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EXHIBIT 4(r)
DTE ENERGY COMPANY
AND
BNY MIDWEST TRUST COMPANY
(SUCCESSOR TO THE BANK OF NEW YORK)
TRUSTEE
SUPPLEMENTAL INDENTURE
DATED AS OF JUNE 1, 2004
SUPPLEMENTING THE AMENDED AND RESTATED INDENTURE
DATED AS OF APRIL 9, 2001
PROVIDING FOR
7.50% JUNIOR SUBORDINATED DEBENTURES DUE 2044
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SUPPLEMENTAL INDENTURE, dated as of the 1st day of June, 2004 (the
"Supplemental Indenture"), between DTE ENERGY COMPANY, a corporation organized
and existing under the laws of the State of Michigan (the "Company"), and BNY
Midwest Trust Company, an Illinois trust corporation and successor to The Bank
of New York, having its principal office in The City of Chicago, Illinois, as
trustee (the "Trustee");
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an Amended and Restated Indenture, dated as of April 9, 2001 (the "Original
Indenture"), as amended, supplemented or modified, including by this
Supplemental Indenture (as so amended, supplemented or modified, the
"Indenture"), 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 a series
of its unsecured, subordinated debt securities pursuant to the Original
Indenture; and
WHEREAS, the Company, in the exercise of the power and authority conferred
upon and reserved to it under the provisions of the Original Indenture,
including Section 901 thereof, and pursuant to appropriate resolutions of the
Board of Directors, has duly determined to make, execute and deliver to the
Trustee this Supplemental Indenture to the Original Indenture as permitted by
Section 201 and Section 301 of the Original Indenture in order to establish the
form or terms of, and to provide for the creation and issue of, a series of its
debt securities under the Original Indenture, which shall be known as the "7.50%
Junior Subordinated Debentures due 2044" (the "Debentures"); and
WHEREAS, DTE Energy Trust II, a Delaware statutory trust (the "Trust"),
has offered to the public $90,000,000 aggregate liquidation amount of its 7.50%
Trust Originated Preferred Securities (the "Trust Preferred 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 $2,783,525
aggregate liquidation amount of its common securities (the "Common Securities"
and, together with the Trust Preferred Securities, the "Trust Securities"), in
$92,783,525 aggregate principal amount of the Debentures; and
WHEREAS, all things necessary to make such debt securities, when executed
by the Company and authenticated and delivered by the Trustee or any
Authenticating Agent and issued upon the terms and subject to the conditions
hereinafter and in the Original Indenture set forth against payment therefor,
the valid, binding and legal obligations of the Company and to make this
Supplemental Indenture a valid, binding and legal agreement of the Company, have
been done;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH that, in order to
establish the terms of a series of debt securities, and for and in consideration
of the premises and of the covenants contained in the Original Indenture and in
this Supplemental Indenture and for other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, it is mutually
covenanted and agreed as follows:
ARTICLE ONE
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. Each capitalized term that is used herein and is
defined in the Original Indenture shall have the meaning specified in the
Original Indenture unless such term is otherwise defined herein; provided, that
the following terms shall have the meanings given to them in the Agreement: (i)
Underwriting Agreement; (ii) Underwriters; (iii) Delaware Trustee; (iv)
Distributions; (v) Investment Company Event; (vi) Property Trustee; (vii) Trust
Preferred Securities Guarantee; (viii) Tax Event; (ix) Trust Preferred Security
Certificate; and (x) Administrative Trustee; and, provided further that:
"Additional Interest" has the meaning set forth in Section 202(c).
"Agreement" means the Amended and Restated Trust Agreement of the Trust,
dated as of June 1, 2004.
"Business Day" means any day that is not a Saturday, Sunday, a day on
which banking institutions in The City of New York are permitted or required by
any applicable law or executive order to close, or a day on which the Corporate
Trust Office of the Property Trustee or the Trustee is closed for business.
"Capital Stock" means (i) with respect to any Person organized as a
Corporation, any and all shares, interests, rights to purchase, warrants,
options, participations or other equivalents of or interest in (however
designated) corporate stock, and (ii) with respect to any Person that is not
organized as a Corporation, the partnership, membership or other equity
interests or participations in such Person.
"Certificated Security" means a security in substantially the form
attached hereto as Exhibit A, except for the legend thereon, which is applicable
only to Global Debentures.
"Common Securities" has the meaning specified in the recitals above.
"Compound Interest" has the meaning set forth in Section 205(a).
"Coupon Rate" has the meaning set forth in Section 204(a).
"Creditor" has the meaning set forth in Section 401.
"Deferred Interest" has the meaning set forth in Section 205(a).
"Dissolution Event" means the dissolution of the Trust and distribution of
the Debentures held by the Property Trustee pro rata to the holders of the Trust
Securities in accordance with the Agreement, such event to occur at the option
of the Company at any time.
"DTC" has the meaning set forth in Section 203(b).
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"Extension Period" has the meaning set forth in Section 205(a).
"Global Debenture" has the meaning set forth in Section 203(b).
"Indebtedness ranking equally with the Debentures" means (i) Indebtedness,
whether outstanding on the date of issuance of the Debentures or thereafter
created, assumed or incurred, to the extent the Indebtedness specifically by its
terms ranks equally with and not prior to the Debentures in the right of payment
upon the happening of the dissolution, winding-up, liquidation or reorganization
of the Company and (ii) any Indebtedness between or among the Company or its
affiliates, including all other debt securities and guarantees in respect of
those debt securities, issued to any other trust, or a trustee of such trust, a
partnership or other entity affiliated with the Company that is a financing
vehicle of the Company (a "financing entity") in connection with the issuance by
such financing entity of equity securities or other securities guaranteed by the
Company pursuant to an instrument that ranks pari passu with or junior in right
of payment to the Trust Preferred Securities Guarantee. The securing of any
Indebtedness otherwise constituting Indebtedness ranking equally with the
Debentures will not prevent the Indebtedness from constituting Indebtedness
ranking equally with the Debentures.
"Indebtedness ranking junior to the Debentures" means any Indebtedness,
whether outstanding on the date of issuance of the Debentures or thereafter
created, assumed or incurred, to the extent the Indebtedness by its terms ranks
junior to and not equally with or prior to
(i) the Debentures, and
(ii) any other Indebtedness ranking equally with the Debentures,
in right of payment upon the happening of the dissolution, winding-up,
liquidation or reorganization of the Company. The securing of any Indebtedness
otherwise constituting Indebtedness ranking junior to the Debentures will not
prevent the Indebtedness from constituting Indebtedness ranking junior to the
Debentures.
"Non Book-Entry Trust Preferred Securities" has the meaning set forth in
Section 203(b).
"NYSE" means the New York Stock Exchange.
"Redemption Price" has the meaning set forth in Section 301.
"Rights Plan" means a plan of the Company providing for the issuance by
the Company to all holders of its Common Stock of rights entitling the holders
thereof to subscribe for or purchase shares of Common Stock or any class or
series of preferred stock, which rights (i) are deemed to be transferred with
such shares of Common Stock, (ii) are not exercisable and (iii) are also issued
in respect of future issuances of Common Stock, in each case until the
occurrence of a specified event or events.
"Senior Indebtedness" means all Indebtedness, whether outstanding on the
date of issuance of the Debentures or thereafter created, assumed or incurred,
except Indebtedness
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ranking equally with the Debentures or Indebtedness ranking junior to the
Debentures; provided, however, that "Senior Indebtedness" of the Company does
not include (a) obligations to trade creditors or (b) any indebtedness of the
Company to any of its Subsidiaries. Senior Indebtedness with respect to the
Debentures will continue to be Senior Indebtedness with respect to the
Debentures and be entitled to the benefits of the subordination provisions
irrespective of any amendment, modification or waiver of any term of such Senior
Indebtedness.
"Special Event" means a Tax Event or an Investment Company Event, as the
case may be.
"Trust" has the meaning specified in the recitals above.
"Trust Preferred Securities" has the meaning specified in the recitals
above.
"Trust Securities" has the meaning specified in the recitals above.
SECTION 102. Section References. Each reference to a particular section
set forth in this Supplemental Indenture shall, unless the context otherwise
requires, refer to this Supplemental Indenture.
ARTICLE TWO
TITLE AND TERMS OF THE SECURITIES; STATED MATURITY
SECTION 201. Title of the Securities; Stated Maturity. This Supplemental
Indenture hereby establishes a series of Securities, which shall be known as the
Company's "7.50% Junior Subordinated Debentures due 2044" (referred to herein as
the "Debentures"). For purposes of the Original Indenture, the Debentures shall
constitute a single series of Securities. The Stated Maturity on which the
principal of the Debentures shall be due and payable will be June 1, 2044.
SECTION 202. Variations from the Original Indenture. (a) Notwithstanding
the provisions of the Original Indenture, the Debentures shall be subordinated
to Senior Indebtedness as and to the extent provided in Article Six of this
Supplemental Indenture. The provisions relating to defeasance and covenant
defeasance in Section 403 of the Original Indenture shall not apply to the
Debentures. Section 1009 of the Original Indenture shall not be applicable to
the Debentures.
(b) With respect to the Debentures issued under this Supplemental
Indenture, Section 501 of the Original Indenture is hereby replaced in its
entirety as follows:
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether or not it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
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(1) default in the payment of any interest upon the Debentures when such
interest becomes due and payable, and continuance of such default for a period
of 30 days, except during an Extension Period; or
(2) default in the payment of the principal of the Debentures when they
become due and payable at their Maturity;
(3) default in the performance of, or breach of, any covenant of the
Company in the Indenture (other than a covenant a default in whose performance
or whose breach is elsewhere in this Section specifically dealt with or which
has been expressly included in the Indenture solely for the benefit of a series
of Securities other than the Debentures), and continuance of such default or
breach for a period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in aggregate principal amount of the Outstanding
Debentures a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default" hereunder;
(4) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency or other
similar law or (B) a decree or order appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or of any substantial part of its property, or ordering the winding up
or liquidation of its affairs, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in effect for a period
of 60 consecutive days; or
(5) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency or other similar
law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or order for relief in
respect of the Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it, or
the filing by it of a petition or answer or consent seeking relief under any
applicable Federal or State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the Company
or of any substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the taking of corporate action by the Company
in furtherance of any such action.
With respect to the Debentures, (i) references elsewhere in the Original
Indenture to Section 501(4), (6) or (7) shall be deemed to be Section 501(3),
(4) or (5), respectively, as restated above, and (ii) the provisions of Section
502 of the Original Indenture, without limitation, shall be subject to the
subordination provisions relating to the Debentures.
(c) The following shall be additional covenants of the Company with
respect to the Debentures:
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(i) In the event that the Property Trustee is the holder of all of the
Outstanding Debentures, the Company shall pay to the Trust (and any permitted
successor or assign under the Agreement) for so long as the Trust (or its
permitted successor or assignee) is the registered holder of any Debentures,
such additional amounts as may be necessary in order that the amount of
Distributions then due and payable by the Trust on the related Trust Preferred
Securities and Common Securities that at any time remain outstanding in
accordance with the terms thereof shall not be reduced as a result of any taxes,
duties, assessments and governmental charges of whatever nature imposed by the
United States or any other taxing authority to which the Trust has become
subject (but not including withholding taxes imposed on holders of such Trust
Preferred Securities and Common Securities) (the "Additional Interest").
Whenever in the Indenture or the Debentures there is a reference in any context
to the payment of principal of or interest on the Debentures, such reference
shall be deemed to include payment of the Additional Interest provided for in
this paragraph to the extent that, in such context, Additional Interest is, were
or would be payable in respect thereof pursuant to the provisions of this
Section and express reference to the payment of Additional Interest (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Interest in those provisions hereof where such express reference is
not made.
(ii) The Company covenants and agrees with each holder of Debentures that
it shall not
(A) declare or pay any dividends or distributions on the Company's
Capital Stock;
(B) redeem, purchase, acquire or make a liquidation payment with
respect to any of the Company's Capital Stock;
(C) make any payment of principal of or interest or premium, if
any, on or repay, repurchase or redeem any indebtedness of the Company
that ranks equally with or junior in right of payment to the Debentures;
(D) make any guarantee payments with respect to any guarantee by
the Company of the indebtedness of any Subsidiary thereof or any other
party if such guarantee ranks equally with or junior in right of payment
to the Debentures
(other than (a) dividends or distributions payable solely in shares of, or
options, warrants or rights to subscribe for or purchase shares of, Common
Stock of the Company, (b) any declaration of a dividend in connection with
the implementation of a Rights Plan, (c) the issuance of any Capital Stock
of the Company under any Rights Plan, or the redemption or repurchase of
any rights distributed pursuant to a Rights Plan, (d) payments under the
Trust Preferred Securities Guarantee, (e) reclassification of the
Company's Capital Stock or the exchange or the conversion of one class or
series of the Company's Capital Stock for another class or series of the
Company's Capital Stock, (f) the purchase of
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fractional interests in shares of the Company's Capital Stock
pursuant to the conversion or exchange provisions of such Capital
Stock or the security being converted or exchanged, and (g)
purchases of Common Stock related to the issuance of Common Stock or
rights under any of the Company's benefit plans for its directors,
officers, employees, consultants or advisors or any of the Company's
dividend reinvestment plans);
if at such time (x) there shall have occurred and be continuing an Event of
Default under the Debentures or any event of which the Company has actual
knowledge that is, or with the giving of notice or the lapse of time, or both,
would be an Event of Default under the Debentures, and the Company has not taken
reasonable steps to cure such Event of Default (y) the Company shall be in
default with respect to its payment or other obligations under the Trust
Preferred Securities Guarantee or (z) the Company shall have given notice of its
election to begin an Extension Period as provided in Section 205 and shall not
have rescinded such notice or such Extension Period, or any extension thereof,
shall have commenced and be continuing.
(iii) The Company also covenants with each holder of Debentures (A)
to maintain directly or indirectly 100% ownership of the Common Securities
of the Trust; provided, however, that any permitted successor or assignee
of the Company hereunder may succeed to the Company's ownership of such
Common Securities, (B) not to voluntarily terminate, wind up or liquidate
the Trust, except (x) in connection with a prepayment in full of the
Debentures or a distribution of the Debentures to the holders of Trust
Preferred Securities in liquidation of the Trust or (y) in connection with
certain mergers, consolidations or amalgamations permitted by the
Agreement and (C) to use its commercially reasonable efforts, consistent
with the terms and provisions of the Agreement, to cause the Trust to
remain classified as a grantor trust and not an association taxable as a
corporation for United States federal income tax purposes.
(d) In addition to any right of Direct Action granted under Section
3.8(e) of the Agreement to the holders of Trust Preferred Securities, if the
Property Trustee fails to enforce its rights under the Agreement or the
Indenture to the fullest extent permitted by law and subject to the terms of the
Agreement and the Indenture, then a holder of Trust Preferred Securities may
directly institute a proceeding against the Company to enforce the Property
Trustee's rights under the Agreement or the Indenture without first instituting
a legal proceeding against the Property Trustee or any other person.
(e) With respect to the Debentures issued under this Supplemental
Indenture, Section 112 of the Original Indenture is hereby replace in its
entirety as follows:
Nothing in this Indenture or the Securities, express or implied, shall
give to any Person, other than the parties hereto, their successors hereunder
and the Holders of the Trust Securities, any benefit or any legal or equitable
right remedy or claim under this Indenture, provided, however, that so long as
any Preferred Securities remain outstanding, the Holders of Preferred Securities
may enforce the Company's obligations hereunder directly against the Company, if
(i) the Trustee fails, after written request, to enforce its rights hereunder or
(ii) any Event of Default
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has occurred and is continuing and the event is attributable to the Company's
failure to pay interest or principal on the Debentures.
SECTION 203. Amount, Form and Denominations; DTC. (a)The aggregate
principal amount of Debentures that may be issued under this Supplemental
Indenture is limited to $103,500,000, which amount shall be as set forth in any
written Company Order for the authentication and delivery of Debentures (except
as provided in Section 301(2) of the Original Indenture). The Debentures shall
be issuable only in fully registered form and, as permitted by Section 301 and
Section 302 of the Original Indenture, issuable, transferable, exchangeable or
redeemable in denominations of $25 and integral multiples thereof.
(a) The Debentures initially shall be issued to the Property Trustee.
Principal and interest on the Debentures issued in definitive 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 Corporate Trust Office; 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 registered holder of any Debentures is the Property
Trustee, the payment of the principal of and interest (including Compound
Interest and Additional Interest, if any) on such Debentures held by the
Property Trustee will be made at such place, or by wire transfer of immediately
available funds to such account, as may be designated by the Property Trustee.
The Security Register for the Debentures shall be kept at the Corporate Trust
Office, and the Trustee is hereby appointed Security Registrar for the
Debentures.
(b) In connection with a Dissolution Event, the Debentures in
certificated form may be presented to the Trustee by the Property Trustee in
exchange for one or more global Debentures in an aggregate principal amount
equal to the aggregate principal amount of all outstanding Debentures (each, a
"Global Debenture"), to be registered in the name of the Depositary, or its
nominee, and delivered by the Trustee to the Depositary for crediting to the
accounts of its participants pursuant to the instructions of the Administrative
Trustees. The Company, upon any such presentation, shall execute a Global
Debenture or Debentures in such aggregate principal amount and deliver the same
to the Trustee for authentication and delivery in accordance with the Original
Indenture and this Supplemental Indenture. Payments on the Debentures issued as
a Global Debenture will be made to the Depositary. The Depository Trust Company,
as depository ("DTC"), or its nominee, is hereby designated as "U.S. Depositary"
and Depositary" under the Original Indenture for the Global Debenture.
If any Trust Preferred Securities are held in non book-entry certificated
form, the Debentures in certificated form may be presented to the Trustee by the
Property Trustee and any Trust Preferred Security Certificate which represents
Trust Preferred Securities other than Trust Preferred Securities held by the
Depositary or its nominee ("Non Book-Entry Trust Preferred Securities") will be
deemed to represent beneficial interests in Debentures presented to the Trustee
by the Property Trustee having an aggregate principal amount equal to the
aggregate liquidation amount of the Non Book-Entry Trust Preferred Securities
until such Trust Preferred Security Certificates are presented to the Security
Registrar for transfer or reissuance, at which
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time such Trust Preferred Security Certificates will be canceled and a
Debenture, registered in the name of the holder of the Trust Preferred Security
Certificate or the transferee of the holder of such Trust Preferred Security
Certificate, as the case may be, with an aggregate principal amount equal to the
aggregate liquidation amount of the Trust Preferred Security Certificate
canceled, will be executed by the Company and delivered to the Trustee for
authentication and delivery in accordance with the Original Indenture and this
Supplemental Indenture. On issue of such Debentures, Debentures with an
equivalent aggregate principal amount that were presented by the Property
Trustee to the Trustee will be deemed to have been canceled.
(c) If the Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for the Global Debenture or if at any time such
Depositary ceases to be a clearing agency registered under the Exchange Act,
and, in either such case, the Company does not appoint a successor Depositary
within 90 days thereafter, certificates for the Debentures will be registered
and delivered to the Holders of record. Upon receipt of a withdrawal request
from the Company, the Depositary will notify its participants of the receipt of
a withdrawal request from the Company notifying participants that they may
utilize the Depositary's withdrawal procedures if they wish to withdraw their
securities from the Depositary. To the extent that the book-entry system is
discontinued or, if the Company fails to appoint a successor Depositary,
certificates for the Debentures will be registered and delivered to the Holders
of record.
(d) Each Debenture issued hereunder shall provide that the Company and,
by its acceptance of a Debenture or a beneficial interest therein, the holder
of, and any Person that acquires a beneficial interest in, such Debenture agree
that for United States federal, state and local tax purposes it is intended that
such Debenture constitute indebtedness, and agree to treat the Debenture as
indebtedness for United States federal income tax purposes.
(e) The Debentures shall have such other terms and provisions as are set
forth in the form of Debenture attached hereto as Exhibit A (all of which
incorporated by reference in and made a part of this Supplemental Indenture as
if set forth in full at this place).
SECTION 204. Interest.
(a) Each Debenture will bear interest at the rate of 7.50% per annum
(the "Coupon Rate") from and including 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 quarterly in arrears on March 1, June 1, September 1 and December 1 of
each year (each, an "Interest Payment Date"), commencing on September 1, 2004 to
the Person in whose name such Debenture or any predecessor Debenture is
registered at the close of business on the relevant Regular Record Date, which
will be, (i) as long as the Trust Preferred Securities remain in book-entry form
(or if no Trust Preferred Securities remain outstanding, as long as the
Debentures remain in book-entry form), one Business Day prior to the relevant
Interest Payment Date and (ii) in the event the Trust Preferred Securities are
not in book-entry form (or if no Trust Preferred Securities remain outstanding,
in the event the Debentures are not in book-entry form), the Administrative
Trustees (or, if no Trust Preferred Securities remain outstanding, the Company)
will have the right to select the Regular Record
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Date, which will be more than one Business Day but less than 60 Business Days
prior to the relevant Interest Payment Date, except as otherwise provided
pursuant to the provisions of Section 205 below.
Any such interest installment not punctually paid or duly provided for
shall forthwith cease to be payable to the registered Holders on the Regular
Record Date, and may either be paid to the person in whose name the 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 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 the Debentures may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Original Indenture. The principal of and the interest on
the Debentures shall be payable at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
in any coin or currency of the United States of America which at the time of
payment is legal tender for payment of public and private debts; provided,
however, that payment of interest may be made at the option of the Company by
check mailed to the registered Holder at the close of business on the Regular
Record Date at such address as shall appear in the Security Register.
(b) 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 quarterly period for which interest is computed, will be computed on the
basis of the actual number of days elapsed per 30-day month. 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 the date that such interest otherwise would have been payable.
(c) Maturity or redemption of a Debenture shall cause interest to cease
to accrue on such Debenture subject to the Company's obligation to pay interest
on overdue amounts in accordance with Section 503 of the Original Indenture and
the terms of this Supplemental Indenture and the Debentures.
SECTION 205. Extension of Interest Payment Period.
(a) So long as no Event of Default with respect to the Debentures has
occurred and is continuing, 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 not
exceeding 20 consecutive quarters (the "Extension Period"), during which
Extension Period no interest shall be due and payable; except that no Extension
Period may extend beyond the Stated Maturity. 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 205, will bear
interest thereon at the Coupon Rate compounded quarterly
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for each quarter of the Extension Period ("Compound Interest"). At the end of
the Extension Period, the Company shall pay all interest accrued and unpaid on
the Debentures, including any Additional Interest and Compound Interest
(together, "Deferred Interest") that shall be payable to the Holders in whose
names the Debentures are registered in the Security Register on the record date
for the first Interest Payment Date after the end of the Extension Period.
Before the termination of any Extension Period, the Company may shorten or
further extend such period, provided that such period together with all such
further extensions thereof shall not exceed 20 consecutive quarters, or extend
beyond the Stated Maturity of the Debentures. Upon the termination of any
Extension Period and upon the payment of all Deferred Interest then due, the
Company may commence a new Extension Period, subject to the foregoing
requirements. No interest shall be due and payable during an Extension Period,
except at the end thereof, but the Company may prepay at any time all or any
portion of the interest accrued during an Extension Period.
(b) (i) If the Property Trustee is the sole registered Holder at the
time the Company selects an Extension Period or any shortening or
extension thereof, the Company shall give written notice to the
Administrative Trustees, the Property Trustee and the Trustee of its
selection of such Extension Period or any shortening or extension thereof
before the earlier of (x) the next succeeding date on which Distributions
on the Trust Securities are payable, or (y) the date the Trust is required
to give notice of the record date, or the date such Distributions are
payable, to the NYSE or other applicable self-regulatory organization
where the Trust Preferred Securities are then listed or to holders of the
Trust Preferred Securities, but in any event at least one Business Day
before such record date.
(ii) If the Property Trustee is not the sole Holder at the time the
Company selects an Extension Period, the Company shall give the Holders of
the Debentures and the Trustee written notice of its selection of such
Extension Period or any shortening or extension thereof at least ten
Business Days before the earlier of (x) the next succeeding Interest
Payment Date, or (y) if the Debentures are then listed, the date the
Company is required to give notice to the NYSE or other applicable
self-regulatory organization or to Holders of the Debentures of the record
date or the Interest Payment Date .
(iii) The quarter in which any notice is given pursuant to
subparagraphs (i) or (ii) of this paragraph (b) shall be counted as one of
the 20 quarters permitted in the maximum Extension Period permitted under
paragraph (a).
(c) The Company shall cause the Trust to give written notice of the
selection, shortening or extension of any Extension Period to the holders of the
Trust Preferred Securities.
11
SECTION 206. Form of Debentures. Attached hereto as Exhibit A is a form of
the definitive Debentures.
ARTICLE THREE
REDEMPTION OF THE DEBENTURES
SECTION 301. Optional Redemption.
The Debentures are redeemable prior to the Stated Maturity at the option
of the Company (i) in whole or in part, from time to time, on or after June 1,
2009 or (ii) at any time prior to June 1, 2009, in whole but not in part, within
90 days following the occurrence of a Special Event, in either case at a
redemption price (the "Redemption Price") equal to 100% of the principal amount
thereof, plus accrued and unpaid interest thereon (including Additional Interest
and Compound Interest, if any) to the date of redemption.
The Company's right to redeem the Debentures under the preceding paragraph
shall be subject to the condition that if at the time there is available to the
Company or the Trust the opportunity to eliminate a Special Event, within 90
days following the occurrence and continuation of such Special Event, by taking
some ministerial action ("Ministerial Action"), such as filing a form or making
an election, or pursuing some other similar reasonable measure that will have no
adverse effect on the Company, the Trust or the holders of the Trust Securities
issued by the Trust and will involve no material cost, the Company shall pursue
such measures in lieu of redemption; provided further, that the Company shall
have no right to redeem the Debentures while the Company or the Trust is
pursuing any Ministerial Action pursuant to the Agreement.
SECTION 302. Redemption Procedures.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each Holder of Debentures to be prepaid at
its registered address. Unless the Company defaults in payment of the Redemption
Price, on and after the Redemption Date interest shall cease to accrue on such
Debentures called for redemption. If the Debentures are only partially redeemed
pursuant to Section 301, 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 Depositary participant to be redeemed. The 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
Redemption Price by 10:00 a.m., New York time, on the date such Redemption Price
is to be paid.
SECTION 303. No Sinking Fund.
The Debentures are not entitled to the benefit of any sinking fund.
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ARTICLE FOUR
EXPENSES
SECTION 401. Payment of Expenses.
In connection with the offering, sale and issuance of the Debentures 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:
(a) 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 606 of the Original
Indenture;
(b) be responsible for and shall pay all debts and obligations (other
than with respect to the Trust Securities) and all costs and expenses of the
Trust (including, but not limited to, costs and expenses relating to the
organization, maintenance and dissolution of the Trust, the offering, sale and
issuance of the Trust Securities (including commissions to the Underwriters in
connection therewith), the fees and expenses (including reasonable counsel fees
and expenses) of the Property Trustee, the Delaware Trustee and the
Administrative Trustees (including any amounts payable under Article 10 of the
Agreement), 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 and telephone and other telecommunications
expenses and costs and expenses incurred in connection with the acquisition,
financing, and disposition of Trust assets and the enforcement by the Property
Trustee of the rights of the holders of the Trust Preferred Securities;
(c) 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; and
(d) be liable for any indemnification obligations arising with respect
to the Agreement.
The Company's obligations under this Section 401 shall be for the benefit
of, and shall be enforceable by, any Person to whom such debts, obligations,
costs, expenses and taxes are owed (a "Creditor") whether or not such Creditor
has received notice hereof. Any such Creditor may enforce the Company's
obligations under this Section 401 directly against the Company and the Company
irrevocably waives any right of remedy to require that any such Creditor take
any action against the Trust or any other Person before proceeding against the
Company. The Company agrees to execute such additional agreements as may be
necessary or desirable in order to give full effect to the provisions of this
Section 401.
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The provisions of this Section shall survive the termination of this
Supplemental Indenture.
SECTION 402. Payment Upon Resignation or Removal.
Upon termination of this Supplemental Indenture or the Indenture or the
removal or resignation of the Trustee, unless otherwise stated, the Company
shall pay to the Trustee all amounts accrued to the date of such termination,
removal or resignation that are payable pursuant to Section 606 of the Original
Indenture. Upon termination of the Agreement or the removal or resignation of
the Delaware Trustee or the Property Trustee, as the case may be, pursuant to
Section 5.6 of the Agreement, the Company shall pay to the Delaware Trustee or
the Property Trustee, as the case may be, all amounts accrued to the date of
such termination, removal or resignation.
ARTICLE FIVE
COVENANT TO LIST ON EXCHANGE
SECTION 501. Listing on an Exchange.
If the Debentures are distributed to the holders of the Trust Securities,
and the Trust Preferred Securities are then listed, the Company will use its
best efforts to list such Debentures on the NYSE or on such other exchange as
the Trust Preferred Securities are then listed.
ARTICLE SIX
SUBORDINATION OF DEBENTURES
SECTION 601. Debentures Subordinate to Senior Indebtedness. The Company
for itself, its successors and assigns, covenants and agrees, and each Holder of
Debentures issued, whether upon original issue or upon transfer or assignment
thereof, by its acceptance thereof likewise covenants and agrees, that the
payment of principal of and interest on each and all of the Debentures is hereby
expressly subordinated, to the extent and in the manner hereinafter in this
Article set forth, in right of payment to the prior payment in full of all
existing and future Senior Indebtedness of the Company.
SECTION 602. Payments to Securityholders. (a) (i) In the event and during
the continuation of any default beyond any grace period in the payment of
principal of or interest on or any other monetary amounts due in respect of any
Senior Indebtedness, or in the event that any other event of default with
respect to any Senior Indebtedness shall have occurred and be continuing and
shall have resulted in such Senior Indebtedness becoming or being declared due
and payable prior to the date on which it would otherwise have become due and
payable and the Trustee has received written notice from the Company, from
holders of Senior Indebtedness or from any trustee, representative or agent
therefor, unless and until such event of default shall have been cured, waived
or remedied or shall have ceased to exist and such acceleration shall have been
rescinded or annulled or all amounts due on such Senior Indebtedness are paid in
full
14
in cash or other permitted consideration, or otherwise provided for, then no
payment of the principal of or interest on the Debentures shall be made by the
Company.
(ii) Upon any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to
creditors upon any dissolution or winding-up or total or partial
liquidation or reorganization of the Company, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other
proceedings, all principal, premium, if any, and interest, if any, due
upon all Senior Indebtedness shall first be paid in full, or payment
thereof provided for in money or money's worth in accordance with its
terms, before any payment is made on account of the principal of or
interest on the indebtedness evidenced by the Debentures, and upon any
such dissolution, winding-up, liquidation or reorganization, any payment
or distribution of assets of the Company of any kind or character, whether
in cash, property or securities, to which the Holders of the Debentures
under the terms of this Supplemental Indenture would be entitled, except
for the provisions hereof, shall (subject to the power of a court of
competent jurisdiction to make other equitable provision reflecting the
rights conferred by the provisions hereof upon the Senior Indebtedness and
the holders thereof with respect to the Debentures and the Holders thereof
by a lawful plan of reorganization under applicable bankruptcy law), be
paid by the Company or any receiver, trustee in bankruptcy, liquidating
trustee, agent or other person making such payment or distribution, or by
the Holders of the Debentures if received by them, directly to the holders
of Senior Indebtedness (pro rata to each such holder on the basis of the
respective amounts of Senior Indebtedness held by such holder) or their
representatives, to the extent necessary to pay all Senior Indebtedness
(including interest thereon) in full, in money or money's worth, in
accordance with its terms, after giving effect to any concurrent payment
or distribution to or for the holders of Senior Indebtedness, before any
payment or distribution is made to the holders of the indebtedness
evidenced by the Debentures. The consolidation of the Company with, or a
merger of the Company into, another Person or the liquidation or
dissolution of the Company following the conveyance or transfer of its
property as an entirety, or substantially as an entirety, to another
Person upon the terms and conditions provided in Section 801 of the
Original Indenture shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section 602(a).
(b) In the event that any payment or distribution of assets of the
Company of any kind or character not permitted by Section 602(a), whether in
cash, property or securities, shall be received by the Trustee or the Holders of
Debentures before all Senior Indebtedness is paid in full, or provision made for
such payment, in accordance with its terms, upon written notice to the Trustee
or, as the case may be, such Holder, such payment or distribution shall be held
in trust for the benefit of, and shall be paid over or delivered to, the holders
of such Senior Indebtedness or their representative or representatives, or to
the Trustee or trustees under any indenture pursuant to which any instruments
evidencing any of such Senior Indebtedness may have been issued, as their
respective interests may appear, for application to the payment of all Senior
Indebtedness remaining unpaid to the extent necessary to pay all such Senior
Indebtedness in full in accordance with its terms, after giving effect to any
concurrent payment or distribution to the
15
holders of such Senior Indebtedness. Nothing in this Article shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 606 of the
Original Indenture. In addition, nothing in this Article shall prevent the
Company from making or the Trustee from receiving or applying any payment in
connection with the redemption of the Debentures if the first publication of
notice of such redemption (whether by mail or otherwise in accordance with this
Supplemental Indenture) has been made, and the Trustee has received such payment
from the Company, prior to the occurrence of any of the contingencies specified
in this Section 602.
SECTION 603. Subrogation to Rights of Holders of Senior Indebtedness. From
and after the payment in full of all Senior Indebtedness, the Holders of the
Debentures (together with the holders of any other indebtedness of the Company
which is subordinate in right of payment to the payment in full of all Senior
Indebtedness, which is not subordinate in right of payment to the Debentures and
which by its terms grants such right of subrogation to the holder thereof) shall
be subrogated to the rights of the holders of Senior Indebtedness to receive
payments or distributions of assets or securities of the Company applicable to
the Senior Indebtedness until the Debentures shall be paid in full, and, for the
purposes of such subrogation, no such payments or distributions to the holders
of Senior Indebtedness of assets or securities, which otherwise would have been
payable or distributable to Holders of the Debentures, shall, as between the
Company, its creditors (other than the holders of Senior Indebtedness), and the
Holders of the Debentures, be deemed to be a payment by the Company to or on
account of the Senior Indebtedness, it being understood that the provisions of
this Article are and are intended solely for the purpose of defining the
relative rights of the Holders of the Debentures, on the one hand, and the
holders of the Senior Indebtedness, on the other hand, and nothing contained
herein is intended to or shall impair as between the Company, its creditors
(other than the holders of Senior Indebtedness), and the Holders of the
Debentures, the obligation of the Company, which is unconditional and absolute,
to pay to the Holders of the Debentures the principal of and interest on the
Debentures as and when the same shall become due and payable in accordance with
their terms, or to affect the relative rights of the Holders of the Debentures
and creditors of the Company (other than the holders of the Senior
Indebtedness), nor shall anything herein or therein prevent the Trustee or the
Holder of Debentures from exercising all remedies otherwise permitted by
applicable law upon default hereunder with respect to the Debentures subject to
the rights of the holders of Senior Indebtedness, under Section 602, to receive
cash, property or securities of the Company otherwise payable or deliverable to
the Trustee or the Holders of the Debentures or to a representative of such
Holders, on their behalf.
Upon any distribution or payment in connection with any proceedings or
sale referred to in Section 602(a), the Trustee and each Holder of the
Debentures then Outstanding, shall be entitled to rely upon a certificate of the
liquidating trustee or agent or other Person making any distribution or payment
to the Trustee or such Holder for the purpose of ascertaining the holders of
Senior Indebtedness entitled to participate in such payment or distribution, the
amount of such Senior Indebtedness or the amount payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article.
SECTION 604. No Impairment of Subordination. Nothing contained in this
Article or elsewhere in this Supplemental Indenture or the Debentures shall
prevent at any time the
16
Company from making payments at any time of principal of or interest on the
Debentures, except under the conditions described in Section 602 or during the
pendency of any proceedings or sale therein referred to.
SECTION 605. Trustee to Effectuate Subordination. Each Holder of
Debentures by his acceptance thereof, whether upon original issue or upon
transfer or assignment, authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to effectuate the subordination
provisions in this Article and appoints the Trustee his attorney-in-fact for any
and all such purposes.
No rights of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Trustee
or any Holder of the Debentures then Outstanding, or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by any such
holder, with the terms, provisions and covenants of this Supplemental Indenture,
regardless of any knowledge thereof which any such holder may have or otherwise
be charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of or notice to the Holders of the Debentures, without incurring
responsibility to the Holders of the Debentures and without impairing or
releasing the subordination provided in this Article or the obligations of the
Holders of the Debentures to the holders of Senior Indebtedness, do any one or
more of the following: (i) change the manner, place or terms of payment of, or
renew or alter, Senior Indebtedness, or otherwise amend or supplement in any
manner Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (iii) release any Person liable in any manner for
the collection of Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
SECTION 606. Notice to Trustee. The Company shall give prompt written
notice to the Trustee in the form of an Officers' Certificate of any fact known
to the Company which would prohibit the making of any payment of money to or by
the Trustee in respect of the Debentures pursuant to the provisions of this
Article. Notwithstanding the provisions of this Article or any other provisions
of this Supplemental Indenture, the Trustee shall not be charged with knowledge
of the existence of any facts which would prohibit the making of any payment to
or by the Trustee in respect of the Debentures pursuant to the provisions of
this Article, unless and until the Trustee shall have received at its Corporate
Trust Office written notice thereof from the Company or a holder or holders of
Senior Indebtedness or from any trustee therefor at least two Business Days
prior to such payment date; and, prior to the receipt of any such written
notice, the Trustee, shall be entitled in all respects to assume that no such
facts exist.
The Trustee shall be entitled to rely on the delivery to it of a written
notice by a Person representing himself to be a holder of Senior Indebtedness
(or a trustee on behalf of such holder) to establish that such notice has been
given by a holder of Senior Indebtedness or a trustee on behalf of any such
holder. In the event that the Trustee determines in good faith that further
17
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 607. Reliance on Certificate of Liquidating Agent. Upon any
payment or distribution referred to in this Article, the Trustee and the Holders
of the Debentures shall be entitled to rely upon any order or decree entered by
any court of competent jurisdiction in which a dissolution, winding up or total
or partial liquidation or reorganization of the Company is pending, or a
certificate of the trustee in bankruptcy, liquidating trustee, custodian,
receiver, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of the
Debentures, for the purpose of ascertaining the Persons entitled to participate
in such distribution, the holders of the Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article.
SECTION 608. Trustee Not Fiduciary for Holders of Senior Indebtedness. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and shall not be liable to any such holders if it shall in good
faith mistakenly pay over or distribute to Holders of the Debentures or to the
Company or to any other Person cash, property or securities to which any holders
of Senior Indebtedness shall be entitled by virtue of this Article or otherwise.
SECTION 609. Rights of Trustee as Holder of Senior Indebtedness. The
Trustee in its individual capacity shall be entitled to all the rights set forth
in this Article with respect to any Senior Indebtedness which may at any time be
held by it, to the same extent as any other holder of Senior Indebtedness, and
nothing in this Supplemental Indenture shall deprive the Trustee of any of its
rights as such holder.
SECTION 610. Article Applicable to Paying Agent. In case at any time any
Paying Agent other than the Trustee shall have been appointed by the Company and
be then acting hereunder, the term "Trustee" as used in this Article shall in
such case (unless the context shall otherwise require) be construed as extending
to and including such Paying Agent within its meaning as fully for all intents
and purposes as if such Paying Agent were named in this Article in addition to
or in place of the Trustee; provided, however, that this Section shall not apply
to the Company or any Affiliate of the Company if it or such Affiliate acts as
Paying Agent.
ARTICLE SEVEN
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
18
Supplemental Indenture or the proper authorization or the due execution hereof
by the Company or for or in respect of the recitals and statements contained
herein, all of which recitals and statements are made solely by the Company.
Except as expressly amended hereby, the Original Indenture shall continue
in full force and effect in accordance with the provisions thereof and the
Original Indenture is in all respects hereby ratified and confirmed. This
Supplemental Indenture and all its provisions shall be deemed a part of the
Original Indenture in the manner and to the extent herein and therein provided.
This Supplemental Indenture and the Debentures shall be governed by, and
construed in accordance with, the laws of the State of New York.
This Supplemental Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
19
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the day and year first above written.
DTE ENERGY COMPANY
By:______________________________
Name: X.X. Xxxxxx
Title: Assistant Treasurer
BNY MIDWEST TRUST COMPANY
By:______________________________
Name:
Title:
20
EXHIBIT A
FORM OF SUBORDINATED DEBENTURE
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. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR DEBENTURES IN CERTIFICATED FORM, THIS DEBENTURE 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 DEBENTURE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC 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 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.
CUSIP NO.: 233331 50 3 $__________
NO. R-
DTE ENERGY COMPANY
7.50% JUNIOR SUBORDINATED DEBENTURES DUE 2044
DTE ENERGY COMPANY, a corporation duly organized and existing under the laws of
the State of Michigan (herein referred to as the "Company", which term includes
any successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of $________ on June 1, 2044 ("Stated Maturity"), unless
previously redeemed, and to pay interest at the rate of 7.50% per annum on said
principal sum from the date of issuance until the principal of this Debenture
becomes due and payable, and on any overdue principal and (to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at the same rate per annum during such overdue period.
Interest on this Debenture will be payable quarterly in arrears on March 1, June
1, September 1 and December 1 of each year (each such date, an "Interest Payment
Date"), commencing September 1, 2004.
The amount of interest payable for any period shall be computed on the basis of
twelve 30-day months and a 360-day year and, for any period shorter than a full
quarterly interest period, will be computed on the basis of the actual number of
days elapsed per 30-day month. In the event that any date on which interest is
payable on this Debenture is not a Business Day, then payment of the amount
payable on such date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of any such delay),
except that, if such
A-1
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day without reduction in the amount due to
such early payment, in each case with the same force and effect as if made on
such date. Payments of interest may be deferred by the Company pursuant to the
provisions of Article Two of the Supplemental Indenture (as defined herein) to
the Indenture (as defined herein). The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date with respect
to this Debenture will, as provided in the Indenture, be paid to the person in
whose name this Debenture (or one or more Predecessor Securities) is registered
at the close of business on the relevant Regular Record Date prior to the
relevant 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 either 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 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 the
Debentures may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. Except as otherwise
provided in the Indenture, the principal of and the interest on this Debenture
shall be payable at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York, in any coin or
currency of the United States of America which at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest may be made at the option of the Company by check mailed to the
registered Holder at the close of business on the Regular Record Date at such
address as shall appear in the Security Register.
All references in this Debenture to interest shall include Additional Interest,
if any, and Compound Interest, if any.
This Debenture is one of a duly authorized series of Securities of the Company,
designated as the "7.50% Junior Subordinated Debentures due 2044" (the
"Debentures"), limited to an aggregate principal amount of $92,783,525 (except
for Debentures authenticated and delivered upon transfer of, or in exchange for,
or in lieu of other Debentures), all issued under and pursuant to an Amended and
Restated Indenture, dated as of April 9, 2001, as supplemented by the
Supplemental Indenture dated as of June 1, 2004, with respect to the Debentures
(the "Supplemental Indenture"), as further amended, supplemented or otherwise
modified from time to time (as so amended, supplemented or modified, the
"Indenture"), duly executed and delivered between the Company and BNY Midwest
Trust Company, an Illinois trust corporation, as Trustee (herein referred to as
the "Trustee", which term includes any successor trustee under the Indenture),
to which Indenture 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 Debentures and of the
terms upon which the Debentures are, and are to be, authenticated and delivered.
Payment of the principal of and interest on this Debenture is, to the extent
provided in the Indenture, subordinated and subject in right of payment to the
prior payment in full of all
A-2
existing and future Senior Indebtedness of the Company and this Debenture is
issued subject to the provisions of the Indenture with respect thereto. Each
registered 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 as his or her attorney-in-fact for any and all such purposes. Each
registered Holder hereof, by his or her acceptance hereof, hereby waives all
notice of the acceptance of the subordination provisions contained herein and in
the Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such Holder upon said
provisions.
The Company and, by its acceptance of this Debenture or a beneficial interest
herein, the registered Holder of, and any Person that acquires a beneficial
interest in, this Debenture agree that for United States federal, state and
local tax purposes it is intended that this Debenture constitute indebtedness,
and the Holder of, and any Person that acquires a beneficial interest in, this
Debenture agrees to treat this Debenture as indebtedness for United States
federal income tax purposes.
Notwithstanding the provisions of the Indenture, this Debenture shall be without
benefit of any security and shall be subordinated to Senior Indebtedness.
This Debenture is not subject to repayment at the option of the Holder hereof.
Except as provided below, this Debenture is not redeemable by the Company prior
to maturity and is not subject to any sinking fund.
This Debenture shall be redeemable prior to its Stated Maturity at the option of
the Company (i) in whole or in part, from time to time, on or after June 1, 2009
or (ii) at any time prior to June 1, 2009, in whole but not in part, within 90
days following the occurrence of a Special Event, in either case at a redemption
price (the "Redemption Price") equal to 100% of the principal amount thereof,
plus accrued and unpaid interest thereon (including Additional Interest and
Compound Interest, if any) to the date of redemption.
Notice of any redemption will be mailed at least 30 days but not more than 60
days before the redemption date to the Holder hereof at its registered address.
Unless the Company defaults in payment of the Redemption Price, on and after the
redemption date interest will cease to accrue on the principal amount of this
Debenture called for redemption.
If money sufficient to pay the Redemption Price with respect to the principal
amount of and accrued interest on the principal amount of this Debenture to be
redeemed on the redemption date is deposited with the Trustee on or before the
redemption date and certain other conditions are satisfied, then on or after
such date, interest will cease to accrue on the principal amount of this
Debenture called for redemption.
If the Debentures are only partially redeemed by the Company, 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 by lot the
principal amount of such Debentures held by each Debenture Holder to be
redeemed.
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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 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 hereof 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 provisions relating to defeasance and covenant defeasance in the Indenture
in Section 403 thereof shall not apply to this Debenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Debentures under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority of the aggregate principal amount of all Debentures issued under the
Indenture at the time outstanding and affected thereby; provided, however, that
no such amendment shall without the consent of the Holder of each Debenture so
affected, among other things (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 of interest thereon,
or reduce any premium payable upon the redemption thereof, (ii) reduce the
aforesaid percentage of the Holders of which are required to consent to any such
supplemental indenture or (iii) modify any of the subordination provisions
contained herein in a manner adverse to the Holder hereof. 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 not less than a
majority in aggregate principal amount of the Securities of any 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 Debenture (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 Debenture and of any Debenture 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
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 interest on this
Debenture at the time and place and at the rate and in the coin or currency
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Debenture is registrable in the Security Register of
the Company, upon surrender of this Debenture for registration of transfer at
the office or agency of the Company in any place where the principal of and any
interest on this Debenture are payable or at such other offices or
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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 Debentures 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 Debenture, 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 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 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 Debentures of this series are issuable only in fully registered form without
coupons in denominations of $25 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
$25 and any integral multiple thereof. As provided in the Indenture and subject
to certain limitations therein set forth, Debentures of this series are
exchangeable for a like aggregate principal amount of Debentures of this series
of a different authorized denomination, as requested by the registered Holder
surrendering the same.
As set forth in, and subject to the provisions of, the Indenture, no registered
owner of any Debenture will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder, unless (i) such
registered owner shall have previously given to the Trustee written notice of a
continuing Event of Default with respect to the Debentures of this series, (ii)
the registered owners of not less than 25% in principal amount of the
Outstanding Debentures of this series shall have made written request, and
offered reasonable indemnity, to the Trustee to institute such proceeding as
trustee, (iii) the Trustee shall have failed to institute such proceeding within
60 days and (iv) the Trustee shall not have received from the registered owners
of a majority in principal amount of the outstanding Debentures of this series a
direction inconsistent with such request within such 60-day period; provided,
however, that such limitations do not apply to a suit instituted by the
registered owner hereof for the enforcement of payment of the principal of or
any interest on this Debenture on or after the respective due dates expressed
herein.
Unless the Certificate of Authentication hereon has been executed by the Trustee
or a duly appointed Authentication Agent referred to herein, this Debenture
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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The Indenture and this Debenture shall be governed and construed in accordance
with the laws of the State of New York.
All terms used in this Debenture which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
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IN WITNESS WHEREOF, the Company has caused this Instrument to be duly executed.
DTE ENERGY COMPANY
By____________________________
Name:
Title:
Date:
Attest:
By____________________________
Corporate Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures described in the
within mentioned Indenture.
BNY MIDWEST TRUST COMPANY
as Trustee
By__________________________
Authorized Signatory
Date:
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FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
(Please insert Social Security or Other Identifying Number of Assignee)
________________________________________________________________________________
(Please print or type name and address, including zip code of assignee)
the within Debenture and all rights thereunder, hereby irrevocably constituting
and appointing such person attorneys to transfer the within Debenture 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 Debenture 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 Debenture.
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