EXHIBIT 4.1
-------------------------------------------------------------------------------
THE DETROIT EDISON COMPANY
AND
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION
(SUCCESSOR TO BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION)
TRUSTEE
---------------
SIXTEENTH SUPPLEMENTAL INDENTURE
DATED AS OF APRIL 1, 2005
---------------
SUPPLEMENTING THE COLLATERAL TRUST INDENTURE
DATED AS OF JUNE 30, 1993
PROVIDING FOR
2005 SERIES AR 4.80% SENIOR NOTES DUE 2015
AND
2005 SERIES BR 5.45% SENIOR NOTES DUE 2035
--------------------------------------------------------------------------------
SUPPLEMENTAL INDENTURE, dated as of the 1st day of April, 2005, 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 (successor to Bank One 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 City of
Detroit, Michigan, as 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 additional
series of its senior debt securities pursuant to the Original Indenture; and
WHEREAS, the Company intends hereby to designate series of debt securities
which shall have the benefit of the provisions of Article Four of the Original
Indenture and the other related provisions of the Original Indenture relating to
the grant of security, subject to the release provisions provided for herein,
and which shall have the terms and variations from the provisions of the
Original Indenture as set forth herein; 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 Sixteenth 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,
series of its debt securities under the Original Indenture, which shall be known
as the 2005 Series AR 4.80% Senior Notes due 2015 and 2005 Series BR 5.45%
Senior Notes due 2035; 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
Sixteenth Supplemental Indenture a valid, binding and legal agreement of the
Company, have been done;
NOW, THEREFORE, THIS SIXTEENTH SUPPLEMENTAL INDENTURE WITNESSETH that, in
order to establish the terms of series of debt securities, and for and in
consideration of the premises and of the covenants contained in the Original
Indenture and in this Sixteenth 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 1.01. Definitions. Each capitalized term that is used herein and
is defined in the Original Indenture shall have the meaning specified in the
Original Indenture unless such term is otherwise defined herein. The following
terms shall have the respective meanings set forth below:
"Business Day" means any day other than a day on which banking
institutions in the State of New York or the State of Michigan are authorized or
obligated pursuant to law or executive order to close.
"Capitalization" means the total of all the following items appearing on,
or included in, the consolidated balance sheet of the Company: (i) liabilities
for indebtedness maturing more than 12 months from the date of determination;
and (ii) common stock, common stock expense, accumulated other comprehensive
income or loss, preferred stock, preference stock, premium on capital stock and
retained earnings (however the foregoing may be designated), less, to the extent
not otherwise deducted, the cost of shares of capital stock of the Company held
in its treasury, if any. Subject to the foregoing, Capitalization shall be
determined in accordance with generally accepted accounting principles and
practices applicable to the type of business in which the Company is engaged and
may be determined as of a date not more than 60 days prior to the happening of
the event for which the determination is being made. In connection with such
determination, the Company shall certify to the Trustee that it has, prior to
making its final determination, consulted with the independent accountants
regularly retained by the Company.
"Debt" means any outstanding debt for money borrowed evidenced by notes,
debentures, bonds or other securities, or guarantees of any debt.
"Net Tangible Assets" means the amount shown as total assets on the
consolidated balance sheet of the Company, less (i) intangible assets including,
but without limitation, such items as goodwill, trademarks, trade names,
patents, unamortized debt discount and expense and other regulatory assets
carried as an asset on the Company's consolidated balance sheet, and (ii)
appropriate adjustments, if any, on account of minority interests. Net Tangible
Assets shall be determined in accordance with generally accepted accounting
principles and practices applicable to the type of business in which the Company
is engaged and may be determined as of a date not more than 60 days prior to the
happening of the event for which such determination is being made. In connection
with such determination, the Company shall certify to the Trustee that it has,
prior to making its final determination, consulted with the independent
accountants regularly retained by the Company.
2
"Operating Property" means (i) any interest in real property owned by the
Company and (ii) any asset owned by the Company that is depreciable in
accordance with generally accepted accounting principles, excluding, in either
case, any interest of the Company as lessee under any lease (except for a lease
that results from a Sale and Lease-Back Transaction) that has been or would be
capitalized on the books of the lessee in accordance with generally accepted
accounting principles.
"Pledged Bonds" means the related series of Bonds and any other Mortgage
Bonds issued to secure Securities subject to the release provisions provided
herein or in any other supplemental indenture to the Original Indenture.
"Registration Agreement" means the Registration Rights Agreement dated
February 7, 2005, among the Company, Citigroup Global Markets Inc. and Barclays
Capital Inc., as Representatives of the several initial purchasers referred to
therein.
"Release Date" means the date as of which all Mortgage Bonds, (i) other
than the Pledged Bonds, including the related series of Bonds, and (ii) other
than outstanding Mortgage Bonds (exclusive of Pledged Bonds), which do not in
aggregate principal amount exceed the greater of 5% of the Net Tangible Assets
of the Company or 5% of the Capitalization of the Company, have been retired
through payment, redemption or otherwise, provided that no default or Event of
Default has occurred and, at such time, is continuing under the Original
Indenture.
"Sale and Lease-Back Transaction" means any arrangement with any person
providing for the leasing to the Company of any Operating Property (except for
leases for a term, including any renewal or potential renewal, of not more than
48 months), which Operating Property has been or is to be sold or transferred by
the Company to the person; provided, however, Sale and Lease-Back Transaction
shall not include any arrangement first entered into prior to the date hereof
and shall not include any transaction pursuant to which the Company sells
Operating Property to, and thereafter purchases energy or services from, any
entity, which transaction is ordered or authorized by any regulatory authority
having jurisdiction over the Company or its operations or is entered into
pursuant to any plan or program of industry restructuring ordered or authorized
by any such regulatory authority.
"Securities Act" means the Securities Act of 1933, as amended.
"Substitute Mortgage" means a mortgage indenture of the Company, other
than the Mortgage, designated by the Company to the Trustee as a Substitute
Mortgage pursuant to Section 4.03 hereof. The lien of the Substitute Mortgage
shall have such priority, and be with respect to such property, as shall be
specified by the Company in its sole discretion.
"Substitute Mortgage Bonds" means any mortgage bonds issued by the Company
under a Substitute Mortgage and delivered to the Trustee pursuant to Section
4.03 hereof
3
or pursuant to the comparable provision of any other supplemental indenture
relating to Securities subject to the release provisions.
"Value" means, with respect to a Sale and Lease-Back Transaction, as of
any particular time, the amount equal to the greater of (i) the net proceeds to
the Company from the sale or transfer of the property leased pursuant to the
Sale and Lease-Back Transaction or (ii) the net book value of the property, as
determined by the Company in accordance with generally accepted accounting
principles at the time of entering into the Sale and Lease-Back Transaction, in
either case multiplied by a fraction, the numerator of which shall be equal to
the number of full years of the term of the lease that is part of the Sale and
Lease-Back Transaction remaining at the time of determination and the
denominator of which shall be equal to the number of full years of the term,
without regard, in any case, to any renewal or extension options contained in
the lease.
SECTION 1.02. Section References. Each reference to a particular section
set forth in this Sixteenth Supplemental Indenture shall, unless the context
otherwise requires, refer to this Sixteenth Supplemental Indenture.
ARTICLE TWO
TITLE AND TERMS OF THE SECURITIES
SECTION 2.01. Title of the Securities; Stated Maturity. This Sixteenth
Supplemental Indenture hereby establishes two separate series of Securities,
which shall be known as the Company's "2005 Series AR 4.80% Senior Notes due
2015" (the "4.80% Notes") and the "2005 Series BR 5.45% Senior Notes due 2035"
(the "5.45% Notes," and together with the 4.80% Notes, the "Notes"). For
purposes of the Original Indenture, each series of the Notes shall separately
constitute a single series of Securities. The Stated Maturity on which the
principal of the 4.80% Notes shall be due and payable will be February 15, 2015.
The Stated Maturity on which the principal of the 5.80% Notes shall be due and
payable will be February 15, 2035.
SECTION 2.02. Certain Variations from the Original Indenture. (a) The
Notes shall have the benefit of the provisions of Article Four of the Original
Indenture and shall 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), subject, in each
case, to the release provisions provided for in Section 4.02 herein. In
addition, on and after the Release Date, unless Substitute Mortgage Bonds are
issued to secure the Notes, the Notes shall have the benefit of the additional
covenants set forth in Article Three hereof.
4
(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 Sixteenth
Supplemental Indenture, there has been a change in the applicable U.S. Federal
income tax law, in either case to the effect that, the Holders of such
Outstanding Notes appertaining thereto will not recognize income, gain or loss
for U.S. Federal income tax purposes as a result of such defeasance and will be
subject to U.S. 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 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 2.03. Amount and Denominations; DTC.
(a) The aggregate principal amount of Notes that may be issued under this
Sixteenth Supplemental Indenture is limited initially to $200,000,000 (in the
case of the 4.80% Notes), and $200,000,000 (in the case of the 5.45% Notes)
(except, in each case, as provided in Section 301(2) of the Original Indenture);
provided that the Company may, without the consent of the Holders of the
Outstanding Notes of any series, "reopen" each series of the Notes so as to
increase the aggregate principal amount of such Notes Outstanding in compliance
with the procedures set forth in the Original Indenture, including Section 301
and Section 303 thereof, so long as any such additional Notes have the same
terms, conditions and CUSIP number (including, without limitation, rights to
security and to receive accrued and unpaid interest) as the Notes of such series
then Outstanding. No additional Notes of a series may be issued if an Event of
Default has occurred with respect to that series. The Notes shall be issuable
only in fully registered form and, as permitted by Section 301 and Section 302
of the Original Indenture, in denominations of $1,000 and integral multiples
thereof. The Notes will initially be issued in global form (the "Global
Securities") under a book-entry system, registered in the name of The Depository
Trust Company, as depository ("DTC"), or its nominee, which is hereby designated
as "Depository" under the Indenture.
(b) If (i) the Depository notifies the Company that it is unwilling or
unable to continue as Depository for such Global Securities or if at any time
such Depository ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, and, in either such case, the Company does not appoint a
successor Depository within 90 days thereafter, or (ii) 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
5
of Default, certificates for the Notes will be registered and delivered to the
Holders of record. Upon receipt of a withdrawal request from the Company, the
Depository will notify its participants of the receipt of a withdrawal request
from the Company, notifying participants that they may utilize the Depository's
withdrawal procedures if they wish to withdraw their securities from the
Depository. To the extent that the book-entry system is discontinued or, if the
Company fails to appoint a successor Depository, certificates for the Notes will
be registered and delivered to the Holders of record.
SECTION 2.04. Certain Terms of the Notes.
(a) The 4.80% Notes shall bear interest at the rate of 4.80% per annum and
the 5.45% Notes shall bear interest at the rate of 5.45% per annum on the
respective principal amount thereof from February 7, 2005, or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, until the principal of such series of Notes becomes due and payable, and on
any overdue principal and premium and (to the extent that payment of such
interest is enforceable under applicable law) on any overdue installment of
interest at the same rate per annum during such overdue period. The Notes shall
bear additional interest ("Additional Interest") pursuant to the Registration
Agreement upon the occurrence of any Registration Default (as defined therein).
Additional Interest shall be payable on the applicable Interest Payment Date to
the same persons and in the same manner as provided for herein for payment of
ordinary interest. Interest on the Notes will be payable semi-annually in
arrears on February 15 and August 15 of each year (each such date, an "Interest
Payment Date"), commencing August 15, 2005. The amount of interest payable for
any period shall be computed on the basis of a 360-day year and twelve 30-day
months.
(b) In the event that any Interest Payment Date, redemption date or other
date of Maturity of the Notes is not a Business Day, then payment of the amount
payable on such date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of any such delay), in
each case with the same force and effect as if made on such date. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date with respect to any Note will, as provided in the Original
Indenture, be paid to the person in whose name the Note (or one or more
Predecessor Securities, as defined in the Original Indenture) is registered at
the close of business on the relevant record date for such interest installment,
which shall be the fifteenth calendar day (whether or not a Business Day) prior
to the relevant Interest Payment Date (the "Regular Record Date"). Any such
interest installment not punctually paid or duly provided for shall forthwith
cease to be payable to the registered Holders on such Regular Record Date, and
may either be paid to the person in whose name the Note (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date to be fixed by the Trustee for the payment of such defaulted
interest, notice whereof shall be given to the registered Holders of the
applicable Notes not less than ten days prior to such Special Record Date, or
may be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Notes may be listed, and
upon such notice as may be
6
required by such exchange, all as more fully provided in the Original Indenture.
The principal of, and premium, if any, and the interest on the Notes shall be
payable at the office or agency of the Company maintained for that purpose in
the Borough of Manhattan, the City of New York, in any coin or currency of the
United States of America that at the time of payment is legal tender for payment
of public and private debts; provided, however, that payment of interest may be
made at the option of the Company by check mailed to the registered Holder at
the close of business on the Regular Record Date at such address as shall appear
in the Security Register. Notwithstanding the foregoing, so long as the Notes
are Global Securities and are held in book-entry form through the facilities of
the Depository, payments on the Notes will be made to the Depository or its
nominee in accordance with arrangements then in effect between the Trustee and
the Depository.
(c) The Notes are not subject to repayment at the option of the Holders
thereof and are not subject to any sinking fund. As provided in the forms of
Notes attached hereto as Exhibit A and Exhibit B, respectively, the Notes are
subject to optional redemption, as a whole or in part, by the Company prior to
Stated Maturity of the principal thereof on the terms set forth therein. Except
as modified in the forms of Notes, redemptions shall be effected in accordance
with Article Twelve of the Original Indenture.
(d) The Notes shall have such other terms and provisions as are set forth
in the forms of Notes attached hereto as Exhibit A and Exhibit B, as applicable
(each of which are incorporated by reference in and made a part of this
Sixteenth Supplemental Indenture as if set forth in full at this place).
SECTION 2.05. Forms of Notes. Attached hereto as Exhibit A is the form of
the definitive 4.80% Note. Attached hereto as Exhibit B is the form of the
definitive 5.45% Note. If the Company elects to have the Notes secured by
Substitute Mortgage Bonds on and after the Release Date, the terms of such Notes
shall be amended to make appropriate reference to the Substitute Mortgage and
the Substitute Mortgage Bonds; provided, that the consent of Holders shall not
be required in connection with such amendment.
ARTICLE THREE
ADDITIONAL COVENANTS
SECTION 3.01. Limitations on Liens. (a) From and after the Release Date,
unless Substitute Mortgage Bonds are issued to secure the Notes, so long as any
Notes are outstanding, the Company may not issue, assume, guarantee (including
any contingent obligation to purchase) or permit to exist any Debt that is
secured by any mortgage, security interest, pledge or lien ("Lien") of or upon
any Operating Property owned by the Company, whether owned at the Release Date
or subsequently acquired, without effectively securing the Notes (together with,
if the Company shall so determine,
7
any other indebtedness of the Company ranking equally with the Notes) equally
and ratably with the Debt (but only so long as the Debt is so secured).
The foregoing restriction will not apply to:
(i) Liens on any Operating Property existing at the time of its
acquisition and not created in contemplation of the acquisition;
(ii) Liens on Operating Property of a corporation existing at the time
the corporation is merged into or consolidated with the Company, or
at the time the corporation disposes of substantially all of its
properties (or those of a division) to the Company, provided that
the Lien is not extended to property owned by the Company
immediately prior to the merger, consolidation or other disposition
and is not created in contemplation of the merger, consolidation or
other disposition;
(iii) Liens on Operating Property to secure the cost of acquisition,
construction, development or substantial repair, alteration or
improvement of such property or to secure indebtedness incurred to
provide funds for any of these purposes or for reimbursement of
funds previously expended for any of these purposes, provided the
Liens are created or assumed contemporaneously with, or within 18
months after, the acquisition or the completion of substantial
repair or alteration, construction, development or substantial
improvement or within 6 months thereafter pursuant to a commitment
for financing arranged with a lender or investor within such
18-month period;
(iv) Liens in favor of the United States or any state or any department,
agency or instrumentality or political subdivision of the United
States or any state, or for the benefit of holders of securities
issued by any of these entities, to secure any Debt incurred for the
purpose of financing all or any part of the purchase price or the
cost of substantially repairing or altering, constructing,
developing or substantially improving the Operating Property; or
(v) Any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any Lien referred
to in the exceptions listed above, provided, however, that the
principal amount of Debt secured thereby and not otherwise
authorized by those exceptions listed above shall not exceed the
principal amount of Debt, plus any premium or fee payable in
connection with any such extension, renewal or replacement, so
secured at the time of such extension, renewal or replacement.
8
(b) Notwithstanding the foregoing restrictions, the Company may issue,
assume or guarantee Debt secured by a Lien which would otherwise be subject to
the foregoing restrictions up to an aggregate amount which, together with all
other of the Company's secured Debt (not including secured Debt permitted under
any of the foregoing exceptions) and the Value of Sale and Lease-Back
Transactions existing at such time (other than Sale and Lease-Back Transactions
the proceeds of which have been applied to the retirement of certain
indebtedness, Sale and Lease-Back Transactions in which the property involved
would have been permitted to be subjected to a Lien under any of the foregoing
exceptions, and Sale and Lease-Back Transactions that are permitted by the first
sentence of Section 3.02 below), does not exceed the greater of 10% of the
Company's Net Tangible Assets or 10% of the Company's Capitalization. The
foregoing restrictions do not limit the Company's ability to place Liens on (i)
the capital stock of any of the Company's subsidiaries or (ii) the assets of any
of the Company's subsidiaries.
SECTION 3.02. Limitations on Sale and Lease-Back Transactions. So long as
the Notes are outstanding from and after the Release Date, unless Substitute
Mortgage Bonds are issued to secure the Notes, the Company may not enter into or
permit to exist any Sale and Lease-Back Transaction with respect to any
Operating Property (except for leases for a term, including any renewal or
potential renewal, of not more than 48 months), if the purchaser's commitment is
obtained more than 18 months after the later of the completion of the
acquisition, construction or development of the Operating Property or the
placing in operation of the Operating Property or of the Operating Property as
constructed or developed or substantially repaired, altered or improved. This
restriction will not apply if (a) the Company would be entitled pursuant to
Section 3.01(a) above to issue, assume, guarantee or permit to exist Debt
secured by a Lien on the Operating Property without equally and ratably securing
the Notes, (b) after giving effect to the Sale and Lease-Back Transaction,
pursuant to Section 3.01(b) above, the Company could incur, at least $1.00 of
additional Debt secured by Liens (other than Liens permitted by clause (a)), or
(c) the Company applies within 180 days an amount equal to, in the case of a
sale or transfer for cash, the net proceeds (not less than the fair value of the
Operating Property so leased), and, otherwise, an amount equal to the fair value
(as determined by the Board of Directors of the Company) of the Operating
Property so leased to the retirement of Notes or other Debt of the Company
ranking equally with the Notes; provided, however, that any such retirement of
Notes shall be in accordance with the terms and provisions of the Indenture and
the Notes; provided, further, that the amount to be applied to such retirement
of Notes or other Debt shall be reduced by an amount equal to the sum of (a) an
amount equal to the redemption price with respect to Notes delivered within such
one hundred eighty (180)-day period to the Trustee for retirement and
cancellation and (b) the principal amount, plus any premium or fee paid in
connection with any redemption in accordance with the terms of other Debt
voluntarily retired by the Company within such one hundred eighty (180)-day
period, excluding in each case retirements pursuant to mandatory sinking fund or
prepayment provisions and payments at Stated Maturity.
9
SECTION 3.03. Waiver. Section 1109 of the Original Indenture shall apply
to the covenants set forth in Sections 3.01 and 3.02 above at any time such
covenants are in effect.
ARTICLE FOUR
SECURITY AND RELEASE PROVISIONS
SECTION 4.01. Security. Subject to Section 4.02 below, as provided in and
pursuant to Article Four of the Original Indenture, each series of the Notes
will be secured as to payments of principal, interest and premium, if any, by a
series of Mortgage Bonds (the "General and Refunding Mortgage Bonds, 2005 Series
AR", in the case of the 4.80% Notes, and the "General and Refunding Mortgage
Bonds, 2005 Series BR ", in the case of the 5.45% Notes, or singly or
collectively, the "Bonds", the "Bonds of the related series" or the "related
series of Bonds") of the Company to be issued concurrently with the issuance of
the Notes under and secured by a Mortgage and Deed of Trust, dated as of October
1, 1924, between the Company and X.X. Xxxxxx Trust Company, National
Association, as successor trustee (the "Mortgage Trustee"), as amended and
supplemented by various supplemental indentures, including the supplemental
indenture, dated as of April 1, 2005, creating the Bonds (collectively, the
"Mortgage"), pledged by the Company for the benefit of the Holders of the
respective series of Notes to the Trustee under this Sixteenth Supplemental
Indenture. The Bonds of each series shall be issued in an aggregate principal
amount equal to the aggregate principal amount of the related series of the
Notes.
SECTION 4.02. Release. Until the Release Date and subject to Article Four
of the Original Indenture, the Bonds of the related series issued and delivered
to the Trustee shall serve as security for any and all obligations of the
Company under all Notes of the applicable series from time to time Outstanding,
including, but not limited to (1) the full and prompt payment of the principal
and premium, if any, on such Notes when and as the same shall become due and
payable in accordance with the terms and provisions of the Indenture or such
Notes, either at the Stated Maturity thereof, upon acceleration of the maturity
thereof, upon redemption, or otherwise, and (2) the full and prompt payment of
any interest on such Notes when and as the same shall become due and payable in
accordance with the terms and provisions of this Indenture or such Notes
including, if and to the extent provided for in such Notes, interest on overdue
installments of principal and (to the extent permitted by law) interest on
overdue installments of interest.
Each supplemental indenture to the Mortgage pursuant to which any Bonds
are issued shall contain a provision to the effect that any payment by the
Company hereunder of principal of or premium or interest on Notes which shall
have been authenticated and delivered in connection with the issuance and
delivery to the Trustee of such Bonds (other than by the application of the
proceeds of a payment in respect of such Bonds) shall to the extent thereof, be
deemed to satisfy and discharge the obligation of the
10
Company, if any, to make a payment of principal, premium or interest, as the
case may be, in respect of such Bonds which is then due.
Notwithstanding anything in the Original Indenture to the contrary, from
and after the Release Date, the obligation of the Company to make payment with
respect to the principal of and premium, if any, and interest on the Bonds shall
be deemed satisfied and discharged as provided in the supplemental indenture or
indentures to the Mortgage creating such Bonds and the Bonds shall cease to
secure in any manner Notes theretofore or subsequently issued; the Trustee shall
thereupon surrender the Bonds to the Mortgage Trustee for cancellation and
execute and deliver such proper instruments of release as may be required. From
and after the Release Date, all Notes, whether theretofore or subsequently
issued, shall, at the Company's option, either (i) become unsecured or (ii) be
secured by Substitute Mortgage Bonds pursuant to Section 4.03 below, and any
conditions to the issuance of Notes that refer or relate to Bonds or the
Mortgage shall be inapplicable (except as such conditions shall be deemed to
refer to Substitute Mortgage Bonds or a Substitute Mortgage pursuant to Section
4.03 below). From and after the Release Date, the Company shall not issue any
additional Mortgage Bonds, including Pledged Bonds, under the Mortgage. Notice
of the occurrence of the Release Date shall be given by the Trustee to the
Holders of the Notes in the manner provided for in the Original Indenture not
later than 30 days after the Company notifies the Trustee of the occurrence of
the Release Date.
In connection with the establishment of the occurrence of the Release
Date, the Trustee shall be entitled to receive, may presume the correctness of,
and shall be fully protected in relying upon, an Officers' Certificate
designating the Release Date and stating that the conditions to the occurrence
of the Release Date have been satisfied.
When the obligation of the Company to make payments with respect to the
principal of, and premium, if any, and interest on all or any part of the Bonds
shall be satisfied or deemed satisfied pursuant to the Original Indenture or
pursuant to this Sixteenth Supplemental Indenture, the Trustee shall, upon
written request of the Company, deliver to the Company without charge therefor
all of the Bonds so satisfied or deemed satisfied, together with such
appropriate instruments of transfer or release as may be reasonably requested by
the Company. All Bonds delivered to the Company in accordance with this Section
shall be delivered by the Company to the Mortgage Trustee for cancellation.
SECTION 4.03. Substitute Mortgage Bonds.
(a) The Company shall notify the Trustee not less than 90 days prior to
the Release Date (or such shorter period as the Company and the Trustee may
agree) that the Company has determined to deliver to the Trustee on the Release
Date Substitute Mortgage Bonds in an aggregate principal amount equal to the
aggregate principal amount of Notes and any other Securities subject to the
release provisions Outstanding on the Release Date, in trust for the benefit of
the Holders from time to time of the Notes
11
and any other Securities subject to the release provisions issued under the
Original Indenture, as supplemented, as security for any and all obligations of
the Company under the Notes and any other Securities subject to the release
provisions, including but not limited to, (1) the full and prompt payment of the
principal of and premium, if any, on the Notes and any other Securities subject
to the release provisions when and as the same shall become due and payable in
accordance with the terms and provisions of the Original Indenture, as
supplemented, or the Notes or such other Securities subject to the release
provisions, either at the stated maturity thereof, upon acceleration of the
maturity thereof or upon redemption, and (2) the full and prompt payment of any
interest on the Notes and any other Securities subject to the release provisions
when and as the same shall become due and payable in accordance with the terms
and provisions of the Original Indenture, as supplemented, or the Notes or such
other Securities subject to the release provisions.
(b) The Substitute Mortgage Bonds to be delivered pursuant to the notice
described in Section 4.03(a) shall be delivered in separate series and issues
corresponding to the series and issues of Notes and other Securities subject to
the release provisions Outstanding on the Release Date, each series or issue of
Substitute Mortgage Bonds having the same stated rate or rates of interest (or
interest calculated in the same manner), Interest Payment Dates, stated maturity
date and redemption provisions, and in the same aggregate principal amount, as
the related series or issue of Notes or other Securities subject to the release
provisions outstanding on the Release Date. The Company shall enter into a
Substitute Mortgage for the issuance of Substitute Mortgage Bonds, and designate
it as such in the notice.
(c) The notice described in Section 4.03(a) shall also state that on the
Release Date the Company shall deliver to the Trustee a supplemental indenture
to the Original Indenture that will provide, among other things, that upon the
issuance of Notes and other Securities subject to the release provisions on or
after the Release Date, the Company shall deliver to the Trustee in trust for
the benefit of the Holders as described in Section 4.03(a) hereof, and the
Trustee shall accept therefor, related series of Substitute Mortgage Bonds
registered in the name of the Trustee and conforming to the requirements therein
specified.
(d) The determination whether to deliver Substitute Mortgage Bonds shall
be made in the Company's sole discretion and without any obligation to do so.
(e) In the event that the Company does not deliver the notice described in
Section 4.03(a), the Notes and other Securities subject to the release
provisions Outstanding on the Release Date shall, as of the Release Date, no
longer be entitled to the benefit of the pledge of the Pledged Bonds and shall
thereafter be general unsecured obligations of the Company.
(f) Article Four and related provisions of the Original Indenture shall
apply to Substitute Mortgage Bonds pledged to the Trustee hereunder and the
provisions thereof shall be deemed to refer to the Substitute Mortgage and the
Substitute Mortgage
12
Bonds. If the Company elects to have the Notes secured by Substitute Mortgage
Bonds on and after the Release Date, Article Four and related provisions may be
amended to make appropriate reference to the Substitute Mortgage and the
Substitute Mortgage Bonds; provided, that the consent of Holders shall not be
required in connection with such amendment.
SECTION 4.04. Events of Default.
(a) On and after the Release Date, Section 601(8) of the Original
Indenture shall no longer apply to the Notes.
For purposes of the Notes, Section 601(8) of the Original Indenture shall
read "the occurrence of an "event of default" as such term is defined in the
Mortgage; or"
(b) On and after the Release Date, if the Notes become secured by
Substitute Mortgage Bonds pursuant to Section 4.03 above, the occurrence of a
"default" (as defined in the Substitute Mortgage) shall constitute an Event of
Default under Section 601 of the Original Indenture with respect to the Notes
and the references in Section 601(4) of the Original Indenture and related
provisions to "Mortgage Bonds" shall be deemed to refer to "Substitute Mortgage
Bonds."
ARTICLE FIVE
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 Sixteenth 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 and by the supplemental indenture
appointing the Trustee as successor trustee, 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
Sixteenth Supplemental Indenture and all its provisions shall be deemed a part
of the Original Indenture in the manner and to the extent herein and therein
provided.
This Sixteenth Supplemental Indenture and the Notes shall be governed by,
and construed in accordance with, the laws of the State of New York.
This Sixteenth 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.
13
IN WITNESS WHEREOF, the parties hereto have caused this Sixteenth
Supplemental Indenture to be duly executed and attested, all as of the day and
year first above written.
THE DETROIT EDISON COMPANY
By:__________________________________
Name:
Title:
ATTEST:
By:__________________________________
Name:
Title:
14
X.X. XXXXXX TRUST COMPANY,
NATIONAL ASSOCIATION, as Trustee
By: _______________________________
Name:
Title:
ATTEST:
By: ___________________________
Name:
Title:
15
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
2005 Series AR 4.80% SENIOR NOTES DUE 2015
Principal Amount: $200,000,000
Authorized Denomination: $1,000
Regular Record Date: close of business on the 15th calendar day (whether or not
a Business Day) prior to the relevant Interest Payment Date
Original Issue Date: February 7, 2005
Stated Maturity: February 15, 2015
Interest Payment Dates: February 15 and August 15 of each year, commencing
August 15, 2005
Interest Rate: 4.80% per annum
THE DETROIT EDISON COMPANY, a corporation duly organized and existing
under the laws of the State of Michigan (the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to Cede & Co., or registered assigns, at the
office or agency of the Company in The City of New York, New York, the principal
sum of _____________________ ($____________) on February 15, 2015 (the "Stated
Maturity"), in the coin or currency of the United States, and to pay interest
thereon from February 7, 2005, or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, in arrears on each Interest
Payment Date as specified above, commencing on August 15, 2005, and on the
Stated Maturity at the rate per annum shown above (the "Interest Rate") until
the principal hereof is due and payable, and on any overdue
A-1
principal and premium and on any overdue installment of interest. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the Person
in whose name this Note (or one or more Predecessor Securities) is registered on
the Regular Record Date as specified above next preceding such Interest Payment
Date. Except as otherwise provided in the Indenture, 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 Note (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date to be fixed by the Trustee for the
payment of such defaulted Interest, notice whereof shall be given to Holders of
Notes of this series not less than ten days prior to such Special Record Date,
or may be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange, if any, on which the Notes of this
series shall be listed, and upon such notice as may be required by any such
exchange, all as more fully provided in the Indenture.
Payments of interest on this Note will include interest accrued to but
excluding the respective Interest Payment Dates. Interest payments for this Note
shall be computed and paid on the basis of a 360-day year of twelve 30-day
months. The Company shall pay interest on overdue principal and premium, if any,
and, to the extent lawful, on overdue installments of interest at the rate per
annum borne by this Note. In the event that any Interest Payment Date,
Redemption Date or Maturity Date is not a Business Day, then the required
payment of principal, premium, if any, and interest will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay), in each case with the same force and effect as if
made on such date. "Business Day" means any day other than a day on which
banking institutions in the State of New York or the State of Michigan are
authorized or obligated pursuant to law or executive order to close.
Payment of principal of, premium, if any, and interest on the Notes shall
be made in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts. Payments of
principal of, premium, if any, and interest on Notes represented by a Global
Security shall be made by wire transfer of immediately available funds to the
Holder of such Global Security, provided that, in the case of payments of
principal and premium, if any, such Global Security is first surrendered to the
Paying Agent (as defined in the Indenture). If any of the Notes of this series
are no longer represented by a Global Security, (i) payments of principal,
premium, if any, and interest due at the Stated Maturity or earlier redemption
of such Securities shall be made at the office of the Paying Agent upon
surrender of such Securities to the Paying Agent, and (ii) payments of interest
shall be made, at the option of the Company, subject to such surrender where
applicable, by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register.
UNTIL THE RELEASE DATE (AS DEFINED BELOW), THIS NOTE SHALL BE SECURED BY
GENERAL AND REFUNDING MORTGAGE BONDS, 2005 Series AR (THE "MORTGAGE BONDS")
ISSUED AND DELIVERED BY THE COMPANY TO THE TRUSTEE (AS DEFINED BELOW) UNDER THE
COMPANY'S SUPPLEMENTAL INDENTURE DATED AS OF April 1, 2005, SUPPLEMENTING THE
MORTGAGE AND DEED OF TRUST DATED AS OF OCTOBER 1, 1924 BETWEEN THE COMPANY AND
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION (THE "MORTGAGE TRUSTEE"),
PLEDGED BY THE COMPANY FOR THE BENEFIT OF THE HOLDERS OF THE NOTES TO THE
TRUSTEE UNDER THE INDENTURE (THE "MORTGAGE"). ON THE RELEASE DATE, THE NOTES
SHALL CEASE TO BE SECURED BY SUCH MORTGAGE BONDS AND, AT THE COMPANY'S OPTION,
SHALL EITHER (1) BECOME
A-2
UNSECURED GENERAL OBLIGATIONS OF THE COMPANY OR (2) BE SECURED BY SUBSTITUTE
MORTGAGE BONDS UNDER A SUBSTITUTE MORTGAGE.
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.
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 Securities 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, as Trustee (herein referred to as the "Trustee"), as
supplemented through and including a Sixteenth Supplemental Indenture dated as
of April 1, 2005 (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.
This Note is not subject to repayment at the option of the Holder hereof.
Except as provided below, this Note is not redeemable by the Company prior to
maturity and is not subject to any sinking fund.
This Note will be redeemable at the option of the Company, in whole at any
time or in part from time to time (any such date of optional redemption, an
"Optional Redemption Date," which shall be a "Redemption Date" for purposes of
the Indenture), at an optional redemption price (which shall be a "Redemption
Price" for purposes of the Indenture) equal to the greater of (i) 100% of the
principal amount of this Note to be redeemed and (ii) the sum of the present
values of the remaining scheduled payments of principal and interest of this
Note to be redeemed (not including any portion of any payments of interest
accrued to the Optional Redemption Date) until Stated Maturity, in each case
discounted from their respective scheduled payment dates to such Optional
Redemption Date on a semiannual basis (assuming a 360-day year consisting of
30-day months) at the Adjusted Treasury Rate (as defined below) plus 15 basis
points, as determined by the Reference Treasury Dealer (as defined below), plus,
in each case, accrued and unpaid interest thereon to the date of redemption.
Notwithstanding the foregoing, installments of interest on this Note that
are due and payable on Interest Payment Dates falling on or prior to a
Redemption Date will be payable on the Interest Payment Date to the registered
Holders as of the close of business on the relevant Record Date.
"Adjusted Treasury Rate" means, with respect to any Optional Redemption
Date, the rate per annum equal to the semiannual equivalent yield to maturity of
the Comparable Treasury Issue, calculated on the third Business Day preceding
such Optional Redemption Date assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Optional Redemption Date.
A-3
"Comparable Treasury Issue" means the United States Treasury security
selected by the Reference Treasury Dealer as having a maturity comparable to the
remaining term of this Note that would be utilized, at the time of selection and
in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of this
Note.
"Comparable Treasury Price" means, with respect to any Optional Redemption
Date, (i) the average of the Reference Treasury Dealer Quotations for such
Optional Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than two such
Reference Treasury Dealer Quotations, the average of all such quotations, or
(iii) if only one Reference Treasury Dealer Quotation is received, such
quotation.
"Reference Treasury Dealer" means each of: (i) Barclays Capital Inc. and
Citigroup Global Markets Inc. (or their respective affiliates which are Primary
Treasury Dealers), and their respective successors; provided, however, that if
any of the foregoing shall cease to be a primary U.S. Government securities
dealer in the United States (a "Primary Treasury Dealer"), the Company will
substitute therefor another Primary Treasury Dealer; and (ii) any other Primary
Treasury Dealer(s) selected by the Trustee after consultation with the Company.
"Reference Treasury Dealer Quotation" means, with respect to each
Reference Treasury Dealer and any Optional Redemption Date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third Business Day preceding such Optional Redemption
Date.
Notice of any optional redemption will be mailed at least 30 days but not
more than 60 days before the Optional Redemption Date to the Holder hereof at
its registered address.
If notice has been provided in accordance with the Indenture and funds for
the redemption of this Note called for redemption have been made available on
the Redemption Date, this Note will cease to bear interest on the date fixed for
redemption. Thereafter, the only right of the Holder hereof will be to receive
payment of the Redemption Price.
The Company will notify the Trustee at least 60 days prior to giving
notice of redemption (or such shorter period as is satisfactory to the Trustee)
of the aggregate principal amount of Notes to be redeemed and the Redemption
Date. If the Company elects to redeem all or a portion of the Notes, the
redemption will be conditional upon receipt by the Paying Agent or the Trustee
of monies sufficient to pay the Redemption Price. If the Notes are only
partially redeemed by the Company, the Trustee shall select which Notes are to
be redeemed in a manner it deems fair and appropriate in accordance with the
terms of the Indenture.
In the event of redemption of this Note in part only, a new Note or Notes
of this series for the unredeemed portion hereof will be issued in the name of
the registered Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal 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.
A-4
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 Securities 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 Securities;
provided, however, that no such supplemental indenture shall (i) extend the
fixed maturity of any Securities 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 Security so affected or (ii) reduce the
aforesaid percentage of Securities, the registered Holders of which are required
to consent to any such supplemental indenture, without the consent of the
registered Holders of each Security 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 Securities of all series at
the time outstanding affected thereby, on behalf of the registered Holders of
the Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and (ii) the registered Holders of a majority in
aggregate principal amount of the Securities of all series at the time
outstanding affected thereby, on behalf of the registered Holders of the
Securities of such series, to waive certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the registered Holder of
this Note (unless revoked as provided in the Indenture) shall be conclusive and
binding upon such registered Holder and upon all future registered Holders and
owners of this Note and of any Note issued in exchange hereof or in place hereof
(whether by registration of transfer or otherwise), irrespective of whether or
not any notation of such consent or waiver is made upon this Note.
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.
Prior to the Release Date, the Notes of this series shall be secured by a
series of Mortgage Bonds (the "Related Series of Bonds"), delivered by the
Company to the Trustee for the benefit of the Holders of the Notes. Reference is
made to the Mortgage and the Indenture for a description of the rights of the
Trustee as Holder of the Related Series of Bonds, the property mortgaged and
pledged under the Mortgage and the rights of the Company and of the Mortgage
Trustee in respect thereof, the duties and immunities of the Mortgage Trustee
and the terms and conditions upon which the Related Series of Bonds are secured
and the circumstances under which additional Mortgage Bonds may be issued.
FROM AND AFTER SUCH TIME AS ALL BONDS, OTHER THAN (1) PLEDGED BONDS,
INCLUDING THE RELATED SERIES OF BONDS, AND (2) MORTGAGE BONDS (EXCLUSIVE OF
PLEDGED BONDS), WHICH DO NOT IN AGGREGATE PRINCIPAL AMOUNT EXCEED THE GREATER OF
FIVE PERCENT (5%) OF NET TANGIBLE ASSETS OR FIVE PERCENT (5%) OF CAPITALIZATION,
HAVE BEEN RETIRED THROUGH PAYMENT, REDEMPTION OR OTHERWISE (INCLUDING THOSE
MORTGAGE BONDS THE PAYMENT FOR WHICH HAS BEEN PROVIDED FOR IN ACCORDANCE WITH
THE MORTGAGE) AT, BEFORE OR AFTER THE MATURITY THEREOF, PROVIDED THAT NO DEFAULT
OR EVENT OF DEFAULT HAS OCCURRED
A-5
AND IS CONTINUING (THE "RELEASE DATE"), THE RELATED SERIES OF BONDS SHALL CEASE
TO SECURE THE NOTES IN ANY MANNER.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Security Register of
the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company in any place where the principal of and any
interest on this Note are payable or at such other offices or agencies as the
Company may designate, duly endorsed by or accompanied by a written instrument
or instruments of transfer in form satisfactory to the Company and the Security
Registrar or any transfer agent duly executed by the registered Holder hereof or
his or her attorney duly authorized in writing, and thereupon one or more new
Notes of this series and of like tenor, of authorized denominations and for the
same aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Note, the
Company, the Trustee, any Paying Agent and any Security Registrar may deem and
treat the registered Holder hereof as the absolute owner hereof (whether or not
this Note shall be overdue and notwithstanding any notice of ownership or
writing hereon made by anyone other than the Security Registrar) for the purpose
of receiving payment of or on account of the principal hereof and interest due
hereon and for all other purposes, and neither the Company nor the Trustee nor
any Paying Agent nor any Security Registrar shall be affected by any notice to
the contrary.
The Notes of this series are issuable only in fully registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
This Global Security is exchangeable for Notes in definitive form only under
certain limited circumstances set forth in the Indenture. 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
Holder of any Note will have any right to institute any proceeding with respect
to the Indenture or for any remedy thereunder, unless (i) such Holder 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 Holders 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 Holders 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 Holder 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.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
A-6
IN WITNESS WHEREOF, the parties hereto have caused this Note to be duly
executed and attested, all as of the day and year first above written.
THE DETROIT EDISON COMPANY
By: _______________________________
Name:
Title:
ATTEST:
By: ___________________________
Name:
Title:
[Corporate Seal]
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: ______________
A-8
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
________________________________________________________________________________
(Please insert Social Security or Other Identifying Number of Assignee)
________________________________________________________________________________
(Please print or type name and address, including zip code of assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorneys to transfer the within Note on the books of the
Issuer, with full power of substitution in the premises.
Dated: __________________
NOTICE: The signature of this assignment must correspond with the name as
written upon the face of the within Note in every particular, without alteration
or enlargement or any change whatever and NOTICE: Signature(s) must be
guaranteed by a financial institution that is a member of the Securities
Transfer Agents Medallion Program ("STAMP"), the Stock Exchange, Inc. Medallion
Signature Program ("MSP"). When assignment is made by a guardian, trustee,
executor or administrator, an officer of a corporation, or anyone in a
representative capacity, proof of his or her authority to act must accompany
this Note.
A-9
EXHIBIT B
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
2005 SERIES BR 5.45% SENIOR NOTES DUE 2035
Principal Amount: $200,000,000
Authorized Denomination: $1,000
Regular Record Date: close of business on the 15th calendar day (whether or not
a Business Day) prior to the relevant Interest Payment Date
Original Issue Date: February 7, 2005
Stated Maturity: February 15, 2035
Interest Payment Dates: February 15 and August 15 of each year, commencing
August 15, 2005
Interest Rate: 5.45% per annum
THE DETROIT EDISON COMPANY, a corporation duly organized and existing
under the laws of the State of Michigan (the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to Cede & Co., or registered assigns, at the
office or agency of the Company in The City of New York, New York, the principal
sum of __________________ ($_____________) on February 15, 2035 (the "Stated
Maturity"), in the coin or currency of the United States, and to pay interest
thereon from February 7, 2005, or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, in arrears on each Interest
Payment Date as specified above, commencing on August 15, 2005, and on the
Stated Maturity at the rate per annum shown above (the "Interest Rate") until
the principal hereof is due and payable and on any overdue
B-1
principal and premium and on any overdue installment of interest. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the Person
in whose name this Note (or one or more Predecessor Securities) is registered on
the Regular Record Date as specified above next preceding such Interest Payment
Date. Except as otherwise provided in the Indenture, 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 Note (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date to be fixed by the Trustee, for the
payment of such defaulted Interest notice whereof shall be given to Holders of
Notes of this series not less than ten days prior to such Special Record Date,
or may be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange, if any, on which the Notes of this
series shall be listed, and upon such notice as may be required by any such
exchange, all as more fully provided in the Indenture.
Payments of interest on this Note will include interest accrued to but
excluding the respective Interest Payment Dates. Interest payments for this Note
shall be computed and paid on the basis of a 360-day year of twelve 30-day
months. The Company shall pay interest on overdue principal and premium, if any,
and, to the extent lawful, on overdue installments of interest at the rate per
annum borne by this Note. In the event that any Interest Payment Date,
Redemption Date or Maturity Date is not a Business Day, then the required
payment of principal, premium, if any, and interest will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay), in each case with the same force and effect as if
made on such date. "Business Day" means any day other than a day on which
banking institutions in the State of New York or the State of Michigan are
authorized or obligated pursuant to law or executive order to close.
Payment of principal of, premium, if any, and interest on the Notes shall
be made in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts. Payments of
principal of, premium, if any, and interest on Notes represented by a Global
Security shall be made by wire transfer of immediately available funds to the
Holder of such Global Security, provided that, in the case of payments of
principal and premium, if any, such Global Security is first surrendered to the
Paying Agent (as defined in the Indenture). If any of the Notes of this series
are no longer represented by a Global Security, (i) payments of principal,
premium, if any, and interest due at the Stated Maturity or earlier redemption
of such Securities shall be made at the office of the Paying Agent upon
surrender of such Securities to the Paying Agent, and (ii) payments of interest
shall be made, at the option of the Company, subject to such surrender where
applicable, by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register.
UNTIL THE RELEASE DATE (AS DEFINED BELOW), THIS NOTE SHALL BE SECURED BY
GENERAL AND REFUNDING MORTGAGE BONDS, 2005 Series BR (THE "MORTGAGE BONDS")
ISSUED AND DELIVERED BY THE COMPANY TO THE TRUSTEE (AS DEFINED BELOW) UNDER THE
COMPANY'S SUPPLEMENTAL INDENTURE DATED AS OF April 1, 2005, SUPPLEMENTING THE
MORTGAGE AND DEED OF TRUST DATED AS OF OCTOBER 1, 1924 BETWEEN THE COMPANY AND
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION (THE "MORTGAGE TRUSTEE"),
PLEDGED BY THE COMPANY FOR THE BENEFIT OF THE HOLDERS OF THE NOTES TO THE
TRUSTEE UNDER THE INDENTURE (THE "MORTGAGE"). ON THE RELEASE DATE, THE NOTES
SHALL CEASE TO BE SECURED BY SUCH MORTGAGE BONDS AND, AT THE COMPANY'S OPTION,
SHALL EITHER (1) BECOME
B-2
UNSECURED GENERAL OBLIGATIONS OF THE COMPANY OR (2) BE SECURED BY SUBSTITUTE
MORTGAGE BONDS UNDER A SUBSTITUTE MORTGAGE.
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.
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 Securities 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, as Trustee (herein referred to as the "Trustee"), as
supplemented through and including a Sixteenth Supplemental Indenture dated as
of April 1, 2005 (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.
This Note is not subject to repayment at the option of the Holder hereof.
Except as provided below, this Note is not redeemable by the Company prior to
maturity and is not subject to any sinking fund.
This Note will be redeemable at the option of the Company, in whole at any
time or in part from time to time (any such date of optional redemption, an
"Optional Redemption Date," which shall be a "Redemption Date" for purposes of
the Indenture), at an optional redemption price (which shall be a "Redemption
Price" for purposes of the Indenture) equal to the greater of (i) 100% of the
principal amount of this Note to be redeemed and (ii) the sum of the present
values of the remaining scheduled payments of principal and interest of this
Note to be redeemed (not including any portion of any payments of interest
accrued to the Optional Redemption Date) until Stated Maturity, in each case
discounted from their respective scheduled payment dates to such Optional
Redemption Date on a semiannual basis (assuming a 360-day year consisting of
30-day months) at the Adjusted Treasury Rate (as defined below) plus 20 basis
points, as determined by the Reference Treasury Dealer (as defined below), plus,
in each case, accrued and unpaid interest thereon to the date of redemption.
Notwithstanding the foregoing, installments of interest on this Note that
are due and payable on Interest Payment Dates falling on or prior to a
Redemption Date will be payable on the Interest Payment Date to the registered
Holders as of the close of business on the relevant Record Date.
"Adjusted Treasury Rate" means, with respect to any Optional Redemption
Date, the rate per annum equal to the semiannual equivalent yield to maturity of
the Comparable Treasury Issue, calculated on the third Business Day preceding
such Optional Redemption Date assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Optional Redemption Date.
B-3
"Comparable Treasury Issue" means the United States Treasury security
selected by the Reference Treasury Dealer as having a maturity comparable to the
remaining term of this Note that would be utilized, at the time of selection and
in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of this
Note.
"Comparable Treasury Price" means, with respect to any Optional Redemption
Date, (i) the average of the Reference Treasury Dealer Quotations for such
Optional Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than two such
Reference Treasury Dealer Quotations, the average of all such quotations, or
(iii) if only one Reference Treasury Dealer Quotation is received, such
quotation.
"Reference Treasury Dealer" means each of: (i) Barclays Capital Inc. and
Citigroup Global Markets Inc. (or their respective affiliates which are Primary
Treasury Dealers), and their respective successors; provided, however, that if
any of the foregoing shall cease to be a primary U.S. Government securities
dealer in the United States (a "Primary Treasury Dealer"), the Company will
substitute therefor another Primary Treasury Dealer; and (ii) any other Primary
Treasury Dealer(s) selected by the Trustee after consultation with the Company.
"Reference Treasury Dealer Quotation" means, with respect to each
Reference Treasury Dealer and any Optional Redemption Date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third Business Day preceding such Optional Redemption
Date.
Notice of any optional redemption will be mailed at least 30 days but not
more than 60 days before the Optional Redemption Date to the Holder hereof at
its registered address.
If notice has been provided in accordance with the Indenture and funds for
the redemption of this Note called for redemption have been made available on
the Redemption Date, this Note will cease to bear interest on the date fixed for
redemption. Thereafter, the only right of the Holder hereof will be to receive
payment of the Redemption Price.
The Company will notify the Trustee at least 60 days prior to giving
notice of redemption (or such shorter period as is satisfactory to the Trustee)
of the aggregate principal amount of Notes to be redeemed and the Redemption
Date. If the Company elects to redeem all or a portion of the Notes, the
redemption will be conditional upon receipt by the Paying Agent or the Trustee
of monies sufficient to pay the Redemption Price. If the Notes are only
partially redeemed by the Company, the Trustee shall select which Notes are to
be redeemed in a manner it deems fair and appropriate in accordance with the
terms of the Indenture.
In the event of redemption of this Note in part only, a new Note or Notes
of this series for the unredeemed portion hereof will be issued in the name of
the registered Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal 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.
B-4
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 Securities 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 Securities;
provided, however, that no such supplemental indenture shall (i) extend the
fixed maturity of any Securities 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 Security so affected or (ii) reduce the
aforesaid percentage of Securities, the registered Holders of which are required
to consent to any such supplemental indenture, without the consent of the
registered Holders of each Security 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 Securities of all series at
the time outstanding affected thereby, on behalf of the registered Holders of
the Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and (ii) the registered Holders of a majority in
aggregate principal amount of the Securities of all series at the time
outstanding affected thereby, on behalf of the registered Holders of the
Securities of such series, to waive certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the registered Holder of
this Note (unless revoked as provided in the Indenture) shall be conclusive and
binding upon such registered Holder and upon all future registered Holders and
owners of this Note and of any Note issued in exchange hereof or in place hereof
(whether by registration of transfer or otherwise), irrespective of whether or
not any notation of such consent or waiver is made upon this Note.
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.
Prior to the Release Date, the Notes of this series shall be secured by a
series of Mortgage Bonds (the "Related Series of Bonds"), delivered by the
Company to the Trustee for the benefit of the Holders of the Notes. Reference is
made to the Mortgage and the Indenture for a description of the rights of the
Trustee as Holder of the Related Series of Bonds, the property mortgaged and
pledged under the Mortgage and the rights of the Company and of the Mortgage
Trustee in respect thereof, the duties and immunities of the Mortgage Trustee
and the terms and conditions upon which the Related Series of Bonds are secured
and the circumstances under which additional Mortgage Bonds may be issued.
FROM AND AFTER SUCH TIME AS ALL BONDS, OTHER THAN (1) PLEDGED BONDS,
INCLUDING THE RELATED SERIES OF BONDS, AND (2) MORTGAGE BONDS (EXCLUSIVE OF
PLEDGED BONDS), WHICH DO NOT IN AGGREGATE PRINCIPAL AMOUNT EXCEED THE GREATER OF
FIVE PERCENT (5%) OF NET TANGIBLE ASSETS OR FIVE PERCENT (5%) OF CAPITALIZATION,
HAVE BEEN RETIRED THROUGH PAYMENT, REDEMPTION OR OTHERWISE (INCLUDING THOSE
MORTGAGE BONDS THE PAYMENT FOR WHICH HAS BEEN PROVIDED FOR IN ACCORDANCE WITH
THE MORTGAGE) AT, BEFORE OR AFTER THE MATURITY THEREOF, PROVIDED THAT NO DEFAULT
OR EVENT OF DEFAULT HAS OCCURRED
B-5
AND IS CONTINUING (THE "RELEASE DATE"), THE RELATED SERIES OF BONDS SHALL CEASE
TO SECURE THE NOTES IN ANY MANNER.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Security Register of
the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company in any place where the principal of and any
interest on this Note are payable or at such other offices or agencies as the
Company may designate, duly endorsed by or accompanied by a written instrument
or instruments of transfer in form satisfactory to the Company and the Security
Registrar or any transfer agent duly executed by the registered Holder hereof or
his or her attorney duly authorized in writing, and thereupon one or more new
Notes of this series and of like tenor, of authorized denominations and for the
same aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Note, the
Company, the Trustee, any Paying Agent and any Security Registrar may deem and
treat the registered Holder hereof as the absolute owner hereof (whether or not
this Note shall be overdue and notwithstanding any notice of ownership or
writing hereon made by anyone other than the Security Registrar) for the purpose
of receiving payment of or on account of the principal hereof and interest due
hereon and for all other purposes, and neither the Company nor the Trustee nor
any Paying Agent nor any Security Registrar shall be affected by any notice to
the contrary.
The Notes of this series are issuable only in fully registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
This Global Security is exchangeable for Notes in definitive form only under
certain limited circumstances set forth in the Indenture. 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
Holder of any Note will have any right to institute any proceeding with respect
to the Indenture or for any remedy thereunder, unless (i) such Holder 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 Holders 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 Holders 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 Holder 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.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
B-6
IN WITNESS WHEREOF, the parties hereto have caused this Note to be duly
executed and attested, all as of the day and year first above written.
THE DETROIT EDISON COMPANY
By: _______________________________
Name:
Title:
ATTEST:
By: ___________________________
Name:
Title:
[Corporate Seal]
B-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: ______________
B-8
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
________________________________________________________________________________
(Please insert Social Security or Other Identifying Number of Assignee)
________________________________________________________________________________
(Please print or type name and address, including zip code of assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorneys to transfer the within Note on the books of the
Issuer, with full power of substitution in the premises.
Dated: __________________
NOTICE: The signature of this assignment must correspond with the name as
written upon the face of the within Note in every particular, without alteration
or enlargement or any change whatever and NOTICE: Signature(s) must be
guaranteed by a financial institution that is a member of the Securities
Transfer Agents Medallion Program ("STAMP"), the Stock Exchange, Inc. Medallion
Signature Program ("MSP"). When assignment is made by a guardian, trustee,
executor or administrator, an officer of a corporation, or anyone in a
representative capacity, proof of his or her authority to act must accompany
this Note.
B-9
