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EXHIBIT 4-26
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__________ SUPPLEMENTAL INDENTURE
Dated as of ______ __, 1997
between
MCN ENERGY GROUP INC.,
AS ISSUER
and
NBD BANK
AS TRUSTEE
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms . . . . . . . . . . . . . . . . . . 2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount . . . . . . . . . . . 6
SECTION 2.2. Maturity . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.3. Form and Payment . . . . . . . . . . . . . . . . . . . 6
SECTION 2.4. Global Debenture . . . . . . . . . . . . . . . . . . . 6
SECTION 2.5. Interest . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Tax Event Redemption . . . . . . . . . . . . . . . . . 10
SECTION 3.2. Optional Redemption by Company . . . . . . . . . . . . 10
SECTION 3.3. No Sinking Fund . . . . . . . . . . . . . . . . . . . . 11
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period . . . . . . . . . 12
SECTION 4.2. Notice of Extension . . . . . . . . . . . . . . . . . . 13
SECTION 4.3. Limitation of Transactions . . . . . . . . . . . . . . 13
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses . . . . . . . . . . . . . . . . . . 14
SECTION 5.2 Payment Upon Resignation or Removal . . . . . . . . . . 15
ARTICLE VI
COVENANT TO LIST ON EXCHANGE
SECTION 6.1. Listing on an Exchange . . . . . . . . . . . . . . . . 15
ARTICLE VII
FORM OF DEBENTURE
SECTION 7.1. Form of Debenture . . . . . . . . . . . . . . . . . . . . 16
ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES
SECTION 8.1. Original Issue of Debentures . . . . . . . . . . . . . 27
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Ratification of Indenture . . . . . . . . . . . . . . . 27
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SECTION 9.2. Trustee Not Responsible for Recitals . . . . . . . . . 27
SECTION 9.3. Governing Law . . . . . . . . . . . . . . . . . . . . . 27
SECTION 9.4. Separability . . . . . . . . . . . . . . . . . . . . . 28
SECTION 9.5. Counterparts . . . . . . . . . . . . . . . . . . . . . 28
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_______ SUPPLEMENTAL INDENTURE, dated as of ________ __, 1997
(the "______ Supplemental Indenture"), between MCN Energy Group Inc., a
corporation duly organized and existing under the laws of the State of
Michigan, having its principal office at 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, (the "Company"), and NBD Bank as trustee (the "Trustee").
WHEREAS, the Company executed and delivered the indenture
dated as of September 1, 1994 (the "Base Indenture") as supplemented by a first
supplemental indenture, dated April 17, 1996 (the "First Supplemental
Indenture"), a second supplemental indenture, dated July 24, 1996 (the "Second
Supplemental Indenture") and a third supplemental indenture dated March __,
1997 (the "Third Supplemental Indenture") (the Base Indenture as so
supplemented the "Indenture), to the Trustee to provide for the future issuance
of the Company's unsecured debentures, notes or other evidence of indebtedness
(the "Securities"), to be issued from time to time in one or more series as
might be determined by the Company under the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Securities to
be known as its ____% Junior Subordinated Debentures due 20__ (the
"Debentures"), the form and substance of such Debentures and the terms,
provisions and conditions thereof to be set forth as provided in the Indenture
and this Second Supplemental Indenture;
WHEREAS, MCN Financing IV, a Delaware statutory business trust
(the "Trust"), has offered to the public $__________ million aggregate
liquidation amount of its ____% Capital Securities (the "Capital Securities"),
representing preferred undivided beneficial interests in the assets of the
Trust and proposes to invest the proceeds from such offering, together with the
proceeds of the issuance and sale by the Trust to the Company of $__________
million aggregate liquidation amount of the Trust's ___% Common Securities
(representing common undivided beneficial interests in the assets of the Trust)
(the "Common Securities," together with the Capital Securities, the "Trust
Securities"), in $__________ million aggregate principal amount of the
Debentures; and
WHEREAS, the Company has requested that the Trustee execute
and deliver this ______ Supplemental Indenture and all requirements necessary
to make this ______ Supplemental Indenture a valid instrument in accordance
with its terms, and to make the Debentures, when executed by the Company and
authenticated and delivered by the Trustee, the valid obligations of the
Company, have been performed, and the execution and delivery of this ______
Supplemental Indenture has been duly authorized in all respects:
NOW THEREFORE, in consideration of the purchase and acceptance
of the Debentures by the Holders thereof, and for the purpose of setting forth,
as provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and
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conditions thereof, the Company covenants and agrees with the Trustee as
follows:
ARTICLE I.
DEFINITIONS
SECTION A. Definition of Terms.
Unless the context otherwise requires:
1. a term defined in the Indenture has the same meaning
when used in this ______ Supplemental Indenture;
2. a term defined anywhere in this ______ Supplemental
Indenture has the same meaning throughout;
3. the singular includes the plural and vice versa;
4. a reference to a Section or Article is to a Section or
Article of this _____ Supplemental Indenture;
5. headings are for convenience of reference only and do
not affect interpretation;
6. the following terms have the meanings given to them in the
Declaration: (i) Business Day; (v) Security Certificate; (iii) Capital
Securities Guarantee; (iv) Clearing Agency; (v) Delaware Trustee; (vi)
Depositary; (vii) Institutional Trustee; (viii) Regular Trustees; (ix)
Investment Company Event; and (x) Underwriting Agreement;
7. the following terms have the meanings given to them
in this Section 1.1(g):
"Additional Interest" shall have the meaning set forth in
Section 2.5.
"Adjusted Treasury Rate" means, with respect to any redemption
date, the rate per annum equal to (i) the yield under the heading which
represents the average for the immediately prior week, appearing in the most
recently published statistical release designated "H.15 (519)" or any successor
publication which is published weekly by the Federal Reserve Board and which
establishes yields on actively traded United States Treasury securities
adjusted to constant maturity under the caption "Treasury Constant Maturities,"
for the maturity corresponding to the Remaining Life (if no maturity is within
three months before or after the Remaining Life, yields for the two published
maturities most closely corresponding to the Remaining Life shall be determined
and the Adjusted Treasury Rate shall be interpolated or extrapolated from such
yields on a straight-line basis, rounding to the nearest month); or (ii) if
such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields,
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the rate per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date, in each case calculated on
the third Business Day preceding the redemption date, plus in each case (a)
___% if such redemption date occurs on or prior to ________ __, 20__, and (b)
___% in all other cases.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Quotation Agent as having a maturity comparable to the
Remaining Life of the Debentures to be redeemed that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity with the
Remaining Life of the Debentures. If no United States Treasury security has a
maturity which is within a period from three months before to three months
after _______ __, 20__, the two most closely corresponding United States
Treasury securities shall be used as the Comparable Treasury Issue, and the
Adjusted Treasury Rate shall be interpolated or extrapolated on a straight line
basis, rounding to the nearest month using such securities.
"Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principle amount)
on the third Business Day preceding such redemption date, as set forth in the
daily statistical release (or any successor release) published by the Federal
Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for
U.S. Government Securities"; or (ii) if such release (or any successor release)
is not published or does not contain such prices on such Business Day, (a) the
average of five Reference Treasury Dealer Quotations for such redemption date,
after excluding the highest and lowest of such Reference Treasury Dealer
Quotations, or (b) if the Debt Trustee obtains fewer than three such Reference
Treasury Dealer Quotations, the average of all such quotations.
"Compounded Interest" shall have the meaning set forth in
Section 4.1.
"Coupon Rate" shall have the meaning set forth in Section 2.5.
"Declaration" means the Amended and Restated Declaration of
Trust of MCN Financing IV, a Delaware statutory business trust, dated as of
_______ __, 1997.
"Deferred Interest" shall have the meaning set forth in
Section 4.1.
" Debentures" means the ____% Junior Subordinated
Debentures due 20__ of the Company.
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"Extended Interest Payment Period" shall have the meaning set
forth in Section 4.1.
"Global Debenture" shall have the meaning set forth in Section
2.4.
"Guarantee" means the guarantee by the Company of the payment
of distributions of money held by the Trust and payments on liquidation of the
Trust.
"Maturity Date" means the date on which the Debentures mature
and on which the principal shall be due and payable together with all accrued
and unpaid interest thereon including Compounded Interest and Additional
Interest, if any.
"Non Book-Entry Capital Securities" shall have the meaning set
forth in Section 2.4.
"Optional Redemption Price" shall have the meaning set forth in
Section 3.2.
"Quotation Agent" means the Reference Treasury Dealer appointed
by the Trustee after consultation with the Company. "Reference Treasury
Dealer" means: (i) Xxxxxxx Xxxxx Government Securities, Inc. and its
respective successors; provided, however, that if the foregoing shall cease to
be a primary U.S. Government securities dealer in New York City (a "Primary
Treasury Dealer"), the Company shall substitute therefor another Primary
Treasury Dealer; and (ii) any other Primary Treasury Dealer selected by the
Trustee after consultation with the Company.
"Reference Treasury Dealer Quotations" means, with respect to
each reference Treasury Dealer and any 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 redemption
date.
"Tax Event" means that the Regular Trustees of the Trust shall
have received an opinion of a nationally recognized independent tax counsel
experienced in such matters to the effect that, as a result of (a) any
amendment to, or change (including any announced prospective change) in, the
laws or any regulations thereunder of the United States or any political
subdivision or taxing authority thereof or therein or (b) any amendment to or
change in an interpretation or application of such laws or regulations by any
legislative body, court, governmental agency or regulatory authority (including
the enactment of any legislation and the publication of any judicial decision
or regulatory determination on or after such date), there is more than an
insubstantial risk that interest payable to the Trust on the Debentures would
not be deductible by the Company for United States federal income tax purposes.
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ARTICLE II.
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION A. Designation and Principal Amount.
There is hereby authorized a series of Securities designated
the "____% Junior Subordinated Debentures due 20__", limited in aggregate
principal amount to $_________ million, which amount shall be as set forth in
any written order of the Company for the authentication and delivery of
Debentures pursuant to Section 303 of the Indenture.
SECTION B. Maturity. The Maturity Date will be ________ __, 20__.
SECTION C. Form and Payment.
Except as provided in Section 2.4, the Debentures shall be
issued in fully registered certificated form without interest coupons.
Principal and interest on the Debentures issued in certificated form will be
payable, the transfer of such Debentures will be registrable and such
Debentures will be exchangeable for Debentures bearing identical terms and
provisions at the office or agency of the Institutional Trustee; provided,
however, that payment of interest may be made at the option of the Company by
check mailed to the Holder at such address as shall appear in the Security
Register. Notwithstanding the foregoing, so long as the Holder of any
Debentures is the Institutional Trustee, the payment of the principal of and
interest (including Compounded Interest and Additional Interest, if any) on
such Debentures held by the Institutional Trustee will be made at such place
and to such account as may be designated by the Institutional Trustee.
SECTION D. Global Debenture.
1. In connection with a distribution of the Debentures to the
holders of the Trust Securities,
a. the Debentures in certificated form may be presented
to the Trustee by the Institutional Trustee in exchange for a global
Debenture in an aggregate principal amount equal to the aggregate
principal amount of all outstanding Debentures (a "Global
Debenture"), to be registered in the name of the Depositary, or its
nominee, and delivered by the Institutional Trustee to the Depositary
for crediting to the accounts of its participants pursuant to the
instructions of the Regular Trustees. The Company, upon any such
presentation shall execute a Global Debenture in such aggregate
principal amount and deliver the same to the Trustee for
authentication and delivery in accordance with the Indenture and this
______ Supplemental Indenture. Payments on the Debentures issued as a
Global Debenture will be made to the Depositary; and
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b. if any Capital Securities are held in non
book-entry certificated form, the Debentures in certificated form may
be presented to the Trustee by the Institutional Trustee and any
Capital Security Certificate which represents Capital Securities other
than Capital Securities held by the Clearing Agency or its nominee
("Non Book-Entry Capital Securities") will be deemed to represent
beneficial interests in Debentures presented to the Trustee by the
Institutional Trustee having an aggregate principal amount equal to
the aggregate liquidation amount of the Non Book-Entry Capital
Securities until such Capital Security Certificates are presented to
the Security Registrar for transfer or reissuance at which time such
Preferred Security Certificates will be cancelled and a Debenture,
registered in the name of the holder of the Capital Security
Certificate or the transferee of the holder of such Capital Security
Certificate, as the case may be, with an aggregate principal amount
equal to the aggregate liquidation amount of the Capital Security
Certificate cancelled, will be executed by the Company and delivered
to the Trustee for authentication and delivery in accordance with the
Indenture and this ______ Supplemental Indenture. On issue of such
Debentures, Debentures with an equivalent aggregate principal amount
that were presented by the Institutional Trustee to the Trustee will
be deemed to have been cancelled.
2. A Global Debenture may be transferred, in whole but not in
part, only to another nominee of the Depositary, or to a successor Depositary
selected or approved by the Company or to a nominee of such successor
Depositary.
3. If at any time the Depositary notifies the Company that it
is unwilling or unable to continue as Depositary or if at any time the
Depositary for such series shall no longer be registered or in good standing
under the Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation, and a successor Depositary for such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, as the case may be, the Company will
execute, and, subject to Article III of the Indenture, the Trustee, upon
written notice from the Company, will authenticate and deliver the Debentures
in definitive registered form without coupons, in authorized denominations, and
in an aggregate principal amount equal to the principal amount of the Global
Debenture in exchange for such Global Debenture. In addition, the Company may
at any time determine that the Debentures shall no longer be represented by a
Global Debenture. In such event the Company will execute, and subject to
Section 301 of the Indenture, the Trustee, upon receipt of an Officers'
Certificate evidencing such determination by the Company, will authenticate and
deliver the Debentures in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Debenture in exchange for such Global Debenture.
Upon the exchange of the Global Debenture for
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such Debentures in definitive registered form without coupons, in authorized
denominations, the Global Debenture shall be cancelled by the Trustee. Such
Debentures in definitive registered form issued in exchange for the Global
Debenture shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to the Depositary for delivery to the Persons in
whose names such Securities are so registered.
SECTION E. Interest.
1. Each Debenture will bear interest at the rate of
____% per annum (the "Coupon Rate") from the original date of 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 Coupon Rate, compounded
quarterly, payable (subject to the provisions of Article IV) semi-annually in
arrears on ________ and _________ of each year (each, an "Interest Payment
Date," commencing on __________ __, 199_), to the Person in whose name such
Debenture or any predecessor Debenture is registered, at the close of business
on the regular record date for such interest installment, which shall be any
date at least one Business Day before an Interest Payment Date.
2. The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months. Except as
provided in the following sentence, the amount of interest payable for any
period shorter than a full semi-annual period for which interest is computed,
will be computed on the basis of the actual number of days elapsed in such
180-day semi-annual period. In the event that any date on which interest is
payable on the Debentures is not a Business Day, then payment of interest
payable on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay), except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date.
3. If, at any time while the Institutional Trustee is the
Holder of any Debentures, the Trust or the Institutional Trustee is required
to pay any taxes, duties, assessments or governmental charges of whatever
nature (other than withholding taxes) imposed by the United States, or any other
taxing authority, then, in any case, the Company will pay as additional interest
("Additional Interest") on the Debentures held by the Institutional Trustee,
such additional amounts as shall be required so that the net amounts received
and retained by the Trust and the Institutional Trustee after paying such taxes,
duties, assessments or other governmental charges will be equal to the amounts
the Trust and the Institutional Trustee would
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have received had no such taxes, duties, assessments or other government
charges been imposed.
ARTICLE III.
REDEMPTION OF THE DEBENTURES
SECTION A. Tax Event Redemption.
If a Tax Event, has occurred and is continuing, then,
notwithstanding Section 3.2(a) but subject to Section 3.2(b), the Company shall
have the right, upon not less than 30 days nor more than 60 days notice to the
Holders of the Debentures to redeem the Debentures, in whole (but not in part),
for cash, at any time prior to ______, 20__, and within 90 days following the
occurrence of such Tax Event (the "90 Day Period") at a redemption price (the
"Redemption Price")equal to the greater of (i) 100% of the principal amount of
such Debentures or (ii) the sum, as determined by a Quotation Agent, of the
present values of the principal amount and premium payable as part of the
redemption price with respect to an optional redemption of such Debentures on
________ __, 20__, together with scheduled payments of inter- ests from the
redemption date to ______ __, 20__ (the "Remaining Life"), in each case,
discounted to the redemption date on a semi-annual basis (assuming a 360-day
year consisting of 30-day months) at the Adjusted Treasury Rate, plus, in each
case, accrued interest thereon to the date of redemption. The Redemption Price
shall be paid prior to 12:00 noon, New York time, on the date of such
redemption or such earlier time as the Company determines, provided that the
Company shall deposit with the Trustee an amount sufficient to pay the
Redemption Price by 10:00 a.m., New York time, on the date such Redemption
Price is to be paid.
SECTION B. Optional Redemption by Company.
1. Subject to the provisions of Section 3.2(b) and to
the provisions of Article XI of the Indenture, except as otherwise may be
specified in this ______ Supplemental Indenture, the Company shall have the
right to redeem the Debentures, in whole or in part, from time to time, on or
after ________ , 20__, at a redemption price equal to the percentage of the
principal amount of the Debentures specified below, plus, in each case accrued
and unpaid interest thereon to the date of such redemption (the "Optional
Redemption Price"), if redeemed during the 12-month period beginning ______, of
the years indicated below:
YEARS PERCENTAGES
20 . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20 . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20 . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20 . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20 . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20 . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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20 . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Any redemption pursuant to this paragraph will be made upon
not less than 30 days nor more than 60 days notice before the redemption date
to each Holder of the Debentures, at the Optional Redemption Price. If the
Debentures are only partially redeemed pursuant to this Section 3.2, the
Debentures 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 Debentures are
registered as a Global Debenture, the Depositary shall determine, in accordance
with its procedures, the principal amount of such Debentures held by each
Holder of Debenture to be redeemed. The Optional Redemption Price shall be
paid prior to 12:00 noon, New York time, on the date of such redemption or at
such earlier time as the Company determines provided that the Company shall
deposit with the Trustee an amount sufficient to pay the Optional Redemption
Price by 10:00 a.m., New York time, on the date such Optional Redemption Price
is to be paid.
2. If a partial redemption of the Debentures would
result in the delisting of the Capital Securities issued by the Trust from any
national securities exchange or other organization on which the Capital
Securities are then listed, the Company shall not be permitted to effect such
partial redemption and may only redeem the Debentures in whole.
SECTION C. Maturity.
The entire principal amount of the Debenture will mature and
become due and payable with any accrued and unpaid interest thereon, including
Compounded Interest and Additional Interest, if any, on ________, 20__.
SECTION D. No Sinking Fund.
The Debentures are not entitled to the benefit of any sinking
fund.
ARTICLE IV.
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION A. Extension of Interest Payment Period.
The Company shall have the right, at any time and from time to
time during the term of the Debentures, to defer payments of interest by
extending the interest payment period of such Debentures for a period not
exceeding 10 semi-annual periods (the "Extended Interest Payment Period"),
during which Extended Interest Payment Period no interest shall be due and
payable; provided that no Extended Interest Payment Period may extend beyond
the Maturity Date. To the extent permitted by applicable law, interest, the
payment of which has been deferred because of the extension of the interest
payment period pursuant to this Section 4.1, will bear interest thereon at the
Coupon
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Rate compounded semi-annually for each semi-annual period of the Extended
Interest Payment Period ("Compounded Interest"). At the end of the Extended
Interest Payment Period, the Company shall pay all interest accrued and unpaid
on the Debentures, including any Additional Interest and Compounded Interest
(together, "Deferred Interest") that shall be payable to the Holders of the
Debentures in whose names the Debentures are registered in the Security
Register on the first record date after the end of the Extended Interest
Payment Period. Before the termination of any Extended Interest Payment
Period, the Company may further extend such period, provided that such period
together with all such previous and further extensions thereof shall not exceed
10 consecutive semi-annual periods, or extend beyond the maturity date of the
Debentures. Upon the termination of any Extended Interest Payment Period and
upon the payment of all Deferred Interest then due, the Company may commence a
new Extended Interest Payment Period, subject to the foregoing requirements.
No interest shall be due and payable during an Extended Interest Payment
Period, except at the end thereof, but the Company may prepay at any time all
or any portion of the interest accrued during an Extended Interest Payment
Period.
SECTION B. Notice of Extension.
1. If the Institutional Trustee is the only registered
Holder of the Debentures at the time the Company selects an Extended Interest
Payment Period, the Company shall give written notice to the Regular Trustees,
the Institutional Trustee and the Trustee of its selection of such Extended
Interest Payment Period on the earlier of (i) 10 Business Days prior to the
next succeeding date on which Distributions on the Capital Securities issued by
the Trust are payable, or (ii) the date the Regular Trustee is required to give
notice of the record date, or the date such Distributions are payable, to the
New York Stock Exchange or other applicable self-regulatory organization or to
holders of the Capital Securities issued by the Trust, but in any event at
least one Business Day before such record date.
2. If the Institutional Trustee is not the only Holder
of the Debentures at the time the Company selects an Extended Interest Payment
Period, the Company shall give the Holders of the Debentures and the Trustee
written notice of its selection of such Extended Interest Payment Period at
least 10 Business Days before the earlier of (i) the next succeeding Interest
Payment Date, or (ii) the date the Company is required to give notice of the
record or payment date of such interest payment to the New York Stock Exchange
or other applicable self-regulatory organization or to Holders of the
Debentures.
3. The period in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 4.2 shall be counted as one of the 10
semi-annual periods permitted in the maximum Extended Interest Payment Period
permitted under Section 4.1.
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SECTION C. Limitation of Transactions.
If (i) the Company shall exercise its right to defer payment
of interest as provided in Section 4.1, or (ii) there shall have occurred any
Event of Default, as defined in the Indenture, then (a) the Company shall not
declare or pay any dividend on, make any distributions with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
its capital stock (other than (i) purchases or acquisitions of shares of its
common stock in connection with the satisfaction by the Company of its
obligations under any employee benefit plans or the satisfaction by the Company
of its obligations pursuant to any contract or security outstanding on the date
of such event, (ii) as a result of a reclassification of its capital stock or
the exchange or conversion of one class or series of its capital stock for
another class or series of its capital stock or, (iii) the purchase of
fractional interests in shares of its capital stock pursuant to the conversion
or exchange provisions of such capital stock or security being converted or
exchanged), or make any guarantee payments with respect to the foregoing (b)
the Company shall not make any payment of interest, principal or premium, if
any, on or repay, repurchase or redeem any debt securities issued by the
Company which rank pari passu with or junior to the Debentures, including any
other junior subordinated debentures issued by the Company and (c) the Company
shall not make any guarantee payments with respect to the foregoing (other than
ARTICLE V.
EXPENSES
SECTION A. Payment of Expenses.
In connection with the offering, sale and issuance of the
Debentures to the Institutional Trustee and in connection with the sale of the
Trust Securities by the Trust, the Company, in its capacity as borrower with
respect to the Debentures, shall:
1. pay all costs and expenses relating to the offering,
sale and issuance of the Debentures, including commissions to the underwriters
payable pursuant to the Underwriting Agreement and compensation of the Trustee
under the Indenture in accordance with the provisions of Section 607 of the
Indenture;
2. pay all costs and expenses of the Trust (including,
but not limited to, costs and expenses relating to the organization of the
Trust, the offering, sale and issuance of the Trust Securities (including
commissions to the underwriters in connection therewith), the fees and expenses
of the Institutional Trustee and the Delaware Trustee, the costs and expenses
relating to the operation of the Trust, including without limitation, costs and
expenses of accountants, attorneys, statistical or bookkeeping services,
expenses for printing and engraving and computing or accounting equipment,
paying agent(s), registrar(s), transfer agent(s), duplicating, travel
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and telephone and other telecommunications expenses and costs and expenses
incurred in connection with the acquisition, financing, and disposition of
Trust assets);
3. be primarily and fully liable for any indemnification
obligations arising with respect to the Declaration; and
4. pay any and all taxes (other than United States
withholding taxes attributable to the Trust or its assets) and all liabilities,
costs and expenses with respect to such taxes of the Trust.
SECTION 5.2 Payment Upon Resignation or Removal
Upon termination of this ______ Supplemental Indenture or, the
Indenture or the removal or resignation of the Trustee pursuant to this Section
5.2, the Company shall pay to the Trustee all amounts accrued to the date of
such termination, removal or resignation. Upon termination of the Declaration
or the removal or resignation of the Delaware Trustee or the Institutional
Trustee, as the case may be, pursuant to Section 5.6 of the Declaration, the
Company shall pay to the Delaware Trustee or the Institutional Trustee, as the
case may be, all amounts accrued to the date of such termination, removal or
resignation.
ARTICLE VI.
COVENANT TO LIST ON EXCHANGE
SECTION A. Listing on an Exchange.
If the Debentures are to be issued as a Global Debenture in
connection with the distribution of the Debentures to the holders of the
Capital Securities issued by the Trust upon a Dissolution Event, the Company
will use its best efforts to list such Debentures on the New York Stock
Exchange, Inc. or on such other exchange as the Capital Securities are then
listed.
ARTICLE VII.
FORM OF DEBENTURE
SECTION A. Form of Debenture.
The Debentures and the Trustee's Certificate of Authentication
to be endorsed thereon are to be substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT - This
Debenture is a Global Debenture within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depositary or a nominee of a
Depositary. This Debenture is exchangeable for Debentures registered in the
name of a person other than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and no transfer of
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this Debenture (other than a transfer of this Debenture as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary) may be registered except
in limited circumstances.
Unless this Debenture is presented by an authorized
representative of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx) to the issuer or its agent for registration of transfer, exchange or
payment, and any Debenture issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment hereon is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein.]
No. __________________
$_____________________
CUSIP No. ____________
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MCN ENERGY GROUP INC.
___% JUNIOR SUBORDINATED DEBENTURE
DUE 20__
MCN ENERGY GROUP INC., a Michigan corporation (the "Company", which term
includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to, ______________ or
registered assigns, the principal sum of _____________ Dollars ($___________)
on ______ __, 20__, and to pay interest on said principal sum from ______ __,
20__, or from the most recent interest payment date to which interest has been
paid or duly provided for, semi-annually (subject to deferral as set forth
herein) in arrears on _________ and __________ of each year (each such date, an
"Interest Payment Date") commencing ___________, 199_, at the rate of ___% per
annum until the principal hereof shall have become due and payable, and on any
overdue principal and premium, if any, and (without duplication 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 compounded
semi-annually. The amount of interest payable on any Interest Payment Date
shall be computed on the basis of a 360-day year of twelve 30-day months.
Except as provided in the following sentence, the amount of interest payable
for any period shorter than a full semi-annual period for which interest is
computed, will be computed on the basis of the actual number of day elapsed in
such a 180-day semi-annual period. In the event that any date on which
interest is payable on this Debenture is not a Business Day, then payment of
interest payable on such date 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), except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date. 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 Debenture (or one or more Predecessor Securities, as defined
in said Indenture) is registered at the close of business on the regular record
date for such interest installment, which shall be the close of business on the
business day next preceding such Interest Payment Date. [IF PURSUANT TO THE
PROVISIONS OF THE INDENTURE THE DEBENTURES ARE NO LONGER REPRESENTED BY A
GLOBAL Debenture -- which shall be the close of business on the ____ business
day next preceding such Interest Payment 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 be paid to the
Person in whose name this Debenture (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 this series of Debentures not less than 10
days prior to such special record date, or may be
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paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Debentures may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture. The principal of (and premium, if any) and the
interest on this Debenture shall be payable at the office or agency of the
Trustee maintained for that purpose 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
such address as shall appear in the Security Register. Notwithstanding the
foregoing, so long as the Holder of this Debenture is the Institutional
Trustee, the payment of the principal of (and premium, if any) and interest on
this Debenture will be made at such place and to such account as may be
designated by the Institutional Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness and ___________ and this
Debenture is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Debenture, 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 his or her attorney-in-fact for any and all such purposes. Each 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 Debenture 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.
The provisions of this Debenture are continued on the reverse
side hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
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IN WITNESS WHEREOF, the Company has caused this instrument to
be executed.
Dated
MCN ENERGY GROUP INC.
By:
Name:
Title
Attest:
By:
Name:
Title:
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(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series of Securities
described in the within-mentioned Indenture.
Dated ___________________
NBD BANK
as Trustee
By________________________
Authorized Signatory
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(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of
Debentures of the Company (herein sometimes referred to as the "Securities"),
specified in the Indenture, all issued or to be issued in one or more series
under and pursuant to an Indenture dated as of September 1, 1994, duly executed
and delivered between the Company and NBD Bank, as Trustee (the "Trustee") (as
supplemented by a First Supplemental Indenture, dated April 17, 1996, a
Second Supplemental Indenture, dated July 24, 1996, as so supplemented, the
"Base Indenture"), and a ______ Supplemental Indenture dated as of ______ __,
1997, between the Company and the Trustee (the Base Indenture as so
supplemented, the "Indenture"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the Holders of the Debentures. By the terms of the
Indenture, the Debentures are issuable in series that may vary as to amount,
date of maturity, rate of interest and in other respects as provided in the
Indenture. This series of Debentures is limited in aggregate principal amount
as specified in said ______ Supplemental Indenture.
Because of the occurrence and continuation of a Tax Event (as
defined below), in certain circumstances, this Debenture may become due and
payable, in whole (but not in part) at any time prior to ________ __, 20__ and
within 90 days of the occurrence of such Tax Event, at a redemption price (the
"Redemption Price") equal to the greater of (i) 100% of the principal amount of
this Debenture or (ii) the sum, as determined by a Quotation Agent, of the
present values of the principal amount and premium payable as part of the
redemption price with respect to an optional redemption of this Debenture on
_______ __, 20__, together with scheduled payments of interest from the
redemption date to ________ __, 20__ (the "Remaining Life"), in each case
discounted to the redemption date on a semi-annual basis (assuming a 360-day
year consisting of 30-day months) at the Adjusted Treasury Rate, plus, in each
case, accrued interest thereon to the date of redemption. The Redemption Price
shall be paid prior to 12:00 noon, New York time, on the date of such earlier
time as the Company determines provided, that the Company shall deposit
redemption or at such with the Trustee an amount sufficient to pay the
applicable Redemption Price by 10:00 a.m., New York City time, on the date such
Redemption Price is to be paid.
"Tax Event" means that the Regular Trustees of the Trust shall
have received an opinion of a nationally recognized independent tax counsel
experienced in such matters to the effect that, as a result of (a) any
amendment to, or change (including any announced prospective change) in, the
laws or any regulations thereunder of the United States or any political
subdivision or taxing authority thereof or therein or (b) any amendment to or
change in an interpretation or application of such laws or regulations by any
legislative body, court,
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governmental agency or regulatory authority (including the enactment of any
legislation and the publication of any judicial decision or regulatory
determination on or after such date), there is more than an insubstantial risk
that interest payable to the Trust on the Debentures would not be deductible by
the Company for United States federal income tax purposes.
The Company shall have the right to redeem this Debenture at
the option of the Company, without premium or penalty, in whole or in part, on
or after ______ __, 20__ (an "Optional Redemption"), at a redemption price
equal to the percentage of the principal amount of this Debenture specified
below, plus, in each case, accrued and unpaid interest thereon to the date of
such redemption (the "Optional Redemption Price") if redeemed during the
12-month period beginning ___________, of the years indicated below:
YEAR PERCENTAGE
---- ----------
20__ . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20__ . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20__ . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20__ . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20__ . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20__ . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20__ . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20__ . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20__ . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20__ . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20__ and thereafter . . . . . . . . . . . . . . . . . . . .
Any such redemption will be made upon not less than 30 days nor more
than 60 days notice before the redemption date, at the Optional Redemption
Price. If the Debentures are only partially redeemed by the Company pursuant
to an Optional Redemption, the Debentures 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 Debentures are registered as a Global Debenture, the
Depositary shall determine the principal amount of such Debentures held by each
Debentureholder to be redeemed in accordance with its procedures.
In the event of redemption of this Debenture in part only, a
new Debenture or Debentures of this series for the unredeemed portion hereof
will be issued in the name of the 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 Debentures
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 permitting the
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Company and the Trustee, with the consent of the Holders of not less than a
majority in aggregate principal amount of the Debentures of each series
affected at the time outstanding, 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 Holders
of the Debentures; provided, however, that no such supplemental indenture shall
(i) change the stated maturity of the principal of, or any installment of
principal of or interest on, any Debentures of any Series, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any premium payable upon the redemption thereof,
without the consent of the Holder of each Debenture so affected, or (ii) reduce
the aforesaid percentage of Debentures, the Holders of which are required to
consent to any such supplemental indenture, without the consent of the Holders
of each Debenture then outstanding and affected thereby. The Indenture also
contains provisions permitting the Holders of a majority in aggregate principal
amount of the Debentures of any series at the time outstanding affected
thereby, on behalf of all of the Holders of the Debentures of such series, to
waive any Default or Event of Default with respect to such series, and its
consequences, except a Default or Event of Default in the payment of the
principal of or premium, if any, or interest on any of the Debentures of such
series. Any such consent or waiver by the registered Holder of this Debenture
(unless revoked as provided in the Indenture) shall be conclusive and binding
upon such Holder and upon all future Holders and owners of this Debenture and
of any Debenture issued in exchange therefor 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 Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Debenture at the time and place and at
the rate and in the money herein prescribed.
So long as the Company is not in default in the payment of
interest on the Debentures, the Company shall have the right at any time during
the term of the Debentures and from time to time to extend the interest payment
period of such Debentures for up to 10 consecutive semi-annual periods (an
"Extended Interest Payment Period"), at the end of which period the Company
shall pay all interest then accrued and unpaid (together with interest thereon
at the rate specified for the Debentures to the extent that payment of such
interest is enforceable under applicable law); provided that no Extended
Interest Payment Period may last beyond the maturity date of the Debentures.
Before the termination of any such Extended Interest Payment Period, the
Company may further extend such Extended Interest Payment Period, provided that
such Extended Interest Payment Period together with all such previous
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and further extensions thereof shall not exceed 10 consecutive semi-annual
periods or extend the maturity date of the Debentures. At the termination of
any such Extended Interest Payment Period and upon the payment of all accrued
and unpaid interest and any additional amounts then due, the Company may
commence a new Extended Interest Payment Period.
In the event that the Company exercises this right, then (a)
the Company shall not declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with respect to, any
of the Company's capital stock (other than (i) purchases or acquisitions of
shares of its Common Stock in connection with the satisfaction of its
obligations under any employee benefit plans or the satisfaction by the Company
of its obligations pursuant to any contract or security outstanding on the date
of such exercise requiring the Company to purchase shares of its Common Stock,
(ii) as a result of a reclassification of its capital stock or the exchange or
conversion of one class or series of its capital stock for another class or
series of its capital stock or (iii) the purchase of fractional interests in
shares of its capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or exchanged) or make any
guarantee payments with respect to the foregoing (b) the Company shall not make
any payment of principal, interest or premium, if any, on or repay or
repurchase or redeem any debt securities issued by the Company that rank pari
passu with or junior the Debentures and other junior subordinated debentures
issued by the Company or (c) the Company shall not (other than pursuant to the
Capital Securities Guarantee) make any guarantee payments with respect to the
foregoing.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the registered Holder
hereof on the Security Register of the Company, upon surrender of this Debenture
for registration of transfer at the office or agency of the Trustee in the City
of Detroit and State of Michigan accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company or the Trustee duly
executed by the registered Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Debentures of authorized denominations
and for the same aggregate principal amount and series 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
Debenture, the Company, the Trustee, any paying agent and the Security
Registrar may deem and treat the registered holder hereof as the absolute owner
hereof (whether or not this Debenture 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 premium, if any, and interest due hereon and for all other
purposes, and neither the Company nor the Trustee nor any paying agent nor any
Security
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Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Debenture, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
The Indenture imposes certain limitations on the ability of
the Company to, among other things, merge or consolidate with any other Person
or sell, assign, transfer or lease all or substantially all of its properties
or assets. All such covenants and limitations are subject to a number of
important qualifications and exceptions. The Company must report periodically
to the Trustee on compliance with the covenants in the Indenture.
The Debentures of this series are issuable only in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof. This Global Debenture is exchangeable for Debentures in definitive
form only under certain limited circumstances set forth in the Indenture.
Debentures of this series so issued are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Debentures of this series so issued are exchangeable for a like
aggregate principal amount of Debentures of this series of a different
authorized denomination, as requested by the Holder surrendering the same.
All terms used in this Debenture that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
ARTICLE VIII.
ORIGINAL ISSUE OF DEBENTURES
SECTION A. Original Issue of Debentures.
Debentures in the aggregate principal amount of $_________
may, upon execution of this Second Supplemental Indenture, be executed by the
Company and delivered to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Debentures to or upon the written order
of the Company, signed by its Chairman, its Vice Chairman, its President, or
any Vice President and its Treasurer or an Assistant Treasurer, without any
further action by the Company.
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ARTICLE IX.
MISCELLANEOUS
SECTION A. Ratification of Indenture.
The Indenture, as supplemented by this ______ Supplemental
Indenture, is in all respects ratified and confirmed, and this ______
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
SECTION B. Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not
by the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or sufficiency
of this ______ Supplemental Indenture.
SECTION C. Governing Law.
This ______ Supplemental Indenture and each Debenture shall be
deemed to be a contract made under the internal laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of said
State.
SECTION D. Separability.
In case any one or more of the provisions contained in this
______ Supplemental Indenture or in the Debentures shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
______ Supplemental Indenture or of the Debentures, but this Second
Supplemental Indenture and the Debentures shall be construed as if such invalid
or illegal or unenforceable provision had never been contained herein or
therein.
SECTION E. Counterparts.
This ______ Supplemental Indenture may be executed in any
number of counterparts each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this ______
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, on the date or dates indicated in
the acknowledgements and as of the day and year first above written.
MCN ENERGY GROUP INC.
By
Name:
Title:
Attest:
By:______________________
NBD BANK
as Trustee
By
Name:
Title:
Attest:
By:___________________
