership Agreement of MCN Michigan Limited
Partnership.*
4-8 Form of Guarantee Agreement with respect to Preferred Securities.*
5-1 Opinion of Daniel L. Schiffer, Vice President, General Counsel and Secretary for
MCN Corporation regarding the validity of the Offered Securities.*
8-1 Tax Opinion of Sidley & Austin.*
12-1 Computation of Ratio of Earnings to Fixed Charges and Ratio of Earnings to Fixed
Charges and Preferred Stock Dividends.*
23-1 Independent Auditors' Consent -- Deloitte & Touche LLP.*
23-2 Consent of Daniel L. Schiffer, Vice President, General Counsel and Secretary for
MCN Corporation (included in Exhibit 5-1).
23-3 Consent of Sidley & Austin (included in Exhibit 8-1).
24-1 Powers of Attorney.*
24-2 Board Resolution authorizing issuance of the Offered Securities.*
25-1 Statement of Eligibility and Qualification of NBD Bank, N.A. (T-1 Senior Debt
Securities).*
25-2 Statement of Eligibility and Qualification of NBD Bank, N.A. (T-1 Subordinated Debt
Securities).*
- - - ------
</TABLE>
* Indicates document filed herewith.
References are to MCN (File No. 1-10070) for documents incorporated by
reference.
<PAGE> 1
EXHIBIT 4.4
__________________________________________________________________________
MCN CORPORATION,
AS ISSUER
TO
NBD BANK, N.A.,
AS TRUSTEE
_______________
INDENTURE
SENIOR DEBT SECURITIES
DATED AS OF SEPTEMBER 1, 1994
_______________
__________________________________________________________________________
<PAGE> 2
MCN CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF SEPTEMBER 1, 1994
TRUST INDENTURE INDENTURE SECTION
ACT SECTION
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
____________________
NOTE: THIS RECONCILIATION AND TIE SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE
A PART OF THIS INDENTURE.
<PAGE> 3
TABLE OF CONTENTS
PAGE
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definition . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . 2
Bankruptcy Law . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . 2
Capitalized Lease Obligation . . . . . . . . . . . . . 2
Capital Stock . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . 3
Common Depositary . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request or Company Order . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . 3
Covenant Defeasance . . . . . . . . . . . . . . . . . 3
Custodian . . . . . . . . . . . . . . . . . . . . . . 3
Default . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . 3
Defeasance . . . . . . . . . . . . . . . . . . . . . . 3
Dollars and $ . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . 4
Exchange Act . . . . . . . . . . . . . . . . . . . . . 4
Holder or Securityholder . . . . . . . . . . . . . . . 4
Indebtedness . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . 4
interest . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . 5
Maturity . . . . . . . . . . . . . . . . . . . . . . . 5
Officer . . . . . . . . . . . . . . . . . . . . . . . 5
Officer's Certificate . . . . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . . . . 5
Original Issue Discount Security . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . . . 6
Place of Payment . . . . . . . . . . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . . . . . 7
Redemption Price . . . . . . . . . . . . . . . . . . . 7
Registered Security . . . . . . . . . . . . . . . . . 7
-i-
<PAGE> 4
PAGE
Regular Record Date . . . . . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . . . . . 7
Securities . . . . . . . . . . . . . . . . . . . . . . 7
Security Register and Security Registrar . . . . . . . 7
Significant Subsidiary . . . . . . . . . . . . . . . . 7
Special Record Date . . . . . . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . . . . . . 7
Subsidiary . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act . . . . . . . . . . . . . . . . . 8
Trustee . . . . . . . . . . . . . . . . . . . . . . . 8
U.S. Depositary . . . . . . . . . . . . . . . . . . . 8
U.S. Government Obligations . . . . . . . . . . . . . 8
Value . . . . . . . . . . . . . . . . . . . . . . . . 9
Vice President . . . . . . . . . . . . . . . . . . . . 9
SECTION 102. Compliance Certificates and Opinions. . . . . 9
SECTION 103. Form of Documents Delivered to Trustee. . . . 10
SECTION 104. Acts of Holders. . . . . . . . . . . . . . . 10
SECTION 105. Notices, Etc., to Trustee and Company. . . . 11
SECTION 106. Notice to Holders; Waiver. . . . . . . . . . 12
SECTION 107. Conflict with Trust Indenture Act. . . . . . 12
SECTION 108. Effect of Headings and Table of
Contents. . . . . . . . . . . . . . 13
SECTION 109. Successors and Assigns. . . . . . . . . . . . 13
SECTION 110. Separability Clause. . . . . . . . . . . . . 13
SECTION 111. Benefits of Indenture. . . . . . . . . . . . 13
SECTION 112. Governing Law. . . . . . . . . . . . . . . . 13
SECTION 113. Legal Holidays. . . . . . . . . . . . . . . . 13
SECTION 114. No Recourse Against Others. . . . . . . . . . 14
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally . . . . . . . . . . . . . . . 14
SECTION 202. Form of Face of Security . . . . . . . . . . 14
SECTION 203. Form of Reverse of Security . . . . . . . . . 16
SECTION 204. Form of Trustee's Certificate of
Authentication . . . . . . . . . . 22
SECTION 205. Securities in Global Form . . . . . . . . . . 22
SECTION 206. CUSIP Number . . . . . . . . . . . . . . . . 23
SECTION 207. Form of Legend for the Securities in
Global Form . . . . . . . . . . . . 23
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series . . . . 23
SECTION 302. Denominations . . . . . . . . . . . . . . . . 26
-ii-
<PAGE> 5
PAGE
SECTION 303. Execution, Authentication, Delivery
and Dating . . . . . . . . . . . . 26
SECTION 304. Temporary Securities . . . . . . . . . . . . 28
SECTION 305. Registration, Registration of Transfer
and Exchange . . . . . . . . . . . 29
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . 31
SECTION 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . 32
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . 33
SECTION 309. Cancellation . . . . . . . . . . . . . . . . 34
SECTION 310. Computation of Interest . . . . . . . . . . . 34
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture . . . 34
SECTION 402. Application of Trust Money . . . . . . . . . 35
ARTICLE FIVE
Remedies
SECTION 501. Events of Default . . . . . . . . . . . . . . 36
SECTION 502. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . 38
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . 39
SECTION 504. Trustee May File Proofs of Claim . . . . . . 40
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities . . . . . 40
SECTION 506. Application of Money Collected . . . . . . . 41
SECTION 507. Limitation on Suits . . . . . . . . . . . . . 41
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium and
Interest . . . . . . . . . . . . . 42
SECTION 509. Restoration of Rights and Remedies . . . . . 42
SECTION 510. Rights and Remedies Cumulative . . . . . . . 42
SECTION 511. Delay or Omission Not Waiver . . . . . . . . 43
SECTION 512. Control by Holders . . . . . . . . . . . . . 43
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . 43
SECTION 514. Undertaking for Costs . . . . . . . . . . . . 44
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities of
the Trustee . . . . . . . . . . . . 44
-iii-
<PAGE> 6
PAGE
SECTION 602. Notice of Defaults . . . . . . . . . . . . . 45
SECTION 603. Certain Rights of Trustee . . . . . . . . . . 45
SECTION 604. Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . 46
SECTION 605. May Hold Securities . . . . . . . . . . . . . 47
SECTION 606. Money Held in Trust . . . . . . . . . . . . . 47
SECTION 607. Compensation and Reimbursement . . . . . . . 47
SECTION 608. Disqualification; Conflicting Interests . . . 48
SECTION 609. Corporate Trustee Required; Eligibility . . . 48
SECTION 610. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . 48
SECTION 611. Acceptance of Appointment by Successor . . . 50
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business . . . . . . 51
SECTION 613. Preferential Collection of Claims
Against Company . . . . . . . . . . 51
SECTION 614. Appointment of Authenticating Agent . . . . . 52
ARTICLE SEVEN
Holders' Lists And Reports By Trustee And Company
SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders . . . . . . . 54
SECTION 702. Preservation of Information;
Communications to Holders . . . . . 54
SECTION 703. Reports by Trustee . . . . . . . . . . . . . 55
SECTION 704. Reports by Company . . . . . . . . . . . . . 56
ARTICLE EIGHT
Consolidation, Merger, Lease, Sale or Transfer
SECTION 801. When Company May Merge, Etc. . . . . . . . . 57
SECTION 802. Opinion of Counsel . . . . . . . . . . . . . 57
SECTION 803. Successor Corporation Substituted . . . . . . 57
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent
of Holders . . . . . . . . . . . . 58
SECTION 902. Supplemental Indentures with Consent
of Holders . . . . . . . . . . . . 59
SECTION 903. Execution of Supplemental Indentures . . . . 61
SECTION 904. Effect of Supplemental Indentures . . . . . . 61
SECTION 905. Conformity with Trust Indenture Act . . . . . 61
SECTION 906. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . 61
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<PAGE> 7
ARTICLE TEN
Covenants PAGE
SECTION 1001. Payments of Securities . . . . . . . . . . . . 62
SECTION 1002. Maintenance of Office or Agency . . . . . . . . 62
SECTION 1003. Corporate Existence . . . . . . . . . . . . . . 62
SECTION 1004. Payment of Taxes and Other Claims . . . . . . . 63
SECTION 1005. Maintenance of Properties . . . . . . . . . . . 63
SECTION 1006. Compliance Certificates . . . . . . . . . . . . 64
SECTION 1007. Commission Reports . . . . . . . . . . . . . . 64
SECTION 1008. Waiver of Stay, Extension or Usury Laws . . . . 65
SECTION 1009. Money for Securities Payments to Be
Held in Trust . . . . . . . . . . . 66
SECTION 1010. Limitation on Liens . . . . . . . . . . . . . . 67
SECTION 1011. Limitation on Sale and Leaseback
Transactions . . . . . . . . . . . 69
SECTION 1012. Waiver of Certain Covenants . . . . . . . . . . 69
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Applicability of Article . . . . . . . . . . 70
SECTION 1102. Election to Redeem; Notice to Trustee . . . . 70
SECTION 1103. Selection by Trustee of Securities
to Be Redeemed . . . . . . . . . . 70
SECTION 1104. Notice of Redemption . . . . . . . . . . . . 71
SECTION 1105. Deposit of Redemption Price . . . . . . . . . 72
SECTION 1106. Securities Payable on Redemption Date . . . . 72
SECTION 1107. Securities Redeemed in Part . . . . . . . . . 72
ARTICLE TWELVE
Sinking Funds
SECTION 1201. Applicability of Article . . . . . . . . . . 73
SECTION 1202. Satisfaction of Sinking Fund Payments
with Securities . . . . . . . . . . 73
SECTION 1203. Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . 74
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
SECTION 1301. Applicability of Article; Company's
Option to Effect Defeasance or
Covenant Defeasance . . . . . . . . 74
SECTION 1302. Defeasance and Discharge . . . . . . . . . . 74
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<PAGE> 8
PAGE
SECTION 1303. Covenant Defeasance . . . . . . . . . . . . . 75
SECTION 1304. Conditions to Defeasance or Covenant
Defeasance . . . . . . . . . . . . 75
SECTION 1305. Deposited Money and Government
Obligations To Be Held In Trust . . 78
ARTICLE FOURTEEN
Miscellaneous
SECTION 1401. Miscellaneous . . . . . . . . . . . . . . . . . 78
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<PAGE> 9
INDENTURE, dated as of September 1, 1994, between MCN
CORPORATION, a corporation duly organized and existing under the laws of the
State of Michigan (herein called the "COMPANY"), having its principal office
at 500 Griswold, Detroit, Michigan 48226, and NBD Bank, N.A., a national banking
association, 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.
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;
(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; and
(5) the words "HEREIN," "HEREOF" and "HEREUNDER" and other
words of similar import refer to this Indenture as a
<PAGE> 10
whole and not to any particular Article, Section or other subdivision.
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; 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 Officer authorized to act with respect to any particular matter to
exercise the power of the Board of Directors of the Company.
"BOARD RESOLUTION" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"BUSINESS DAY," when used with respect to any Place of
Payment, 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.
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<PAGE> 11
"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 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, Michigan 48226.
"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.
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<PAGE> 12
"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
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.
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<PAGE> 13
"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.
"OFFICER" means the Chairman of the Board, the Vice Chairman
of the Board, the President, any Vice President, the Treasurer, any Assistant
Treasurer, the Controller, the Secretary or any Assistant Secretary of the
Company.
"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, and who shall be reasonably
acceptable to the Trustee.
"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;
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<PAGE> 14
(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 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.
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<PAGE> 15
"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.
"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
the Company possessing assets (including the assets of its own Subsidiaries but
without regard to the Company or any other Subsidiary) having a book value, in
the aggregate, equal to not less than 10% of the book value of the aggregate
assets of the Company 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
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<PAGE> 16
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.
"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> 17
"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, 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 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 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 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
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<PAGE> 18
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 stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
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 delivered
to 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 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.
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<PAGE> 19
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by the
Security Register.
(d) 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.
(e) 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 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.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
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a. the Trustee by any Holder or by the Company 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, Attention: Karen D. O'Donoghue, 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.
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
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<PAGE> 21
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.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 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.
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<PAGE> 22
SECTION 114. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the Company 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.
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.
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
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<PAGE> 23
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 .
MCN CORPORATION
.........................
No. ______ [$] ______
MCN 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].
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<PAGE> 24
[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 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 CORPORATION
By ____________________________
Attest:
_______________________ [SEAL]
SECTION 203. Form of Reverse of Security.
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<PAGE> 25
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 ______________, 1994 (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 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
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<PAGE> 26
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 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.]
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<PAGE> 27
[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.]
[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 the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company 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 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
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<PAGE> 28
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 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 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 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
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<PAGE> 29
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 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.]
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<PAGE> 30
Social Security Number or Taxpayer Identification
Number:__________________________________________
SECTION 204. Form of Trustee'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 ________________________________
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.
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<PAGE> 31
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.
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
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
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<PAGE> 32
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:
(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, 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) 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
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<PAGE> 33
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 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 by payable;
(14) additional covenants 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 or one
of its Vice Presidents, 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. If the form or terms of the Securities of
the series have been established in or pursuant to one or more Board
Resolutions 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 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 as permitted
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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,
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).
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.
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Depositary, as the case may be, therefor or its nominee, and (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
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temporary Securities of any series shall in all respects be 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
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Company shall deliver to the Trustee definitive Securities of 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.
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Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by 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
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in relation thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith.
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
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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 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
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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 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.
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
(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
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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 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
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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 fails to observe or perform any of its
other covenants, warranties or agreements in the Securities of that series or
this Indenture (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 or a Subsidiary (whether such Indebtedness now exists or shall
hereafter be created or incurred) shall occur and shall consist of default in
the payment of such Indebtedness at the maturity thereof (after giving effect
to any 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
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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 Company's consolidated
total assets (determined as of its most recent fiscal year-end); 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 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 of the
Company 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 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, (B) appoint a Custodian of the Company 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 and such petition, application or proceeding is
not dismissed within 60 days; or
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(iii) a warrant of attachment is issued against any material portion of the
property of the Company 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 (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
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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 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 or any other obligor upon such
Securities, wherever situated.
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 in aid of the
exercise of any power granted herein, or to secure any other proper remedy.
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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 or any other obligor upon
the Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of 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.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture 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
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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.
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:
(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;
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(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of 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 to affect, disturb or prejudice
the rights of any other of such Holders, or to obtain or to seek to obtain
priority or preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the equal
and ratable benefit of all 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 and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
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
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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.
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.
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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).
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.
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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;
(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
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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
(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 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.
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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 (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
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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.
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.
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(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 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
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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 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
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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.
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
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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
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
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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:
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
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
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. 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
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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.
(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
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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, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Exchange Act in respect of a security listed and
registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(2) 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;
(3) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, (a) concurrently with
furnishing the same to its stockholders, the Company's annual report
to stockholders, containing certified financial statements, and any
other financial reports which the Company 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
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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 May Merge, Etc.
The Company shall not consolidate with, or merge with or into
any other corporation (whether or not the Company 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 shall be the continuing Person or
the Person (if other than the Company) formed by such consolidation or
with which or into which the Company is merged or the Person (or group
of affiliated Persons) to which all or substantially all the
properties and assets of the Company 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, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the Company under
the Securities and this Indenture; 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.
SECTION 802. Opinion of Counsel.
The Company 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 with or merger by the
Company into any other corporation or any lease, sale, assignment, or transfer
of all or substantially all of the property and assets of the Company in
accordance with
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Section 801, the successor corporation formed by such consolidation or into
which the Company 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 under this Indenture with the same effect as if such successor
corporation or corporations had been named as the Company 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 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
Holder.
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 and the assumption by any such successor of the covenants
of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included
solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Company; 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
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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
(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
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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 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.
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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
(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.
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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.
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, Michigan 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
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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.
SECTION 1004. Payment of Taxes and Other Claims.
The Company will pay or discharge, or cause to be paid or
discharged, before the same shall become delinquent, (1) all material taxes,
assessments and governmental charges levied or imposed upon the Company or any
Subsidiary or upon the income, profits or property of the Company or any
Subsidiary, and (2) all lawful claims for labor, materials and supplies which,
if unpaid, might by law become a material lien upon the property of the Company
or any Subsidiary; provided, however, that the Company shall not be required to
pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings and for which adequate provision has been
made.
SECTION 1005. Maintenance of Properties.
The Company will cause all material properties used or useful
in the conduct of its business or the business of any of its 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 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 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
the board of directors of the Subsidiary concerned, as the case may be,
desirable in the conduct of the business of the Company or any Subsidiary of
the Company and not materially disadvantageous to the Holders.
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SECTION 1006. Compliance Certificates.
(a) The Company shall deliver to the Trustee within 90
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 after it would have been required to
file such information with the Commission, 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
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Analysis of Financial Condition and Results of Operations," both
comparable to that which the Company would have been required to
include in such annual reports, information, documents or other
reports if the Company had been subject to the requirements of such
Sections 13 or 15(d) of the Exchange Act. The Company also shall
comply with the other provisions of Section 314(a) of the Trust
Indenture Act.
(b) So long as the Securities remain outstanding, the
Company shall cause its annual report to stockholders and any other
financial reports furnished by it 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 its
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 the Company's 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.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim, 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) the Company 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 will, nor will it permit any Significant
Subsidiary to, create, incur, or suffer to exist any Lien in, of or on the
property of the Company or any of its 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 or its Subsidiaries.
(v) Liens on the capital stock, partnership interest, or
other evidence of ownership of any Subsidiary or such
Subsidiary's assets that secure project financing 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 Agreement, 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 business practices) 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 (including the sale of such accounts
receivable), where such accounts receivable arose in
the ordinary course of the Company's business.
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SECTION 1011. Limitation on Sale and Leaseback Transactions.
The Company will not itself, and will not permit any
Subsidiary to, enter into any arrangement with any bank, insurance company or
other lender or investor (not including the Company or any Subsidiary), or to
which such lender or investor (other than the Company or a Subsidiary) is a
party, providing for the leasing by the Company 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
or such Subsidiary for more than six months and which has been or is to be sold
or transferred by the Company or such Subsidiary 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 or such Subsidiary 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, 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) 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 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 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 the
duties of the Trustee in respect of any such covenant or condition shall remain
in full force and effect.
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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 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
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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
become 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;
(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
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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 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
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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.
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.
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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 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
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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 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:
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(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
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.
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(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 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.
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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 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.
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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 CORPORATION
By /s/ Sebastian Coppola
-----------------------------------
Name: Sebastian Coppola
Title: Vice President and Treasurer
Attest:
/s/ Daniel L. Schiffer
- - - -----------------------------------
Name: Daniel L. Schiffer
Title: Vice President, General
Counsel and Secretary
NBD BANK, N.A., as Trustee
By /s/ Karen D. O'Donoghue
-------------------------------------
Name: Karen D. O'Donoghue
Title: Vice President, Trust Division
Attest:
/s/ Steven D. Vander Clay
- - - -----------------------------------
Name: Steven D. Vander Clay
Title: Vice President
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EXHIBIT 4.5
_______________________________________________________________________________
MCN CORPORATION,
AS ISSUER
TO
NBD BANK, N.A.,
AS TRUSTEE
____________________
INDENTURE
SUBORDINATED DEBT SECURITIES
DATED AS OF SEPTEMBER 1, 1994
____________________
_______________________________________________________________________________
<PAGE> 2
MCN CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF SEPTEMBER 1, 1994
<TABLE>
<CAPTION>
TRUST INDENTURE INDENTURE SECTION
ACT SECTION
<S> <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 CONTENT
PAGE
----
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Capitalized Lease Obligation . . . . . . . . . . . . . . . . . . . . 2
Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request or Company Order . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . 3
Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . 3
Custodian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Dollars and $ . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
GAAP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Holder or Securityholder . . . . . . . . . . . . . . . . . . . . . . 4
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . 5
Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . 5
Original Issue Discount Security . . . . . . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
-i-
<PAGE> 4
PAGE
----
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Registered Security . . . . . . . . . . . . . . . . . . . . . . . . . 7
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . 7
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Security Register and Security Registrar . . . . . . . . . . . . . . 7
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . 7
Significant Subsidiary . . . . . . . . . . . . . . . . . . . . . . . 8
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . 8
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
U.S. Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . 9
Value . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 102. Compliance Certificates and Opinions. . . . . . . . . . 9
SECTION 103. Form of Documents Delivered to Trustee. . . . . . . . . 10
SECTION 104. Acts of Holders. . . . . . . . . . . . . . . . . . . . 11
SECTION 105. Notices, Etc., to Trustee and Company. . . . . . . . . 12
SECTION 106. Notice to Holders; Waiver. . . . . . . . . . . . . . . 12
SECTION 107. Conflict with Trust Indenture Act. . . . . . . . . . . 13
SECTION 108. Effect of Headings and Table of
Contents. . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 109. Successors and Assigns. . . . . . . . . . . . . . . . . 13
SECTION 110. Separability Clause. . . . . . . . . . . . . . . . . . 13
SECTION 111. Benefits of Indenture. . . . . . . . . . . . . . . . . 13
SECTION 112. Governing Law. . . . . . . . . . . . . . . . . . . . . 14
SECTION 113. Legal Holidays. . . . . . . . . . . . . . . . . . . . . 14
SECTION 114. No Recourse Against Others. . . . . . . . . . . . . . . 14
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . 14
SECTION 202. Form of Face of Security . . . . . . . . . . . . . . . 15
SECTION 203. Form of Reverse of Security . . . . . . . . . . . . . . 17
SECTION 204. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . . . . 22
SECTION 205. Securities in Global Form . . . . . . . . . . . . . . . 23
SECTION 206. CUSIP Number . . . . . . . . . . . . . . . . . . . . . 24
SECTION 207. Form of Legend for the Securities in
Global Form . . . . . . . . . . . . . . . . . . . . . 24
-ii-
<PAGE> 5
PAGE
----
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . 24
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . 27
SECTION 303. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . 29
SECTION 305. Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . . . . . . . . 30
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . . . . . 32
SECTION 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . 34
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . 35
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . 35
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . 35
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . 36
ARTICLE FIVE
Remedies
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . 37
SECTION 502. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . 40
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . 41
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . . . . . . 42
SECTION 506. Application of Money Collected . . . . . . . . . . . . 42
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . 42
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium and Interest . . . . . . . 43
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . 43
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . 44
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . 44
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . 44
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . 44
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . 45
-iii-
<PAGE> 6
PAGE
----
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities of
the Trustee . . . . . . . . . . . . . . . . . . . . . 46
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . 46
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . 46
SECTION 604. Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . . . . . . . 48
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . . 48
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . 48
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . 48
SECTION 608. Disqualification; Conflicting Interests . . . . . . . . 49
SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . . 49
SECTION 610. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . 51
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . . 53
SECTION 613. Preferential Collection of Claims
Against Company . . . . . . . . . . . . . . . . . . . 53
SECTION 614. Appointment of Authenticating Agent . . . . . . . . . . 53
ARTICLE SEVEN
Holders' Lists And Reports By Trustee And Company
SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders . . . . . . . . . . . . . . . . 55
SECTION 702. Preservation of Information;
Communications to Holders . . . . . . . . . . . . . . 55
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . 57
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . 57
ARTICLE EIGHT
Consolidation, Merger, Lease, Sale or Transfer
SECTION 801. When Company May Merge, Etc. . . . . . . . . . . . . . 58
SECTION 802. Opinion of Counsel . . . . . . . . . . . . . . . . . . 59
SECTION 803. Successor Corporation Substituted . . . . . . . . . . . 59
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent
of Holders . . . . . . . . . . . . . . . . . . . . . 59
-iv-
<PAGE> 7
PAGE
----
SECTION 902. Supplemental Indentures with Consent of
Holders . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . 62
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . 62
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . 62
SECTION 906. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE TEN
Covenants
SECTION 1001. Payments of Securities . . . . . . . . . . . . . . . . 63
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . 63
SECTION 1003. Corporate Existence . . . . . . . . . . . . . . . . . . 64
SECTION 1004. Payment of Taxes and Other Claims . . . . . . . . . . . 64
SECTION 1005. Maintenance of Properties . . . . . . . . . . . . . . . 64
SECTION 1006. Compliance Certificates . . . . . . . . . . . . . . . . 65
SECTION 1007. Commission Reports . . . . . . . . . . . . . . . . . . 65
SECTION 1008. Waiver of Stay, Extension or Usury Laws . . . . . . . . 66
SECTION 1009. Money for Securities Payments to Be Held
in Trust . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1010. Limitation on Liens . . . . . . . . . . . . . . . . . . 68
SECTION 1011. Limitation on Sale and Leaseback
Transactions . . . . . . . . . . . . . . . . . . . . 70
SECTION 1012. Waiver of Certain Covenants . . . . . . . . . . . . . . 70
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . 71
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . 71
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . 72
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . 73
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . 73
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . 74
ARTICLE TWELVE
Sinking Funds
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . . 74
SECTION 1202. Satisfaction of Sinking Fund Payments
with Securities . . . . . . . . . . . . . . . . . . . 74
SECTION 1203. Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . . . . . . . . . . 75
-v-
<PAGE> 8
PAGE
----
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
SECTION 1301. Applicability of Article; Company's
Option to Effect Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . . 75
SECTION 1302. Defeasance and Discharge . . . . . . . . . . . . . . . 76
SECTION 1303. Covenant Defeasance . . . . . . . . . . . . . . . . . . 76
SECTION 1304. Conditions to Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . . 77
SECTION 1305. Deposited Money and Government
Obligations To Be Held In Trust . . . . . . . . . . . 79
ARTICLE FOURTEEN
Subordination
SECTION 1401. Agreement of Securityholders that
Provided Securities Subordinated
to Extent . . . . . . . . . . . . . . . . . . . . . 80
SECTION 1402. Company not to Make Payments with
Respect to Securities in Certain
Circumstances . . . . . . . . . . . . . . . . . . . . 80
SECTION 1403. Securities Subordinated to Prior
Payment of all Senior Indebtedness
on Dissolution, Liquidation or
Reorganization of Company . . . . . . . . . . . . . . 81
SECTION 1404. Securityholders to be Subrogated to
Right of Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . 82
SECTION 1405. Obligation of the Company Unconditional . . . . . . . . 83
SECTION 1406. Trustee Entitled to Assume Payments Not
Prohibited in Absence of Notice . . . . . . . . . . . 83
SECTION 1407. Application by Trustee of Monies
Deposited With It . . . . . . . . . . . . . . . . . . 84
SECTION 1408. Subordination Rights not Impaired by
Acts or Omissions of Company
or Holders of Senior Indebtedness . . . . . . . . . . 84
SECTION 1409. Securityholders Authorize Trustee to
Effectuate Subordination of
Securities . . . . . . . . . . . . . . . . . . . . . 84
SECTION 1410. Right of Trustee to Hold Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . 85
SECTION 1411. Article Fourteen Not to Prevent Events
of Default . . . . . . . . . . . . . . . . . . . . . 85
ARTICLE FIFTEEN
Miscellaneous
SECTION 1501. Miscellaneous . . . . . . . . . . . . . . . . . . . . . 85
-vi-
<PAGE> 9
INDENTURE, dated as of September 1, 1994, between MCN
CORPORATION, a corporation duly organized and existing under the laws of the
State of Michigan (herein called the "COMPANY"), having its principal office at
500 Griswold, Detroit, Michigan 48226, and NBD Bank, N.A., a national banking
association, 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.
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;
(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; and
(5) the words "HEREIN," "HEREOF" and "HEREUNDER" and other words of
similar import refer to this Indenture as a
<PAGE> 10
whole and not to any particular Article, Section or other subdivision.
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;
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 Officer
authorized to act with respect to any particular matter to exercise the power of
the Board of Directors of the Company.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY," when used with respect to any Place of Payment, 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.
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"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 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, Michigan 48226.
"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.
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"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.
"GAAP" means such accounting principles that are generally accepted in
the United States of America as of the date of any computation required
hereunder.
"HOLDER" or "SECURITYHOLDER" means a Person in whose name a Security if
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 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.
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"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.
"OFFICER" means the Chairman of the Board, the Vice Chairman of the
Board, the President, any Vice President, the Treasurer, any Assistant
Treasurer, the Controller, the Secretary or any Assistant Secretary of the
Company.
"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, and who shall be reasonably acceptable
to the Trustee.
"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
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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 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
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of that series are payable as specified as contemplated by Section 301.
"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.
"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 Office 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.
"SENIOR INDEBTEDNESS" means the principal of and premium, if any, and
interest on the following, whether outstanding on the date of execution of this
Indenture or thereafter incurred or created: (i) indebtedness of the Company
for money borrowed by the Company (including purchase money obligations with an
original maturity in excess of one year) or evidenced by debentures (other than
the Securities), notes, bankers' acceptances or other corporate debt securities
or similar instruments issued by the Company; (ii) obligations with respect to
letters of credit; (iii) indebtedness of the Company constituting a guarantee of
indebtedness of others of the type referred to in the preceding clauses (i) and
(ii); or (iv) renewals, extensions or refundings of any of the indebtedness
referred to in the preceding clauses (i), (ii) and (iii) unless, in the case of
any particular indebtedness, renewal, extension or refunding, under the express
provisions of the instrument creating or evidencing the same, or pursuant to
which the same is outstanding, such indebtedness or such renewal, extension or
refunding thereof is not superior in right of payment to the Securities.
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<PAGE> 16
"SIGNIFICANT SUBSIDIARY" means a Subsidiary or Subsidiaries of the
Company possessing assets (including the assets of its own Subsidiaries but
without regard to the Company or any other Subsidiary) having a book value, in
the aggregate, equal to not less than 10% of the book value of the aggregate
assets of the Company 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.
"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
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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.
"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, 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 to the Trustee to take
any action under any provision of this Indenture, other than an action permitted
by Sections 205 and 704 hereof, the Company 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
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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 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 stating that the information with respect to
such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
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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 delivered
to 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 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) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by the
Security Register.
(d) 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.
(e) 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,
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demand, authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or
other Act may be given before or after such record date, but only the Holders
of 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.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
a. the Trustee by any Holder or by the Company 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, Attention: Karen D. O'Donoghue, 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.
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
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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.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 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
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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
shall not have any liability for any obligations of the Company 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.
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
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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.
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 __________.
MCN CORPORATION
.........................
No. _______ [$] _______
MCN 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
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_________________, 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 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
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<PAGE> 25
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 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 ______________, 1994 (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 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):
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<PAGE> 26
If redeemed [on or before _______________, _____%, and if redeemed]
during the 12-month period beginning _____________ of the years indicated,
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
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 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,
Redemption Price
For Redemption Redemption Price for
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
- - - ---- ------------------ ----------------------
and thereafter at a Redemption Price equal to __% of the principal amount,
together in the case of any such redemption
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<PAGE> 27
(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.]
[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.
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<PAGE> 28
This Security is a general unsecured obligation of the Company and will
be subordinate in right of payment to all existing and future Senior
Indebtedness of the Company.
[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 the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company 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 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 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
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<PAGE> 29
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
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 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 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.
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<PAGE> 30
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> 31
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> 32
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
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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<PAGE> 33
(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, 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) the right of the Company, if any, to defer any
payment of principal of or interest on the Securities of the series,
and the maximum length of any such deferral period;
(8) 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;
(9) 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
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<PAGE> 34
Securities of the series shall be redeemed or purchased, in whole or
in part, pursuant to such obligation, and, where applicable, the
obligation of the Company to select the Securities to be redeemed;
(10) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which Securities of
the series shall be issuable;
(11) 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;
(12) additional Events of Default with respect to
Securities of the series, if any, other than those set forth herein;
(13) 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);
(14) 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 by payable;
(15) additional covenants with respect to Securities of
the series, if any, other than those set forth herein;
(16) if other than the Trustee, the identity of the
Registrar and any Paying Agent; and
(17) 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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<PAGE> 35
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 or one of
its Vice Presidents, 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. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions 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 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 as permitted
-27-
<PAGE> 36
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,
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).
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.
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<PAGE> 37
Depositary, as the case may be, therefor or its nominee, and (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
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<PAGE> 38
temporary Securities of any series shall in all respects be 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
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Company shall deliver to the Trustee definitive Securities of 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.
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Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by 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
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in relation thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith.
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
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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 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
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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 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.
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
(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
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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
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
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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; provided, however that if the Company is
permitted by the terms of the Securities of the applicable series to defer the
payment in question, the date on which such payment is due and payable shall be
the date on which the Company is required to make payment following such
deferral, if such deferral has been elected pursuant to the terms of the
Securities; 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; provided, however, that if the Company is permitted by
the terms of the Securities of the applicable series to defer the payment in
question, the date on which such payment is due and payable shall be the date on
which the Company is required to make payment following such deferral, if such
deferral has been elected pursuant to the terms of the Securities; or
(3) the Company fails to observe or perform any of its other
covenants, warranties or agreements in the Securities of that series or this
Indenture (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,
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or instrument under which there may be issued, or by which there may be secured
or evidenced, any Indebtedness of the Company or a Subsidiary (whether such
Indebtedness now exists or shall hereafter be created or incurred) shall occur
and shall consist of default in the payment of such Indebtedness at the
maturity thereof (after giving effect to any 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 Company's consolidated
total assets (determined as of its most recent fiscal year-end) 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 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 of the Company 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 in
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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, (B) appoint a Custodian of
the Company 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 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 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.
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Upon payment of all such principal and interest, all of the Company's
obligations under the Securities of that series and (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 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 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 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 or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of 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 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.
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 to affect, disturb or prejudice
the rights of any other of such Holders, or to obtain or to seek to obtain
priority or preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the equal
and ratable benefit of all 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 and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and
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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.
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
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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 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:
Form of Authenticating Agent's
Certificate of Authentication
Dated:_________________
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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. 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
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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.
(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
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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, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to Section 13 of the Exchange Act in respect of a security listed
and registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(2) 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;
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, (a) concurrently with furnishing the same
to its stockholders, the Company's annual report to stockholders,
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containing certified financial statements, and any other financial
reports which the Company 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 May Merge, Etc.
The Company shall not consolidate with, or merge with or into any other
corporation (whether or not the Company 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 shall be the continuing Person or the Person
(if other than the Company) formed by such consolidation or with which or into
which the Company is merged or the Person (or group of affiliated Persons) to
which all or substantially all the properties and assets of the Company 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, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the Company under the
Securities and this Indenture; 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.
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SECTION 802. Opinion of Counsel.
The Company 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 with or merger by the Company into
any other corporation or any lease, sale, assignment, or transfer of all or
substantially all of the property and assets of the Company in accordance with
Section 801, the successor corporation formed by such consolidation or into
which the Company 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 under this Indenture with the same effect as if such successor
corporation or corporations had been named as the Company 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 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 and the assumption by any such successor of the covenants of the
Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
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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
(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
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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 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
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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 (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
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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.
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, Michigan
48111 as such office of the Company.
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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.
SECTION 1004. Payment of Taxes and Other Claims.
The Company will pay or discharge, or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a material lien upon the property of the Company or any Subsidiary;
provided, however, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings and for which adequate provision has been made.
SECTION 1005. Maintenance of Properties.
The Company will cause all material properties used or useful in the
conduct of its business or the business of any of its 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 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 from discontinuing the operation or maintenance of any of
such properties, or disposing of any of
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them, if such discontinuance or disposal is, in the judgment of the Board of
Directors or of the board of directors of the Subsidiary concerned, as the case
may be, desirable in the conduct of the business of the Company or any
Subsidiary of the Company and not materially disadvantageous to the Holders.
SECTION 1006. Compliance Certificates.
(a) The Company shall deliver to the Trustee within 90 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,
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the Company shall file with the Trustee, within 30 days after it would
have been required to file such information with the Commission,
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," both
comparable to that which the Company would have been required to
include in such annual reports, information, documents or other
reports if the Company had been subject to the requirements of such
Sections 13 or 15(d) of the Exchange Act. The Company also shall
comply with the other provisions of Section 314(a) of the Trust
Indenture Act.
(b) So long as the Securities remain outstanding, the Company shall
cause its annual report to stockholders and any other financial reports
furnished by it 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 its 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 the Company's
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.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim,
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) the Company hereby expressly waives all benefit or advantage of
any such law, and covenants that it will not
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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.
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
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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 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 will, nor will it
permit any Significant Subsidiary to, create, incur, or suffer to exist any
Lien in, of or on the property of the Company or any of its 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.
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(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 or its Subsidiaries.
(v) Liens on the capital stock, partnership
interest, or other evidence of ownership of any Subsidiary or
such Subsidiary's assets that secure project financing 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
Agreement, 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 business practices) 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
(including the sale of such accounts
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receivable), where such accounts receivable arose in the
ordinary course of the Company's business.
SECTION 1011. Limitation on Sale and Leaseback Transactions.
The Company will not itself, and will not permit any Subsidiary to,
enter into any arrangement with any bank, insurance company or other lender or
investor (not including the Company or any Subsidiary), or to which such lender
or investor (other than the Company or a Subsidiary) is a party, providing for
the leasing by the Company 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 or such Subsidiary for more than
six months and which has been or is to be sold or transferred by the Company or
such Subsidiary 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 or such Subsidiary 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, 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) to the retirement of Securities and other
obligations of the issuer ranking senior to or 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 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 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 the duties
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of the Trustee in respect of any such covenant or condition shall remain in
full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise 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 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
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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;
(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;
(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
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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
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.
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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.
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
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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 Defeasanc.
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 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.
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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
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
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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 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
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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 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
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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 which would then be required to be deposited for
the purpose for which such money or Government Obligations were deposited.
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ARTICLE FOURTEEN
SUBORDINATION
SECTION 1401. Agreement of Securityholders that Securities Subordinated to
Extent Provided.
The Company, for itself, its successors and assigns, covenants and
agrees and each Holder of the Securities by his acceptance thereof likewise
covenants and agrees that the payment of the principal of, premium, if any, and
interest on each and all of the Securities is hereby expressly subordinated, to
the extent and in the manner hereinafter set forth, to the prior payment in full
of all Senior Indebtedness. The provisions of this Article shall constitute a
continuing offer to all persons who, in reliance upon such provisions, become
holders of, or continue to hold, Senior Indebtedness, and such provisions are
made for the benefit of the holders of Senior Indebtedness, and such holders are
hereby made obligees hereunder the same as if their names were written herein as
such, and they and/or each of them may proceed to enforce such provisions.
SECTION 1402. Company not to Make Payments with Respect to Securities in
Certain Circumstances.
(a) Upon the maturity of any Senior Indebtedness by lapse of time,
acceleration or otherwise, all principal thereof and premium, if any, and
interest thereon shall first be paid in full, or such payment duly provided for
in cash or in a manner satisfactory to the holder or holders of such Senior
Indebtedness, before any payment is made on account of the principal of or
premium, if any, or interest on the Securities or to acquire any of the
Securities or on account of any sinking fund (except sinking fund payments made
in Securities acquired by the Company before the maturity of such Senior
Indebtedness).
(b) Upon the happening of (i) an event of default with respect to
any Senior Indebtedness, as such event of default is defined therein or in the
instrument under which it is outstanding, permitting the holders to accelerate
the maturity thereof, or (ii) an event which, with the giving of notice, or
lapse of time, or both, would constitute such an event of default, then, unless
and until such event shall have been cured or waived or shall have ceased to
exist, no payment shall be made by the Company with respect to the principal of
or premium, if any, or interest on the Securities or to acquire any of the
Securities or on account of any sinking fund for the Securities (except sinking
fund payments made in Securities acquired by the Company before such default and
notice thereof).
(c) In the event that notwithstanding the provisions of this
Section 1402 the Company shall make any payment to the
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Trustee on account of the principal of or premium, if any, or interest on the
Securities, or on account of any sinking fund, or the Holders of the Securities
shall receive any such payment, after the happening of a default in payment of
the principal of or premium, if any, or interest on Senior Indebtedness, then,
unless and until such default or event of default shall have been cured or
waived or shall have ceased to exist, such payment (subject to the provisions
of Section 1406) shall be held by the Trustee or the Holders of the Securities,
as the case may be, in trust for the benefit of, and shall be paid forthwith
over and delivered to, the holders of Senior Indebtedness (pro rata as to each
of such holders on the basis of the respective amounts of Senior Indebtedness
held by them) or their representative or the trustee under the indenture or
other agreement (if any) pursuant to which any instruments evidencing any
Senior Indebtedness may have been issued, as their respective interests may
appear, for application to the payment of all Senior Indebtedness remaining
unpaid to the extent necessary to pay all Senior Indebtedness in full in
accordance with the terms of such Senior Indebtedness, after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Indebtedness. The Company shall give prompt written notice to the Trustee of
any default under any Senior Indebtedness or under any agreement pursuant to
which Senior Indebtedness may have been issued.
SECTION 1403. Securities Subordinated to Prior Payment of all Senior
Indebtedness on Dissolution, Liquidation or Reorganization of
Company.
Upon any distribution of assets of the Company upon any dissolution,
winding up, liquidation or reorganization of the Company (whether in bankruptcy,
insolvency or receivership proceedings or upon an assignment for the benefit of
creditors or otherwise):
(a) the holders of all Senior Indebtedness shall first be entitled
to receive payment in full of the principal thereof, premium, if any, and
interest due thereon before the Holders of the Securities are entitled to
receive any payment on account of the principal of, premium, if any, or
interest on the Securities;
(b) any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, to which the
Holders of the Securities or the Trustees would be entitled except for the
provisions of this Article Fourteen, shall be paid by the liquidating trustee
or agent or other person making such payment or distribution, whether a
trustee in bankruptcy, a receiver or liquidating trustee or other trustee or
agent, directly to the holders of
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Senior Indebtedness or their representative or representatives, or to
the trustee or trustees under any indenture under which any
instruments evidencing any of such Senior Indebtedness may have been
issued, to the extent necessary to make payment in full of all Senior
Indebtedness remaining unpaid, after giving effect to any concurrent
payment or distribution or provision therefor to the holders of such
Senior Indebtedness;
(c) in the event that notwithstanding the foregoing provisions of
this Section 1403, any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, shall be received
by the Trustee or the Holders of the Securities on account of principal,
premium, if any, or interest on the Securities before all Senior Indebtedness
is paid in full, or effective provision made for its payment, such payment or
distribution (subject to the provisions of Section 1406 and 1407) shall be
received and held in trust for and shall be paid over to the holders of the
Senior Indebtedness remaining unpaid or unprovided for or their representative
or representatives, or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Indebtedness may have been
issued, for application to the payment of such Senior Indebtedness until all
such Senior Indebtedness shall have been paid in full, after giving effect to
any concurrent payment or distribution or provision therefor to the holders of
such Senior Indebtedness.
SECTION 1404. Securityholders to be Subrogated to Right of Holders of Senior
Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders
of the Securities shall be subrogated to the rights of the holders of Senior
Indebtedness to receive payments or distributions of assets of the Company
applicable to the Senior Indebtedness until all amounts owing on the Securities
shall be paid in full, and for the purpose of such subrogation no payments or
distributions to the holders of the Senior Indebtedness by or on behalf of the
Company or by or on behalf of the Holders of the Securities by virtue of this
Article which otherwise would have been made to the Holders of the Securities
shall, as between the Company and the Holders of the Securities, be deemed to be
payment by the Company to or on account of the Senior Indebtedness, it being
understood that the provisions of this Article Fourteen are and are intended
solely for the purpose of defining the relative rights of the Holders of the
Securities,
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on the one hand, and the holders of the Senior Indebtedness, on the other hand.
SECTION 1405. Obligation of the Company Unconditional.
Nothing contained in this Article Fourteen or elsewhere in this
Indenture or in the Securities is intended to or shall impair as between the
Company and the Holders of the Securities, the obligation of the Company, which
is absolute and unconditional, to pay to the Holders of the Securities the
principal of, premium, if any, and interest on the Securities as and when the
same shall become due and payable in accordance with their terms, or is intended
to or shall affect the relative rights of the Holders of the Securities and
creditors of the Company other than the holders of the Senior Indebtedness, nor
shall anything herein or therein prevent the Trustee or the Holder of any
Security from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
Fourteen of the holders of Senior Indebtedness in respect of cash, property, or
securities of the Company received upon the exercise of any such remedy. Upon
any distribution of assets of the Company referred to in this Article Fourteen,
the Trustee, subject to the provisions of Section 601, and the Holders of the
Securities shall be entitled to rely upon any order or decree made by any court
of competent jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the liquidating
trustee or agent or other person making any distribution to the Trustee or to
the Holders of the Securities, for the purpose of ascertaining the persons
entitled to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Fourteen.
SECTION 1406. Trustee Entitled to Assume Payments Not Prohibited in Absence
of Notice.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts which would prohibit the making of any payment of monies
to or by the Trustee, unless and until a Responsible Officer of the Trustee
shall have received written notice thereof from the Company or from one or more
holders of Senior Indebtedness or from any trustee therefor; and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions of
Section 601, shall be entitled to assume conclusively that no such facts exist.
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SECTION 1407. Application by Trustee of Monies Deposited With It.
Anything in this Indenture to the contrary notwithstanding, any deposit
of monies by the Company with the Trustee or any paying agent (whether or not in
trust) for the payment of the principal of or premium, if any, or interest on
any Securities shall be subject to the provisions of Sections 1401, 1402, 1403
and 1404 except that, if prior to the date on which by the terms of this
Indenture any such monies may become payable for any purpose (including, without
limitation, the payment of either the principal of or the interest or premium,
if any, on any Security) a Responsible Officer of the Trustee shall not have
received with respect to such monies the notice provided for in Section 1406,
then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such monies and to apply the same
to the purpose for which they were received, and shall not be affected by any
notice to the contrary which may be received by it on or after such date.
SECTION 1408. Subordination Rights not Impaired by Acts or Omissions of
Company or Holders of Senior Indebtedness.
No right of any present or future holders of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof which any such holder may have or
be otherwise charged with.
SECTION 1409. Securityholders Authorize Trustee to Effectuate Subordination
of Securities.
Each Holder of the Securities by his acceptance thereof authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article Fourteen and appoints the Trustee his attorney-in-fact for such purpose,
including, in the event of any dissolution, winding up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency or receivership
proceedings or upon an assignment for the benefit of creditors or otherwise)
tending towards liquidation of the business and assets of the Company, the
immediate filing of a claim for the unpaid balance of its or his Securities in
the form required in said proceedings and cause said claim to be approved. If
the Trustee does not file a proper claim or proof of debt in the form required
in such proceeding prior to 30 days before the expiration of the time to file
such claim or claims, then the
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<PAGE> 93
holder or holders of Senior Indebtedness are hereby authorized to and have the
right to file an appropriate claim for and on behalf of the holders of said
Securities.
SECTION 1410. Right of Trustee to Hold Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth in this
Article Fourteen in respect of any Senior Indebtedness at any time held by it to
the same extent as any other holder of Senior Indebtedness, and nothing in
Section 613 or elsewhere in this Indenture shall be construed to deprive the
Trustee of any of its rights as such holder.
SECTION 1411. Article Fourteen Not to Prevent Events of Default.
The failure to make a payment on account of principal, interest or
sinking fund by reason of any provision in this Article Fourteen shall not be
construed as preventing the occurrence of an Event of Default under Section 501.
ARTICLE FIFTEEN
MISCELLANEOUS
SECTION 1501. 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.
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<PAGE> 94
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 CORPORATION
By /s/ Sebastian Coppola
-----------------------------------
Name: Sebastian Coppola
Title: Vice President and Treasurer
Attest:
/s/ Daniel L. Schiffer
- - - -----------------------------------
Name: Daniel L. Schiffer
Title: Vice President, General
Counsel and Secretary
NBD BANK, N.A., as Trustee
By /s/ Karen D. O'Donoghue
-------------------------------------
Name: Karen D. O'Donoghue
Title: Vice President, Trust Division
Attest:
/s/ Steven D. Vander Clay
- - - --------------------------
Name: Steven D. Vander Clay
Title: Vice President
-86-
<PAGE> 1
C&S 401 (Rev. 4/94) EXHIBIT 4.6
MICHIGAN DEPARTMENT OF COMMERCE - CORPORATION AND SECURITIES BUREAU
Date Received (FOR BUREAU USE ONLY)
Name
William E. Elwood, Esq.
Address
500 Woodward Avenue, Suite 4000
City State Zip Code
Detroit MI 48226
EFFECTIVE DATE:
DOCUMENT WILL BE RETURNED TO THE NAME AND ADDRESS YOU ENTER ABOVE
CERTIFICATE OF LIMITED PARTNERSHIP
FOR USE BY DOMESTIC LIMITED PARTNERSHIPS L -
(Please read information and instructions on the last page)
Pursuant to the provisions of Act 213, Public Acts of 1982, the undersigned
person(s) execute the following Certificate:
SECTION 1
The name of the limited partnership is: MCN Michigan Limited Partnership
SECTION 2
The general character of its business is: solely to issue its limited
partnership interests and invest the proceeds thereof in debt securities of MCN
Corporation.
SECTION 3
a. The address of the office at which the limited partnership records are
kept is:
500 Griswold, Detroit, Michigan 48226
b. The name of the agent for service of process is: Daniel L. Schiffer
c. The address of the agent for service of process is: 500 Griswold,
Detroit, Michigan 48226
SECTION 4
The power of a limited partner to grant the right to become a limited partner
to an assignee of any part of the partnership interest, and the terms and
conditions of the power, are as follows:
None specified
<PAGE> 2
SECTION 5
a. Describe the times, or events when a GENERAL PARTNER may terminate
membership in the limited partnership, and the terms and conditions of
the termination.
None specified
b. Describe the times, or events when a LIMITED PARTNER may terminate
membership in the limited partnership. Include the amount or method of
determining any distribution the limited partner is entitled to receive
upon termination of their membership.
None specified
SECTION 6
The right of the limited partner to receive distributions of property,
including cash, from the limited partnership, other than indicated in
5(b), is:
None specified
SECTION 7
The right of the limited partner to receive, or a general partner to make to
a limited partner, distributions of property, which include a return of all or
any part of the limited partner's contribution, other than indicated in 5(b),
is:
None specified
<PAGE> 3
SECTION 8
The times or events at which the limited partnership is to be dissolved and
its affairs wound up are:
None specified
SECTION 9
The right of the remaining general partner(s) to continue the business upon
the event of withdrawal of a general partner is:
None specified
SECTION 10
Enter any other matters the partners may desire to include. If additional
space is required, attach Supplement O. Attached are ---- page(s) of
Supplement O.
SECTION 11
Complete one section for each partner (general and limited). General
partners must be listed first followed by limited partners.
Item 1 - The type of partner must be either general or limited. The
Certificate must include a definition of the title classification for
any partner identified as other than only general or limited.
Item 2 - Partner names must appear in the last name, first name, middle
initial sequence.
Item 3 - Indicate the business or residence address of the partner.
The address should include the street number and name, city, state, and
ZIP code.
ITEMS 4 & 5 - LIMITED PARTNERS ONLY - ONE OR BOTH MUST BE COMPLETED
Items 4 - If applicable, indicate the amount of cash previously
contributed. If contributions have been made in the form of property or
services, indicate the agreed dollar value of the contribution in the
"other $_________" space and complete Item 6.
Item 5 - If applicable, indicate the amount of cash to be contributed
in the future and complete Item 7. If there are future contributions
in the form of property or services, indicate the agreed dollar value
of the contribution in the "other $________" space and complete Items
6 and 7.
Item 8 - This certificate must be signed and dated by all partners
(general and limited) named in the certificate. A partner may sign by
attorney in fact.
<PAGE> 4
SECTION 11
1. Type of Partner /X/ General 2. Partner Name (Last, First, Middle Initial)
/ / Limited MCN Corporation
3. Address (No. Street, City, State, ZIP Code)
500 Griswold, Detroit, Michigan 48226
4. Contributions Previously Made 5. Future Contributions to be Made
(LIMITED PARTNERS ONLY) (LIMITED PARTNERS ONLY)
Cash $______ Other $_______ Cash $______ Other $_______
6. Description of Contributions Other than Cash: (Include all property or
services contributed or to be contributed)
7. Times or Events Requiring Future Contributions: (Cash, Property or Services)
8. Signature 9. Date
By: /s/ William E. Elwood September 27, 1994
Its: Attorney-in-Fact
1. Type of Partner / / General 2. Partner Name (Last, First, Middle Initial)
/X/ Limited MCN Finance Corporation
3. Address (No. Street, City, State, ZIP Code)
500 Griswold, Detroit, Michigan 48226
4. Contributions Previously Made 5. Future Contributions to be Made
(LIMITED PARTNERS ONLY) (LIMITED PARTNERS ONLY)
Cash $1.00 Other $ N/A Cash $ N/A Other $ N/A
6. Description of Contributions Other than Cash: (Include all property or
services contributed or to be contributed)
7. Times or Events Requiring Future Contributions: (Cash, Property or Services)
8. Signature 9. Date
By: /s/ William E. Elwood September 27, 1994
Its: Attorney-in-Fact
1. Type of Partner / / General 2. Partner Name (Last, First, Middle Initial)
/ / Limited
3. Address (No. Street, City, State, ZIP Code)
4. Contributions Previously Made 5. Future Contributions to be Made
(LIMITED PARTNERS ONLY) (LIMITED PARTNERS ONLY)
Cash $______ Other $_______ Cash $______ Other $_______
6. Description of Contributions Other than Cash: (Include all property or
services contributed or to be contributed)
7. Times or Events Requiring Future Contributions: (Cash, Property or Services)
8. Signature 9. Date
<PAGE> 5
SECTION 11 CONTINUED
1. Type of Partner / / General 2. Partner Name (Last, First, Middle Initial)
/ / Limited
3. Address (No. Street, City, State, ZIP Code)
4. Contributions Previously Made 5. Future Contributions to be Made
(LIMITED PARTNERS ONLY) (LIMITED PARTNERS ONLY)
Cash $______ Other $_______ Cash $______ Other $_______
6. Description of Contributions Other than Cash: (Include all property or
services contributed or to be contributed)
7. Times or Events Requiring Future Contributions: (Cash, Property or Services)
8. Signature 9. Date
1. Type of Partner / / General 2. Partner Name (Last, First, Middle Initial)
/ / Limited
3. Address (No. Street, City, State, ZIP Code)
4. Contributions Previously Made 5. Future Contributions to be Made
(LIMITED PARTNERS ONLY) (LIMITED PARTNERS ONLY)
Cash $______ Other $_______ Cash $______ Other $_______
6. Description of Contributions Other than Cash: (Include all property or
services contributed or to be contributed)
7. Times or Events Requiring Future Contributions: (Cash, Property or Services)
8. Signature 9. Date
1. Type of Partner / / General 2. Partner Name (Last, First, Middle Initial)
/ / Limited
3. Address (No. Street, City, State, ZIP Code)
4. Contributions Previously Made 5. Future Contributions to be Made
(LIMITED PARTNERS ONLY) (LIMITED PARTNERS ONLY)
Cash $______ Other $_______ Cash $______ Other $_______
6. Description of Contributions Other than Cash: (Include all property or
services contributed or to be contributed)
7. Times or Events Requiring Future Contributions: (Cash, Property or Services)
8. Signature 9. Date
<PAGE> 6
C&S 401
Name of person or organization Preparer's name and business
remitting fees: telephone number:
Dickinson, Wright, Moon, Willaim E. Elwood, Esq.
Van Dusen & Freeman (313) 223-3500
INFORMATION AND INSTRUCTIONS
1. The certificate of limited partnership cannot be filed until this form is
submitted.
2. Submit one original of this document. Upon filing, the document will be
added to the records of the Corporation and Securities Bureau. The
original will be returned to the address appearing in the box on the front
as evidence of filing. Since this document will be maintained on optical
disk media, it is important that the filing be legible. Documents with
poor black and white contrast, or otherwise illegible, will be rejected.
3. This certificate is to be used for the purpose of forming a domestic
limited partnership pursuant to Section 201 of the Act.
4. If additional space is required for any section, continue the section on
Supplement O. If a specific section of this certificate is not applicable,
state "none".
5. Section 1 - The limited partnership name must contain, without
abbreviation, the words "limited partnership". The name may not contain
the name of a limited partner (unless the name is also the name of a
general partner or the business of the limited partnership had been
carried on under that name before the admission of that limited partner).
The name may not contain any word or phrase indicating or implying that it
is organized for a purpose other than described in Section 2 of the
certificate.
6. Section 3(a) - The limited partnership must keep at the office as required
by Sec. 105(a)(1) of the Act (1) a current list of the full name and last
known business or residence address of each partner, specifying separately
the general partners and limited partners in alphabetical order within each
category, (2) a copy of the certificate of limited partnership and all
certificates of amendment, restated certificates of limited partnership and
certificates of assumed name together with executed copies of any powers of
attorney, (3) copies of the limited partnership's federal, state, and local
income tax returns and reports, if any, for the three most recent years,
and (4) copies of any then effective written partnership agreements and
financial statements for the three most recent years.
7. Section 3(b) - The agent must be an individual resident of Michigan, a
domestic corporation, or a foreign corporation authorized to do business in
Michigan.
8. Section 3(c) - The address of the agent must be a location; P.O. Box
addresses are not acceptable.
9. Section 5 - If a partner has no right to terminate membership in the
limited partnership, indicate "none".
10. Section 10 - An effective date, no later than 90 days after the date the
document is delivered to the Bureau, may be stated in this section.
11. NOTICE - "Units" and Limited Partnership Certificates - Although the
Michigan Revised Uniform Limited Partnership Act (MRULPA), PA 213 of 1982,
does not use the term "unit", documents are frequently submitted which
refer to a "unit of interest", "unit of limited partnership", or a similar
phrase. To form a limited partnership, two or more persons execute and
file a Certificate of Limited Partnership. The certificate must include
the name and address of each partner and specify if they are general
partners or limited partners.
The use of terminology other than general partner or limited partner in
describing the interest of parties in the limited partnership is
confusing. If the term "unit" is used in conjunction with "limited
partnership interest", it may be a designation of units of a limited
partnership interest and reflect the intention to create a master limited
partnership. The names and addresses of the unit holders would not be
required to be included in the Certificate of Limited Partnership unless
the unit holder is also a limited partner. If the names and addresses of
unit holders, other than limited partners, are included in the Certificate
of Limited Partnership it will have a negative impact on the ability to
freely trade the units as securities.
However, if the term "units" is intended to be synonymous with "limited
partner", "unit" should be defined in the Certificate of Limited
Partnership since the MRULPA does not use the term "unit".
12. Section 11 - The document must be signed in ink by each partner. A
partner may sign by an attorney in fact.
13. FEES: Filing fee (Make remittance payable
to the State of Michigan) . . . . . . . . . . . . . . . . .$10.00
14. Mail form and fee to: The office is located at:
Michigan Department of Commerce 6546 Mercantile Way
Corporation and Securities Bureau Lansing, MI 48910
Corporation Division Telephone: (517) 334-6302
P.O. Box 30054
Lansing, MI 48909-7554
<PAGE> 1
Exhibit 4.7
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF MCN MICHIGAN LIMITED PARTNERSHIP
This AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT, dated as of
__________, 1994, of MCN Michigan Limited Partnership, a Michigan limited
partnership (the "Partnership"), is made by and among MCN Corporation, as
General Partner, MCN Finance Corporation, as Class A Limited Partner and the
Persons (as defined below) who become limited partners of the Partnership in
accordance with the provisions hereof.
WHEREAS, MCN Corporation and MCN Finance Corporation have heretofore formed
a limited partnership pursuant to the Michigan Act, by filing a Certificate of
Limited Partnership (as defined below) with the Secretary of State of the State
of Michigan on September 28, 1994, and entering into a Limited Partnership
Agreement of the Partnership dated as of September 28, 1994 (the "Limited
Partnership Agreement");
WHEREAS, the parties hereto desire to continue the Partnership as a limited
partnership under the Michigan Act and to amend and restate the Limited
Partnership Agreement in its entirety.
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby,
agree to amend and restate the Limited Partnership Agreement in its entirety as
follows:
ARTICLE I - DEFINITIONS
For purposes of this Agreement, each of the following terms shall have the
meaning set forth below (such meaning to be equally applicable to both singular
and plural forms of the terms so defined).
"ACTION" shall have the meaning set forth in Section 13.01(b).
"ADDITIONAL AMOUNTS" shall have the meaning set forth in Section
13.01(b)(x).
"AFFILIATE" shall mean, with respect to the Person to which it refers, a
Person that directly or indirectly through one or more intermediaries, controls
or is controlled by, or is under common control with, such subject Person.
"AGREEMENT" shall mean this Amended and Restated Limited Partnership
Agreement, as amended, modified, supplemented or restated from time to time,
including, without limitation, by any Action establishing a series of Preferred
Partner Interests.
"BOOK ENTRY INTERESTS" shall mean a beneficial interest in the Certificates,
ownership and transfers of which shall be
<PAGE> 2
made through book entries by a Clearing Agency as described in Section 14.04.
"BUSINESS DAY" shall mean any day other than a day on which banking
institutions in The City of New York or the State of Michigan are authorized or
required by law to close.
"CAPITAL ACCOUNT" shall have the meaning set forth in Section 4.01.
"CERTIFICATE" shall mean a certificate substantially in the form attached to
any Action, evidencing a Preferred Partner Interest.
"CERTIFICATE OF LIMITED PARTNERSHIP" shall mean the Certificate of Limited
Partnership of the Partnership and any and all amendments thereto and
restatements thereof filed with the Secretary of State of the State of
Michigan.
"CLASS A LIMITED PARTNER" shall mean MCN Finance Corporation, in its
capacity as a limited partner of the Partnership.
"CLEARING AGENCY" shall mean an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act.
"CLEARING AGENCY PARTICIPANT" shall mean a broker dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book entry transfers and pledges of securities deposited with
the Clearing Agency.
"CODE" shall mean the United States Internal Revenue Code of 1986 and
(unless the context requires otherwise) the rules and regulations promulgated
thereunder, as amended from time to time.
"COMMISSION" shall mean the Securities and Exchange Commission.
"COVERED PERSON" shall mean any Partner or the Special Representative, any
Affiliate thereof or any officers, directors, shareholders, partners, members,
employees, representatives or agents of a Partner, the Special Representative
or their respective Affiliates, or any employee or agent of the Partnership or
its Affiliates.
"DEFINITIVE CERTIFICATE" shall have the meaning set forth in Section 14.04.
"DISSOLUTION TAX OPINION" shall have the meaning set forth in the definition
of "Tax Event."
-2-
<PAGE> 3
"ECONOMIC RISK OF LOSS" shall mean the "economic risk of loss" that any
Partner is treated as bearing under Treasury Regulation Section 1.752-2 with
respect to any Partnership liability.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended.
"EVENT OF DEFAULT" shall mean an event of default under the Indenture.
"FISCAL YEAR" shall have the meaning set forth in Section 7.01.
"GENERAL PARTNER" shall mean MCN Corporation, in its capacity as general
partner of the Partnership, together with any successor thereto that becomes a
general partner of the Partnership pursuant to the terms of this Agreement.
"GUARANTEE" shall mean the Payment and Guarantee Agreement dated as of
______, 1994, as amended or supplemented from time to time, of MCN Corporation
and any additional Payment and Guarantee Agreements entered into by MCN
Corporation for the benefit of the Partners.
"INDEMNIFIED PERSON" shall mean the General Partner or the Special
Representative, any Affiliate thereof or any officers, directors, shareholders,
partners, members, employees, representatives or agents thereof, or any
employee or agent of the Partnership or its Affiliates.
"INDENTURE" shall mean the Indenture dated as of September 1, 1994,
as amended or supplemented from time to time, between MCN Corporation and NBD
Bank, N.A., as Trustee and any additional Indentures entered into by MCN
Corporation pursuant to which Subordinated Debentures of MCN Corporation are to
be issued.
"INTEREST" shall mean the entire partnership interest of a Partner in the
Partnership at any particular time, including the right of such Partner to any
and all benefits to which a Partner may be entitled as provided in this
Agreement, together with the obligations of such Partner to comply with all of
the terms and provisions of this Agreement.
"LIMITED PARTNERS" shall mean the Class A Limited Partner, if any, and the
Preferred Partners.
"LIQUIDATING DISTRIBUTIONS" shall mean distributions of Partnership property
made upon a liquidation and dissolution of the Partnership as provided in
Article XII.
"LIQUIDATING TRUSTEE" shall have the meaning set forth in Section 12.01.
-3-
<PAGE> 4
"LIQUIDATION DISTRIBUTION" shall mean the liquidation preference of each
series of Preferred Partner Interests as set forth in the Action for such
series.
"LOSS ITEMS" shall mean, with respect to any fiscal period, items of gross
Partnership loss, deduction or expense for such period.
"MICHIGAN ACT" shall mean the Michigan Revised Uniform Limited Partnership
Act, Mich. Comp. Laws Ann. Section 449.1101, et seq., as amended from time to
time or any successor statute thereto.
"NET INCOME" or "NET LOSS" shall mean, with respect to any Fiscal Year, the
sum of the Partnership's (a) net gain or loss from the sale or exchange of the
Partnership's capital assets during such Fiscal Year, and (b) all other items
of income, gain, loss, deduction and expense for such Fiscal Year that are not
included in (a). Net Income or Net Loss shall be determined in accordance with
Federal tax accounting principles rather than generally accepted accounting
principles, except that a distribution in kind of Partnership property shall be
treated as a taxable disposition of such property for its fair market value
(taking into account Section 7701(g) of the Code) on the date of distribution.
For purposes of determining the Capital Accounts as set forth in Article IV,
"Net Income" and "Net Loss" shall be computed in the same manner as the
Partnership computes its income for Federal income tax purposes, except that
adjustments shall be made in accordance with Treasury Regulation Section
1.704-1(b) (2) (iv), which adjustments shall include any income which is exempt
from United States Federal income tax, all Partnership losses and all expenses
properly chargeable to the Partnership, whether deductible or non-deductible
and whether described in Section 705(a) (2) (B) of the Code, treated as so
described pursuant to Treasury Regulations Section 1.704-1(b) (2) (iv) (i), or
otherwise.
"1940 ACT" shall mean the Investment Company Act of 1940, as amended.
"PARTNERS" shall mean the General Partner and the Limited Partners.
"PARTNERSHIP" shall mean MCN Michigan Limited Partnership, a limited
partnership formed under the laws of the State of Michigan.
"PERSON" shall mean any individual, general partnership, limited
partnership, corporation, limited liability company, joint venture, trust,
business trust, cooperative or association and the heirs, executors,
administrators, legal representatives, successors and assigns of such Person
where the context so admits.
-4-
<PAGE> 5
"PREFERRED PARTNER" shall mean a limited partner of the Partnership who
holds one or more Preferred Partner Interests.
"PREFERRED PARTNER INTEREST OWNER" shall mean, with respect to a Book Entry
Interest, a Person who is the beneficial owner of such Book Entry Interest, as
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly as a Clearing Agency
Participant or as an indirect participant, in each case in accordance with the
rules of such Clearing Agency).
"PREFERRED PARTNER INTERESTS" shall mean the Interests described in Article
XIII.
"PURCHASE PRICE" shall mean the amount paid for each Preferred Partner
Interest.
"REDEMPTION PRICE" shall have the meaning set forth in Section 13.01(b)(v).
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SPECIAL REPRESENTATIVE" shall have the meaning set forth in Section
13.02(d).
"SUBORDINATED DEBENTURES" shall mean the Subordinated Debentures of MCN
Corporation issued under the Indenture.
"TAX EVENT" shall mean that the General Partner shall have received an
opinion of nationally recognized independent tax counsel experienced in such
matters (a "Dissolution Tax Opinion") to the effect that, as a result of (a)
any amendment to, or change (including any announced prospective change) in,
the laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein or (b) any amendment to or
change in an interpretation or application of such laws or regulations by any
legislative body, court, governmental agency or regulatory authority (including
the enactment of any legislation and the publication of any judicial decision
or regulatory determination on or after such date), there is more than an
insubstantial risk that (i) the Partnership is subject to federal income tax
with respect to interest received on any series of Subordinated Debentures;
(ii) interest payable to the Partnership on any series of Subordinated
Debentures will not be deductible by MCN Corporation for federal income tax
purposes; or (iii) the Partnership is subject to more than a de minimis amount
of other taxes, duties or other governmental charges.
"TAX MATTERS PARTNER" shall have the meaning set forth in Section 7.05.
-5-
<PAGE> 6
"TRANSFER" shall mean any transfer, sale, assignment, gift, pledge,
hypothecation or other disposition or encumbrance of an interest in the
Partnership.
"TREASURY REGULATIONS" shall mean the final and temporary income tax
regulations, as well as the procedural and administrative regulations,
promulgated by the United States Department of the Treasury under the Code, as
amended from time to time.
"TRUSTEE" shall mean NBD Bank, N.A. or any other trustee under the Indenture.
"UNDERWRITING AGREEMENT" shall mean the Underwriting Agreement entered into
on ______________, 1994 among the Partnership, MCN Corporation and the
underwriters named therein with regard to the sale of Preferred Partner
Interests and related securities and any additional Underwriting Agreements
entered into by the Partnership and MCN Corporation with regard to the sale of
additional Preferred Partner Interests and related securities.
ARTICLE II - CONTINUATION; NAME; PURPOSES; TERM; DEFINITIONS
SECTION 2.01. FORMATION. The parties hereto hereby join together to
continue a limited partnership which shall exist under and be governed by the
Michigan Act. The Partnership shall make any and all filings or disclosures
required under the laws of Michigan or otherwise with respect to its
continuation as a limited partnership, its use of a fictitious name or
otherwise as may be required. The Partnership shall be a limited partnership
among the Partners solely for the purposes specified in Section 2.03 hereof,
and this Agreement shall not be deemed to create a partnership among the
Partners with respect to any activities whatsoever other than the activities
within the business purposes of the Partnership as specified in Section 2.03.
No Partner shall have any power to bind any other Partner with respect to any
matter except as specifically provided in this Agreement. No Partner shall be
responsible or liable for any indebtedness or obligation of any other Partner
incurred either before or after the execution of this Agreement. The assets of
the Partnership shall be owned by the Partnership as an entity, and no Partner
individually shall own any direct interest in the assets of the Partnership.
SECTION 2.02. NAME AND PLACE OF BUSINESS. The name of the Partnership is
"MCN Michigan Limited Partnership" The Partnership may operate under the name
of "MCN Michigan" and such name shall be used for no purposes other than those
set forth herein. The principal place of business of the Partnership shall be
500 Griswold Street, Detroit, Michigan 48226, or at such other place as may be
selected by the General Partner in its sole discretion.
-6-
<PAGE> 7
SECTION 2.03. PURPOSES. The sole purposes of the Partnership are to issue
and sell Interests in the Partnership, including, without limitation, Preferred
Partner Interests, and to use the proceeds of all sales of Interests in the
partnership to purchase Subordinated Debentures issued by MCN Corporation
pursuant to the Indenture and to effect other similar arrangements permitted by
this Agreement, and to engage in any and all activities necessary, convenient,
advisable or incidental thereto. The Partnership shall not borrow money or
issue debt or mortgage or pledge any of its assets.
SECTION 2.04. TERM. The Partnership was formed on September 28, 1994
and shall continue without dissolution through December 31, 2093, unless sooner
dissolved as provided in Article XI hereof.
SECTION 2.05. QUALIFICATION IN OTHER JURISDICTIONS. The General Partner
shall cause the Partnership to be qualified, formed or registered under assumed
or fictitious name statutes or similar laws in any jurisdiction in which the
Partnership transacts business. The General Partner shall execute, deliver and
file any certificates (and any amendments and/or restatements thereof)
necessary for the Partnership to qualify to do business in any jurisdiction in
which the Partnership may wish to conduct business.
SECTION 2.06. ADMISSION OF PREFERRED PARTNERS. Without execution of this
Agreement, upon receipt by a Person of a Certificate and payment for the
Preferred Partner Interest being acquired by such Person, which shall be deemed
to constitute a request by such Person that the books and records of the
Partnership reflect its admission as a Preferred Partner, such Person shall be
admitted to the Partnership as a Preferred Partner and shall become bound by
this Agreement.
SECTION 2.07. RECORDS. The name and mailing address of each Partner and
the amount contributed to the capital of the Partnership shall be listed on the
books and records of the Partnership. The Partnership shall keep such other
records as are required by the Michigan Act. The General Partner shall update
the books and records from time to time as necessary to accurately reflect the
information therein.
SECTION 2.08. WITHDRAWAL OF CLASS A LIMITED PARTNER. Upon the admission of
at least one Preferred Partner as a limited partner of the Partnership, the
Class A Limited Partner shall be deemed to have withdrawn from the Partnership
as a limited partner of the Partnership, and upon such withdrawal, the Class A
Limited Partner shall have its capital contribution returned to it without any
interest or deduction and shall have no further interest in the Partnership.
-7-
<PAGE> 8
ARTICLE III - CAPITAL CONTRIBUTIONS
SECTION 3.01. CAPITAL CONTRIBUTIONS. As of the date of this Agreement,
the General Partner has contributed the amount of $___________ to the capital
of the Partnership and shall make any further contributions required to satisfy
its obligations under Section 3.04. Each Preferred Partner, or its predecessor
in interest, will contribute to the capital of the Partnership the amount of
the Purchase Price for the Preferred Partner Interests held by it.
SECTION 3.02. ADDITIONAL CAPITAL CONTRIBUTIONS. No Partner shall be
required to make any additional contributions or advances to the Partnership
except as provided in Section 3.04 or by law. The General Partner may make
additional capital contributions in excess of the amounts required under this
Agreement at any time.
SECTION 3.03. NO INTEREST OR WITHDRAWALS. No interest shall accrue on any
capital contribution made by a Partner, and no Partner shall have the right to
withdraw or to be repaid any portions of its capital contributions so made,
except as specifically provided in this Agreement.
SECTION 3.04. MINIMUM CAPITAL CONTRIBUTION OF GENERAL PARTNER. Whenever
any Limited Partner makes a capital contribution, the General Partner shall
immediately make the capital contribution sufficient to cause the aggregate
capital contribution of the General Partner to equal at least 1% of the
aggregate capital contributed by all Partners for each series of Preferred
Partner Interests issued by the Partnership and the Partnership shall use each
such General Partner capital contribution to purchase Subordinated Debentures.
Any such additional contributions shall constitute additional capital
contributions made by the General Partner. In addition, all payments made by
the General Partner as required by Section 8.03(c) shall be treated as
additional capital contributions to the Partnership.
SECTION 3.05. PARTNERSHIP INTERESTS. Unless otherwise provided herein, the
percentage interests of the Partners shall be as determined in proportion to
the capital contributions of the Partners.
SECTION 3.06. INTERESTS. Each Partner's respective Preferred Partner
Interests shall be set forth on the books and records of the Partnership. Each
Partner hereby agrees that its Interests shall for all purposes be personal
property. No Partner has an interest in specific Partnership property. The
Partnership shall not issue any additional interest in the Partnership after
the date hereof other than Interests to the General Partner or Preferred
Partner Interests.
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ARTICLE IV - CAPITAL ACCOUNTS
SECTION 4.01. CAPITAL ACCOUNTS. There shall be established on the books of
the Partnership a capital account ("Capital Account") for each Partner that
shall consist of the initial capital contribution to the partnership made by
such Partner (or such Partner's predecessor in interest), increased by: (a)
any additional capital contributions made by such Partner, (b) the agreed value
of any property subsequently contributed to the capital of the Partnership by
such Partner; and (c) Net Income allocated to any Partner (or predecessor
thereof). A Partner's Capital Account shall be decreased by: (a) Net Loss
allocated to any Partner (or predecessor thereof); and (b) any distributions
made to such Partner. In addition to and notwithstanding the foregoing,
Capital Accounts shall be otherwise adjusted in accordance with the tax
accounting principles set forth in Treasury Regulation Section 1.704-1(b) (2)
(iv).
SECTION 4.02. COMPLIANCE WITH TREASURY REGULATIONS. The foregoing
provisions and the other provisions of this Agreement relating to the
maintenance of Capital Accounts are intended to comply with Section 704(b) of
the Code and Treasury Regulation Section 1.704-1(b) and shall be interpreted
and applied in a manner consistent with such regulations. In the event that
the General Partner shall determine that it is prudent to modify the manner in
which the Capital Accounts, or any debits or credits thereto, are determined in
order to comply with such regulations, the General Partner may make such
modification.
ARTICLE V - ALLOCATIONS
SECTION 5.01. NET INCOME AND NET LOSS. Net Income and Net Loss of the
Partnership shall be allocated in the following manner. First, all deductions
of the Partnership for which the General Partner has made a payment as required
by Section 8.03(c) shall be allocated to the General Partner. Then, for each
fiscal period, the remaining Net Income of the Partnership attributable to each
series of Preferred Partner Interests shall be allocated (i) first, to the
Preferred Partners, pro rata in proportion to the number of Preferred Partner
Interests held by each Preferred Partner and at the distribution rate specified
in the Action for each series of Preferred Partner Interests, in an amount
equal to the excess of (a) the distributions accrued on such Preferred Partner
Interests since their date of issuance through and including the close of the
current fiscal period (whether or not paid) over (b) the amount of profits
allocated to the Preferred Partners pursuant to this Section 5.01(i) in all
prior fiscal periods; and (ii) thereafter, to the General Partner. The
foregoing allocations shall be made separately with respect to each series of
Preferred Partner Interests. The Net Losses of the Partnership shall be
allocated each year to the General Partner. Notwithstanding anything to the
contrary in this Agreement, the General Partner shall be allocated at least one
percent of all items of income, gain, loss, deduction and credit of the
Partnership.
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SECTION 5.02. ALLOCATION RULES. For purposes of determining the profits,
losses or any other items allocable to any period, profits, losses and any such
other items shall be determined on a daily, monthly or other basis, as
determined by the General Partner in its sole and absolute discretion using any
method that is permissible under Section 706 of the Code and the Treasury
Regulations thereunder. The Partners are aware of the income tax consequences
of the allocations made by this Article V and hereby agree to be bound by the
provisions of this Article V in reporting their shares of Partnership income
and loss for income tax purposes.
SECTION 5.03. ADJUSTMENTS TO REFLECT CHANGES IN INTERESTS. Notwithstanding
the foregoing, with respect to any Fiscal Year during which any Partner's
percentage interest in the Partnership changes, whether by reason of the
admission of a Partner, the withdrawal of a Partner, a non-pro rata
contribution of capital to the Partnership or any other event described in
Section 706(d)(1) of the Code and the Treasury Regulations issued thereunder,
allocations of the items of income, gain, loss and deduction of the Partnership
shall be adjusted appropriately to take into account the varying interests of
the Partners during such Fiscal Year. The General Partner shall consult with
the Partnership's accountants and other tax advisors and shall select the
method of making such adjustments, which method shall be used consistently
thereafter.
SECTION 5.04. TAX ALLOCATIONS. For Federal, state and local income tax
purposes, Partnership income, gain, loss, deduction or credit (or any item
thereof) for each Fiscal Year shall be allocated to and among the Partners in
order to reflect the allocations made pursuant to the provisions of this
Article V for such Fiscal Year (other than allocations of items which are not
deductible or are excluded from taxable income), taking into account any
variation between the adjusted tax basis and book value of Partnership property
in accordance with the principles of Section 704(c) of the Code using the
traditional method with curative allocations as provided in Treasury Regulation
Section 1.704-3(c).
SECTION 5.05. QUALIFIED INCOME OFFSET. Notwithstanding any other provision
hereof, if any Partner unexpectedly receives an adjustment, allocation or
distribution described in Treasury Regulation Section 1.704-1(b)(2)(ii)(d) (4),
(5), or (6) which creates or increases a deficit in the Capital Account of
such Partner (and, for this purpose, the existence of a deficit shall be
determined by reducing the Partner's Capital Account by the items described in
Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5), and (6)), the next
available gross income of the Partnership shall be allocated to the Partners
having such deficit balances, in proportion to the deficit balances, until such
deficit balances are eliminated as quickly as possible. The provisions of this
Section 5.05 are intended to constitute a "qualified income offset" within the
meaning of Treasury Regulation Section 1.704-1(b)(2)(ii)(d) and shall be
interpreted and implemented as therein provided. The allocations pursuant to
this Section 5.05 shall be made if and to the extent that a Limited Partner
would have a deficit Capital Account after all other allocations provided for
in this Article V have been made as if Section 5.05 were not in this Agreement.
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SECTION 5.06. GROSS INCOME ALLOCATION. In the event any Limited Partner
has a deficit Capital Account at the end of any fiscal year which is in excess
of the sum of (i) the amount such Limited Partner is obligated to restore
pursuant to any provision of this Agreement, and (ii) the amount such Limited
Partner is deemed to be obligated to restore pursuant to the penultimate
sentences of Treasury Regulation Sections 1.704- 2(g)(1) and 1.704-2(i)(5),
each such Limited Partner shall be specially allocated items of Partnership
income and gain in the amount of such excess as quickly as possible,
provided that an allocation pursuant to this Section 5.06 shall be made if and
to the extent that such Limited Partner would have a deficit Capital Account in
excess of such sum after all other allocations provided for in this Article V
have been made as if Sections 5.05 and 5.06 were not in this Agreement.
SECTION 5.07. CURATIVE ALLOCATIONS. The allocations set forth in Sections
5.05 and 5.06 (the "Regulatory Allocations") are intended to comply with
certain requirements of the Treasury Regulations. It is the intent of the
Partners that, to the extent possible, all Regulatory Allocations shall be
offset with special allocations of income, gain, loss or deduction pursuant to
this Section 5.07.
SECTION 5.08. CURATIVE AMENDMENTS. Notwithstanding any other provision of
this Agreement, the allocations under this Agreement shall affect an allocation
for Federal income tax purposes in a manner consistent with Section 704(b) of
the Code and the Treasury Regulations promulgated thereunder. If for any
reason the allocations contained in this Agreement shall conflict with the
Treasury Regulations promulgated under Section 704(b) of the Code, the General
Partner may amend these provisions if it believes that such an amendment is
necessary to reflect allocations consistent with such Treasury Regulations.
SECTION 5.09. TAXPAYER INFORMATION. Any Person who holds Preferred Partner
Interests as a nominee for another Person is required to furnish to the
Partnership (a) the name, address and taxpayer identification number of the
beneficial owner and the nominee; (b) information as to whether the beneficial
owner is (i) a Person that is not a United States Person, (ii) a foreign
government, an international organization or any wholly owned agency or
instrumentality of either of the foregoing, or (ii) a tax-exempt entity; (c)
the amount and description of Preferred Partner Interests held, acquired or
transferred for the beneficial owner; and (d) certain information including the
dates of acquisitions and transfers, means of acquisitions and transfers, and
acquisitions cost for purchases, as well as the amount of net proceeds from
sales.
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ARTICLE VI - DISTRIBUTIONS
SECTION 6.01. DISTRIBUTIONS. Preferred Partners shall receive periodic
cash distributions, if any, in accordance with the applicable terms of the
Preferred Partner Interests as provided in the Action issued pursuant to
Section 13.01 for such series, as and when declared by the General Partner.
The cash distributions, if any, made pursuant to the preceding sentence may
include cash distributions in complete redemption of any series of Preferred
Partner Interests in accordance with the applicable terms of such Preferred
Partner Interests, as and when declared by the General Partner. Subject to the
rights of the holders of the Preferred Partner Interests, the General Partner
shall receive such cash distributions, if any, as may be declared from time to
time by the General Partner.
SECTION 6.02. CERTAIN DISTRIBUTIONS PROHIBITED. Notwithstanding anything
in this Agreement to the contrary, all Partnership distributions shall be
subject to the following limitations:
(a) No distribution shall be made to any Partner if, and to the extent
that, such distribution would not be permitted under Section 449.1607 of the
Michigan Act or other applicable law.
(b) No distribution shall be made to any Partner to the extent that such
distribution, if made, would create or increase a deficit balance in the
Capital Account of such Partner.
(c) Other than Liquidating Distributions, no distribution of Partnership
property shall be made in kind. Notwithstanding anything in the Michigan Act
or this Agreement to the contrary, in the event of a Liquidating Distribution,
a Partner may be compelled in accordance with Section 12.01 to accept a
distribution of cash or any other asset in kind from the Partnership even if
the percentage of the asset distributed to it exceeds a percentage of that
asset which is equal to the percentage in which such Partner shares in
distributions from the Partnership.
ARTICLE VII - ACCOUNTING MATTERS; BANKING
SECTION 7.01. FISCAL YEAR. The fiscal year ("Fiscal Year") of the
Partnership shall be the calendar year, or such other year as is required by
the Code.
SECTION 7.02. CERTAIN ACCOUNTING MATTERS. (a) At all times during the
existence of the Partnership, the General Partner shall keep, or cause to be
kept, full books of account, records and supporting documents, which shall
reflect in
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reasonable detail, each transaction of the Partnership. The books of account
shall be maintained on the accrual method of accounting, in accordance with
generally accepted accounting principles, consistently applied. The
Partnership shall use the accrual method of accounting for United States
Federal income tax purposes. The books of account and the records of the
Partnership shall be examined by and reported upon as of the end of each Fiscal
Year by a firm of independent certified public accountants selected by the
General Partner.
(b) The General Partner shall cause to be prepared and delivered to each
of the Partners, within 90 days after the end of each Fiscal Year of the
Partnership, annual financial statements of the Partnership, including a
balance sheet of the Partnership as of the end of such Fiscal Year and the
related statements of income or loss and a statement indicating such Partner's
share of each item of Partnership income, gain, loss, deduction or credit for
such Fiscal Year for income tax purposes.
(c) Notwithstanding anything in this Agreement to the contrary, the
General Partner may, to the maximum extent permitted by applicable law, keep
confidential from the Partners for such period of time as the General Partner
deems reasonable any information which the General Partner reasonably believes
to be in the nature of trade secrets or other information the disclosure of
which the General Partner in good faith believes is not in the best interest of
the Partnership or could damage the Partnership or which the Partnership or a
third party is required by law or by an agreement to keep confidential.
(d) The General Partner may make, or revoke, in its sole and absolute
discretion, any elections for the Partnership that are permitted under tax or
other applicable laws, including elections under Section 704(c) of the Code,
provided that the General Partner shall not make any elections pursuant to
Section 754 of the Code.
SECTION 7.03. BANKING. The Partnership shall maintain one or more bank
accounts in the name and for the sole benefit of the Partnership. The sole
signatories for such accounts shall be designated by the General Partner.
Reserve cash, cash held pending the expenditure of funds for the business of
the Partnership or cash held pending a distribution to one or more of the
Partners may be invested in any manner at the sole and absolute discretion of
the General Partner.
SECTION 7.04. RIGHT TO RELY ON AUTHORITY OF GENERAL PARTNER. No
Person that is not a Partner, in dealing with the General Partner, shall be
required to determine such General Partner's authority to make any commitment
or engage in any undertaking on behalf of the Partnership, or to determine any
fact or circumstance bearing upon the existence of the authority of the General
Partner.
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SECTION 7.05. TAXATION. The Partners intend that the Partnership shall be
taxed as a partnership for Federal and state income and single business tax
purposes and the Partners agree to take all action, including amendment of
this Agreement and execution of such other documents to qualify for and
receive such treatment.
SECTION 7.06. SURVIVAL OF TAX PROVISIONS. The provisions of this
Agreement relating to tax matters shall survive the termination of this
Agreement and the termination of any Partner's interest in the Partnership and
shall remain binding on that Partner for the period of time necessary to
resolve with any Federal, state and local tax authorities any tax matters
regarding the Partnership.
SECTION 7.07. TAX MATTERS PARTNER. The "tax matters partner," as defined
in Section 6231 of the Code, of the Partnership shall be the General Partner
(the "Tax Matters Partner"). The Tax Matters Partner shall receive no
compensation from the Partnership for its services in that capacity. The Tax
Matters Partner is authorized to employ such accountants, attorneys and agents
as it, in its sole and absolute discretion, deems necessary or appropriate.
Any Person who serves as Tax Matters Partner shall not be liable to the
Partnership or to any Partner for any action it takes or fails to take as Tax
Matters Partner with respect to any administrative or judicial proceeding
involving "partnership items" (as defined in Section 6231 of the Code) of the
Partnership.
ARTICLE VIII - MANAGEMENT
SECTION 8.01. MANAGEMENT. (a) The General Partner shall have full and
exclusive authority with respect to all matters concerning the conduct of the
business and affairs of the Partnership, including (without limitation) the
power, without the consent of the Limited Partners, to make all decisions it
deems necessary, advisable, convenient or appropriate to accomplish the
purposes of the Partnership. The acts of the General Partner acting alone
shall serve to bind the Partnership and shall constitute the acts of the
Partners.
(b) The Limited Partners in their capacity as such shall not take part in
the management, operation or control of the business of the Partnership or
transact any business in the name of the Partnership. In addition, the Limited
Partners, in their capacity as such, shall not be agents of the Partnership and
shall not have the power to sign or bind the Partnership to any agreement or
document. The Limited Partners shall have the right to vote only with respect
to those matters specifically provided for in this Agreement. Notwithstanding
anything herein to the contrary, the Preferred Partners may exercise all rights
provided to them, if any, under the Indenture and the Guarantee.
(c) The General Partner is authorized and directed to use its best efforts
to conduct the affairs of, and to operate,
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the Partnership in such a way that the Partnership would not be deemed to be an
"investment company" required to be registered under the 1940 Act or taxed as a
corporation for Federal income tax purposes and so that the Subordinated
Debentures will be treated as indebtedness of MCN Corporation for Federal
income tax purposes. In this connection, the General Partner is authorized to
take any action not inconsistent with applicable law, the Certificate of
Limited Partnership or this Agreement that does not materially adversely affect
the interests of holders of Preferred Partner Interests that the General
Partner determines in its sole and absolute discretion to be necessary,
advisable or desirable for such purposes.
SECTION 8.02 FIDUCIARY DUTY. (a) To the extent that, at law or in equity,
an Indemnified Person has duties (including fiduciary duties) and liabilities
relating thereto to the Partnership or to any other Covered Person, an
Indemnified Person acting under this Agreement shall not be liable to the
Partnership or to any other Covered Person for its good faith reliance on the
provisions of this Agreement or the advice of counsel selected by the
Indemnified Person in good faith. The provisions of this Agreement, to the
extent that they restrict the duties and liabilities of an Indemnified Person
otherwise existing at law or in equity, are agreed by the parties hereto to
replace such other duties and liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein, (i) whenever a conflict of
interest exists or arises between Covered Persons, or (ii) whenever this
Agreement or any other agreement contemplated herein provides that an
Indemnified Person shall act in a manner that is, or provides terms that are,
fair and reasonable to the Partnership or any Partner, the Indemnified Person
shall resolve such conflict of interest, taking such action or providing such
terms, considering in each case the relative interest of each party (including
its own interest) to such conflict, agreement, transaction or situation and the
benefits and burdens relating to such interests, any customary or accepted
industry practices, the advice of counsel selected by the Indemnified Person in
good faith, and any applicable generally accepted accounting practices or
principles. In the absence of bad faith by the Indemnified Person, the
resolution, action or term so made, taken or provided by the Indemnified Person
shall not constitute a breach of this Agreement or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
(c) Whenever in this Agreement an Indemnified Person is permitted or
required to make a decision (i) in its "discretion" or under a grant of similar
authority or latitude, the Indemnified Person shall be entitled to consider
only such interests and factors as it desires, including its own interests, and
shall have no duty or obligation to give any consideration to any interest of
or factors affecting the Partnership or any other
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Person, or (ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Agreement or other
applicable law.
SECTION 8.03. SPECIFIC OBLIGATIONS OF THE GENERAL PARTNER. The General
Partner hereby undertakes:
(a) to devote to the affairs of the Partnership so much of its time as
shall be necessary to carry on properly the Partnership's business and its
responsibilities hereunder;
(b) to cause the Partnership to do or refrain from doing such acts as
shall be required by Michigan law in order to preserve the valid existence of
the Partnership as a Michigan limited partnership and to preserve the limited
liability of the Limited Partners; and
(c) to pay directly all, and the Partnership shall not be obligated to
pay, directly or indirectly, any, of the costs and expenses of the Partnership
(including, without limitation, costs and expenses relating to the organization
of, and offering of limited partner interests in, the Partnership and costs and
expenses relating to the operation of the Partnership, including without
limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and telephone and costs
and expenses incurred in connection with the acquisition, financing, and
disposition of Partnership assets).
SECTION 8.04. POWERS OF THE GENERAL PARTNER. The General Partner shall
have the right, power and authority, in the management of the business and
affairs of the Partnership, to do or cause to be done any and all acts deemed
by the General Partner to be necessary or appropriate to effectuate the
business, purposes and objectives of the Partnership. Without limiting the
generality of the foregoing, the General Partner shall have the power and
authority without any further act, approval or vote of any Partner to:
(a) issue Interests, including Preferred Partner Interests, and classes
and series thereof, in accordance with this Agreement;
(b) act as, or appoint another Person to act as, registrar and transfer
agent for the Preferred Partner Interests;
(c) establish a record date with respect to all actions to be taken
hereunder that require a record date to be established, including with respect
to allocations, distributions and voting rights and declare distributions and
make all other required payments on General Partner, Class A Limited Partner
and Preferred Partner Interests as the Partnership's paying agent;
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(d) enter into and perform one or more Indentures and one or more
Underwriting Agreements and use the proceeds from the issuance of the Interests
and the General Partner's Interest to purchase the Subordinated Debentures, in
each case on behalf of the Partnership;
(e) bring and defend on behalf of the Partnership actions and proceedings
at law or in equity before any court or governmental, administrative or other
regulatory agency, body or commission or otherwise;
(f) employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors and
consultants and pay reasonable compensation for such services;
(g) redeem each series of Preferred Partner Interests (which shall
constitute a return of capital and not a distribution of income) in accordance
with its terms and/or to the extent that the related series of Subordinated
Debentures is redeemed or reaches maturity; and
(h) execute all documents or instruments, perform all duties and powers
and do all things for and on behalf of the Partnership in all matters
necessary, convenient, advisable or incidental to the foregoing.
The expression of any power or authority of the General Partner in this
Agreement shall not in any way limit or exclude any other power or authority
which is not specifically or expressly set forth in, or precluded by, this
Agreement.
SECTION 8.05. INDEPENDENT AFFAIRS. Any Partner or any Affiliate thereof
may engage in or possess an interest in any other business venture of whatever
nature and description, independently or with others, wherever located and
whether or not comparable to or in competition with the Partnership or the
General Partner, or any Affiliate thereof, and neither the Partnership nor any
of the Partners shall, by virtue of this Agreement, have any rights with
respect to, or interests in, such independent ventures or the income, profits
or losses derived therefrom. No Partner or Affiliate thereof shall be
obligated to present any particular investment opportunity to the Partnership
even if such opportunity is of a character that, if presented to the
Partnership, could be taken by the Partnership, and any Partner or Affiliate
thereof shall have the right to take for its own account (individually or as a
partner or fiduciary) or to recommend to others any such particular investment
opportunity.
SECTION 8.06. MEETINGS OF THE PARTNERS. Meetings of the Partners of any
class or series or of all classes or series of the Partnership's Interests may
be called at any time by the Partners holding 10% in liquidation preference of
such class or series of Interests, or of all classes or series of Interests, as
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the case may be, or as provided in any Action establishing a series of
Preferred Partner Interests. Except to the extent otherwise provided in any
such Action, the following provisions shall apply to meetings of Partners.
(a) Notice of any meeting shall be given to all Partners not less than
ten (10) business days nor more than sixty (60) days prior to the date of such
meeting. Partners may vote in person or by proxy at such meeting. Whenever a
vote, consent or approval of Partners is permitted or required under this
Agreement, such vote, consent or approval may be given at a meeting of Partners
or by written consent.
(b) Each Partner may authorize any Person to act for it by proxy on all
matters in which a Partner is entitled to participate, including waiving notice
of any meeting, or voting or participating at a meeting. Every proxy must be
signed by the Partner or its attorney-in-fact. No proxy shall be valid after
the expiration of eleven (11) months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be revocable at the pleasure of the
Partner executing it.
(c) Each meeting of Partners shall be conducted by the General Partner or
by such other Person that the General Partner may designate.
(d) Subject to the provisions of this Section 8.06, the General Partner,
in its sole and absolute discretion, shall establish all other provisions
relating to meetings of Partners, including notice of the time, place or
purpose of any meeting at which any matter is to be voted on by any Partners,
waiver of any such notice, action by consent without a meeting, the
establishment of a record date, quorum requirements, voting in person or by
proxy or any other matter with respect to the exercise of any such right to
vote; provided, however, that unless the General Partner has established a
lower percentage, a majority of the Partners entitled to vote thereat shall
constitute a quorum at all meetings of the Partners.
SECTION 8.07. NET WORTH OF THE GENERAL PARTNER. By execution of this
Agreement, the General Partner represents and covenants that (a) as of the date
hereof and at all times during the existence of the Partnership it will
maintain a fair market value net worth of at least ten percent (10%) of the
total contributions less redemptions to the partnership, throughout the life of
the Partnership, in accordance with Rev. Proc. 89-12, 1989-1 C.B. 798, or such
other amount as may be required from time to time pursuant to any amendment,
modification or successor to Rev. Proc. 89-12 (such net worth being computed
excluding any interest in, or receivable due from, the Partnership and
including any income tax liabilities that would become due by the General
Partner upon disposition by the General Partner of all assets included in
determining such net worth), and (b) it will
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not make any voluntary dispositions of assets which would reduce the net worth
below the amount described in (a).
SECTION 8.08. RESTRICTIONS ON GENERAL PARTNER. So long as any series of
Subordinated Debentures are held by the Partnership, the General Partner unless
so directed by the Special Representative, shall not (i) direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or executing any trust or power conferred on the Trustee with respect
to such series, (ii) waive any past default which is available under the
Indenture, (iii) exercise any right to rescind or annul a declaration that the
principal of all of a series of Subordinated Debentures shall be due and
payable or (iv) consent to any amendment, modification or termination of the
Indenture, where such consent shall be required, without, in each case,
obtaining the prior approval of the holders of not less than 66 2/3% of the
aggregate stated liquidation preference of all series of Preferred Partner
Interests affected thereby, acting as a single class; provided, however, that
where a consent under the Indenture would require the consent of each holder
affected thereby, no such consent shall be given by the General Partner without
the prior consent of each holder of all series of Preferred Partner Interests
affected thereby. The General Partner shall not revoke any action previously
authorized or approved by a vote of any series of Preferred Partner Interests.
The General Partner shall notify all holders of such Preferred Partner
Interests of any notice of default received from the Trustee with respect to
such series of Subordinated Debentures. The General Partner shall not cause or
permit the Partnership to engage in any activity that is not consistent with
the purposes of the Partnership.
ARTICLE IX - LIABILITY AND INDEMNIFICATION
SECTION 9.01. PARTNERSHIP EXPENSES AND LIABILITIES.
(a) Except as provided in the Michigan Act, the General Partner shall
have the liabilities of a partner in a partnership without limited partners to
Persons other than the partnership and the other Partners.
(b) Except as otherwise expressly required by law, a Limited Partner, in
its capacity as such, shall have no liability in excess of (i) the amount of
its capital contributions to the Partnership, (ii) its share of any assets and
undistributed profits of the Partnership, and (iii) the amount of any
distributions wrongfully distributed to it.
SECTION 9.02. NO LIABILITY. Except as otherwise expressly provided in
Section 9.01(a) or by the Michigan Act, no Covered Person shall be liable to
the Partnership or to any other Partner for any act or omission performed or
omitted pursuant to the authority granted to it hereunder or by law, or from a
loss
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resulting from any mistake or error in judgment on its part or from the
negligence, dishonesty, fraud or bad faith of any employee, independent
contractor, broker or other agent of the Partnership, provided that such act or
omission, such mistake or error in judgment or the selection of such employee,
independent contractor, broker or other agent, as the case may be, did not
result from the willful misconduct, gross negligence or fraud of such Covered
Person. Any Covered Person shall be fully protected in relying in good faith
upon the records of the Partnership and upon such information, opinions,
reports or statements presented to the Partnership by any Person as to matters
the Covered Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable
care by or on behalf of the Partnership, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the existence and amount of
assets from which distributions to Partners might properly be paid.
SECTION 9.03. INDEMNIFICATION. To the fullest extent permitted by
applicable law, except as set forth in Section 8.03(c), an Indemnified Person
shall be entitled to indemnification from the Partnership for any loss, damage
or claim incurred by such Indemnified Person by reason of any act or omission
performed or omitted by such Indemnified Person in good faith on behalf of the
Partnership and in a manner reasonably believed to be within the scope of
authority conferred on such Indemnified Person by this Agreement, except that
no Indemnified Person shall be entitled to be indemnified in respect of any
loss, damage or claim incurred by such Indemnified Person by reason of willful
misconduct, gross negligence or fraud with respect to such acts or omissions;
provided, however, that any indemnity under this Section 9.03 shall be provided
out of and to the extent of Partnership assets only, and except as otherwise
provided by the Michigan Act, no Covered Person shall have any personal
liability on account thereof. To the fullest extent permitted by applicable
law, expenses (including legal fees) incurred by an Indemnified Person in
defending any claim, demand, action, suit or proceeding shall, from time to
time, be advanced by the Partnership prior to the final disposition of such
claim, demand, action, suit or proceeding upon receipt by the Partnership of an
undertaking by or on behalf of the Indemnified Person to repay such amount if
it shall be determined that the Indemnified Person is not entitled to be
indemnified as authorized in this Section 9.03.
ARTICLE X - WITHDRAWAL; TRANSFER RESTRICTIONS
SECTION 10.01. TRANSFER BY GENERAL PARTNER; ADMISSION OR SUBSTITUTED
GENERAL PARTNER. The General Partner may not Transfer its Interest (in whole
or in part) to any Person without the consent of all other Partners, provided
that the General Partner may, without the consent of any Partner, Transfer its
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Interest to MCN Financial Corporation or any direct or indirect wholly owned
subsidiary of MCN Corporation; provided that after such Transfer, the
representation and covenant set forth in Section 8.07 remains true and correct.
Notwithstanding anything else herein, the General Partner may merge with or
into another Person, may permit another Person to merge with or into the
General Partner and may Transfer all or substantially all of its assets to
another Person if the General Partner is the survivor of such merger or the
Person into which the General Partner is merged or to which the General
Partner's assets are transferred is a Person organized under the laws of the
United States or any state thereof or the District of Columbia and the General
Partner shall have the right to admit the assignee or transferee of its
Interest which is permitted hereunder as a substituted or additional general
partner of the Partnership, without the consent of the Limited Partners. Any
such assignee or transferee of all or a part of the Interest of a General
Partner shall be deemed admitted to the partnership as a general partner of the
Partnership immediately prior to the effective date of such Transfer, and such
additional or successor General Partner is hereby authorized to and shall
continue the business of the Partnership without dissolution.
SECTION 10.02. WITHDRAWAL OF LIMITED PARTNERS. A Preferred Partner may not
withdraw from the Partnership prior to the dissolution and winding up of the
Partnership except upon the assignment of its Preferred Partner Interests
(including any redemption, repurchase, exchange or other acquisition by the
partnership), as the case may be, in accordance with the provisions of this
Agreement. Any Person who has been assigned one or more Interests shall
provide the Partnership with a completed Form W-8 or such other documents or
information as are requested by the Partnership for tax reporting purposes. A
withdrawing Preferred Partner shall not be entitled to receive any distribution
and shall not otherwise be entitled to receive the fair value of its Preferred
Partner Interest except as otherwise expressly provided in this Agreement.
ARTICLE XI - DISSOLUTION OF THE PARTNERSHIP
SECTION 11.01. NO DISSOLUTION. The Partnership shall not be dissolved by
the admission of Partners in accordance with the terms of this Agreement. The
death, withdrawal, incompetency, bankruptcy, dissolution or other cessation to
exist as a legal entity of a Limited Partner, or the occurrence of any other
event that terminates the Interest of a Limited Partner in the Partnership,
shall not in and of itself cause the Partnership to be dissolved and its
affairs wound up. To the fullest extent permitted by applicable law, upon the
occurrence of any such event, the General Partner, subject to the terms of this
Agreement, may, without any further act, vote or approval of any Partner, admit
any Person to the Partnership as an additional or substitute Limited Partner,
which admission shall be effective as
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of the date of the occurrence of such event, and the business of the
Partnership shall be continued without dissolution.
SECTION 11.02. EVENTS CAUSING DISSOLUTION. The Partnership shall be
dissolved and its affairs shall be wound up upon the occurrence of any of the
following events:
(a) the expiration of the term of the Partnership, as provided in Section
2.04 hereof;
(b) the withdrawal, removal or bankruptcy of the General Partner or
Transfer (other than a grant of a security interest) by the General Partner of
its entire Interest in the Partnership when the assignee is not admitted to the
Partnership as an additional or successor General Partner in accordance with
Section 10.01 hereof, or the occurrence of any other event that results in the
General Partner ceasing to be a general partner of the Partnership under the
Michigan Act, provided, the Partnership shall not be dissolved and required to
be wound up in connection with any of the events specified in this clause (b)
if (i) at the time of the occurrence of such event there is at least one
remaining general partner of the Partnership who is hereby authorized to,
agrees to and does carry on the business of the Partnership, or (ii) within
ninety (90) days after the occurrence of such event, a majority in Interest of
the remaining Partners (or such greater percentage in Interest as is required
by the Michigan Act) agree in writing to continue the business of the
Partnership and to the appointment, effective as of the date of such event, if
required, of one or more additional general partners of the Partnership;
(c) the entry of a decree of judicial dissolution under the Michigan Act;
or
(d) the election of the General Partner upon the occurrence of a Tax
Event or any event specified in an Action as an event permitting the
dissolution of the Partnership;
(e) the written consent of the General Partner and all of the Preferred
Partners.
SECTION 11.03. NOTICE OF DISSOLUTION. Upon the dissolution of the
Partnership, the General Partner shall promptly notify the Partners of such
dissolution.
ARTICLE XII - LIQUIDATION OF PARTNERSHIP INTERESTS
SECTION 12.01. LIQUIDATION. Upon dissolution of the partnership, the
General Partner, or, in the event that the dissolution is caused by an event
described in Section 11.02(b) and there is no other General Partner, a Person
or Persons who may be approved by Preferred Partners holding not less than a
majority in liquidation preference of the Preferred Partner
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Interests as liquidating trustee the "Liquidating Trustee", shall immediately
commence to wind up the Partnership's affairs; provided, however, that a
reasonable time shall be allowed for the orderly liquidation of the assets of
the Partnership and the satisfaction of liabilities to creditors so as to
enable the Partners to minimize the normal losses attendant upon a liquidation.
The Preferred Partners shall continue to share profits and losses during
liquidation in the same proportions, as specified in Articles V and VI hereof,
as before liquidation. The proceeds of liquidation shall be distributed, as
realized, in the following order and priority:
(a) to creditors of the Partnership, including Preferred Partners who are
creditors, to the extent otherwise permitted by law, in satisfaction of the
liabilities of the Partnership (whether by payment or the making of reasonable
provision for payment thereof), other than liabilities for which reasonable
provision for payment has been made and liabilities for distributions to
Partners;
(b) to the holders of Preferred Partner Interests of each series then
outstanding in accordance with the terms of the Action or Actions for such
Series (and if such distribution shall not be made in cash, the holders of
Preferred Partner Interests of each series shall receive the corresponding
series of Subordinated Debentures held by the Partnership and purchased with
the proceeds of each such series of Preferred Partner Interests); and
(c) to all Partners in accordance with their respective positive Capital
Account balances, after giving effect to all contributions, distributions and
allocations for all periods.
Any General Partner with a negative balance in its Capital Account upon the
winding up of the Partnership shall make a capital contribution in cash to the
Partnership to eliminate that negative balance before the later of (i) the end
of the taxable year during which such liquidation occurs or (ii) 90 days after
the date of such liquidation.
SECTION 12.02. TERMINATION. The Partnership shall terminate when all of
the assets of the Partnership have been distributed in the manner provided for
in this Article XII, and the Certificate of Limited Partnership shall have been
cancelled in the manner required by the Michigan Act.
SECTION 12.03. DUTY OF CARE. The General Partner or the Liquidating
Trustee, as the case may be, shall not be liable to the Partnership or any
Partner for any loss attributable to any act or omission of the General Partner
taken in good faith in connection with the liquidation of the Partnership and
distribution of its assets in belief that such course of conduct was in the
best interest of the Partnership. The General Partner
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or the Liquidating Trustee, as the case may be, may consult with counsel and
accountants with respect to liquidating the partnership and distributing its
assets and shall be justified in acting or omitting to act in accordance with
the written opinion of such counsel or accountants, provided they shall have
been selected with reasonable care.
SECTION 12.04. NO LIABILITY FOR RETURN OF CAPITAL. The General Partner and
its respective officers, directors, members, shareholders, employees,
representatives, agents, partners and Affiliates shall not be personally liable
for the return of the contributions of any Partner to the Partnership. No
Limited Partner shall be obligated to restore to the Partnership any amount
with respect to a negative Capital Account.
ARTICLE XIII - PREFERRED PARTNER INTERESTS
SECTION 13.01. PREFERRED PARTNER INTERESTS.
(a) The aggregate number of Preferred Partner Interests which the
Partnership shall have authority to issue is unlimited. Each series of
Preferred Partner Interests shall rank equally and all Preferred Partner
Interests shall rank senior to all other Interests in respect of the right to
receive distributions and the right to receive payments out of the assets of
the Partnership upon voluntary or involuntary dissolution and winding up of the
Partnership. The issuance of any Interests ranking senior to the Preferred
Partner Interests shall be deemed to materially adversely affect the rights of
the Preferred Partner Interests under this Agreement.
(b) The General Partner on behalf of the Partnership is authorized to issue
Preferred Partner Interests, in one or more series, having such designations,
rights, privileges, restrictions, and other terms and provisions, whether in
regard to distributions, return of capital or otherwise, as may from time to
time be established in a written action or actions (each, an "Action") of the
General Partner providing for the issue of such series. In connection with the
foregoing, the General Partner is expressly authorized, prior to issuance, to
set forth in an Action or Actions providing for the issue of such series, the
following:
(i) The distinctive designation of such series which shall distinguish it
from other series;
(ii) The number of Preferred Partner Interests included in such series,
which number may be increased or decreased from time to time unless otherwise
provided by the General Partner in creating the series;
(iii) The distribution rate (or method of determining such rate) for
Preferred Partner Interests of
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such series and the date or dates upon which such distributions shall be
payable;
(iv) Whether distributions on Preferred Partner Interests of such series
shall be cumulative, and, in the case of Preferred Partner Interests of any
series having cumulative distribution rights, the date or dates or method of
determining the date or dates from which distributions on Preferred Partner
Interests of such series shall be cumulative;
(v) The amount or amounts which shall be paid out of the assets of the
Partnership to the holders of such series of Preferred Partner Interests upon
voluntary or involuntary liquidation, dissolution, winding up or termination
of the Partnership;
(vi) The price or prices at which (the "Redemption Price"), the period or
periods within which and the terms and conditions upon which the Preferred
Partner Interests of such series may be redeemed or purchased, in whole or in
part, at the option of the Partnership or the General Partner;
(vii) The obligation, if any, of the Partnership to purchase or redeem
Preferred Partner Interests of such series pursuant to a sinking fund or
otherwise and the price or prices at which, the period or periods within
which and the terms and conditions upon which the Preferred Partner Interests
of such series shall be purchased or redeemed, in whole or in part, pursuant
to such obligation;
(viii) The period or periods within which and the terms and conditions,
if any, including the price or prices or the rate or rates of conversion or
exchange and the terms and conditions of any adjustments thereof, upon which
the Preferred Partner Interests of such series shall be convertible or
exchangeable at the option of the Preferred Partner, or the Partnership, into
any other Interests or securities or other property or cash or into any other
series of Preferred Partner Interests;
(ix) The voting rights, if any, of the Preferred Partner Interests of
such series in addition to those required by law or set forth herein, and any
requirement for the approval by the holders of Preferred Partner Interest, or
of the Preferred Partner Interests of one or more series, or of both, as a
condition to specified Action or amendments to this Agreement;
(x) The additional amounts, if any, which the Partnership will pay as a
distribution as necessary in order that the net amounts received by the
Preferred Partners who hold such series of Preferred Partner Interests after
withholding or deduction of certain taxes, duties, assessments or
governmental charges will equal the amount which would have been receivable
in respect of such Preferred Partner Interests in the absence of such
withholding or deduction ("Additional Amounts"); and
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(xi) Any other relative rights, powers, preferences, privileges,
limitations or restrictions of the Preferred Partner Interests of the series
not inconsistent with this Agreement or with applicable law.
In connection with the foregoing and without limiting the generality
thereof, the General Partner is hereby expressly authorized, without the vote
or approval of any other Partner, to take any Action to create under the
provisions of this Agreement a series of Preferred Partner Interests that was
not previously outstanding. Without the vote or approval of any other Partner,
the General Partner may execute, swear to, acknowledge, deliver, file and
record whatever documents may be required in connection with the issue from
time to time of Preferred Partner Interests in one or more series as shall be
necessary, convenient or desirable to reflect the issue of such series. The
General Partner shall do all things it deems to be appropriate or necessary to
comply with the Michigan Act and is authorized and directed to do all things it
deems to be necessary or permissible in connection with any future issuance,
including compliance with any statute, rule, regulation or guideline of any
Federal, state or other governmental agency or any securities exchange.
Any Action or Actions taken by the General Partner pursuant to the
provisions of this paragraph (b) shall be deemed an amendment and supplement to
and part of this Agreement.
(c) Except as otherwise provided in this Agreement or in any Action in
respect of any series of the Preferred Partner Interests and as otherwise
required by law, all rights to the management and control of the Partnership
shall be vested exclusively in the General Partner.
(d) No holder of Interests shall be entitled as a matter of right to
subscribe for or purchase, or have any preemptive right with respect to, any
part of any new or additional issue of Interests of any class or series
whatsoever, or of securities convertible into any Interests of any class or
series whatsoever, whether now or hereafter authorized and whether issued for
cash or other consideration or by way of distribution. Any Person acquiring
Preferred Partner Interests shall be admitted to the partnership as a Preferred
Partner upon compliance with Section 2.06.
SECTION 13.02. TERMS OF ALL PREFERRED PARTNER INTERESTS. Notwithstanding
anything else in any Action to the contrary, all Preferred Partner Interests of
the Partnership shall have the following voting rights, preferences,
participating, optional and other special rights and the qualifications,
limitations or restrictions of, and other matters relating to, the Preferred
Partner Interests as set forth below in this Section 13.02.
(a) Distributions.
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(i) The Preferred Partners shall be entitled to receive, when, as and if
declared by the General Partner out of funds held by the Partnership to the
extent that the Partnership has cash on hand sufficient to permit such
payments and funds legally available therefor, cumulative cash distributions
at a rate per annum established by the General Partner, calculated on the
basis of a 360-day year consisting of twelve (12) months of thirty (30) days
each, and for any period shorter than a full monthly distribution period,
distributions will be computed on the basis of the actual number of days
elapsed in such period, and payable in United States dollars monthly in
arrears on the last day of each calendar month of each year. In the event
that any date on which distributions are payable on the Preferred Partner
Interests is not a Business Day, then payment of the distribution payable on
such date will be made on the next succeeding day which is a Business Day
(and without any interest or other payment in respect of any such delay)
except that, if such Business Day is in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business Day, in each
case with the same force and effect as if made on such date. Such
distributions will accrue and be cumulative from the original date of issue
whether or not they have been declared and whether or not there are profits,
surplus or other funds of the Partnership legally available for the payment
of distributions, or whether they are deferred.
(ii) If distributions have not been paid in full on any series of
Preferred Partner Interests, the Partnership may not:
(A) pay or declare and set aside for payment any distributions on any
other series of Preferred Partner Interests, unless the amount of any
distributions paid on any Preferred Partner Interests is paid on all
Preferred Partner Interests then outstanding on a pro rata basis, on the
date such distributions are paid, so that
(1) (x) the aggregate amount of distributions paid on such series of
Preferred Partner Interests bears to (y) the aggregate amount of
distributions paid on all such Preferred Partner Interests outstanding
the same ratio as
(2) (x) the aggregate of all accumulated arrears of unpaid
distributions in respect of such series of Preferred Partner Interests
bears to (y) the aggregate of all accumulated arrears of unpaid
distributions in respect of such Preferred Partner Interests
outstanding;
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(B) pay any distribution on any Interest of any General Partner; or
(C) redeem, purchase or otherwise acquire any other Preferred Partner
Interests or any Interest of any General Partner;
until, in each case, such time as all accumulated and unpaid distributions
on all series of Preferred Partner Interests shall have been paid in full
for all distribution periods terminating on or prior to, in the case of
clauses (A) and (B), such payment and, in the case of clause (C), the date
of such redemption, purchase or acquisition.
(b) Redemption.
(i) By their acceptance of Preferred Partner Interests, holders of
Preferred Partner Interests shall be deemed to have acknowledged and
agreed that, with respect to any series of Preferred Partner Interests the
proceeds of the sale of which will be used by the Partnership to purchase
Subordinated Debentures that may be redeemed by MCN Corporation in its
discretion at any time (under certain circumstances), MCN Corporation
shall have all rights under the Indenture to redeem such Subordinated
Debentures and may redeem such Subordinated Debentures in its discretion,
notwithstanding the fact that redemption of such Subordinated Debentures
will require the Partnership to redeem Preferred Partner Interests of such
series.
(ii) Notice of any redemption (a "Notice of Redemption") of the
Preferred Partner Interests will be given by the Partnership by mail or
delivery to each record holder of Preferred Partner Interests to be
redeemed not fewer than thirty (30) nor more than sixty (60) days prior to
the date fixed for redemption thereof. For purposes of the calculation of
the date of redemption and the dates on which notices are given pursuant
to this paragraph (b)(i), a Notice of Redemption shall be deemed to be
given on the day such notice is first mailed by first-class mail, postage
prepaid, or on the date it was delivered in person, receipt acknowledged
to the holders of such Preferred Partner Interests. Each Notice of
Redemption shall be addressed to the record holders of the Preferred
Partner Interests at the address of the holder appearing in the books and
records of the Partnership. No defect in the Notice of Redemption or in
the mailing or
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delivery thereof or publication of its contents shall affect the validity
of the redemption proceedings.
(iii) The Partnership may not redeem fewer than all Preferred Partner
Interests of any given series unless all accrued and unpaid dividends on
such series have been paid on all Preferred Partner Interests of such
series for all dividend periods terminating on or prior to the date of
redemption. Subject to applicable law, MCN Corporation or its
subsidiaries may at any time and from time to time purchase outstanding
Preferred Partner Interests by tender, in the open market or by private
agreement. If a partial redemption of outstanding Preferred Partner
Interests would result in a delisting of a series of Preferred Partner
Interests from any national securities exchange on which the series of
Preferred Partner Interests is then listed, the Partnership may then only
redeem the series of Preferred Partner Interests in whole.
(iv) If Notice of Redemption shall have been given and payment shall
have been made by the Partnership to the record holders of the Preferred
Partner Interests, then immediately prior to the close of business on the
date of such payment, all rights of the Preferred Partner Interest Owners
or holders of such Preferred Partner Interests so called for redemption
will cease, except the right of the holders of such securities to receive
the Redemption Price, but without interest on such Redemption Price. In
the event that any date fixed for redemption of Preferred Partner
Interests is not a Business Day, then payment of the Redemption Price
payable on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any
such delay), except that, if such Business Day falls in the next calendar
year, such payment will be made on the immediately preceding Business Day.
In the event that payment of the Redemption Price in respect of Preferred
Partner Interests is improperly withheld or refused and not made either by
the Partnership or by MCN Corporation pursuant to the Guarantee, dividends
on such Preferred Partner Interests will continue to accrue at the then
applicable rate, from the original redemption date to the date of payment,
in which case the actual payment date will be considered the date fixed
for redemption for purposes of calculating the Redemption Price.
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(c) Liquidation Distribution. If, upon any voluntary or involuntary
liquidation, dissolution, winding-up or termination of the Partnership, the
Liquidation Distribution on any series of Preferred Partner Interests can be
paid only in part because the Partnership has insufficient assets available to
pay in full the aggregate Liquidation Distribution on all Preferred Partner
Interests, then the amounts payable directly by the Partnership on such series
of Preferred Partner Interests and on all other series of Preferred Partner
Interests shall be paid on a pro rata basis, so that
(i) the aggregate amount paid in respect of the Liquidation
Distribution bears to the aggregate amount paid as liquidation
distributions on all other Preferred Partner Interests the same ratio as
(ii) the aggregate Liquidation Distribution bears to the aggregate
maximum liquidation distributions on the other series of Preferred Partner
Interests.
If any Liquidation Distribution shall not be made in cash, the holders of
Preferred Partner Interests of each series shall receive the corresponding
series of Subordinated Debentures held by the Partnership and purchased with
the proceeds of each such series of Preferred Partner Interests in accordance
with the preceding sentence.
(d) Voting Rights. The Limited Partners shall not have any right to vote
on matters concerning the Partnership except as specifically set forth in this
Agreement, in the Guarantee or as otherwise required by law. If (i) the
Partnership fails to pay dividends in full on any series of Preferred Partner
Interests for eighteen (18) consecutive monthly dividend periods; (ii) an Event
of Default (as defined in the Indenture) occurs and is continuing on any series
of Subordinated Debentures; or (iii) MCN Corporation is in default on any of
its payment or other obligations under the Guarantee, then the holders of the
Preferred Partner Interests of such series, together with the holders of any
other series of Preferred Partner Interests having the right to vote for the
appointment of a special representative of the Partnership and the Limited
Partners (a "Special Representative") in such event, acting as a single class,
will be entitled by the majority vote of such holders to appoint a Special
Representative and, if an Event of Default occurs, the Special Representative
shall be authorized to enforce the Partnership's creditor rights under the
Subordinated Debentures of such series, to enforce the rights of the holders of
the Preferred Partner Interests of such series under the Guarantee and to
enforce the rights of the holders of the Preferred Partner Interests of such
series to receive dividends on the Preferred Partner Interests of such series.
The Special Representative shall not be admitted as a partner in the
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Partnership or otherwise be deemed to be a partner in the Partnership and shall
have no liability for the debts, obligations or liabilities of the Partnership.
For purposes of determining whether the Partnership has failed to pay dividends
in full for 18 consecutive monthly dividend periods, dividends shall be deemed
to remain in arrears, notwithstanding any payments in respect thereof, until
full cumulative dividends have been or contemporaneously are paid with respect
to all monthly dividend periods terminating on or prior to the date of payment
of such full cumulative dividends. Not later than 30 days after such right to
appoint a Special Representative arises, the General Partner will convene a
meeting for the purpose of appointing a Special Representative. If the General
Partner fails to convene such meeting within such 30-day period, the holders of
not less than 10% of the aggregate liquidation preference of the outstanding
Preferred Partner Interests will be entitled to convene such meeting. The
provisions of this Agreement relating to the convening and conduct of the
meetings of Partners will apply with respect to any such meeting. Any Special
Representative so appointed shall cease to be a Special Representative of the
Partnership and the Limited Partners if the Partnership (or MCN Corporation
pursuant to the Guarantee) shall have paid in full all accrued and unpaid
dividends on the Preferred Partner Interests or such default or breach, as the
case may be, shall have been cured and MCN Corporation, in its capacity as the
General Partner, shall continue the business of the Partnership without
dissolution. Notwithstanding the appointment of any such Special
Representative, MCN Corporation shall continue as General Partner and shall
retain all rights under the Indenture, including the right to extend the
interest payment period as provided therein.
In furtherance of the foregoing, and without limiting the powers of any
Special Representative so appointed and for the avoidance of any doubt
concerning the powers of the special Representative, if an Event of Default
occurs and is continuing, any Special Representative, in its own name and as
trustee of an express trust, may institute a proceeding, including, without
limitation, any suit in equity, an action at law or other judicial or
administrative proceeding, to enforce the Partnership's creditor rights
directly against MCN Corporation or any other obligor in connection with such
obligations to the same extent as the Partnership and on behalf of the
Partnership, and may pursue such proceeding to judgment or final decree, and
enforce the same against MCN Corporation or any other obligor in connection
with such obligations and collect, out of the property, wherever situated, of
MCN Corporation or any such other obligor upon such obligations, the monies
adjudged or decreed to be payable in the manner provided by law.
If any proposed amendment of this Agreement provides for, or the General
Partner otherwise proposes to effect (pursuant to an Action or otherwise), (i)
any action which would materially adversely affect the powers, preferences or
special
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rights of any series of Preferred Partner Interests, or (ii) the dissolution,
winding-up or termination of the Partnership, other than (x) in connection with
the distribution of Subordinated Debentures upon the occurrence of a Tax Event
or (y) as described in Section 13.02(e), then the holders of outstanding
Preferred Partner Interests will be entitled to vote on such amendment or
proposal of the General Partner (but not on any other amendment or proposal) as
a class with all other holders of Preferred Partner Interests similarly
affected, and such amendment or proposal shall not be effective except with the
approval of the holders of 66 2/3% or more of the aggregate liquidation
preference of the outstanding Preferred Partner Interests having a right to
vote on the matter; provided, however, that no such approval shall be required
if the dissolution, winding-up or termination of the Partnership is proposed or
initiated upon the initiation of proceedings, or after proceedings have been
initiated, for the dissolution, winding-up, liquidation or termination of MCN
Corporation. Except as otherwise provided under Section 11.02 or the Michigan
Act, the Partnership will be dissolved and wound up only with the consent of
the holders of all outstanding Preferred Partner Interests.
The rights attached to any series of Preferred Partner Interests will be
deemed not to be adversely affected by the creation or issue of, and no vote
will be required for the creation of, any additional series of Preferred
Partner Interests ranking pari passu with the Preferred Partner Interests of
such series with regard to participation in the profits and dividends or in the
assets of the Partnership.
So long as any Subordinated Debentures are held by the Partnership, the
General Partner shall not (i) direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or executing any trust
or power conferred on the Trustee with respect to such series, (ii) waive any
past default which is waivable under Section 513 of the Indenture, (iii)
exercise any right to rescind or annul a declaration that the principal of all
Subordinated Debentures shall be due and payable or (iv) consent to any
amendment, modification or termination of the Indenture, where such consent
shall be required, without, in each case, obtaining the prior approval of the
holders of at least 66 2/3% in liquidation preference of all series of
Preferred Partner Interests affected thereby, acting as a single class;
provided, however, that where a consent under the Indenture would require the
consent of each holder affected thereby, no such consent shall be given by the
General Partner without the prior consent of each holder of all series of
Preferred Partner Interests affected thereby. The General Partner shall not
revoke any action previously authorized or approved by a vote of any series of
Preferred Partner Interests. The General Partner shall notify all holders of
Preferred Partner Interests of any particular series of any notice of default
received from the Trustee with respect to the
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Subordinated Debentures purchased with the proceeds of the sale of that series
of Preferred Partner Interests.
Any required approval of Preferred Partner Interests may be given at a
separate meeting of such holders convened for such purpose, at a meeting of all
of the Partners or pursuant to written consent. The Partnership will cause a
notice of any meeting at which holders of any Preferred Partner Interests are
entitled to vote, or of any matter upon which action by written consent of such
holders is to be taken, to be mailed to each holder of Preferred Partner
Interests. Each such notice will include a statement setting forth (a) the
date of such meeting or the date by which such action is to be taken, (b) a
description of any resolution proposed for adoption at such meeting on which
such holders are entitled to vote or of such matter upon which written consent
is sought, and (c) instructions for the delivery of proxies or consents.
No vote or consent of the holders of the Preferred Partner Interests will be
required for the Partnership to redeem and cancel the Preferred Partner
Interests in accordance with this Agreement.
Notwithstanding that holders of Preferred Partner Interests are entitled to
vote or consent under any of the circumstances described above, any of the
Preferred Partner Interests that are owned by MCN Corporation or any entity
owned more than 20% by MCN Corporation, either directly or indirectly, shall
not be entitled to vote or consent and shall, for the purposes of such vote or
consent, be treated as if they were not outstanding.
(e) Mergers. The Partnership shall not consolidate, amalgamate, merge with
or into, or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any corporation or other body, except as
described below. The Partnership may, without the consent of the holders of
any series of Preferred Partner Interests, consolidate, amalgamate, merge with
or into, or be replaced by a limited partnership, limited liability corporation
or a trust organized as such under the laws of any state of the United States
of America; provided, that (i) such successor entity either (x) expressly
assumes all of the obligations of the Partnership under all series of Preferred
Partner Interests or (y) substitutes for the Preferred Partner Interests then
outstanding other securities having substantially the same terms as such
Preferred Partner Interests (the "Successor Securities") so long as the
Successor Securities rank, with respect to participation in the profits and
dividends or in the assets of the successor entity, at least as high as such
Preferred Partner Interests rank with respect to participation in the profits
and dividends or in the assets of the Partnership, (ii) MCN Corporation
expressly acknowledges such successor entity as the holder of the Subordinated
Debentures, (iii) any series of Preferred Partner Interests or any Successor
Securities are
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listed, or any Successor Securities will be listed upon notification of
issuance, on any national securities exchange or other organization on which
any series of Preferred Partner Interests are then listed, (iv) such merger,
consolidation, amalgamation or replacement does not cause any series of
Preferred Partner Interests (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization, (v)
such merger, consolidation, amalgamation or replacement does not adversely
affect the powers, preferences and other special rights of the holders of any
series of Preferred Partner Interests (including any Successor Securities) in
any material respect (other than with respect to any dilution of the holders'
interest in the new entity), (vi) such successor entity has a purpose
substantially identical to that of the Partnership and (vii) prior to such
merger, consolidation, amalgamation or replacement, MCN Corporation has
received an opinion of nationally recognized independent counsel to the
Partnership experienced in such matters to the effect that (x) such successor
entity will be treated as a partnership for federal income tax purposes, (y)
following such merger, consolidation, amalgamation or replacement, MCN
Corporation and such successor entity will be in compliance with the 1940 Act
without registering thereunder as an investment company and (z) such merger,
consolidation, amalgamation or replacement will not adversely affect the
limited liability of the holders of any series of Preferred Partner Interests.
(f) Subordination. Each Preferred Partner agrees (i) to the
subordination provisions applicable to the Subordinated Debentures, as set
forth in Article Fourteen of the Indenture, and (ii) to the subordination
provisions of the Guarantee set forth in Section 3.03 thereof.
ARTICLE XIV - TRANSFERS
SECTION 14.01. TRANSFERS OF PREFERRED PARTNER INTERESTS. Preferred Partner
Interests may be freely transferred by a Preferred Partner. No Interest shall
be transferred, in whole or in part, except in accordance with the terms and
conditions set forth in this Agreement. Any transfer or purported transfer of
any Interest not made in accordance with this Agreement shall be null and void.
SECTION 14.02. TRANSFER OF CERTIFICATES. The General Partner shall provide
for the registration of Certificates. Upon surrender for registration of
transfer of any Certificate, the General Partner shall cause one or more new
Certificates to be issued in the name of the designated transferee or
transferees. Every Certificate surrendered for registration of transfer shall
be accompanied by a written instrument of transfer and agreement to be bound by
the terms of this Agreement in form satisfactory to the General Partner duly
executed by the Preferred Partner or his attorney duly authorized in writing.
Each Certificate
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surrendered for registration of transfer shall be cancelled by the General
Partner. A transferee of a Certificate shall provide the Partnership with a
completed Form W-8 or such other documents or information as are requested by
the Partnership for tax reporting purposes and thereafter shall be admitted to
the Partnership as a Preferred Partner and shall be entitled to the rights and
subject to the obligations of a Preferred Partner hereunder upon the receipt by
such transferee of a Certificate. The transferor of a Certificate shall cease
to be a limited partner of the Partnership at the time that the transferee of
the Certificate is admitted to the Partnership as a Preferred Partner in
accordance with this Section 14.02.
SECTION 14.03. PERSONS DEEMED PREFERRED PARTNERS. The partnership may
treat the Person in whose name any Certificate shall be registered on the books
and records of the Partnership as the Preferred Partner and the sole holder of
such Certificate for purposes of receiving distributions and for all other
purposes whatsoever and, accordingly, shall not be bound to recognize any
equitable or other claims to or interest in such Certificate on the part of any
other Person, whether or not the Partnership shall have actual or other notice
thereof.
SECTION 14.04. BOOK ENTRY INTERESTS. The Certificates, on original
issuance, will be issued in the form of a typewritten Certificate or
Certificates representing the Book Entry Interests to be delivered to The
Depository Trust Company, the initial Clearing Agency, by, or on behalf of, the
partnership. Such Certificates shall initially be registered on the books and
records of the Partnership in the name of Cede & Co., the nominee of the
initial Clearing Agency, and no Preferred Partner Interest Owner will receive a
definitive Certificate representing such Preferred Partner Interest Owner's
interests in such Certificate, except as provided in Section 14.06. Unless and
until definitive, fully registered Certificates (the "Definitive Certificates")
have been issued to the Preferred Partner Interest Owners pursuant to Section
14.06:
(a) The provisions of this Section shall be in full force and effect;
(b) The Partnership and the General Partner shall be entitled to deal
with the Clearing Agency for all purposes of this Agreement (including the
payment of distributions on the Certificates and receiving approvals, votes or
consents hereunder) as the Preferred Partner and the sole holder of the
Certificates and shall have no obligations to the Preferred Partner Interest
Owners;
(c) The rights of the Preferred Partner Interest Owners shall be
exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Preferred Partner Interest
Owners and the Clearing Agency and/or the Clearing Agency Participants. Unless
or until
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the Definitive Certificates are issued pursuant to Section 14.06, the initial
Clearing Agency will make book entry transfers among the Clearing Agency
Participants and receive and transmit payments of distributions on the
Certificates to such Clearing Agency Participants;
(d) To the extent that the provisions of this Section conflict with any
other provisions of this Agreement, the provisions of this Section shall
control; and
(e) Whenever this Agreement requires or permits actions to be taken based
upon approvals, votes or consents of a percentage of the Preferred Partners,
the Clearing Agency shall be deemed to represent such percentage only to the
extent that it has received instructions to such effect from the Preferred
Partner Interest Owners and/or Clearing Agency Participants owning or
representing, respectively, such required percentage of the beneficial
interests in the Certificates and has delivered such instructions to the
General Partner.
SECTION 14.05. NOTICES TO CLEARING AGENCY. Whenever a notice or other
communication to the Preferred Partners is required under this Agreement,
unless and until Definitive Certificates shall have been issued pursuant to
Section 14.06, the General Partner shall give all such notices and
communications specified herein to be given to the Preferred Partners to the
Clearing Agency, and shall have no obligations to the Preferred Partner
Interest Owners.
SECTION 14.06. SUCCESSOR CLEARING AGENCY; DEFINITIVE CERTIFICATES. If any
Clearing Agency (including the initial Clearing Agency) shall cease to be
qualified under the Exchange Act or shall otherwise cease to act as depositary
for the Preferred Partner Interests, the General Partner may, in its
discretion, appoint a successor Clearing Agency to act in such capacity. If
(i) the Clearing Agency elects to discontinue its services as securities
depository and gives reasonable notice to the Partnership and no successor is
appointed, or (ii) the partnership elects to terminate the book entry system
through the Clearing Agency, then the Definitive Certificates shall be prepared
by the partnership. Upon surrender of the typewritten Certificate or
Certificates representing the Book Entry Interests by the Clearing Agency,
accompanied by registration instructions, the General Partner shall cause the
Definitive Certificates to be delivered to the Preferred Partner Interest
Owners in accordance with the instructions of the Clearing Agency. The General
Partner shall not be liable for any delay in delivery of such instructions and
may conclusively rely on, and shall be protected in relying on, such
instructions. Any Person receiving a Definitive Certificate in accordance with
this Article XIV shall be admitted to the Partnership as a Preferred Partner
upon receipt of such Definitive Certificate. The Clearing Agency or the
nominee of the Clearing Agency, as the case may be, shall cease to be a Limited
Partner of the Partnership under this
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Section 14.06 at the time that at least one additional Person is admitted to
the Partnership as a Preferred Partner in accordance with this Section 14.06.
The Definitive Certificates shall be printed, lithographed or engraved or may
be produced in any other manner as is reasonably acceptable to the General
Partner, as evidenced by its execution thereof. The General Partner will
appoint a registrar, transfer agent and paying agent for the Preferred Partner
Interests. Registration of transfers of Preferred Partner Interests will be
effected without charge by or on behalf of the Partnership, but upon payment of
any tax or other governmental charges which may be imposed in relation to it.
The Partnership will not be required to register or cause to be registered the
transfer of Preferred Partner Interests after such Preferred Partner Interests
have been called for redemption.
ARTICLE XV - GENERAL
SECTION 15.01. POWER OF ATTORNEY. (a) The Class A Limited Partner and each
Preferred Partner constitutes and appoints the General Partner and the
Liquidating Trustee as its true and lawful representative and attorney-in-fact,
in its name, place and stead, to make, execute, sign, acknowledge and deliver
or file (i) all instruments, documents and certificates which may from time to
time be required by any law to effectuate, implement and continue the valid and
subsisting existence of the partnership, (ii) all instruments, documents and
certificates that may be required to effectuate the dissolution and termination
of the Partnership in accordance with the provisions hereof and Michigan law,
(iii) all other amendments of this Agreement or the Certificate of Limited
Partnership and other filings contemplated by this Agreement including, without
limitation, amendments reflecting the withdrawal of the General Partner, or the
return, in whole or in part, of the contribution of any Partner, or the
addition, substitution or increased contribution of any Partner, or any action
of the Partners duly taken pursuant to this Agreement whether or not such
Partner voted in favor of or otherwise approved such action, and (iv) any other
instrument, certificate or document required from time to time to admit a
Partner, to effect its substitution as a Partner, to effect the substitution of
the Partner's assignee as a Partner or to reflect any action of the Partners
provided for in this Agreement.
(b) The powers of attorney granted herein (i) shall be deemed to be
coupled with an interest, shall be irrevocable and shall survive the death,
insanity, incompetency or incapacity (or, in the case of a Partner that is a
corporation, association, partnership, limited liability company or trust,
shall survive the merger, dissolution or other termination of existence) of the
Partner and (ii) shall survive the assignment by the Partner of the whole or
any portion of his Interest, except that where the assignee of the whole or any
portion thereof has furnished a power of attorney, this power of
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attorney shall survive such assignment for the sole purpose of enabling the
General Partner and the Liquidating Trustee to execute, acknowledge and file
any instrument necessary to effect any permitted substitution of the assignee
for the assignor as a Partner and shall thereafter terminate. In the event
that the appointment conferred in this Section 15.01 would not constitute a
legal and valid appointment by any Partner under the laws of the jurisdiction
in which such Partner is incorporated, established or resident, upon the
request of the General Partner or the Liquidating Trustee, such Partner shall
deliver to the General Partner or the Liquidating Trustee a properly
authenticated and duly executed document constituting a legal and valid power
of attorney under the laws of the appropriate jurisdiction covering the matters
set forth in this Section 15.01.
(c) The General Partner may require a power of attorney to be executed by
a transferee of a Partner as a condition of its admission as a substitute
Partner.
SECTION 15.02. WAIVER OF PARTITION. Each Partner hereby irrevocably waives
any and all rights that it may have to maintain an action for partition of any
of the Partnership's property or assets.
SECTION 15.03. NOTICES. Any notice permitted or required to be given
hereunder shall be in writing and shall be deemed given (i) on the day the
notice is first mailed to a Partner by first class mail, postage prepaid, or
(ii) on the date it was delivered in person to a Partner, receipt acknowledged,
at its address appearing on the books and records of the Partnership. Another
address may be designated by a Partner by such Partner giving notice of its new
address as provided in this Section 15.03.
SECTION 15.04. ENTIRE AGREEMENT. This Agreement, including the exhibits
annexed hereto and incorporated by reference herein, contains the entire
agreement of the parties hereto and supersedes all prior agreements and
understandings, oral or otherwise, among the parties hereto with respect to the
matters contained herein.
SECTION 15.05. WAIVERS. Except as otherwise expressly provided herein, no
purported waiver by any party of any breach by another party of any of his
obligations, agreements or covenants hereunder, or any part thereof, shall be
effective unless made in a writing executed by the party or parties sought to
be bound thereby, and no failure to pursue or elect any remedy with respect to
any default under or breach of any provision of this Agreement, or any part
hereof, shall be deemed to be a waiver of any other subsequent similar or
different default or breach, or any election of remedies available in
connection therewith, nor shall the acceptance or receipt by any party of any
money or other consideration due him under this Agreement,
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with or without knowledge of any breach hereunder, constitute a waiver of any
provision of this Agreement with respect to such or any other breach.
SECTION 15.06. HEADINGS. The section headings herein contained have been
inserted only as a matter of convenience of reference and in no way define,
limit or describe the scope or intent of any provisions of this Agreement nor
in any way affect any such provisions.
SECTION 15.07. SEPARABILITY. Each provision of this Agreement shall be
considered to be separable, and if, for any reason, any such provision or
provisions, or any part thereof, is determined to be invalid and contrary to
any existing or future applicable law, such invalidity shall not impair the
operation of, or affect, those portions of this Agreement which are valid, and
this Agreement shall be construed and enforced in all respects as if such
invalid or unenforceable provision or provisions had been omitted.
SECTION 15.08. CONTRACT CONSTRUCTION. Whenever the content of this
Agreement permits, the masculine gender shall include the feminine and neuter
genders, and reference to singular or plural shall be interchangeable with the
other. References in this Agreement to particular sections of the Code or to
provisions of the Michigan Act shall be deemed to refer to such sections or
provisions as they may be amended after the date of this Agreement.
SECTION 15.09. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and each of such counterparts for all purposes shall be deemed to
be an original, but all of such counterparts, when taken together, shall
constitute but one and the same instrument, binding upon all parties hereto,
notwithstanding that all of such parties may not have executed the same
counterpart.
SECTION 15.10. BENEFIT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns,
but shall not be deemed for the benefit of creditors or any other Persons, nor
shall it be deemed to permit any assignment by a Partner of any of its rights
or obligations hereunder except as expressly provided herein.
SECTION 15.11. FURTHER ACTIONS. Each of the Partners hereby agrees that it
shall hereafter execute and deliver such further instruments and do such
further acts and things as may be required or useful to carry out the intent
and purposes of this Agreement and as are not inconsistent with the terms
hereof.
SECTION 15.12. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the substantive laws of the State of Michigan,
without regard to conflicts of laws.
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SECTION 15.13. AMENDMENTS. Except as otherwise expressly provided herein
or as otherwise required by law, this Agreement or any Action may only be
amended by a written instrument executed by the General Partner provided,
however, that any amendment which would adversely affect the powers,
preferences or special rights of any series of Preferred Partner Interests may
be effected only as permitted by the terms of such series of Preferred Partner
Interests.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
GENERAL PARTNER:
MCN CORPORATION
___________________________
Name:
Title:
CLASS A LIMITED PARTNER,
solely to reflect its
withdrawal from the
Partnership:
MCN FINANCE CORPORATION
____________________________
Name:
Title:
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<PAGE> 1
EXHIBIT 4.8
PAYMENT AND GUARANTEE AGREEMENT
THIS PAYMENT AND GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as of
_______________, 1994, is executed and delivered by MCN Corporation, a Michigan
corporation (the "Guarantor"), for the benefit of the Holders (as defined
below) from time to time of the Series A Preferred Securities (as defined
below) of MCN Michigan Limited Partnership, a Michigan limited partnership
("MCN Michigan").
WHEREAS, MCN Michigan is issuing on the date hereof $ ____________________
aggregate stated liquidation preference of limited partner interests of a
series designated the ___ % Cumulative Preferred Securities, Series A
(the "Series A Preferred Securities"), and the Guarantor desires to enter into
this Guarantee Agreement for the benefit of the Holders, as provided herein;
WHEREAS, MCN Michigan will loan the proceeds from the issuance and sale of
the Series A Preferred Securities and the related capital contribution of the
General Partner to MCN Michigan (the "G.P. Capital Contribution") to the
Guarantor, and the Guarantor will issue Subordinated Debentures in accordance
with the Indenture (as such terms are defined below) to evidence such loan; and
WHEREAS, the Guarantor desires to irrevocably and unconditionally agree to
the extent set forth herein to pay to the Holders the Guarantee Payments (as
defined below) and to make certain other undertakings on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and other consideration,
receipt of which is hereby acknowledged, the Guarantor, intending to be legally
bound hereby, agrees as follows:
ARTICLE I
As used in this Guarantee Agreement, each term set forth below shall, unless
the context otherwise requires, have the following meaning. Each capitalized
term used but not otherwise defined herein shall have the meaning assigned to
such term in the Amended and Restated Limited Partnership Agreement of MCN
Michigan dated as of _______________, 1994 (the "Limited Partnership
Agreement").
"Board Resolution" means the resolution of the committee of the Board of
Directors of the Guarantor dated , 1994 relating to the
Guarantor's ______% Junior Subordinated Deferrable Interest Debt Securities,
Series A, Due ___ (the "Series A Subordinated Debentures").
<PAGE> 2
"Extension Period" has the meaning specified in the Board Resolution.
"Guarantee Payments" shall mean the following payments, without duplication,
to the extent not paid by MCN Michigan: (i) any accrued and unpaid dividends
which are required to be paid on the Series A Preferred Securities, to the
extent MCN Michigan shall have funds legally available therefor, (ii) the
Redemption Price (as defined below) payable out of funds legally available
therefor with respect to any Series A Preferred Securities called for
redemption by MCN Michigan and (iii) upon a liquidation of MCN Michigan, the
lesser of (a) the Liquidation Distribution (as defined below) and (b) the
amount of assets of MCN Michigan available for distribution to Holders in
liquidation of MCN Michigan.
"Holder" shall mean any person in whose name a Series A Preferred Security
is registered on the registration books maintained by MCN Michigan; provided,
however, that in determining whether the Holders of the requisite percentage of
Series A Preferred Securities have given any request, notice, consent or waiver
hereunder, "Holder" shall not include the Guarantor or any entity owned more
than 50% by the Guarantor, either directly or indirectly.
"Indenture" shall mean the Indenture, dated September 1, 1994, between
the Guarantor and NBD Bank, N.A. and the Board Resolution, pursuant to which
the Guarantor has issued its Series A Subordinated Debentures in an amount
equal to the aggregate stated liquidation preference of the Series A Preferred
Securities and the G.P. Capital Contribution.
"Liquidation Distribution" shall mean the aggregate of the stated
liquidation preference of $25 per Series A Preferred Security and all unpaid
dividends to the date of payment.
"Redemption Price" shall mean the aggregate of $25 per Series A Preferred
Security and all unpaid dividends to the date fixed for redemption.
"Special Representative" shall mean any representative of the holders of the
limited partner interests of MCN Michigan appointed pursuant to Section
13.02(d) of the Limited Partnership Agreement.
ARTICLE II
SECTION 2.01. The Guarantor hereby irrevocably and unconditionally agrees to
pay in full to the Holders the Guarantee Payments, as and when due (except to
the extent paid by MCN Michigan), to the fullest extent permitted by law,
regardless of any defense, right of set-off or counterclaim which the Guarantor
may have or assert against MCN Michigan or the General Partner. The
Guarantor's obligation to make a Guarantee Payment
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may be satisfied by direct payment by the Guarantor to the Holders or by
payment of such amounts by MCN Michigan to the Holders. Notwithstanding
anything to the contrary herein, the Guarantor retains all of its rights under
the Indenture to extend the interest payment period on the Series A
Subordinated Debentures and the Guarantor shall not be obligated hereunder to
pay during an Extension Period any monthly distributions on the Series A
Preferred Securities.
SECTION 2.02. The Guarantor hereby waives notice of acceptance of this
Guarantee Agreement and of any liability to which it applies or may apply,
presentment, demand for payment, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
SECTION 2.03. Except as otherwise set forth herein, the obligations,
covenants, agreements and duties of the Guarantor under this Guarantee
Agreement shall in no way be affected or impaired by reason of the happening
from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by MCN Michigan of any express or implied
agreement, covenant, term or condition relating to the Series A Preferred
Securities to be performed or observed by MCN Michigan;
(b) the extension of time for the payment by MCN Michigan of all or any
portion of the dividends (other than an extension of time for the payment of
dividends that results from the extension of the interest payment period on
the Series A Subordinated Debentures), Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Series A
Preferred Securities or the extension of time for the performance of any
other obligation under, arising out of, or in connection with, the Series A
Preferred Securities;
(c) any failure, omission, delay or lack of diligence on the parts of the
Holders or the Special Representative to enforce, assert or exercise any
right, privilege, power or remedy conferred on the Holders or the Special
Representative pursuant to the terms of the Series A Preferred Securities, or
any action on the part of MCN Michigan granting indulgence or extension of
any kind;
(d) the voluntary or involuntary liquidation, dissolution, receivership,
insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, MCN Michigan or any of the assets of MCN
Michigan;
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<PAGE> 4
(e) any invalidity of, or defect or deficiency in, any of the Series A
Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstances whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 2.03 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation to the Holders to give notice to, or obtain the
consent of, the Guarantor with respect to the occurrence of any of the
foregoing.
SECTION 2.04. The Guarantor expressly acknowledges that (i) this Guarantee
Agreement will be deposited with the General Partner to be held for the benefit
of the Holders; (ii) in the event of the appointment of a Special
Representative, the Special Representative may enforce this Guarantee Agreement
and may take possession of this Guarantee Agreement for such purpose; (iii) if
no Special Representative has been appointed, the General Partner has the right
to enforce this Guarantee Agreement on behalf of the Holders; (iv) the Holders
of not less than 10% in aggregate stated liquidation preference of the Series A
Preferred Securities have the right to direct the time, method and place of
conducting any proceeding or any remedy available in respect of this Guarantee
Agreement including the giving of directions to the General Partner or the
Special Representative as the case may be; and (v) if the General Partner or
Special Representative fails to enforce this Guarantee Agreement as above
provided any Holder may institute a legal proceeding directly against the
Guarantor to enforce its rights under this Guarantee Agreement, without first
instituting a legal proceeding against MCN Michigan or any other person or
entity.
SECTION 2.05. This is a guarantee of payment and not of collection. A
Holder or the Special Representative may enforce this Guarantee Agreement
directly against the Guarantor, and the Guarantor will waive any right or
remedy to require that any action be brought against MCN Michigan or any other
person or entity before proceeding against the Guarantor. The Guarantor agrees
that this Guarantee Agreement shall not be discharged except by payment of the
Guarantee Payments in full (to the extent not paid by MCN Michigan) and by
complete performance of all obligations of the Guarantor contained in this
Guarantee Agreement.
SECTION 2.06. The Guarantor will be subrogated to all rights of the Holders
against MCN Michigan in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement and shall have the right to waive
payment by MCN Michigan pursuant to Section 2.01; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) exercise any rights which it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of a
payment under this Guarantee Agreement, if, at the time of any such payment,
any amounts remain due and unpaid under this Guarantee Agreement. If
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<PAGE> 5
any amount shall be paid to the Guarantor in violation of the preceding
sentence, the Guarantor agrees to pay over such amount to the Holders.
SECTION 2.07. The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of MCN Michigan with respect to the Series A
Preferred Securities and that the Guarantor shall be liable as principal and
sole debtor hereunder to make Guarantee Payments pursuant to the terms of this
Guarantee Agreement notwithstanding the occurrence of any event referred to in
subsections (a) through (f), inclusive, of Section 2.03 hereof.
ARTICLE III
SECTION 3.01. So long as any Series A Preferred Securities remain
outstanding, the Guarantor shall not declare or pay any dividend on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of its
capital stock if at such time the Guarantor shall be in default with respect to
its payment or other obligations hereunder or there shall have occurred any
event that, with the giving of notice or the lapse of time or both, would
constitute an Event of Default under the Indenture.
SECTION 3.02. So long as any Series A Preferred Securities are outstanding,
the Guarantor agrees to maintain its corporate existence; provided that the
Guarantor may consolidate with or merge with or into, or sell, convey, transfer
or lease all or substantially all of its assets (either in one transaction or a
series of transactions) to, any person, corporation, partnership, limited
liability company, joint venture association, joint stock company, trust or
unincorporated association if such entity formed by or surviving such
consolidation or merger or to which such sale, conveyance, transfer or lease
shall have been made, if other than the Guarantor, (i) is organized and
existing under the laws of the United States of America or any state thereof or
the District of Columbia, and (ii) shall expressly assume all the obligations
of the Guarantor under this Agreement.
SECTION 3.03. This Guarantee Agreement will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right
of payment to all other liabilities of the Guarantor, (ii) pari passu with the
most senior preferred or preference stock now or hereafter issued by the
Guarantor and with any guarantee now or hereafter entered into by the Guarantor
in respect of any preferred or preference stock of any affiliate of the
Guarantor and (iii) senior to the Guarantor's common stock.
ARTICLE IV
This Guarantee Agreement shall terminate and be of no further force and
effect upon full payment of the Redemption Price of all Series A Preferred
Securities or upon full payment
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of the amounts payable to the Holders upon liquidation of MCN Michigan;
provided, however, that this Guarantee Agreement shall continue to be effective
or shall be reinstated, as the case may be, if at any time any Holder must
restore payments of any sums paid under the Series A Preferred Securities or
under this Guarantee Agreement for any reason whatsoever.
ARTICLE V
SECTION 5.01. All guarantees and agreements contained in this Guarantee
Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders.
Except as provided in Section 3.02, the Guarantor may not assign its
obligations hereunder without the prior approval of the Holders of not less
than 66 2/3% of the aggregate stated liquidation preference of all Series A
Preferred Securities then outstanding.
SECTION 5.02. This Guarantee Agreement may only be amended by a written
instrument executed by the Guarantor; provided that, so long as any of the
Series A Preferred Securities remain outstanding, any such amendment that
adversely affects the holders of Series A Preferred Securities, any termination
of this Guarantee Agreement and any waiver of compliance with any covenant
hereunder shall be effected only with the prior approval of the holders of not
less than 66 2/3% of the aggregate liquidation preference of all Series A
Preferred Securities then outstanding.
SECTION 5.03. All notices, requests or other communications required or
permitted to be given hereunder to the Guarantor shall be deemed given if in
writing and delivered personally or by recognized overnight courier or express
mail service or by facsimile transmission (confirmed in writing) or by
registered or certified mail (return receipt requested), addressed to the
Guarantor at the following address (or at such other address as shall be
specified by notice to the Holders):
MCN Corporation
500 Griswold Street
Detroit, Michigan 48226
Facsimile No.: (313) 256-5871
Attention: Treasurer
All notices, requests or other communications required or permitted to be
given hereunder to the Holders shall be deemed given if in writing and
delivered by the Guarantor in the same manner as notices sent by MCN Michigan
to the Holders.
SECTION 5.04. This Guarantee Agreement is solely for the benefit of the
Holders and is not separately transferable from the Series A Preferred
Securities.
-6-
<PAGE> 7
SECTION 5.05. THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO CONFLICT OF LAW PRINCIPLES THEREOF.
IN WITNESS WHEREOF, the undersigned has executed and delivered this Guarantee
Agreement as of the day and year first above written.
MCN CORPORATION
By:______________________
Name:
Title:
-7-
<PAGE> 1
EXHIBIT 5-1
September 29, 1994
MCN Corporation
500 Griswold Street
Detroit, Michigan 48226
Ladies and Gentlemen:
I am acting as counsel for MCN Corporation ("MCN"), a Michigan corporation
and MCN Michigan Limited Partnership, a Michigan limited partnership (the
"Partnership") in connection with the registration of up to $300,000,000 of
Offered Securities to be offered on a continuous or delayed basis pursuant to
the provisions of Rule 415. The Offered 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 (the "SEC") on September 29,
1994. 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 corporate
records and other documents and certificates as I have deemed necessary.
Based upon the above, I am of the opinion that:
1. MCN is a corporation duly organized and validly existing under and
pursuant to the laws of the State of Michigan. The Partnership has been
duly formed and is validly existing as a limited partnership under the laws
of the State of Michigan.
2. The Debt Securities and MCN Common Stock, which are covered by the
Registration Statement, when sold will be legally issued by MCN, duly
authorized, fully paid and non-assessable and in the case of Debt
Securities, will be binding obligations of MCN. The Preferred Securities,
which are covered by the Registration Statement, when sold will be fully
paid and, assuming that the Preferred Partners as limited partners of the
Partnership do not participate in the control of the business of the
Partnership, non-assessable limited partner interests in the Partnership.
I hereby consent to the use of this opinion as Exhibit 5 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
Vice President, General
Counsel & Secretary
MCN Corporation
<PAGE> 1
(SIDLEY & AUSTIN LETTERHEAD)
EXHIBIT 8-1
September 29, 1994
MCN Michigan Limited Partnership
500 Griswold Street
Detroit, MI 48226
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special tax counsel for MCN Michigan Limited Partnership,
a Michigan limited partnership ("MCN Michigan"), and MCN Corporation, a
Michigan Corporation, in connection with the registration statement on Form
S-3 (the "Registration Statement") being filed by MCN Michigan and MCN
Corporation with the Securities and Exchange Commission under the Securities
Act of 1933 with respect to Cumulative Preferred Securities, Series A
(liquidation preference $25 per Series A Preferred Security) ( the "Series A
Preferred Securities").
In that connection, we have examined originals, or copies certified or
otherwise identified to our satisfaction, of such documents, corporate records
and other instruments as we have deemed necessary for the purpose of this
opinion. Based upon the foregoing, we are of the opinion that the description
set forth under the captions "Investment Copnsiderations -- Tax Event Redemption
or Distribution" and "United States Federal Income Taxation" in the Prospectus
Supplement included as a part of the Registration Statement correctly describe
material aspects of the United States federal income tax treatment to
investors, as of the date hereof, of an investment in the Series A Preferred
Securities.
We know that we are referred to under the heading "United States Federal
Income Taxation" in the Prospectus Supplement forming a part of the
Registration Statement, and we hereby consent to such use of our name in the
Registration Statement and to the use of this opinion for filing with the
Registration Statement as Exhibit 8-1 thereto.
Very truly yours,
/s/ SIDLEY & AUSTIN
<PAGE> 1
EXHIBIT 12-1
MCN CORPORATION AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES AND
RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
<TABLE>
<CAPTION>
TWELVE MONTHS
ENDED YEAR ENDED DECEMBER 31,
JUNE 30, 1994 -------------------------------------------------------
(UNAUDITED) 1993 1992 1991 1990 1989
--------------- -------- -------- -------- ------- --------
(IN THOUSANDS OF DOLLARS, EXCEPT RATIOS)
<S> <C> <C> <C> <C> <C> <C>
Earnings as Defined(1)
Pre-tax income(2).................. $ 130,307 $106,871 $ 85,997 $ 54,517 $50,543 $ 75,773
Fixed charges(3)................... 52,125 48,955 48,414 49,076 44,777 29,725
--------------- -------- -------- -------- ------- --------
Earnings as defined.............. $ 182,432 $155,826 $134,411 $103,593 $95,320 $105,498
=============== ========= ========= ========= ======== =========
Fixed Charges as Defined(1)
Interest, expensed................. $ 42,226 $ 38,728 $ 38,874 $ 39,686 $36,385 $ 24,880
Interest, capitalized.............. 2,429 3,966 1,650 737 1,211 833
Amortization of debt discounts,
premium and expense.............. 1,208 1,153 830 629 618 581
Interest implicit in rentals....... 7,146 6,350 6,298 6,804 5,732 2,057
Preferred stock dividend
requirements..................... 893 1,086 1,468 1,884 2,277 2,243
--------------- -------- -------- -------- ------- --------
Fixed charges as defined......... $ 53,902 $ 51,283 $ 49,120 $ 49,740 $46,223 $ 30,594
=============== ========= ========= ========= ======== =========
Ratio of Earnings to Fixed
Charges(4)....................... 3.38 3.04 2.74 2.08 2.06 3.45
=============== ========= ========= ========= ======== =========
</TABLE>
- - - -------------------------
NOTES:
(1) Earnings and fixed charges are defined and computed in accordance with
instructions for Item 3 of Form S-3.
(2) This amount represents the aggregate of (a) 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 for nonutility companies and, therefore, differ from fixed
charges as defined.
(4) MCN has authority to issue up to 25,000,000 shares of preferred stock, (no
par value) ("MCN Preferred Stock"), however, there are currently no shares
outstanding and MCN currently does not have a preferred stock dividend
obligation. Therefore, the Ratio of Earnings to Fixed Charges and Preferred
Stock Dividends is equal to the Ratio of Earnings to Fixed Charges and is
not disclosed separately.
<PAGE> 1
EXHIBIT 23-1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of MCN Corporation on Form S-3 of the reports of Deloitte & Touche dated
February 8, 1994, appearing in and incorporated by reference in the Annual
Report on Form 10-K of MCN Corporation for the year ended December 31, 1993 and
to the reference to Deloitte & Touche LLP under the heading "Experts" in the
Prospectus, which is a part of this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
--------------------------------------
Deloitte & Touche LLP
Detroit, Michigan
September 27, 1994
<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
$300,000,000 maximum aggregate offering price of securities of MCN Corporation,
including MCN Debt Securities, MCN Preferred Stock, MCN Common Stock or the
securities of any special purpose financing entity; 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 28th day
of July, 1994.
/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 $300,000,000 maximum aggregate offering price
of securities of MCN Corporation, including MCN Debt Securities, MCN Preferred
Stock, MCN Common Stock or the securities of any special purpose financing
entity; 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 28th day
of July, 1994.
/s/ Stephen E. Ewing
------------------------
Stephen E. Ewing
<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, 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 $300,000,000 maximum aggregate offering price
of securities of MCN Corporation, including MCN Debt Securities, MCN Preferred
Stock, MCN Common Stock or the securities of any special purpose financing
entity; 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 28th day
of July, 1994.
/s/ William K. McCrackin
------------------------
William K. McCrackin
<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 $300,000,000 maximum aggregate offering price
of securities of MCN Corporation, including MCN Debt Securities, MCN Preferred
Stock, MCN Common Stock or the securities of any special purpose financing
entity; 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 28th day
of July, 1994.
/s/ Roger Fridholm
------------------------
Roger Fridholm
<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 $300,000,000 maximum aggregate offering price
of securities of MCN Corporation, including MCN Debt Securities, MCN Preferred
Stock, MCN Common Stock or the securities of any special purpose financing
entity; 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 28th day
of July, 1994.
/s/ Frank M. Hennessey
------------------------
Frank M. Hennessey
<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 $300,000,000 maximum aggregate offering price
of securities of MCN Corporation, including MCN Debt Securities, MCN Preferred
Stock, MCN Common Stock or the securities of any special purpose financing
entity; 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 28th day
of July, 1994.
/s/ Thomas H. Jeffs II
------------------------
Thomas H. Jeffs II
<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 $300,000,000 maximum aggregate offering price
of securities of MCN Corporation, including MCN Debt Securities, MCN Preferred
Stock, MCN Common Stock or the securities of any special purpose financing
entity; 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 28th day
of July, 1994.
/s/ Arthur L. Johnson
------------------------
Arthur L. Johnson
<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 $300,000,000 maximum aggregate offering price
of securities of MCN Corporation, including MCN Debt Securities, MCN Preferred
Stock, MCN Common Stock or the securities of any special purpose financing
entity; 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 28th day
of July, 1994.
/s/ Helen O. Petrauskas
------------------------
Helen O. Petrauskas
<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 $300,000,000 maximum aggregate offering price
of securities of MCN Corporation, including MCN Debt Securities, MCN Preferred
Stock, MCN Common Stock or the securities of any special purpose financing
entity; 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 28th day
of July, 1994.
/s/ Howard F. Sims
------------------------
Howard F. Sims
<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, 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 $300,000,000 maximum aggregate offering price
of securities of MCN Corporation, including MCN Debt Securities, MCN Preferred
Stock, MCN Common Stock or the securities of any special purpose financing
entity; 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 28th day
of July, 1994.
/s/ Dale A. Johnson
------------------------
Dale A. Johnson
<PAGE> 1
EXHIBIT 24.2
MCN CORPORATION
SECRETARY'S CERTIFICATE
The undersigned, Secretary of MCN Corporation, a Michigan corporation,
hereby certifies that the following is a true and correct copy of a resolution
duly adopted at a Regular Meeting of the Board of Directors of MCN Corporation
on July 28, 1994, and such resolution has not been modified, amended or
rescinded and remains in full force and effect on the date hereof.
RESOLVED, it is in the best interests of the Corporation to
issue, from time to time, debentures, notes and/or other debt
obligations (the "Debt Securities") and Common stock and/or
Preferred stock (the "Stock" and collectively together with the
Debt Securities, the "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 Securities
hereby authorized being that amount as may result in the initial
offering prices to the public for all Securities aggregating up
to $300 million, (determined in the case of foreign currencies or
foreign currency units based upon the equivalent in U.S.
Dollars).
FURTHER RESOLVED, that the Corporation is authorized, subject to
the limitations set forth below, to create, issue and sell the
Securities on such terms and conditions as shall be determined by
the pricing committee of directors and officers of the
Corporation (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 the Corporation an indenture or indentures, including one or
more supplements to any indenture, in the form approved or
authorized by the Pricing Committee under its corporate seal to
be thereto affixed and
<PAGE> 2
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 the Corporation, an underwriting agreement or
agreements or any other type of agreement between the Corporation
and the underwriter or representatives of the underwriters
appointed and named in such underwriting agreement or agreements
providing for the sale by the Corporation and the purchase of
Securities by said underwriters.
FURTHER RESOLVED, that any one Authorized Officer be, and each
of them hereby is, authorized, in the name and on behalf of the
Corporation, 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 Securities.
FURTHER RESOLVED, that any one Authorized Officer, and each of
them, is hereby authorized and empowered to execute the
Securities in temporary and definitive form, under his manual or
facsimile signature and under the facsimile seal of the
Corporation, attested by the manual or facsimile signature of the
Secretary.
FURTHER RESOLVED, that the Authorized Officers of the
Corporation be, and each of them hereby is, authorized, in the
name and on behalf of the Corporation, 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 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 Securities, and to take any and all
actions that any such Authorized Officer shall deem necessary or
advisable.
<PAGE> 3
FURTHER RESOLVED, that it is desirable and in the best interest
of the Corporation that the Securities be qualified or registered
for sale in various states; that any one Authorized Officer is
hereby authorized to perform on behalf of the Corporation any and
all such acts as they may deem necessary or advisable in order to
comply with the applicable laws of any states, and in connection
therewith to execute and file all requisite papers and documents.
FURTHER RESOLVED, that the Authorized Officers of the
Corporation be, and each of them hereby is, authorized, in the
name and on behalf of the Corporation, to make application to such
securities exchange as the officer acting shall deem necessary or
appropriate for the listing thereon of any issues of Securities.
FURTHER RESOLVED, that the Authorized Officers of the
Corporation 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 the Corporation or otherwise 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 the Corporation
under the Underwriting Agreements or Sales Agreements,
Indentures, the Securities, any Registration Statement or any
agreement related to the Securities.
IN WITNESS WHEREOF, I have hereunto affixed my signature this 20th day
of September, 1994.
/s/ Daniel L. Schiffer
------------------------
Daniel L. Schiffer, Secretary
<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, NATIONAL ASSOCIATION
(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, NATIONAL ASSOCIATION
611 WOODWARD AVE.
DETROIT, MICHIGAN 48226
CORPORATE TRUST DEPARTMENT
ATTN: K.D. O'DONOGHUE (313) 225-3185
(Name, Address and Telephone Number of Agent for Service)
MCN CORPORATION
(Exact name of obligor as specified in its charter)
Michigan 38-2820658
(State or jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
500 Griswold Street
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:
The Comptroller of the Currency, Washington, D.C.
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 23, 1994
- - - -------------------------------------------------------------------------------
COLUMN A COLUMN B
- - - -------------------------------------------------------------------------------
<S> <C>
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 does not act as Trustee under any other Indenture
governing indebtedness of MCN Corporation. As of September 23, 1994,
the Trustee is submitting T-1 filings for both a Senior Debt Securities
and Subordinated Debt Securities 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 Corporation
is a member of the Board of Directors of NBD Bancorp, Inc.
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<PAGE> 3
Thomas H. Jeffs II President and Chief Operating Officer of NBD
Bancorp, Inc. and NBD Bank, N.A. is a member of the Board of Directors
of MCN Corporation.
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
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<PAGE> 4
person who, to the knowledge of the Trustee, owns 50 percent or more of
the voting securities of the obligor.
12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
As of September 23, 1994, NBD Bank has a $10,000,000.00 participation in
a $250,000,000 revolving credit facility agented by First Chicago. The
outstanding balance of NBD Bank's portion as of September 23, 1994 is
$8,776,190.47. Additionally NBD Bank provides a standby letter of
credit in the amount of $866,567.70 to MCN Corporation and
Bridgewater Project.
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.
(2) Certificate of Authority of the Trustee to commence business.
Incorporated by reference to Exhibit(2) filed with Amendment
No. 1 to Form T-1 Statement, Registration No. 22-4501.
(3) Authorization of the Trustee to exercise corporate trust powers.
Incorporated by reference to Exhibit (3) filed with Amendment
No. 1 to Form T-1 Statement, Registration No. 22-4501.
(4) By-Laws of the Trustee.
(5) Not Applicable.
(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.
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(8) Not applicable.
(9) Not applicable.
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<PAGE> 6
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended,
the Trustee, NBD BANK, NATIONAL ASSOCIATION, a national association organized
and existing under the laws of the United States of America, 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 23rd day of September, 1994.
NBD BANK, NATIONAL ASSOCIATION
(Trustee)
By: /s/ Karen D. O'Donoghue
--------------------------
Karen D. O'Donoghue
Vice President
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<PAGE> 7
EXHIBIT (1)
NBD BANK, NATIONAL ASSOCIATION
Detroit, Michigan
Charter No. 13671
ARTICLES OF ASSOCIATION
Effective January 1, 1973
(As amended effective May 1, 1990)
FIRST.
The title of the Association shall be NBD Bank, National Association.
SECOND.
The place where its banking house or office shall be located, and its
operations of discount and deposit carried on, and its general business
conducted, shall be 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 to any other place within the limits of 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 the Association to any other
location, without the approval of the shareholders.
THIRD.
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 shareholders are at the time entitled. Each
Director, during the full term of his or her directorship, shall own a minimum
of $1,000 aggregate par value of stock of this Association or a minimum par
value, market value or equity interest equivalent to $1,000 of common stock in
the bank holding company controlling this Association. The Board of Directors,
by vote of the majority of the entire Board, may, between annual meetings of
the shareholders, increase the number of members of the Board of Directors by
not more than two where the number of directors last elected by shareholders
was fifteen or less or by not more than four where the number of directors last
elected by shareholders was sixteen or more, but in no event so that the total
number of directors shall exceed twenty-five, and by like vote appoint
qualified persons to fill the vacancies created thereby.
FOURTH.
The regular annual meeting of the shareholders of this Association shall be
held at its main banking house, or other convenient place duly authorized by
the Board of Directors on such day of each year as is specified therefor in the
By-Laws. All elections shall be held according to such regulations as may be
prescribed by the Board of Directors, not inconsistent with the provisions of
the National Bank Act and of these Articles of Association.
<PAGE> 8
FIFTH.
The authorized amount of the capital stock of the Association 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 the Association may be increased or
decreased from time to time in accordance with provisions of the laws of the
United States.
In case of the increase of the capital of the Association each shareholder
shall have the privilege of subscribing for such number of shares of the
proposed increase of the capital stock as he may be entitled to according to
the number of shares owned by him before the stock is increased, provided that
no holder of shares of the capital stock of the Association shall have any
preemptive right of subscription to any shares of the capital stock of the
Association which are authorized and kept available for issuance in conversion
of obligations of the Association or any preferential right of subscription to
convertible obligations specifically authorized by the shareholders to be
issued free of such preferential right of subscription.
The Association, at any time and from time to time, may authorize and issue
debt obligations not convertible into capital stock of the Association, without
the approval of the shareholders.
SIXTH.
(a) Powers of Board of Directors. 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 Association and to prescribe
By-Laws for the regulation of the business of the Association and the conduct
of its affairs not inconsistent with law and these Articles of Association.
Except as expressly limited by law, all corporate powers of the Association
shall be vested in and may be exercised by the Board of Directors.
(b) 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 Association, to define their duties, to fix the salaries to be
paid to them, to require bonds from them and to fix the penalty thereof, and
to continue them in office or dismiss them.
(c) Indemnification of Directors, Officers and Employees. Any person shall
be indemnified and reimbursed by the Association for expenses reasonably
incurred by him and liabilities imposed upon him in connection with or arising
out of any action, suit or proceeding, civil or criminal, or threat thereof,
in which he may be involved by reason of his being or having been a
director, officer, or employee of the Association or of any firm,
corporation or organization which he served in any capacity at the request
of the Association; provided, however, that no person shall be so
indemnified or reimbursed (a) in relation to any matter in such action, suit
or proceeding as to which he shall finally be adjudged to have been guilty
of breach of duty as a director, officer, or employee of the Association or
(b) in relation to any matter in such action, suit or proceeding, or threat
thereof, which has been made the subject of a compromise settlement, unless
in either such case such person acted in good faith for a purpose which he
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<PAGE> 9
reasonably believed to be in the best interest of the Association and, in a
criminal action or proceeding, in addition, had no reasonable cause to
believe that his conduct was unlawful or, (c) against expenses, penalties,
or other payments incurred in an administrative proceeding or action
instituted by an appropriate bank regulatory agency which proceeding or
action results in a final order assessing civil money penalties or requiring
affirmative action by such person in the form of payments to the bank. The
determination whether the conduct of such person met the standard required
in order to entitle him to indemnification and reimbursement in relation to
any matter described in (a) or (b) of the preceding sentence may be made by
the Board of Directors of the Association, or by the holders of record of a
majority of the outstanding shares of the Association or by a court of
competent jurisdiction. No adjudication of liability or guilt as to such
person shall in itself create a presumption that he did not meet the
standard of conduct required in order to entitle him to indemnification and
reimbursement hereunder. Neither the Association nor its directors or
officers shall be liable to anyone for any determination of such directors
or officers as to the existence or absence of conduct which would provide a
basis for making or refusing to make any payment hereunder or for taking or
omitting to take any other action hereunder, in reliance upon the advice of
counsel. A court of competent jurisdiction may make a determination as to
the right of a person to indemnification and reimbursement hereunder in any
specific case upon the application of such person, despite the failure or
refusal of the directors and shareholders to make provision therefor. The
foregoing right of indemnification and reimbursement shall not be exclusive
of other rights to which such person may be entitled as a matter of law and
shall inure to the benefit of his heirs, executors and administrators.
SEVENTH.
The Association shall have succession from the date of its organization
certificate until such time as it may be dissolved by the act of its
shareholders according to law or until its franchise becomes forfeited by
reason of violation of law, or until terminated by either a general or a
special act of Congress or until its affairs be placed in the hands of a
receiver and finally wound up by him.
EIGHTH.
Except as otherwise specifically provided by statute, special meetings of the
shareholders may be called for any purpose at any time by the Board of
Directors or by the holders of at least ten per cent of the then outstanding
shares of stock. Every such special meeting shall be called by mailing, not
less than ten days before the time fixed for the meeting, to all shareholders
of record entitled to act and vote at such meeting, at their respective
addresses as shown on the books of the Association, a notice stating the
purposes of the meeting. Such notice may be waived in writing.
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<PAGE> 10
NINTH.
These Articles of Association may be changed or amended at any time by
shareholders owning a majority of the stock of the Association in any manner
not inconsistent with the provisions of law.
TENTH.
Any action required or permitted 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 all of the shareholders entitled to vote thereon consent thereto in
writing.
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<PAGE> 11
EXHIBIT (4)
NBD BANK, NATIONAL ASSOCIATION
DETROIT, MICHIGAN
CHARTER NO. 13671
BY-LAWS
Effective January 1, 1973
(As amended effective May 17, 1993)
ARTICLE I
SHAREHOLDERS' MEETINGS
Section 1. The regular Annual Meeting of the Shareholders 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 at eleven o'clock in the forenoon or at such other date and hour as
from time to time may be designated by the Board of Directors.
Nominations for election to the Board of Directors may be made by the Board of
Directors or by any shareholder entitled to vote for the election of directors.
Notification of nominations, other than those made by or on behalf of the
existing management of the Bank, shall be made in writing and shall be
delivered or mailed to the President of the Bank and to the Comptroller of the
Currency, Washington, D.C. not less than fourteen days nor more than fifty days
prior to the annual meeting of shareholders. Such notification shall contain
the following information, to the extent known to the notifying shareholders:
(a) The name and address of each proposed nominee; (b) The principal occupation
of each proposed nominee; (c) The total number of shares of capital stock of
the Bank that will be voted for each proposed nominee; (d) The names and
residence addresses of the notifying shareholders; and (e) The number of shares
of capital stock of the Bank owned by the notifying shareholders. Any
nomination not made in accordance herewith may, in his discretion, be
disregarded by the chairman of the meeting, and upon his instructions, the vote
tellers may disregard all votes cast for such nominee unless otherwise properly
nominated in accordance herewith.
<PAGE> 12
2
Section 2. All proxies secured for any annual or special meeting of
shareholders shall be dated and filed by the Cashier with the records of the
meeting. No officer or regular employee of the Bank shall act as proxy at any
shareholders' meeting, but any other person or group of persons including
attorneys of the Bank and Directors of the Bank who are not officers, may act
as proxy at any shareholders' meeting.
Section 3. The Cashier, upon receiving the returns of the judges of election
as aforesaid, shall cause the same to be recorded upon the minute book of the
Bank, and shall notify the directors-elect of their election, and of the time
at which they are required to meet at the banking house of the Bank for the
purpose of organizing the new Board of Directors. If at the time fixed for the
meeting of the directors-elect there is not a quorum in attendance, the members
present may adjourn from time to time until a quorum is secured; and no
business shall be transacted prior to their taking the oath of office as
provided by law.
Section 4. If, for any cause, the annual election of Directors is not held on
the date fixed herein or in the Articles of Association, the Directors in
office shall order a special election to be held on some other day which shall
be designated and of which notice shall be given in accordance with Section
5149, United States Revised Statutes, as amended, and for which nominations for
election to the Board of Directors and notifications thereof shall be made,
judges appointed, returns made and recorded, and the directors-elect notified
according to the provisions of Sections 1, 2 and 3 of this Article I; except
that as to any nomination for election to the Board of Directors at such
special election, other than those made by or on behalf of the existing
management of the Bank, if less than twenty-one days' notice of the meeting is
given to shareholders, notification of such nomination shall be delivered or
mailed to the President of the Bank and to the Comptroller of the Currency not
later than the close of business on the seventh day following the day on which
the notice of meeting was mailed.
Section 5. Special meetings of shareholders may be held as provided in the
Articles of Association and any amendments thereof.
Section 6. For the purpose of determining shareholders entitled to notice of
or to vote at any meeting of shareholders, annual or special, or entitled to
receive payment of any dividend, or in order to make a determination of
shareholders for any other proper purpose, the Board of Directors shall fix in
advance a record date and hour for any such determination of shareholders, such
date in any case to be not more than fifty (50) days and, in case of a meeting
of shareholders, not less than ten (10) days prior to the date on which the
particular action, requiring such determination of shareholders, is to be
taken. When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this section, such determination
shall apply to any adjournment thereof.
<PAGE> 13
3
ARTICLE II
DIRECTORS' MEETINGS
Section 1. The regular meetings of the Board of Directors shall be held on
such date and at such time each month as shall from time to time be determined
by the Board of Directors, except that in the month in which the regular annual
meeting of the shareholders 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 shareholders. When any regular meeting of the Board of Directors falls
upon a holiday, the meeting shall be held on 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 Cashier 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.
ARTICLE III
OFFICERS
Section 1. 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 include one or
more Vice Presidents, a Cashier, one or more Deputy Cashiers, 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 By-Laws
shall be construed and understood accordingly; provided that the same person
may not hold the offices of Chairman of the Board and Cashier or President and
Cashier. The duties and authorities of the officers of the Bank, other than
those mentioned in these By-Laws, 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. 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. The Chairman of the Board shall be the chief executive officer of
the Bank, shall preside at meetings of shareholders 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.
<PAGE> 14
4
Section 4. The Cashier, the Deputy Cashiers, and all other officers shall be
elected, and employees shall be appointed, to hold their respective offices and
positions during the pleasure of the Board of Directors, and shall have such
duties, other than those mentioned herein, as shall be prescribed by the Board
of Directors.
Section 5. The Cashier of this Bank shall be responsible for all moneys,
funds, indemnity bonds, stock books, and records, and other valuables of the
Bank, 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 faithful and honest discharge of his
duties as such Cashier, and that he will faithfully apply and account for all
such moneys, funds and valuables, and deliver the same to the order of the
Board of Directors of this Bank, or to the person or persons authorized to
receive them.
Section 6. The other officers 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 by the Cashier, or otherwise
come into their hands as officers, 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 faithful
discharge of their duties as such officers, 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, 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.
Section 7. All agents and employees shall be responsible for all such sums of
money, property and funds of every description as may from time to time be
placed in their hands by the Cashier, or otherwise come into their possession
as agents or employees; 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 agents and employees, and that they will
faithfully apply, account for, and pay over all moneys, property, and funds of
every description that may come into their hands, by virtue of their position,
to the order of the Board of Directors aforesaid, or to such person or persons
as may be authorized to demand and receive the same.
ARTICLE IV
SEAL
Section 1. The following is an impression of the seal adopted by the Board of
Directors of this Bank.
[Impression of seal]
<PAGE> 15
5
Section 2. The Cashier 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 him or any
Deputy Cashier, or such other officers or employees of the Bank as may be
authorized by the Cashier to affix the seal.
ARTICLE V
CONVEYANCE OF REAL ESTATE
Section 1. All transfers and conveyances of real estate shall be made by the
Bank, under seal, in accordance with the orders of the Board of Directors, 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 Board of Directors,
and shall be attested by the Cashier or any Deputy Cashier, or such other
officer or employee of this Bank as may be authorized by the Cashier to affix
the seal.
ARTICLE VI
BANKING HOURS
Section 1. The Bank shall be open for business upon such hours of each day of
the year as the Board of Directors shall from time to time direct and the Board
of Directors may, in its discretion, prescribe different banking hours for
different classes of business and different banking hours for one or more
branch offices, than it prescribes for its principal banking office.
Section 2. The Board of Directors may delegate to the chief executive officer
this authority to establish the hours of each day of the year that the bank
shall be open for business, including the discretion to prescribe different
banking hours for one or more branch offices, than it prescribed for the Bank's
principal banking office; reserving, however, to itself the authority to act
concurrently in such matters.
ARTICLE VII
EXECUTIVE COMMITTEE
Section 1. 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.
Section 2. 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
<PAGE> 16
6
member is present, an officer-director of the Bank's parent holding company may
serve as the presiding officer, and if no officer-director of the parent
holding company is present, the other members present at the meeting shall
elect one of their members as presiding officer.
Section 3. 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.
Section 4. 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 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, including a report of all bills,
notes, and other evidences of debt discounted and purchased by it for the Bank
since its last report. 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.
ARTICLE VIII
MINUTE BOOK
Section 1. 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 shareholders, the By-Laws 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 Cashier.
ARTICLE IX
TRANSFERS OF STOCK
Section 1. The stock of this Bank shall be assignable and
<PAGE> 17
7
transferable only on the books of this Bank, subject to the restrictions and
provisions of the National Banking Laws; and a transfer book shall be provided
in which all assignments and transfers of stock shall be made.
Section 2. The stock transfer books of the Bank shall not be closed for the
determination of shareholders entitled to dividends, but any dividend can be
made payable to shareholders 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 shareholders of the Bank, in relying upon the names of the
shareholders as they appear upon the stock books of the Bank.
Section 3. Certificates of stock, bearing the manual or facsimile signature of
the Chairman of the Board, President or any Vice President, and the Cashier, 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 shareholders. 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 therefor shall be returned to the Bank, canceled, preserved
and new certificates issued.
ARTICLE X
EXPENSES
Section 1. All the current expenses of the Bank shall be paid by the Cashier
and such other officers of the Bank as may be selected by the Board of
Directors, who shall, every month or more often, if required, make a detailed
statement thereof in writing to the Board of Directors.
ARTICLE XI
CONTRACTS
Section 1. All contracts, checks, drafts, etc., shall be signed by the
Cashier, or any officer of the rank of Vice President or higher rank, or any
other officer or employee designated by the Board of Directors.
ARTICLE XII
EXAMINING COMMITTEE
Section 1. (a) Committee. There shall be appointed annually by the Board of
Directors an Examining Committee composed of not less than three Directors none
of whom shall be officers of the Bank.
<PAGE> 18
8
(b) Duties. The Examining 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 Comptroller of the Currency or other regulatory authorities
having jurisdiction and may be made in conjunction with examinations
of the Comptroller of the Currency.
(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.
ARTICLE XIII
TRUST DIVISION
Section 1. Exercise of Fiduciary Powers. All fiduciary powers of the Bank
shall be exercised through the Trust Division, subject to such regulations as
the Comptroller of the Currency shall from time to time establish. All books
and records of the Trust Division 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 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 Trust
Division duties by the Board of Directors shall exercise such powers and
perform such duties as are prescribed by these By-Laws, or as may be assigned
to them by the Board of Directors, the chief executive officer or the officer
in charge of the Trust Division.
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
<PAGE> 19
9
the Bank by any Trust Officer or officer of higher rank specifically elected or
appointed for Trust Division duties or the Cashier 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.
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 Comptroller of the
Currency 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 determine the policies
of the Trust Division. 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.
ARTICLE XIV
QUORUM
Section 1. Except as otherwise provided by statute or in the Articles of
Association, a majority of all the shareholders 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 shareholders or Directors, the
shareholders or Directors present may adjourn from day to day until a quorum is
in attendance. In the absence of a quorum no business shall be transacted.
ARTICLE XV
CHANGES IN BY-LAWS
Section 1. These By-Laws 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 upon giving at least one week's prior notice
of such proposed change or changes.
<PAGE> 20
10
I, __________________________________________, _______________________________
______ of NBD Bank, National Association, Detroit, Michigan, do hereby certify
that the foregoing is a true and exact copy of the By-Laws of NBD Bank,
National Association as effective May 17, 1993.
IN WITNESS WHEREOF, I have hereunto affixed my name as ________________________
____________________ and have caused the corporate seal of said Bank to be
hereto affixed this date ______________________________.
<PAGE> 21
EXHIBIT (7)
Charter No. 13671 Comptroller of the Currency District
REPORT OF CONDITION CONSOLIDATING
DOMESTIC AND FOREIGN SUBSIDIARIES OF THE
NBD BANK, N.A.
in the State of Michigan, at the close of business on June 30, 1994 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.................................................... 1,359,555
Interest-bearing balances................................... 656,839
Securities:
Held-to-maturity securities................................. 6,210,642
Available-for-sale securities............................... 3,410,177
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........................................ 806,612
Securities purchased under agreements to resell........... 119,861
Loans and lease financing receivables:
Loans and leases, net of unearned income..........15,933,108
LESS: Allowance for loan and lease losses............209,429
Loans and leases, net of unearned income and
allowance................................................... 15,723,679
Assets held in trading accounts............................... 235,274
Premises and fixed assets (including
capitalized leases)......................................... 303,858
Other real estate owned....................................... 11,935
Investments in unconsolidated subsidiaries and
associated companies........................................ 31
Customers' liability to this bank on acceptances
outstanding................................................. 151,468
Intangible assets............................................. 43,569
Other assets.................................................. 635,132
----------
Total assets.................................................. 29,668,632
==========
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices......................................... 14,978,021
Noninterest-bearing..............................4,371,709
Interest-bearing................................10,606,312
In foreign offices, Edge and Agreement
subsidiaries, and IBFs...................................... 3,422,190
Noninterest-bearing.................................71,253
Interest-bearing.................................3,350,937
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................................... 1,775,151
Securities sold under agreements to repurchase............ 1,362,187
Demand notes issued to the U.S. Treasury...................... 946,490
Trading liabilities........................................... 63,060
Other borrowed money:
With original maturity of one year or less.................. 2,807,177
With original maturity of more than one year................ 1,449,880
Mortgage indebtedness and obligations
under capitalized leases.................................... 17,041
Bank's liability on acceptances executed and
outstanding................................................. 151,468
Notes and debentures subordinated to
deposits.................................................... 450,000
Other liabilities............................................. 490,091
----------
Total liabilities............................................. 27,912,756
----------
<CAPTION>
EQUITY CAPITAL
<S> <C>
Common stock.................................................. 111,858
Surplus....................................................... 618,988
Undivided profits and capital reserves........................ 1,089,278
Net unrealized holding gains (losses) on
available-for-sale securities............................... (71,366)
Cumulative foreign currency translation
adjustments................................................. 7,118
----------
Total equity capital.......................................... 1,755,876
----------
Total liabilities and equity capital 29,668,632
==========
</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 28, 1994
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.
THOMAS H. JEFFS II
VERNE G. ISTOCK
Directors
<PAGE> 1
EXHIBIT 25-2
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, NATIONAL ASSOCIATION
(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, NATIONAL ASSOCIATION
611 WOODWARD AVE.
DETROIT, MICHIGAN 48226
CORPORATE TRUST DEPARTMENT
ATTN: K.D. O'DONOGHUE (313) 225-3185
(Name, Address and Telephone Number of Agent for Service)
MCN CORPORATION
(Exact name of obligor as specified in its charter)
Michigan 38-2820658
(State or jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
500 Griswold Street
Detroit, Michigan 48226
(Address of principal executive offices) (Zip Code)
% SUBORDINATED 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:
The Comptroller of the Currency, Washington, D.C.
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 23, 1994
- - - -------------------------------------------------------------------------------
COLUMN A COLUMN B
- - - -------------------------------------------------------------------------------
<S> <C>
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 does not act as Trustee under any other Indenture governing
indebtedness of MCN Corporation. As of September 23, 1994, the Trustee
is submitting T-1 filings for both a Senior Debt Securities and
Subordinated Debt Securities Indentures.
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 Corporation
is a member of the Board of Directors of NBD Bancorp, Inc.
2
<PAGE> 3
Thomas H. Jeffs II President and Chief Operating Officer of NBD
Bancorp, Inc. and NBD Bank, N.A. is a member of the Board of
Directors of MCN Corporation.
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
3
<PAGE> 4
person who, to the knowledge of the Trustee, owns 50 percent or more
of the voting securities of the obligor.
12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
As of September 23, 1994, NBD Bank has a $10,000,000.00 participation
in a $250,000,000 revolving credit facility agented by First Chicago.
The outstanding balance of NBD Bank's portion as of September 23, 1994
is $8,776,190.47. Additionaly NBD Bank provides a standby letter of
credit in the amount of $866,567.70 to MCN Corporation and Bridgewater
Project.
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.
(2) Certificate of Authority of the Trustee to commence business.
Incorporated by reference to Exhibit (2) filed with Amendment
No. 1 to Form T-1 Statement, Registration No. 22-4501.
(3) Authorization of the Trustee to exercise corporate trust powers.
Incorporated by reference to Exhibit (3) filed with Amendment
No. 1 to Form T-1 Statement, Registration No. 22-4501.
(4) By-Laws of the Trustee.
(5) Not Applicable.
(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.
4
<PAGE> 5
(8) Not applicable.
(9) Not applicable.
5
<PAGE> 6
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended,
the Trustee, NBD BANK, NATIONAL ASSOCIATION, a national association organized
and existing under the laws of the United States of America, 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 23rd day of September, 1994.
NBD BANK, NATIONAL ASSOCIATION
(Trustee)
By: /s/ Karen D. O'Donoghue
---------------------------
Karen D. O'Donoghue
Vice President
6
<PAGE> 7
EXHIBIT (1)
NBD BANK, NATIONAL ASSOCIATION
Detroit, Michigan
Charter No. 13671
ARTICLES OF ASSOCIATION
Effective January 1, 1973
(As amended effective May 1, 1990)
FIRST.
The title of the Association shall be NBD Bank, National Association.
SECOND.
The place where its banking house or office shall be located, and its
operations of discount and deposit carried on, and its general business
conducted, shall be 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 to any other place within the limits of 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 the Association to any other
location, without the approval of the shareholders.
THIRD.
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 shareholders are at the time entitled. Each
Director, during the full term of his or her directorship, shall own a minimum
of $1,000 aggregate par value of stock of this Association or a minimum par
value, market value or equity interest equivalent to $1,000 of common stock in
the bank holding company controlling this Association. The Board of Directors,
by vote of the majority of the entire Board, may, between annual meetings of
the shareholders, increase the number of members of the Board of Directors by
not more than two where the number of directors last elected by shareholders
was fifteen or less or by not more than four where the number of directors last
elected by shareholders was sixteen or more, but in no event so that the total
number of directors shall exceed twenty-five, and by like vote appoint
qualified persons to fill the vacancies created thereby.
FOURTH.
The regular annual meeting of the shareholders of this Association shall be
held at its main banking house, or other convenient place duly authorized by
the Board of Directors on such day of each year as is specified therefor in the
By-Laws. All elections shall be held according to such regulations as may be
prescribed by the Board of Directors, not inconsistent with the provisions of
the National Bank Act and of these Articles of Association.
<PAGE> 8
FIFTH.
The authorized amount of the capital stock of the Association 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 the Association may be increased or
decreased from time to time in accordance with provisions of the laws of the
United States.
In case of the increase of the capital of the Association each shareholder
shall have the privilege of subscribing for such number of shares of the
proposed increase of the capital stock as he may be entitled to according to
the number of shares owned by him before the stock is increased, provided that
no holder of shares of the capital stock of the Association shall have any
preemptive right of subscription to any shares of the capital stock of the
Association which are authorized and kept available for issuance in conversion
of obligations of the Association or any preferential right of subscription to
convertible obligations specifically authorized by the shareholders to be
issued free of such preferential right of subscription.
The Association, at any time and from time to time, may authorize and issue
debt obligations not convertible into capital stock of the Association, without
the approval of the shareholders.
SIXTH.
(a) Powers of Board of Directors. 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 Association and to prescribe
By-Laws for the regulation of the business of the Association and the conduct
of its affairs not inconsistent with law and these Articles of Association.
Except as expressly limited by law, all corporate powers of the Association
shall be vested in and may be exercised by the Board of Directors.
(b) 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 Association, to define their duties, to fix the salaries to be
paid to them, to require bonds from them and to fix the penalty thereof, and
to continue them in office or dismiss them.
(c) Indemnification of Directors, Officers and Employees. Any person shall
be indemnified and reimbursed by the Association for expenses reasonably
incurred by him and liabilities imposed upon him in connection with or arising
out of any action, suit or proceeding, civil or criminal, or threat thereof,
in which he may be involved by reason of his being or having been a
director, officer, or employee of the Association or of any firm,
corporation or organization which he served in any capacity at the request
of the Association; provided, however, that no person shall be so
indemnified or reimbursed (a) in relation to any matter in such action, suit
or proceeding as to which he shall finally be adjudged to have been guilty
of breach of duty as a director, officer, or employee of the Association or
(b) in relation to any matter in such action, suit or proceeding, or threat
thereof, which has been made the subject of a compromise settlement, unless
in either such case such person acted in good faith for a purpose which he
2
<PAGE> 9
reasonably believed to be in the best interest of the Association and, in a
criminal action or proceeding, in addition, had no reasonable cause to
believe that his conduct was unlawful or, (c) against expenses, penalties,
or other payments incurred in an administrative proceeding or action
instituted by an appropriate bank regulatory agency which proceeding or
action results in a final order assessing civil money penalties or requiring
affirmative action by such person in the form of payments to the bank. The
determination whether the conduct of such person met the standard required
in order to entitle him to indemnification and reimbursement in relation to
any matter described in (a) or (b) of the preceding sentence may be made by
the Board of Directors of the Association, or by the holders of record of a
majority of the outstanding shares of the Association or by a court of
competent jurisdiction. No adjudication of liability or guilt as to such
person shall in itself create a presumption that he did not meet the
standard of conduct required in order to entitle him to indemnification and
reimbursement hereunder. Neither the Association nor its directors or
officers shall be liable to anyone for any determination of such directors
or officers as to the existence or absence of conduct which would provide a
basis for making or refusing to make any payment hereunder or for taking or
omitting to take any other action hereunder, in reliance upon the advice of
counsel. A court of competent jurisdiction may make a determination as to
the right of a person to indemnification and reimbursement hereunder in any
specific case upon the application of such person, despite the failure or
refusal of the directors and shareholders to make provision therefor. The
foregoing right of indemnification and reimbursement shall not be exclusive
of other rights to which such person may be entitled as a matter of law and
shall inure to the benefit of his heirs, executors and administrators.
SEVENTH.
The Association shall have succession from the date of its organization
certificate until such time as it may be dissolved by the act of its
shareholders according to law or until its franchise becomes forfeited by
reason of violation of law, or until terminated by either a general or a
special act of Congress or until its affairs be placed in the hands of a
receiver and finally wound up by him.
EIGHTH.
Except as otherwise specifically provided by statute, special meetings of the
shareholders may be called for any purpose at any time by the Board of
Directors or by the holders of at least ten per cent of the then outstanding
shares of stock. Every such special meeting shall be called by mailing, not
less than ten days before the time fixed for the meeting, to all shareholders
of record entitled to act and vote at such meeting, at their respective
addresses as shown on the books of the Association, a notice stating the
purposes of the meeting. Such notice may be waived in writing.
3
<PAGE> 10
NINTH.
These Articles of Association may be changed or amended at any time by
shareholders owning a majority of the stock of the Association in any manner
not inconsistent with the provisions of law.
TENTH.
Any action required or permitted 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 all of the shareholders entitled to vote thereon consent thereto in
writing.
4
<PAGE> 11
EXHIBIT (4)
NBD BANK, NATIONAL ASSOCIATION
DETROIT, MICHIGAN
CHARTER NO. 13671
BY-LAWS
Effective January 1, 1973
(As amended effective May 17, 1993)
ARTICLE I
SHAREHOLDERS' MEETINGS
Section 1. The regular Annual Meeting of the Shareholders 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 at eleven o'clock in the forenoon or at such other date and hour as
from time to time may be designated by the Board of Directors.
Nominations for election to the Board of Directors may be made by the Board of
Directors or by any shareholder entitled to vote for the election of directors.
Notification of nominations, other than those made by or on behalf of the
existing management of the Bank, shall be made in writing and shall be
delivered or mailed to the President of the Bank and to the Comptroller of the
Currency, Washington, D.C. not less than fourteen days nor more than fifty days
prior to the annual meeting of shareholders. Such notification shall contain
the following information, to the extent known to the notifying shareholders:
(a) The name and address of each proposed nominee; (b) The principal occupation
of each proposed nominee; (c) The total number of shares of capital stock of
the Bank that will be voted for each proposed nominee; (d) The names and
residence addresses of the notifying shareholders; and (e) The number of shares
of capital stock of the Bank owned by the notifying shareholders. Any
nomination not made in accordance herewith may, in his discretion, be
disregarded by the chairman of the meeting, and upon his instructions, the vote
tellers may disregard all votes cast for such nominee unless otherwise properly
nominated in accordance herewith.
<PAGE> 12
2
Section 2. All proxies secured for any annual or special meeting of
shareholders shall be dated and filed by the Cashier with the records of the
meeting. No officer or regular employee of the Bank shall act as proxy at any
shareholders' meeting, but any other person or group of persons including
attorneys of the Bank and Directors of the Bank who are not officers, may act
as proxy at any shareholders' meeting.
Section 3. The Cashier, upon receiving the returns of the judges of election
as aforesaid, shall cause the same to be recorded upon the minute book of the
Bank, and shall notify the directors-elect of their election, and of the time
at which they are required to meet at the banking house of the Bank for the
purpose of organizing the new Board of Directors. If at the time fixed for the
meeting of the directors-elect there is not a quorum in attendance, the members
present may adjourn from time to time until a quorum is secured; and no
business shall be transacted prior to their taking the oath of office as
provided by law.
Section 4. If, for any cause, the annual election of Directors is not held on
the date fixed herein or in the Articles of Association, the Directors in
office shall order a special election to be held on some other day which shall
be designated and of which notice shall be given in accordance with Section
5149, United States Revised Statutes, as amended, and for which nominations for
election to the Board of Directors and notifications thereof shall be made,
judges appointed, returns made and recorded, and the directors-elect notified
according to the provisions of Sections 1, 2 and 3 of this Article I; except
that as to any nomination for election to the Board of Directors at such
special election, other than those made by or on behalf of the existing
management of the Bank, if less than twenty-one days' notice of the meeting is
given to shareholders, notification of such nomination shall be delivered or
mailed to the President of the Bank and to the Comptroller of the Currency not
later than the close of business on the seventh day following the day on which
the notice of meeting was mailed.
Section 5. Special meetings of shareholders may be held as provided in the
Articles of Association and any amendments thereof.
Section 6. For the purpose of determining shareholders entitled to notice of
or to vote at any meeting of shareholders, annual or special, or entitled to
receive payment of any dividend, or in order to make a determination of
shareholders for any other proper purpose, the Board of Directors shall fix in
advance a record date and hour for any such determination of shareholders, such
date in any case to be not more than fifty (50) days and, in case of a meeting
of shareholders, not less than ten (10) days prior to the date on which the
particular action, requiring such determination of shareholders, is to be
taken. When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this section, such determination
shall apply to any adjournment thereof.
<PAGE> 13
3
ARTICLE II
DIRECTORS' MEETINGS
Section 1. The regular meetings of the Board of Directors shall be held on
such date and at such time each month as shall from time to time be determined
by the Board of Directors, except that in the month in which the regular annual
meeting of the shareholders 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 shareholders. When any regular meeting of the Board of Directors falls
upon a holiday, the meeting shall be held on 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 Cashier 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.
ARTICLE III
OFFICERS
Section 1. 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 include one or
more Vice Presidents, a Cashier, one or more Deputy Cashiers, 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 By-Laws
shall be construed and understood accordingly; provided that the same person
may not hold the offices of Chairman of the Board and Cashier or President and
Cashier. The duties and authorities of the officers of the Bank, other than
those mentioned in these By-Laws, 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. 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. The Chairman of the Board shall be the chief executive officer of
the Bank, shall preside at meetings of shareholders 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.
<PAGE> 14
4
Section 4. The Cashier, the Deputy Cashiers, and all other officers shall be
elected, and employees shall be appointed, to hold their respective offices and
positions during the pleasure of the Board of Directors, and shall have such
duties, other than those mentioned herein, as shall be prescribed by the Board
of Directors.
Section 5. The Cashier of this Bank shall be responsible for all moneys,
funds, indemnity bonds, stock books, and records, and other valuables of the
Bank, 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 faithful and honest discharge of his
duties as such Cashier, and that he will faithfully apply and account for all
such moneys, funds and valuables, and deliver the same to the order of the
Board of Directors of this Bank, or to the person or persons authorized to
receive them.
Section 6. The other officers 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 by the Cashier, or otherwise
come into their hands as officers, 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 faithful
discharge of their duties as such officers, 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, 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.
Section 7. All agents and employees shall be responsible for all such sums of
money, property and funds of every description as may from time to time be
placed in their hands by the Cashier, or otherwise come into their possession
as agents or employees; 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 agents and employees, and that they will
faithfully apply, account for, and pay over all moneys, property, and funds of
every description that may come into their hands, by virtue of their position,
to the order of the Board of Directors aforesaid, or to such person or persons
as may be authorized to demand and receive the same.
ARTICLE IV
SEAL
Section 1. The following is an impression of the seal adopted by the Board of
Directors of this Bank.
[Impression of seal]
<PAGE> 15
5
Section 2. The Cashier 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 him or any
Deputy Cashier, or such other officers or employees of the Bank as may be
authorized by the Cashier to affix the seal.
ARTICLE V
CONVEYANCE OF REAL ESTATE
Section 1. All transfers and conveyances of real estate shall be made by the
Bank, under seal, in accordance with the orders of the Board of Directors, 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 Board of Directors,
and shall be attested by the Cashier or any Deputy Cashier, or such other
officer or employee of this Bank as may be authorized by the Cashier to affix
the seal.
ARTICLE VI
BANKING HOURS
Section 1. The Bank shall be open for business upon such hours of each day of
the year as the Board of Directors shall from time to time direct and the Board
of Directors may, in its discretion, prescribe different banking hours for
different classes of business and different banking hours for one or more
branch offices, than it prescribes for its principal banking office.
Section 2. The Board of Directors may delegate to the chief executive officer
this authority to establish the hours of each day of the year that the bank
shall be open for business, including the discretion to prescribe different
banking hours for one or more branch offices, than it prescribed for the Bank's
principal banking office; reserving, however, to itself the authority to act
concurrently in such matters.
ARTICLE VII
EXECUTIVE COMMITTEE
Section 1. 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.
Section 2. 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
<PAGE> 16
6
member is present, an officer-director of the Bank's parent holding company may
serve as the presiding officer, and if no officer-director of the parent
holding company is present, the other members present at the meeting shall
elect one of their members as presiding officer.
Section 3. 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.
Section 4. 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 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, including a report of all bills,
notes, and other evidences of debt discounted and purchased by it for the Bank
since its last report. 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.
ARTICLE VIII
MINUTE BOOK
Section 1. 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 shareholders, the By-Laws 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 Cashier.
ARTICLE IX
TRANSFERS OF STOCK
Section 1. The stock of this Bank shall be assignable and
<PAGE> 17
7
transferable only on the books of this Bank, subject to the restrictions and
provisions of the National Banking Laws; and a transfer book shall be provided
in which all assignments and transfers of stock shall be made.
Section 2. The stock transfer books of the Bank shall not be closed for the
determination of shareholders entitled to dividends, but any dividend can be
made payable to shareholders 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 shareholders of the Bank, in relying upon the names of the
shareholders as they appear upon the stock books of the Bank.
Section 3. Certificates of stock, bearing the manual or facsimile signature of
the Chairman of the Board, President or any Vice President, and the Cashier, 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 shareholders. 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 therefor shall be returned to the Bank, canceled, preserved
and new certificates issued.
ARTICLE X
EXPENSES
Section 1. All the current expenses of the Bank shall be paid by the Cashier
and such other officers of the Bank as may be selected by the Board of
Directors, who shall, every month or more often, if required, make a detailed
statement thereof in writing to the Board of Directors.
ARTICLE XI
CONTRACTS
Section 1. All contracts, checks, drafts, etc., shall be signed by the
Cashier, or any officer of the rank of Vice President or higher rank, or any
other officer or employee designated by the Board of Directors.
ARTICLE XII
EXAMINING COMMITTEE
Section 1. (a) Committee. There shall be appointed annually by the Board of
Directors an Examining Committee composed of not less than three Directors none
of whom shall be officers of the Bank.
<PAGE> 18
8
(b) Duties. The Examining 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 Comptroller of the Currency or other regulatory authorities
having jurisdiction and may be made in conjunction with examinations
of the Comptroller of the Currency.
(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.
ARTICLE XIII
TRUST DIVISION
Section 1. Exercise of Fiduciary Powers. All fiduciary powers of the Bank
shall be exercised through the Trust Division, subject to such regulations as
the Comptroller of the Currency shall from time to time establish. All books
and records of the Trust Division 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 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 Trust
Division duties by the Board of Directors shall exercise such powers and
perform such duties as are prescribed by these By-Laws, or as may be assigned
to them by the Board of Directors, the chief executive officer or the officer
in charge of the Trust Division.
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
<PAGE> 19
9
the Bank by any Trust Officer or officer of higher rank specifically elected or
appointed for Trust Division duties or the Cashier 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.
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 Comptroller of the
Currency 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 determine the policies
of the Trust Division. 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.
ARTICLE XIV
QUORUM
Section 1. Except as otherwise provided by statute or in the Articles of
Association, a majority of all the shareholders 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 shareholders or Directors, the
shareholders or Directors present may adjourn from day to day until a quorum is
in attendance. In the absence of a quorum no business shall be transacted.
ARTICLE XV
CHANGES IN BY-LAWS
Section 1. These By-Laws 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 upon giving at least one week's prior notice
of such proposed change or changes.
<PAGE> 20
10
I, __________________________________________, _______________________________
______ of NBD Bank, National Association, Detroit, Michigan, do hereby certify
that the foregoing is a true and exact copy of the By-Laws of NBD Bank,
National Association as effective May 17, 1993.
IN WITNESS WHEREOF, I have hereunto affixed my name as ________________________
____________________ and have caused the corporate seal of said Bank to be
hereto affixed this date ______________________________.
<PAGE> 21
EXHIBIT (7)
Charter No. 13671 Comptroller of the Currency District
REPORT OF CONDITION CONSOLIDATING
DOMESTIC AND FOREIGN SUBSIDIARIES OF THE
NBD BANK, N.A.
in the State of Michigan, at the close of business on June 30, 1994 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.................................................... 1,359,555
Interest-bearing balances................................... 656,839
Securities:
Held-to-maturity securities................................. 6,210,642
Available-for-sale securities............................... 3,410,177
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........................................ 806,612
Securities purchased under agreements to resell........... 119,861
Loans and lease financing receivables:
Loans and leases, net of unearned income..........15,933,108
LESS: Allowance for loan and lease losses............209,429
Loans and leases, net of unearned income and
allowance................................................... 15,723,679
Assets held in trading accounts............................... 235,274
Premises and fixed assets (including
capitalized leases)......................................... 303,858
Other real estate owned....................................... 11,935
Investments in unconsolidated subsidiaries and
associated companies........................................ 31
Customers' liability to this bank on acceptances
outstanding................................................. 151,468
Intangible assets............................................. 43,569
Other assets.................................................. 635,132
----------
Total assets.................................................. 29,668,632
==========
<CAPTION>
LIABILITIES
<S> <C>
Deposits:
In domestic offices......................................... 14,978,021
Noninterest-bearing..............................4,371,709
Interest-bearing................................10,606,312
In foreign offices, Edge and Agreement
subsidiaries, and IBFs...................................... 3,422,190
Noninterest-bearing.................................71,253
Interest-bearing.................................3,350,937
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................................... 1,775,151
Securities sold under agreements to repurchase............ 1,362,187
Demand notes issued to the U.S. Treasury...................... 946,490
Trading liabilities........................................... 63,060
Other borrowed money:
With original maturity of one year or less.................. 2,807,177
With original maturity of more than one year................ 1,449,880
Mortgage indebtedness and obligations
under capitalized leases.................................... 17,041
Bank's liability on acceptances executed and
outstanding................................................. 151,468
Notes and debentures subordinated to
deposits.................................................... 450,000
Other liabilities............................................. 490,091
----------
Total liabilities............................................. 27,912,756
----------
<CAPTION>
EQUITY CAPITAL
<S> <C>
Common stock.................................................. 111,858
Surplus....................................................... 618,988
Undivided profits and capital reserves........................ 1,089,278
Net unrealized holding gains (losses) on
available-for-sale securities............................... (71,366)
Cumulative foreign currency translation
adjustments................................................. 7,118
----------
Total equity capital.......................................... 1,755,876
----------
Total liabilities and equity capital 29,668,632
==========
</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 28, 1994
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.
THOMAS H. JEFFS II
VERNE G. ISTOCK
Directors
