Exhibit 4.30
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THE DETROIT EDISON COMPANY
AND
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION,
TRUSTEE
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SUPPLEMENTAL INDENTURE
DATED AS OF
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SUPPLEMENTING THE COLLATERAL TRUST INDENTURE
DATED AS OF JUNE 30, 1993
PROVIDING FOR
SERIES % DUE
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SUPPLEMENTAL INDENTURE, dated as of the day of
between THE DETROIT EDISON COMPANY, a corporation organized and existing under
the laws of the State of Michigan (the "Company"), and X.X. Xxxxxx Trust
Company, National Association, a national banking association organized under
the laws of the United States of America, having a corporate trust office in the
The City of Detroit, Michigan, as successor trustee (the "Trustee");
WHEREAS, the Company has heretofore executed and delivered to the Trustee a
Collateral Trust Indenture dated as of June 30, 1993 (the "Original Indenture"),
as supplemented providing for the issuance by the Company from time to time of
its debt securities; and
WHEREAS, the Company now desires to provide for the issuance of an
additional series of its unsecured, [senior] [subordinated] debt securities
pursuant to the Original Indenture; and
WHEREAS, the Company, in the exercise of the power and authority conferred
upon and reserved to it under the provisions of the Original Indenture,
including Section 1001 thereof, and pursuant to appropriate resolutions of the
Board of Directors, has duly determined to make, execute and deliver to the
Trustee this Supplemental Indenture to the Original
Indenture as permitted by Sections 201 and 301 of the Original Indenture in
order to establish the form or terms of, and to provide for the creation and
issue of, a series of its debt securities under the Original Indenture, which
shall be known as the Series % due
; and
WHEREAS, all things necessary to make such debt securities, when executed
by the Company and authenticated and delivered by the Trustee or any
Authenticating Agent and issued upon the terms and subject to the conditions
hereinafter and in the Original Indenture set forth against payment therefor,
the valid, binding and legal obligations of the Company and to make this
Supplemental Indenture a valid, binding and legal agreement
of the Company, have been done;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH
that, in order to establish the terms of a series of debt securities, and for
and in consideration of the premises and of the covenants contained in the
Original Indenture and in this Supplemental Indenture and
for other good and valuable consideration the receipt and sufficiency of which
are hereby acknowledged, it is mutually covenanted and agreed as follows:
ARTICLE ONE
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. Each capitalized term that is used herein and is
defined in the Original Indenture shall have the meaning specified in the
Original Indenture unless such term is otherwise defined herein.
"Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions located in the State of
Michigan or in the state in which the principal corporate trust office of the
Trustee is located, are authorized or obligated by or pursuant to law or
executive order to close.
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["Capital Stock" means any and all shares of the Company's Preferred Stock,
Preference Stock or Common Stock or any other equity securities of the Company.]
["Payment Obligation," when used with respect to Senior Indebtedness, means
an obligation stated in an agreement, instrument or lease to pay money (whether
for principal, premium, interest, sinking fund, periodic rent, stipulated value,
termination value, liquidated damages or otherwise), but excluding an obligation
to pay money in respect of fees of, or as payment or reimbursement for expenses
incurred by or on behalf of, or as indemnity for losses, damages, taxes or other
indemnity claims of any kind owed to, any holder of Senior Indebtedness or other
party to such agreement, instrument or lease.]
["Senior Indebtedness" means each of the following, whether outstanding on
the date hereof or hereafter created, incurred or assumed:
(a)(i) any Payment Obligation of the Company in respect of any
indebtedness, directly or indirectly, created, incurred or assumed for borrowed
money other than (A) [list of subordinated debt securities outstanding] each of
which has been expressly deemed by its terms to be subordinate or (ii) in
connection with the acquisition of any business, property or asset (including
securities), other than any account payable or other indebtedness created,
incurred or assumed in the ordinary course of business in connection with the
obtaining of materials or services;
(b) any Payment Obligation of the Company in respect of any lease that
would, in accordance with generally accepted accounting principles, be required
to be classified and accounted for as a capital lease;
(c) any Payment Obligation of the Company in respect of any interest rate
exchange agreement, currency exchange agreement or similar agreement that
provides for payment (whether or not contingent) over a period or term
(including any renewals or extensions) longer than one year from the execution
thereof;
(d) any Payment Obligation of the Company in respect of any agreement
relating to the acquisition (including a sale and buyback) or lease (including a
sale and leaseback) of real or personal property that provides for payment
(whether or not contingent) over a period or term (including any renewals or
extensions) longer than one year from the execution thereof;
(e) any Payment Obligation of any Subsidiary or of others of the kind
described in the preceding clauses (a) through (d) assumed or guaranteed by the
Company or for which the Company is otherwise responsible or liable; and
(f) any amendment, renewal, extension or refunding of any Payment
Obligation described in the preceding subparagraphs (a) through (e); unless in
the agreement, instrument or lease in which any such Payment Obligation is
stated it is expressly provided that such Payment Obligation is not senior in
right of payment to the .]
["Tax Event" means that the Company shall have received an opinion of
counsel (which may be counsel to the Company or an affiliate but not an employee
thereof) experienced in such matters to the effect that, as a result of any
amendment to, or change (including any announced
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prospective change), in the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or therein
affecting taxation, or as a result of any official administrative pronouncement
or judicial decision interpreting or applying such laws or regulations, which
amendment or change is effective or such pronouncement or decision is announced
on or after the date of original issuance of the , there is
more than an insubstantial risk that interest payable by the Company on the
is not, or will not be, deductible by the Company for federal
income tax purposes.]
SECTION 102. Section References. Each reference to a particular section set
forth in this Supplemental Indenture shall, unless the
context otherwise requires, refer to this Supplemental
Indenture.
ARTICLE TWO
TITLE AND TERMS OF THE
SECTION 201. Title of the . This
Supplemental Indenture hereby establishes a series of ,
which shall be known as the Company's Series %
due (referred to herein as the " "). For purposes
of the Original Indenture, the shall constitute a single series
of Securities. The stated maturity of the will be
.
SECTION 202. Variations from the Original Indenture. (a) Notwithstanding
the provisions of the Original Indenture, the shall be
without benefit of any security [and shall be subordinated to Senior
Indebtedness as and to the extent provided in Article Four of this Supplemental
Indenture]. [The shall not have the benefit of the
provisions of Article Four of the Original Indenture and shall not have the
benefit of, or be subject to, the other related provisions of the Original
Indenture relating to the grant of security, including (for avoidance of doubt
and not for purposes of limitation) the Granting Clause, the definitions of
"Deliverable Mortgage Bonds," "Deliverable Securities," "Designated Mortgage
Bonds," "Grant," "Mortgage," "Mortgage Bonds," "Mortgage Trustee," "Previously
Delivered Mortgage Bonds," and "Trust Estate," Section 301 (20), Sections 301
(a) (v), (ix), (x) and (xi), Sections 301 (b) (ii) and (iii), Section 301 (d),
and Sections 601(4) and (8)].
(b) Section 503 of the Original Indenture shall apply to the Notes. The
following shall be an additional condition to defeasance of the Notes under
Section 503: the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (i) the Company has received from the Internal Revenue
Service a letter ruling, or there has been published by the Internal Revenue
Service a Revenue Ruling, or (ii) since the date of execution of this
Supplemental Indenture, there has been a change in the applicable Federal income
tax law, in either case to the effect that, and based thereon such opinion shall
confirm that, the Holders of such Outstanding Notes appertaining thereto 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, and, also, to the effect that, after the 123rd
day after the date of deposit, all money and other property as provided pursuant
to Section 503 of the Original Indenture (including the proceeds thereof)
deposited or caused to be deposited with the Trustee (or other qualifying
trustee) pursuant to Section 503 of the Original Indenture to be held in trust
will not be subject to any case or proceeding (whether voluntary or involuntary)
in respect of the Company under any
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Federal or State bankruptcy, insolvency, reorganization or other similar law, or
any decree or order for relief in respect of the Company issued in connection
therewith.
SECTION 203. Amount and Denominations; DTC. (a) The aggregate principal
amount of that may be issued under this
Supplemental Indenture is limited to $ . The
shall be issuable only in fully registered form and, as permitted by Sections
301 and 302 of the Original Indenture, in denominations of $ and
integral multiples thereof. The will initially be issued under a
book-entry system, registered in the name of The Depository Trust Company, as
depository ("DTC"), or its nominee, who is hereby designated as "U.S.
Depository" under the Original Indenture.
(b) Further to Section 305 of the Original Indenture, any Global Note shall
be exchangeable for Notes registered in the name of, and a transfer of a Global
Note of any series may be registered to, any Person other than the Depository
for such Note or its nominee only if (i) such Depository notifies the Company
that it is unwilling or unable to continue as Depository for such Global Note or
if at any time such Depository ceases to be a clearing agency registered under
the Exchange Act, and, in either such case, the Company does not appoint a
successor Depository within 90 days thereafter, (ii) the Company executes and
delivers to the Trustee a Company Order that such Global Note shall be so
exchangeable and the transfer thereof so registrable or (iii) there shall have
occurred and be continuing an Event of Default or an event which, with the
giving of notice or lapse of time, or both, would constitute an Event of Default
with respect to the Notes of such series. Upon the occurrence in respect of any
Global Note of any series of any or more of the conditions specified in clause
(i), (ii) or (iii) of the preceding sentence, such Global Note may be exchanged
for Notes registered in the name of, and the transfer of such Global Note may be
registered to, such Persons (including Persons other than the Depository with
respect to such series and its nominees) as such Depository, in the case of an
exchange, and the Company, in the case of a transfer, shall direct.
SECTION 204. Interest Rate and Interest Payment Dates. (a) The
will bear interest at the rate of % per annum from the date of original
issuance until the principal thereof becomes due and payable, and on any overdue
principal and (to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the same rate per
annum during such overdue period. Interest on the will be
payable [(subject to deferral as set forth herein)] in
arrears on and of each year (each an
"Interest Payment Date"), commencing , to the persons in
whose names the are registered at the close of business on
the relevant record date for such interest installment, which will be
[Business] Day(s) prior to the relevant Interest Payment Date [or, in the case
of a Deferral Period (as described herein), one Business Day prior to the
Interest Payment Date for such Deferral Period] (each a "Record Date");
provided, however, that, in the event that any Interest Payment Date shall not
be a Business Day, then interest shall be payable on the next day that is a
Business Day (but without interest or other payment in respect of 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 without
reduction in amount due to such early payment (and in which case the relevant
Record Date shall be on the Business Day immediately preceding such Interest
Payment Date),] in each case with the same force and effect as if made on such
Interest Payment Date, [subject to certain rights of deferral described in
Section 204(b) hereof].
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[The amount of interest payable in any period will be computed on the basis
of twelve 30-day months and a 360-day year and, for any period shorter than a
full [quarterly] interest period, will be computed on the basis of the actual
number of days elapsed in such period.]
[(b) The provisions of Section 204(a) notwithstanding, the Company shall
have the right at any time, on one or more occasions so long as an Event of
Default with respect to the has not occurred and is not
continuing, to extend any interest payment period on the for
a period (a "Deferral Period") not to exceed 20 consecutive quarterly interest
payment periods; provided that the date on which such Deferral Period ends must
be an Interest Payment Date and must be no later than or
any date on which any are fixed for redemption. The quarterly
interest payments on the so deferred will continue to accrue
with interest thereon at the rate of interest of the during
such Deferral Period. On the Interest Payment Date at the end of the Deferral
Period, the Company shall pay all interest then accrued and unpaid, which shall
be compounded quarterly at the rate of interest on the (except to the extent
prohibited by law) to the date of payment, to the persons in whose names
the are registered on the Record Date for such Deferral
Period. The Company shall give the Holders of the notice of
its election to defer interest payments or to extend the Deferral Period ten
Business Days prior to the earlier of (1) the next scheduled quarterly payment
date and (2) the date the Company is required to give notice of the record date
of such related interest payment to the New York Stock Exchange or other
applicable self-regulatory organization or to the Holders of the
, but in any event not less than two Business Days prior to
such record date. During the Deferral Period the Company 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 or make any guaranty payment with
respect to the foregoing, other than redemptions of any series of Capital Stock
of the Company pursuant to the terms of any sinking fund provisions with respect
thereto. During any Deferral Period, the Company may not (i) make any
distributions, loans or guarantees for the benefit of, (ii) purchase, defease,
redeem or otherwise acquire or retire for value any securities of or (iii) make
any other investment in, any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company, for
the purpose of, or to enable the payment of, directly or indirectly, dividends
on any equity securities of DTE Energy Company and its successors or assigns.
During any Deferral Period, the Company may continue to extend the interest
payment period by extending the Deferral Period, on one or more occasions, by
notice given as aforesaid in this paragraph (b), provided that such Deferral
Period, as so extended, must end on an Interest Payment Date and in no event
shall the aggregate Deferral Period, as extended, exceed 20 consecutive
quarterly interest payment periods or extend beyond
or any date on which are fixed for redemption. No interest
shall be due and payable during a Deferral Period except at the end thereof.]
SECTION 205. Optional Redemption of . Other than in
accordance with Section 206 below, the shall not be
redeemable prior to . Thereafter, upon notice given by
mailing the same, postage prepaid, at least 30 days and not more than 60 days
prior to the date fixed for redemption, any or all of the
may be redeemed by the Company, at its option, at any time and from time to
time, at a redemption price equal to [100% of the principal amount of the
] [other redemption price] to be redeemed plus accrued and
unpaid interest thereon to the date fixed for redemption.
[SECTION 206. Tax Event Redemption of . If a Tax Event
has occurred and is continuing, the Company has the right, within 90 days
following the occurrence of such
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Tax Event, to redeem the , in whole but not in part, at a
redemption price equal to the aggregate principal amount of the
plus accrued and unpaid interest to the date of
redemption.]
SECTION 207. Form of . Attached hereto as Exhibit A is
a form of the .
[ARTICLE THREE
ADDITIONAL EVENTS OF DEFAULT AND COVENANTS
SECTION 301. Inapplicability of Certain Events of Default. The Events of
Default set forth in Sections 601(4) and 601(8) of the Original Indenture shall
not apply to the . The omission by the Company to pay
interest on the during a Deferral Period as permitted by
Section 204 shall not constitute an Event of Default under Section 601 (1) of
the Original Indenture.]
[ARTICLE FOUR
SUBORDINATION OF
SECTION 401. Subordinate to Senior Indebtedness. The Company for itself,
its successors and assigns, covenants and agrees, and each Holder of
issued, whether upon original issue or upon transfer or
assignment thereof, by its acceptance thereof likewise covenants and agrees,
that the payment of principal of and interest on each and all of the
is hereby expressly subordinated, to the extent and in the
manner hereinafter in this Article set forth, in right of payment to the prior
payment in full of all Existing and future Senior Indebtedness of the Company.
SECTION 402. Payments to Securityholders. (a) Upon (i) any acceleration of
the principal amount due on the or (ii) any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, to creditors upon any dissolution or winding-up or total
or partial liquidation or reorganization of the Company, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other proceedings, all
principal, premium, if any, and interest, if any, due upon all Senior
Indebtedness shall first be paid in full, or payment thereof provided for in
money or money's worth in accordance with its terms, before any payment is made
on account of the principal of or interest on the indebtedness evidenced by the
, and upon any such dissolution or winding-up or liquidation
or reorganization 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 under the terms of this
Supplemental Indenture would be entitled, except for the provisions hereof,
shall (subject to the power of a court of competent jurisdiction to make other
equitable provision reflecting the rights conferred by the provisions hereof
upon the Senior Indebtedness and the holders thereof with respect to the
and the Holders thereof by a lawful plan of reorganization
under applicable bankruptcy law), be paid by the Company or any receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making such
payment or distribution, or by the Holders of the if
received by them, directly to the holders of Senior Indebtedness (pro rata to
each such holder on the basis of the respective amounts of Senior Indebtedness
held by such holder) or their representatives, to the extent necessary to pay
all
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Senior Indebtedness (including interest thereon) in full, in money or money's
worth, in accordance with its terms, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Indebtedness, before any
payment or distribution is made to the Holders of the indebtedness evidenced by
the . The consolidation of the Company with, or a merger of
the Company into, another Person or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another Person upon the terms and conditions
provided in Section 901 of the Original Indenture shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the purposes of this
Section 402(a).
(b) In the event that any payment or distribution of assets of the Company
of any kind or character not permitted by Section 402(a), whether in cash,
property or securities, shall be received by the Trustee or the Holders of
before all Senior Indebtedness is paid in full, or provision
made for such payment, in accordance with its terms, upon written notice to the
Trustee or, as the case may be, such Holder, such payment or distribution shall
be held in trust for the benefit of, and shall be paid over or delivered to, the
holders of such Senior Indebtedness or their representative or representatives,
or to the Trustee or trustees under any indenture pursuant to which any
instruments evidencing any of such 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 such
Senior Indebtedness in full in accordance with its terms, after giving effect to
any concurrent payment or distribution to the holders of such Senior
Indebtedness. Nothing in this Article shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 706 of the Original Indenture. In
addition, nothing in this Article shall prevent the Company from making or the
Trustee from receiving or applying any payment in connection with the redemption
of the if the first publication of notice of such redemption (whether by mail or
otherwise in accordance with this Supplemental Indenture)
has been made, and the Trustee has received such payment from the Company, prior
to the occurrence of any of the contingencies specified in this Section 402.
(c) No payment on account of principal of or interest on the
shall be made unless full payment of amounts then due for principal, premium, if
any, sinking funds and interest on any Senior Indebtedness has been made or duly
provided for in money or money's worth in accordance with the terms of such
Senior Indebtedness. No payment on account of principal or interest on the shall
be made if, at the time of such payment or immediately after giving effect
thereto, (i) there shall exist a default in the payment of principal, premium,
if any, sinking fund or interest with respect to any Senior Indebtedness, or
(ii) there shall have occurred an event of default (other than a default in the
payment of principal, premium, if any, sinking funds or interest) with respect
to any Senior Indebtedness, as defined therein or in the instrument under which
the same is outstanding, permitting the holders thereof to accelerate the
maturity thereof and upon written notice thereof given to the Trustee, with a
copy to the Company (the delivery of which shall not affect the validity of the
notice to the Trustee), and such event of default shall not have been cured or
waived or shall not have ceased to exist; provided, however, that if the holders
of the Senior Indebtedness to which the default relates have not declared such
Senior Indebtedness to be immediately due and payable within 180 days after the
occurrence of such default (or have declared such Senior Indebtedness to be
immediately due and payable and within such period have rescinded such
declaration of acceleration), then the Company shall resume making any and all
required payments in respect of the (including any missed
payments). Only one payment blockage period under the immediately preceding
sentence may be commenced within any consecutive 365-day period with respect to
the of
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any series. No event of default which existed or was continuing on the date of
the commencement of any 180-day payment blockage period with respect to the
Senior Indebtedness initiating such payment blockage period shall be, or be
made, the basis for the commencement of a second payment blockage period by a
registered holder or representative of such Senior Indebtedness whether or not
within a period of 365 consecutive days unless such event of default shall have
been cured or waived for a period of not less than 90 consecutive days (and, in
the case of any such waiver, no payment shall be made by the Company to the
holders of Senior Indebtedness in connection with such waiver other than amounts
due pursuant to the terms of the Senior Indebtedness as in effect at the time of
such default).
SECTION 403. Subrogation to Rights of Holders of Senior Indebtedness. From
and after the payment in full of all Senior Indebtedness, the Holders of the
(together with the holders of any other indebtedness of the
Company which is subordinate in right of payment to the payment in full of all
Senior Indebtedness, which is not subordinate in right of payment to the
and which by its terms grants such right of subrogation to
the holder thereof) shall be subrogated to the rights of the holders of Senior
Indebtedness to receive payments or distributions of assets or securities of the
Company applicable to the Senior Indebtedness until the
shall be paid in full, and, for the purposes of such subrogation, no such
payments or distributions to the holders of Senior Indebtedness of assets or
securities, which otherwise would have been payable or distributable to Holders
of the , shall, as between the Company, its creditors other
than the holders of Senior Indebtedness, and the Holders of the ,
be deemed to be a payment by the Company to or on account of the Senior
Indebtedness, it being understood that the provisions of this Article are and
are intended solely for the purpose of defining the relative rights of the
Holders of the , on the one hand, and the holders of the
Senior Indebtedness, on the other hand, and nothing contained herein is intended
to or shall impair as between the Company, its creditors other than the holders
of Senior Indebtedness, and the Holders of the , the
obligation of the Company, which is unconditional and absolute, to pay to the
Holders of the the principal of and interest on the
as and when the same shall become due and payable in
accordance with their terms, or to affect the relative rights of the Holders of
the and creditors of the Company other than the holders of
the Senior Indebtedness, nor shall anything herein or therein prevent the
Trustee or the Holders of from exercising all remedies
otherwise permitted by applicable law upon default hereunder with respect to the
subject to the rights of the holders of Senior
Indebtedness, under Section 402, to receive cash, property or securities of the
Company otherwise payable or deliverable to the Trustee or the Holders of the
or to a representative of such Holders, on their behalf.
Upon any distribution or payment in connection with any proceedings or sale
referred to in Section 402(a), the Trustee and each Holder of the then
Outstanding, shall be entitled to rely upon a certificate of the liquidating
trustee or agent or other Person making any distribution or payment to the
Trustee or such Holder for the purpose of ascertaining the holders of Senior
Indebtedness entitled to participate in such payment or distribution, the amount
of such Senior Indebtedness or the amount payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this
Article.
SECTION 404. No Impairment of Subordination. Nothing contained in this
Article or elsewhere in this Supplemental Indenture
or the shall prevent at any time the Company from making
payments at any time of principal of or interest on the
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, except under the conditions described in Section 402 or
during the pendency of any proceedings or sale therein referred to.
SECTION 405. Trustee to Effectuate Subordination. Each Holder of by his
acceptance thereof, whether upon original issue or upon transfer or assignment,
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provisions in this
Article and appoints the Trustee his attorney-in-fact for any and all such
purposes.
No rights of any present or future holder 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 Trustee
or any Holder of the then Outstanding, or by any act or
failure to act, in good faith, by any such holder, or by any noncompliance by
any such holder, with the terms, provisions and covenants of this Supplemental
Indenture, regardless of any knowledge thereof which any such holder may have or
otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of or notice to the Holders of the , without
incurring responsibility to the Holders of the and without
impairing or releasing the subordination provided in this Article or the
obligations of the Holders of the to the holders of Senior
Indebtedness, do any one or more of the following: (i) change the manner, place
or terms of payment of, or renew or alter, Senior Indebtedness, or otherwise
amend or supplement in any manner Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior Indebtedness is
outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness; (iii) release any
Person liable in any manner for the collection of Senior Indebtedness; and (iv)
exercise or refrain from exercising any rights against the Company and any other
Person.
SECTION 406. Notice to Trustee. The Company shall give prompt written
notice to the Trustee in the form of an Officers' Certificate of any fact known
to the Company which would prohibit the making of any payment of money to or by
the Trustee in respect of the pursuant to the provisions of
this Article. Notwithstanding the provisions of this Article or any other
provisions of this Supplemental Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts which would
prohibit the making of any payment to or by the Trustee in respect of the
pursuant to the provisions of this Article, unless and until
the Trustee shall have received at its Corporate Trust Office written notice
thereof from the Company or a holder or holders of Senior Indebtedness or from
any trustee therefor at least two Business Days prior to such payment date; and,
prior to the receipt of any such written notice, the Trustee, shall be entitled
in all respects to assume that no such facts exist.
The Trustee shall be entitled to rely on the delivery to it of a written
notice by a Person representing himself to be a holder of Senior Indebtedness
(or a trustee on behalf of such holder) to establish that such notice has been
given by a holder of Senior Indebtedness or a trustee on behalf of any such
holder. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in
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such payment or distribution and any other facts pertinent to the rights of such
Person under the Article, and, if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
SECTION 407. Reliance on Certificate of Liquidating Agent. Upon any payment
or distribution referred to in this Article, the Trustee and the Holders of
the shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which a dissolution, winding
up or total or partial liquidation or reorganization of the Company is pending,
or a certificate of the trustee in bankruptcy, liquidating trustee, custodian,
receiver, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of
the , 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.
SECTION 408. Trustee Not Fiduciary for Holders of Senior Indebtedness. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and shall not be liable to any such holders if it shall in good
faith mistakenly pay over or distribute to Holders of the of
any series or to the Company or to any other Person cash, property or securities
to which any holders of Senior Indebtedness shall be entitled by virtue of this
Article or otherwise.
SECTION 409. Rights of Trustee as Holder of Senior Indebtedness. The
Trustee in its individual capacity shall be entitled to all the rights set forth
in this Article with respect to any Senior Indebtedness which may at any time be
held by it, to the same extent as any other holder of Senior Indebtedness, and
nothing in this Supplemental Indenture shall deprive the Trustee of any of its
rights as such holder.
SECTION 410. Article Applicable to Paying Agent. In case at any time any
Paying Agent other than the Trustee shall have been appointed by the Company and
be then acting hereunder, the term "Trustee" as used in this Article shall in
such case (unless the context shall otherwise require) be construed as extending
to and including such Paying Agent within its meaning as fully for all intents
and purposes as if such Paying Agent were named in this Article in addition to
or in place of the Trustee; provided, however, that this Section shall not apply
to the Company or any Affiliate of the Company if it or such Affiliate acts as
Paying Agent.]
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
The Trustee makes no undertaking or representations in respect of, and
shall not be responsible in any manner whatsoever for and in respect of, the
validity or sufficiency of this Supplemental Indenture or
the proper authorization or the due execution hereof by the Company or for or in
respect of the recitals and statements contained herein, all of which recitals
and statements are made solely by the Company.
Except as expressly amended hereby, the Original Indenture shall continue
in full force and effect in accordance with the provisions thereof and the
Original Indenture is in all respects hereby ratified and confirmed. This
Supplemental Indenture and all its provisions
10
shall be deemed a part of the Original Indenture in the manner and to the extent
herein and therein provided.
This Supplemental Indenture shall be governed by, and
construed in accordance with, the laws of the State of New York.
This Supplemental Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental 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.
THE DETROIT EDISON COMPANY
By: ____________________________________
Name:
Title:
ATTEST:
By: _________________________________
Name:
Title:
X.X. XXXXXX TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee
By: ____________________________________
Name:
Title:
ATTEST:
By: _________________________________
Name:
Title:
11
EXHIBIT A
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A
DEPOSITORY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TRUST COMPANY ("DTC"), TO A NOMINEE OF DTC OR BY DTC OR ANY SUCH
NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR. UNLESS THIS NOTE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.,
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC)
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL, INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
NO. R-___ $_______________
THE DETROIT EDISON COMPANY
Series % due
ISSUE PRICE ISSUE DATE CUSIP NO.
----------- ---------- ---------
THE DETROIT EDISON COMPANY, a corporation duly organized and existing under
the laws of the State of Michigan (herein referred to as the "Company," which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to Cede & Co., or registered
assigns, the principal sum of __________________________________________________
($_________________) on and to pay interest at the
rate of % per annum on said principal sum from the date of issuance
until the principal of this Security ("Note") becomes due and payable, and on
any overdue principal and (to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
same rate per annum during such overdue period. Interest on this Note will be
payable [(subject to deferral as set forth herein)] in arrears on
and of each year (each such date, an
"Interest Payment Date"), commencing .
[The amount of interest payable for any period shall be computed on the
basis of twelve 30-day months and a 360-day year and, for any period shorter
than a full interest period, will be computed on the
basis of the actual number of days elapsed in such period.] In the event that
any date on which interest is payable on this Note is not a Business Day, then
payment of the amount payable on such date will be made on the next succeeding
day which is a Business Day (and without any interest or other payment in
respect of any such delay)[, except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the
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immediately preceding Business Day without reduction in the amount due to such
early payment (and in which case the relevant Record Date shall be on the
Business Day immediately preceding such Interest Payment Date)], in each case
with the same force and effect as if made on such date[, subject to certain
rights of deferral described below]. A "Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions located in the State of Michigan or in the state in which the
principal corporate trust office of the Trustee is located are authorized or
obligated by or pursuant to law or executive order to close. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date (other than interest payable on redemption or maturity)
will, as provided in the Indenture (as defined herein), be paid to the person in
whose name this Note (or one or more Predecessor Notes, as defined in said
Indenture) is registered at the close of business on the relevant record date
for such interest installment, which shall be [Business] Day(s) prior to
the relevant Interest Payment Date [or, in the case of a Deferral Period (as
defined in the Indenture), one Business Day prior to Interest Payment Date for
such Deferral Period] (each a "Record Date"). Interest payable on redemption or
maturity shall be payable to the person to whom the principal is paid. Any such
interest installment not punctually paid or duly provided for shall forthwith
cease to be payable to the registered holders on such Record Date, and may be
paid to the person in whose name this Note (or one or more Predecessor Notes) is
registered at the close of business on a special record date to be fixed by the
Trustee for the payment of such defaulted interest, notice whereof shall be
given to the registered holders of this series of Notes not less than 10 days
prior to such special record date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. The principal of and
the interest on this Note shall be payable at the office or agency of the
Company maintained for that purpose in the Borough of Manhattan, the City of New
York, in any coin or currency of the United States of America which at the time
of payment is legal tender for payment of public and private debts; provided,
however, that payment of interest may be made at the option of the Company by
check mailed to the registered holder at the close of business on the Record
Date at such address as shall appear in the Security Register.
[Payment of the principal of and interest on this Note is, to the extent
provided in the Indenture, subordinated and subject in right of payment to the
prior payment in full of all existing and future Senior Indebtedness, as defined
in the Indenture, of the Company and this Note is issued subject to the
provisions of the Indenture with respect thereto. Each registered holder of this
Note, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee as his or her
attorney-in-fact for any and all such purposes. Each registered holder hereof,
by his or her acceptance hereof, hereby waives all notice of the acceptance of
the subordination provisions contained herein and in the Indenture by each
holder of Senior Indebtedness, whether now outstanding or hereafter incurred,
and waives reliance by each such holder upon said provisions.]
This Note shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
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Unless the Certificate of Authentication hereon has been executed by the
Trustee or a duly appointed Authentication Agent referred to herein, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
This Note is one of a duly authorized series of Notes of the Company
(herein sometimes referred to as the "Notes"), specified in the Indenture, all
issued or to be issued in one or more series under and pursuant to a Collateral
Trust Indenture dated as of June 30, 1993 (the "Original Indenture") duly
executed and delivered between the Company and X.X. Xxxxxx Trust Company,
National Association, a national banking association, as successor Trustee
(herein referred to as the "Trustee"), as supplemented (through and including
a Supplemental Indenture dated as of
(together with the Original Indenture, the "Indenture") between the Company and
the Trustee, to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the respective rights, limitations
of rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the registered holders of the Notes and of the terms upon which the
Notes are, and are to be, authenticated and delivered. By the terms of the
Indenture, the Notes are issuable in series which may vary as to amount, date of
maturity, rate of interest and in other respects as in the Indenture provided.
This series of Notes is limited in aggregate principal amount as specified in
said Supplemental Indenture.
Notwithstanding the provisions of the Original Indenture, this Note shall
be without benefit of any security [and shall be subordinated to Senior
Indebtedness (as defined in the Indenture) contemplated in Article Four of said
Supplemental Indenture]. This Note shall not have the
benefit of the provisions of Article Four of the Original Indenture and shall
not have the benefit of, or be subject to, the other related provisions of the
Original Indenture relating to the grant of security, including (for avoidance
of doubt and not for purposes of limitation) the Granting Clause, the
definitions of "Deliverable Mortgage Bonds," "Deliverable Securities,"
"Designated Mortgage Bonds," "Grant," "Mortgage," "Mortgage Bonds," "Mortgage
Trustee," "Previously Delivered Mortgage Bonds," and "Trust Estate," Section
301(20), Sections 301 (a) (v), (ix), (x) and (xi), Sections 301 (b) (ii) and
(iii), and Section 301 (d). [In addition, the Events of Default set forth in
Sections 601(4) and 601 (8) of the Original Indenture shall not apply to this
Note. The omission by the Company to pay interest on this Note during a Deferral
Period as permitted by Section 204 of said Supplemental
Indenture shall not constitute an Event of Default under Section 601(l) of the
Original Indenture.]
[The Company shall have the right to redeem this Note at the option of the
Company, without premium or penalty, in whole or in part, at any time on or
after and prior to maturity at a redemption price
equal to % of the principal amount redeemed plus the accrued and unpaid
interest thereon to the date fixed for redemption. Any redemption pursuant to
this paragraph will be made upon not less than 30, nor more than 60 days notice.
If the Notes are only partially redeemed by the Company, the Notes will be
redeemed pro rata or by lot or by any other method utilized by the Trustee;
provided that if, at the time of redemption, the Notes are registered as a
Global Note, the Depositary shall determine by lot the principal amount of such
Notes held by each Note holder to be redeemed.]
[If a Tax Event (as hereinafter defined) has occurred and is continuing,
the Company shall have the right, within 90 days following the occurrence of
such Tax Event, to redeem the Notes, in whole but not in part, at a redemption
price equal to the aggregate principal amount of the Notes plus accrued and
unpaid interest to the date of redemption. "Tax Event" means that the Company
shall have received an opinion of counsel (which may be counsel to the Company
or an
A-3
affiliate but not an employee thereof) experienced in such matters to the effect
that, as a result of 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
affecting taxation, or as a result of any official administrative pronouncement
or judicial decision interpreting or applying such laws or regulations, which
amendment or change is effective or such pronouncement or decision is announced
on or after the date of original issuance of the Notes, there is more than an
insubstantial risk that interest payable by the Company on the Notes is not, or
will not be, deductible by the Company for federal income tax purposes.]
[In the event of redemption of this Note in part only, a new Note or Notes
of this series for the unredeemed portion hereof will be issued in the name of
the registered holder hereof upon the cancellation hereof.]
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Notes may be declared,
and upon such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Note upon compliance by the Company with certain conditions
set forth therein.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the registered holders of not less than a majority in
aggregate principal amount of the outstanding Notes of each series affected at
the time, as defined in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the registered holders of the Notes;
provided, however, that no such supplemental indenture shall (i) extend the
fixed maturity of any Notes of any series, or reduce the principal amount
thereof, or reduce the rate of or extend the time of payment of interest
thereon, or reduce any premium payable upon the redemption thereof, without the
consent of the registered holder of each Note so affected or (ii) reduce the
aforesaid percentage of Notes, the registered holders of which are required to
consent to any such supplemental indenture, without the consent of the
registered holders of each Note then outstanding and affected thereby. The
Indenture also contains provisions permitting (i) the registered holders of at
least 66 2/3% in aggregate principal amount of the Notes of all series at the
time outstanding affected thereby, on behalf of the registered holders of the
Notes of such series, to waive compliance by the Company with certain provisions
of the Indenture and (ii) the registered holders of a majority in aggregate
principal amount of the Notes of all series at the time outstanding affected
thereby, on behalf of the registered holders of the Notes of such series, to
waive certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the registered bolder of this Note (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such registered
holder and upon all future registered holders and owners of this Note and of any
Note issued in exchange hereof or in place hereof (whether by registration of
transfer or otherwise), irrespective of whether or not any notation of such
consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the time and place and at the rate and in the coin or currency herein
prescribed.
A-4
[The Company shall have the right at any time, on one or more occasions, so
long as an Event of Default has not occurred and is not continuing under the
Indenture with respect to the Notes, to extend any interest payment period on
this Note to a period not to exceed 20 consecutive quarterly interest payment
periods and, as a consequence, the quarterly interest payment on the Notes would
be deferred (but would continue to accrue with interest thereon compounded
quarterly at the rate of interest on the Notes, except as provided by law)
during any such Deferral Period (as defined in the Indenture). At the end of
each Deferral Period, the Company shall pay all interest then accrued and unpaid
(compounded quarterly, at the rate of interest on the Notes, except to the
extent provided by law) to the persons in whose name the Notes are registered on
the Record Date for such Deferral Period. In the event the Company exercises
this right, the Company shall not declare or pay any dividends on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of its
Capital Stock (as defined in the Indenture) or make any guarantee payments with
respect to the foregoing during such Deferral Period, other than redemptions of
any series of Capital Stock of the Company pursuant to the terms of any sinking
fund provisions with respect thereto. In addition, during any Deferral Period,
the Company may not (i) make any distributions, loans or guarantees for the
benefit of, (ii) purchase, defease, redeem or otherwise acquire or retire for
value any securities of or (iii) make any other investment in any person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company, for the purpose of, or to enable the payment
of, directly or indirectly, dividends on any equity security of DTE Energy
Company and its successors or assigns. During any Deferral Period, the Company
may continue to extend the interest payment period by extending the Deferral
Period, provided that the aggregate Deferral Period, as extended, must end on an
Interest Payment Date and in no event shall the aggregate Deferral Period exceed
20 consecutive quarterly interest payment periods or extend beyond the maturity
of the Notes or any date on which any of the Notes are fixed for redemption. No
interest shall be due and payable on the Notes during a Deferral Period except
at the end thereof. The Company shall give the registered holders of Notes
notice of its election to defer interest payments or to extend the Deferral
Period ten Business Days prior to the earlier of (i) the next scheduled
quarterly payment date or (ii) the date the Company is required to give notice
of the record date of such related interest payment to the New York Stock
Exchange or other applicable self-regulatory organization or to the holders of
the Notes, but in any event not less than two Business Days prior to such record
date.]
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the Security Register of the
Company, upon surrender of this Note for registration of transfer at the office
or agency of the Company in any place where the principal of and any interest on
this Note are payable or at such other offices or agencies as the Company may
designate, duly endorsed by or accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company and the Security
Registrar or any transfer agent duly executed by the registered holder hereof or
his or her attorney duly authorized in writing, and thereupon one or more new
Notes of this series and of like tenor, of authorized denominations and for the
same aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Note, the
Company, the Trustee, any paying agent and any Note Registrar may deem and treat
the registered holder hereof
A-5
as the absolute owner hereof (whether or not this Note shall be overdue and
notwithstanding any notice of ownership or writing hereon made by anyone other
than the Note Registrar) for the purpose of receiving payment of or on account
of the principal hereof and interest due hereon and for all other purposes, and
neither the Company nor the Trustee nor any paying agent nor any Note Registrar
shall be affected by any notice to the contrary.
The Notes of this series are issuable only in fully registered form without
coupons in denominations of $ and any integral multiple
thereof. This Global Note is exchangeable for Notes in definitive form only
under certain limited circumstances set forth in the Indenture. Notes of this
series so issued are issuable only in registered form without coupons in
denominations of $ and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Notes of this series are exchangeable for a like aggregate principal amount of
Notes of this series of a different authorized denomination, as requested by the
registered holder surrendering the same.
As set forth in, and subject to the provisions of, the Indenture, no
registered owner of any Note will have any right to institute any proceeding
with respect to the Indenture or for any remedy thereunder, unless (i) such
registered owner shall have previously given to the Trustee written notice of a
continuing Event of Default with respect to the Notes of this series, (ii) the
registered owners of not less than 25% in principal amount of the outstanding
Notes of this series shall have made written request, and offered reasonable
indemnity, to the Trustee to institute such proceeding as trustee, (iii) the
Trustee shall have failed to institute such proceeding within 60 days and (iv)
the Trustee shall not have received from the registered owners of a majority in
principal amount of the outstanding Notes of this series a direction
inconsistent with such request within such 60-day period; provided, however,
that such limitations do not apply to a suit instituted by the registered owner
hereof for the enforcement of payment of the principal of or any interest on
this Note on or after the respective due dates expressed herein, subject to
deferral as set forth herein.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
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IN WITNESS WHEREOF, the Company has caused this Instrument to be executed.
THE DETROIT EDISON COMPANY
[Corporate Seal]
By: ____________________________________
Name:
Title:
Attest:
By: _________________________________
Name:
Title:
A-7
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes described in the within
mentioned Indenture.
X.X. XXXXXX TRUST COMPANY,
NATIONAL ASSOCIATION
as Trustee
By: ____________________________________
Authorized Signatory
Date: __________________
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FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
_______________________________________________________________________
(Please insert Social Security or Other Identifying Number of Assignee)
_______________________________________________________________________
(Please print or type name and address, including zip code of assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorneys to transfer the within Note on the books of the
Issuer, with full power of substitution in the premises.
Dated: ___________________
NOTICE: The signature of this assignment must correspond with the name as
written upon the face of the within Note in every particular, without alteration
or enlargement or any change whatever and NOTICE: Signature(s) must be
guaranteed by a financial institution that is a member of the Securities
Transfer Agents Medallion Program ("STAMP"), the Stock Exchange, Inc. Medallion
Signature Program ("MSP"). When assignment is made by a guardian, trustee,
executor or administrator, an officer of a corporation, or anyone in a
representative capacity, proof of his or her authority to act must accompany
this Note.
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