Commission | Registrants; State of Incorporation; | I.R.S. Employer | ||
File Number | Address; and Telephone Number | Identification No. | ||
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1-11607
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DTE Energy Company
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38-3217752
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(a Michigan corporation)
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2000 2nd Avenue
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Detroit, Michigan 48226-1279
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313-235-4000
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1-2198
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The Detroit Edison Company
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38-0478650
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(a Michigan corporation)
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2000 2nd Avenue
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Detroit, Michigan 48226-1279
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313-235-8000
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Securities registered pursuant to Section 12(b) of the Act:
Title of each class | Name of each exchange on which registered | ||
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||
DTE Energy Company
|
|
| |
New York and Chicago Stock Exchanges
|
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Common Stock, without par value, with contingent preferred stock
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purchase rights
|
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The Detroit Edison Company
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Quarterly Income Debt Securities (QUIDS)
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(Junior Subordinated Deferrable Interest Debentures
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New York Stock Exchange
|
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- 7.625%, 7.54% and 7.375% Series)
|
Securities registered pursuant to Section 12(g) of the Act:
Indicate by check mark whether the registrants (1) have filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrants were required to file such reports), and (2) have been subject to such filing requirements for the past 90 days. Yes No
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrants knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.
At January 31, 2001, 142,649,172 shares of DTE Energys Common Stock, substantially all held by non-affiliates, were outstanding, with an aggregate market value of approximately $5.034 billion based upon the closing price on the New York Stock Exchange.
Certain information in DTE Energy Companys definitive Proxy Statement for its
2001 Annual Meeting of Common Shareholders to be held April 25, 2001, which will
be filed with the Securities and Exchange Commission pursuant to Regulation 14A,
not later than 120 days after the end of the Registrants fiscal year covered by
this report on Form 10-K, is incorporated herein by reference to Part III (Items
10, 11, 12 and 13) of this Form 10-K.
This document contains the Annual Reports on Form 10-K for the fiscal year ended December 31, 2000 for each of DTE Energy Company and The Detroit Edison Company. Information contained herein relating to an individual registrant is filed by such registrant on its own behalf. Accordingly, except for its subsidiaries, The Detroit Edison Company makes no representation as to information relating to DTE Energy Company or any other companies affiliated with DTE Energy Company.
2
Part II
75
75
75
75
79
Part III
79
79
79
79
The Detroit Edison Company:
Part IV
80
95
96
3
Energy Company)
transmission system which results in access to competitive
generation resources
with Consumers)
and Detroit Edison
4
Item 1 Business.
GENERAL
The Company, a Michigan corporation incorporated in 1995, is an exempt holding company under the Public Utility Holding Company Act of 1935, as amended. The Company has no operations of its own, holding instead directly or indirectly, the stock of Detroit Edison and other subsidiaries engaged in energy-related businesses. Detroit Edison is the Companys principal operating subsidiary, representing approximately 87% and 74% of the Companys assets and revenues, respectively, at December 31, 2000. The Company has no employees. Detroit Edison has 8,691 employees and other Company affiliates have 453 employees.
See Note 2 for information regarding the Companys proposed merger with MCN.
NON-REGULATED OPERATIONS
Affiliates of the Company are engaged in non-regulated businesses, including energy-related services and products. Such services and products include the operation of pulverized coal facilities and coke oven batteries, coal sourcing, blending and transportation, landfill gas-to-energy facilities, providing expertise in the application of new energy technologies, real estate development and power marketing and trading. Another affiliate, DTE Capital, has approximately $400 million of outstanding debt. DTE Capital will transfer all of its assets and liabilities to the Company and merge its operations into the Company. See Note 9 for further discussion.
Non-regulated operating revenues of $1.468 billion for 2000 were earned primarily from projects related to the steel industry and from energy trading activities.
UTILITY OPERATIONS
Detroit Edison, incorporated in Michigan since 1967, is a public utility subject to regulation by the MPSC and FERC and is engaged in the generation, purchase, transmission, distribution and sale of electric energy in a 7,600 square mile area in Southeastern Michigan. Detroit Edisons service area includes about 13% of Michigans total land area and about half of its population (approximately five million people). Detroit Edisons residential customers reside in urban and rural areas, including an extensive shoreline along the Great Lakes and connecting waters. 4,287 of Detroit Edisons 8,691 employees are represented by unions under two collective bargaining agreements. One agreement expires in June 2004 for 3,719 employees and the other agreement expires in September 2005 for 568 employees.
Effective January 2001, the transmission assets of Detroit Edison were transferred to ITC, a wholly owned subsidiary of Detroit Edison.
5
Operating revenues, sales and customer data by rate class are as follows:
2000
1999
1998
(Millions)
$
1,265
$
1,300
$
1,253
1,670
1,629
1,553
848
809
753
346
309
343
$
4,129
$
4,047
$
3,902
(Millions of kWh)
13,903
14,064
13,752
19,762
19,546
18,897
16,090
15,647
14,700
2,653
2,595
2,357
52,408
51,852
49,706
2,592
3,672
5,207
55,000
55,524
54,913
(Thousands)
1,922
1,904
1,884
185
182
181
1
1
1
2
2
2
2,110
2,089
2,068
Detroit Edison generally experiences its peak load and highest total system sales during the third quarter of the year as a result of air conditioning and cooling-related loads.
During 2000, sales to automotive and automotive-related customers accounted for approximately 9% of total Detroit Edison operating revenues. Detroit Edisons 30 largest industrial customers accounted for approximately 17% of total operating revenues in 2000, 1999 and 1998, and no one customer accounted for more than 5% of total operating revenues.
Detroit Edisons generating capability is primarily dependent upon coal. Detroit Edison expects to obtain the majority of its coal requirements through long-term contracts and the balance through short-term agreements and spot purchases. Detroit Edison has contracts with three coal suppliers for a total purchase of up to 39 million tons of low-sulfur western coal to be delivered during the period from 2001 through 2005. It also has one contract for the purchase of approximately 11.9 million tons of Appalachian coal to be delivered during the period from 2001 through 2007. These existing long-term coal contracts include provisions for price escalation as well as de-escalation.
6
Certain Factors Affecting Public Utilities
The electric utility industry is changing as the transition to competition occurs. The implementation of electric utility restructuring creates uncertainty as Electric Choice and the unbundling of utility products and services continues. Restructuring presents serious issues, such as planning for peak sales and defining the scope of the public utility obligation. The introduction of Electric Choice has created uncertainty regarding the timing and level of customer load that may move to other suppliers.
Detroit Edison is subject to extensive environmental regulation. Additional costs may result as the effects of various chemicals on the environment (including nuclear waste) are studied and governmental regulations are developed and implemented. The costs of future nuclear decommissioning activities are the subject of increased regulatory attention, and recovery of environmental costs through traditional ratemaking is the subject of considerable uncertainty.
Regulation and Rates
Michigan Public Service Commission.
Detroit Edison is subject to the general regulatory jurisdiction of the MPSC, which, from time to time, issues its orders pertaining to Detroit Edisons conditions of service, rates and recovery of certain costs, accounting and various other matters.
See Notes 1 and 3 for a discussion of June 2000 Michigan restructuring legislation and related MPSC orders. Other regulatory matters are discussed below.
In July 1998, Detroit Edison filed a required review of its current depreciation rates with the MPSC. The application requested an effective increase in annual depreciation expenses of $66 million; an adjustment in customer rates was not requested. Detroit Edison has not implemented the revised depreciation rates and is unable to predict the timing or final outcome of this request.
In March 1999, the MPSC initiated new dockets to 1) evaluate the need to expedite the supplier licensing program as an alternative for suppliers to obtain local franchises and Certificates of Public Convenience and Necessity from the MPSC, and 2) to establish guidelines for transactions between affiliates. The MPSC approved a licensing procedure for alternative electric suppliers in June 2000. The MPSC issued guidelines for transactions between affiliates in May 2000. These guidelines require accounting separation, annual reporting of transactions, and internal audits to ensure that Detroit Edison is complying with the guidelines. Detroit Edison, in conjunction with other parties, has appealed certain aspects of the order.
In September 1999, the MPSC approved an interim code of conduct filed by Detroit Edison. The interim code allows DTE Energy affiliated companies to participate in the Electric Choice program. The MPSC also opened a proceeding to develop a permanent code of conduct. In December 2000, the MPSC issued an order that expanded the application of the code of conduct broadly to any activities between Detroit Edison and any affiliates. Detroit Edison has filed a petition for rehearing of the
7
order and is to file a compliance plan outlining how it will comply with the code of conduct 60 days after the MPSC issues a rehearing order. Detroit Edison cannot determine the timing or outcome of the proceeding.
Detroit Edison is under an obligation to solicit capacity from external suppliers whenever it determines that additional capacity is required. In April 2000, the MPSC approved Detroit Edisons plan to use an alternative capacity solicitation process. If Detroit Edison decides to meet its capacity requirements by executing contracts with a term longer than one year, it will utilize a Request for Proposal (RFP) to solicit offers. Otherwise, as long as Detroit Edison has a need to procure summer capacity to serve native load customers, Detroit Edison will file an annual report with the MPSC outlining its expected summer generating needs and the method by which it expects to meet those needs. In December 2000, Detroit Edison filed with the MPSC its plan to meet customers needs in the summer of 2001. An update filed in February 2001 indicates that Detroit Edison expects a peak demand of 12,283 MW, which could be lowered by about 451 MW as customers participate in the Electric Choice program. Detroit Edison anticipates it will need to purchase 2,147 MW, of which 1,880 MW of firm transmission into Michigan has already been reserved. Detroit Edison expects to purchase power from Canada and merchant suppliers within Michigan, as well as from customer-owned generation.
Proceedings were held before the MPSC concerning claims that Detroit Edisons service is lacking in reliability in certain aspects. In one proceeding the MPSC approved a settlement agreement that provides for a program of system improvements designed to address areas in Detroit Edisons service territory that have been subject to severe storm damage and multiple outages. In another proceeding, the MPSC Staff issued a report proposing electric distribution performance standards that would apply to Michigan utilities including Detroit Edison. The Staff proposed that quarterly reports be filed with the MPSC and that a twelve-month rolling average of data will be used to determine compliance with the standards. If the rolling average is not met, Staff recommends, after notice and hearing, that reductions in rates be imposed for a period of time equal to the time of non-compliance or until the non-compliance is corrected. The amount of reductions would be equal to 1 mill/kwh for all energy sold, or a minimum of $1 per customer per month. Detroit Edison is unable to predict whether the MPSC will take further action in this matter.
In April 2000, Energy Michigan, an intervenor group, filed with the MPSC to reopen the Fermi 2 amortization case, raising similar issues that Nordic Electric raised in a complaint filed at the FERC. Energy Michigan alleges that Detroit Edison has violated its commitment to implement Electric Choice, and requests that a hearing is conducted before the MPSC. Energy Michigan also alleges that Detroit Edison is monopolizing available electric import capability from other utilities within the United States, and is refusing to allow Nordic Electric to import electric supplies from Ontario Hydro Services Company. Detroit Edison believes that the allegations are without merit.
The MPSC initiated a contested case hearing in February 2001, to address the August 2000 request by ABATE to consider the consequences of the proposed transfer of transmission assets from Detroit Edison to ITC. ABATE alleges that Electric Choice customers may overpay for the use of transmission assets, and that Detroit Edison has circumvented the rate freeze provisions in PA141. The Company believes the allegations are without merit. The Company is unable to determine the timing or outcome of the proceedings.
Nuclear Regulatory Commission
The NRC has regulatory jurisdiction over all phases of the operation, construction (including plant modifications), licensing and decommissioning of Fermi 2.
8
Federal Energy Regulatory Commission
In 1996, the FERC issued Order 888, which requires public utilities to file open access transmission tariffs for wholesale transmission services in accordance with non-discriminatory terms and conditions, and Order 889, which requires public utilities and others to obtain transmission information for wholesale transactions through a system on the Internet. In addition, Order 889 requires public utilities to separate transmission operations from wholesale marketing functions.
Detroit Edison has a power pooling agreement with Consumers. In March 1997, a joint transmission tariff, filed by Detroit Edison and Consumers, became effective. In compliance with FERC Order 888, the tariff modified the pooling agreement to permit third-party access to transmission facilities utilized for pooled operations under non-discriminatory terms and conditions. As Detroit Edison and Consumers were unable to agree on other modifications to the pooling agreement, Detroit Edison requested that the FERC approve its termination. In February 2001, Detroit Edison and Consumers filed with the FERC to terminate the pooling agreement effective March 31, 2001, with a new agreement between ITC and Consumers to be effective April 1, 2001. ITC and Consumers will jointly operate the transmission system and will still be the control area operator; however, there will no longer be joint-dispatch of the respective companies units.
ENVIRONMENTAL MATTERS
Detroit Edison
Detroit Edison, in common with other electric utilities, is subject to applicable permit and associated record keeping requirements, and to increasingly stringent federal, state and local standards covering, among other things, particulate and gaseous stack emission limitations, the discharge of effluents (including heated cooling water) into lakes and streams and the handling and disposal of waste material.
Air
During 1997 and 1998, the EPA issued ozone transport regulations and final new air quality standards relating to ozone and particulate air pollution. The new rules will lead to additional controls on fossil-fueled power plants to reduce nitrogen oxides, sulfur dioxide, carbon dioxide and particulate emissions. See Item 7 Environmental Matters for further discussion.
The EPA has initiated enforcement actions against several major electric utilities citing violations of new source provisions of the Clean Air Act. Detroit Edison has received and responded to information requests from the EPA on this subject. It is impossible at this time to predict the future impact of this issue upon Detroit Edison.
Water
Detroit Edison is required to demonstrate that the cooling water intake structures at all of its facilities reflect the best technology available for minimizing adverse environmental impact. Detroit Edison filed such demonstrations and the MDEQ Staff accepted all of them except those relating to the St. Clair and Monroe Power Plants for which it requested further information. Detroit Edison subsequently submitted the
9
information. In the event of a final adverse decision, Detroit Edison may be required to install additional control technologies to further minimize the impact.
Wastes and Toxic Substances
The Michigan Solid Waste and Hazardous Waste Management Acts, the Michigan Environmental Response Act, the Federal Resource Conservation and Recovery Act, Toxic Substances Control Act, and the Federal Comprehensive Environmental Response, Compensation and Liability Act of 1980 regulate Detroit Edisons handling, storage and disposal of its waste materials.
The EPA and the MDEQ have aggressive programs regarding the clean-up of contaminated property. Detroit Edison has extensive land holdings and, from time to time, must investigate claims of improperly disposed of contaminants. Detroit Edison anticipates that it will be periodically included in these types of environmental proceedings.
Conners Creek
The Conners Creek Power Plant was in reserve status from 1988 to 1998. In April, 1998 the MPSC issued an order granting Detroit Edisons request to waive competitive bidding for Conners Creek and restart the plant to meet increased electricity demand. Although Detroit Edison believed that the plant complied with all applicable environmental requirements, the Michigan Department of Natural Resources and the Wayne County Air Quality Management Division issued notices of violation contending that Detroit Edison was required to obtain a series of new permits prior to plant operation. Subsequently the EPA issued a similar notice of violation. Detroit Edison converted the plant and began operating it as a gas-fired facility in 1999. In January 2001, Detroit Edison agreed to pay $450,000 to settle all matters related to the operation of the plant.
Non-Regulated
The Companys non-regulated affiliates are subject to a number of environmental laws and regulations dealing with the protection of the environment from various pollutants. These non-regulated affiliates are in substantial compliance with all environmental requirements.
10
EXECUTIVE OFFICERS OF THE REGISTRANT
Present
Position
Name
Age(a)
Present Position
Held Since
51
62
42
51
52
60
40
52
43
Under the Companys By-Laws, the officers of the Company are elected annually by the Board of Directors at a meeting held for such purpose, each to serve until the next annual meeting of directors or until their respective successors are chosen and qualified. With the exception of Messrs. Peterson and Meador, all of the above officers have been employed by the Company in one or more management capacities during the past five years.
Eric H. Peterson was with Worsham Forsythe Wooldridge LLP of Dallas, Texas for 15 years. He was a partner for seven years prior to joining the Company. Effective September 5, 2000, he was elected Senior Vice President and General Counsel.
David E. Meador was Controller, Mopar Parts Division, at Chrysler Corporation, an international automotive manufacturer, from November 1996 until February 1997. From 1986 to 1996, he held a variety of executive financial positions at Chrysler. Effective February 28, 1997, he was elected Vice President and effective March 29, 1997, he assumed the duties of Controller. Effective April 28, 1999, he was elected Vice President Finance and Accounting and effective May 15, 2000, he was elected Senior Vice President and Treasurer.
Pursuant to Article VI of the Companys Articles of Incorporation, directors of the Company will not be personally liable to the Company or its shareholders in the performance of their duties to the full extent permitted by law.
Article VII of the Companys Articles of Incorporation provides that each person who is or was or had agreed to become a director or officer of the Company, or each such person who is or was serving or who had agreed to serve at the request of the Board of Directors as an employee or agent of the Company or as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (including the heirs, executors, administrators or estate of such person), shall be indemnified by the Company to the full extent permitted by the Michigan Business Corporation Act or any other applicable laws as presently or hereafter in effect. In addition, the Company has entered into indemnification agreements with all of its officers and directors, which agreements set forth procedures for claims for indemnification as well as contractually obligating the Company to provide indemnification to the maximum extent permissible by law.
11
The Company and its directors and officers in their capacities as such are insured against liability for alleged wrongful acts (to the extent defined) under three insurance policies providing aggregate coverage in the amount of $100 million.
Other Information
Pursuant to the provisions of the Companys By-Laws, the Board of Directors has by resolution set the number of directors comprising the full Board at 11.
The MCN merger agreement provides that at the completion of the proposed merger, the Company will promptly increase the size of its board of directors or exercise its best efforts to secure the resignation of its present directors in order to cause Mr. Alfred R. Glancy III and two additional persons selected by MCN after consultation with the Company from among MCNs directors as of the date of the merger agreement to be appointed to the Companys board of directors.
12
Item 2 Properties.
DETROIT EDISON
The summer net rated capability of Detroit Edisons generating units is as follows:
Location By
Michigan
Summer Net
Year
Plant Name
County
Rated Capability (1)
(2)
in Service
(MW
)
1,026
9.3
%
1984 and 1985
167
1.5
1999
785
7.1
1979
103
0.9
1968
167
1.5
1930, 1943 and 1947
3,000
27.2
1971, 1973 and 1974
510
4.6
1957 and 1958
1,417
12.9
1953, 1954, 1961 and 1969
725
6.6
1949, 1950 and 1968
7,900
71.6
%
Various
1,102
10.0
1966-1971, 1981 and 1999
Monroe
1,111
10.1
1988
Mason
917
8.3
1973
11,030
100.0
%
(1) | Summer net rated capabilities of generating units in service are based on periodic load tests and are changed depending on operating experience, the physical condition of units, environmental control limitations and customer requirements for steam, which otherwise would be used for electric generation. | |
(2) | Excludes one oil-fueled unit, St. Clair Unit No. 5 (250 MW), in economy reserve status. | |
(3) | The Belle River capability represents Detroit Edisons entitlement to 81.39% of the capacity and energy of the plant. See Note 5. | |
(4) | The Monroe Power Plant provided 35.56% of Detroit Edisons total 2000 power plant generation. | |
(5) | Fermi 2 has a design electrical rating (net) of 1,150 MW. | |
(6) | Represents Detroit Edisons 49% interest in Ludington with a total capability of 1,872 MW. Detroit Edison is leasing 306 MW to First Energy for the six-year period June 1, 1996 through May 31, 2002. |
Detroit Edison and Consumers interchange energy through nine interconnections. Detroit Edison and Consumers also have interchange agreements to exchange electric energy through 12 interconnections with FirstEnergy, Indiana Michigan Power Company, Northern Indiana Public Service Company and Ontario Hydro Services Company. In addition, Detroit Edison has interchange agreements for the exchange of electric energy with Michigan South Central Power Agency, Rouge Steel Company and the City of Wyandotte.
13
Detroit Edison also purchases energy from cogeneration facilities and other small power producers. Energy purchased from cogeneration facilities and small power producers amounted to $37 million, $34 million and $31 million for 2000, 1999 and 1998, respectively, and is currently estimated at $39 million for 2001.
Detroit Edisons electric generating plants are interconnected by a transmission system operating at up to 345 kilovolts through 41 transmission stations. As of December 31, 2000, electric energy was being distributed in Detroit Edisons service area through 618 substations over 3,700 distribution circuits.
Because Detroit Edison must currently import power to meet peak loads in the summer, transmission capacity is a necessary requirement to serve customers reliably during peak load periods. As a result of certain transmission procedures, there continues to be uncertainty surrounding the ability of Detroit Edison to import power reliably into Michigan. To relieve this uncertainty, additional efforts to secure firm transmission rights continue to be necessary, as well as additional in-state generating capability. Detroit Edison has acquired significant additional commitments from other utilities, and modified operating practices to provide flexibility to respond to increasing uncertainties of load and market conditions.
See Item 7 Managements Discussion and Analysis of Financial Condition and Results of Operations, and Note 1 for a discussion of the transfer of transmission assets from Detroit Edison to International Transmission Company.
NON-REGULATED
Non-regulated property consists primarily of coke oven battery facilities in Michigan and Indiana, coal processing facilities in Michigan and Maryland, merchant natural gas turbine facilities in Indiana and Michigan, and numerous landfill gas projects located throughout the United States.
Item 3 Legal Proceedings.
Detroit Edison, in the ordinary course of its business, is involved in a number of suits and controversies including claims for personal injuries and property damage and matters involving zoning ordinances and other regulatory matters. As of December 31, 2000, Detroit Edison was named as defendant in 149 lawsuits involving claims for personal injuries and property damage and had been advised of 29 other potential claims not evidenced by lawsuits.
From time to time, Detroit Edison has paid nominal penalties which were administratively assessed by the United States Coast Guard and United States Department of Transportation under the Federal Water Pollution Control Act, as amended, with respect to minor accidental oil spills at Detroit Edisons power plants into navigable waters of the United States. Payment of such penalties represents full disposition of these matters.
14
See Note 12 Commitments and Contingencies and Environmental Matters, Detroit Edison, Conners Creek herein for additional information.
Item 4 Submission of Matters to a Vote of Security Holders.
None during the fourth quarter of 2000.
Item 5 Market for Registrants Common Equity and Related Stockholder Matters.
The Companys Common Stock is listed on the New York Stock Exchange, which
is the principal market for such stock, and the Chicago Stock Exchange. The
following table indicates the reported high and low sales prices of the
Companys Common Stock on the Composite Tape of the New York Stock Exchange and
dividends paid per share for each quarterly period during the past two years:
Price Range | Dividends | |||||||||||||||
|
Paid | |||||||||||||||
Calendar Quarter | High | Low | Per Share | |||||||||||||
|
|
|
|
|||||||||||||
1999
|
First | 43-3/4 | 37-15/16 | $ | 0.515 | |||||||||||
|
Second | 44-11/16 | 38-1/4 | 0.515 | ||||||||||||
|
Third | 41-7/8 | 35-3/16 | 0.515 | ||||||||||||
|
Fourth | 37-5/16 | 31-1/16 | 0.515 | ||||||||||||
2000
|
First | 41-1/4 | 28-7/16 | $ | 0.515 | |||||||||||
|
Second | 35-15/16 | 28-7/8 | 0.515 | ||||||||||||
|
Third | 40-1/4 | 30-7/16 | 0.515 | ||||||||||||
|
Fourth | 39-5/16 | 34-15/16 | 0.515 |
At December 31, 2000, there were 142,651,172 shares of the Companys Common Stock outstanding. These shares were held by a total of 96,153 shareholders of record.
The Companys By-Laws provide that Chapter 7B of the Michigan Business Corporation Act (Act) does not apply to the Company. The Act regulates shareholder rights when an individuals stock ownership reaches at least 20 percent of a Michigan corporations outstanding shares. A shareholder seeking control of the Company cannot require the Companys Board of Directors to call a meeting to vote on issues related to corporate control within 10 days, as stipulated by the Act. See Note 7 Shareholders Equity for additional information, including information concerning the Rights Agreement, dated as of September 23, 1997.
The amount of future dividends will depend on the Companys earnings, financial condition and other factors, including the effects of utility restructuring and the transition to competition, each of which is periodically reviewed by the Companys Board of Directors, and the successful completion of the proposed merger with MCN.
15
Pursuant to Article I, Section 8. (c) and Article II, Section 3.(c) of the
Companys By-laws, as amended through September 1, 1999, notice is given that
the 2002 Annual Meeting of the Companys Common Shareholders will be held on
Wednesday, April 24, 2002.
Item 6 Selected Financial Data.
Year Ended December 31 | |||||||||||||||||||||||||
|
|||||||||||||||||||||||||
2000 | 1999 | 1998 | 1997 | 1996 | |||||||||||||||||||||
|
|
|
|
|
|||||||||||||||||||||
(Millions, except per share amounts) | |||||||||||||||||||||||||
Operating Revenues
|
$ | 5,597 | $ | 4,728 | $ | 4,221 | $ | 3,764 | $ | 3,645 | |||||||||||||||
Net Income
|
$ | 468 | $ | 483 | $ | 443 | $ | 417 | $ | 309 | |||||||||||||||
Earnings Per Common Share Basic
|
|||||||||||||||||||||||||
and Diluted
|
$ | 3.27 | $ | 3.33 | $ | 3.05 | $ | 2.88 | $ | 2.13 | |||||||||||||||
Dividends Declared Per
|
|||||||||||||||||||||||||
Share of Common Stock
|
$ | 2.06 | $ | 2.06 | $ | 2.06 | $ | 2.06 | $ | 2.06 | |||||||||||||||
At year end:
|
|||||||||||||||||||||||||
Total Assets
|
$ | 12,662 | $ | 12,316 | $ | 12,088 | $ | 11,223 | $ | 11,015 | |||||||||||||||
Long-Term Debt Obligations
|
|||||||||||||||||||||||||
(including capital leases) and
|
|||||||||||||||||||||||||
Redeemable Preferred and
|
|||||||||||||||||||||||||
Preference Stock Outstanding
|
$ | 4,018 | $ | 4,052 | $ | 4,323 | $ | 4,058 | $ | 4,038 |
16
Item 7 Managements Discussion and Analysis of Financial Condition and Results
GROWTH
DTE Energy Company (Company) is focused on prudently growing its earnings base.
For the past three years, it has articulated a growth strategy that has
consistently achieved its 6% growth objective (after adjustment in 2000 for
one-time legislative and merger items). Given its prior successes, depth of
management team and strategic asset base, the Company has increased its growth
objective up to 8% over the next several years. The new anticipated growth rate
is expected to be achieved by strengthening our core electric and gas (after the
proposed merger with MCN Energy Group Inc. (MCN)) utility businesses in the
short term, building our non-regulated businesses in the mid term and leveraging
investments in energy technology over the long term. The growth strategy,
focused on the greater Midwest region, leverages and expands existing assets and
skills.
We will strengthen our core electric and gas (after the proposed merger with
MCN) utility businesses through continuous improvement actions, balancing cost,
reliability and customer satisfaction, and leveraging opportunities to create
value with the non-regulated businesses.
We have established a portfolio of non-regulated businesses, with approximately
$1.7 billion in assets that contributed approximately $84 million to net income
in 2000 and is expected to provide the greatest growth potential for the Company
in the next five years. These non-regulated businesses are expected to provide
approximately $125 million in net income in 2001. Our merchant energy business
will include optimizing fuel supply and plant operations, broadening coal
marketing and coal tolling efforts, rapidly expanding power marketing and
trading operations, growing an emerging base of non-regulated generation assets
in the Midwest region and capitalizing on MCNs storage and pipeline assets to
serve the rapidly expanding generation sector.
The Companys long-term growth strategy recognizes the fact that competition,
new technologies and environmental concerns will reshape the electric utility
industry and the manner in which power is delivered. As a result, the Company
has started a distributed generation business, DTE Energy Technologies, a wholly
owned subsidiary, which will provide one-stop sales and service to energy
customers using a variety of new technology products, including backup
generation, micro-turbines, fuel cells and control equipment. Additionally, the
Company continues to make strategic technology investments in companies like
Plug Power, a developer and manufacturer of fuel cell systems.
As discussed in Note 2, the Company and MCN have entered into a merger
agreement. The Company expects that completion of the proposed merger will
result in the issuance of approximately 30 million shares of its common stock
and approximately $1.4 billion in external financing. The proposed merger is
expected to create a fully integrated electric and natural gas company that is
anticipated to support the
17
Companys commitment to a long-term earnings growth rate of up to 8%. The
proposed merger is expected to permit the Company to be responsive to
competitive pressures. The external financing needs of the proposed merger may
create a sensitivity to interest rate changes. The Company will need to
successfully integrate the two operations to service the expected debt
requirements and achieve aggregate operating cost reductions. The delay in the
receipt of regulatory approvals will negatively impact the effect on earnings in
2001 resulting from the proposed merger, as will the escalation in the price of
natural gas. The Company believes that the proposed merger is strategic for the
Company and has and will continue to fulfill all of its obligations under the
merger agreement. The Company continues to approach this proposed merger with
the best interests of the Companys shareholders in mind. See Notes 2 and 11 for
further discussion of the proposed DTE/MCN merger and the financial instruments
used to hedge the interest rate risk associated with financing the proposed
merger.
See Note 17 for discussion of subsequent events concerning the
merger.
The Company projects that 2001 earnings will be approximately $3.60 to $3.70 per
share. In addition, 2002 earnings are expected to grow at least 6%, consistent
with the Companys growth objective. These earnings estimates exclude the impact
of the Companys proposed merger with MCN.
The Companys earnings are largely dependent on the earnings of The Detroit
Edison Company (Detroit Edison), the principal operating subsidiary of the
Company, and the use of alternate fuels tax credits generated from certain
non-regulated businesses. Securitization, discussed in Note 3, is expected to
reduce Detroit Edisons earnings, which may impact the Companys ability to use
all future available alternate fuels tax credits. However, if that is the case,
a portion of the tax credits may be monetized through sale of interests in
projects that generate the credits.
ELECTRIC INDUSTRY RESTRUCTURING
Detroit Edison is subject to regulation by the Michigan Public Service
Commission (MPSC) and the Federal Energy Regulatory Commission (FERC). Michigan
legislators and regulators have focused on competition and Electric Choice in
the Michigan electric public utility industry and are committed to opening the
electric generation market in Michigan to competition while providing for the
right of electric utilities to recover stranded costs. Electric Choice will give
all retail customers the opportunity to access alternative generation resources.
Michigans Customer Choice and Electricity Reliability Act
See Note 3 for a discussion of Public Acts 141 and 142 of 2000 (PA 141 and PA
142), new legislation signed into effect on June 3, 2000, by Michigan Governor
John Engler.
Michigan Public Service Commission
Restructuring Orders
Detroit Edison expects that a limited liability corporation, wholly owned by
Detroit Edison, will issue approximately $1.751 billion of securitization bonds
in the first quarter
18
of 2001. The bonds may not exceed 15 years in term to recover Detroit Edisons
qualified costs, as approved by the MPSC. Detroit Edison will use the proceeds
of the bonds to retire debt and equity as required by Michigan restructuring
legislation in a manner that will maintain its debt/equity ratio at
approximately 50%. See Note 3 for additional discussion of the November 2, 2000
and January 4, 2001 MPSC orders regarding securitization of Detroit Edisons
qualified costs.
On October 24, 2000, the MPSC initiated a case to determine the methodology of
calculating net stranded costs, as required by PA 141. Methods to be considered
include: (1) the relationship of market value to net book value of generation
assets and purchase power contracts, (2) evaluations based on the market price
of power in relation to the price assumed by the MPSC in prior orders and (3)
any other method the MPSC considers appropriate. It is expected that the MPSC
will issue an order by the end of 2001. Detroit Edison is unable to predict the
outcome of these proceedings.
Electric Choice
The Electric Choice program began in December 1999, when Detroit Edison
delivered energy from an alternate supplier in a MPSC-directed 90 megawatt (MW)
voluntary portion of the program. As of December 31, 2000, Detroit Edison has
made available 1,125 MW, or more than 12% of its capacity, for Electric Choice.
Detroit Edison has spent approximately $57 million through December 31, 2000,
and estimates that additional expenditures of up to $25 million may be required
through 2001 to fully implement the program on January 1, 2002. Securitization
proceeds will recover $28 million of this amount, with recovery of the remaining
balance determined in current and future MPSC net stranded cost proceedings.
Detroit Edison anticipates that Electric Choice will result in a decrease in its
annual sales as well as a decrease in its peak demand beginning in 2002. These
decreases are not expected to have a significant impact on the Companys net
income due to effective load management techniques, which are expected to reduce
high-cost sales during peak periods and increase non-regulated sales outside of
Detroit Edisons service territory at other times.
Federal Energy Regulatory Commission
Detroit Edison is regulated at the federal level by the FERC with respect to
accounting, sales for resale in interstate commerce, transmission services,
issuances of securities, licensing of hydro and pumping stations and other
matters. The FERC, as a policy matter, believes that transmission should be made
available on a non-discriminatory basis.
On September 28, 2000, the FERC conditionally approved an open access
transmission tariff designed to allow for the collection of $138 million in
annual revenues for transmission services provided by the International
Transmission Company (ITC), a wholly owned subsidiary of Detroit Edison. The
level of tariff represents an increase of $45 million over current tariffs.
These revenues may not be collected until such time as ITC notifies FERC that
the Companys Board of Directors
19
has approved a sale or spin-off of the transmission business to a fully
independent transmission company that has no active or passive ownership
interests by the Company, Detroit Edison or any other market participant. The
ITC must become independent within 24 months of the September 28, 2000 order and
join a FERC-approved Regional Transmission Organization (RTO) by December 15,
2001; otherwise the innovative transmission rates will revert back to present
tariff rates, and revenue collected under the new transmission tariff will be
refunded back to ITC customers. If ITC becomes independent, but has not joined
an RTO in the required time frame, FERC has the authority to assign ITC to an
RTO. The Company and Detroit Edison intend to comply with the FERC requirements.
Effective January 1, 2001, Detroit Edison transferred approximately $390 million
of property and other assets to ITC. This transfer began the process of
establishing the transmission business as an independent company.
In June 1999, Detroit Edison, along with Consumers Energy Co., the American
Electric Power Service Corp., FirstEnergy Corp., and Virginia Electric and Power
Co., filed applications with FERC requesting approval of the Alliance RTO
(Alliance). The Alliance would operate more than 43,000 miles of transmission
lines in nine states. In December 1999, FERC issued an order approving the
Alliance proposal, but indicated that certain elements needed modification or
further development. In January 2001, FERC approved key aspects of Alliances
compliance filing, including independence, scope and configuration and rate
design, but directed Alliance to make certain additional modifications in the
areas of ancillary services, market monitoring and inter-regional coordination.
Alliance was directed to make a further compliance filing by May 15, 2001, and
file actual tariffs rates, terms and conditions no later than 120 days prior to
commencement of operation.
LIQUIDITY AND CAPITAL RESOURCES
Cash From Operating Activities
Net cash from operating activities, which is the Companys primary source of
liquidity, was $1,088 million in 2000, $1,097 million in 1999 and $834 million
in 1998. Net cash from operating activities decreased in 2000, due primarily to
lower net income, partially offset by higher non-cash items. Net cash from
operating activities increased in 1999, due primarily to higher net income and
non-cash items and lower cash used for current assets and liabilities.
Cash Used for Investing Activities
Net cash used for investing activities was lower in 2000, due primarily to
decreased plant and equipment expenditures by Detroit Edison, partially offset
by higher non-regulated plant and equipment expenditures. Net cash used for
investing activities was lower in 1999 due to lower investments in non-regulated
businesses, partially offset by increased plant and equipment expenditures by
Detroit Edison.
20
Cash requirements for 2000 Detroit Edison capital expenditures were $587
million. Detroit Edisons cash requirements for capital expenditures are
expected to be approximately $2.5 billion for the period 2001 through 2005.
Cash requirements for 2000 non-regulated investments and capital expenditures
were $162 million. Excluding the effects of the proposed merger with MCN, cash
requirements for non-regulated investments and capital expenditures are expected
to be approximately $1.2 billion for the period 2001 through 2005.
Cash Used for Financing Activities
Net cash used for financing activities was lower in 2000 due to decreased
redemptions of long-term debt, partially offset by repurchases of common stock.
Net cash used for Company financing activities was $426 million in 1999, due to
higher redemptions and reduced issuances of long-term debt.
The following securities were issued and redeemed in 2000:
of Operations.
Securities Issued
(Millions)
$
220
51
2
$
273
$
19
175
86
51
$
331
Due to the securitization of $1.751 billion of Detroit Edisons qualified costs in the first quarter of 2001, the Company expects that 75% of the proceeds will be used to retire debt and 25% to repurchase the Companys common stock. In February 2001, the
21
Companys Board of Directors increased the authorization for a stock repurchase program for the purchase of up to 20 million shares. Stock repurchases will be made from time to time on the open market or through negotiated transactions.
ENVIRONMENTAL MATTERS
Protecting the environment from damage, as well as correcting past environmental damage, continues to be a focus of state and federal regulators. Legislation and/or rulemaking could further impact the electric utility industry including Detroit Edison. The U.S. Environmental Protection Agency (EPA) and the Michigan Department of Environmental Quality have aggressive programs regarding the clean-up of contaminated property. Detroit Edison anticipates that it will be periodically included in these types of environmental proceedings. Detroit Edison has spent approximately $50 million and estimates that it will incur approximately $410 million of future capital expenditures, over the next three years, to comply with recent EPA ozone transport regulations and final new air quality standards relating to ozone and particulate air pollution.
INTEREST RATE RISK
The Company is subject to interest rate risk in conjunction with the anticipated issuance of long-term debt to be used to finance the proposed merger with MCN. The Companys exposure to interest rate risk arises from market fluctuations in interest rates until the date of the anticipated debt issuance. To limit the sensitivity to interest rate fluctuations, the Company has entered into a series of forward-starting interest rate swaps and Treasury locks and designated such instruments as hedges. See Note 11 for further discussion of these derivative financial instruments.
A sensitivity analysis model was used to calculate the fair value of the Companys derivative financial instruments using applicable market interest rates in effect at December 31, 2000. The sensitivity analysis involved increasing and decreasing the market rates by a hypothetical 10% and calculating the resulting change in the fair value of the interest rate sensitive instruments. The favorable (unfavorable) changes in fair value are as follows:
Assuming 10% | Assuming 10% | |||||||||||||
Increase in Rates | Decrease in Rates | |||||||||||||
|
|
|||||||||||||
(Millions) | ||||||||||||||
Interest Rate Risk
|
||||||||||||||
Interest Rate Sensitive
|
||||||||||||||
Forward-Starting Swaps 5-year
|
$ | 6.5 | $ | (6.8 | ) | |||||||||
10-year
|
20.5 | (21.7 | ) | |||||||||||
Treasury Locks 10-year
|
1.9 | (2.0 | ) | |||||||||||
30-year
|
11.8 | (13.2 | ) |
22
MARKET RISK
Detroit Edison expects to have adequate supplies of electric capacity in 2001
and plans to meet expected customer demand through its own electric generating
capability and purchase of over 2,000 MW from other suppliers. Detroit Edison
has secured purchase power contracts for its 2001 requirements, but has not
procured its purchase power requirements for 2002 and beyond. Detroit Edison
expects that its future electricity demands will be impacted by the Electric
Choice program, interruptible contracts with certain customers and weather.
As a result of the June 2000 Michigan restructuring legislation, the MPSC
determined that adjusting rates for changes in fuel and purchased power expenses
would be inconsistent with the legislation. Therefore, actual fuel and purchased
power costs are recorded in the period incurred, without any change in revenue.
Detroit Edison had investments valued at market of $398 million and $361 million
in three nuclear decommissioning trust funds at December 31, 2000 and 1999,
respectively. At December 31, 2000, these investments consisted of approximately
43% in fixed debt instruments, 53% in publicly traded equity securities and 4%
in cash equivalents. At December 31, 1999, these investments consisted of
approximately 37% in fixed debt instruments, 59% in publicly traded equity
securities and 4% in cash equivalents. A hypothetical 10% increase in interest
rates and a 10% decrease in equity prices quoted by stock exchanges would result
in a $14 million and $11 million reduction in the fair value of debt and a $21
million reduction in the fair value of equity securities held by the trusts both
at December 31, 2000 and 1999, respectively.
A hypothetical 10% decrease in interest rates would increase the fair value of
long-term debt from $4.2 billion to $4.7 billion at December 31, 2000, and from
$4 billion to $4.5 billion at December 31, 1999.
DTE Energy Trading, Inc. (DTE ET), an indirect wholly owned subsidiary of the
Company, provides price risk management services using energy commodity
derivative instruments. The Company measures the risk inherent in DTE ETs
portfolio using Value at Risk (VaR) analysis and other methodologies, which
simulate forward price curves in electric power markets, to quantify estimates
of the magnitude and probability of potential future losses related to open
contract positions. DTE ET VaR expresses the potential loss in fair value of its
forward contract and option position over a particular period of time, with a
specified likelihood of occurrence, due to an adverse market movement. The
Company calculates VaR based on a 95% confidence interval, using 10-day holding
periods. The VaR model uses the variance-covariance statistical modeling
technique, and implied and historical volatilities and correlations over the
past 20-day period. The estimated market prices used to value these transactions
for VaR purposes reflect the use of established pricing models and various
factors including quotations from exchanges and over-the-counter markets, price
volatility factors, the time value of money, and location differentials. At
December 31, 2000 and 1999, DTE ETs VaR from its power marketing and trading
activities was less than 1% of the Companys consolidated Income Before Income
Taxes for the years ended December 31, 2000 and 1999. For further information,
see Notes 1 and 11.
23
RESULTS OF OPERATIONS
Net income for 2000 was $468 million, down $15 million from 1999 earnings due
primarily to the 5% residential rate reduction provided for in the June 2000
Michigan restructuring legislation, and expenses incurred for the proposed
merger with MCN, partially offset by lower income taxes resulting from tax
credits generated by non-regulated businesses.
Since the MPSC has determined that adjusting rates for changes in fuel and
purchased power expenses, through continuance of the PSCR clause, is
inconsistent with the June 2000 Michigan restructuring legislation, the Company
expects that the distribution of yearly earnings will shift significantly. The
first and fourth quarters of the year are expected to show higher earnings,
while lower earnings are expected in the second and third quarters. In addition,
the fuel clause suspension will have an impact on earnings, since rates will no
longer be adjusted for changes in fuel and purchased power expenses.
Net income for 1999 was up $40 million over 1998 earnings due primarily to lower
income taxes resulting from tax credits generated by non-regulated businesses
and the effects of the end of the Fermi 2 phase-in plan in 1998.
Operating Revenues
Operating revenues were $5.6 billion, up 18% from 1999 operating revenues of
$4.7 billion. Operating revenues increased (decreased) due to the following:
2000
1999
(Millions
)
$
70
$
(25
)
(43
)
24
151
14
(2
)
(19
)
34
19
4
82
145
54
147
734
209
(1
)
6
787
362
$
869
$
507
24
Detroit Edison megawatthour (MWh) sales for 2000 and the percentage change by
year were as follows:
2000
2000
1999
(Thousands of MWh)
Sales
13,903
(1.1
)%
2.3
%
19,762
1.1
3.4
16,090
2.8
6.4
2,653
2.2
10.1
52,408
1.1
4.3
2,592
(29.4
)
(29.5
)
55,000
(0.9
)
1.1
Residential sales decreased in 2000 due to reduced cooling demand, and increased in 1999 due to more heating demand, increased usage, and growth in the customer base. In both 2000 and 1999, commercial and industrial sales increased due to favorable economic conditions. In addition, industrial sales increased due to sales to the Ford Rouge plant. Wholesale sales decreased due to lower demand for energy and decreased availability of energy for sale.
Non-regulated revenues were higher due to an increased level of operations,
primarily at DTE Energy Trading, and the addition of new businesses.
Operating Expenses
Fuel and Purchased Power
Net system output and average fuel and purchased power unit costs per MWh for Detroit Edison were as follows:
2000
1999
1998
(Thousands of MWh)
42,100
43,016
44,091
8,239
9,484
7,130
8,877
6,959
7,216
59,216
59,459
58,437
$
12.78
$
12.51
$
12.76
$
62.57
$
54.80
$
42.26
25
In 2000, fuel and purchased power expense increased due to greater purchases of energy and higher purchased power unit costs. The increase was partially offset by reduced plant generation and lower cost of low sulfur western coal.
In 1999, fuel and purchased power expense increased due to higher purchased power unit costs and a 1.7% increase in net system output. The increase was partially offset by lower fuel unit costs primarily resulting from increased usage of low-cost nuclear fuel.
Non-regulated purchased power expense increased in all periods due to the operations of DTE Energy Trading, with purchased power expenses amounting to $959 million, $227 million and $42 million in 2000, 1999 and 1998, respectively.
Operation and Maintenance
In 2000, operation and maintenance expense remained at the same level as 1999. Higher non-regulated expenses of $50 million were due to an increased level of operations and the addition of new businesses. Lower Detroit Edison expenses resulted primarily from decreased storm activities ($26 million) and elimination of Y2K costs ($46 million). The decrease was partially offset by expenses associated with the proposed DTE/MCN merger ($25 million).
In 1999, operation and maintenance expense increased $192 million. Higher non-regulated expenses of $162 million were due to an increased level of operations and the addition of new businesses. Higher Detroit Edison expenses of $30 million were due to increased system and customer enhancements ($22 million), higher Y2K costs ($10 million), higher employee benefit costs ($9 million), and generation reliability and maintenance work to address unplanned outages ($8 million), partially offset by lower storm expense ($19 million).
Depreciation and Amortization
In 2000, depreciation and amortization expense was higher due to increased levels of plant in service and the accelerated amortization of unamortized nuclear costs, partially offset by a reduction in amortization for the deferral of the effects of the 5% residential rate reduction.
In 1999, depreciation and amortization expense increased due to higher levels of plant in service, the accelerated amortization of unamortized nuclear costs, the adjustment recording one-half of utility earnings in excess of the allowed 11.6% return on equity sharing threshold as additional nuclear cost amortization, and increased Fermi 2 decommissioning funding due to higher revenues.
Interest Expense
In 2000, interest expense decreased due to the redemption of long-term securities and the write-off in 1999 of unamortized bond issuance expense, partially offset in 2000 by increased short-term borrowing costs.
26
In 1999, interest expense increased due to the write-off of unamortized bond issuance expense for early redemption of securities and higher short-term borrowing costs.
Income Taxes
Income tax expense for the Company decreased, due primarily to the decrease in pretax income and increased utilization of alternate fuels credits generated from non-regulated businesses. The majority of alternate fuels credits are available through 2002, while others have been extended through 2007.
FORWARD-LOOKING STATEMENTS
Certain information presented herein is based on the expectations of the Company and Detroit Edison, and, as such, is forward-looking. The Private Securities Litigation Reform Act of 1995 encourages reporting companies to provide analyses and estimates of future prospects and also permits reporting companies to point out that actual results may differ from those anticipated.
Actual results for the Company and Detroit Edison may differ from those expected due to a number of variables including, but not limited to, interest rates, the level of borrowings, weather, actual sales, changes in the cost of fuel and purchased power due to the suspension of the PSCR mechanism, (including natural gas subsequent to the proposed merger with MCN), the effects of competition and the phased-in implementation of Electric Choice, the implementation of utility restructuring in Michigan (which involves pending regulatory and related judicial proceedings, the successful recovery of stranded costs, and actual and possible reductions in rates and earnings), environmental and nuclear requirements, the impact of FERC proceedings and regulations, and the contributions to earnings by non-regulated businesses. In addition, expected results will be affected by the Companys proposed merger with MCN and the timing of the accretive effect of such merger. While the Company and Detroit Edison believe that estimates given accurately measure the expected outcome, actual results could vary materially due to the variables mentioned, as well as others.
27
Item 8 Financial Statements and Supplementary Data.
The following consolidated financial statements and schedules are included herein.
28
INDEPENDENT AUDITORS REPORT
To the Boards of Directors and Shareholders of
We have audited the consolidated balance sheets of DTE Energy Company and subsidiaries and of The Detroit Edison
Company and subsidiaries (together, the "Companies") as of December 31, 2000 and 1999, and the related
consolidated statements of income, cash flows, and changes in shareholders equity for each of the three years in
the period ended December 31, 2000. Our audits also included the financial statement schedules listed in the
Index at Item 8. These financial statements and financial statement schedules are the responsibility of the
Companies management. Our responsibility is to express an opinion on the consolidated financial statements and
financial statement schedules based on our audits.
We conducted our audits in accordance with auditing standards generally accepted in the United States of
America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether
the financial statements are free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing
the accounting principles used and significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, such consolidated financial statements referred to above present fairly, in all material
respects, the financial position of DTE Energy Company and subsidiaries and of The Detroit Edison Company and
subsidiaries at December 31, 2000 and 1999, and the results of their operations and their cash flows for each of
the three years in the period ended December 31, 2000 in conformity with accounting principles generally accepted
in the United States of America. Also, in our opinion, such financial statement schedules, when considered in
relation to the basic consolidated financial statements of the Companies taken as a whole, present fairly in all
material respects the information set forth therein.
DELOITTE & TOUCHE LLP
Detroit, Michigan
29
30
31
32
33
34
35
36
37
38
39
40
DTE Energy Company and The Detroit Edison Company
NOTE 1 SIGNIFICANT ACCOUNTING POLICIES
Corporate Structure and Principles of Consolidation
DTE Energy Company (Company), a Michigan corporation incorporated in 1995, is
an exempt holding company under the Public Utility Holding Company Act. The
Company has no significant operations of its own, holding instead the stock of
its principal operating subsidiary, The Detroit Edison Company (Detroit
Edison), an electric public utility regulated by the Michigan Public Service
Commission (MPSC) and the Federal Energy Regulatory Commission (FERC), and
other energy-related businesses.
All majority-owned subsidiaries are consolidated. Non-majority owned
investments, including investments in limited liability companies, partnerships
and joint ventures, are accounted for using the equity method. All significant
inter-company balances and transactions have been eliminated.
In October 1999, the Companys investee, Plug Power Inc., completed its initial
public offering (IPO) of shares of common stock at $15 per share. After the
IPO, the Company owned approximately 32% of Plug Powers outstanding common
stock. As a result of Plug Powers IPO, the Company recognized its
proportionate share of Plug Powers net assets immediately after the IPO and
recorded an increase of $44 million in its investment and an after-tax increase
of $28 million to retained earnings with no earnings impact in 1999. The
balance of the Plug Power investment at December 31, 2000, is approximately $37
million.
Use of Estimates in the Preparation of Financial Statements
The preparation of financial statements in conformity with accounting
principles generally accepted in the United States of America requires
management to make estimates and assumptions that affect the reported amounts
of assets and liabilities and disclosure of contingent assets and liabilities
at the date of the financial statements and the reported amounts of revenues
and expenses during the reporting period. Actual results could differ from
those estimates.
Regulation and Regulatory Assets and Liabilities
Detroit Edisons transmission and distribution business meets the criteria of
Statement of Financial Accounting Standards (SFAS) No. 71, Accounting for the
Effects of Certain Types of Regulation. This accounting standard recognizes
the cost-based ratemaking process, which results in differences in the
application of generally accepted accounting principles between regulated and
non-regulated businesses. SFAS No. 71 requires the recording of regulatory
assets and liabilities for certain transactions that would have been treated as
revenue and expense in non-regulated businesses. Continued applicability of
SFAS No. 71 requires that rates be designed to recover specific costs of
providing regulated services and products, and that it be reasonable to assume
that rates are set at
41
levels that will recover a utilitys costs and can be charged to and collected
from customers.
MPSC orders issued in 1997 and 1998 altered the regulatory process in Michigan
and provided a plan for transition to competition for the generation business
of Detroit Edison. Therefore, effective December 31, 1998, Detroit Edisons
generation business no longer met the criteria of SFAS No. 71. See the
following table of regulatory assets and liabilities, and Note 3 for further
details.
June 2000 Michigan restructuring legislation provided for securitization, a
mechanism for Detroit Edison to refinance specific assets and costs at lower
interest rates through the issuance of securitization bonds. The MPSC, in an
order issued on January 4, 2001, clarifying a November 2, 2000 order,
authorized Detroit Edison to securitize up to $1.774 billion of qualified
costs, including most of the regulatory assets currently recorded. The MPSC
denied Detroit Edisons request to include the residential rate reduction
commencing June 5, 2000, until the date of the order and proposed 2000 Electric
Choice implementation costs in the amount securitized. Detroit Edison will
continue to defer the 2000 and future Electric Choice implementation costs ($30
million in 2000 and an estimated $25 million in 2001) as regulatory assets,
whose recovery will be determined in annual true-ups of stranded cost
proceedings. The MPSC also clarified that recovery of incurred costs, equal to
the impact of the 5% residential rate reduction from the date of the November
order until the securitization bonds are issued (approximately $10 million in
2000 and approximately $15 million for the first quarter of 2001) will occur
before any rate reductions are provided to the commercial and industrial
customers and before the low income energy efficiency fund is initiated.
Securitization bonds are expected to be issued in the first quarter of 2001.
Detroit Edison has recorded the following regulatory assets and liabilities at
December 31:
42
Unamortized nuclear costs See Note 3
.
Unamortized loss on reacquired debt
In accordance with MPSC regulations applicable to Detroit Edison, the discount,
premium and expense related to debt redeemed with a refinancing are amortized
over the life of the replacement issue. If related to the generation business,
the unamortized amounts will be securitized. See Note 3. Discount, premium
and expense on early redemptions of debt subsequent to December 31, 1998, are
charged to earnings if they relate to the generation business of Detroit Edison
or other non-regulated operations of the Company.
Recoverable income taxes
In 1993, the Company was required to adopt SFAS No. 109, Accounting for Income
Taxes. SFAS No. 109 requires that deferred income taxes be recorded at the
current income tax rate for all temporary differences between the book and tax
basis of assets and liabilities. Prior to 1993, only those deferred taxes that
were authorized by the MPSC were recorded. On adoption of SFAS No. 109, the
MPSC authorized the Company to record a regulatory asset providing assurance of
future revenue recovery from customers for all deferred income taxes.
Power supply cost recovery (PSCR)
As a result of the June 2000 Michigan restructuring legislation, the MPSC
determined that adjusting rates for changes in fuel and purchased power
expenses, through continuance of the PSCR clause, would be inconsistent with
the legislation. See Note 3 for further discussion. Beginning in June 2000,
actual fuel and purchased power costs are recorded in the period incurred.
Electric Choice implementation costs
Costs incurred to implement the Electric Choice program, which will allow
customers to purchase electricity from a supplier other than Detroit Edison.
Unamortized deferred investment tax credits
Investment tax credits utilized, which relate to utility property, were
deferred and are amortized over the estimated composite service life of the
related property.
Fermi 2 capacity factor performance standard
As a result of the June 2000 Michigan restructuring legislation and the
corresponding MPSC orders regarding the PSCR clause, the MPSC mechanism that
provided for the disallowance of net incremental replacement power cost when
Fermi 2 did not perform to certain operating criteria, is no longer in effect.
43
Cash Equivalents
For purposes of the Consolidated Statement of Cash Flows, the Company considers
investments purchased with a maturity of three months or less to be cash
equivalents.
Restricted Cash
Cash maintained for debt service requirements and other contractual obligations
is classified as restricted cash.
Revenues
Detroit Edison records unbilled revenues for electric and steam heating
services provided after cycle billings through month-end.
Property, Retirement and Maintenance, Depreciation and Amortization
A summary of property by classification at December 31 is as follows:
44
Utility properties are stated at original cost less regulatory disallowances
and impairment losses. In general, the cost of properties retired in the
normal course of business is charged to accumulated depreciation. Expenditures
for maintenance and repairs are charged to expense as incurred, and the cost of
new property installed, which replaces property retired, is charged to property
accounts. Detroit Edison recognizes a provision, in current liabilities, for
incremental costs of Fermi 2 refueling outages, including maintenance
activities, anticipated to be incurred during the next scheduled Fermi 2
refueling outage. The annual provision for utility property depreciation is
calculated on the straight-line remaining life method by applying annual rates
approved by the MPSC to the average of year-beginning and year-ending balances
of depreciable property by primary plant accounts. Provision for depreciation
of utility plant, as a percent of average depreciable property, was 3.38%,
3.33% and 3.32% for 2000, 1999 and 1998, respectively.
Effective January 2001, the transmission assets of Detroit Edison were
transferred to International Transmission Company, a wholly owned subsidiary of
Detroit Edison. This transfer began the process of establishing the
transmission business as a fully independent company pursuant to FERC orders.
Non-utility property is stated at original cost. Depreciation is computed over
the estimated useful lives using straight-line and declining-balance methods.
Long-Lived Assets
Long-lived assets held and used by the Company are reviewed for impairment
based on market factors and operational considerations whenever events or
changes in circumstances indicate that the carrying amount of an asset may not
be recoverable.
Software Costs
The Company capitalizes the cost of software developed for internal use. These
costs are amortized on a straight-line basis over a five-year period beginning
with the projects completion.
Debt Issue Costs
The costs related to the issuance of long-term debt are amortized over the life
of each issue.
45
Stock-Based Compensation
The Company accounts for stock-based compensation using the intrinsic value
method. Compensation expense is not recorded for stock options granted with an
exercise price
equal to the fair market value at the date of grant. For grants of restricted
stock, compensation equal to the market value of the shares at the date of
grant is deferred and amortized to expense over the vesting period. During the
restriction period, recipients of restricted stock grants have the right to be
paid an amount equal to the dividend equivalent of such shares as dividends are
paid. The Company recognizes these amounts as compensation expense.
Accounting for Risk Management Activities
Trading activities of DTE Energy Trading Inc. (DTE ET), an indirect wholly
owned subsidiary of the Company, are accounted for using the mark-to-market
method of accounting. Under such method, DTE ETs energy trading contracts,
including both transactions for physical delivery and financial instruments,
are recorded at market value. The resulting unrealized gains and losses from
changes in market value of open positions are recorded as other current assets
or liabilities. Current period changes in the trading assets or liabilities
are recognized as net gains or losses in operating revenues. The market prices
used to value these transactions reflect managements best estimate considering
various factors, including closing exchange and over-the-counter quotations,
time value and volatility factors underlying the commitments. Realized gains
and losses from transactions settled with cash are also recognized in operating
revenues. Transactions settled by physical delivery of the underlying
commodity are recorded gross in operating revenues and fuel and purchased power
expense.
Detroit Edison accounts for its forward purchase and sale commitments and
over-the-counter options on a settlement basis.
Accounting for Derivative Instruments and Hedging Activities
The Company adopted SFAS No. 133, Accounting for Derivative Instruments and
Hedging Activities, as of January 1, 2001. See Note 11 for further
discussion.
Reclassifications
Certain prior year balances have been reclassified to conform to the 2000
presentation.
NOTE 2 MERGER AGREEMENT
In October 1999, the Company entered into a definitive merger agreement with
MCN. MCN, a Michigan corporation, is primarily involved in natural gas
production, gathering, processing, transmission, storage and distribution and
energy marketing. MCNs largest subsidiary is Michigan Consolidated Gas
Company, a natural gas utility serving 1.2 million customers in more than 500
communities throughout Michigan. The merger
46
agreement provides that the
Company will acquire all outstanding shares of MCN for $28.50 per share in cash
or 0.775 shares of Company common stock for each share of MCN common stock,
subject to certain allocation procedures requiring that the aggregate number of
shares of MCN common stock that will be converted into cash and the Companys
common stock will be equal to 55% and 45%, respectively, of the total
number of shares of MCN common stock outstanding immediately prior to the
proposed merger. The transaction was preliminarily valued at $4.6 billion,
which includes the assumption of approximately $2 billion of MCNs debt. The
Company expects to continue as an exempt public utility holding company after
the completion of the proposed merger. Shareholders of the Company have
approved the issuance of the necessary shares of common stock to complete the
proposed merger and shareholders of MCN have approved the Agreement and Plan of
Merger.
The proposed merger is being reviewed by the Federal Trade Commission (FTC)
pursuant to the Hart-Scott-Rodino Act. The FTC staff has focused primarily on
possible competition between the Company and MCN for cogeneration load and
other gas/electric displacement technologies in the companies coincident
retail distribution areas. The Company and MCN are taking action to address
issues raised by the FTC staff, including an agreement for the proposed
transfer to a unit of Exelon Corp. (previously Unicom Corp.) of a property
interest allowing for the utilization of up to 20 billion cubic feet of natural
gas transportation capacity annually on the Michigan Consolidated Gas Company
system in the applicable distribution area. The MPSC approved the agreement in
February 2001. The agreement is subject to regulatory approvals and
consummation of the merger. The Company cannot predict the timing or outcome
of the regulatory review process and, therefore, a projected completion date
for the proposed merger cannot be predicted.
NOTE 3 REGULATORY MATTERS
Detroit Edison is subject to the primary regulatory jurisdiction of the MPSC,
which, from time to time, issues its orders pertaining to Detroit Edisons
conditions of service, rates and recovery of certain costs including the costs
of generating facilities, regulatory assets and certain other revenue,
accounting and operating-related matters.
Electric Industry Restructuring
There are ongoing proceedings for the restructuring of the Michigan electric
public utility industry and the implementation of Electric Choice.
In a December 28, 1998 order, as clarified March 8, 1999, the MPSC authorized
the accelerated amortization of the remaining net book balances (as of December
31, 1998) of Fermi 2 and its associated regulatory assets in a manner that
provided an opportunity for full recovery under rates from bundled customers
and through transition surcharges from future retail access customers, taking
into account the related tax consequences of those assets, by December 31,
2007.
On June 3, 2000, Michigan Governor John Engler signed Enrolled Senate Bill No.
937, Public Act 141 of 2000 (PA 141), which provides Detroit Edison with the
right to recover
47
stranded costs, codifies and establishes January 1, 2002, as
the date for full implementation of the MPSCs existing Electric Choice
program, and requires the MPSC to reduce electric residential rates by 5%.
On that same date, the Governor signed Enrolled Senate Bill No. 1253, Public
Act 142 of 2000 (PA 142). PA 142 provides for the recovery through
securitization of qualified costs, which consist of an electric utilitys
regulatory assets plus various costs associated with, or resulting from, the
establishment of a competitive electric market, and the issuance of
securitization bonds.
In an order issued on November 2, 2000, and clarified on January 4, 2001, the
MPSC approved the issuance of securitization bonds, which may not exceed 15
years in term, the proceeds of which will be used to recover up to $1.774
billion (compared to approximately $1.850 billion requested by Detroit Edison)
of qualified costs. The qualified costs approved by the MPSC include Fermi 2
costs, costs of certain other regulatory assets, Electric Choice implementation
costs, the initial and periodic costs of issuance associated with
securitization bonds, and the costs of retiring and refunding securities with
the proceeds of securitization. Detroit Edison will use the proceeds of
securitization bonds to retire debt and equity as required. The issuance of
securitization bonds will result in an overall revenue requirement reduction
for Detroit Edison.
Acting pursuant to PA 141, in an order issued June 5, 2000, the MPSC reduced
Detroit Edisons residential electric rates by 5%, or approximately $65 million
on an annual basis, and imposed a rate freeze for all classes of customers
through 2003.
The legislation also contains provisions preventing rate increases for
residential customers through 2005, for small business customers through 2004
and remaining business customers through 2003. Certain costs may be deferred
after 2003 and during the period that rate increases are impermissible. This
rate cap may be lifted when certain market test provisions are met, namely, an
electric utility has no more than 30% of generation capacity in its relevant
market, with allowance for capacity needed to meet a utilitys responsibility
to serve its customers. Statewide, multi-utility transmission system
improvements also are required. If these market conditions and transmission
improvements conditions are not met, the rate cap may continue until such
conditions are met or through 2013.
In addition, as a result of the legislation the Company must:
As a result of the legislation discussed above, in several orders issued on
June 19, 2000, the MPSC determined that adjusting rates for changes in fuel and
purchased
48
power expenses, through continuance of the PSCR clause, would be
inconsistent with the new statutes. Detroit Edison was not permitted to collect
the 1998 PSCR underrecovery of $8.6 million, plus accrued interest of $3.0
million. Detroit Edison reversed approximately $55 million of liabilities
associated with the PSCR clause as of
the effective date of the legislation. Parties have filed Claims of Appeal
regarding the PSCR issues with the Michigan Court of Appeals. The Company is
not able to determine the timing or outcome of these proceedings.
Detroit Edison is unable to predict the outcome of the matters discussed
herein. Resolution of these matters is dependent upon future MPSC orders which
may impact the financial position of Detroit Edison.
Accounting Implications
Due to 1997 and 1998 restructuring orders which provided sufficient details
regarding the transition to competition for its electric generation business,
at December 31, 1998, Detroit Edison performed an impairment test of its Fermi
2 nuclear generation plant and related regulatory assets. The impairment test
for Fermi 2 indicated that it was fully impaired. Therefore, the Fermi 2 plant
asset and its related regulatory assets were written off. At December 31,
1998, the accumulation of future regulatory recovery for Fermi 2 assets from
bundled customers and transition surcharges from future retail access customers
was calculated. Since the December 28, 1998 MPSC order provided for full
recovery of Fermi 2 through the regulated transmission and distribution
business, a regulatory asset was established which was planned to be amortized
through December 31, 2007. There was no impact on income from the write-off of
the Fermi 2 plant assets and subsequent recording of the regulatory asset for
unamortized nuclear costs. The regulatory asset is included in the amounts
planned to be securitized as provided for in the 2000 Michigan restructuring
legislation and MPSC orders.
Other
In accordance with a November 1997 MPSC order, Detroit Edison reduced revenues
by $53 million to reflect the scheduled reduction in the revenue requirement
for Fermi 2, in accordance with the 1988 settlement agreement. The $53 million
decrease is included in the $94 million decrease effective January 1, 1999. In
addition, the November 1997 MPSC order authorized the deferral of $30 million
of 1997 storm damage costs and amortization and recovery of the costs over a
24-month period commencing January 1998. In December 1997, ABATE and the
Residential Ratepayer Consortium filed a lawsuit in Ingham County Circuit Court
contending that Detroit Edison and the MPSC breached the December 1988 MPSC
order, but the lawsuit was subsequently dismissed. The Michigan Attorney
General has filed an appeal of the November 1997 order in the Michigan Court of
Appeals. In June 1999, in an unpublished opinion, the Michigan Court of
Appeals remanded back to the MPSC for hearing the November 1997 order. Detroit
Edison filed a motion for rehearing with the Michigan Court of Appeals in July
1999, but the motion was subsequently dismissed. In December 2000, the MPSC
issued an order reopening the case for hearing. Detroit Edison is unable to
determine the timing or the outcome of the remand.
49
NOTE 4 FERMI 2
General
Fermi 2, a nuclear generating unit, began commercial operation in January 1988.
The Nuclear Regulatory Commission (NRC) maintains jurisdiction over the
licensing and operation of Fermi 2. Fermi 2 has a design electrical rating
(net) of 1,150 megawatts (MW). This unit represents approximately 11% of total
operation and maintenance expenses and 10% of summer net rated capability of
Detroit Edison. The net book balance of the Fermi 2 plant was written off at
December 31, 1998, and an equivalent regulatory asset was established. See
Note 3.
Ownership of an operating nuclear generating unit subjects Detroit Edison to
significant additional risks. Fermi 2 is regulated by a number of different
governmental agencies concerned with public health, safety and environmental
protection. Consequently, Fermi 2 is subjected to greater scrutiny than a
conventional fossil-fuel plant.
Insurance
Detroit Edison insures Fermi 2 with property damage insurance provided by
Nuclear Electric Insurance Limited (NEIL). The NEIL insurance policies provide
$500 million of composite primary coverage (with a $1 million deductible) and
$2.25 billion of excess coverage, respectively, for stabilization,
decontamination and debris removal costs, repair and/or replacement of property
and decommissioning. The combined limits provide total property damage
insurance of $2.75 billion.
Detroit Edison maintains insurance policies with NEIL providing for extra
expenses, including certain replacement power costs necessitated by Fermi 2s
unavailability due to an insured event. These policies have a 12-week waiting
period and provide for three years of coverage.
Under the NEIL policies, Detroit Edison could be liable for maximum
retrospective assessments of up to approximately $15 million per loss if any
one loss should exceed the accumulated funds available to NEIL.
As required by federal law, Detroit Edison maintains $200 million of public
liability insurance for a nuclear incident. Further, under the Price-Anderson
Amendments Act of 1988 (Act), deferred premium charges of $84 million could be
levied against each licensed nuclear facility, but not more than $10 million
per year per facility. On December 31, 2000, there were 106 licensed nuclear
facilities in the United States. Thus, deferred premium charges in the
aggregate amount of approximately $8.89 billion could be levied against all
owners of licensed nuclear facilities in the event of a nuclear incident at any
of these facilities. The Act will expire on August 1, 2002. It is unknown
whether this statute will be renewed or modified.
50
Decommissioning
The NRC has jurisdiction over the decommissioning of nuclear power plants and
requires decommissioning funding based upon a formula. The MPSC and FERC
regulate the recovery of costs of decommissioning nuclear power plants and both
require the use of
external trust funds to finance the decommissioning of Fermi 2. Rates approved
by the MPSC provide for the decommissioning costs of Fermi 2. Detroit Edison
is continuing to fund FERC jurisdictional amounts for decommissioning even
though explicit provisions are not included in FERC rates. Detroit Edison
believes that the MPSC and FERC collections will be adequate to fund the
estimated cost of decommissioning using the NRC formula.
Detroit Edison has established external trust funds to hold decommissioning and
low-level radioactive waste disposal funds collected from customers. During
2000, 1999 and 1998, Detroit Edison collected $38 million, $38 million and $36
million, respectively, from customers for decommissioning and low-level
radioactive waste disposal. Such amounts were recorded as components of
depreciation and amortization expense and in other liabilities. A net
unrealized loss of $18 million and a net unrealized gain of $4 million in 2000
and 1999, respectively, were recorded as adjustments to the nuclear
decommissioning trust funds and other liabilities. Investments in debt and
equity securities held within the external trust funds are classified as
available for sale.
At December 31, 2000, Detroit Edison had a reserve of $351 million for the
future decommissioning of Fermi 2, $15 million for low-level radioactive waste
disposal costs, and $32 million for the decommissioning of Fermi 1, an
experimental nuclear unit on the Fermi 2 site that has been shut down since
1972. These reserves are included in other liabilities, with a like amount
deposited in external trust funds. It is estimated that the cost of
decommissioning Fermi 2, when its license expires in the year 2025, will be
$912 million in 2000 dollars and $3.7 billion in 2025 dollars using a 6%
inflation rate. The cost of decommissioning Fermi 1 is approximately $30-35
million. During 2000, Detroit Edison decided to proceed with the
decommissioning of Fermi 1, with the goal of removing the radioactive material
and terminating the Fermi 1 license. The full project is expected to take
about five years.
Fermi 2 Phase-In Plan
Based on a MPSC-authorized phase-in plan, Detroit Edison recorded a receivable
totaling $507 million from 1988 through 1992. Beginning in 1993 and ending in
1998, these amounts were amortized to operating expense as they were included
in rates. Amortization of these amounts totaled $84 million in 1998.
Capacity Factor Performance Standard
At December 31, 1999, Detroit Edison had an accrual of $63 million for the
Fermi 2 capacity factor performance standard disallowances that were expected
to be imposed
51
by the MPSC. As a result of the June 2000 Michigan restructuring
legislation, this liability was reversed.
Nuclear Fuel Disposal Costs
In accordance with the Federal Nuclear Waste Policy Act of 1982, Detroit Edison
has a contract with the U.S. Department of Energy (DOE) for the future storage
and disposal of spent nuclear fuel from Fermi 2. Detroit Edison is obligated
to pay DOE a fee of one mill
per net kilowatthour of Fermi 2 electricity generated and sold. The fee is a
component of nuclear fuel expense. Delays have occurred in the DOEs program
for the acceptance and disposal of spent nuclear fuel at a permanent
repository. Until the DOE is able to fulfill its obligation under the
contract, Detroit Edison is responsible for the spent nuclear fuel storage and
estimates that existing storage capacity will be sufficient until 2007, after
the expansion of such storage capacity in 2001.
NOTE 5 JOINTLY OWNED UTILITY PLANT
Detroit Edisons portion of jointly owned utility plant at December 31, 2000 is
as follows:
Belle River
The Michigan Public Power Agency (MPPA) has an ownership interest in Belle
River Unit No. 1 and certain other related facilities. MPPA is entitled to
18.61% of the capacity and energy of the entire plant and is responsible for
the same percentage of the plants operation and maintenance expenses and
capital improvements.
Ludington Pumped Storage
Operation, maintenance and other expenses of the Ludington Pumped Storage Plant
are shared by Detroit Edison and Consumers Energy Company in proportion to
their respective ownership interests in the plant.
52
NOTE 6 INCOME TAXES
Total income tax expense as a percent of income before tax varied from the
statutory federal income tax rate for the following reasons:
Components of income tax expense were as follows:
Internal Revenue Code Section 29 provides a tax credit (alternate fuels credit)
for qualified fuels produced and sold by a taxpayer to an unrelated person
during the taxable year. The alternate fuels credit reduced current federal
income tax expense $130 million, $116 million and $79 million for 2000, 1999
and 1998, respectively.
53
Deferred income tax assets (liabilities) were comprised of the following at
December 31:
Included in deferred income tax assets is an alternative minimum tax credit
carry-forward of $125 million for 2000 and $50 million for 1999.
The federal income tax returns of the Company are settled through 1992. The
Company believes that adequate provisions for federal income taxes have been
made through December 31, 2000.
NOTE 7 SHAREHOLDERS EQUITY
At December 31, 2000, the Company had 5 million shares of Cumulative Preferred
Stock, without par value, authorized with no shares issued. At December 31,
2000, 1.5 million shares of preferred stock are reserved for issuance in
accordance with the
Shareholders Rights Agreement.
At December 31, 2000, Detroit Edison had 30 million shares of Cumulative
Preference Stock of $1 par value and 6.75 million shares of Cumulative
Preferred Stock of $100 par value authorized, with no shares issued.
In September 1997, the Board of Directors of the Company declared a dividend
distribution of one right (Right) for each share of Company common stock
outstanding. Under certain circumstances, each Right entitles the shareholder
to purchase one one-hundredth of a share of Company Series A Junior
Participating Preferred Stock at a price of $90. If the acquiring person or
group acquires 10% or more of the Company common stock, and the Company
survives, each Right (other than those held by the acquirer) will entitle its
holder to buy Company common stock having a value of $180 for $90. If the
acquiring person or group acquires 10% or more of the Company common stock, and
the Company does not survive, each Right (other than those held by the
surviving or acquiring company) will entitle its holder to buy shares of common
stock of the surviving
54
or acquiring company having a value of $180 for $90. The Rights will expire on
October 6, 2007, unless redeemed by the Company at $0.01 per Right at any time
prior to an event that would permit the Rights to be exercised. The Company
may amend the Rights agreement without the approval of the holders of the
Rights Certificates, except that the redemption price may not be less than
$0.01 per Right.
During the year ended December 31, 2000, the Company repurchased approximately
2.3 million shares at an aggregate cost of approximately $70 million, under a
program that began in February 2000.
55
NOTE 8 LONG-TERM DEBT
The Companys long-term debt outstanding at December 31 was:
Page
29
30
31
32
34
36
37
38
40
41
93
and are not considered to be
part of Part II Item 8 of the Companys report.
DTE Energy Company and
The Detroit Edison Company
January 24, 2001
Consolidated Statement of Income
(Millions, Except Per Share Amounts)
Year Ended December 31
2000
1999
1998
$
5,597
$
4,728
$
4,221
2,233
1,335
1,063
1,480
1,480
1,288
758
735
661
296
277
272
4,767
3,827
3,284
830
901
937
336
340
319
6
17
18
15
353
358
340
477
543
597
9
60
154
$
468
$
483
$
443
143
145
145
$
3.27
$
3.33
$
3.05
Consolidated Statement of Cash Flows
Year Ended December 31
2000
1999
1998
$
468
$
483
$
443
758
735
661
(146
)
(90
)
(146
)
43
(10
)
(67
)
(140
)
(94
)
(84
)
8
(5
)
(35
)
139
30
99
(42
)
48
(37
)
1,088
1,097
834
(749
)
(739
)
(589
)
(29
)
(408
)
(749
)
(768
)
(997
)
273
265
763
116
156
189
(331
)
(548
)
(255
)
(150
)
(70
)
(296
)
(299
)
(299
)
(308
)
(426
)
248
31
(97
)
85
33
130
45
$
64
$
33
$
130
$
334
$
340
$
309
104
152
160
41
3
52
Consolidated Balance Sheet
(Millions, Except Per Share Amounts and Shares)
December 31
2000
1999
$
64
$
33
88
131
510
388
188
166
140
144
163
175
172
168
289
67
38
38
1,652
1,310
398
361
269
274
667
635
12,179
11,755
221
222
705
663
57
106
13,162
12,746
5,775
5,598
7,387
7,148
2,686
2,935
270
288
$
12,662
$
12,316
December 31
2000
1999
$
404
$
273
59
57
73
75
103
97
503
387
97
61
233
270
41
36
280
50
218
259
2,011
1,565
1,801
1,925
145
153
185
262
588
564
2,719
2,904
3,917
3,938
1,918
1,950
2,097
1,959
4,015
3,909
$
12,662
$
12,316
Consolidated Statement of Changes in Shareholders Equity
(Millions, Except Per Share Amounts; Shares in Thousands)
2000
1999
1998
Shares
Amount
Shares
Amount
Shares
Amount
$
$
1,501
$
144
(1,501
)
(150
)
6
$
$
$
145,041
$
1,950
145,071
$
1,951
145,098
$
1,951
(2,390
)
(32
)
(30
)
(1
)
(27
)
142,651
$
1,918
145,041
$
1,950
145,071
$
1,951
$
1,959
$
1,747
$
1,611
468
483
443
(294
)
(299
)
(299
)
(6
)
(39
)
3
28
(2
)
$
2,097
$
1,959
$
1,747
$
4,015
$
3,909
$
3,698
Consolidated Statement of Income
(Millions)
Year Ended December 31
2000
1999
1998
$
4,129
$
4,047
$
3,902
1,271
1,106
1,021
977
1,028
998
719
703
643
289
275
270
3,256
3,112
2,932
873
935
970
277
284
277
13
6
15
290
290
292
583
645
678
172
211
260
411
434
418
6
$
411
$
434
$
412
Consolidated Statement of Cash Flows
(Millions)
Year Ended December 31
2000
1999
1998
$
411
$
434
$
418
719
703
643
(151
)
2
(217
)
(23
)
(70
)
(51
)
13
(6
)
(28
)
37
17
64
12
(52
)
(25
)
1,018
1,028
804
(587
)
(638
)
(548
)
(587
)
(638
)
(548
)
270
265
200
(117
)
131
231
(245
)
(468
)
(219
)
(150
)
(319
)
(319
)
(328
)
(411
)
(391
)
(266
)
20
(1
)
(10
)
4
5
15
$
24
$
4
$
5
$
275
$
284
$
269
235
276
292
41
3
52
Consolidated Balance Sheet
(Millions, Except Per Share Amounts and Shares)
December 31
2000
1999
$
24
$
4
328
316
188
166
127
138
163
175
139
140
25
29
994
968
398
361
38
34
436
395
11,431
11,204
220
221
705
663
2
4
12,358
12,092
5,659
5,526
6,699
6,566
2,686
2,935
171
187
$
10,986
$
11,051
December 31
2000
1999
$
253
$
224
56
54
80
80
96
90
245
362
95
84
159
194
41
36
167
159
1,192
1,283
1,811
1,879
145
153
185
262
586
562
2,727
2,856
3,344
3,284
authorized, 145,119,875 issued and outstanding
1,451
1,451
548
548
(48
)
(48
)
1,772
1,677
3,723
3,628
$
10,986
$
11,051
Consolidated Statement of Changes in Shareholders Equity
(Millions, Except Per Share Amounts; Shares in Thousands)
2000
1999
1998
Shares
Amount
Shares
Amount
Shares
Amount
$
$
1,501
$
144
(1,501
)
(150
)
6
$
$
$
145,120
$
1,451
145,120
$
1,451
145,120
$
1,451
$
548
$
548
$
548
$
(48
)
$
(48
)
$
(48
)
$
1,677
$
1,562
$
1,478
411
434
418
(319
)
(319
)
(319
)
(6
)
(6
)
3
(3
)
$
1,772
$
1,677
$
1,562
$
3,723
$
3,628
$
3,513
2000
1999
(Millions)
Assets
Unamortized nuclear costs
$
2,328
$
2,570
Unamortized loss on reacquired debt
82
85
Recoverable income taxes
194
201
Power supply cost recovery
39
Electric Choice implementation costs
57
29
Other
25
11
Total Assets
$
2,686
$
2,935
Liabilities
Unamortized deferred investment tax credits
$
167
$
177
Fermi 2 capacity factor performance standard
63
Other
18
22
Total Liabilities
$
185
$
262
2000
1999
(Millions)
Distribution
Property
$
5,153
$
4,856
Construction work in progress
1
1
Property under capital leases
9
4
Less accumulated depreciation
(1,924
)
(1,767
)
3,239
3,094
Transmission
Property
772
742
Construction work in progress
Property under capital leases
Less accumulated depreciation
(389
)
(413
)
383
329
Generation
Property
5,506
5,606
Construction work in progress
1
3
Property under capital leases
211
217
Less accumulated depreciation
(2,715
)
(2,747
)
3,003
3,079
Nuclear fuel under capital lease
705
663
Less accumulated amortization
(631
)
(599
)
74
64
2000
1999
(Millions)
Non-utility
Property
748
551
Construction work in progress
55
102
Property under capital leases
1
1
Less accumulated depreciation
(116
)
(72
)
688
582
Total property
$
7,387
7,148
File an application by June 5, 2001, to unbundle its commercial and industrial rates.
Join a FERC-approved Regional Transmission Organization (RTO) or divest its interest in transmission by December 15, 2001.
Continue to provide service to customers who wish to take service from Detroit Edison.
Establish a worker transition program for workers that might be displaced.
Belle River
Ludington Pumped Storage
In-service date
1984-1985
1973
Ownership interest
*
49
%
Investment (millions)
$
1,030
$
192
Accumulated depreciation (millions)
$
436
$
96
*
Detroit Edisons ownership interest is 62.78% in Unit No. 1, 81.39%
of the portion of the facilities applicable to Belle River used jointly
by the Belle River and St. Clair Power Plants, 49.59% in certain
transmission lines and, at December 31, 2000, 75% in facilities used in
common with Unit No. 2.
2000
1999
1998
Statutory income tax rate
35.0
%
35.0
%
35.0
%
Deferred Fermi 2 depreciation and return
3.9
Investment tax credit
(2.2
)
(1.9
)
(2.5
)
Depreciation
2.3
1.5
5.1
Removal costs
(5.0
)
(2.3
)
(1.9
)
Alternate fuels credit
(27.1
)
(21.3
)
(13.1
)
Other-net
(1.1
)
0.1
(1.0
)
Effective income tax rate
1.9
%
11.1
%
25.5
%
2000
1999
1998
(Millions)
Current federal income tax expense
$
138
$
144
$
143
Deferred federal income tax (benefit) expense
(118
)
(73
)
26
Investment tax credit
(11
)
(11
)
(15
)
Total
$
9
60
$
154
2000
1999
(Millions)
Property
$
(1,212
)
$
(1,209
)
Unamortized nuclear costs
(822
)
(899
)
Property taxes
(68
)
(66
)
Investment tax credit
90
96
Reacquired debt losses
(29
)
(30
)
Contributions in aid of construction
90
73
Other
88
51
$
(1,863
)
$
(1,984
)
Deferred income tax liabilities
$
(2,414
)
$
(2,463
)
Deferred income tax assets
551
479
$
(1,863
)
$
(1,984
)
2000
1999
(Millions)
Mortgage Bonds
6.6% to 8.4% due 2001 to 2023
$
1,564
$
1,539
Remarketed Notes
6.0% to 7.4% due 2028 to 2034 (a)
410
410
6.2% and 7.1% due 2038
400
400
Tax Exempt Revenue Bonds
Secured by Mortgage Bonds
Installment Sales Contracts
6.6% due 2004 to 2024(b)
125
176
Loan Agreements
6.1% due 2008 to 2030(b)
882
831
Unsecured
Installment Sales Contracts
6.4% due 2004
24
24
Loan Agreements
3.9% due 2024 to 2030(a)
113
113
QUIDS
7.4% to 7.6% due 2026 to 2028
385
385
Non-Recourse Debt
7.8% due 2001 to 2009 (b)
247
330
Less amount due within one year
(233)
(270
)
Total Long-Term Debt
$
3,917
$
3,938
(a)
Variable rate at December 31, 2000.
(b)
Weighted average interest rate at December 31, 2000.
In the years 2001 2005, the Companys long-term debt maturities are $233 million, $275 million, $238 million, $64 million and $254 million, respectively.
Detroit Edisons 1924 Mortgage and Deed of Trust (Mortgage), the lien of which covers a substantial portion of Detroit Edisons properties, provides for the issuance of additional General and Refunding Mortgage Bonds (Mortgage Bonds). At December 31, 2000, approximately $4.2 billion principal amount of Mortgage Bonds could have been issued on the basis of property additions, combined with an earnings test provision, assuming an interest rate of 7% on any such additional Mortgage Bonds. An additional $2.1 billion principal amount of Mortgage Bonds could have been issued on the basis of bond retirements.
Unless an event of default has occurred, and is continuing, each series of Quarterly Income Debt Securities (QUIDS) provides that interest will be paid quarterly. However,
56
Detroit Edison also has the right to extend the interest payment period on the QUIDS for up to 20 consecutive interest payment periods. Interest would continue to accrue during the deferral period. If this right is exercised, Detroit Edison may not declare or pay dividends on, or redeem, purchase or acquire, any of its capital stock during the deferral period. Detroit Edison may redeem any series of capital stock pursuant to the terms of any sinking fund provisions during the deferral period. Additionally, during any deferral period, Detroit Edison may not enter into any inter-company transactions with any affiliate of Detroit Edison, including the Company, to enable the payment of dividends on any equity securities of the Company.
At December 31, 2000, $273 million of notes and bonds were subject to periodic remarketings within one year. Remarketing agents remarket these securities at the lowest interest rate necessary to produce a par bid. In the event that a remarketing fails, Standby Note Purchase Agreements and/or Letters of Credit provide that banks will purchase the securities and, after the conclusion of all necessary proceedings, remarket the bonds. In the event the banks obligations under the Standby Note Purchase Agreements and/or Letters of Credit are not honored, then Detroit Edison would be required to purchase any securities subject to a failed remarketing.
At December 31, 2000, the Company had letters of credit from a bank that allowed the Company to use approximately $45 million of cash previously classified as restricted on the Companys balance sheet. There were no amounts drawn on these letters of credit at December 31, 2000.
NOTE 9 SHORT-TERM CREDIT ARRANGEMENTS AND BORROWINGS
At December 31, 2000, Detroit Edison had total short-term credit arrangements of approximately $517 million, under which $245 million was outstanding. At December 31, 1999, $162 million was outstanding. The weighted average interest rates for short-term borrowings at December 31, 2000 and 1999 were 6.6% and 6.9%, respectively.
Detroit Edisons short-term credit arrangements included bank lines of credit of $201 million, all of which had commitment fees in lieu of compensating balances. Detroit Edison uses bank lines of credit and other credit facilities to support the issuance of commercial paper and bank loans. Detroit Edison had $45 million and $162 million of commercial paper outstanding at December 31, 2000 and 1999, respectively.
Detroit Edisons short-term credit arrangements also included a $200 million short-term financing agreement secured by its customer accounts receivable and unbilled revenues portfolio under which $200 million was outstanding at December 31, 2000 and 1999, with a weighted average interest rate of 6.76% and 5.42%, respectively.
Detroit Edison has a nuclear fuel financing arrangement with Renaissance Energy Company (Renaissance), an unaffiliated company. Renaissance may issue commercial paper or borrow from participating banks on the basis of promissory notes. To the extent the maximum amount of funds available to Renaissance (currently $400 million) is not needed by Renaissance to purchase nuclear fuel, such funds may be loaned to Detroit Edison for general corporate purposes pursuant to a separate Loan Agreement. At
57
December 31, 2000, approximately $316 million was available to Detroit Edison under such Loan Agreement.
At December 31, 2000 and 1999, DTE Capital Corporation (DTE Capital), a wholly owned subsidiary of the Company, had $258 million and $25 million of commercial paper outstanding with a weighted average interest rate of 7.69% and 6.80%, respectively. A $400 million short-term credit arrangement, backed by a Support Agreement from the Company, provided credit support for this commercial paper.
During the first quarter of 2000, plans were announced to terminate DTE Capitals operations. Subsequently, the Company assumed all of DTE Capitals outstanding guarantees. The Company is authorized to issue up to $550 million of guarantees. At December 31, 2000, the Company had assumed and/or issued guarantees of various consolidated affiliate obligations of approximately $238 million.
NOTE 10 LEASES
Future minimum lease payments under capital leases, consisting of nuclear fuel ($85 million computed on a projected units of production basis), lake vessels ($13 million), locomotives and coal cars ($142 million), office space ($9 million), and computers, vehicles and other equipment ($1 million) at December 31, 2000 are as follows:
(Millions)
Remaining
2001
2002
2003
2004
2005
Years
Interest
Total
$54
$
45
$
30
$
21
$
14
$
86
$
(64
)
$
186
Future minimum lease payments for operating leases are as follows:
(Millions)
Remaining
2001
2002
2003
2004
2005
Years
Total
$10
$
10
$
9
$
9
$
9
$
45
$
92
Rental expenses for both capital and operating leases were $116 million (including $38 million for nuclear fuel), $107 million (including $52 million for nuclear fuel) and $96 million (including $49 million for nuclear fuel) for 2000, 1999 and 1998, respectively.
Detroit Edison has a contract with Renaissance which provides for the purchase by Renaissance for Detroit Edison of up to $400 million of nuclear fuel, subject to the continued availability of funds to Renaissance to purchase such fuel. Title to the nuclear fuel is held by Renaissance. Detroit Edison makes quarterly payments under the contract based on the consumption of nuclear fuel for the generation of electricity.
58
NOTE 11 FINANCIAL AND OTHER DERIVATIVE INSTRUMENTS
Trading Activities
DTE ET markets and trades electricity and natural gas physical products and
financial instruments, and provides risk management services utilizing energy
commodity derivative instruments, which include futures, exchange traded and
over-the-counter options, and forward purchase and sale commitments.
Notional Amounts and Terms
The notional amounts and terms of DTE ETs outstanding energy trading financial
instruments at December 31, 2000 were:
Fixed Price
Fixed Price
Maximum
Payor
Receiver
Terms in Years
(Thousand of MWh)
Electricity Commodities
1,116
1,933
1
At December 31, 2000, DTE ET also had sales and purchase commitments for physical delivery of electricity associated with contracts based on fixed prices totaling 810,578 net MWh purchased with terms extending up to 2 years.
Notional amounts reflect the volume of transactions, but do not necessarily represent the amounts exchanged by the parties to the energy commodity derivative instruments. Accordingly, notional amounts do not accurately measure DTE ETs exposure to market or credit risks. The maximum terms in years detailed above are not indicative of likely future cash flows as these positions may be offset in the markets at any time in response to DTE ETs risk management needs.
Fair Values
The average fair values of DTE ETs derivative financial assets and liabilities during 2000 were $109.4 million and $95.1 million, respectively, and during 1999 $28.7 million and $24.3 million, respectively. At December 31, 2000 and 1999, the fair values of the derivative financial assets and liabilities were $288.9 million and $279.9 million and, $66.6 million and $49.6 million, respectively. Net unrealized gains were $9.0 million and $17.0 million at December 31, 2000 and 1999, respectively.
Market Risk
DTE ET manages, on a portfolio basis, the market risks inherent in its activities subject to parameters established by the Companys Risk Management Committee (RMC), which is authorized by its Board of Directors. Market risks are monitored by the RMC to ensure compliance with the Companys stated risk management policies. DTE ET marks its portfolio to market and measures its risk on a daily basis in accordance with
59
Value at Risk (VaR) and other risk methodologies. The quantification of market risk using VaR provides a consistent measure of risk across diverse energy markets and products.
Credit Risk
DTE ET is exposed to credit risk in the event of nonperformance by customers or counterparties of its contractual obligations. The concentration of customers and/or counterparties may impact overall exposure to credit risk, either positively or negatively, in that the counterparties may be similarly affected by changes in economic, regulatory or other conditions. However, DTE ET maintains credit policies with regard to its customers and counterparties that management believes significantly minimize overall credit risk. These policies include an evaluation of potential customers and counterparties financial condition and credit rating, collateral requirements or other credit enhancements such as letters of credit or guarantees, and the use of standardized agreements which allow for the netting or offsetting of positive and negative exposures associated with a single counterparty. Based on these policies, the Company does not anticipate a materially adverse effect on financial position or results of operations as a result of customer or counterparty nonperformance. Those futures and option contracts which are traded on the New York Mercantile Exchange are financially guaranteed by the Exchange and have nominal credit risk.
Non-Trading Activities
The Company has entered into a series of forward-starting interest rate swaps and Treasury locks in order to limit its sensitivity to interest rate fluctuations associated with its anticipated issuance of long-term debt to be used to finance the proposed merger with MCN. The Company has designated these instruments as hedges. The Company expects to issue this debt subsequent to the proposed merger. The forward-starting swaps, which include notional amounts of $250 million and $450 million in five- and 10-year maturities, respectively, have a weighted average interest rate of 7.55% and 7.61%, respectively. The Treasury locks, which include notional amounts of $50 million and $150 million in 10- and 30-year maturities, respectively, have a weighted average interest rate of 6.01% and 6.26%, respectively. At December 31, 2000, the fair value of these derivative financial instruments indicated an unrealized loss of approximately $84 million. The unrealized loss is not reflected in the financial statements at December 31, 2000, but would be recognized as a deferred item upon issuance of the anticipated long-term debt. The deferred item would be amortized through interest expense over the life of the associated long-term debt as a yield adjustment.
PCI Enterprises Company (PCI), a wholly owned coal pulverizing subsidiary, entered into a seven-year interest rate swap agreement beginning June 30, 1997, with the intent of reducing the impact of changes in interest rates on a portion of its variable rate non-recourse debt. The initial notional amount was $30 million. The notional amount outstanding at December 31, 2000 and 1999, was $22 million and $24 million, respectively, and will decline throughout the term of the loan based on amortization of principal amounts. PCI pays a fixed interest rate of 6.96% on the notional amount and receives a variable interest rate based on LIBOR. In 2000 and 1999, the average rate
60
received was 6.48% and 5.28%, respectively. The net of interest received and interest paid on the swap is accrued as a component of interest expense in the current period.
New Accounting Pronouncement
In June 1998, the Financial Accounting Standards Board (FASB) issued SFAS No. 133. SFAS No. 133, as amended, requires every derivative instrument to be recorded on the balance sheet as an asset or a liability measured at its fair value, and that changes in the derivatives fair value be recognized currently in earnings unless specific hedge accounting criteria are met.
SFAS No. 133 requires that as of the date of initial adoption, the difference between the fair market value of derivative instruments recorded on the balance sheet and the previous carrying amount of those derivatives be reported in net income or other comprehensive income, as appropriate, as the cumulative effect of a change in accounting principle in accordance with Accounting Principles Board Opinion 20, Accounting Changes.
As of January 1, 2001, the Company adopted SFAS No. 133, as required. The cumulative effect of the adoption of SFAS No. 133 is expected to be an after-tax increase in net income of approximately $3.6 million, and an after-tax decrease in other comprehensive income of approximately $41.5 million. The adoption will also impact assets and liabilities recorded on the balance sheet. At January 1, 2001, the Company had the following types of derivative instruments: forward-starting swaps, Treasury locks, wholesale power contracts and an interest rate swap.
Fair Value of Financial Instruments
The fair value of financial instruments is determined by reference to various market data and other valuation techniques as appropriate. The carrying amount of financial instruments, except for long-term debt and other instruments disclosed herein, approximates fair value. The estimated fair value of total long-term debt at December 31, 2000 and 1999 was $4.2 billion and $4 billion, respectively, compared to the carrying amount of $4.1 billion and $4.2 billion, respectively.
NOTE 12 COMMITMENTS AND CONTINGENCIES
Commitments
Detroit Edison has outstanding purchase commitments of approximately $1,048 million at December 31, 2000, which includes, among other things, line construction and clearance costs and equipment purchases. The Company and Detroit Edison have also entered into long-term fuel supply commitments of approximately $1,005 million.
Detroit Edison has an Energy Purchase Agreement (Agreement) for the purchase of steam and electricity from the Detroit Resource Recovery Facility. Under the Agreement, Detroit Edison will purchase steam through 2008 and electricity through June 2024. In 1996, a special charge to net income of $149 million ($97 million after-tax) or $0.67 per
61
share was recorded. The special charge included a reserve for steam purchase commitments from 1997 through 2008 and expenditures for closure of a portion of the steam heating system. The reserve for steam purchase commitments was recorded at its present value; therefore Detroit Edison is recording non-cash accretion expense through 2008. In addition, amortization of the reserve for steam purchase commitments is netted against losses on steam heating purchases recorded in fuel and purchased power expense. Purchases of steam and electricity were approximately $35 million, $35 million and $31 million for 2000, 1999 and 1998, respectively. Annual steam purchase commitments are approximately $38 million, $39 million, $40 million, $42 million and $43 million for 2001, 2002, 2003, 2004 and 2005, respectively.
In October 1995, the MPSC issued an order approving Detroit Edisons six-year capacity and energy purchase agreement with Ontario Hydro. Ontario Hydro agreed to sell Detroit Edison 300 MW of capacity from mid-May through mid-September. This purchase offsets a concurrent agreement to lease approximately one-third of Detroit Edisons Ludington 917 MW capacity to FirstEnergy for the same time period. The net economic effect of the Ludington lease and the Ontario Hydro purchase is an estimated reduction in expense of $74 million over the term of the agreement.
The EPA has issued ozone transport regulations and final new air quality standards relating to ozone and particulate air pollution. In September 1998, the EPA issued a State Implementation Plan (SIP) call, giving states a year to develop new regulations to limit nitrogen oxide emissions because of their contribution to ozone formation. Detroit Edison has spent approximately $50 million and estimates that it will incur approximately $410 million of future capital expenditures over the next three years to comply. In March 2000, the U.S. Court of Appeals, D.C. Circuit ruled in favor of the EPAs SIP call regulations. The new air quality standards have been upheld in legal challenges in the U.S. Court of Appeals, but the U.S. Supreme Court has agreed to hear the appeal. Until the legal issues are resolved, it is impossible to predict the full impact of the new air quality standards. Under the June 2000 Michigan restructuring legislation, beginning January 1, 2004, annual return of and on this capital expenditure, in excess of current depreciation levels, would be deferred, in ratemaking, until after the expiration of the rate cap period, presently expected to end December 31, 2005.
Contingencies
The Company is involved in various legal proceedings, including environmental matters, of a nature considered normal to its business. The Company believes that such litigation and the matters discussed above will not have a material effect on its financial position and results of operations.
See Notes 3 and 4 for a discussion of contingencies related to Regulatory Matters and Fermi 2.
62
NOTE 13 EMPLOYEE BENEFITS
Retirement Plan
Detroit Edison has a trusteed and non-contributory defined benefit retirement plan covering all eligible employees who have completed six months of service. The plan provides retirement benefits based on the employees years of benefit service, average final compensation and age at retirement. Detroit Edisons policy is to fund pension cost calculated under the projected unit credit actuarial cost method.
Net pension cost included the following components:
2000
1999
1998
(Millions)
Service cost benefits earned during period
$
35
$
35
$
31
Interest cost on projected benefit obligation
107
92
88
Expected return on Plan assets
(139
)
(124
)
(118
)
Amortization of unrecognized prior service cost
10
5
5
Amortization of unrecognized net asset resulting
from initial
application
(4
)
(4
)
(4
)
Net pension cost
$
9
$
4
$
2
The following reconciles the funded status of the Plan to the amount recorded
in the Consolidated Balance Sheet at December 31:
2000
1999
(Millions)
Projected benefit obligation at beginning of year
$
1,457
$
1,400
Service cost benefits earned during period
35
35
Interest cost on projected benefit obligation
107
92
Net loss (gain)
21
(49
)
Benefits paid to participants
(82
)
(77
)
Plan amendments
2
56
Projected benefit obligation at year-end
1,540
1,457
Fair value of Plan assets (primarily equity and
debt securities) at beginning
of year
1,585
1,416
Actual return on Plan assets
(87
)
246
Benefits paid to participants
(82
)
(77
)
Fair value of Plan assets at year-end
1,416
1,585
63
2000
1999
(Millions)
Plan assets (less than) in excess of projected
benefit obligation
(124
)
128
Unrecognized net asset resulting from initial application
(7
)
(11
)
Unrecognized net loss (gain)
112
(136
)
Unrecognized prior service cost
85
94
Asset recorded in the Consolidated Balance Sheet
$
66
$
75
Assumptions used in determining the projected benefit obligation at December 31
were as follows:
2000
1999
Discount rate
7.5
%
7.5
%
Annual increase in future compensation levels
4.0
4.0
Expected long-term rate of return on Plan assets
9.5
9.5
The unrecognized net asset at the date of initial application is being amortized over approximately 15.4 years, which was the average remaining service period of employees at January 1, 1987.
There are several additional supplemental non-qualified, non-contributory, retirement benefit plans for certain management employees.
Savings and Investment Plans
Detroit Edison has voluntary defined contribution plans qualified under Section 401 (a) and (k) of the Internal Revenue Code for all eligible employees. Detroit Edison contributes up to 6% of base compensation for non-represented employees and up to 4% for represented employees. Matching contributions were $22 million, $21 million and $21 million for 2000, 1999 and 1998, respectively.
Other Postretirement Benefits
Detroit Edison provides certain postretirement health care and life insurance benefits for retired employees. Substantially all of Detroit Edisons employees will become eligible for such benefits if they reach retirement age while working for Detroit Edison. These benefits are provided principally through insurance companies and other organizations.
64
Net other postretirement benefits cost included the following components:
2000
1999
1998
(Millions)
Service cost benefits earned during period
$
22
$
23
$
19
Interest cost on accumulated
benefit obligation
48
41
38
Expected return on assets
(46
)
(39
)
(30
)
Amortization of unrecognized transition obligation
20
21
21
Net other postretirement benefits cost
$
44
$
46
$
48
The following reconciles the funded status to the amount recorded in the
Consolidated Balance Sheet at December 31:
2000
1999
(Millions)
Postretirement benefit obligation at beginning of year
$
607
$
625
Service cost benefits earned during period
22
23
Interest cost on accumulated benefit obligation
48
43
Benefit payments
(31
)
(29
)
Net loss (gain)
105
(55
)
Postretirement benefit obligation at year-end
751
607
Fair value of assets (primarily equity and debt
securities) at beginning
of year
501
422
Detroit Edison contributions
23
26
Benefit payments
(9
)
(8
)
Actual return on assets
2
61
Fair value of assets at year-end
517
501
Postretirement benefit obligation in (excess) of assets
(234
)
(106
)
Unrecognized transition obligation
246
267
Unrecognized net loss (gain)
44
(105
)
Asset recorded in the Consolidated
Balance Sheet
$
56
$
56
65
Assumptions used in determining the postretirement benefit obligation at
December 31 were as follows:
2000
1999
Discount rate
7.5
%
7.5
%
Annual increase in future compensation levels
4.0
4.0
Expected long-term rate of return on assets
9.0
9.0
Benefit costs were calculated assuming health care cost trend rates beginning at 9.2% for 2001 and decreasing to 5% in 2008 and thereafter for persons under age 65 and decreasing from 9.8% to 5% for persons age 65 and over. A one-percentage-point increase in health care cost trend rates would have increased the aggregate of the service cost and interest cost components of benefit costs by $12.6 million and would have increased the accumulated benefit obligation by $96.4 million at December 31, 2000. A one-percentage-point decrease in the health care cost trend rates would have decreased the aggregate of the service cost and interest cost components of benefit costs by $10.1 million and would have decreased the accumulated benefit obligation by $78.9 million at December 31, 2000.
66
NOTE 14 STOCK-BASED COMPENSATION
The Company adopted a Long-Term Incentive Plan (LTIP) in 1995. Under the LTIP, certain key employees may be granted restricted common stock, stock options, stock appreciation rights, performance shares and performance units. Common stock granted under the LTIP may not exceed 7.2 million shares. Performance units (which have a face amount of $1) granted under the LTIP may not exceed 25 million in the aggregate. As of December 31, 2000, no stock appreciation rights or performance units have been granted under the LTIP.
Under the LTIP, shares of restricted common stock were awarded and are
restricted for a period not exceeding four years. All shares are subject to
forfeiture if specified performance measures are not met. During the
applicable restriction period, the recipient has all the voting, dividend and
other rights of a record holder except that the shares are nontransferable, and
non-cash distributions paid upon the shares would be subject to transfer
restrictions and risk of forfeiture to the same extent as the shares
themselves. The shares were recorded at the market value on the date of grant
and amortized to expense based on the award that was expected to vest and the
period during which the related employee services were to be rendered.
Restricted common stock activity for the year ended December 31 was:
2000
1999
1998
Restricted common shares awarded
29,565
99,500
74,000
Weighted average market price of shares awarded
$
32.00
$
40.99
$
38.77
Compensation cost charged against
income (thousands)
$
1,130
$
945
$
976
67
Effective February 22, 2000, under the LTIP, the Companys Special Committee on Compensation (the Committee) granted performance share awards. The performance share award includes a target award established by the Committee that when paid, can equal a multiple from zero to two times the recipients target award, based on the Companys performance as compared against the goals established by the Committee on February 22, 2000, for the four fiscal year cycle that began on January 1, 2000. The four performance goals established by the Committee with respect to this grant are based on: 1) the Companys four-year total shareholder return compared to the Dow Jones Electric Utility Industry Group; 2) the Companys four-year earnings per share growth; 3) the Companys four-year employee satisfaction goal; and 4) the Companys four-year Institute of Nuclear Power Operations goal. During the applicable restriction period, the recipient of a performance share award has no rights as a shareholder until and to the extent that the performance share award is earned and common stock is actually distributed to the recipient. However, recipients will be paid an amount equal to the dividend equivalent on such shares as dividends are paid. Performance share awards are nontransferable and are subject to risk of forfeiture. As of December 31, 2000, there were 125,750 performance share awards outstanding.
Stock options were also issued under the LTIP. Usually options are exercisable
at a rate of 25% per year during the four years following the date of grant.
However in 2000, more than 97% of the 2,018,400 options granted vest 50%, 20%,
20% and 10% over a four-year period. The options will expire 10 years after
the date of the grant. The option exercise price equals the fair market value
of the stock on the date that the option was granted. Stock option activity
was as follows:
Weighted
Number
Average
of Options
Exercise Price
Outstanding at January 1, 1998
310,500
28.50
Granted
319,500
38.38
Exercised
(22,625
)
28.50
Outstanding at December 31, 1998 (58,750 exercisable)
607,375
33.70
Granted
428,000
41.30
Exercised
(11,675
)
30.99
Canceled
(24,625
)
31.96
Outstanding at December 31, 1999 (194,371 exercisable)
999,075
37.03
Granted
2,018,400
32.10
Exercised
(10,750
)
28.50
Canceled
(29,500
)
41.14
Outstanding at December 31, 2000 (442,431 exercisable
at a
weighted average exercise price of $34.72)
2,977,225
33.68
68
The range of exercise prices for options outstanding at December 31, 2000, was
$28.50 to $43.85. The number, weighted average exercise price and weighted
average remaining contractual life of options outstanding was as follows:
Weighted Average
Range of Exercise
Weighted Average
Remaining
Prices
Number of Options
Exercise Price
Contractual Life
$28.50 - $34.75
2,260,475
$
31.65
8.8 years
$38.04 - $43.85
716,750
$
40.11
7.9 years
2,977,225
$
33.68
8.6 years
The Company applies APB Opinion 25, Accounting for Stock Issued to Employees.
Accordingly, no compensation expense has been recorded for options granted.
As required by SFAS No. 123, Accounting for Stock-Based Compensation, the
Company has determined the pro forma information as if it had accounted for its
employee stock
options under the fair value method. The fair value for these options was
estimated at the date of grant using a modified Black/Scholes option pricing
model American style and the following weighted average assumptions:
2000
1999
1998
Risk-free interest rate
6.57
%
5.64
%
5.84
%
Dividend yield
6.48
%
4.95
%
5.39
%
Expected volatility
18.51
%
17.28
%
17.48
%
Expected life
10 years
10 years
10 years
Fair value per option
$
5.19
$
7.18
$
6.43
The pro forma effect of these options would be to reduce pretax income by $2,725,000, $1,289,000, and $695,000 for the years ended December 31, 2000, 1999 and 1998, respectively, and to reduce earnings per share by $0.02 and $0.01 for the years ended December 31, 2000 and 1999, respectively. There was no pro forma effect on earnings per share for the year ended December 31, 1998.
NOTE 15 SEGMENT AND RELATED INFORMATION
The Companys reportable business segments are its electric utility, Detroit Edison, which is engaged in the generation, purchase, transmission, distribution and sale of electric energy in a 7,600-square-mile area in Southeastern Michigan, its energy trading company, and energy services business, which develops and manages energy-related projects and services primarily concentrated in the steel industry. All Other includes businesses involved in new energy technologies. Inter-segment revenues are not material. Income taxes are allocated based on inter-company tax sharing agreements, which generally allocate the tax benefit of alternate fuels tax credits and accelerated depreciation to the respective subsidiary, without regard to the subsidiarys own net
69
income or whether such tax benefits are realized by the Company. Financial data for business segments are as follows:
Reconciliations | |||||||||||||||||||||||||
Electric | Energy | Energy | All | and | |||||||||||||||||||||
Utility | Trading | Services | Other | Eliminations | Consolidated | ||||||||||||||||||||
|
|
|
|
|
|
||||||||||||||||||||
2000 | (Millions) | ||||||||||||||||||||||||
Operating revenues | $ | 4,129 | $ | 985 | $ | 472 | $ | 92 | $ | (81 | ) | $ | 5,597 | ||||||||||||
Depreciation and amortization | 719 | | 34 | 5 | | 758 | |||||||||||||||||||
Interest expense | 277 | | 30 | 4 | 25 | 336 | |||||||||||||||||||
Income tax expense (benefit) | 172 | 5 | (141 | ) | (18 | ) | (9 | ) | 9 | ||||||||||||||||
Net income (loss) | 411 | 10 | 109 | (35 | ) | (27 | ) | 468 | |||||||||||||||||
Total assets | 10,986 | 468 | 942 | 268 | (2 | ) | 12,662 | ||||||||||||||||||
Capital expenditures | 587 | | 100 | 62 | | 749 | |||||||||||||||||||
|
|||||||||||||||||||||||||
1999 | (Millions) | ||||||||||||||||||||||||
Operating revenues | $ | 4,047 | $ | 251 | $ | 418 | $ | 39 | $ | (27 | ) | $ | 4,728 | ||||||||||||
Depreciation and amortization | 703 | | 31 | 1 | | 735 | |||||||||||||||||||
Interest expense | 284 | | 38 | 1 | 17 | 340 | |||||||||||||||||||
Income tax expense (benefit) | 211 | 5 | (132 | ) | (12 | ) | (12 | ) | 60 | ||||||||||||||||
Net income (loss) | 434 | 8 | 84 | (23 | ) | (20 | ) | 483 | |||||||||||||||||
Total assets | 11,051 | 109 | 945 | 175 | 36 | 12,316 | |||||||||||||||||||
Capital expenditures | 638 | | 95 | 35 | | 768 | |||||||||||||||||||
|
|||||||||||||||||||||||||
1998 | (Millions) | ||||||||||||||||||||||||
Operating revenues | $ | 3,902 | $ | 42 | $ | 271 | $ | 12 | $ | (6 | ) | $ | 4,221 | ||||||||||||
Depreciation and amortization | 643 | | 18 | | | 661 | |||||||||||||||||||
Interest expense | 277 | | 33 | | 9 | 319 | |||||||||||||||||||
Income tax expense (benefit) | 260 | (4 | ) | (92 | ) | (5 | ) | (5 | ) | 154 | |||||||||||||||
Net income (loss) | 412 | (7 | ) | 55 | (6 | ) | (11 | ) | 443 | ||||||||||||||||
Total assets | 10,987 | 31 | 864 | 75 | 131 | 12,088 | |||||||||||||||||||
Capital expenditures | 548 | | 433 | 16 | | 997 | |||||||||||||||||||
70
NOTE 16 SUPPLEMENTARY QUARTERLY FINANCIAL INFORMATION (UNAUDITED)
NOTE 17 SUBSEQUENT EVENTS (UNAUDITED)
As discussed in Note 2, in October 1999, the Company entered into
a definitive merger agreement with MCN. On February 28, 2001, the
Company and MCN announced a revised merger agreement that provides
that the Company will acquire all outstanding shares of MCN for
$24.00 per share in cash or 0.715 shares of Company common stock for
each share of MCN common stock. As provided for in the original
agreement, certain allocation and proration procedures will be used
to ensure that the aggregate number of shares of MCN common stock
that will be converted into cash and the Companys common stock will
be equal to 55% and 45%, respectively, of the total number of shares
of MCN common stock outstanding immediately prior to the proposed
merger. The value of the revised transaction is approximately $4.27
billion, including the assumption of approximately $2 billion of
MCNs debt.
The revised agreement extends the expiration date of the agreement
from April 15, 2001 to December 31, 2001 to allow sufficient time to
obtain the necessary approvals as well as MCN shareholder approval of
the revised agreement. The boards of directors of DTE and MCN have
approved the revised merger agreement. DTE and MCN now estimate that
all required approvals can be obtained and the merger can be
completed within four to five months.
71
2000 Quarter Ended
Mar. 31
Jun. 30
Sep. 30
Dec. 31
(Millions, except per share amounts)
Operating Revenues
$
1,182
$
1,428
$
1,547
$
1,440
Operating Income
215
203
172
240
Net Income
117
108
104
139
Earnings Per Common Share
0.81
0.76
0.73
0.97
1999 Quarter Ended
Mar. 31
Jun. 30
Sep. 30
Dec. 31
(Millions, except per share amounts)
Operating Revenues
$
1,024
$
1,150
$
1,440
$
1,114
Operating Income
215
211
281
194
Net Income
115
110
161
97
Earnings Per Common Share
0.79
0.76
1.11
0.67
Item 9 Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.
None.
Items 10, 11, 12 and 13
Information required by Part III (Items 10, 11, 12 and 13) of this Form
10-K is incorporated by reference from the Companys definitive Proxy Statement
for its 2001 Annual Meeting of Common Shareholders to be held April 25, 2001,
which will be filed with the Securities and Exchange Commission, pursuant to
Regulation 14A, not later than 120 days after the end of the Companys fiscal
year covered by this report on Form 10-K, all of which information is hereby
incorporated by reference in, and made part of, this Form 10-K, except that the
information required by Item 10 with respect to executive officers of the
Registrant is included in Part I of this report.
72
Item 1 Business.
See the Companys Item 1 Business which is incorporated herein by this
reference.
EXECUTIVE OFFICERS OF THE REGISTRANT
PART I
Present
Position
Name
Age(a)
Present Position
Held Since
Anthony F. Earley, Jr.
51
Chairman of the Board, Chief Executive Officer,
8-1-98
President, Chief Operating Officer
Larry G. Garberding
62
Executive Vice President and Chief Financial Officer
8-1-90
Gerard M. Anderson
42
President and Chief Operating Officer DTE Energy
8-1-98
Resources
Robert J. Buckler
51
President and Chief Operating Officer DTE Energy
8-1-98
Distribution
Daniel G. Brudzynski
40
Controller
4-28-99
Michael E. Champley
52
Senior Vice President
4-1-97
Douglas R. Gipson
53
Executive Vice President and Chief Nuclear Officer
5-18-00
S. Martin Taylor
60
Senior Vice President
4-28-99
Susan M. Beale
52
Vice President and Corporate Secretary
3-27-95
Ron A. May
49
Vice President
8-1-98
David E. Meador
43
Senior Vice President and Treasurer
5-15-00
Sandra J. Miller
57
Vice President
3-30-98
Michael C. Porter
47
Vice President
9-15-97
William R. Roller
55
Vice President
4-28-97
(a)
As of December 31, 2000
Under Detroit Edison By-Laws, the officers of Detroit Edison are elected annually by the Board of Directors at a meeting held for such purpose, each to serve until the next annual meeting of directors or until their respective successors are chosen and qualified. With the exception of Messrs. Brudzynski, Meador and Porter, all of the above officers have been employed by Detroit Edison in one or more management capacities during the past five years.
Daniel G. Brudzynski was Manager, Product Development Finance and Manager, Forecasting Redesign and Implementation at Chrysler Corporation, an international automotive manufacturer, from 1995 until 1997. He joined Detroit Edison in 1997 as Assistant Controller and effective April 28, 1999 he was elected Controller and appointed Assistant Vice President.
73
Michael C. Porter was Senior Vice President and Managing Director at McCann-Erickson in Detroit from 1994 to September 1997 and Vice President of Marketing for The Stroh Brewery Company in Detroit from 1990 to 1994. Effective September 22, 1997, he was elected Vice President Corporate Communications.
Item 2 Properties.
See the Companys Item 2 Properties Detroit Edison, which is incorporated herein by this reference.
Item 3 Legal Proceedings.
See the Companys Item 3 Legal Proceedings, which is incorporated herein by this reference.
In February 2000, Ricci, et al v. Detroit Edison was filed in the U.S. Federal District Court for the Eastern District of Michigan. The complaint alleges that Detroit Edison employees formerly employed by contractors of Detroit Edison should be treated as if they are entitled to various retirement benefits under ERISA and other benefits that have been available to Detroit Edison employees. The complaint also seeks class action certification. Detroit Edison believes this matter is without merit.
In September 2000, an order was entered in Coch, et al v. Detroit Edison (Circuit Court for Wayne County, Michigan), a lawsuit involving employment-related claims of discrimination, denying plaintiffs motion for class certification. An appeal of this motion has been filed.
In February 2001, plaintiffs in Lotharp, et al v. Detroit Edison (Circuit Court for Wayne County, Michigan), an action claiming race/ethnic and gender-based discrimination in Detroit Edisons employment testing programs, withdrew their lawsuit.
Edison Development Corporation, a Company subsidiary, is an investor in Plug Power, a developer of fuel cell technology. DCT, Inc. v. Detroit Edison, et al (Circuit Court for Wayne County, Michigan) is a pending lawsuit claiming breach of a nondisclosure agreement and a letter of intent as well as misappropriation of trade secrets in connection with the evaluation and eventual investment by Plug Power in fuel cell technology. Plug Power and Edison Development are co-defendants. Discovery is underway. Detroit Edison believes all claims are without merit and is vigorously defending the action.
Item 4 Submission of Matters to a Vote of Security Holders.
Not applicable.
74
Item 5 Market for Registrants Common Equity and Related Stockholder Matters.
See the Companys Item 5 Market for Registrants Common Equity and Related Stockholder Matters, the third paragraph of which is incorporated herein by this reference. Detroit Edisons By-Laws contain this same provision with respect to the Michigan Business Corporation Act. All of Detroit Edisons Common Stock is held by the Company.
The amount of future dividends paid by Detroit Edison to the Company will
depend on Detroit Edisons earnings, financial condition and other factors,
including the effects of utility restructuring and a transition to competition,
each of which is periodically reviewed by Detroit Edisons Board of Directors.
Item 6 Selected Financial Data.
Year Ended December 31 | ||||||||||||||||||||||
|
||||||||||||||||||||||
2000 | 1999 | 1998 | 1997 | 1996 | ||||||||||||||||||
|
|
|
|
|
||||||||||||||||||
(Millions) | ||||||||||||||||||||||
Operating Revenues | $ | 4,129 | $ | 4,047 | $ | 3,902 | $ | 3,657 | $ | 3,642 | ||||||||||||
Net Income | $ | 411 | $ | 434 | $ | 418 | $ | 417 | $ | 328 | ||||||||||||
Net Income Available for Common Stock | $ | 411 | $ | 434 | $ | 412 | $ | 405 | $ | 312 | ||||||||||||
At year end: | ||||||||||||||||||||||
Total Assets | $ | 10,986 | $ | 11,051 | $ | 10,987 | $ | 10,745 | $ | 10,874 | ||||||||||||
Long-Term Debt | ||||||||||||||||||||||
Obligations (including capital leases) and Redeemable | ||||||||||||||||||||||
Preferred and Preference Stock Outstanding | $ | 3,445 | $ | 3,398 | $ | 3,588 | $ | 3,812 | $ | 4,000 |
Item 7 Managements Discussion and Analysis of Financial Condition and Results of Operations.
See the Companys and Detroit Edisons Item 7 Managements Discussion and Analysis of Financial Condition and Results of Operations, which is incorporated herein by this reference.
Item 8 Financial Statements and Supplementary Data.
See pages 28 through 71 (except for Notes 6, 8, 11 and 16 below).
75
NOTE 6 INCOME TAXES
Total income tax expense as a percent of income before tax varies from the
statutory federal income tax rate for the following reasons:
Components of income tax expense are as follows:
2000
1999
1998
Statutory income tax rate
35.0
%
35.0
%
35.0
%
Deferred Fermi 2 depreciation and return
3.5
Investment tax credit
(1.8
)
(1.6
)
(2.1
)
Depreciation
1.9
1.2
4.5
Removal costs
(4.1
)
(1.9
)
(1.7
)
Other-net
(1.5
)
(0.9
)
Effective income tax rate
29.5
%
32.7
%
38.3
%
2000
1999
1998
(Millions)
Current federal tax expense
$
245
$
282
$
280
Deferred federal tax benefit net
(62
)
(60
)
(5
)
Investment tax credits
(11
)
(11
)
(15
)
Total
$
172
$
211
$
260
Deferred income tax assets (liabilities) are comprised of the following at December 31:
2000
1999
(Millions)
Property
$
(1,199
)
$
(1,197
)
Unamortized nuclear costs
(822
)
(899
)
Property taxes
(68
)
(66
)
Investment tax credit
90
96
Reacquired debt losses
(29
)
(30
)
Contributions in aid of construction
90
73
Other
67
83
$
(1,871
)
$
(1,940
)
Deferred income tax liabilities
$
(2,293
)
$
(2,372
)
Deferred income tax assets
422
432
$
(1,871
)
$
(1,940
)
76
NOTE 8 LONG-TERM DEBT
Long-term debt outstanding at December 31 was:
2000 | 1999 | |||||||||||||
|
|
|||||||||||||
(Millions) | ||||||||||||||
Mortgage Bonds | ||||||||||||||
6.6% to 8.4% due 2001 to 2023 | $ | 1,564 | $ | 1,539 | ||||||||||
Remarketed Notes | ||||||||||||||
6.0% to 7.4% due 2028 to 2034 (a) | 410 | 410 | ||||||||||||
Tax Exempt Revenue Bonds | ||||||||||||||
Secured by Mortgage Bonds | ||||||||||||||
Installment Sales Contracts | ||||||||||||||
6.6% due 2004 to 2024 (b) | 125 | 176 | ||||||||||||
Loan Agreements | ||||||||||||||
6.1% due 2008 to 2030 (b) | 882 | 831 | ||||||||||||
Unsecured | ||||||||||||||
Installment Sales Contracts | ||||||||||||||
6.4% due 2004 | 24 | 24 | ||||||||||||
Loan Agreements | ||||||||||||||
3.9% due 2024 to 2030 (a) | 113 | 113 | ||||||||||||
QUIDS | ||||||||||||||
7.4% to 7.6% due 2026 to 2028 | 385 | 385 | ||||||||||||
Less amount due within one year | (159 | ) | (194 | ) | ||||||||||
|
|
|||||||||||||
Total Long-Term Debt | $ | 3,344 | $ | 3,284 | ||||||||||
|
|
(a) | Variable rate at December 31, 2000. | |
(b) | Weighted average interest rate at December 31, 2000. |
In the years 2001 2005, Detroit Edisons long-term debt maturities are $159, $198, $199, $49 and $239 million, respectively.
Detroit Edisons 1924 Mortgage and Deed of Trust (Mortgage), the lien of which covers a substantial portion of Detroit Edisons properties, provides for the issuance of additional General and Refunding Mortgage Bonds (Mortgage Bonds). At December 31, 2000, approximately $4.2 billion principal amount of Mortgage Bonds could have been issued on the basis of property additions, combined with an earnings test provision, assuming an interest rate of 7% on any such additional Mortgage Bonds. An additional $2.1 billion principal amount of Mortgage Bonds could have been issued on the basis of bond retirements.
Unless an event of default has occurred, and is continuing, each series of Quarterly Income Debt Securities (QUIDS) provides that interest will be paid quarterly. However, Detroit Edison also has the right to extend the interest payment period on the QUIDS for up to 20 consecutive interest payment periods. Interest would continue to accrue during the deferral period. If this right is exercised, Detroit Edison may not declare or pay dividends on, or redeem, purchase or acquire, any of its capital stock during the deferral period. Detroit Edison may redeem any series of capital stock pursuant to the terms of any sinking fund provisions during the deferral period.
77
Additionally, during any deferral period, Detroit Edison may not enter into any inter-company transactions with any affiliate of Detroit Edison, including the Company, to enable the payment of dividends on any equity securities of the Company.
At December 31, 2000, $273 million of notes and bonds were subject to periodic remarketings within one year. Remarketing agents remarket these securities at the lowest interest rate necessary to produce a par bid. In the event that a remarketing fails, Standby Note Purchase Agreements and/or Letters of Credit provide that banks will purchase the securities and, after the conclusion of all necessary proceedings, remarket the bonds. In the event the banks obligations under the Standby Note Purchase Agreements and/or Letters of Credit are not honored, then Detroit Edison would be required to purchase any bonds subject to a failed remarketing.
NOTE 11 FINANCIAL AND OTHER DERIVATIVE INSTRUMENTS
As of January 1, 2001, Detroit Edison adopted SFAS No. 133, as required. The
cumulative effect of the adoption of SFAS No. 133 is expected to be an
after-tax decrease in net income of approximately $2.6 million and an after-tax increase in other comprehensive income of
approximately $13.5 million, respectively. The adoption will
also impact assets and liabilities recorded on the balance sheet. At January
1, 2001, Detroit Edisons derivative instruments included wholesale power
contracts.
NOTE 16 SUPPLEMENTARY QUARTERLY FINANCIAL INFORMATION (UNAUDITED)
2000 Quarter Ended
Mar. 31
June 30
Sept. 30
Dec. 31
(Millions)
Operating Revenues
$
949
$
1,071
$
1,109
$
1,000
Operating Income
223
214
167
269
Net Income
97
91
76
147
1999 Quarter Ended
Mar. 31
June 30
Sept. 30
Dec. 31
(Millions)
Operating Revenues
$
911
$
1,006
$
1,211
$
919
Operating Income
224
225
286
200
Net Income
104
107
138
85
78
Item 9 Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.
None.
Items 10, 11, 12 and 13
See the Companys Items 10, 11, 12 and 13 which is incorporated herein by this reference, except for the information required by Item 10 with respect to executive officers of the Registrant which is included in Part 1 of this report. All of Detroit Edisons directors are the same as the Companys directors.
79
Annual Reports on Form 10-K for DTE Energy Company
PART IV
Item 14 Exhibits, Financial Statement Schedules and Reports on Form 8-K.
80
81
82
83
84
85
86
87
88
89
90
91
92
and The Detroit Edison Company
(a)
The following documents are filed as a part of this Annual
Report on Form 10-K.
(1)
Consolidated financial statements. See Item 8 -
Financial Statements and Supplementary Data on page 28.
(2)
Financial statement schedules. See Item 8 -
Financial Statements and Supplementary Data on page 28.
(3)
Exhibits (*Denotes management contract or
compensatory plan or arrangement required to be filed as an
exhibit to this report pursuant to Item 14 (c) of this report).
(i)
Exhibits filed herewith
Exhibit
Number
2-2
Agreement and Plan of Merger, among DTE Energy Company, MCN Energy
Group Inc. and DTE Enterprises, Inc., dated as of October 4, 1999, as
amended as of November 12, 1999, as further amended as of February
28, 2001.
4-211
Supplemental Indenture, dated as of December
1, 1989, creating the Series KKP No. 11 and BP General and
Refunding Mortgage Bonds
4-212
Supplemental Indenture, dated as of February 15, 1990
creating the 1990 Series A, B, C, D, E, and F General and
Refunding Mortgage Bonds.
4-213
Supplemental Indenture, dated as of November 30, 1992,
creating the 1992 Series E General and Refunding Mortgage
Bonds.
4-214
Supplemental Indenture, dated as of April 1, 1993, creating
the 1993 Series FP and IP General and Refunding Mortgage
Bonds.
4-215
Supplemental Indenture, dated as of April 26,
1993, creating the 1993 Series G General and Refunding
Mortgage bonds and Amendment of Article II, Section 5.
4-216
Supplemental Indenture, dated as of June 30,
1993, creating the Series AP General and Refunding Mortgage
Bonds.
4-217
Supplemental Indenture, dated as of September
15, 1993, creating the 1993 Series K General and Refunding
Mortgage Bonds.
4-218
Supplemental Indenture, dated as of June 15,
1994, creating the 1994 Series BP General and Refunding
Mortgage Bonds.
4-219
Supplemental Indenture, dated as of August 15,
1994, creating the 1994 Series C General and Refunding
Mortgage Bonds.
4-220
Supplemental Indenture, dated as of December 1,
1994, creating the Series KKP No. 15 and DP General and
Refunding Mortgage Bonds.
4-221
Supplemental Indenture, dated as of August 1,
1995, creating the 1995 Series A and DP General and Refunding
Mortgage Bonds.
10-40*
Form of Indemnification Agreement between Detroit Edison
and its officers.
11-21
DTE Energy Company Basic and Diluted Earnings
Per Share
of Common Stock.
12-28
DTE Energy Company Computation of Ratio of
Earnings to
Fixed Charges.
12-29
The Detroit Edison Company Computation of Ratio
of Earnings to Fixed Charges.
21-5
Subsidiaries of the Company and Detroit Edison.
23-14
Consent of Deloitte & Touche LLP.
99-38
Fourth Amended and Restated Credit Agreement, Dated as of
January 16, 2001 among DTE Capital Corporation, the Initial
Lenders, Citibank, N.A., as Agent, and ABN AMRO Bank N.V.,
Bank One N.A., Barclays Bank PLC, Bayerische and as Co-Agents.
99-39
Order, dated January 4, 2001, of the Michigan
Public Service Commission in U-12478.
(ii) Exhibits incorporated herein by reference.
2-1
-
Agreement and Plan of Merger, among DTE
Energy, MCN Energy Group Inc. and DTE Enterprises, Inc., dated
as of October 4, 1999 and amended as of November 12, 1999.
Exhibit 2-1 10 Form 10-K for year ended December 21, 2000.
3(a)
-
Amended and Restated Articles of Incorporation of
DTE Energy Company, dated December 13, 1995. (Exhibit 3-5 to
Form 10-Q for quarter ended September 30, 1997)
3(b)
-
Certificate of Designation of Series A Junior
Participating Preferred Stock of DTE Energy Company. Exhibit
3-6 to Form 10-Q for quarter ended September 30, 1997.)
3(c)
-
Restated Articles of Incorporation of Detroit
Edison, as filed December 10, 1991 with the State of Michigan,
Department of Commerce Corporation and Securities Bureau
(Exhibit 3-13 to Form 10-Q for quarter ended June 30, 1999.)
3(d)
-
Articles of Incorporation of DTE Enterprises, Inc.
(Exhibit 3.5 to Registration No. 333-89175.)
3(e)
-
Rights Agreement, dated as of September 23, 1997,
by and between DTE Energy Company and The Detroit Edison
Company, as Rights Agent (Exhibit 4-1 to DTE Energy Company
Current Report on Form 8-K, dated September 23, 1997.)
3(f)
-
Agreement and Plan of Exchange (Exhibit 1(2) to DTE
Energy Form 8-B filed January 2, 1996, File No. 1-11607.)
3(g)
-
Bylaws of DTE Energy Company, as amended through
September 22, 1999. (Exhibit 3-3 to Registration No.
333-89175.)
3(h)
-
Bylaws of The Detroit Edison Company, as amended
through September 22, 1999. (Exhibit 3-14 to Form 10-Q for
quarter ended September 30, 1999.)
3(i)
-
Bylaws of DTE Enterprises, Inc. (Exhibit 3.6 to
Registration No. 333-89175.)
4(a)
-
Mortgage and Deed of Trust, dated as of October 1,
1924, between Detroit Edison (File No. 1-2198) and First Chicago
Trust Company of New York as Trustee (Exhibit B-1 to
Registration No. 2-1630) and indentures supplemental thereto,
dated as of dates indicated below, and filed as exhibits to the
filings as set forth below:
September 1, 1947
Exhibit B-20 to Registration No. 2-7136
November 15, 1971
Exhibit 2-B-38 to Registration No.
2-42160
January 15, 1973
Exhibit 2-B-39 to Registration No. 2-46595
June 1, 1978
Exhibit 2-B-51 to Registration No. 2-
61643
June 30, 1982
Exhibit 4-30 to
Registration No. 2-78941
August 15, 1982
Exhibit 4-32 to Registration No. 2-
79674
April 1, 1991
Exhibit 4-15 to Form
10-K for year ended December 31, 1996
November 1, 1991
Exhibit 4-181 to Form 10-K for year
ended December 31, 1996
January 15, 1992
Exhibit 4-182 to Form 10-K for year ended
December 31, 1996
February 29, 1992
Exhibit 4-187 to Form 10-Q for quarter
ended March 31, 1998
April 15, 1992
Exhibit 4-188 to Form
10-Q for quarter ended March 31, 1998
July 15, 1992
Exhibit 4-189 to Form
10-Q for quarter ended March 31, 1998
January 1, 1993
Exhibit 4-131 to Registration No. 33-56496
March 1, 1993
Exhibit 4-191 to Form 10-Q for
quarter ended March 31, 1998
May 31, 1993
Exhibit 4-148 to Registration No. 33-
64296
March 1, 1994
Exhibit 4-163 to Registration No. 33-
53207
August 1, 1995
Exhibit 4-174 to Form 10-Q for
quarter ended September 30, 1995
August 1, 1999
Exhibit 4-204 to Form 10-Q for
quarter ended September 30, 1999
August 15, 1999
Exhibit 4-205 to Form 10-Q for
quarter ended September 30, 1999
January 1, 2000
Exhibit 4-205 to Form 10-K for year
ended December 31, 2000.
April 15, 2000
Exhibit 4-206 to Form 10-Q for the
quarter ended March 31, 2000.
August 1, 2000
Exhibit 4-210 to Form 10-Q for the
quarter ended September 30, 2000.
4(b)
-
Collateral Trust Indenture (notes), dated as of
June 30, 1993 (Exhibit 4-152 to Registration No. 33-50325).
4(c)
-
First Supplemental Note Indenture, dated as of June
30, 1993 (Exhibit 4-153 to Registration No. 33-50325).
4(d)
-
First Amendment, dated as of July 17, 2000, to the
First Supplemental Indenture, dated as of June 30, 1993, to the
Collateral Trust Indenture (Notes), dated as of June 30, 1993.
(Exhibit 4-209 to Form 10-Q for the quarter ended September 30,
2000.)
4(e)
-
Third Supplemental Note Indenture, dated as of
August 15, 1994 (Exhibit 4-169 to Form 10-Q for quarter ended
September 30, 1994).
4(f)
-
First Amendment, dated as of December 12, 1995, to
Third Supplemental Note Indenture, dated as of August 15, 1994
(Exhibit 4-12 to Registration No. 333-00023).
4(g)
-
Sixth Supplemental Note Indenture, dated as of May
1, 1998, between Detroit Edison and Bankers Trust Company, as
Trustee, creating the 7.54% Quarterly Income Debt Securities
(QUIDS), including form of QUIDS. (Exhibit 4-193 to Form 10-Q
for quarter ended June 30, 1998.)
4(h)
-
Seventh Supplemental Note Indenture, dated as of
October 15, 1998, between Detroit Edison and Bankers Trust
Company, as Trustee, creating the 7.375% QUIDS, including form
of QUIDS. (Exhibit 4-198 to Form 10-K for year ended December
31, 1998.)
4(i)
-
Eighth Supplemental Indenture, dated as of April
15, 2000, appointing Bank One Trust Company of New York as
Trustee under the Detroit Edison Trust Indenture (Notes), dated
as of June 30, 1993 (Exhibit 4-207 to Form 10-Q for quarter
ended March 31, 2000.
4(j)
-
$60,000,000 Support Agreement dated as of January
21, 1998 between DTE Energy Company and DTE Capital Corporation.
(Exhibit 4-183 to Form 10-K for year ended December 31, 1997.)
4(k)
-
$100,000,000 Support Agreement, dated as of June
16, 1998, between DTE Energy Company and DTE Capital
Corporation. (Exhibit 4-194 to Form 10-Q for quarter ended June
30, 1998.)
4(l)
-
$300,000,000 Support Agreement, dated as of November
18, 1998, between DTE Energy and DTE Capital Corporation.
(Exhibit 4-199 to Form 10-K for year ended December 31, 1998.)
4(m)
-
$400,000,000 Support Agreement, dated as of January
19, 1999, between DTE Energy Company and DTE Capital
Corporation. (Exhibit 4-201 to Form 10-K for year ended
December 31, 1998.)
4(n)
-
$40,000,000 Support Agreement, dated as of February
24, 1999 between DTE Energy Company and DTE Capital Corporation.
(Exhibit 4-202 to Form 10-Q for quarter ended March 31, 1999.)
4(o)
-
$50,000,000 Support Agreement, dated as of June 10,
1999 between DTE Energy Company and DTE Capital Corporation.
(Exhibit 4-203 to Form 10-Q for quarter ended June 30, 1999.)
4(p)
-
Indenture, dated as of June 15, 1998, between DTE
Capital Corporation and The Bank of New York, as Trustee.
(Exhibit 4-196 to Form 10-Q for quarter ended June 30, 1998.)
4(q)
-
First Supplemental Indenture, dated as of June 15,
1998, between DTE Capital Corporation and The Bank of New York,
as Trustee, creating the $100,000,000 Remarketed Notes, Series A
due 2038, including form of Note. (Exhibit 4-197 to Form 10-Q
for quarter ended June 30, 1998.)
4(r)
-
Second Supplemental Indenture, dated as of November
1, 1998, between DTE Capital Corporation and The Bank of New
York, as Trustee, creating the $300,000,000 Remarketed Notes,
1998 Series B, including form of Note. (Exhibit 4-200 to Form
10-K for year ended December 31, 1998.)
*10(a)
-
Certain arrangements pertaining to the employment of Michael
C. Porter. (Exhibit 10-8* to Form 10-Q for Quarter ended
September 30, 1997.)
*10(b)
-
Form of Change-in-Control Severance Agreement, dated as of
October 1, 1997, between DTE Energy Company and its officers
(Exhibit 10-9* to Form 10-Q for quarter ended September 30,
1997.)
*10(c)
-
Form of 1995 Indemnification Agreement between the Company
and its directors and officers (Exhibit 3L (10-1) to DTE Energy
Company Form 8-B dated January 2, 1996).
99(b)
-
Belle River Transmission Ownership and Operating
Agreement between Detroit Edison and Michigan Public Power
Agency, dated as of December 1, 1982 (Exhibit 28-6 to
Registration No. 2-81501).
99(c)
-
1988 Amended and Restated Loan Agreement, dated as
of October 4, 1988, between Renaissance Energy Company (an
unaffiliated company) (Renaissance) and Detroit Edison
(Exhibit 99-6 to Registration No. 33-50325).
99(d)
-
First Amendment to 1988 Amended and Restated Loan
Agreement, dated as of February 1, 1990, between Detroit Edison
and Renaissance (Exhibit 99-7 to Registration No. 33-50325).
99(e)
-
Second Amendment to 1988 Amended and Restated Loan
Agreement, dated as of September 1, 1993, between Detroit Edison
and Renaissance (Exhibit 99-8 to Registration No. 33-50325).
99(f)
-
Third Amendment, dated as of August 28, 1997, to
1988 Amended and Restated Loan Agreement between Detroit Edison
and Renaissance. (Exhibit 99-22 to Form 10-Q for quarter ended
September 30, 1997.)
99(g)
-
$200,000,000 364-Day Credit Agreement, dated as of
September 1, 1993, among Detroit Edison, Renaissance and
Barclays Bank PLC, New York Branch, as Agent (Exhibit 99-12 to
Registration No. 33-50325).
99(h)
-
First Amendment, dated as of August 31, 1994, to
$200,000,000 364-Day Credit Agreement, dated September 1, 1993,
among The Detroit Edison Company, Renaissance Energy Company,
the Banks party thereto and Barclays Bank, PLC, New York Branch,
as Agent (Exhibit 99-19 to Form 10-Q for quarter ended September
30, 1994).
99(i)
-
Third Amendment, dated as of March 8, 1996, to
$200,000,000 364-Day Credit Agreement, dated September 1, 1993,
as amended, among Detroit Edison, Renaissance, the Banks party
thereto and Barclays Bank, PLC, New York Branch, as Agent
(Exhibit 99-11 to Form 10-Q for quarter ended March 31, 1996).
99(j)
-
Fourth Amendment, dated as of August 29, 1996, to
$200,000,000 364-Day Credit Agreement as of September 1, 1990,
as amended, among Detroit Edison, Renaissance, the Banks party
thereto and Barclays Bank, PLC, New York Branch, as Agent
(Exhibit 99-13 to Form 10-Q for quarter ended September 30,
1996).
99(k)
-
Fifth Amendment, dated as of September 1, 1997, to
$200,000,000 Multi-Year Credit Agreement, dated as of September
1, 1993, as amended, among Detroit Edison, Renaissance, the
Banks Party thereto and Barclays Bank PLC, New York Branch, as
Agent. (Exhibit 99-24 to Form 10-Q for quarter ended September
30, 1997.)
99(l)
-
Seventh Amendment, dated as of August 26, 1999, to
$200,000,000 364-Day Credit Agreement, dated as of September 1,
1993, as amended among The Detroit Edison Company, Renaissance
Energy Company, the Banks parties thereto and Barclays Bank PLC,
New York branch as Agent. (Exhibit 99-30 to Form 10-Q for
quarter ended September 30, 1999.)
99(m)
-
Eighth Amendment, dated as of August 24, 2000, to the
$200,000,000 364-Day Credit Agreement, dated as of September 1,
1993, as amended, among Detroit Edison, Renaissance, the Banks
party thereto and Barclays Bank PLC, New York Branch, as agent.
(Exhibit 99-36 to Form 10-Q for the quarter ended September 30,
2000.)
99(n)
-
$200,000,000 Three-Year Credit Agreement, dated
September 1, 1993, among Detroit Edison, Renaissance and
Barclays Bank, PLC, New York Branch, as Agent (Exhibit 99-13 to
Registration No. 33-50325).
99(o)
-
First Amendment, dated as of September 1, 1994, to
$200,000,000 Three-Year Credit Agreement, dated as of September
1, 1993, among The Detroit Edison Company, Renaissance Energy
Company, the Banks party thereto and Barclays Bank, PLC, New
York Branch, as Agent (Exhibit 99-20 to Form 10-Q for quarter
ended September 30, 1994).
99(p)
-
Third Amendment, dated as of March 8, 1996, to
$200,000,000 Three-Year Credit Agreement, dated September 1,
1993, as amended among Detroit Edison, Renaissance, the Banks
party thereto and Barclays Bank, PLC, New York Branch, as Agent
(Exhibit 99-12 to Form 10-Q for quarter ended March 31, 1996).
99(q)
-
Fourth Amendment, dated as of September 1, 1996,
to $200,000,000 Multi-Year (formerly Three-Year) Credit
Agreement, dated as of September 1, 1993, as amended among
Detroit Edison, Renaissance, the Banks party thereto and
Barclays Bank, PLC, New York Branch, as Agent (Exhibit 99-14 to
Form 10-Q for quarter ended September 30, 1996).
99(r)
-
Fifth Amendment, dated as of August 28, 1997, to
$200,000,000 364-Day Credit Agreement, dated as of September 1,
1990, as amended, among Detroit Edison, Renaissance, the Banks
Party thereto and Barclays Bank PLC, New York Branch, as Agent.
(Exhibit 99-25 to Form 10-Q for quarter ended September 30,
1997.)
99(s)
-
Sixth Amendment, dated as of August 27, 1998, to
$200,000,000 364-Day Credit Agreement dated as of September 1,
1990, as amended, among Detroit Edison, Renaissance, the Banks
party thereto and Barclays Bank PLC, New York Branch, as agent.
(Exhibit 99-32 to Registration No. 333-65765.)
99(t)
-
1988 Amended and Restated Nuclear Fuel Heat
Purchase Contract, dated October 4, 1988, between Detroit Edison
and Renaissance (Exhibit 99-9 to Registration No. 33-50325).
99(u)
-
First Amendment to 1988 Amended and Restated
Nuclear Fuel Heat Purchase Contract, dated as of February 1,
1990, between Detroit Edison and Renaissance (Exhibit 99-10 to
Registration No. 33-50325).
99(v)
-
Eighth Amendment, dated as of August 26, 1999 to
1988 Amended and Restated Nuclear Fuel heat Purchase Contract
between Detroit Edison and Renaissance Energy Company. (Exhibit
99-31 to Form 10-Q for quarter ended September 30, 1999.)
99(w)
-
U.S. $160,000,000 Standby Note Purchase Credit
Facility, dated as of October 26, 1999, among Detroit Edison,
the Banks signatory thereto, Barclays Bank PLC, as
Administrative Agent and Barclays Capital Inc., Lehman Brothers
Inc. and Bank One Capital Markets, Inc., as Remarketing Agents.
(Exhibit 99-29 to Form 10-Q for quarter ended September 30,
1999.)
99(x)
Amendment, dated October 24, 2000, to the Standby
Note Purchase Credit Facility, dated as of October 26, 1999,
among Detroit Edison, the banks party thereto, and Barclays
Bank PLC, as Administrative Agent. (Exhibit 24-208 to Form 10-Q
for the quarter ended September 30, 2000.)
99(y)
-
Standby Note Purchase Credit Facility, dated as of
September 12, 1997, among The Detroit Edison Company and the
Banks Signatory thereto and The Chase Manhattan Bank, as
Administrative Agent, and Citicorp Securities, Inc., Lehman
Brokers, Inc., as Remarketing Agents and Chase Securities, Inc.
as Arranger. (Exhibit 999-26 to Form 10-Q for quarter ended
September 30, 1997.)
99(z)
-
Master Trust Agreement (Master Trust), dated as
of June 30, 1994, between Detroit Edison and Fidelity Management
Trust Company relating to the Savings & Investment Plans
(Exhibit 4-167 to Form 10-Q for quarter ended June 30, 1994).
99(aa)
-
First Amendment, effective as of February 1, 1995, to Master
Trust (Exhibit 4-10 to Registration No. 333-00023).
99(bb)
-
Second Amendment, effective as of February 1, 1995 to Master
Trust (Exhibit 4-11 to Registration No. 333-00023).
99(cc)
-
Third Amendment, effective January 1, 1996, to Master Trust
(Exhibit 4-12 to Registration No. 333-00023).
99(dd)
-
Fourth Amendment to Trust Agreement Between Fidelity
Management Trust Company and The Detroit Edison Company (July
1996). Exhibit 4-185 to Form 10-K for year ended December 31,
1997.)
99(ee)
-
Fifth Amendment to Trust Agreement Between Fidelity
Management Trust Company and The Detroit Edison Company
(December 1997). Exhibit 4-186 to Form 10-K for the year ended
December 31, 1997.)
99(ff)
-
The Detroit Edison Company Irrevocable Grantor Trust for The
Detroit Edison Company Savings Reparation Plan (Exhibit 99-1 to
Form 10-K for year ended December 31, 1996).
99(gg)
-
The Detroit Edison Company Irrevocable Grantor Trust for The
Detroit Edison Company Retirement Reparation Plan (Exhibit 99-2
to Form 10-K for year ended December 31,1996).
99(hh)
-
The Detroit Edison Company Irrevocable Grantor Trust for The
Detroit Edison Company Management Supplemental Benefit Plan
(Exhibit 99-3 to Form 10-K for year ended December 31, 1996).
99(ii)
-
The Detroit Edison Company Irrevocable Grantor Trust for The
Detroit Edison Company Benefit Equalization Plan (Exhibit 99-4
to Form 10-K for year ended December 31, 1996).
99(jj)
-
The Detroit Edison Company Irrevocable Grantor Trust for The
Detroit Edison Company Plan for Deferring the Payment of
Directors Fees (Exhibit 99-5 to Form 10-K for year ended
December 31, 1996.
99(kk)
-
The Detroit Edison Company Irrevocable Grantor Trust for The
DTE Energy Company Retirement Plan for Non-Employee Directors
(Exhibit 99-6 to Form 10-K for year ended December 31, 1996).
99(ll)
-
DTE Energy Company Irrevocable Grantor Trust
for The DTE Energy Company Plan for Deferring the Payment of
Directors Fees (Exhibit 99-7 to Form 10-K for year ended
December 31, 1996).
99(mm)
-
Order, dated November 2, 2000, of the Michigan Public Service
Commission in U-12478.)
(b)
DTE and Detroit Edison have filed:
(i)
Report on Form 8-K, dated November 7, 2000, discussing the
Michigan Public Service Commissions November 2, 2000 Securitization
Order;
(ii)
Report on Form 8-K, dated November 22, 2000, discussing
Detroit Edisons Petition for Rehearing with respect to the November
2, 2000 Michigan Public Service Commission Order; and
(iii)
Report on Form 8-K, dated December 7, 2000, reporting that
Detroit Edison had transferred its transmission assets to a
wholly owned subsidiary of Detroit Edison.
(c)
*Denotes management contract or compensatory plan or arrangement
required to be entered as an exhibit to this report.
Additions
Balance
Balance
at Beginning
Charged to
Charged to
at End
of
Costs and
Other
of
Description
Period
Expenses
Accounts
Deductions
Period
(Thousands)
Allowance for
uncollectible accounts
(shown as deduction
from accounts receivable
in balance sheet)
YEAR 2000
$
21,000
$
18,219
$
3,677
(a)
$
(21,896
)(b)
$
21,000
1999
$
20,000
$
21,363
$
3,357
(a)
$
(23,720
)(b)
$
21,000
1998
$
20,000
$
23,216
$
2,789
(a)
$
(26,005
)(b)
$
20,000
Fermi 2 refueling outage accrual
(included in other current
liabilities in the balance
sheet)
YEAR 2000
$
18,221
$
14,002
$
$
(22,434
)(c)
$
9,789
1999
$
3,156
$
15,065
$
$
$
18,221
1998
$
15,690
$
15,468
$
$
(28,002
)(c)
$
3,156
(a) | Collection of accounts previously written off. | |
(b) | Uncollectible accounts written off. | |
(c) | Actual amounts paid during refueling outage. |
93
Additions
Balance
Balance
at Beginning
Charged to
Charged to
at End
of
Costs and
Other
of
Description
Period
Expenses
Accounts
Deductions
Period
(Thousands)
Allowance for
uncollectible accounts
(shown as deduction
from accounts receivable
in balance sheet)
YEAR 2000
$
20,000
$
18,219
$
3,677
(a)
$
(21,896
)(b)
$
20,000
1999
$
20,000
$
20,363
$
3,357
(a)
$
(23,720
)(b)
$
20,000
1998
$
20,000
$
23,216
$
2,789
(a)
$
(26,005
)(b)
$
20,000
Fermi 2 refueling outage accrual
(included in other current
liabilities in the balance sheet)
YEAR 2000
$
18,221
$
14,002
$
$
(22,434
)(c)
$
9,789
1999
$
3,156
$
15,065
$
$
$
18,221
1998
$
15,690
$
15,468
$
$
(28,002
)(c)
$
3,156
(a) | Collection of accounts previously written off. | |
(b) | Uncollectible accounts written off. | |
(c) | Actual amounts paid during the refueling outage. |
94
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized.
Date: March 1, 2001
95
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized.
Date: March 1, 2001
96
DTE ENERGY COMPANY
(Registrant)
/s/ ANTHONY F. EARLEY, JR.
Anthony F. Earley, Jr.
Chairman of the Board,
Chief Executive Officer,
President and Chief Operating Officer
By /s/ ANTHONY F. EARLEY, JR.
By Anthony F. Earley, Jr.
Chairman of the Board,
Chief Executive Officer,
President and Chief Operating Officer
By /s/ LARRY G. GARBERDING
Larry G. Garberding
Executive Vice President,
Chief Financial Officer and Director
By /s/ DAVID E. MEADOR
David E. Meador
Senior Vice President and Treasurer
By /s/ TERENCE E. ADDERLEY
Terence E. Adderley, Director
By /s/ LILLIAN BAUDER
Lillian Bauder, Director
By /s/ DAVID BING
David Bing, Director
By /s/ WILLIAM C. BROOKS
William C. Brooks, Director
By /s/ ALLAN D. GILMOUR
Allan D. Gilmour, Director
By /s/ THEODORE S. LEIPPRANDT
Theodore S. Leipprandt, Director
By /s/JOHN E. LOBBIA
John E. Lobbia, Director
By /s/ EUGENE A. MILLER
Eugene A. Miller, Director
By /s/ CHARLES W. PRYOR, JR.
By Charles W. Pryor, Jr., Director
THE DETROIT EDISON COMPANY
(Registrant)
By /s/ ANTHONY F. EARLEY, JR.
Anthony F. Earley, Jr.
Chairman of the Board,
Chief Executive Officer,
President and Chief Operating Officer
Chairman of the Board,
Chief Executive Officer,
President and Chief Operating Officer
By /s/ LARRY G. GARBERDING
Larry G. Garberding
Executive Vice President,
Chief Financial Officer and Director
Controller
Exhibit Index
Exhibit
Number
2-2
Agreement and Plan of Merger, among DTE Energy Company, MCN Energy
Group Inc. and DTE Enterprises, Inc., dated as of October 4, 1999, as
amended as of November 12, 1999, as further amended as of February
28, 2001.
4-211
Supplemental Indenture, dated as of December
1, 1989, creating the Series KKP No. 11 and BP General and
Refunding Mortgage Bonds
4-212
Supplemental Indenture, dated as of February 15, 1990
creating the 1990 Series A, B, C, D, E, and F General and
Refunding Mortgage Bonds.
4-213
Supplemental Indenture, dated as of November 30, 1992,
creating the 1992 Series E General and Refunding Mortgage
Bonds.
4-214
Supplemental Indenture, dated as of April 1, 1993, creating
the 1993 Series FP and IP General and Refunding Mortgage
Bonds.
4-215
Supplemental Indenture, dated as of April 26,
1993, creating the 1993 Series G General and Refunding
Mortgage bonds and Amendment of Article II, Section 5.
4-216
Supplemental Indenture, dated as of June 30,
1993, creating the Series AP General and Refunding Mortgage
Bonds.
4-217
Supplemental Indenture, dated as of September
15, 1993, creating the 1993 Series K General and Refunding
Mortgage Bonds.
4-218
Supplemental Indenture, dated as of June 15,
1994, creating the 1994 Series BP General and Refunding
Mortgage Bonds.
4-219
Supplemental Indenture, dated as of August 15,
1994, creating the 1994 Series C General and Refunding
Mortgage Bonds.
4-220
Supplemental Indenture, dated as of December 1,
1994, creating the Series KKP No. 15 and DP General and
Refunding Mortgage Bonds.
4-221
Supplemental Indenture, dated as of August 1,
1995, creating the 1995 Series A and DP General and Refunding
Mortgage Bonds.
10-40*
Form of Indemnification Agreement between Detroit Edison
and its officers.
11-21
DTE Energy Company Basic and Diluted Earnings
Per Share
of Common Stock.
12-28
DTE Energy Company Computation of Ratio of
Earnings to
Fixed Charges.
12-29
The Detroit Edison Company Computation of Ratio
of Earnings to Fixed Charges.
21-5
Subsidiaries of the Company and Detroit Edison.
23-14
Consent of Deloitte & Touche LLP.
99-38
Fourth Amended and Restated Credit Agreement, Dated as of
January 16, 2001 among DTE Capital Corporation, the Initial
Lenders, Citibank, N.A., as Agent, and ABN AMRO Bank N.V.,
Bank One N.A., Barclays Bank PLC, Bayerische and as Co-Agents.
99-39
Order, dated January 4, 2001, of the Michigan
Public Service Commission in U-12478.
*
Denotes management contract or compensatory plan or arrangement
required to be entered as an exhibit to this report.
EXHIBIT 2.2
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
Among
DTE ENERGY COMPANY
MCN ENERGY GROUP INC.
and
DTE ENTERPRISES, INC.
Dated as of October 4, 1999
As amended as of November 12, 1999
As further amended as of February 28, 2001
Table of Contents
Page RECITALS ................................................................. 1 ARTICLE I The Merger; Closing; Effective Time ......................... 1 1.1. The Merger .................................................. 1 1.2. Closing ..................................................... 2 1.3. Effective Time .............................................. 2 ARTICLE II Articles of Incorporation and By-Laws of the Surviving Corporation ................................ 2 2.1. The Articles of Incorporation ............................... 2 2.2. The By-Laws ................................................. 2 ARTICLE III Officers and Directors of the Surviving Corporation ................................................. 3 3.1. Directors ................................................... 3 3.2. Officers .................................................... 3 ARTICLE IV Effect of the Merger on Capital Stock; Election Procedures ......................................... 3 4.1. Effect on Capital Stock ..................................... 3 (a) Merger Consideration .................................. 3 (b) Cancellation of Shares ................................ 4 (c) Merger Sub ............................................ 4 4.2. Allocation of Merger Consideration; Election Procedures; Exchange Procedures ............................. 4 (a) Allocation ............................................ 4 (b) Election Procedures ................................... 4 (c) Exchange and Payment Procedures ....................... 8 (d) Distributions with Respect to Unexchanged Shares; Voting ......................... 9 (e) Transfers ............................................. 9 (f) Fractional Shares ..................................... 9 (g) Termination of Exchange Fund .......................... 10 (h) Lost, Stolen or Destroyed Certificates .......................................... 10 (i) Affiliates ............................................ 11 4.3. Dissenters' Rights .......................................... 11 4.4. Adjustments to Prevent Dilution ............................. 11 4.5. Tax Opinion Adjustment ...................................... 12 4.6. Uncertificated Shares of Parent Common Stock ................................................ 13 |
Page ARTICLE V Representations and Warranties .............................. 13 5.1. Representations and Warranties of the Company, Parent and Merger Sub ....................................... 13 (a) Organization, Good Standing and Qualification ......................................... 13 (b) Capital Structure ..................................... 14 (c) Corporate Authority; Approval and Fairness .............................................. 17 (d) Governmental Filings; No Violations ................... 18 (e) Reports; Financial Statements ......................... 20 (f) Absence of Certain Changes ............................ 21 (g) Litigation and Liabilities ............................ 21 (h) Employee Benefits ..................................... 22 (i) Compliance with Laws; Permits ......................... 24 (j) Takeover Statutes ..................................... 25 (k) Environmental Matters ................................. 26 (m) Labor Matters ......................................... 28 (n) Intellectual Property ................................. 28 (o) Insurance ............................................. 29 (p) Rights Plan ........................................... 29 (q) Brokers and Finders ................................... 29 (r) Year 2000 ............................................. 30 (s) Regulatory Proceedings ................................ 30 (t) FERC Jurisdiction ..................................... 30 (u) Regulation as a Utility ............................... 31 (v) Ownership of Shares ................................... 31 (w) Schedule 5.1(w) ....................................... 31 ARTICLE VI Covenants ................................................... 31 6.1. Interim Operations .......................................... 31 6.1.A. Supplemental Interim Operations Covenants ................................................... 36 6.2. Acquisition Proposals ....................................... 37 6.3. Information Supplied ........................................ 39 6.4. Shareholders Meetings ....................................... 40 6.4.A. Second Shareholders Meeting ................................. 40 6.5. Filings; Other Actions; Notification ........................ 40 6.6. Access ...................................................... 42 6.7. Affiliates .................................................. 43 6.7.A. Affiliates .................................................. 44 6.8. Stock Exchange Listing and De-listing ....................... 44 6.9. Publicity ................................................... 44 6.10. Benefits .................................................... 45 (a) Stock Options ......................................... 45 (b) Employee Benefits ..................................... 46 |
Page (c) Election to Parent's Board of Directors; Management Executive Committee ............................................. 47 (d) Employees ............................................. 47 6.11. Expenses .................................................... 48 6.12. Indemnification; Directors' and Officers' Insurance ................................................... 48 6.13. Takeover Statutes ........................................... 50 6.14. Dividends ................................................... 50 6.15. Rate Matters ................................................ 50 6.16. Taxation .................................................... 51 6.17. Transition Matters .......................................... 51 6.18. Community Involvement ....................................... 52 6.19. 1935 Act and Power Act ...................................... 52 6.20. Feline Prides ............................................... 53 ARTICLE VII Conditions .................................................. 53 7.1. Conditions to Each Party's Obligation to Effect the Merger ........................................ 53 (a) Shareholder Approval .................................. 53 (b) NYSE Listing .......................................... 53 (c) Regulatory Consents ................................... 53 (d) Litigation ............................................ 54 (e) S-4 ................................................... 54 (f) Blue Sky Approvals .................................... 54 (g) Certain Transactions .................................. 54 7.2. Conditions to Obligations of Parent and Merger Sub .............................................. 54 (a) Performance of Obligations of the Company ........................................... 54 (b) Accountants Letter .................................... 55 (c) Affiliates Letters .................................... 55 (d) Tax Opinion ........................................... 55 (e) Governmental Consents ................................. 55 7.3. Conditions to Obligation of the Company ..................... 55 (a) Performance of Obligations of Parent and Merger Sub ................................. 56 (b) Accountants Letter .................................... 56 (c) Tax Opinion ........................................... 56 ARTICLE VIII Termination ................................................. 56 8.1. Termination by Mutual Consent ............................... 56 8.2. Termination by Either Parent or the Company ..................................................... 56 8.3. Termination by the Company .................................. 57 8.4. Termination by Parent ....................................... 57 8.5. Effect of Termination and Abandonment ....................... 58 |
Page ARTICLE IX Miscellaneous and General ................................... 59 9.1. Survival .................................................... 59 9.2. Modification or Amendment ................................... 59 9.3. Waiver of Conditions ........................................ 59 9.4. Counterparts ................................................ 59 9.5. GOVERNING LAW AND VENUE; WAIVER OF JURY TRIAL ............................................... 59 9.6. Notices ..................................................... 61 9.7. Entire Agreement ............................................ 61 9.8. No Third Party Beneficiaries ................................ 62 9.9. Obligations of Parent and of the Company .................... 62 9.10. Severability ................................................ 62 9.11. Interpretation .............................................. 62 9.12. Assignment .................................................. 62 |
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (hereinafter called this "Agreement"), dated as of October 4, 1999 and as amended as of November 12, 1999 and as further amended as of February 28, 2001 (the "Second Amendment Date"), among DTE Energy Company, a Michigan corporation ("Parent"), MCN Energy Group Inc., a Michigan corporation (the "Company"), and DTE Enterprises, Inc., a Michigan corporation and wholly owned subsidiary of Parent ("Merger Sub," the Company and Merger Sub sometimes being hereinafter collectively referred to as the "Constituent Corporations").
RECITALS
WHEREAS, the respective boards of directors of each of Parent, Merger Sub and the Company have approved the merger of the Company with and into Merger Sub (the "Merger") and approved the Merger upon the terms and subject to the conditions set forth in this Agreement;
WHEREAS, it is intended that, for federal income tax purposes, the Merger shall qualify as a reorganization under the provisions of Section 368(a) of the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder (the "Code");
WHEREAS, the Company, Parent and Merger Sub desire to make certain representations, warranties, covenants and agreements in connection with this Agreement.
NOW, THEREFORE, in consideration of the premises, and of the representations, warranties, covenants and agreements contained herein, the parties hereto agree as follows:
ARTICLE I
The Merger; Closing; Effective Time
1.1. The Merger. Upon the terms and subject to the conditions set forth in this Agreement, at the Effective Time (as defined in Section 1.3) the Company shall be merged with and into Merger Sub and the separate corporate existence of the Company shall thereupon cease. Merger Sub shall be the surviving corporation in the Merger (sometimes hereinafter referred to as the "Surviving Corporation"), and the separate corporate existence of Merger Sub with all its
rights, privileges, immunities, powers and franchises shall continue unaffected by the Merger, except as set forth in Article III. The Merger shall have the effects specified in the Michigan Business Corporation Act, as amended (the "MBCA").
1.2. Closing. The closing of the Merger (the "Closing") shall take place (i) at the offices of Sullivan & Cromwell, 125 Broad Street, New York, New York at 9:00 A.M. on the fifth business day after the last to be fulfilled or waived of the conditions set forth in Article VII (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions) shall be satisfied or waived in accordance with this Agreement or (ii) at such other place and time and/or on such other date as the Company and Parent may agree in writing (the "Closing Date").
1.3. Effective Time. As soon as practicable following the Closing, the Company and Parent will cause a Certificate of Merger (the "Michigan Certificate of Merger") to be executed and filed with the Department of Commerce of the State of Michigan as provided in Section 450.1707 of the MBCA. The Merger shall become effective at the time when the Michigan Certificate of Merger has been duly endorsed by the Department of Commerce of the State of Michigan (the "Effective Time").
ARTICLE II
Articles of Incorporation and By-Laws
of the Surviving Corporation
2.1. The Articles of Incorporation. The articles of incorporation of the Surviving Corporation shall be the articles of incorporation of Merger Sub as in effect immediately prior to the Effective Time (the "Articles"), until duly amended as provided therein or by applicable law.
2.2. The By-Laws. The by-laws of Merger Sub in effect at the Effective Time shall be the by-laws of the Surviving Corporation (the "By-Laws"), until thereafter amended as provided therein or by applicable law.
ARTICLE III
Officers and Directors
of the Surviving Corporation
3.1. Directors. The directors of Merger Sub at the Effective Time shall, from and after the Effective Time, be the directors of the Surviving Corporation until their successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Articles and the By-Laws.
3.2. Officers. The officers of the Company at the Effective Time shall, from and after the Effective Time, be the officers of the Surviving Corporation until their successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Articles and the By-Laws.
ARTICLE IV
Effect of the Merger on Capital Stock;
Election Procedures
4.1. Effect on Capital Stock. At the Effective Time, as a result of the Merger and without any action on the part of the holder of any capital stock of the Company:
(a) Merger Consideration. Subject to the allocation and election procedures in Section 4.2 and subject to Section 4.5, each share of the common stock, par value $0.01 per share, of the Company (the "Common Stock"), including the associated right to purchase Series A Junior Participating Preferred Stock (each a "Right" and together with the Common Stock, a "Share" and, collectively, the "Shares") issued pursuant to the Rights Agreement, dated as of December 20, 1989, as amended by an amendment dated as of July 23, 1997, by and between the Company and First Chicago Trust Company of New York, as Rights Agent, (the "Rights Agreement"), issued and outstanding immediately prior to the Effective Time (other than Shares owned by Parent or Shares that are owned by the Company or any direct or indirect Subsidiary of the Company and in each case not held on behalf of third parties (each, an "Excluded Share" and collectively, "Excluded Shares")) shall be converted into the right to receive either (i) $24.00 in cash (the "Cash Consideration") or (ii) .715 shares of common stock, without par value, of Parent (the "Parent Common Stock") (the "Stock Consideration" and, together with the Cash Consideration, the "Merger Consideration"). All references in this
agreement to Parent Common Stock to be issued pursuant to the Merger shall be
deemed to include the corresponding rights ("Parent Rights") to purchase Series
A Junior Participating Preferred Stock of Parent pursuant to the Parent Rights
Agreement (as defined in Section 5.1(b)(ii)), except where the context otherwise
requires. At the Effective Time, all Shares shall no longer be outstanding and
shall be canceled and retired and shall cease to exist, and each certificate (a
"Certificate") representing any of such Shares (other than Excluded Shares)
shall thereafter represent only the right to receive the Merger Consideration
and the right, if any, to receive pursuant to Section 4.2(f) cash in lieu of
fractional shares into which such Shares have been converted pursuant to this
Section 4.1(a) and any dividends or other distributions pursuant to Section
4.2(d).
(b) Cancellation of Shares. Each Excluded Share shall, by virtue of the Merger and without any action on the part of the holder thereof, cease to be outstanding, shall be canceled and retired without payment of any consideration therefor and shall cease to exist.
(c) Merger Sub. At the Effective Time, each share of common stock of Merger Sub issued and outstanding immediately prior to the Effective Time shall remain outstanding and each certificate therefor shall continue to evidence one share of common stock of the Surviving Corporation.
4.2. Allocation of Merger Consideration; Election Procedures; Exchange Procedures.
(a) Allocation. Subject to Section 4.5, notwithstanding anything in this Agreement to the contrary, the number of Shares (the "Cash Election Number") to be converted into the right to receive Cash Consideration in the Merger shall be equal to 55 percent of the number of Shares issued and outstanding immediately prior to the Effective Time of the Merger (not including any Excluded Shares). Subject to Section 4.5, the number of Shares to be converted into the right to receive Stock Consideration in the Merger (the "Stock Election Number") shall be equal to the number of Shares issued and outstanding immediately prior to the Effective Time of the Merger (not including any Excluded Shares) less the Cash Election Number.
(b) Election Procedures.
(i) As of the Effective Time, Parent shall deposit, or shall cause to be deposited, with an exchange agent selected by Parent, with the Company's prior approval,
which shall not be unreasonably withheld (the "Exchange Agent"), for the benefit of the holders of Shares, (A) certificates representing the shares of Parent Common Stock, (B) cash and (C) any dividends or other distributions with respect to the Parent Common Stock to be issued or paid pursuant to Sections 4.1 and 4.2(d) in exchange for outstanding Shares upon due surrender of the Certificates pursuant to the provisions of this Article IV (such cash and certificates for shares of Parent Common Stock, together with the amount of any dividends or other distributions payable with respect thereto, being hereinafter referred to as the "Exchange Fund").
(ii) Subject to allocation and proration in accordance with the
provisions of this Section 4.2 and Section 4.5, if appropriate, each record
holder of Shares (other than Excluded Shares) issued and outstanding immediately
prior to the Election Deadline (as defined below) shall be entitled (A) to elect
to receive in respect of each such Share (x) Cash Consideration (a "Cash
Election") or (y) Stock Consideration (a "Stock Election") or (B) to indicate
that such record holder has no preference as to the receipt of Cash
Consideration or Stock Consideration for such Shares (a "Non-Election"). Shares
in respect of which a Non-Election is made (including shares in respect of which
such an election is deemed to have been made pursuant to this Section 4.2 and
Section 4.3 (collectively, "Non-Election Shares")) shall be deemed by Parent, in
its sole and absolute discretion, subject to Section 4.2(a), to be, in whole or
in part, Shares in respect of which Cash Elections or Stock Elections have been
made.
(iii) Elections pursuant to Section 4.2(b)(ii) shall be made on a form with such other provisions to be reasonably agreed upon by the Company and Parent (a "Form of Election") to be provided by the Exchange Agent for that purpose to holders of record of Shares (other than holders of Excluded Shares), together with appropriate transmittal materials, at a time approximately one month prior to the anticipated Closing Date (as defined in Section 1.2) or on such other date as the Company and Parent shall mutually agree. Elections shall be made by mailing to the Exchange Agent a duly completed Form of Election. To be effective, a Form of Election must be (x) properly completed, signed and submitted to the Exchange Agent at its designated office, by 9:00 a.m., on the Closing Date (which date shall be publicly announced by Parent as soon as practicable but in no event less than five trading days prior to the Closing Date) or such other date as the Company and Parent shall mutually agree (the "Election Deadline") and (y) accompanied by the
Certificate(s) representing the Shares as to which the election is being made
(or by an appropriate guarantee of delivery of such Certificate(s) by a
commercial bank or trust company in the United States or a member of a
registered national security exchange or of the National Association of
Securities Dealers, Inc., provided that such Certificates are in fact delivered
to the Exchange Agent within three trading days after the date of execution of
such guarantee of delivery). A holder of record of Shares who holds such shares
as nominee, trustee or in another representative capacity (a "Holder
Representative") may submit multiple Forms of Election, provided that such
Holder Representative certifies that each such Form of Election delivered to the
Exchange Agent covers all the Shares held by such Holder Representative on
behalf of a particular beneficial owner. The Company shall use its best efforts
to make a Form of Election available to all Persons (as defined below) who
become holders of record of Shares (other than Excluded Shares) between the date
of mailing described in the first sentence of this Section 4.2(b)(iii) and the
Election Deadline. Parent shall determine, in its sole and absolute discretion,
which authority it may delegate in whole or in part to the Exchange Agent,
whether Forms of Election have been properly completed, signed and submitted or
revoked. The decision of Parent (or the Exchange Agent, as the case may be) in
such matters shall be conclusive and binding. Neither Parent nor the Exchange
Agent will be under any obligation to notify any Person of any defect in a Form
of Election submitted to the Exchange Agent. A holder of Shares that does not
submit an effective Form of Election prior to the Election Deadline shall be
deemed to have made a Non-Election. For the purposes of this Agreement, the term
"Person" shall mean any individual, corporation (including not-for-profit),
general or limited partnership, limited liability company, joint venture,
estate, trust, association, organization, Governmental Entity (as defined in
Section 5.1(d)) or other entity of any kind or nature organized or existing
under the laws of any jurisdiction.
(iv) An election may be revoked, but only by written notice received
by the Exchange Agent prior to the Election Deadline. Any Certificate(s)
representing Shares that have been submitted to the Exchange Agent in connection
with an election shall be returned without charge to the holder thereof in the
event such election is revoked as aforesaid and such holder requests in writing
the return of such Certificate(s). Upon any such revocation, unless a duly
completed Form of Election is thereafter submitted in accordance with paragraph
(b)(ii), such Shares shall be Non-Election Shares. In the event that this
Agreement is terminated pursuant to the provisions hereof, any Shares
that have been transmitted to the Exchange Agent pursuant to the provisions hereof shall promptly be returned without charge to the Person submitting the same.
(v) If the aggregate number of Shares covered by Cash Elections (the "Cash Election Shares") exceeds the Cash Election Number, all Non-Election Shares shall be deemed to be Shares in respect of which Stock Elections have been made and (x) each Cash Election Share shall be converted into (i) the right to receive an amount in cash, without interest, equal to the product of (A) the Cash Consideration and (B) a fraction (the "Cash Fraction"), the numerator of which shall be the Cash Election Number and the denominator of which shall be the total number of Cash Election Shares, and (ii) a number of shares of Parent Common Stock equal to the product of (A) the Exchange Ratio and (B) a fraction equal to one minus the Cash Fraction and (y) each Stock Election Share (including those deemed to be Stock Election Shares (as defined below) pursuant to this Section 4.2(b)(v)) shall be converted into the right to receive the Stock Consideration.
(vi) If the aggregate number of Shares covered by Stock Elections (the "Stock Election Shares") exceeds the Stock Election Number, all Non-Election Shares shall be deemed to be Shares in respect of which Cash Elections have been made and (x) each Stock Election Share shall be converted into (i) the right to receive a number of shares of Parent Common Stock, equal to the product of (A) the Exchange Ratio and (B) a fraction (the "Stock Fraction"), the numerator of which shall be the Stock Election Number and the denominator of which shall be the total number of Stock Election Shares, and (ii) an amount in cash, without interest, equal to the product of (A) the Cash Consideration and (B) a fraction equal to one minus the Stock Fraction and (y) each Cash Election Share (including those deemed to be Cash Election Shares) shall be converted into the right to receive the Cash Consideration.
(vii) In the event that neither clause (v) nor clause (vi) of this
Section 4.2(b) is applicable, a number of Non-Election Shares shall be deemed
Stock Election Shares such that the total Stock Election Shares equals the Stock
Election Number and any remaining Non-Election Shares shall be deemed Cash
Election Shares and (x) all Cash Election Shares and all Non-Election Shares in
respect of which Cash Elections are deemed to have been made shall be converted
into the right to receive Cash Consideration, and (y) all Stock Election Shares
and all Non-Election Shares in respect of which Stock Elections are deemed to
have been made shall
be converted into the right to receive Stock Consideration (and cash in lieu of fractional interests).
(viii) Each record holder of Shares immediately prior to the Effective
Time shall be entitled to elect to receive the Stock Consideration for part of
such holder's Shares and the Cash Consideration for the remaining part of such
holder's Shares (a "Mixed Election" and, collectively with a Stock Election and
a Cash Election, an "Election"). Mixed Elections shall be made on a Form of
Election. With respect to each holder of Shares who makes a Mixed Election, the
Shares such holder elects to be converted into the right to receive Cash
Consideration shall be treated as Cash Election Shares for purposes of this
Section 4.2 and Section 4.5, and the Shares such holder elects to be converted
into the right to receive shares of Parent Common Stock shall be treated as
Stock Election Shares for purposes of this Section 4.2 and Section 4.5.
(ix) The Exchange Agent, in consultation with Parent and the Company, shall make all computations to give effect to this Section 4.2.
(c) Exchange and Payment Procedures. As soon as practicable after the
Election Deadline, Parent shall cause the Exchange Agent to mail to each record
holder of Shares who did not submit a Form of Election or who did not submit a
Certificate or Certificates to the Exchange Agent with such holder's properly
submitted Form of Election: (i) a letter of transmittal (which shall specify
that delivery shall be effected, and risk of loss and title to the Certificates
shall pass, only upon actual delivery of the Certificates to the Exchange Agent)
and (ii) instructions for effecting the surrender of the Certificates and
receiving the Merger Consideration to which such holder shall be entitled
therefor pursuant to this Article IV. Upon surrender of a Certificate (or
affidavits of loss in lieu thereof) to the Exchange Agent for cancellation,
together with a duly executed letter of transmittal or Form of Election, as the
case may be, and such other documents as the Exchange Agent may require, the
holder of such Certificate shall be entitled to receive in exchange therefor (i)
a certificate representing that number of shares of Parent Common Stock into
which the Shares previously represented by such Certificate are converted in
accordance with this Article IV, (ii) the cash to which such holder is entitled
in accordance with this Article IV, (iii) cash in lieu of fractional shares, if
any, which such holder has the right to receive pursuant to Section 4.2(f) and
(iv) any dividends or other distributions pursuant to Section 4.2(d). In the
event the Merger Consideration and
cash in lieu of fractional shares, if any, which such holder has the right to
receive pursuant to Section 4.2(f), and any dividend or other distributions
pursuant to Section 4.2(d), is to be delivered to any person who is not the
person in whose name the Certificate surrendered in exchange therefor is
registered in the transfer records of the Company, the Merger Consideration, and
cash in lieu of fractional shares which such holder has the right to receive
pursuant to Section 4.2(f), and any dividends or other distributions pursuant to
Section 4.2(d) may be delivered to a transferee if the Certificate is presented
to the Exchange Agent, accompanied by all documents required to evidence and
effect such transfer and by evidence satisfactory to the Exchange Agent that any
applicable stock transfer taxes have been paid or are not payable.
(d) Distributions with Respect to Unexchanged Shares; Voting. All Shares of Parent Common Stock to be issued pursuant to the Merger shall be deemed issued and outstanding as of the Effective Time and whenever a dividend or other distribution is declared by Parent in respect of the Parent Common Stock, the record date for which is at or after the Effective Time, that declaration shall include dividends or other distributions in respect of all shares issuable pursuant to this Agreement. No dividends or other distributions in respect of the Parent Common Stock shall be paid to any holder of any unsurrendered Certificate until such Certificate is surrendered for exchange in accordance with this Article IV. Subject to the effect of applicable laws, following surrender of any such Certificate, there shall be issued and/or paid to the holder of the certificates representing Parent Common Stock issued in exchange therefor, without interest, (A) at the time of such surrender, the dividends or other distributions with a record date after the Effective Time theretofore payable with respect to such Parent Common Stock and not paid and (B) at the appropriate payment date, the dividends or other distributions payable with respect to such Parent Common Stock with a record date after the Effective Time but with a payment date subsequent to surrender.
(e) Transfers. After the Effective Time, there shall be no transfers on the stock transfer books of the Company of the Shares that were outstanding immediately prior to the Effective Time.
(f) Fractional Shares. Notwithstanding any other provision of this Agreement, no fractional shares of Parent Common Stock will be issued to holders of Shares and in lieu of any such fractional shares, each holder of Shares who would otherwise have been entitled to receive a fractional
share of Parent Common Stock upon surrender of Certificates for exchange pursuant to this Article IV will be paid an amount in cash (without interest) equal to such holder's proportionate interest in the net proceeds from the sale or sales in the open market by the Exchange Agent, on behalf of all such holders, of the aggregate fractional shares of Parent Common Stock issued to the Exchange Agent on behalf of such holders pursuant to this Article IV. As soon as practicable following the Effective Time, the Exchange Agent shall determine the excess of (i) the number of full shares of Parent Common Stock delivered to the Exchange Agent by Parent over (ii) the aggregate number of full shares of Parent Common Stock to be distributed to holders of Shares (such excess being herein called the "Excess Parent Common Shares"). The Exchange Agent, as agent for the former holders of Shares, shall sell the Excess Parent Common Shares at the prevailing prices on the New York Stock Exchange, Inc. (the "NYSE"). The sales of the Excess Parent Common Shares by the Exchange Agent shall be executed on the NYSE through one or more member firms of the NYSE and shall be executed in round lots to the extent practicable. Parent shall pay all commissions, transfer taxes and other out-of-pocket transaction costs, if any, including the expenses and compensation of the Exchange Agent, incurred in connection with such sale of Excess Parent Common Shares. Until the net proceeds of such sale have been distributed to the former holders of Shares, the Exchange Agent will hold such proceeds in trust for such former holders.
(g) Termination of Exchange Fund. Any portion of the Exchange Fund
(including the proceeds of any investments thereof and any Parent Common Stock)
that remains unclaimed by the shareholders of the Company for 180 days after the
Effective Time shall be returned to Parent. Any shareholders of the Company who
have not theretofore complied with this Article IV shall thereafter look only to
Parent for payment of the Cash Consideration, their shares of Parent Common
Stock and any cash, dividends and other distributions in respect thereof payable
and/or issuable pursuant to Section 4.1 and Section 4.2(c) upon due surrender of
their Certificates (or affidavits of loss in lieu thereof), in each case,
without any interest thereon. Notwithstanding the foregoing, none of Parent, the
Surviving Corporation, the Exchange Agent or any other Person shall be liable to
any former holder of Shares for any amount properly delivered to a public
official pursuant to applicable abandoned property, escheat or similar laws.
(h) Lost, Stolen or Destroyed Certificates. In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by
the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent, the posting by such Person of a bond in customary amount as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Certificate and subject to compliance with the terms of Section 4.2, shares of Parent Common Stock and any cash payable and any unpaid dividends or other distributions in respect thereof pursuant to Section 4.1 and Section 4.2(d) upon due surrender of, and deliverable in respect of, the Shares represented by such Certificate pursuant to this Agreement.
(i) Affiliates. Notwithstanding anything herein to the contrary, Certificates surrendered for exchange by any "affiliate" (as determined pursuant to Section 6.7) of the Company shall not be exchanged until Parent has received a written agreement from such Person as provided in Section 6.7 hereof.
4.3. Dissenters' Rights. In accordance with Section 450.1762 of the MBCA, no dissenters' rights shall be available to holders of Shares in connection with the Merger.
4.4. Adjustments to Prevent Dilution. (a) In the event that the Company changes the number of Shares issued and outstanding prior to the Effective Time as a result of a reclassification, stock split (including a reverse split), stock dividend or distribution, recapitalization, merger, subdivision, issuer tender or exchange offer, or other similar transaction, the Merger Consideration shall be equitably adjusted to reflect such change.
(b) In the event Parent (i) changes or establishes a record date for changing the number of shares of Parent Common Stock issued and outstanding prior to the Effective Time as a result of a stock split, stock dividend, stock combination, recapitalization, reclassification, reorganization or similar transaction with respect to the outstanding Parent Common Stock or (ii) pays or makes an extraordinary dividend or distribution in respect of Parent Common Stock (other than a distribution referred to in clause (i) of this sentence) and, in either case, the record date therefor shall be prior to the Effective Time, the Stock Consideration shall be proportionately adjusted. Regular quarterly cash dividends and increases thereon shall not be considered extraordinary for purposes of the preceding sentence. If, between the date hereof and the Effective Time, Parent shall merge or consolidate with or
into any other corporation (a "Business Combination") and the terms thereof shall provide that Parent Common Stock shall be converted into or exchanged for the shares of any other corporation or entity, then provision shall be made so that shareholders of the Company who would be entitled to receive shares of Parent Common Stock pursuant to this Agreement shall be entitled to receive, in lieu of each share of Parent Common Stock issuable to such shareholders as provided herein, the same kind and amount of securities or assets as shall be distributable upon such Business Combination with respect to one share of Parent Common Stock and, if necessary or advisable, the parties hereto shall agree on an appropriate restructuring of the transactions contemplated herein.
4.5. Tax Opinion Adjustment. In the event that either the condition
set forth in Section 7.2(d) or the condition set forth in Section 7.3(c) is not
satisfied but would be capable of being satisfied if the number of Shares being
converted into Parent Common Stock were increased, and all other conditions set
forth in Article VII have been satisfied (or, with respect to conditions to be
satisfied at the Effective Time, will in fact be satisfied), then the number of
Shares being converted into Parent Common Stock shall be increased (and the
number of Shares converted into cash shall be decreased) to the extent necessary
to permit the satisfaction of the conditions set forth in each of Sections
7.2(d) and 7.3(c), provided, that, each additional Share that is converted into
the right to receive shares of Parent Common Stock solely as a result of the
operation of this Section 4.5, to the extent that the conversion is necessary so
that the value of the Parent Common Stock paid as consideration for Shares is
not less than 41% of the value of the total consideration for Shares, shall be
converted into the right to receive a number of shares of Parent Common Stock
having a value of $24.00 (it being understood that value, in each case, shall be
calculated consistent with the methods used in connection with the provision of
the tax opinions contemplated by Section 7.2(d) and 7.3(c)). For purposes of
Section 4.2(b), such additional Shares shall continue to be treated as part of
the Cash Election Number and the shares of Parent Common Stock issued in respect
thereof shall be treated as Cash Consideration. If required by law or the rules
of the NYSE, Parent will use its best reasonable efforts to obtain the requisite
approval of its shareholders for the issuance of a number of shares of Parent
Common Stock sufficient to take into account the revised number of shares of
Parent Common Stock. On the Closing Date, Parent and the Company each shall
obtain from its respective counsel a determination whether the conditions set
forth in Section 7.2(d) or
7.3(c), as the case may be, can be satisfied without making any adjustment set forth in this Section 4.5 and, if such condition cannot be satisfied without such an adjustment, a determination as to the minimum percentage of the Merger Consideration that the Stock Consideration must constitute in order for such counsel to render such opinion. Parent and the Company shall jointly inform the Exchange Agent whether any adjustment pursuant to this Section 4.5 is required; and, if so, the extent of any such adjustment.
4.6. Uncertificated Shares of Parent Common Stock. The Company agrees that if Parent establishes procedures for book-entry transfer of shares of Parent Common Stock (or other similar system for uncertificated shares of Parent Common Stock) prior to the Effective Time, issuance of Parent Common Stock pursuant to this Agreement may be made pursuant to such book-entry or similar procedures.
ARTICLE V
Representations and Warranties
5.1. Representations and Warranties of the Company, Parent and Merger
Sub. Except as set forth in the corresponding sections or subsections of the
disclosure letter, dated October 4, 1999, delivered by the Company to Parent or
by Parent to the Company (each, a "Disclosure Letter", and the "Company
Disclosure Letter" and the "Parent Disclosure Letter", respectively), as the
case may be, the Company (except for subparagraphs (b)(ii), (b)(iii), (c)(ii),
(q)(ii) and (v)(ii) below and references in paragraphs (a), (e) and (l) below to
documents made available by Parent to the Company) hereby represents and
warrants to Parent and Merger Sub, and Parent (except for subparagraphs (b)(i),
(c)(i), (j), (p), (q)(i), (s), (t), (v)(i) and (w) below and references in
paragraphs (a), (e) and (l) below to documents made available by the Company to
Parent), on behalf of itself and Merger Sub, hereby represents and warrants to
the Company, that:
(a) Organization, Good Standing and Qualification. Each of it and its Subsidiaries is a corporation or other entity duly organized, validly existing and in good standing under the laws of its respective jurisdiction of organization and has all requisite corporate or similar power and authority to own and operate its properties and assets and to carry on its business as presently conducted and is qualified to do business and is in good standing as a foreign corporation in each
jurisdiction where the ownership or operation of its assets or properties or
conduct of its business requires such qualification, except where the failure to
be so organized, qualified or in good standing, or to have given power or
authority when taken together with all other such failures, is not reasonably
likely to have a Material Adverse Effect (as defined below). It has made
available to Parent, in the case of the Company, and to the Company, in the case
of Parent, a complete and correct copy of its Subsidiaries' articles of
incorporation and by-laws or comparable governing documents for non-corporate
entities ("Organizational Documents"), each as amended to date. Such
Organizational Documents as so made available are in full force and effect.
Section 5.1(a) of the Disclosure Letters contains a correct and complete list of
each jurisdiction where the Company, in the case of the Company Disclosure
Letter, and Parent, in the case of the Parent Disclosure Letter, and in each
case, each of its Subsidiaries is organized.
As used in this Agreement, the term (i) "Subsidiary" means, with
respect to the Company, Parent or Merger Sub, as the case may be, any entity,
whether incorporated or unincorporated, of which at least a majority of the
securities or ownership interests having by their terms ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions is directly or indirectly owned or controlled by such party or by one
or more of its respective Subsidiaries or by such party and any one or more of
its respective Subsidiaries and (ii) "Material Adverse Effect" means, with
respect to the Company or Parent, as the case may be, a material adverse effect
on the condition (financial or otherwise), properties, business, operations,
results of operations or prospects of the Company or Parent, as the case may be,
and its respective Subsidiaries taken as a whole (other than any change or
effect arising out of (i) any transaction taken to comply with Section 6.17(c),
(ii) the Company's recognition of a write-down of its gas and oil properties
under the full cost method of accounting as prescribed by Rule 4-10 of
Regulation S-X under the Securities Act and Exchange Act, (iii) general economic
conditions or (iv) conditions generally affecting the electric or gas utility
industries).
(b) Capital Structure. (i) The authorized capital stock of the Company consists of 250,000,000 Shares (which are entitled to vote as a class), of which 85,655,381 Shares were outstanding as of the close of business on the date hereof, and 25,000,000 shares of preferred stock, without par value (the "Preferred Shares"), none of which were outstanding as of the date hereof. All of the
outstanding Shares have been duly authorized and are validly issued, fully paid and nonassessable. Other than up to 4,560,345 shares subject to issuance related to the 2,645,000 outstanding Preferred Redeemable Increased Dividend Equity Securities (the "Feline Prides") and 250,000 shares of Series A Junior Participating Preferred Stock subject to issuance pursuant to the Rights Agreement, none of which were outstanding as of the close of business on the date hereof, the Company has no Shares or Preferred Shares subject to issuance, except that, as of the date hereof, there were 2,515,914 Shares subject to issuance pursuant to the Company's Stock Incentive Plan, Long Term Incentive Performance Share Plan, Mandatory Deferred Compensation Plan and Non-employee Directors Compensation Plan (the "Stock Plans"). Section 5.1(b) of the Company Disclosure Letter contains a correct and complete list of each outstanding option to purchase Shares under the Stock Plans (each a "Company Option"), date of grant, exercise price, expiration date and number of Shares subject thereto. Each of the outstanding shares of capital stock or other securities of each of the Company's Subsidiaries is duly authorized, validly issued, fully paid and nonassessable and owned by a direct or indirect wholly owned Subsidiary of the Company, free and clear of any lien, pledge, security interest, claim or other encumbrance. Except as set forth in this Section 5.1(b), there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, commitments or rights of any kind that obligate the Company or any of its Subsidiaries to issue or sell any shares of capital stock or other securities of the Company or any of its Subsidiaries or any securities or obligations convertible or exchangeable into or exercisable for, or giving any Person a right to subscribe for or acquire, any securities of the Company or any of its Subsidiaries, and no securities or obligations evidencing such rights are authorized, issued or outstanding. After the Effective Time, the Feline Prides will be convertible only into, with respect to each Purchase Contract (as defined in the Purchase Contract Agreement dated March 25, 1997, between the Company and First National Bank of Chicago (the "Purchase Contract Agreement")), for each Share issuable on account of such Purchase Contract the right to receive on the Purchase Contract Settlement Date (as defined in the Purchase Contract Agreement) the Merger Consideration and cash in lieu of fractional shares, if any, pursuant to Section 4.2(f) into which a Share would be converted pursuant to Section 4.2 if such Share were a Non-Election Share, assuming for purposes of such conversion that the Purchase Contract Settlement Date had occurred immediately prior to the Effective Time. The Company does not have
outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the shareholders of the Company on any matter ("Voting Debt"). Section 5.1(b) of the Company Disclosure Letter sets forth a true and complete list of each Person in which the Company owns, directly or indirectly, any voting interest that may require a filing by Parent under the Hart-Scott-Rodino Antitrust Improvement Act of 1976, as amended (the "HSR Act").
(ii) The authorized capital stock of Parent consists of 400,000,000 shares of Parent Common Stock (which are entitled to vote as a class), of which 145,045,159 shares were outstanding as of the close of business on September 30, 1999, 5,000,000 shares of preferred stock, without par value (the "Parent Preferred Shares"), none of which were outstanding as of the date hereof. All of the outstanding shares of Parent Common Stock have been duly authorized and are validly issued, fully paid and nonassessable. Other than 1,500,000 shares of Series A Junior Participating Preferred Stock reserved for issuance pursuant to the Rights Agreement, dated as of September 23, 1997, between Parent and The Detroit Edison Company, as Rights Agent (the "Parent Rights Agreement"), none of which were outstanding as of the date hereof, Parent has no shares of Parent Common Stock or Parent Preferred Shares subject to issuance, except that, as of September 30, 1999, there were 997,575 shares of Parent Common Stock subject to issuance pursuant to Parent's Long-Term Incentive Plan (the "Parent Stock Plan"). Section 5.1(b) of the Parent Disclosure Letter contains a correct and complete list of each outstanding option to purchase shares of Parent Common Stock under the Parent Stock Plan, including the date of grant, exercise price, expiration date and number of shares of Parent Common Stock subject thereto. Each of the outstanding shares of capital stock or other securities of each of Parent's Subsidiaries is duly authorized, validly issued, fully paid and nonassessable and owned by a direct or indirect wholly owned Subsidiary of Parent, free and clear of any lien, pledge, security interest, claim or other encumbrance. Except as set forth above, there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, commitments or rights of any kind that obligate Parent or any of its Subsidiaries to issue or sell any shares of capital stock or other securities of it or any of its Subsidiaries or any securities or obligations convertible or exchangeable into or exercisable for, or giving any Person a right to subscribe for or acquire, any securities of Parent
or any of its Subsidiaries, and no securities or obligations evidencing such rights are authorized, issued or outstanding. Parent does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the shareholders of Parent on any matter ("Parent Voting Debt"). As of the date hereof, Parent has not granted registration rights to any person or entity which rights are currently exercisable or will become exercisable between the date hereof and the Effective Time.
(iii) The authorized capital stock of Merger Sub consists of 60,000 shares of common stock (entitled to vote as a class), 1,000 of which are validly issued, fully paid, nonassessable and outstanding as of the date hereof. All of the issued and outstanding capital stock of Merger Sub is, and at the Effective Time will be, owned by Parent, and there are (A) no other voting securities of Merger Sub, (B) no securities of Merger Sub convertible into or exchangeable for shares of capital stock or voting securities of Merger Sub and (C) no options or other rights to acquire from Merger Sub, and no obligations of Merger Sub to issue, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of Merger Sub. Merger Sub was formed solely for the purpose of engaging in the transactions contemplated in this Agreement and has not conducted any business prior to the date hereof and has no, and prior to the Effective Time will have no, assets, liabilities or obligations of any nature other than those incident to its formation and pursuant to this Agreement and the Merger and the other transactions contemplated by this Agreement.
(c) Corporate Authority; Approval and Fairness. (i) The Company has all requisite corporate power and authority and has taken all corporate action necessary in order to execute, deliver and perform (in the case of consummation of the Merger, subject to obtaining requisite shareholder approval) its obligations under this Agreement and to consummate, subject only to approval of this Agreement by the holders of a majority of the outstanding Shares (the "Company Requisite Vote"), the Merger. Assuming the due authorization, execution and delivery of this Agreement by Parent and Merger Sub, this Agreement is a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles (the "Bankruptcy and Equity Exception").
The board of directors of the Company (A) has unanimously adopted this Agreement and (B received, on October 4, 1999, and has received, as of the Second Amendment Date, the opinion of its financial advisor, Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch"), to the effect that the consideration to be received by the holders of the Shares in the Merger is fair to such holders from a financial point of view, a copy of which opinions have been delivered to Parent.
(ii) Each of the Parent and Merger Sub has all requisite corporate power and authority and has taken all corporate action necessary in order to execute, deliver and perform (in the case of consummation of the Merger, subject to obtaining requisite shareholder approval) its obligations under this Agreement and to consummate, subject only to any shareholder approval necessary to permit the issuance of the shares of Parent Common Stock required to be issued pursuant to Article IV (the "Parent Requisite Vote"), the Merger. Assuming the due authorization, execution and delivery of this Agreement by the Company, this Agreement is a valid and binding agreement of Parent enforceable against Parent in accordance with its terms, subject to the Bankruptcy and Equity Exception. Assuming the due authorization, execution and delivery of this Agreement by the Company, this Agreement is a valid and binding agreement of Merger Sub enforceable against Merger Sub in accordance with its terms. The Boards of Directors of Parent and Merger Sub (A) have adopted this Agreement and (B) received, on October 4, 1999, and has received as of the Second Amendment Date, the opinion of Parent's financial advisor, Warburg Dillon Read LLC, to the effect that the consideration to be paid by Parent to the holders of Shares in the Merger is fair to Parent from a financial point of view. Prior to the Effective Time, Parent will have taken all necessary action to permit it to issue the number of shares of Parent Common Stock required to be issued pursuant to Article IV. The Parent Common Stock, when issued, will be validly issued, fully paid and nonassessable, and no shareholder of Parent will have any preemptive right of subscription or purchase in respect thereof. The Parent Common Stock, when issued, will be registered under the Securities Act and the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act") and registered or exempt from registration under any applicable state securities or "blue sky" laws.
(d) Governmental Filings; No Violations. (i) Other than the reports, filings and/or notices (A) pursuant to Section 1.3, (B) under the HSR Act, the Exchange Act and the Securities Act, (C) required to be made
with the NYSE or the Chicago Stock Exchange, (D) to comply with state securities
or "blue sky" laws, (E) with, to or of the Federal Energy Regulatory Commission
(the "FERC") pursuant to the Federal Power Act, as amended (the "Power Act"), if
required, (F) under the Public Utility Holding Company Act of 1935, as amended
(the "1935 Act"), (G) with, to or of federal or state regulatory bodies pursuant
to Environmental Laws (as defined in Section 5.1(k)) and (H) identified in
Section 5.1(d) of the respective Disclosure Letter, no notices, reports or other
filings are required to be made by it or any of its Subsidiaries with, nor are
any consents, registrations, approvals, permits or authorizations required to be
obtained by it or any of its Subsidiaries from, any governmental or regulatory
authority, agency, commission, body or other governmental entity ("Governmental
Entity"), in connection with the execution and delivery of this Agreement by it
and the consummation by it of the Merger and the other transactions contemplated
hereby, except those that the failure to make or obtain are not, individually or
in the aggregate, reasonably likely to have a Material Adverse Effect or
prevent, materially delay or materially impair the ability of it to consummate
the transactions contemplated by this Agreement.
(ii) The execution, delivery and performance of this Agreement by it do not, and the consummation by it of the Merger and the other transactions contemplated hereby will not, constitute or result in (A) a breach or violation of, or a default under, its articles of incorporation or by-laws or the Organizational Documents of any of its Subsidiaries, (B) a breach or violation of, a default under, or the acceleration of any obligations or the creation of a lien, pledge, security interest or other encumbrance on the assets of it or any of its Subsidiaries (with or without notice, lapse of time or both) pursuant to, any agreement, lease, license, contract, note, mortgage, indenture, arrangement or other obligation ("Contracts") binding upon it or any of its Subsidiaries or any Law (as defined in Section 5.1(i)) or governmental or non-governmental permit or license to which it or any of its Subsidiaries is subject or (C) any change in the rights or obligations of any party under any of the Contracts, except, in the case of clause (B) or (C) above, for any breach, violation, default, acceleration, creation or change that, individually or in the aggregate, is not reasonably likely to have a Material Adverse Effect or prevent, materially delay or materially impair the ability of it to consummate the transactions contemplated by this Agreement. Section 5.1(d) of the Company Disclosure Letter, with respect to the Company, and the Parent Disclosure Letter, with respect to Parent, sets forth a correct and complete list of material Contracts of
the Company, in the case of the Company Disclosure Letter, and of Parent, in the case of the Parent Disclosure Letter, and any of its respective Subsidiaries pursuant to which consents or waivers are or may be required prior to consummation of the transactions contemplated by this Agreement (whether or not subject to the exception set forth with respect to clauses (B) and (C) above).
(e) Reports; Financial Statements. All material filings required to be made by it and its Subsidiaries since December 31, 1995 under the Securities Act, the Exchange Act, the 1935 Act, the Power Act and state law applicable to public utilities, and under regulations applicable to public utilities in the United States, have been made in accordance with the requirements of the relevant Governmental Entities, except for such failures to make filings that are not, individually or in the aggregate, reasonably likely to have a Material Adverse Effect, and it has complied as of their respective dates, in all material respects with all applicable requirements of appropriate statutes and rules and regulations. It has delivered to the other party each registration statement, report, proxy statement or information statement prepared by it since December 31, 1998 (the "Audit Date"), including (i) its Annual Report on Form 10-K for the year ended December 31, 1998, and (ii) its Quarterly Reports on Form 10-Q for the periods ended March 31, 1999, and June 30, 1999, each in the form (including exhibits, annexes and any amendments thereto) filed with the Securities and Exchange Commission (the "SEC") (collectively, including any such reports filed subsequent to the date hereof and as amended, the "Reports"). As of their respective dates, (or, if amended, as of the date of such amendment) the Reports did not, and any Reports filed with the SEC subsequent to the date hereof will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. Each of the consolidated balance sheets included in or incorporated by reference into the Reports (including the related notes and schedules) presents fairly, or will present fairly, in all material respects, the consolidated financial position of it and its Subsidiaries as of its date and each of the consolidated statements of income, cash flows and changes in shareholders' equity included in or incorporated by reference into the Reports (including any related notes and schedules) presents fairly, or will present fairly, the results of operations, cash flows and changes in shareholders' equity, as the case may be, of it and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and
normal year-end audit adjustments that will not be material in amount or effect), in each case in accordance with generally accepted accounting principles in the United States ("U.S. GAAP") consistently applied during the periods involved, except as may be noted therein.
(f) Absence of Certain Changes. Except as disclosed in its Reports
filed prior to the date hereof, since the Audit Date it and its Subsidiaries
have conducted their respective businesses only in, and have not engaged in any
material transaction other than according to, the ordinary and usual course of
such businesses and there has not been (i) any change in the condition
(financial or otherwise), properties, business, operations, results of
operations or prospects of it and its Subsidiaries or any development or
combination of developments of which its officers have actual knowledge that,
individually or in the aggregate, has had or is reasonably likely to have a
Material Adverse Effect; (ii) any declaration, setting aside or payment of any
dividend, or other distribution in cash, stock or property in respect of its
capital stock, except for dividends or other distributions on its capital stock
publicly announced prior to the date hereof and except as expressly permitted
hereby; (iii) any split in its capital stock, combination, subdivision or
reclassification of any of its capital stock or issuance or authorization of any
issuance of any other securities in respect of, in lieu of or in substitution
for shares of its capital stock, except as expressly contemplated hereby; or
(iv) any change by it in accounting principles, or material change in its
accounting practices or methods. Since the Audit Date, except as provided for
herein or as disclosed in the Reports filed prior to the date hereof, there has
not been any increase in the compensation payable or that could become payable
by it or any of its Subsidiaries to officers or key employees or any amendment
of any of the Compensation and Benefit Plans (as defined in Section 5.1(h)(i))
other than increases or amendments in the ordinary and usual course.
(g) Litigation and Liabilities. Except as disclosed in the Reports filed prior to the date hereof, there are no (i) civil, criminal or administrative actions, suits, claims, hearings, investigations or proceedings pending or, to the actual knowledge of its officers, threatened against it or any of its Affiliates (as defined below), (ii) obligations or liabilities, whether or not accrued, contingent or otherwise and whether or not required to be disclosed, or any facts or circumstances of which its officers have actual knowledge that could reasonably be expected to result in any claims against, or obligations or liabilities of, it or any of its Affiliates or
(iii) developments since the date of such Reports with respect to such disclosed actions, suits, claims, hearings, investigations or proceedings, except, in each case, for those that, individually or in the aggregate, are not reasonably likely to have a Material Adverse Effect or prevent or materially burden or materially impair the ability of it to consummate the transactions contemplated by this Agreement. As used herein, the term "Affiliate" shall have the meaning ascribed to such term in Rule 12b-2 under the Exchange Act.
(h) Employee Benefits.
(i) A copy (or, if not in writing, a summary) of each bonus, deferred
compensation, pension, retirement, profit-sharing, thrift, savings, employee
stock ownership, stock bonus, stock purchase, restricted stock, stock option,
employment, termination, severance, compensation, medical, health or other plan,
agreement, policy or arrangement that covers employees, directors, former
employees or former directors of it and its Subsidiaries (the "Compensation and
Benefit Plans") (other than immaterial policies and arrangements not related to
severance) and any trust agreement or insurance contract forming a part of such
Compensation and Benefit Plans has been provided or made available to the other
party prior to the date hereof. The Compensation and Benefit Plans are listed in
Section 5.1(h) of its Disclosure Letter and those containing any "change of
control" or similar provisions are specifically identified in Section 5.1(h) of
its Disclosure Letter.
(ii) All Compensation and Benefit Plans are in substantial compliance with all applicable law, including the Code and the Employee Retirement Income Security Act of 1974, as amended ("ERISA"). Each Compensation and Benefit Plan that is an "employee pension benefit plan" within the meaning of Section 3(2) of ERISA (a "Pension Plan") and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service (the "IRS"), nor are there any existing circumstances likely to result in revocation of any such favorable determination letter. No actions, suits, or claims (other than routine claims for benefits) have been filed or, to the actual knowledge of its officers, are contemplated or threatened against any Compensation and Benefits Plan or against the assets of any Compensation and Benefits Plan; and, to the actual knowledge of its officers, there is no basis for such action, suit or claim. Neither it nor any of its Subsidiaries has engaged in a transaction with respect to any Compensation and Benefit Plan that,
assuming the taxable period of such transaction expired as of the date hereof, would subject it or any of its Subsidiaries to a material tax or penalty imposed by either Section 4975 of the Code or Section 502 of ERISA that has not previously been satisfied.
(iii) No liability under Subtitle C or D of Title IV of ERISA has been
or is expected to be incurred by it or any Subsidiary with respect to any
ongoing, frozen or terminated "single-employer plan", within the meaning of
Section 4001(a)(15) of ERISA, currently or formerly maintained by any of them,
or the single-employer plan of any entity which is considered one employer with
the Company under Section 4001 of ERISA or Section 414 of the Code (an "ERISA
Affiliate"). It and its Subsidiaries have not incurred and do not expect to
incur any withdrawal liability with respect to a multiemployer plan under
Subtitle E to Title IV of ERISA regardless of whether based on contributions of
an ERISA Affiliate. No notice of a "reportable event", within the meaning of
Section 4043 of ERISA for which the 30-day reporting requirement has not been
waived, has been required to be filed for any Pension Plan or by any ERISA
Affiliate within the 12-month period ending on the date hereof or will be
required to be filed in connection with the transactions contemplated by this
Agreement.
(iv) All contributions required to be made under the terms of any Compensation and Benefit Plan as of the date hereof have been timely made or have been reflected on the most recent consolidated balance sheet filed or incorporated by reference in the Company Reports prior to the date hereof. Neither any Pension Plan nor any single-employer plan of an ERISA Affiliate has an "accumulated funding deficiency" (whether or not waived) within the meaning of Section 412 of the Code or Section 302 of ERISA. Neither it nor its Subsidiaries has provided, or is required to provide, security to any Pension Plan or to any single-employer plan of an ERISA Affiliate pursuant to Section 401(a)(29) of the Code.
(v) Under each Pension Plan which is a single-employer plan, as of the last day of the most recent plan year ended prior to the date hereof, the actuarially determined present value of all "benefit liabilities", within the meaning of Section 4001(a)(16) of ERISA (as determined on the basis of the actuarial assumptions contained in the Pension Plan's most recent actuarial valuation), did not exceed the then current value of the assets of such Pension Plan, and there has been no material
change in the financial condition of such Pension Plan since the last day of the most recent plan year.
(vi) Neither it nor its Subsidiaries have any obligations for retiree health and life benefits under any Compensation and Benefit Plan, except as set forth in the SEC filings or Section 5.1(h) of the Company Disclosure Letter; the terms of each such plan provide that such retiree health and life benefits may be amended or terminated at any time, except to the extent limited by any collective bargaining agreement.
(vii) The consummation of the Merger and the other transactions contemplated by this Agreement will not (x) entitle any employees of it or its Subsidiaries to severance pay or any increase in severance pay upon any termination of employment prior to or after the date hereof, (y) accelerate the time of payment or vesting or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or trigger any other material obligation pursuant to, any of the Compensation and Benefit Plans, or (z) result in any breach or violation of, or a default under, any of the Compensation and Benefit Plans.
(viii) The Company has amended the terms of any and all Compensation and Benefit Plans, as applicable, to eliminate the automatic funding of accrued benefits under such plans via the Rabbi Trust established effective January 3, 1991, in connection with the consummation of the Merger and the other transactions contemplated by this Agreement.
(ix) No Compensation and Benefit Plan is maintained outside the United States.
(i) Compliance with Laws; Permits. Except as set forth in the Reports filed prior to the date hereof, the businesses of each of it and its Subsidiaries have not been, and are not being, conducted in violation of any federal, state, local or foreign law, statute, ordinance, rule, regulation, judgment, order, injunction, decree, arbitration award, agency requirement, license or permit of any Governmental Entity (collectively, "Laws"), except for violations that, individually or in the aggregate, are not reasonably likely to have a Material Adverse Effect or prevent or materially burden or materially impair the ability of it to consummate the transactions contemplated by this Agreement. Except as set forth in the Reports filed prior to the date hereof, no investigation or review by any Governmental Entity with respect to it or any of its
Subsidiaries is pending or, to the actual knowledge of its officers, threatened, nor has any Governmental Entity indicated an intention to conduct the same, except for those the outcome of which, individually or in the aggregate, are not reasonably likely to have a Material Adverse Effect or prevent or materially burden or materially impair its ability to consummate the transactions contemplated by this Agreement. Each of it and its Subsidiaries has all permits, licenses, franchises, variances, exemptions, orders and other governmental authorizations, consents and approvals necessary to conduct its business as presently conducted, except those the absence of which, individually or in the aggregate, are not reasonably likely to have a Material Adverse Effect or prevent or materially burden or materially impair its ability to consummate the Merger and the other transactions contemplated by this Agreement.
(j) Takeover Statutes. No "fair price," "moratorium," "control share acquisition" or other similar anti-takeover statute or regulation (each a "Takeover Statute") or any anti-takeover provision in the Company's articles of incorporation or by-laws is, or at the Effective Time will be, applicable to the Company, the Shares, the Merger or the other transactions contemplated by this Agreement.
(k) Environmental Matters. Except as disclosed in the Reports prior to the date hereof and except as has not had and is not reasonably likely to have a Material Adverse Effect: (i) each of it and its Subsidiaries is in compliance with all applicable Environmental Laws; (ii) no property (including soils, groundwater, surface water, buildings or other structures) currently owned or operated by it or any of its Subsidiaries is contaminated with any Hazardous Substance which could reasonably be expected to result in liability relating to or require remediation under any Environmental Law; (iii) no property formerly owned or operated by it or any of its Subsidiaries has been contaminated with any Hazardous Substance during or prior to such period of ownership or operation which could reasonably be expected to result in liability relating to or require remediation under any Environmental Law; (iv) neither it nor any of its Subsidiaries is subject to liability for any Hazardous Substance disposal or contamination on any third party property; (v) neither it nor any of its Subsidiaries has been associated with any release or threat of release of any Hazardous Substance which could reasonably be expected to result in liability relating to or require remediation under any Environmental Law; (vi) neither it nor any of its Subsidiaries has received any notice, demand, letter, claim or request for information alleging that it or any of its
Subsidiaries may be in violation of or subject to liability under any Environmental Law; (vii) neither it nor any of its Subsidiaries is subject to any order, decree, injunction or other arrangement with any Governmental Entity or any indemnity or other agreement with any third party relating to liability under any Environmental Law or relating to Hazardous Substances; (viii) there are no other circumstances or conditions involving it or any of its Subsidiaries or the transactions contemplated in this Agreement that could reasonably be expected to result in any claim, liability, investigation, cost or restriction on the ownership, use, or transfer of any property pursuant to any Environmental Law; and (ix) the Company has delivered to Parent, and Parent has made available to the Company, copies of all environmental reports, studies, assessments, sampling data and other environmental information in its possession relating to it or its Subsidiaries or their respective current and former properties or operations.
As used herein, the term "Environmental Law" means any federal, state, local or foreign statute, law, regulation, order, decree, permit, authorization, opinion, common law or agency requirement relating to: (A) the protection, investigation or restoration of the environment, health, safety, or natural resources, (B) the handling, use, presence, disposal, release or threatened release of any Hazardous Substance or (C) noise, odor, indoor air, employee exposure, wetlands, pollution, contamination or any injury or threat of injury to persons or property relating to any Hazardous Substance.
As used herein, the term "Hazardous Substance" means any substance that is: (A) listed, classified or regulated pursuant to any Environmental Law; (B) any petroleum or coal product or by-product, any waste, ash or sludge, asbestos-containing material, lead-containing paint or plumbing, polychlorinated biphenyls, radioactive material or radon; and (C) any other substance which may be the subject of regulatory action by any Government Entity in connection with any Environmental Law.
(l) Taxes. Except for failures and inaccuracies that are not, individually or in the aggregate, reasonably likely to have a Material Adverse Effect, each of it and its Subsidiaries (i) have prepared in good faith and duly and timely filed (taking into account any extension of time within which to file) all Tax Returns (as defined below) required to be filed by any of them and all such filed Tax Returns are complete and accurate; (ii) has paid all Taxes (as defined below) that are shown as due on such filed Tax Returns or that it or any of its Subsidiaries are obligated
to withhold from amounts owing to any employee, creditor or third party, except with respect to matters contested in good faith; and (iii) has not waived any statute of limitations with respect to Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency. Except as set forth in the Company Disclosure Letter, (i) neither it nor any of its Subsidiaries is a party to any Tax allocation, indemnity or sharing agreement (other than such an agreement between it and any of its Subsidiaries) and (ii) neither it nor any of its Subsidiaries has any liability for Taxes as a result of its or any of its Subsidiaries inclusion in any group's consolidated or combined Tax returns other than a group of which it is a common parent, except, in the case of clause (ii), as is not reasonably likely to have a Material Adverse Effect. As of the date hereof, there are not pending or, to the actual knowledge of its officers threatened in writing, any audits, examinations, investigations or other proceedings in respect of Taxes or Tax matters that, individually or in the aggregate are reasonably likely to have a Material Adverse Effect. There are not, to the actual knowledge of its officers, any unresolved questions or claims concerning its or any of its Subsidiaries' Tax liability that, individually or in the aggregate, are reasonably likely to have a Material Adverse Effect. Neither it nor any of its Subsidiaries has any liability with respect to Taxes in excess of the amounts accrued with respect thereto that are reflected in the financial statements included in the Reports filed on or prior to the date hereof, except as is not, individually or in the aggregate reasonably likely to have a Material Adverse Effect.
As used in this Agreement, (i) the term "Tax" (including, with correlative meaning, the terms "Taxes", and "Taxable") includes all federal, state, local and foreign income, profits, alternative minimum tax, franchise, gross receipts, environmental, customs duty, capital stock, severances, stamp, payroll, sales, employment, unemployment, disability, use, property, withholding, excise, add-on, production, value added, occupancy and other taxes, duties or assessments of any nature whatsoever, together with all interest, penalties and additions imposed with respect to such amounts and any interest in respect of such penalties and additions, and (ii) the term "Tax Return" includes all returns and reports (including elections, declarations, disclosures, schedules, estimates and information returns) required to be supplied to a Tax authority relating to Taxes.
(m) Labor Matters. Except as set forth in Section 5.1(m) of its Disclosure Letter, neither it nor any of its Subsidiaries is a party to or otherwise bound by any collective bargaining agreement, contract or other agreement or understanding with a labor union or labor organization, nor is it or any of its Subsidiaries the subject of any material proceeding asserting that it or any of its Subsidiaries has committed an unfair labor practice or is seeking to compel it to bargain with any labor union or labor organization nor is there pending or, to the actual knowledge of its officers, threatened, nor has there been for the past five years, any labor strike, dispute, walk-out, work stoppage, slow-down or lockout involving it or any of its Subsidiaries. Each party has previously made available to the other correct and complete copies of all labor and collective bargaining agreements, Contracts or other agreements or understandings with a labor union or labor organization to which it or any of its Subsidiaries is party or by which any of them are otherwise bound (collectively, the "Labor Agreements"). The consummation of the Merger and the other transactions contemplated by this Agreement will not entitle any third party (including any labor union or labor organization) to any payments under any of the Labor Agreements.
(n) Intellectual Property.
(i) It or its Subsidiaries own (free and clear of any and all liens, claims or encumbrances), or is licensed or otherwise possesses sufficient legally enforceable rights to use, all patents, trademarks, trade names, service marks, brand marks, brand names, copyrights, and any applications therefor, technology, know-how, computer software programs or applications, databases, industrial designs and tangible or intangible proprietary information or materials that are currently used (or, with respect to trademarks, trade names, brand marks, brand names and service marks, have been used within the last five years) in its and its Subsidiaries' businesses (collectively, "Intellectual Property Rights"), except for any such failures to own, be licensed or possess that, individually or in the aggregate, are not reasonably likely to have a Material Adverse Effect.
(ii) Except as disclosed in the Reports filed prior to the date hereof, and except for such matters that, individually or in the aggregate, are not reasonably likely to have a Material Adverse Effect, (i) the use of the Intellectual Property Rights by it or its Subsidiaries does not conflict with, infringe upon, violate or interfere with or constitute an appropriation of any right, title, interest or goodwill including, without limitation, any intellectual
property right, patent, trademark, trade name, service mark, brand mark, brand name, copyright, technology, know-how, computer software program or application, database or industrial design of any other Person and (ii) there have been no claims made and neither it nor any of its Subsidiaries has received notice of any claim or otherwise knows that any Intellectual Property Right is invalid, conflicts with the asserted right of any other Person, has not been used or enforced or has been failed to be used or enforced in a manner that would result in the abandonment, cancellation or unenforceability of any Intellectual Property Right of it or any of its Subsidiaries.
(o) Insurance. All material fire and casualty, general liability, business interruption, product liability, and sprinkler and water damage insurance policies maintained by it or any of its Subsidiaries are with reputable insurance carriers, provide full and adequate coverage for all normal risks incident to the business of it and its Subsidiaries and their respective properties and assets, and are in character and amount at least equivalent to that carried by persons engaged in similar businesses and subject to the same or similar perils or hazards, except for any such failures to maintain insurance policies that, individually or in the aggregate, are not reasonably likely to have a Material Adverse Effect.
(p) Rights Plan. (i) The Company has amended the Rights Agreement to provide that (x) Parent shall not be deemed an Acquiring Person (as defined in the Rights Agreement), (y) the Distribution Date (as defined in the Rights Agreement) shall not be deemed to occur and (z) the Rights will not separate from the Shares, in each case, as a result of entering into this Agreement or consummating the Merger and/or the other transactions contemplated hereby.
(ii) The Company has taken all necessary action with respect to all of the outstanding Rights (as defined in the Rights Agreement) so that, as of immediately prior to the Effective Time, the Rights Agreement will expire without any payment by the Company in respect of the Rights.
(q) Brokers and Finders. Neither it nor any of its officers, directors or employees has employed any broker or finder or incurred any liability for any brokerage fees, commissions or finders fees in connection with the Merger or the other transactions contemplated in this Agreement except (i) that the Company has employed Merrill Lynch as its financial advisor, the arrangements with which have been disclosed to Parent prior to the date hereof and (ii) for the arrangements set forth on Parent's Supplemental
Disclosure Schedule and that Parent has employed Warburg Dillon Read LLC as it financial advisor, the arrangements with which have been disclosed to the Company prior to the date hereof. As used in this subsection, "Parent's Supplemental Disclosure Schedule" means the disclosure schedule delivered by Parent to the Company dated the Second Amendment Date.
(r) Year 2000. Except as disclosed in the Reports filed prior to the date hereof, all computer systems and computer software used by it or any of its Subsidiaries, and the material computer systems and computer software of its material commercial counterparties, recognize or are being adapted so that, prior to December 31, 1999, they shall recognize the advent of the year A.D. 2000 and can correctly recognize or are being adapted so that they can correctly recognize and manipulate date information relating to dates on or after January 1, 2000 and the operation and functionality of such computer systems and such computer software will not be adversely affected by the advent of the year A.D. 2000 or any manipulation of data featuring information relating to dates before, on or after January 1, 2000 ("Millennium Functionality"), except in each case for such computer systems and computer software, the failure of which to achieve Millennium Functionality, individually or in the aggregate, has not had and is not reasonably likely to have a Material Adverse Effect. Except as disclosed in the Reports filed prior to the date hereof, the costs of the adaptions necessary to achieve Millennium Functionality are not reasonably likely to have a Material Adverse Effect.
(s) Regulatory Proceedings. Except as set forth in the Reports,
neither the Company nor any of its Subsidiaries, all or part of whose rates or
services are regulated by a Governmental Entity, (i) has rates which have been
or are being collected subject to refund, pending final resolution of any
proceeding pending before a Governmental Entity or on appeal to the courts or
(ii) is a party to any proceeding before a Governmental Entity or on appeal from
orders of a Governmental Entity which have had or are reasonably likely to
result in orders having a Material Adverse Effect.
(t) FERC Jurisdiction. To the actual knowledge of its officers, neither the Company nor any of its Subsidiaries, nor any other entity in which the Company, directly or indirectly owns or expects to retain any interest, owns or operates any FERC jurisdictional facilities giving rise to a requirement for approval of the Merger by the FERC.
(u) Regulation as a Utility. (i) It is not regulated as a public
utility or public service company by any state. Other than as set forth in
Section 5.1(u) of its Disclosure Letter, none of its Subsidiaries or Affiliates
is subject to regulation as a public utility or public service company (or
similar designation) by any state in the United States or in any foreign
country.
(ii) Each of Parent and the Company is a holding company exempt from registration pursuant to Section 3(a)(1) of the 1935 Act, as amended.
(v) Ownership of Shares. (i) Neither the Company nor any of its Subsidiaries "Beneficially Owns" (as such term is defined in the Parent Rights Agreement) any shares of Parent Common Stock.
(ii) Neither Parent nor any of its Subsidiaries "Beneficially Owns" (as such term is defined in the Rights Agreement) any Shares.
(w) Schedule 5.1(w). Except with respect to the items set forth on Schedule 5.1(w) hereto, as of the Second Amendment Date, the executive officers of the Company have no knowledge of any fact, occurrence, event, effect or change that, individually or in the aggregate with any other fact, occurrence, event, effect or change has had or is reasonably likely, as of the Closing Date, to have a Material Adverse Effect on the Company. As of the Second Amendment Date, the Company has disclosed to Parent all material information relating to the events, circumstances and facts set forth on Schedule 5.1(w), and such disclosure does not contain any untrue statement of a material fact and such disclosure does not omit any material fact necessary to make the disclosure, in light of the circumstances, not misleading.
ARTICLE VI
Covenants
6.1. Interim Operations.
(a) Subject to Section 6.1.A., the Company covenants and agrees as to itself and its Subsidiaries that after the Second Amendment Date and prior to the Effective Time (unless Parent shall otherwise approve in writing, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):
(i) the business of the Company and its Subsidiaries shall be conducted in the ordinary and usual course and, to the extent consistent therewith, it and its Subsidiaries shall use their respective best reasonable efforts to (A) preserve its business organization intact and maintain its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates and (B) maintain and keep material properties and assets in as good repair and condition as such are in as of the date hereof, subject to ordinary wear and tear;
(ii) the Company shall not (A) issue, sell, pledge, dispose of or encumber any capital stock owned by it in any of its Subsidiaries; (B) amend its articles of incorporation or by-laws or amend, modify or terminate the Rights Agreement; (C) split, combine, subdivide or reclassify its outstanding shares of capital stock; (D) declare, set aside or pay any dividend payable in cash, stock or property in respect of any capital stock (other than dividends from its direct or indirect wholly owned Subsidiaries and other than regular quarterly cash dividends not in excess of $0.255 per Share and regular quarterly cash dividends on the preferred and preference stock of its Subsidiaries); or (E) repurchase, redeem or otherwise acquire (except for (I) mandatory sinking funds obligations existing on the date hereof and (II) open market repurchases pursuant to the terms of the Company's Direct Stock Purchase Plan and Dividend Reinvestment Plan), or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of its capital stock or any securities convertible into or exchangeable or exercisable for any shares of its capital stock;
(iii) neither the Company nor any of its Subsidiaries shall (A) issue, sell, pledge, dispose of or encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its capital stock of any class or any other property or assets (other than (I) Shares issuable pursuant to options and other rights outstanding on the date hereof under the Stock Plans, issuances of additional options or rights to acquire Shares granted pursuant to the terms of the Stock Plans as in effect on the date hereof in the ordinary and usual course of the operation of such Stock Plans and issuances of Shares pursuant to options granted after the date hereof pursuant to the Stock Plans and (II) Shares issuable pursuant to the terms of the outstanding Feline Prides); (B) (I) transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any of its
coal fines property or assets, or, (II) except as identified on Section 6.1(a)(iii) of the Company Disclosure Letter, other than in the ordinary and usual course of business and other than sales not in excess of $10,000,000 in the aggregate or $1,000,000 in respect of any transaction or series of related transactions, transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any other property or assets; (C) make or authorize or commit for any capital expenditures or operation and maintenance expenditures in excess of 100% of those contemplated to be spent pursuant to the year 1999, 2000 or 2001 capital appropriations/spending budgets set forth in Section 6.1(a) of the Company Disclosure Letter; or (D) by any means, make any acquisition of, or investment in, assets or stock of, or other interest in, any other Person or entity in excess of $10,000,000 in the aggregate or $3,000,000 in respect of any transaction or series of related transactions;
(iv) except as set forth in Section 6.1(a)(iv) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries shall (A) accelerate or delay collection of notes or accounts receivable in advance of or beyond their regular due dates or the dates consistent with past practice or (B) change any significant accounting principle, practice or method, except to the extent required by U.S. GAAP as advised by the Company's regular independent accountants and after consultation with Parent;
(v) neither the Company nor any of its Subsidiaries shall take or fail to take any action that is reasonably likely to make any representation or warranty of the Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that is, individually or in the aggregate, reasonably likely to have a Material Adverse Effect;
(vi) except as required by applicable Law, an existing collective bargaining agreement or other Contract identified in Section 6.1(a)(vi) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries shall terminate, establish, adopt, enter into, make any new grants or awards under, amend or otherwise modify, any Compensation and Benefit Plans (other than issuances of additional options, performance shares or rights to acquire Shares granted pursuant to the terms of the Stock Plans as in effect on the date hereof in the ordinary and usual course of the operation of such Stock Plans, provided, that any such additional options, performance shares or rights to acquire Shares shall not vest in connection with the Merger and the other transactions contemplated by this Agreement),
or except as required by any existing contract with a non-officer employer increase the salary, wage, bonus or other compensation of any employees, except increases occurring in the ordinary and usual course of business (which shall include normal periodic performance reviews and related compensation and benefit increases);
(vii) except as required by applicable law, an existing collective bargaining agreement or other Contract identified in Section 6.1(a)(vii) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries shall grant any severance or termination pay to, or enter into any employment or severance agreement with any director or officer of it or such Subsidiaries, provided, that the foregoing shall not require the Company to violate any of its obligations existing prior to the date hereof as set forth in Section 5.1(h) of the Company Disclosure Letter;
(viii) neither the Company nor any of its Subsidiaries shall settle or compromise any material claims or litigation or amend or terminate any of its material Contracts or waive, release or assign any material rights or claims;
(ix) neither the Company nor any of its Subsidiaries shall make any Tax election (other than in the ordinary and usual course or as is required by Law) or permit any insurance policy naming it as a beneficiary or loss-payable payee to be canceled or terminated except in the ordinary and usual course of business;
(x) neither the Company nor any of its Subsidiaries shall make any filing (other than in the ordinary and usual course) with the MPSC, SEC or MPSC; and
(xi) neither the Company nor any of its Subsidiaries will authorize or enter into an agreement to do any of the foregoing.
(b) Parent covenants and agrees as to itself and its Subsidiaries that after the date hereof and prior to the Effective Time (unless the Company shall otherwise approve, which approval shall not be unreasonably withheld or delayed, and except as otherwise expressly contemplated by this Agreement):
(i) the business of Parent and its Subsidiaries shall be conducted in the ordinary and usual course and, to the extent consistent therewith, it and its Subsidiaries shall use their respective best reasonable efforts to (A) preserve its business organization intact and maintain
its existing relations and goodwill with customers, suppliers, distributors, creditors, lessors, employees and business associates and (B) maintain and keep material properties and assets in as good repair and condition as such are in as of the date hereof, subject to ordinary wear and tear;
(ii) it shall not (A) amend its articles of incorporation or by-laws; (B) split, combine, subdivide or reclassify its outstanding shares of capital stock; (C) declare, set aside or pay any dividend payable, in cash, stock or property in respect of any capital stock, other than dividends from its direct or indirect wholly owned Subsidiaries and other than regularly quarterly cash dividends not in excess of $0.515 per share of Parent Common Stock and regularly quarterly cash dividends on the preferred and preference stock of its Subsidiaries; or (D) repurchase, redeem or otherwise acquire, or permit any of its Subsidiaries to purchase or otherwise acquire, any shares of Parent Common Stock or any securities convertible into or exchangeable or exercisable for any shares of Parent Common Stock (other than repurchases, redemptions or other acquisitions which are made at the then-prevailing market price of Parent Common Stock on the NYSE and which in the aggregate do not exceed ten percent of the shares of Parent Common Stock outstanding as of the date hereof);
(iii) neither Parent nor any of its Subsidiaries shall, (A) issue, sell, pledge, dispose of or encumber any shares of, or securities convertible into or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of Parent Common Stock (other than (I) shares of Parent Common Stock issuable pursuant to options outstanding on the date hereof under the Parent Stock Plan, issuances of additional options or rights to acquire shares of Parent Common Stock granted pursuant to the terms of the Parent Stock Plan as in effect on the date hereof in the ordinary and usual course of the operation of such Parent Stock Plan and issuances of shares of Parent Common Stock pursuant to options granted after the date hereof pursuant to the Parent Stock Plan and (II) issuances of Parent Common Stock, or securities convertible with or exchangeable or exercisable for, or options, warrants, calls, commitments or rights of any kind to acquire, shares of Parent Common Stock, to a third-party on arms-length terms not in excess of 20% of the number of shares of Parent Common Stock outstanding as of the date hereof) or (B) acquire "Beneficial Ownership" (as such term is defined in the Rights Agreement) of any Shares;
(iv) neither Parent nor any of its Subsidiaries shall take or fail to take any action that is reasonably likely to make any representation or warranty of such party contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time, or that is, individually or in the aggregate, reasonably likely to have a Material Adverse Effect; and
(v) neither Parent nor any of its Subsidiaries will authorize or enter into an agreement to do any of the foregoing.
6.1.A. Supplemental Interim Operations Covenants.
(a) Notwithstanding any other provision of this Agreement, the Company covenants and agrees as to itself and its Subsidiaries that after the Second Amendment Date and prior to the Effective Time, neither the Company nor any of its Subsidiaries shall:
(i) transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any property or assets located outside of the Company's service territory with a value of more than $1,000,000;
(ii)(A) incur, assume or prepay any long-term debt or incur or assume any short-term debt, except for the incurrence of long-term indebtedness in connection with the refinancing of existing indebtedness either at its stated maturity or at a lower cost of funds or (B) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any third-party, including by means of any "keep well" or other agreement to support or maintain any financial statement condition of another person;
(iii)(A) enter into any new contracts or agreements (including hedging contracts) relating to the supply of natural gas or any other commodity or the marketing of natural gas or any other commodity with either a duration in excess of 90 days or a notional value in excess of $1,000,000 or (B) transfer, decrement, lease, license, sell, mortgage, pledge, dispose of or encumber any natural gas properties or reserves;
(iv) authorize or enter into an agreement to do any of the foregoing.
(b) Notwithstanding any other provision of this Agreement, the Company covenants and agrees as to itself and its Subsidiaries that after the receipt of the Company
Requisite Vote at the Second Shareholders Meeting and prior to the Effective
Time, the Company shall provide Parent with reasonable advance notice of, and
permit Parent to review (i) all business decisions that the Company believes are
reasonably likely to involve, or relate to, any expenditure (or group of related
expenditures) or financial exposure (or group of related financial exposures) of
more than $1,000,000 and (ii) all transfers, leases, licenses, guarantees,
sales, mortgages, pledges, dispositions of or encumbrances of any property or
assets with a value of more than $5,000,000 (any action contemplated by clause
(i) or (ii) being a "Significant Action"). In addition, the Company shall, to
the extent practicable and not inappropriate, give Parent advance notice of and
permit appropriate representatives of Parent to attend all significant internal
business meetings involving any of the employees of the Company set forth on
Schedule 6.1.A(b) after the receipt of the Company Requisite Vote at the Second
Shareholders Meeting and prior to the Effective Time, and the Company covenants
and agrees that neither it nor any of its Subsidiaries shall take any
Significant Action (or authorize or enter into an agreement to take any
Significant Action) without the prior written consent of Parent (which shall not
be unreasonably withheld); provided, however, that nothing in this Section
6.1.A(b) shall prevent the Company or any of its Subsidiaries from complying
with applicable Law or any contractual arrangement entered into prior to the
Second Amendment Date.
(c) For the avoidance of doubt only and without limiting the
foregoing, the parties hereto agree that in the event of a conflict between the
provisions of this Section 6.1.A. and the provisions of Section 6.1(a), the
provisions of this Section 6.1.A. shall control. Parent shall be responsible for
developing reasonable procedures for implementing the procedures set forth in
Section 6.1.A(b) and for receiving approval to take any action set forth in
Section 6.1.A.(a) and communicating those procedures to the Company prior to the
receipt of the Company Requisite Vote at the Second Shareholders Meeting. In the
event that such procedures are not in place, or such procedures are not adequate
in a particular circumstance, the Company shall be required to receive the prior
approval of any of the employees of Parent set forth on Schedule 6.1.A(b) prior
to taking any of the actions set forth in Section 6.1.A.(a) or taking any
Significant Action, and Parent shall make such employees reasonably available to
the Company for such purpose.
6.2. Acquisition Proposals. The Company agrees that neither it nor any of its Subsidiaries nor any of the
officers and directors of it or its Subsidiaries shall, and that it shall direct and use its best efforts to cause its and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries ("Representatives")) not to, directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries or the making of any proposal or offer with respect to a merger, reorganization, share exchange, consolidation or similar transaction involving, or any purchase of all or, except for transactions in the ordinary course of business or expressly contemplated by this Agreement that could not interfere with the transactions contemplated by this Agreement, including by Section 6.1(a)(iii), any of the assets or any equity securities of, it or any of its Subsidiaries (any such proposal or offer being hereinafter referred to as a "Company Acquisition Proposal"). The Company further agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall direct and use its best efforts to cause its and its Subsidiaries' Representatives not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person relating to a Company Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement a Company Acquisition Proposal; provided, however, that nothing contained in this Agreement (including the last preceding sentence and Section 6.1(b)) shall prevent the Company or its Board of Directors or Parent or its Board of Directors, as applicable, from (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to a Company Acquisition Proposal; (B) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Company Acquisition Proposal if the Company's Board of Directors receives from the Person so requesting such information an executed confidentiality agreement on terms, with respect to confidentiality, substantially similar to those contained in the Confidentiality Agreement (as defined in Section 9.7); (C) engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Company Acquisition Proposal; or (D) recommending such Company Acquisition Proposal to the shareholders of the Company if and only to the extent that, in each such case referred to in clause (B), (C) or (D) above, prior to the time the Company Requisite Vote shall have been obtained at the Second Shareholders Meeting (as defined in Section 6.4.A.), the Board of Directors of the Company determines in good faith after consultation with outside legal counsel and its financial advisor and based
upon such other matters as it deems relevant that failure to take such action would likely result in a breach of their fiduciary duties under applicable law and that such Company Acquisition Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the Person making the proposal and would, if consummated, be reasonably likely to result in a transaction more favorable to the Company's shareholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being referred to in this Agreement as a "Superior Proposal"). The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Company Acquisition Proposal. The Company agrees that it will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.2 and in the Confidentiality Agreement. The Company agrees that it will use its best reasonable efforts to notify Parent within one day of the receipt thereof if any such inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, any of its Representatives indicating, in connection with such notice, the name of such Person and the material terms and conditions of any proposals or offers and thereafter shall keep Parent informed, on a current basis, on the status and terms of any such proposals or offers and the status of any such discussions or negotiations. The Company also agrees that it will promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring all or substantially all of it, Michigan Consolidated Gas Company or MCN Investment Corporation to return all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries.
6.3. Information Supplied. The Company and Parent each agrees, as to itself and its Subsidiaries, that none of the information supplied or to be supplied by it or its Subsidiaries for inclusion or incorporation by reference in (i) the post-effective amendment to the Registration Statement on Form S-4 to be filed with the SEC by Parent in connection with the issuance of Parent Common Stock in the Merger (including the proxy statement and prospectus (the "Prospectus/Proxy Statement") constituting a part thereof) (the "S-4 Registration Statement") will, at the time the post-effective amendment to the S-4 Registration Statement becomes effective under the Securities Act, contain any
untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (ii) the Prospectus/Proxy Statement and any amendment or supplement thereto will, at the date of mailing to shareholders and at the times of the meetings of shareholders of the Company and Parent to be held in connection with the Merger and the issuance of Parent Common Stock, respectively, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company and Parent will cause the Form S-4, as amended, to comply as to form in all material respects with the applicable provisions of the Securities Act and the rules and regulations thereunder.
6.4. Shareholders Meetings. The Company will take, in accordance with applicable law and its articles of incorporation and by-laws, all action necessary to convene a meeting of holders of Shares (the "Shareholders Meeting") as promptly as practicable after the S-4 Registration Statement is declared effective to consider and vote upon the approval of this Agreement. Parent will take, in accordance with its articles of incorporation and by-laws, all action necessary to convene a meeting of holders of Parent Common Stock as promptly as practicable after the S-4 Registration Statement is declared effective to consider and vote upon the approval of the issuance of Parent Common Stock in the Merger. Subject to fiduciary obligations under applicable law, each of the Company's and Parent's Board of Directors shall recommend such approval and shall take all lawful action to solicit such approval.
6.4.A. Second Shareholders Meeting. The Company will take, in accordance with applicable law and its articles of incorporation and by-laws, all action necessary to convene a meeting of holders of Shares (the "Second Shareholders Meeting") as promptly as practicable after the post-effective amendment to the S-4 Registration Statement is declared effective to consider and vote upon the approval of this Agreement. Subject to fiduciary obligations under applicable law, the Company's Board of Directors shall recommend such approval and shall take all lawful action to solicit such approval.
6.5. Filings; Other Actions; Notification. (a) Parent and the Company shall promptly prepare and file with the SEC the Prospectus/Proxy Statement, and Parent shall prepare and file with the SEC the post-effective
amendment to the S-4 Registration Statement as promptly as practicable. Parent and the Company each shall use its best reasonable efforts to have the post-effective amendment to the S-4 Registration Statement declared effective under the Securities Act as promptly as practicable after such filing, and promptly thereafter mail the Prospectus/Proxy Statement to the respective shareholders of each of the Company and Parent. Parent shall also use its best reasonable efforts to obtain prior to the effective date of the post-effective amendment to the S-4 Registration Statement all necessary state securities law or "blue sky" permits and approvals required in connection with the Merger and to consummate the other transactions contemplated by this Agreement and will pay all expenses incident thereto.
(b) The Company and Parent each shall use its best reasonable efforts to cause to be delivered to the other party and its directors a letter of its independent auditors, dated (i) the date on which the post-effective amendment to the S-4 Registration Statement shall become effective and (ii) the Closing Date, and addressed to the other party and its directors, in form and substance customary for "comfort" letters delivered by independent public accountants in connection with registration statements similar to the S-4 Registration Statement.
(c) The Company and Parent shall cooperate with each other and use (and shall cause their respective Subsidiaries to use) their respective commercially reasonable efforts to take or cause to be taken all actions, and do or cause to be done all things, necessary, proper or advisable on its part under this Agreement and applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as soon as practicable, including preparing and filing as promptly as practicable all documentation to effect all necessary notices, reports and other filings and to obtain as promptly as practicable all consents, registrations, approvals, permits and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Merger or any of the other transactions contemplated by this Agreement. Subject to applicable laws relating to the exchange of information (including any obligations pursuant to any listing agreement with or rules of any national securities exchange), Parent and the Company shall have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to Parent or the Company, as the case may be, and any of their respective Subsidiaries, that appear in any filing made with, or written materials submitted to, any third party and/or any
Governmental Entity (including any national securities exchange) in connection with the Merger and the other transactions contemplated by this Agreement. In exercising the foregoing right, each of the Company and Parent shall act reasonably and as promptly as practicable.
(d) The Company and Parent each shall, upon request by the other, furnish the other with all information concerning itself, its Subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the Prospectus/Proxy Statement, the post-effective amendment to the S-4 Registration Statement or any other statement, filing, notice or application made by or on behalf of Parent, the Company or any of their respective Subsidiaries to any third party and/or any Governmental Entity in connection with the Merger and the transactions contemplated by this Agreement.
(e) The Company and Parent each shall keep the other apprized of the status of matters relating to completion of the transactions contemplated hereby, including promptly furnishing the other with copies of any notices or other communications received by Parent or the Company, as the case may be, or any of its Subsidiaries, from any third party and/or any Governmental Entity with respect to the Merger and the other transactions contemplated by this Agreement. The Company and Parent each shall give prompt notice to the other of any change that is reasonably likely to result in a Material Adverse Effect on it or prevent, materially delay or materially impair the ability of the Company or Parent, as the case may be, to consummate the transactions contemplated by this Agreement.
(f) In the event any claim, action, suit investigation or other proceeding by any Governmental Entity or other Person or other legal or administrative proceeding is commenced that questions the validity or legality of this Agreement or the Merger or the other transaction contemplated by this Agreement or claims damages in connection therewith, the Company and Parent each agree to cooperate and use their best reasonable efforts to defend against and respond thereto.
6.6. Access. Upon reasonable notice, and except as may otherwise be required by applicable law, the Company and Parent each shall (and shall cause its Subsidiaries to) afford the other's officers, employees, counsel, accountants and other authorized representatives reasonable access during normal business hours throughout the period prior to the Effective Time, to its properties, books, contracts and records and, during such period, the Company and Parent each
shall (and shall cause its Subsidiaries to) furnish promptly to the other all information concerning its business, properties and personnel as may reasonably be requested, provided that no investigation pursuant to this Section shall affect or be deemed to modify any representation or warranty made by the Company, Parent or Merger Sub and provided, further, that the foregoing shall not require the Company or Parent to permit any inspection, or to disclose any information, that in the reasonable judgment of the Company or Parent (i) would result in the disclosure of any trade secrets of third parties or violate any of its obligations with respect to confidentiality if the Company or Parent, as the case may be, shall have used its best reasonable efforts to obtain the consent of such third party to such inspection or disclosure or (ii) constitutes information protected by attorney-client privilege, but only to the extent that disclosure would impair the Company's or Parent's, as the case may be, ability to assert such attorney-client privilege. All requests for information made pursuant to this Section shall be directed to an executive officer of the Company or Parent, as the case may be, or such Person as may be designated by either of its executive officers, as the case may be. All such information shall be governed by the terms of the Confidentiality Agreement.
6.7. Affiliates. At least ten business days prior to the date of the Shareholders Meeting, the Company shall deliver to Parent a list of names and addresses of those Persons who are, in the opinion of the Company, as of the time of the Shareholders Meeting referred to in Section 6.4, "affiliates" of the Company within the meaning of Rule 145 under the Securities Act. There shall be added to such list the names and addresses of any other Person subsequently identified by either Parent or the Company as a Person who may be deemed to be such an affiliate of the Company; provided, however, that no such Person identified by Parent shall be added to the list of affiliates of the Company if Parent shall receive from the Company, on or before the date of the Shareholders Meeting, an opinion of counsel reasonably satisfactory to Parent to the effect that such Person is not such an affiliate. The Company shall exercise its best efforts to deliver or cause to be delivered to Parent, prior to the date of the Shareholders Meeting, from each affiliate of the Company identified in the foregoing list (as the same may be supplemented as aforesaid), a letter dated as of the Closing Date substantially in the form attached as Exhibit A-1 (the "Affiliates Letter"). Parent shall not be required to maintain the effectiveness of the S-4 Registration Statement or any other registration statement under the Securities Act
for the purposes of resale of Parent Common Stock by such affiliates received in the Merger and the certificates representing Parent Common Stock received by such affiliates shall bear a customary legend regarding applicable Securities Act restrictions and the provisions of this Section.
6.7.A. Affiliates. At least ten business days prior to the date of the Second Shareholders Meeting, the Company shall deliver to Parent a list of names and addresses of those Persons who are, in the opinion of the Company, as of the time of the Second Shareholders Meeting referred to in Section 6.4.A., "affiliates" of the Company within the meaning of Rule 145 under the Securities Act. There shall be added to such list the names and addresses of any other Person subsequently identified by either Parent or the Company as a Person who may be deemed to be such an affiliate of the Company; provided, however, that no such Person identified by Parent shall be added to the list of affiliates of the Company if Parent shall receive from the Company, on or before the date of the Second Shareholders Meeting, an opinion of counsel reasonably satisfactory to Parent to the effect that such Person is not such an affiliate. The Company shall exercise its best efforts to deliver or cause to be delivered to Parent, prior to the date of the Second Shareholders Meeting, from each affiliate of the Company identified in the foregoing list (as the same may be supplemented as aforesaid), a letter dated as of the Second Shareholders Meeting substantially in the form attached as Exhibit A-1 (the "Affiliates Letter"). Parent shall not be required to maintain the effectiveness of the S-4 Registration Statement or any other registration statement under the Securities Act for the purposes of resale of Parent Common Stock by such affiliates received in the Merger and the certificates representing Parent Common Stock received by such affiliates shall bear a customary legend regarding applicable Securities Act restrictions and the provisions of this Section.
6.8. Stock Exchange Listing and De-listing. Parent shall use its best efforts to cause the shares of Parent Common Stock to be issued in the Merger to be approved for listing on the NYSE subject to official notice of issuance, prior to the Closing Date. The Surviving Corporation shall use its best efforts to cause the Shares to be de-listed from the NYSE and de-registered under the Exchange Act as soon as practicable following the Effective Time.
6.9. Publicity. The initial press release shall be a joint press release and thereafter the Company and
Parent each shall consult with each other prior to issuing any press releases or otherwise making public announcements with respect to the Merger and the other transactions contemplated by this Agreement.
6.10. Benefits.
(a) Stock Options. (i) At the Effective Time, each outstanding option to purchase Shares (a "Company Option") under the Stock Plans, whether vested or unvested, shall be deemed to constitute an option to acquire, on the same terms and conditions as were applicable under such Company Option, the number of shares of Parent Common Stock equal to the result (rounded to the nearest whole share) of multiplying the number of Shares subject to the Company Option immediately prior to the Effective Time by the Conversion Ratio (as defined below), at an exercise price per share equal to the result (rounded to the nearest whole cent) of dividing the per share exercise price of such Company Option immediately prior to the Effective Time by the Conversion Ratio; provided, however, that in the case of any Company Option to which Section 422 of the Code applies, the adjustments provided for in this Section shall be effected in a manner consistent with the requirements of Section 424(a) of the Code. At or prior to the Effective Time, the Company shall make all necessary arrangements with respect to the Stock Plans to permit the assumption of the unexercised Company Options by Parent pursuant to this Section. For purposes of this Section, the term "Conversion Ratio" means a fraction, the numerator of which is the average of the high and low sales price of one Share on the NYSE on the three trading days immediately preceding the Effective Time and the denominator of which is the average of the high and low sales price of one share of Parent Common Stock on the NYSE on the trading day immediately preceding the Effective Time.
(ii) Effective at the Effective Time, Parent shall assume each Company Option in accordance with the terms of the Stock Plans and the stock option agreement by which it is evidenced. At or prior to the Effective Time, Parent shall take all corporate action necessary to reserve for issuance a sufficient number of shares of Parent Common Stock for delivery upon exercise of Company Options assumed by it in accordance with this Section. As soon as practicable after the Effective Time, Parent shall file a registration statement on Form S-8 (or any successor or other appropriate forms), or another appropriate form with respect to the shares of Parent Common Stock subject to such Company Options, and shall use its best reasonable efforts to maintain the effectiveness of such registration statement
(and maintain the current status of the prospectus or prospectuses contained therein) for so long as such Company Options remain outstanding.
(iii) Prior to the Effective Time, the Board of Directors of Parent, or an appropriate committee of non-employee directors thereof, shall adopt a resolution consistent with the interpretive guidance of the SEC so that the acquisition of shares of Parent Common Stock or options to acquire shares of Parent Common Stock pursuant to this Agreement and the Merger and the Merger shall be an exempt transaction for purposes of Section 16 by any officer or director of the Company who may become a covered person of Parent for purposes of Section 16 of the Exchange Act ("Section 16").
(b) Employee Benefits. (i) Parent agrees that, during the period commencing at the Effective Time and ending on the first anniversary thereof, the employees of the Company and its Subsidiaries ("Company Employees") will continue to be provided with compensation and benefits under employee benefit plans (other than plans involving the issuance of Shares) that are no less favorable in the aggregate than those currently provided by the Company and its Subsidiaries to such Company Employees under the Compensation and Benefit Plans of the Company and its Subsidiaries.
(ii) From and after the Effective Time, Parent shall cause the Surviving Corporation and The Detroit Edison Company to honor (i) each existing employment, change of control, severance and termination agreement between the Company or any of its Subsidiaries, and any officer, director or employee of the Company or its Subsidiaries and (ii) all Compensation and Benefit Plans of the Company and its Subsidiaries in accordance with their terms as in effect immediately before the Effective Time. Notwithstanding the above, nothing in this Agreement precludes Parent or any of its Subsidiaries from amending, discontinuing or terminating any Compensation and Benefit Plan in accordance with the terms thereof. Parent acknowledges that it has been advised by the Company that the Merger constitutes a change of control for purposes of certain Company Compensation and Benefit Plans specifically identified in Section 6.10(b) of the Company Disclosure Letter.
(iii) For all purposes under the employee benefit plans of Parent and its Affiliates providing benefits to any current Company Employees after the Effective Time (the "New Plans"), each Company Employee shall be credited with his or her years of service with the Company and its Affiliates
before the Effective Time, to the same extent as such Company Employee was entitled, before the Effective Time, to credit for such service for such purposes under any similar Company Employee Plans, except to the extent such credit would result in a duplication of benefits. In addition, and without limiting the generality of the foregoing: (i) each Company Employee shall be immediately eligible to participate, without any waiting time, in any and all New Plans to the extent coverage under such New Plan replaces coverage under a comparable Company Employee Plan in which such Company Employee participated immediately before the Effective Time (such plans, collectively, the "Old Plans"); and (ii) for purposes of each New Plan providing medical, dental, pharmaceutical and/or vision benefits to any Company Employee, Parent shall cause all pre-existing condition exclusions of such New Plan to be waived for such employee and his or her covered dependents to the extent that such exclusions and requirements were waived under the corresponding Company Employee Plans, and Parent shall cause any eligible expenses incurred by such employee and his or her covered dependents during the portion of the plan year of the Old Plan ending on the date that such employee's participation in the corresponding New Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employee and his or her covered dependents for the applicable plan-year as if such amounts had been paid in accordance with such New Plan.
(iv) Between the date hereof and December 31, 1999, the Company shall take such reasonable and appropriate actions as agreed to by Parent to mitigate the tax cost to the Company of providing the "change of control" benefits identified in Section 5.1(h) of the Company Disclosure Letter.
(c) Election to Parent's Board of Directors; Management Executive Committee. At the Effective Time of the Merger, Parent shall promptly increase the size of its Board of Directors or exercise its best efforts to secure the resignation of present directors in order to cause Alfred R. Glancy III and two additional persons selected by the Company after consultation with Parent from among the Company's directors as of the date hereof to be appointed to Parent's Board of Directors.
(d) Employees. It is the present intention of Parent and the Company that following the Effective Time, there will be no involuntary reductions in force at the Surviving Corporation or its Subsidiaries, and that Parent, the Surviving Corporation and their respective Subsidiaries
will continue Parent's and the Company's present strategy of achieving workforce reductions through attrition or other voluntary means; provided, however, that if any reductions in workforce in respect of employees of Parent and its Subsidiaries, including the Surviving Corporation and its Subsidiaries, become necessary, they shall be made on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications, and business needs without regard to whether employment prior to the Effective Time was with the Company or its Subsidiaries or Parent or its Subsidiaries, and any employees whose employment is terminated or jobs are eliminated by Parent, the Surviving Corporation or any of their respective Subsidiaries shall be entitled to participate on a fair and equitable basis in the job opportunity and employment placement programs offered by Parent, the Surviving Corporation or any of their respective Subsidiaries. Any workforce reductions carried out following the Effective Time by Parent or the Surviving Corporation and their respective Subsidiaries shall be done in accordance with all applicable collective bargaining agreements, and all laws and regulations governing the employment relationship and termination thereof including, without limitation, the Worker Adjustment and Retraining Notification Act and regulations promulgated thereunder, and any comparable state or local law.
6.11. Expenses. The Surviving Corporation or Parent shall pay all
charges and expenses of the Company, Merger Sub or Parent, including those of
the Exchange Agent, in connection with the transactions contemplated in Article
IV, and Parent shall reimburse the Surviving Corporation for such charges and
expenses paid by the Surviving Corporation. Except as otherwise provided in
Section 8.5(b), whether or not the Merger is consummated, all costs and expenses
incurred in connection with this Agreement and the Merger and the other
transactions contemplated by this Agreement shall be paid by the party incurring
such expense, except that expenses incurred in connection with the filing fee
for the S-4 Registration Statement and printing and mailing the Prospectus/Proxy
Statement and the S-4 Registration Statement shall be shared equally by Parent
and the Company.
6.12. Indemnification; Directors' and Officers' Insurance. (a) From and after the Effective Time, Parent agrees that it will indemnify and hold harmless each present and former director and officer of the Company, (when acting in such capacity) determined as of the Effective Time (the "Indemnified Parties"), against any costs or expenses
(including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have been permitted under Michigan law and its articles of incorporation and its by-laws in effect on the date hereof to indemnify such Person (and Parent shall also advance expenses as incurred to the fullest extent permitted under applicable law, provided, the Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Person is not entitled to indemnification).
(b) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 6.12, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent thereof, but the failure to so notify shall not relieve Parent of any liability it may have to such Indemnified Party so long as such failure does not materially prejudice Parent. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) Parent or the Surviving Corporation shall have the right to assume and control the defense thereof and Parent shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if Parent or the Surviving Corporation elects not to assume such defense or counsel for the Indemnified Parties advises in writing that there are issues which raise conflicts of interest between Parent or the Surviving Corporation and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them subject to the consent of Parent, which shall not be unreasonably withheld, and Parent or the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements setting forth such fees and expenses in reasonable detail are received; provided, however, that Parent shall be obligated pursuant to this paragraph (b) to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction, (ii) the Indemnified Parties will cooperate in the defense of any such matter and (iii) Parent shall not be liable for any settlement effected without its prior written consent; and provided, further, that Parent shall not have any obligation hereunder to any Indemnified Party if and when a court of competent jurisdiction shall
ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law.
(c) The Surviving Corporation shall maintain the Company's existing officers' and directors' liability insurance ("D&O Insurance") for a period of six years after the Effective Time so long as the annual premium therefor is not in excess of 200% of the last annual premium paid prior to the date hereof (the "Current Premium"); provided, however, that (x) the Surviving Corporation may substitute therefor policies (which may be "tail" policies) containing terms with respect to coverage and amount no less favorable to such directors and officers, and (y) if the existing D&O Insurance expires, is terminated or canceled during such six-year period, the Surviving Corporation will use its best efforts to obtain as much D&O Insurance as can be obtained for the remainder of such period for a premium not in excess (on an annualized basis) of 200% of the Current Premium.
(d) The provisions of this Section 6.12 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties, their heirs and their representatives.
6.13. Takeover Statutes. If any Takeover Statute is or may become applicable to the Merger or the other transactions contemplated by this Agreement, each of Parent and the Company and its Board of Directors shall grant such approvals and take such actions as are necessary so that such transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement or by the Merger and otherwise act to eliminate or minimize the effects of such statute or regulation on such transactions.
6.14. Dividends. The Company shall coordinate with Parent the declaration, setting of record dates and payment dates of dividends on Shares so that holders of Shares do not receive dividends on both Shares and Parent Common Stock received in the Merger in respect of any calendar quarter or fail to receive a dividend on either Shares or Parent Common Stock received in the Merger in respect of any calendar quarter.
6.15. Rate Matters. In addition to the obligations set forth in
Section 6.1(a)(x), (I) from the Second Amendment Date until the Effective Time,
the Company shall not, and shall not permit any of its Subsidiaries to, make any
filing, or effect any material agreement, commitment, arrangement or consent,
whether written or oral,
formal or informal, with the MPSC with respect to MPSC utility cases identified
by case numbers U12761, U12762 and U12766 and any future filing relating to any
proposals with respect to gas cost recovery or gas choice and (II) after the
receipt of the Company Requisite Vote at the Second Shareholders Meeting, the
Company shall, and shall cause its Subsidiaries to, (i) discuss with Parent any
material changes in its or its Subsidiaries regulated rates or charges,
standards of service or accounting from those in effect on the date hereof, and
(ii) obtain the written approval of Parent prior to making any filing with
respect thereto (or any amendment thereto) or effecting any material agreement,
commitment, arrangement or consent, whether written or oral, formal or informal,
with respect thereto.
6.16. Taxation. Subject to Section 6.2, neither Parent nor the Company shall take or cause to be taken any action, whether before or after the Effective Time, that would disqualify the Merger as a "reorganization" within the meaning of Section 368(a) of the Code.
6.17. Transition Matters. (a) Promptly after the date hereof, Parent and the Company each shall designate three persons (the "Transition Coordinators") to, subject to applicable laws relating to the exchange of information, facilitate a full exchange of information concerning the business, operations, capital spending and budgets and financial results of Parent and the Company and to identify ways in which the operations of Parent and the Company can be consolidated or coordinated. The Transition Coordinators shall meet at least monthly in person and shall meet together quarterly with the Chief Executive Officers of Parent and the Company. From and after the date hereof, Parent and the Company agree that they shall consult with each other regarding all material business plans and decisions.
(b) The Company and Parent each agree to use its reasonable best efforts to enter into a definitive agreement within 14 days of the date hereof for the sale to Parent of the Company's 95% membership interest in each of the following limited liability companies that own and operate synthetic fuel manufacturing facilities: (i) CRC No. 1, LLC Union City, Kentucky, (ii) CRC No. 3, LLC, Tazewell County Virginia and McDowell County Virginia, (iii) CRC No. 5, LLC Monongalia County, West Virginia, and (iv) CRC No. 6, LLC Laurel County, West Virginia. The Company and Parent each agree that the economic terms for each such sale shall be designed to produce a payment stream to the Company with a net present value of $40 per ton of capacity, utilizing a 12% discount rate.
(c) The Company agrees to use its best efforts promptly to enter into,
or to cause its Subsidiaries promptly to enter into, agreements to dispose of
(i) such of its interests as are necessary so that the transactions contemplated
by this Agreement will not jeopardize the status of any facilities in which the
Company directly or indirectly owns any interest as "Qualifying Facilities"
under the Public Utility Regulatory Policies Act of 1978, as amended, and (ii)
all FERC-jurisdictional assets or facilities whether directly or indirectly
owned or wholly or partially owned that would give rise to a requirement for
approval of the Merger by the FERC, in each case prior to the date when all
Governmental Consents (as defined below) are obtained and to use commercially
reasonable efforts to maximize the after-tax proceeds from such sales or
dispositions; provided, that the obligation to use best efforts shall not
require the Company to take any action pursuant to this Section 6.17(c) that
would cause (alone or together with other events) any failure to satisfy any
condition to Closing. The Company agrees to keep Parent informed on a current
basis regarding the status and terms of such dispositions and any other asset
dispositions contemplated by the Company and its Subsidiaries and to work
cooperatively with Parent to maximize the mutual benefit to the parties of such
dispositions.
6.18. Community Involvement. After the Effective Time, Parent intends to continue, and intends to cause the Surviving Corporation to continue, to make aggregate annual charitable contributions to the communities served by Parent and the Surviving Corporation and otherwise maintain a substantial level of involvement in community activities in the State of Michigan that is similar to, or greater than, the normal aggregate annual level of charitable contributions, community development and related activities carried on by Parent and the Company prior to the date hereof.
6.19. 1935 Act and Power Act. (a) None of the parties hereto shall, nor shall any such party permit any of its Subsidiaries to, without the other party's consent, which shall not be unreasonably withheld or delayed, engage in any activities that would (i) cause a change in its status, or that of its Subsidiaries, under the 1935 Act, including, without limitation, the registration of either party pursuant to the 1935 Act or (ii) result in jurisdiction by the FERC over the Merger.
(b) None of the parties hereto shall, nor shall any such party permit any of its Subsidiaries to, without the other party's consent, which shall not be unreasonably
withheld or delayed, fail to take such actions that are necessary to (i) preserve existing exemptions from registration under the 1935 Act or (ii) allow the Merger to proceed without a requirement for approval by the FERC.
6.20. Feline Prides. At or prior to the Effective Time, Parent shall take all corporate action necessary to reserve for issuance a sufficient number of shares of Parent Common Stock for delivery upon conversion of the Feline Prides in accordance with their terms.
ARTICLE VII
Conditions
7.1. Conditions to Each Party's Obligation to Effect the Merger. The respective obligation of each party to effect the Merger is subject to the satisfaction or waiver at or prior to the Effective Time of each of the following conditions:
(a) Shareholder Approval. This Agreement shall have been duly approved by holders of Shares constituting the Company Requisite Vote at the Second Shareholders Meeting and shall have been duly approved by the sole shareholder of Merger Sub in accordance with applicable law and the articles of incorporation and by-laws of each such corporation, and the issuance of Parent Common Stock pursuant to the Merger shall have been duly approved by the holders of Parent Common Stock constituting the Parent Requisite Vote.
(b) NYSE Listing. The shares of Parent Common Stock issuable to the Company shareholders pursuant to this Agreement shall have been authorized for listing on the NYSE upon official notice of issuance.
(c) Regulatory Consents. The waiting period applicable to the consummation of the Merger under the HSR Act shall have expired or been terminated, and, other than the filing provided for in Section 1.3, all notices, reports and other filings required to be made prior to the Effective Time by the Company or Parent or any of their respective Subsidiaries with, and all consents, registrations, approvals, permits and authorizations required to be obtained prior to the Effective Time by the Company or Parent or any of their respective Subsidiaries from, any Governmental Entity (collectively, "Governmental Consents") in connection with the execution and delivery of this Agreement and the consummation of the Merger and the other
transactions contemplated hereby by the Company, Parent and Merger Sub shall have been made or obtained (as the case may be) and become final, except for those that the failure to make or to obtain, individually or in the aggregate, are not reasonably likely to have a Material Adverse Effect on Parent or the Company, as applicable, or provide a reasonable basis to conclude that the parties hereto or any of their affiliates or respective directors, officers, agents, advisors or other representatives would be subject to the risk of criminal or material financial liability.
(d) Litigation. No court or Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, law, ordinance, rule, regulation, judgment, decree, injunction or other order (whether temporary, preliminary or permanent) that is in effect and restrains, enjoins or otherwise prohibits consummation of the Merger or the other transactions contemplated by this Agreement (collectively, an "Order").
(e) S-4. The post-effective amendment to the S-4 Registration Statement shall have become effective under the Securities Act. No stop order suspending the effectiveness of the post-effective amendment to the S-4 Registration Statement shall have been issued, and no proceedings for that purpose shall have been initiated or be threatened, by the SEC.
(f) Blue Sky Approvals. Parent shall have received all state securities and "blue sky" permits and approvals necessary to consummate the transactions contemplated hereby.
(g) Certain Transactions. The Company shall have completed the disposition of the interests required to be disposed of by Section 6.17(c) of this Agreement.
7.2. Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger are also subject to the satisfaction or waiver by Parent at or prior to the Effective Time of the following conditions:
(a) Performance of Obligations of the Company. The Company shall have
performed in all material respects all obligations required to be performed by
it under Sections 6.1(a)(ii), (iii), (iv), (vi), (vii), (viii), (ix), (x) and
(xi) (as it relates to (a)(ii), (iii), (iv), (vi), (vii), (viii), (ix) and (x)),
Sections 6.1.A(a)(i), (ii), (iii) and (iv) and Sections 6.2, 6.4.A., 6.6, 6.13,
6.14,
6.15, 6.16 and 6.19 of this Agreement, and Parent shall have received a certificate signed on behalf of the Company by an executive officer of the Company to such effect.
(b) Accountants Letter. Parent shall have received, in form and substance reasonably satisfactory to Parent, from Deloitte & Touche LLP, the Company's independent auditor, the "comfort" letter described in Section 6.5(b).
(c) Affiliates Letters. Parent shall have received an Affiliates
Letter from each Person identified as an affiliate of the Company pursuant to
Section 6.7.A.
(d) Tax Opinion. Parent shall have received the opinion of Sullivan & Cromwell, counsel to Parent, dated the Closing Date, to the effect that (based on customary assumptions and representations and subject to customary exceptions) the Merger will be treated for Federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, and that each of Parent, Merger Sub and the Company will be a party to that reorganization within the meaning of Section 368(b) of the Code. The condition set forth in this Section 7.2(d) shall not be waivable after the Company Requisite Vote at the Second Shareholders Meeting or the Parent Requisite Vote has been obtained unless further shareholder approval is obtained with appropriate disclosure.
(e) Governmental Consents. All Governmental Consents in connection with the execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated hereby shall have been obtained, and the approval of the Federal Trade Commission and the U.S. Department of Justice under the HSR Act shall have been obtained without imposing any terms or conditions that, individually or in the aggregate, in the reasonable judgment of Parent, are reasonably likely to have a Material Adverse Effect on Parent, the Company or the Surviving Corporation. For purposes of this Section 7.2(e) only and for no other purpose of this Agreement, the term "Material Adverse Effect" shall exclude (in addition to the exclusions set forth in Section 5.1(a)) any change or effect arising out of that certain agreement between Exelon Energy Company, Inc. and Michcon, dated as of February 8, 2001, relating to Exelon's use of the Michcon's natural gas transportation capacity.
7.3. Conditions to Obligation of the Company. The obligation of the Company to effect the Merger is also
subject to the satisfaction or waiver by the Company at or prior to the Effective Time of the following conditions:
(a) Performance of Obligations of Parent and Merger Sub. Each of Parent and Merger Sub shall have performed in all material respects all obligations required to be performed by it under Sections 6.1(b)(ii) and (iii) and Sections 6.6, 6.14, 6.16 and 6.19 of this Agreement at or prior to the Closing Date, and the Company shall have received a certificate signed on behalf of Parent and Merger Sub by the an executive officer of Parent to such effect.
(b) Accountants Letter. The Company shall have received, in form and substance reasonably satisfactory to the Company, from Deloitte & Touche LLP, Parent's independent auditor, the "comfort" letter described in Section 6.5(b).
(c) Tax Opinion. The Company shall have received the opinion of Wachtell, Lipton, Rosen & Katz, counsel to the Company, dated the Closing Date, to the effect that (based on customary assumptions and representations and subject to customary exceptions) the Merger will be treated for Federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, and that each of Parent, Merger Sub and the Company will be a party to that reorganization within the meaning of Section 368(b) of the Code. The condition set forth in this Section 7.3(c) shall not be waivable after the Company Requisite Vote at the Shareholders Meeting or the Parent Requisite Vote has been obtained unless further shareholder approval is obtained with appropriate disclosure.
ARTICLE VIII
Termination
8.1. Termination by Mutual Consent. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time, whether before or after the approval by shareholders of the Company and Parent referred to in Section 7.1(a), by mutual written consent of the Company and Parent by action of their respective Boards of Directors.
8.2. Termination by Either Parent or the Company. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time by action of the Board of Directors of either Parent or the Company if: (i) the Merger shall not have been consummated
by December 31, 2001; (ii) the approval of the Company's shareholders required by Section 7.1(a) shall not have been obtained at a meeting duly convened therefor or at any adjournment or postponement thereof; or (iii) any Order permanently restraining, enjoining or otherwise prohibiting consummation of the Merger shall become final and non-appealable (whether before or after the approval by the shareholders of the Company or Parent). The right to terminate this Agreement pursuant to clause (i) of the immediately preceding sentence shall not be available to any party that has breached in any material respect its obligations under this Agreement in any manner that shall have proximately contributed to the occurrence of the failure of the Merger to be consummated.
8.3. Termination by the Company. This Agreement may be terminated and the Merger may be abandoned by action of the Board of Directors of the Company if at any time prior to the Effective Time, whether before or after the approval by shareholders of the Company referred to in Section 7.1(a),(i) the Board of Directors of Parent shall have withdrawn or adversely modified its approval or recommendation of this Agreement or (ii) there has been a material breach by Parent or Merger Sub of any of Sections 6.1(b)(ii), 6.1(b)(iii), 6.6, 6.14, 6.16 or 6.19 of this Agreement that is not curable or, if curable, is not cured within 30 days after written notice of such breach is given by the Company to the party committing such breach.
8.4. Termination by Parent. This Agreement may be terminated and the
Merger may be abandoned by action of the Board of Directors of Parent if at any
time prior to the Effective Time, whether before or after the approval by the
shareholders of Parent referred to in Section 7.1(a), (i) the Board of Directors
of the Company shall have withdrawn or adversely modified its approval or
recommendation of this Agreement or, prior to the Second Shareholders Meeting,
failed to reconfirm its recommendation of this Agreement within five business
days after a written request by Parent to do so or (ii) there has been a
material breach by the Company of any of Sections 6.1(a)(ii), (iii), (iv), (vi),
(vii), (viii), (ix), (x) or (xi) (as it relates to (a)(ii), (iii), (iv), (vi),
(vii), (viii), (ix) and (x)), Sections 6.1.A(a)(i), (ii), (iii) or (iv) or
Sections 6.2, 6.4.A., 6.6, 6.13, 6.14, 6.15, 6.16 or 6.19 of this Agreement that
is not curable or, if curable, is not cured within 30 days after written notice
of such breach is given by Parent to the Company.
8.5. Effect of Termination and Abandonment. (a) In the event of termination of this Agreement and the abandonment of the Merger pursuant to this Article VIII, this Agreement (other than as set forth in Section 9.1) shall become void and of no effect with no liability on the part of any party hereto (or of any of its directors, officers, employees, agents, legal and financial advisors or other representatives); provided, however, except as otherwise provided herein, no such termination shall relieve any party hereto of any liability or damages resulting from any breach of this Agreement.
(b) In the event that (i) a Company Acquisition Proposal shall have
been made to the Company or any of its Subsidiaries or any of its shareholders
or any Person shall have publicly announced an intention (whether or not
conditional) to make a Company Acquisition Proposal and thereafter this
Agreement is terminated by either Parent or the Company pursuant to Section
8.2(ii) or (ii) this Agreement is terminated by Parent pursuant to Section
8.4(i) then the Company shall promptly, but in no event later than two days
after the date of such termination, pay Parent a termination fee of $55,000,000
and shall promptly, but in no event later than two days after being notified of
such by Parent, pay all of the charges and expenses, including those of the
Exchange Agent, incurred by Parent or Merger Sub in connection with this
Agreement and the transactions contemplated by this Agreement up to a maximum
amount of $15,000,000, in each case payable by wire transfer of same day funds;
provided, however, that in the event of a termination pursuant to Section
8.2(ii) under the circumstances set forth in clause (i) of this Section 8.5(b),
or a termination pursuant to Section 8.4(a)(i), the Company shall (a) promptly,
but in no event later than two days after being notified of such by Parent, pay
all of the charges and expenses incurred by Parent in connection with this
Agreement and the transactions contemplated by this Agreement up to a maximum
amount of $15,000,000, and, (b) if the Company enters into a definitive
agreement to consummate or consummates a Company Acquisition Proposal within 12
months from the date of such termination, at the time of the entering into of
such agreement or such consummation, as applicable, pay Parent a termination fee
of $55,000,000. The Company acknowledges that the agreements contained in this
Section 8.5(b) are an integral part of the transactions contemplated by this
Agreement, and that, without these agreements, Parent and Merger Sub would not
enter into this Agreement; accordingly, if the Company fails to promptly pay the
amount due pursuant to this Section 8.5(b), and, in order to obtain such
payment, Parent or Merger Sub commences a suit which results in a judgment
against the Company for
the fee set forth in this paragraph (b), the Company shall pay to Parent or Merger Sub its costs and expenses (including attorneys' fees) in connection with such suit, together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be made.
ARTICLE IX
Miscellaneous and General
9.1. Survival. This Article IX and the agreements of the Company, Parent and Merger Sub contained in Sections 6.8 (Stock Exchange Listing and Delisting), 6.10 (Benefits), 6.11 (Expenses), 6.12 (Indemnification; Directors' and Officers' Insurance) and 6.16 (Taxation) shall survive the consummation of the Merger. This Article IX, the agreements of the Company, Parent and Merger Sub contained in Section 6.11 (Expenses), Section 8.5 (Effect of Termination and Abandonment) and the Confidentiality Agreement shall survive the termination of this Agreement. All other representations, warranties, covenants and agreements in this Agreement shall not survive the consummation of the Merger or the termination of this Agreement.
9.2. Modification or Amendment. Subject to the provisions of applicable law, at any time prior to the Effective Time, the parties hereto may modify or amend this Agreement, by written agreement executed and delivered by duly authorized officers of the respective parties.
9.3. Waiver of Conditions. The conditions to each of the parties' obligations to consummate the Merger are for the sole benefit of such party and may be waived by such party in whole or in part to the extent permitted by applicable law.
9.4. Counterparts. This Agreement may be executed in any number of counterparts, each such counterpart being deemed to be an original instrument, and all such counterparts shall together constitute the same agreement.
9.5. GOVERNING LAW AND VENUE; WAIVER OF JURY TRIAL. (a) THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THE STATE OF MICHIGAN WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES
THEREOF. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of covenants in this Agreement and to enforce specifically the covenants in this Agreement in any court of the United States located in the State of Michigan or in Michigan state court, this being in addition to any other remedy to which they are entitled at law or in equity. The parties hereby irrevocably submit to the jurisdiction of the courts of the State of Michigan and the Federal courts of the United States of America located in the State of Michigan solely in respect of the interpretation and enforcement of the provisions of this Agreement and of the documents referred to in this Agreement, and in respect of the transactions contemplated hereby, and hereby waive, and agree not to assert, as a defense in any action, suit or proceeding for the interpretation or enforcement hereof or of any such document, that it is not subject thereto or that such action, suit or proceeding may not be brought or is not maintainable in said courts or that the venue thereof may not be appropriate or that this Agreement or any such document may not be enforced in or by such courts, and the parties hereto irrevocably agree that all claims with respect to such action or proceeding shall be heard and determined in such a Michigan State or Federal court. The parties hereby consent to and grant any such court jurisdiction over the person of such parties and over the subject matter of such dispute and agree that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section 9.6 or in such other manner as may be permitted by law shall be valid and sufficient service thereof.
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 9.5.
9.6. Notices. Any notice, request, instruction or other document to be given hereunder by any party to the others shall be in writing and delivered personally or sent by registered or certified mail, postage prepaid, or by facsimile:
if to Parent or Merger Sub
DTE Energy Company
2000 Second Avenue
Detroit, MI 48226
Attention: General Counsel
fax: (313) 235-0121
(with a copy to Joseph B. Frumkin, Esq.,
Sullivan & Cromwell,
125 Broad Street
New York, NY 10004
fax: (212) 558-3588)
if to the Company
MCN Energy Group Inc.
500 Griswold Street
Detroit, MI 48226
Attention: General Counsel
fax: (313) 965-0009
(with a copy to Seth A. Kaplan, Esq.,
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
fax: (212) 403-2000)
or to such other persons or addresses as may be designated in writing by the party to receive such notice as provided above.
9.7. Entire Agreement. This Agreement (including any exhibits or appendices hereto), the Company Disclosure Letter, the Parent Disclosure Letter and the Confidentiality Agreement, dated August 30, 1999, between Parent and the Company (the "Confidentiality Agreement") constitute the entire agreement, and supersede all other prior agreements, understandings, representations and warranties both written and oral, among the parties, with respect to the subject matter hereof.
9.8. No Third Party Beneficiaries. Except as provided in Section 6.12 (Indemnification; Directors' and Officers' Insurance), this Agreement is not intended to confer upon any Person other than the parties hereto any rights or remedies hereunder.
9.9. Obligations of Parent and of the Company. Whenever this Agreement requires a Subsidiary of Parent to take any action, such requirement shall be deemed to include an undertaking on the part of Parent to cause such Subsidiary to take such action. Whenever this Agreement requires a Subsidiary of the Company to take any action, such requirement shall be deemed to include an undertaking on the part of the Company to cause such Subsidiary to take such action and, after the Effective Time, on the part of the Surviving Corporation to cause such Subsidiary to take such action.
9.10. Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability or the other provisions hereof. If any provision of this Agreement, or the application thereof to any Person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.
9.11. Interpretation. The table of contents and headings herein are for convenience of reference only, do not constitute part of this Agreement and shall not be deemed to limit or otherwise affect any of the provisions hereof. Where a reference in this Agreement is made to a Section or Exhibit, such reference shall be to a Section of or Exhibit to this Agreement unless otherwise indicated. Whenever the words "include," "includes" or "including" are used in this Agreement, they shall be deemed to be followed by the words "without limitation."
9.12. Assignment. This Agreement shall not be assignable by operation of law or otherwise; provided, however, that Parent may designate, by written notice to the Company, another wholly owned direct or indirect subsidiary to be a Constituent Corporation in lieu of Merger Sub, in
which event all references herein to Merger Sub shall be deemed references to such other subsidiary, except that all representations and warranties made herein with respect to Merger Sub as of the date of this Agreement shall be deemed representations and warranties made with respect to such other subsidiary as of the date of such designation.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the parties hereto as of the date first written above.
MCN ENERGY GROUP INC.
By: /S/ ALFRED R. GLANCY III ----------------------------- Name: Alfred R. Glancy III Title: Chairman and CEO |
DTE ENERGY COMPANY
By: /S/ ANTHONY F. EARLEY, JR. ----------------------------- Name: Anthony F. Earley, Jr. Title: Chairman and CEO |
DTE ENTERPRISES, INC.
By: /S/ LARRY G. GARBERDING ----------------------------- Name: Larry G. Garberding Title: Treasurer |
EXHIBIT 4-211
CONFORMED COPY
THE DETROIT EDISON COMPANY
(2000 Second Avenue,
Detroit, Michigan 48226)
TO
BANKERS TRUST COMPANY
(Four Albany Street,
New York, New York 10015)
AS TRUSTEE
INDENTURE
Dated as of December 1, 1989
SUPPLEMENTAL TO MORTGAGE AND DEED OF TRUST
DATED AS OF OCTOBER 1, 1924
PROVIDING FOR
(A) GENERAL AND REFUNDING MORTGAGE BONDS, SERIES KKP NO. 11, DUE SEPTEMBER 1, 2019,
(B) GENERAL AND REFUNDING MORTGAGE BONDS, 1989 SERIES BP, DUE DECEMBER 1, 2019
AND
(C) RECORDING AND FILING DATA
TABLE OF CONTENTS*
PAGE ---- PARTIES..................................................... 1 RECITALS Original Indenture and Supplementals...................... 1 Issue of Bonds under Indenture............................ 1 Bonds heretofore issued................................... 1 Reason for creation of new series......................... 5 Bonds to be Series KKP No. 11 and 1989 Series BP.......... 5 Further Assurance......................................... 5 Authorization of Supplemental Indenture................... 5 Consideration for Supplemental Indenture.................. 6 PART I. CREATION OF TWO HUNDRED SEVENTY-NINTH SERIES OF BONDS GENERAL AND REFUNDING MORTGAGE BONDS, SERIES KKP NO. 11 Sec. 1. Terms of Bonds of Series KKP No. 11................. 6 Sec. 2. Redemption of Bonds of Series KKP No. 11............ 7 Sec. 3. Redemption in Event of Acceleration................. 8 Sec. 4. Consent............................................. 9 Sec. 5. Form of Bonds of Series KKP No. 11.................. 9 Form of Trustee's Certificate....................... 13 PART II. CREATION OF TWO HUNDRED EIGHTIETH SERIES OF BONDS GENERAL AND REFUNDING MORTGAGE BONDS, 1989 SERIES BP Sec. 1. Terms of Bonds of 1989 Series BP.................... 13 Sec. 2. Redemption of Bonds of 1989 Series BP............... 14 Sec. 3. Redemption in Event of Acceleration................. 15 Sec. 4. Consent............................................. 16 Sec. 5. Form of Bonds of 1989 Series BP..................... 16 Form of Trustee's Certificate....................... 20 PART III. RECORDING AND FILING DATA Recording and filing of Original Indenture.................. 20 Recording and filing of Supplemental Indentures............. 20 Recording of Certificates of Provision for Payment.......... 24 PART IV. THE TRUSTEE Terms and conditions of acceptance of trust by Trustee...... 24 PART V. MISCELLANEOUS Execution in Counterparts................................... 25 Testimonium................................................. 25 Execution................................................... 25 Acknowledgements............................................ 26 Affidavit as to consideration and good faith................ 27 |
PARTIES. SUPPLEMENTAL INDENTURE, dated as of the first day of December, in the year one thousand nine hundred and eighty-nine, between THE DETROIT EDISON COMPANY, a corporation organized and existing under the laws of the State of Michigan and a transmitting utility (hereinafter called the "Company"), party of the first part, and BANKERS TRUST COMPANY, a corporation organized and existing under the laws of the State of New York, having its corporate trust office at Four Albany Street, in the Borough of Manhattan, The City and State of New York, as Trustee under the Mortgage and Deed of Trust hereinafter mentioned (hereinafter called the "Trustee"), party of the second part. ORIGINAL WHEREAS, the Company has heretofore executed and delivered INDENTURE AND its Mortgage and Deed of Trust (hereinafter referred to as SUPPLEMENTALS. the "Original Indenture"), dated as of October 1, 1924, to the Trustee, for the security of all bonds of the Company outstanding thereunder, and pursuant to the terms and provisions of the Original Indenture, indentures dated as of, respectively, June 1, 1925, August 1, 1927, February 1, 1931, June 1, 1931, October 1, 1932, September 25, 1935, September 1, 1936, November 1, 1936, February 1, 1940, December 1, 1940, September 1, 1947, March 1, 1950, November 15, 1951, January 15, 1953, May 1, 1953, March 15, 1954, May 15, 1955, August 15, 1957, June 1, 1959, December 1, 1966, October 1, 1968, December 1, 1969, July 1, 1970, December 15, 1970, June 15, 1971, November 15, 1971, January 15, 1973, May 1, 1974, October 1, 1974, January 15, 1975, November 1, 1975, December 15, 1975, February 1, 1976, June 15, 1976, July 15, 1976, February 15, 1977, March 1, 1977, June 15, 1977, July 1, 1977, October 1, 1977, June 1, 1978, October 15, 1978, March 15, 1979, July 1, 1979, September 1, 1979, September 15, 1979, January 1, 1980, April 1, 1980, August 15, 1980, August 1, 1981, November 1, 1981, June 30, 1982, August 15, 1982, June 1, 1983, October 1, 1984, May 1, 1985, May 15, 1985, October 15, 1985, April 1, 1986, August 15, 1986, November 30, 1986, January 31, 1987, April 1, 1987, August 15, 1987, November 30, 1987, June 15, 1989 and July 15, 1989 supplemental to the Original Indenture, have heretofore been entered into between the Company and the Trustee (the Original Indenture and all indentures supplemental thereto together being hereinafter sometimes referred to as the "Indenture"); and ISSUE OF WHEREAS, the Indenture provides that said bonds shall be BONDS UNDER issuable in one or more series, and makes provision that the INDENTURE. rates of interest and dates for the payment thereof, the date of maturity or dates of maturity, if of serial maturity, the terms and rates of optional redemption (if redeemable), the forms of registered bonds without coupons of any series and any other provisions and agreements in respect thereof, in the Indenture provided and permitted, as the Board of Directors may determine, may be expressed in a supplemental indenture to be made by the Company to the Trustee thereunder; and BONDS HERETOFORE WHEREAS, bonds in the principal amount of Four billion nine ISSUED. hundred sixty-eight million one hundred seventy-one thousand dollars ($4,968,171,000) have heretofore been issued under the Indenture as follows, viz: |
(1) Bonds of Series A -- Principal Amount $26,016,000, (2) Bonds of Series B -- Principal Amount $23,000,000, (3) Bonds of Series C -- Principal Amount $20,000,000, (4) Bonds of Series D -- Principal Amount $50,000,000, (5) Bonds of Series E -- Principal Amount $15,000,000, (6) Bonds of Series F -- Principal Amount $49,000,000, (7) Bonds of Series G -- Principal Amount $35,000,000, (8) Bonds of Series H -- Principal Amount $50,000,000, (9) Bonds of Series I -- Principal Amount $60,000,000, (10) Bonds of Series J -- Principal Amount $35,000,000, (11) Bonds of Series K -- Principal Amount $40,000,000, (12) Bonds of Series L -- Principal Amount $24,000,000, (13) Bonds of Series M -- Principal Amount $40,000,000, (14) Bonds of Series N -- Principal Amount $40,000,000, |
(15) Bonds of Series O -- Principal Amount $60,000,000, (16) Bonds of Series P -- Principal Amount $70,000,000, (17) Bonds of Series Q -- Principal Amount $40,000,000, (18) Bonds of Series W -- Principal Amount $50,000,000, (19) Bonds of Series BB -- Principal Amount $50,000,000, (20) Bonds of Series CC -- Principal Amount $50,000,000, (21-28) Bonds of Series DDP Nos. 1-8 -- Principal Amount $6,400,000, (29-38) Bonds of Series FFR Nos. 1-10 -- Principal Amount $5,800,000, (39-52) Bonds of Series GGP Nos. 1-6 and 8-15 -- Principal Amount $7,960,000, (53-64) Bonds of Series IIP Nos. 1-6 and 8-13 -- Principal Amount $450,000, (65-70) Bonds of Series JJP Nos. 1-6 -- Principal Amount $690,000, (71-76) Bonds of Series KKP Nos. 1-6 -- Principal Amount $1,590,000, (77-88) Bonds of Series LLP Nos. 1-6 and 8-13 -- Principal Amount $4,760,000, (89-100) Bonds of Series NNP Nos. 1-6 and 8-13 -- Principal Amount $7,950,000, (101-108) Bonds of Series OOP Nos. 1-8 -- Principal Amount $2,680,000, (109-120) Bonds of Series QQP Nos. 1-7 and 10-14 -- Principal Amount $7,075,000, (121-126) Bonds of Series TTP Nos. 1-6 -- Principal Amount $330,000, (127) Bonds of 1980 Series A -- Principal Amount $50,000,000, (128-136) Bonds of 1980 Series CP Nos. 1-5 and 13-16 -- Principal Amount $3,250,000, (137-141) Bonds of 1980 Series DP Nos. 1-5 -- Principal Amount $925,000, (142-145) Bonds of 1981 Series AP Nos. 1-4 -- Principal Amount $3,200,000, |
all of which have either been retired and cancelled, or no longer represent obligations of the Company, having been called for redemption and funds necessary to effect the payment, redemption and retirement thereof having been deposited with the Trustee as a special trust fund to be applied for such purpose;
(146) Bonds of Series R in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof;
(147) Bonds of Series S in the principal amount of One hundred fifty million dollars ($150,000,000), all of which are outstanding at the date hereof;
(148) Bonds of Series T in the principal amount of Seventy-five million dollars ($75,000,000), all of which are outstanding at the date hereof;
(149) Bonds of Series U in the principal amount of Seventy-five million dollars ($75,000,000), all of which are outstanding at the date hereof;
(150) Bonds of Series V in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof;
(151) Bonds of Series X in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof;
(152) Bonds of Series Y in the principal amount of Sixty million dollars ($60,000,000), all of which are outstanding at the date hereof;
(153) Bonds of Series Z in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof;
(154) Bonds of Series AA in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof;
(155) Bonds of Series DDP No. 9 in the principal amount of Seven million nine hundred five thousand dollars ($7,905,000), of which One million six hundred thousand dollars ($1,600,000) principal amount have heretofore been retired and Six
million three hundred five thousand dollars ($6,305,000) principal amount are outstanding at the date hereof;
(156) Bonds of Series EE in the principal amount of Fifty million dollars ($50,000,000), of which Twenty-five million dollars ($25,000,000) principal amount have heretofore been retired and Twenty-five million dollars ($25,000,000) principal amount are outstanding at the date hereof;
(157-160) Bonds of Series FFR Nos. 11-14 in the principal amount of Thirty-nine million eight hundred thousand dollars ($39,800,000), all of which are outstanding at the date hereof;
(161-168) Bonds of Series GGP Nos. 7 and 16-22 in the principal amount of Thirty-four million three hundred forty thousand dollars ($34,340,000), of which Two million four hundred thousand dollars ($2,400,000) principal amount have heretofore been retired and Thirty-one million nine hundred forty thousand dollars ($31,940,000) principal amount are outstanding at the date hereof;
(169) Bonds of Series HH in the principal amount of Fifty million dollars ($50,000,000), all of which are outstanding at the date hereof;
(170-171) Bonds of Series MMP and MMP No. 2 in the principal amount of Five million four hundred thirty thousand dollars ($5,430,000), of which One million ninety thousand dollars ($1,090,000) principal amount have heretofore been retired and Four million three hundred forty thousand dollars ($4,340,000) principal amount are outstanding at the date hereof;
(172-181) Bonds of Series IIP Nos. 7 and 14-22 in the principal amount of Three million three hundred thousand dollars ($3,300,000), of which One hundred ten thousand dollars ($110,000) principal amount have heretofore been retired and Three million one hundred ninety thousand dollars ($3,190,000) principal amount are outstanding at the date hereof;
(182-183) Bonds of Series JJP Nos. 7-8 in the principal amount of Six million one hundred sixty thousand dollars ($6,160,000), of which Three hundred fifty thousand dollars ($350,000) principal amount have heretofore been retired and Five million eight hundred ten thousand dollars ($5,810,000) are outstanding at the date hereof;
(184-187) Bonds of Series KKP Nos. 7-10 in the principal amount of Sixty-three million three hundred thousand dollars ($63,300,000), of which Seven hundred ten thousand dollars ($710,000) principal amount have heretofore been retired and Sixty-two million five hundred ninety thousand dollars ($62,590,000) are outstanding at the date hereof;
(188-190) Bonds of Series LLP Nos. 7 and 14-15 in the principal amount of Four million ninety thousand dollars ($4,090,000), of which Two million five hundred thirty-five thousand dollars ($2,535,000) principal amount have heretofore been retired and One million five hundred fifty-five thousand dollars ($1,555,000) principal amount are outstanding at the date hereof;
(191-199) Bonds of Series NNP Nos. 7 and 14-21 in the principal amount of Forty million ($40,000,000), of which One million six hundred fifty thousand dollars ($1,650,000) principal amount have heretofore been retired and Thirty-eight million three hundred fifty thousand dollars ($38,350,000) principal amount are outstanding at the date hereof;
(200-209) Bonds of Series OOP Nos. 9-18 in the principal amount of Sixteen million two hundred thousand dollars ($16,200,000), of which Two hundred forty thousand dollars ($240,000) principal amount have heretofore been retired and Fifteen million nine hundred sixty thousand dollars ($15,960,000) are outstanding at the date hereof;
(210) Bonds of Series PP in the principal amount of Seventy million dollars ($70,000,000), all of which are outstanding at the date hereof;
(211-217) Bonds of Series QQP Nos. 8-9 and 15-19 in the principal amount of Six million five hundred seventy-five thousand dollars ($6,575,000), all of which are outstanding at the date hereof;
(218) Bonds of Series RR in the principal amount of Seventy million dollars ($70,000,000), all of which are outstanding at the date hereof;
(219) Bonds of Series SS in the principal amount of One hundred fifty million dollars ($150,000,000), of which Fifty million dollars ($50,000,000) principal amount have heretofore been retired and One hundred million dollars ($100,000,000) principal amount are outstanding at the date hereof;
(220-228) Bonds of Series TTP Nos. 7-15 in the principal amount of Three million four hundred seventy thousand dollars ($3,470,000), all of which are outstanding at the date hereof;
(229) Bonds of Series UU in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof;
(230) Bonds of 1980 Series B in the principal amount of One hundred million dollars ($100,000,000), of which Fifty-three million two hundred thousand dollars ($53,200,000) principal amount have heretofore been retired and Forty-six million eight hundred thousand dollars ($46,800,000) principal amount are outstanding at the date hereof;
(231-246) Bonds of 1980 Series CP Nos. 6-12 and 17-25 in the principal amount of Thirty-one million seven hundred fifty thousand dollars ($31,750,000), all of which are outstanding at the date hereof;
(247-252) Bonds of 1980 Series DP Nos. 6-11 in the principal amount of Nine million eight hundred twenty-five thousand dollars ($9,825,000), all of which are outstanding at the date hereof;
(253-264) Bonds of 1981 Series AP Nos. 5-16 in the principal amount of One hundred twenty million eight hundred thousand dollars ($120,800,000), all of which are outstanding at the date hereof;
(265) Bonds of 1984 Series AP in the principal amount of Two million four hundred thousand dollars ($2,400,000), all of which are outstanding at the date hereof;
(266) Bonds of 1984 Series BP in the principal amount of Seven million seven hundred fifty thousand dollars ($7,750,000), all of which are outstanding at the date hereof;
(267) Bonds of 1985 Series A in the principal amount of Thirty-five million dollars ($35,000,000), all of which are outstanding at the date hereof;
(268) Bonds of 1985 Series B in the principal amount of Fifty million dollars ($50,000,000), all of which are outstanding at the date hereof;
(269) Bonds of 1986 Series A in the principal amount of Two hundred million dollars ($200,000,000), all of which are outstanding at the date hereof;
(270) Bonds of 1986 Series B in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof;
(271) Bonds of 1986 Series C in the principal amount of Two hundred million dollars ($200,000,000), all of which are outstanding at the date hereof;
(272) Bonds of 1987 Series A in the principal amount of Three hundred million dollars ($300,000,000), all of which are outstanding at the date hereof;
(273) Bonds of 1987 Series B in the principal amount of One hundred seventy-five million dollars ($175,000,000), all of which are outstanding at the date hereof;
(274) Bonds of 1987 Series C in the principal amount of Two hundred twenty-five million dollars ($225,000,000), all of which are outstanding at the date hereof;
(275) Bonds of 1987 Series D in the principal amount of Two hundred fifty million dollars ($250,000,000), all of which are outstanding at the date hereof;
(276) Bonds of 1987 Series E in the principal amount of One hundred fifty million dollars ($150,000,000), all of which are outstanding at the date hereof;
(277) Bonds of 1987 Series F in the principal amount of Two hundred million dollars ($200,000,000), all of which are outstanding at the date hereof; and
(278) Bonds of 1989 Series A in the principal amount of Three hundred million dollars ($300,000,000), all of which are outstanding at the date hereof;
and, accordingly, of the bonds so issued, Three billion eight hundred ninety-nine million two hundred ten thousand dollars ($3,899,210,000) principal amount are outstanding at the date hereof; and
REASON FOR WHEREAS, the County of Monroe, Michigan has agreed to CREATION OF issue and sell $9,745,000 principal amount of its Pollution NEW SERIES. Control Revenue Bonds (The Detroit Edison Company Monroe and Fermi Plants Project), Collateralized Series I-1989B and $66,565,000 principal amount of its Pollution Control Revenue Bonds (The Detroit Edison Company Fermi Plant Project), Collateralized Series CC so as to provide funds for the purchase and construction of certain pollution control facilities installed in the Company's Fermi 2 Plant; and WHEREAS, the Company has entered into (1) an Installment Sales Contract, dated as of March 1, 1977 and amended as of September 1, 1979, October 15, 1985, July 1, 1989 and December 1, 1989 and (2) an Installation Subcontract, dated as of December 1, 1989, each with the County of Monroe, in order to purchase certain pollution control facilities, and pursuant to such Installment Sales Contracts the Company has agreed to issue its General and Refunding Mortgage Bonds under the Indenture in order further to secure its obligations under such Installment Sales Contracts; and WHEREAS, for such purposes the Company desires to issue new series of bonds to be issued under the Indenture and to be authenticated and delivered pursuant to Section 8 of Article III of the Indenture; and BONDS TO BE WHEREAS, the Company desires by this Supplemental SERIES KKP Indenture to create such new series of bonds, to be NO. 11 AND 1989 SERIES designated "General and Refunding Mortgage Bonds, Series KKP BP No. 11" and "General and Refunding Mortgage Bonds, 1989 Series BP"; and FURTHER WHEREAS, the Original Indenture, by its terms, includes in ASSURANCE. the property subject to the lien thereof all of the estates and properties, real, personal and mixed, rights, privileges and franchises of every nature and kind and wheresoever situate, then or thereafter owned or possessed by or belonging to the Company or to which it was then or at any time thereafter might be entitled in law or in equity (saving and excepting, however, the property therein specifically excepted or released from the lien thereof), and the Company therein covenanted that it would, upon reasonable request, execute and deliver such further instruments as may be necessary or proper for the better assuring and confirming unto the Trustee all or any part of the trust estate, whether then or thereafter owned or acquired by the Company (saving and excepting, however, property specifically excepted or released from the lien thereof); and AUTHORIZATION WHEREAS, the Company in the exercise of the powers and OF SUPPLEMENTAL authority conferred upon and reserved to it under and by INDENTURE. virtue of the provisions of the Indenture, and pursuant to resolutions of its Board of Directors has duly resolved and determined to make, execute and deliver to the Trustee a supplemental indenture in the form hereof for the purposes herein provided; and WHEREAS, all conditions and requirements necessary to make this Supplemental Indenture a valid and legally binding instrument in accordance with its terms have been done, performed and fulfilled, and the execution and delivery hereof have been in all respects duly authorized; |
CONSIDERATION NOW, THEREFORE, THIS INDENTURE WITNESSETH: That The FOR SUPPLEMENTAL Detroit Edison Company, in consideration of the premises and INDENTURE. of the covenants contained in the Indenture and of the sum of One Dollar ($1.00) and other good and valuable consideration to it duly paid by the Trustee at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, hereby covenants and agrees to and with the Trustee and its successors in the trusts under the Original Indenture and in said indentures supplemental thereto as follows: PART I. CREATION OF TWO HUNDRED SEVENTY-NINTH SERIES OF BONDS. GENERAL AND REFUNDING MORTGAGE BONDS, SERIES KKP NO. 11 CERTAIN TERMS SECTION 1. The Company hereby creates the Two hundred OF BONDS OF seventy-ninth series of bonds to be issued under and secured SERIES KKP by the Original Indenture as amended to date and as further NO. 11 amended by this Supplemental Indenture, to be designated, and to be distinguished from the bonds of all other series, by the title "General and Refunding Mortgage Bonds, Series KKP No. 11" (elsewhere herein referred to as the "bonds of Series KKP No. 11"). The aggregate principal amount of bonds of Series KKP No. 11 shall be limited to Nine million seven hundred and forty-five thousand dollars ($9,745,000), except as provided in Sections 7 and 13 of Article II of the Original Indenture with respect to exchanges and replacements of bonds. Each bond of Series KKP No. 11 is to be irrevocably assigned to, and registered in the name of, Manufacturers National Bank of Detroit, as trustee, or a successor trustee (said trustee or any successor trustee being hereinafter referred to as the "Monroe Trust Indenture Trustee"), under the Trust Indenture, dated as of March 1, 1977, as amended September 1, 1979, October 15, 1985, July 1, 1989 and December 1, 1989 (hereinafter called the " Monroe Trust Indenture"), between the County of Monroe, Michigan (hereinafter called "Monroe"), and the Monroe Trust Indenture Trustee, to secure payment of the County of Monroe, Michigan, Pollution Control Revenue Bonds (The Detroit Edison Company Monroe and Fermi Plants Project), Collateralized Series I-1989B (hereinafter called the "Monroe Revenue Bonds"), issued by Monroe under the Monroe Trust Indenture, the proceeds of which (other than any accrued interest thereon) have been provided for the acquisition and construction of certain pollution control facilities which the Company has agreed to purchase pursuant to the provisions of the Installment Sales Contract, dated as of March 1, 1977, as amended as of September 1, 1979, as of October 15, 1985, as of July 1, 1989 and December 1, 1989 (hereinafter called the "Monroe Contract"), between the Company and Monroe. The bonds of Series KKP No. 11 shall be issued as registered bonds without coupons in denominations of a multiple of $5,000. The bonds of Series KKP No. 11 shall be issued in the aggregate principal amount of $9,745,000, shall mature on September 1, 2019 and shall bear interest, payable semi-annually on March 1 and September 1 of each year (commencing March 1, 1990), at the rate of 7 1/2%, until the principal thereof shall have become due and payable and thereafter until the Company's obligation with respect to the payment of said principal shall have been discharged as provided in the Indenture. The bonds of Series KKP No. 11 shall be payable as to principal, premium, if any, and interest as provided in the Indenture, but only to the extent and in the manner herein provided. The bonds of Series KKP No. 11 shall be payable, both as to principal and interest, at the office or agency of the Company in the Borough of Manhattan, The City and State of New York, in any coin or currency of the United States of America which at the time of payment is legal tender for public and private debts. |
Except as provided herein, each bond of Series KKP No. 11 shall be dated the date of its authentication and interest shall be payable on the principal represented thereby from the March 1 or September 1 next preceding the date thereof to which interest has been paid on bonds of Series KKP No. 11, unless the bond is authenticated on a date to which interest has been paid, in which case interest shall be payable from the date of authentication, or unless the date of authentication is prior to March 1, 1990, in which case interest shall be payable from December 1, 1989. The bonds of Series KKP No. 11 in definitive form shall be, at the election of the Company, fully engraved or shall be lithographed or printed in authorized denominations as aforesaid and numbered 1 and upwards (with such further designation as may be appropriate and desirable to indicate by such designation the form, series and denominations of bonds of Series KKP No. 11). Until bonds of Series KKP No. 11 in definitive form are ready for delivery, the Company may execute, and upon its request in writing the Trustee shall authenticate and deliver in lieu thereof, bonds of Series KKP No. 11 in temporary form, as provided in Section 10 of Article II of the Indenture. Temporary bonds of Series KKP No. 11, if any, may be printed and may be issued in authorized denominations in substantially the form of definitive bonds of Series KKP No. 10, but with such omissions, insertions and variations as may be appropriate for temporary bonds, all as may be determined by the Company. Bonds of Series KKP No. 11 shall not be assignable or transferable except as may be required to effect a transfer to any successor trustee under the Monroe Trust Indenture, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under the Monroe Trust Indenture. Any such transfer shall be made upon surrender thereof for cancellation at the office or agency of the Company in the Borough of Manhattan, The City and State of New York, together with a written instrument of transfer (if so required by the Company or by the Trustee) in form approved by the Company duly executed by the holder or by its duly authorized attorney. Bonds of Series KKP No. 11 shall in the same manner be exchangeable for a like aggregate principal amount of bonds of Series KKP No. 11 upon the terms and conditions specified herein and in Section 7 of Article II of the Indenture. The Company waives its rights under Section 7 of Article II of the Indenture not to make exchanges or transfers of bonds of Series KKP No. 11, during any period of ten days next preceding any redemption date for such bonds. Bonds of Series KKP No. 11, in definitive and temporary form, may bear such legends as may be necessary to comply with any law or with any rules or regulations made pursuant thereto or as may be specified in the Monroe Contract. Upon payment of the principal or premium, if any, or interest on the Monroe Revenue Bonds, whether at maturity or prior to maturity by redemption or otherwise, or upon provision for the payment thereof having been made in accordance with Article IX of the Monroe Trust Indenture, bonds of Series KKP No. 11 in a principal amount equal to the principal amount of such Monroe Revenue Bonds, shall, to the extent of such payment of principal, premium or interest, be deemed fully paid and the obligation of the Company thereunder to make such payment shall forthwith cease and be discharged, and, in the case of the payment of principal and premium, if any, such bonds shall be surrendered for cancellation or presented for appropriate notation to the Trustee. REDEMPTION SECTION 2. Bonds of Series KKP No. 11 shall be redeemed on OF BONDS the respective dates and in the respective principal amounts OF SERIES KKP which correspond to the redemption dates for, and the NO. 11 principal amounts to be redeemed of, the Monroe Revenue Bonds. |
In the event the Company elects to redeem any Monroe Revenue Bonds prior to maturity in accordance with the provisions of the Monroe Trust Indenture, the Company shall on the same date redeem bonds of Series KKP No. 11 in principal amounts and at redemption prices corresponding to the Monroe Revenue Bonds so redeemed. The Company agrees to give the Trustee notice of any such redemption of bonds of Series KKP No. 11 on the same date as it gives notice of redemption of Monroe Revenue Bonds to the Monroe Trust Indenture Trustee. REDEMPTION SECTION 3. In the event of an Event of Default under the OF BONDS OF Monroe Trust Indenture and the acceleration of all Monroe SERIES KKP Revenue Bonds, the bonds of Series KKP No. 11 shall be NO. 11 IN EVENT redeemable in whole upon receipt by the Trustee of a written OF ACCELERATION demand (hereinafter called a "Redemption Demand") from the OF MONROE Monroe Trust Indenture Trustee stating that there has REVENUE BONDS. occurred under the Monroe Trust Indenture both an Event of Default and a declaration of acceleration of payment of principal, accrued interest and premium, if any, on the Monroe Revenue Bonds, specifying the last date to which interest on the Monroe Revenue Bonds has been paid (such date being hereinafter referred to as the "Initial Interest Accrual Date") and demanding redemption of the bonds of said series. The Trustee shall, within five days after receiving such Redemption Demand, mail a copy thereof to the Company marked to indicate the date of its receipt by the Trustee. Promptly upon receipt by the Company of such copy of a Redemption Demand, the Company shall fix a date on which it will redeem the bonds of said series so demanded to be redeemed (hereinafter called the "Demand Redemption Date"). Notice of the date fixed as the Demand Redemption Date shall be mailed by the Company to the Trustee at least ten days prior to such Demand Redemption Date. The date to be fixed by the Company as and for the Demand Redemption Date may be any date up to and including the earlier of (x) the 60th day after receipt by the Trustee of the Redemption Demand or (y) the maturity date of such bonds first occurring following the 20th day after the receipt by the Trustee of the Redemption Demand; provided, however, that if the Trustee shall not have received such notice fixing the Demand Redemption Date on or before the 10th day preceding the earlier of such dates, the Demand Redemption Date shall be deemed to be the earlier of such dates. The Trustee shall mail notice of the Demand Redemption Date (such notice being hereinafter called the "Demand Redemption Notice") to the Monroe Trust Indenture Trustee not more than ten nor less than five days prior to the Demand Redemption Date. Each bond of Series KKP No. 11 shall be redeemed by the Company on the Demand Redemption Date therefore upon surrender thereof by the Monroe Trust Indenture Trustee to the Trustee at a redemption price equal to the principal amount thereof plus accrued interest thereon at the rate specified for such bond from the Initial Interest Accrual Date to the Demand Redemption Date plus an amount equal to the aggregate premium, if any, due and payable on such Demand Redemption Date on all Monroe Revenue Bonds; provided, however, that in the event of a receipt by the Trustee of a notice that, pursuant to Section 1010 of the Monroe Trust Indenture, the Monroe Trust Indenture Trustee has terminated proceedings to enforce any right under the Monroe Trust Indenture, then any Redemption Demand shall thereby be rescinded by the Monroe Trust Indenture Trustee, and no Demand Redemption Notice shall be given, or, if already given, shall be automatically annulled; but no such rescission or annulment shall extend to or affect any subsequent default or impair any right consequent thereon. Anything herein contained to the contrary notwithstanding, the Trustee is not authorized to take any action pursuant to a Redemption Demand and such Redemption Demand shall be of no force or effect, unless it is executed in the name of the Monroe Trust Indenture Trustee by its President or one of its Vice Presidents. |
CONSENT. SECTION 4. The holders of the bonds of Series KKP No. 11, by their acceptance of and holding thereof, consent and agree that bonds of any series may be issued which mature on a date or dates later than October 1, 2024 and also consent to the deletion from the first paragraph of Section 5 of Article II of the Indenture of the phrase "but in no event later than October 1, 2024". Such holders further agree that (a) such consent shall, for all purposes of Article XV of the Indenture and without further action on the part of such holders, be deemed the affirmative vote of such holders at any meeting called pursuant to said Article XV for the purpose of approving such deletion, and (b) such deletion shall become effective at such time as not less than eighty-five per cent (85%) in principal amount of bonds outstanding under the Indenture shall have consented thereto substantially in the manner set forth in this Section 4, or in writing, or by affirmative vote cast at a meeting called pursuant to said Article XV, or by any combination thereof. FORM OF BONDS SECTION 5. The bonds of Series KKP No. 11 and the form of OF SERIES KKP Trustee's Certificate to be endorsed on such bonds shall be NO. 11. substantially in the following forms, respectively: [FORM OF FACE OF BOND] THE DETROIT EDISON COMPANY GENERAL AND REFUNDING MORTGAGE BOND SERIES KKP NO. 11, 7 1/2% DUE SEPTEMBER 1, 2019 Notwithstanding any provisions hereof or in the Indenture, this bond is not assignable or transferable except as may be required to effect a transfer to any successor trustee under the Trust Indenture, dated as of March 1, 1977 and amended as of September 1, 1979, October 15, 1985, July 1, 1989 and December 1, 1989 between the County of Monroe, Michigan and Manufacturers National Bank of Detroit, as trustee, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under said Trust Indenture. $......... No.......... THE DETROIT EDISON COMPANY (hereinafter called the "Company"), a corporation of the State of Michigan, for value received, hereby promises to pay to Manufacturers National Bank of Detroit, as trustee, or registered assigns, at the Company's office or agency in the Borough of Manhattan, The City and State of New York, the principal sum of dollars ($ ) in lawful money of the United States of America on the date specified in the title hereof and interest thereon at the rate specified in the title hereof, in like lawful money, from December 1, 1989, and after the first payment of interest on bonds of this Series has been made or otherwise provided for, from the most recent date to which interest has been paid or otherwise provided for, semi-annually on March 1 and September 1 of each year (commencing March 1, 1990), until the Company's obligation with respect to payment of said principal shall have been discharged, all as provided, to the extent and in the manner specified in the Indenture hereinafter mentioned on the reverse hereof and in the supplemental indenture pursuant to which this bond has been issued. |
Under a Trust Indenture, dated as of March 1, 1977 and amended as of September 1, 1979, October 15, 1985, July 1, 1989 and December 1, 1989 (hereinafter called the "Monroe Trust Indenture"), between the County of Monroe, Michigan (hereinafter called "Monroe"), and Manufacturers National Bank of Detroit, as trustee (hereinafter called the "Monroe Trust Indenture Trustee"), Monroe has issued Pollution Control Revenue Bonds (The Detroit Edison Company Monroe and Fermi Plants Project), Collateralized Series I-1989B (hereinafter called the "Monroe Revenue Bonds"). This bond was originally issued to Monroe and simultaneously irrevocably assigned to the Monroe Trust Indenture Trustee so as to secure the payment of the Monroe Revenue Bonds. Payments of principal of, or premium, if any, or interest on, Monroe Revenue Bonds shall constitute like payments on this bond as further provided herein and in the supplemental indenture pursuant to which this bond has been issued. Reference is hereby made to such further provisions of this bond set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though set forth at this place. This bond shall not be valid or become obligatory for any purpose until Bankers Trust Company, the Trustee under the Indenture hereinafter mentioned on the reverse hereof, or its successor thereunder, shall have signed the form of certificate endorsed hereon. IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY has caused this instrument to be executed by its Chairman of the Board and its President or a Vice President, with their manual or facsimile signatures, and its corporate seal, or a facsimile thereof, to be impressed or imprinted hereon and the same to be attested by its Secretary or an Assistant Secretary with his manual or facsimile signature. |
Dated: THE DETROIT EDISON COMPANY By ............................ Chairman of the Board ............................ Attest: President ............................ Secretary |
[FORM OF REVERSE OF BOND] This bond is one of an authorized issue of bonds of the Company, unlimited as to amount except as provided in the Indenture hereinafter mentioned or any indentures supplemental thereto, and is one of a series of General and Refunding Mortgage Bonds known as Series KKP No. 11, limited to an aggregate principal amount of $9,745,000, except as otherwise provided in the Indenture hereinafter mentioned. This bond and all other bonds of said series are issued and to be issued under, and are all equally and ratably secured (except insofar as any sinking, amortization, improvement or analogous fund, established in accordance with the provisions of the Indenture hereinafter mentioned, may afford additional security for the bonds of any particular series and except as provided in Section 3 of Article VI of said Indenture) by an Indenture, dated as of October 1, 1924, duly executed by the Company to Bankers Trust Company, a corporation of the State of New York, as Trustee, to which Indenture and all indentures supplemental thereto (including the Supplemental Indenture dated as of December 1, 1989) reference is hereby made for a description of the properties and franchises mortgaged and conveyed, the nature and extent of the security, the terms and conditions upon which the bonds are issued and under which additional bonds may be issued, and the rights of the holders of the bonds and of the Trustee in respect of such security (which Indenture and all indentures supplemental thereto, including the Supplemental Indenture dated as of December 1, 1989, are hereinafter collectively called the "Indenture"). As provided in the Indenture, said bonds may be for various principal sums and are issuable in series, which may mature at different times, may bear interest at different rates and may otherwise vary as in said Indenture provided. With the consent of the Company and to the extent permitted by and as provided in the Indenture, the rights and obligations of the Company and of the holders of the bonds and the terms and provisions of the Indenture, or of any indenture supplemental thereto, may be modified or altered in certain respects by affirmative vote of at least eighty-five percent (85%) in amount of the bonds then outstanding, and, if the rights of one or more, but less than all, series of bonds then outstanding are to be affected by the action proposed to be taken, then also by affirmative vote of at least eighty-five percent (85%) in amount of the series of bonds so to be affected (excluding in every instance bonds disqualified from voting by reason of the Company's interest therein as specified in the Indenture); provided, however, that, without the consent of the holder hereof, no such modification or alteration shall, among other things, affect the terms of payment of the principal of or the interest on this bond, which in those respects is unconditional. The holders of the bonds of Series KKP No. 11, by their acceptance of and holding thereof, consent and agree that bonds of any series may be issued which mature on a date or dates later than October 1, 2024 and also consent to the deletion from the first paragraph of Section 5 of Article II of the Indenture of the phrase "but in no event later than October 1, 2024,". Such holders further agree that (a) such consent shall, for all purposes of Article XV of the Indenture and without further action on the part of such holders, be deemed the affirmative vote of such holders at any meeting called pursuant to said Article XV for the purpose of approving such deletion, and (b) such deletion shall become effective at such time as not less than eighty-five per cent (85%) in principal amount of bonds outstanding under the Indenture shall have consented thereto substantially in the manner set forth in Section 4 of Part I of the Supplemental Indenture dated as of December 1, 1989, or in writing, or by affirmative vote cast at a meeting called pursuant to said Article XV, or by any combination thereof. This bond is redeemable upon the terms and conditions set forth in the Indenture, including provision for redemption upon demand of the Monroe Trust Indenture Trustee following the occurrence of an Event of Default under the Monroe Trust Indenture and the acceleration of the principal of the Monroe Revenue Bonds. |
Under the Indenture, funds may be deposited with the Trustee (which shall have become available for payment), in advance of the redemption date of any of the bonds of Series KKP No. 11 (or portions thereof), in trust for the redemption of such bonds (or portions thereof) and the interest due or to become due thereon, and thereupon all obligations of the Company in respect of such bonds (or portions thereof) so to be redeemed and such interest shall cease and be discharged, and the holders thereof shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or with respect to such bonds (or portions thereof) and interest. In case an event of default, as defined in the Indenture, shall occur, the principal of all the bonds issued thereunder may become or be declared due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture. Upon payment of the principal of, or premium, if any, or interest on, the Monroe Revenue Bonds, whether at maturity or prior to maturity by redemption or otherwise or upon provision for the payment thereof having been made in accordance with Article IX of the Monroe Trust Indenture, bonds of Series KKP No. 11 in a principal amount equal to the principal amount of such Monroe Revenue Bonds and having both a corresponding maturity date and interest rate shall, to the extent of such payment of principal, premium or interest, be deemed fully paid and the obligation of the Company thereunder to make such payment shall forthwith cease and be discharged, and, in the case of the payment of principal and premium, if any, such bonds of said series shall be surrendered for cancellation or presented for appropriate notation to the Trustee. This bond is not assignable or transferable except as may be required to effect a transfer to any successor trustee under the Monroe Trust Indenture, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under the Monroe Trust Indenture. Any such transfer shall be made by the registered holder hereof, in person or by his attorney duly authorized in writing, on the books of the Company kept at its office or agency in the Borough of Manhattan, The City and State of New York, upon surrender and cancellation of this bond, and thereupon, a new registered bond of the same series of authorized denominations for a like aggregate principal amount will be issued to the transferee in exchange therefor, and this bond with others in like form may in like manner be exchanged for one or more new bonds of the same series of other authorized denominations, but of the same aggregate principal amount, all as provided and upon the terms and conditions set forth in the Indenture, and upon payment, in any event, of the charges prescribed in the Indenture. No recourse shall be had for the payment of the principal of or the interest on this bond, or for any claim based hereon or otherwise in respect hereof or of the Indenture, or of any indenture supplemental thereto, against any incorporator, or against any past, present or future stockholder, director or officer, as such, of the Company, or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether for amounts unpaid on stock subscriptions or by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise howsoever; all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released by every holder or owner hereof, as more fully provided in the Indenture. |
[FORM OF TRUSTEE'S CERTIFICATE] FORM OF This bond is one of the bonds, of the series designated TRUSTEE'S therein, described in the within-mentioned Indenture. CERTIFICATE. |
BANKERS TRUST COMPANY,
as Trustee
By ...........................
Authorized Officer
PART II. CREATION OF TWO HUNDRED EIGHTIETH SERIES OF BONDS. GENERAL AND REFUNDING MORTGAGE BONDS, 1989 SERIES BP CERTAIN TERMS SECTION 1. The Company hereby creates the Two hundred OF BONDS OF eightieth series of bonds to be issued under and secured by 1989 SERIES BP the Original Indenture as amended to date and as further amended by this Supplemental Indenture, to be designated, and to be distinguished from the bonds of all other series, by the title "General and Refunding Mortgage Bonds, 1989 Series BP" (elsewhere herein referred to as the "bonds of 1989 Series BP"). The aggregate principal amount of bonds of 1989 Series BP shall be limited to sixty-six million five hundred and sixty-five thousand dollars ($66,565,000), except as provided in Sections 7 and 13 of Article II of the Original Indenture with respect to exchanges and replacements of bonds. Each bond of 1989 Series BP is to be irrevocably assigned to, and registered in the name of, Manufacturers National Bank of Detroit, as trustee, or a successor trustee (said trustee or any successor trustee being hereinafter referred to as the "Monroe Trust Indenture Trustee"), under the Trust Indenture, dated as of December 1, 1989 (hereinafter called the "Monroe Trust Indenture"), between the County of Monroe, Michigan (hereinafter called "Monroe"), and the Monroe Trust Indenture Trustee, to secure payment of the County of Monroe, Michigan, Pollution Control Revenue Bonds (The Detroit Edison Company Fermi Plant Project), Collateralized Series CC (hereinafter called the "Monroe Revenue Bonds"), issued by Monroe under the Monroe Trust Indenture, the proceeds of which (other than any accrued interest thereon) have been provided for the acquisition and construction of certain pollution control facilities which the Company has agreed to purchase pursuant to the provisions of the Installment Sales Contract, dated as of December 1, 1989 (hereinafter called the "Monroe Contract"), between the Company and Monroe. The bonds of 1989 Series BP shall be issued as registered bonds without coupons in denominations of a multiple of $5,000. The bonds of 1989 Series BP shall be issued in the aggregate principal amount of $66,565,000, shall mature on December 1, 2019 and shall bear interest, payable semi-annually on June 1 and December 1 of each year (commencing June 1, 1990), at the rate of 7 1/2%, until the principal thereof shall have become due and payable and thereafter until the Company's obligation with respect to the payment of said principal shall have been discharged as provided in the Indenture. The bonds of 1989 Series BP shall be payable as to principal, premium, if any, and interest as provided in the Indenture, but only to the extent and in the manner herein provided. The bonds of 1989 Series BP shall be payable, both as to principal and interest, at the office or agency of the Company in the Borough of Manhattan, The City and State of New York, in any coin or currency of the United States of America which at the time of payment is legal tender for public and private debts. |
Except as provided herein, each bond of 1989 Series BP shall be dated the date of its authentication and interest shall be payable on the principal represented thereby from the June 1 or December 1 next preceding the date thereof to which interest has been paid on bonds of 1989 Series BP, unless the bond is authenticated on a date to which interest has been paid, in which case interest shall be payable from the date of authentication, or unless the date of authentication is prior to June 1, 1990, in which case interest shall be payable from December 1, 1989. The bonds of 1989 Series BP in definitive form shall be, at the election of the Company, fully engraved or shall be lithographed or printed in authorized denominations as aforesaid and numbered 1 and upwards (with such further designation as may be appropriate and desirable to indicate by such designation the form, series and denominations of bonds of 1989 Series BP). Until bonds of 1989 Series BP in definitive form are ready for delivery, the Company may execute, and upon its request in writing the Trustee shall authenticate and deliver in lieu thereof, bonds of 1989 Series BP in temporary form, as provided in Section 10 of Article II of the Indenture. Temporary bonds of 1989 Series BP, if any, may be printed and may be issued in authorized denominations in substantially the form of definitive bonds of 1989 Series BP, but with such omissions, insertions and variations as may be appropriate for temporary bonds, all as may be determined by the Company. Bonds of 1989 Series BP shall not be assignable or transferable except as may be required to effect a transfer to any successor trustee under the Monroe Trust Indenture, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under the Monroe Trust Indenture. Any such transfer shall be made upon surrender thereof for cancellation at the office or agency of the Company in the Borough of Manhattan, The City and State of New York, together with a written instrument of transfer (if so required by the Company or by the Trustee) in form approved by the Company duly executed by the holder or by its duly authorized attorney. Bonds of 1989 Series BP shall in the same manner be exchangeable for a like aggregate principal amount of bonds of 1989 Series BP upon the terms and conditions specified herein and in Section 7 of Article II of the Indenture. The Company waives its rights under Section 7 of Article II of the Indenture not to make exchanges or transfers of bonds of 1989 Series BP, during any period of ten days next preceding any redemption date for such bonds. Bonds of 1989 Series BP, in definitive and temporary form, may bear such legends as may be necessary to comply with any law or with any rules or regulations made pursuant thereto or as may be specified in the Monroe Contract. Upon payment of the principal or premium, if any, or interest on the Monroe Revenue Bonds, whether at maturity or prior to maturity by redemption or otherwise, or upon provision for the payment thereof having been made in accordance with Article IX of the Monroe Trust Indenture, bonds of 1989 Series BP in a principal amount equal to the principal amount of such Monroe Revenue Bonds, shall, to the extent of such payment of principal, premium or interest, be deemed fully paid and the obligation of the Company thereunder to make such payment shall forthwith cease and be discharged, and, in the case of the payment of principal and premium, if any, such bonds shall be surrendered for cancellation or presented for appropriate notation to the Trustee. REDEMPTION SECTION 2. Bonds of 1989 Series BP shall be redeemed on OF BONDS the respective dates and in the respective principal amounts OF 1989 which correspond to the redemption dates for, and the SERIES BP principal amounts to be redeemed of, the Monroe Revenue Bonds. |
In the event the Company elects to redeem any Monroe Revenue Bonds prior to maturity in accordance with the provisions of the Monroe Trust Indenture, the Company shall on the same date redeem bonds of 1989 Series BP in principal amounts and at redemption prices corresponding to the Monroe Revenue Bonds so redeemed. The Company agrees to give the Trustee notice of any such redemption of bonds of 1989 Series BP on the same date as it gives notice of redemption of Monroe Revenue Bonds to the Monroe Trust Indenture Trustee. REDEMPTION SECTION 3. In the event of an Event of Default under the OF BONDS OF Monroe Trust Indenture and the acceleration of all Monroe 1989 SERIES Revenue Bonds, the bonds of 1989 Series BP shall be BP IN EVENT redeemable in whole upon receipt by the Trustee of a written OF ACCELERATION demand (hereinafter called a "Redemption Demand") from the OF MONROE Monroe Trust Indenture Trustee stating that there has REVENUE BONDS. occurred under the Monroe Trust Indenture both an Event of Default and a declaration of acceleration of payment of principal, accrued interest and premium, if any, on the Monroe Revenue Bonds, specifying the last date to which interest on the Monroe Revenue Bonds has been paid (such date being hereinafter referred to as the "Initial Interest Accrual Date") and demanding redemption of the bonds of said series. The Trustee shall, within five days after receiving such Redemption Demand, mail a copy thereof to the Company marked to indicate the date of its receipt by the Trustee. Promptly upon receipt by the Company of such copy of a Redemption Demand, the Company shall fix a date on which it will redeem the bonds of said series so demanded to be redeemed (hereinafter called the "Demand Redemption Date"). Notice of the date fixed as the Demand Redemption Date shall be mailed by the Company to the Trustee at least ten days prior to such Demand Redemption Date. The date to be fixed by the Company as and for the Demand Redemption Date may be any date up to and including the earlier of (x) the 60th day after receipt by the Trustee of the Redemption Demand or (y) the maturity date of such bonds first occurring following the 20th day after the receipt by the Trustee of the Redemption Demand; provided, however, that if the Trustee shall not have received such notice fixing the Demand Redemption Date on or before the 10th day preceding the earlier of such dates, the Demand Redemption Date shall be deemed to be the earlier of such dates. The Trustee shall mail notice of the Demand Redemption Date (such notice being hereinafter called the "Demand Redemption Notice") to the Monroe Trust Indenture Trustee not more than ten nor less than five days prior to the Demand Redemption Date. Each bond of 1989 Series BP shall be redeemed by the Company on the Demand Redemption Date therefore upon surrender thereof by the Monroe Trust Indenture Trustee to the Trustee at a redemption price equal to the principal amount thereof plus accrued interest thereon at the rate specified for such bond from the Initial Interest Accrual Date to the Demand Redemption Date plus an amount equal to the aggregate premium, if any, due and payable on such Demand Redemption Date on all Monroe Revenue Bonds; provided, however, that in the event of a receipt by the Trustee of a notice that, pursuant to Section 1010 of the Monroe Trust Indenture, the Monroe Trust Indenture Trustee has terminated proceedings to enforce any right under the Monroe Trust Indenture, then any Redemption Demand shall thereby be rescinded by the Monroe Trust Indenture Trustee, and no Demand Redemption Notice shall be given, or, if already given, shall be automatically annulled; but no such rescission or annulment shall extend to or affect any subsequent default or impair any right consequent thereon. Anything herein contained to the contrary notwithstanding, the Trustee is not authorized to take any action pursuant to a Redemption Demand and such Redemption Demand shall be of no force or effect, unless it is executed in the name of the Monroe Trust Indenture Trustee by its President or one of its Vice Presidents. |
CONSENT. SECTION 4. The holders of the bonds of 1989 Series BP, by their acceptance of and holding thereof, consent and agree that bonds of any series may be issued which mature on a date or dates later than October 1, 2024 and also consent to the deletion from the first paragraph of Section 5 of Article II of the Indenture of the phrase "but in no event later than October 1, 2024". Such holders further agree that (a) such consent shall, for all purposes of Article XV of the Indenture and without further action on the part of such holders, be deemed the affirmative vote of such holders at any meeting called pursuant to said Article XV for the purpose of approving such deletion, and (b) such deletion shall become effective at such time as not less than eighty-five per cent (85%) in principal amount of bonds outstanding under the Indenture shall have consented thereto substantially in the manner set forth in this Section 4, or in writing, or by affirmative vote cast at a meeting called pursuant to said Article XV, or by any combination thereof. FORM OF BONDS SECTION 5. The bonds of 1989 Series BP and the form of OF 1989 SERIES BP. Trustee's Certificate to be endorsed on such bonds shall be substantially in the following forms, respectively: [FORM OF FACE OF BOND] THE DETROIT EDISON COMPANY GENERAL AND REFUNDING MORTGAGE BOND 1989 SERIES BP, 7 1/2% DUE DECEMBER 1, 2019 Notwithstanding any provisions hereof or in the Indenture, this bond is not assignable or transferable except as may be required to effect a transfer to any successor trustee under the Trust Indenture, dated as of December 1, 1989 between the County of Monroe, Michigan and Manufacturers National Bank of Detroit, as trustee, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under said Trust Indenture. $......... No.......... THE DETROIT EDISON COMPANY (hereinafter called the "Company"), a corporation of the State of Michigan, for value received, hereby promises to pay to Manufacturers National Bank of Detroit, as trustee, or registered assigns, at the Company's office or agency in the Borough of Manhattan, The City and State of New York, the principal sum of dollars ($ ) in lawful money of the United States of America on the date specified in the title hereof and interest thereon at the rate specified in the title hereof, in like lawful money, from December 1, 1989, and after the first payment of interest on bonds of this Series has been made or otherwise provided for, from the most recent date to which interest has been paid or otherwise provided for, semi-annually on June 1 and December 1 of each year (commencing June 1, 1990), until the Company's obligation with respect to payment of said principal shall have been discharged, all as provided, to the extent and in the manner specified in the Indenture hereinafter mentioned on the reverse hereof and in the supplemental indenture pursuant to which this bond has been issued. Under a Trust Indenture, dated as of December 1, 1989 (hereinafter called the "Monroe Trust Indenture"), between the County of Monroe, Michigan (hereinafter called "Monroe"), and Manufacturers National Bank of Detroit, as trustee (hereinafter called the "Monroe Trust Indenture Trustee"), Monroe has issued Pollution Control Revenue Bonds (The Detroit Edison Company Fermi Plant Project), Collateralized Series CC (hereinafter called the "Monroe Revenue Bonds"). This bond was originally issued to Monroe and simultaneously irrevocably assigned to the Monroe Trust Indenture Trustee so as to secure the payment of the Monroe Revenue Bonds. Payments of principal of, or premium, if any, or interest on, Monroe Revenue Bonds shall constitute like payments on this bond as further provided herein and in the supplemental indenture pursuant to which this bond has been issued. Reference is hereby made to such further provisions of this bond set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though set forth at this place. |
This bond shall not be valid or become obligatory for any purpose until Bankers Trust Company, the Trustee under the Indenture hereinafter mentioned on the reverse hereof, or its successor thereunder, shall have signed the form of certificate endorsed hereon. IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY has caused this instrument to be executed by its Chairman of the Board and its President or a Vice President, with their manual or facsimile signatures, and its corporate seal, or a facsimile thereof, to be impressed or imprinted hereon and the same to be attested by its Secretary or an Assistant Secretary with his manual or facsimile signature. |
Dated: THE DETROIT EDISON COMPANY By ............................ Chairman of the Board ............................ Attest: President ............................ Secretary |
[FORM OF REVERSE OF BOND] This bond is one of an authorized issue of bonds of the Company, unlimited as to amount except as provided in the Indenture hereinafter mentioned or any indentures supplemental thereto, and is one of a series of General and Refunding Mortgage Bonds known as 1989 Series BP, limited to an aggregate principal amount of $66,565,000, except as otherwise provided in the Indenture hereinafter mentioned. This bond and all other bonds of said series are issued and to be issued under, and are all equally and ratably secured (except insofar as any sinking, amortization, improvement or analogous fund, established in accordance with the provisions of the Indenture hereinafter mentioned, may afford additional security for the bonds of any particular series and except as provided in Section 3 of Article VI of said Indenture) by an Indenture, dated as of October 1, 1924, duly executed by the Company to Bankers Trust Company, a corporation of the State of New York, as Trustee, to which Indenture and all indentures supplemental thereto (including the Supplemental Indenture dated as of December 1, 1989) reference is hereby made for a description of the properties and franchises mortgaged and conveyed, the nature and extent of the security, the terms and conditions upon which the bonds are issued and under which additional bonds may be issued, and the rights of the holders of the bonds and of the Trustee in respect of such security (which Indenture and all indentures supplemental thereto, including the Supplemental Indenture dated as of December 1, 1989, are hereinafter collectively called the "Indenture"). As provided in the Indenture, said bonds may be for various principal sums and are issuable in series, which may mature at different times, may bear interest at different rates and may otherwise vary as in said Indenture provided. With the consent of the Company and to the extent permitted by and as provided in the Indenture, the rights and obligations of the Company and of the holders of the bonds and the terms and provisions of the Indenture, or of any indenture supplemental thereto, may be modified or altered in certain respects by affirmative vote of at least eighty-five percent (85%) in amount of the bonds then outstanding, and, if the rights of one or more, but less than all, series of bonds then outstanding are to be affected by the action proposed to be taken, then also by affirmative vote of at least eighty-five percent (85%) in amount of the series of bonds so to be affected (excluding in every instance bonds disqualified from voting by reason of the Company's interest therein as specified in the Indenture); provided, however, that, without the consent of the holder hereof, no such modification or alteration shall, among other things, affect the terms of payment of the principal of or the interest on this bond, which in those respects is unconditional. The holders of the bonds of 1989 Series BP, by their acceptance of and holding thereof, consent and agree that bonds of any series may be issued which mature on a date or dates later than October 1, 2024 and also consent to the deletion from the first paragraph of Section 5 of Article II of the Indenture of the phrase "but in no event later than October 1, 2024,". Such holders further agree that (a) such consent shall, for all purposes of Article XV of the Indenture and without further action on the part of such holders, be deemed the affirmative vote of such holders at any meeting called pursuant to said Article XV for the purpose of approving such deletion, and (b) such deletion shall become effective at such time as not less than eighty-five per cent (85%) in principal amount of bonds outstanding under the Indenture shall have consented thereto substantially in the manner set forth in Section 4 of Part II of the Supplemental Indenture dated as of December 1, 1989, or in writing, or by affirmative vote cast at a meeting called pursuant to said Article XV, or by any combination thereof. This bond is redeemable upon the terms and conditions set forth in the Indenture, including provision for redemption upon demand of the Monroe Trust Indenture Trustee following the occurrence of an Event of Default under the Monroe Trust Indenture and the acceleration of the principal of the Monroe Revenue Bonds. |
Under the Indenture, funds may be deposited with the Trustee (which shall have become available for payment), in advance of the redemption date of any of the bonds of 1989 Series BP (or portions thereof), in trust for the redemption of such bonds (or portions thereof) and the interest due or to become due thereon, and thereupon all obligations of the Company in respect of such bonds (or portions thereof) so to be redeemed and such interest shall cease and be discharged, and the holders thereof shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or with respect to such bonds (or portions thereof) and interest. In case an event of default, as defined in the Indenture, shall occur, the principal of all the bonds issued thereunder may become or be declared due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture. Upon payment of the principal of, or premium, if any, or interest on, the Monroe Revenue Bonds, whether at maturity or prior to maturity by redemption or otherwise or upon provision for the payment thereof having been made in accordance with Article IX of the Monroe Trust Indenture, bonds of 1989 Series BP in a principal amount equal to the principal amount of such Monroe Revenue Bonds and having both a corresponding maturity date and interest rate shall, to the extent of such payment of principal, premium or interest, be deemed fully paid and the obligation of the Company thereunder to make such payment shall forthwith cease and be discharged, and, in the case of the payment of principal and premium, if any, such bonds of said series shall be surrendered for cancellation or presented for appropriate notation to the Trustee. This bond is not assignable or transferable except as may be required to effect a transfer to any successor trustee under the Monroe Trust Indenture, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under the Monroe Trust Indenture. Any such transfer shall be made by the registered holder hereof, in person or by his attorney duly authorized in writing, on the books of the Company kept at its office or agency in the Borough of Manhattan, The City and State of New York, upon surrender and cancellation of this bond, and thereupon, a new registered bond of the same series of authorized denominations for a like aggregate principal amount will be issued to the transferee in exchange therefor, and this bond with others in like form may in like manner be exchanged for one or more new bonds of the same series of other authorized denominations, but of the same aggregate principal amount, all as provided and upon the terms and conditions set forth in the Indenture, and upon payment, in any event, of the charges prescribed in the Indenture. No recourse shall be had for the payment of the principal of or the interest on this bond, or for any claim based hereon or otherwise in respect hereof or of the Indenture, or of any indenture supplemental thereto, against any incorporator, or against any past, present or future stockholder, director or officer, as such, of the Company, or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether for amounts unpaid on stock subscriptions or by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise howsoever; all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released by every holder or owner hereof, as more fully provided in the Indenture. |
[FORM OF TRUSTEE'S CERTIFICATE] FORM OF This bond is one of the bonds, of the series designated therein, TRUSTEE'S described in the within-mentioned Indenture. CERTIFICATE. |
BANKERS TRUST COMPANY,
as Trustee
By ...........................
Authorized Officer
PART III. RECORDING AND FILING DATA RECORDING AND The Original Indenture and indentures supplemental FILING OF ORIGINAL thereto have been recorded and/or filed and Certificates of INDENTURE. Provision for Payment have been recorded as hereinafter set forth. The Original Indenture has been recorded as a real estate mortgage and filed as a chattel mortgage in the offices of the respective Registers of Deeds of certain counties in the State of Michigan as set forth in the Supplemental Indenture dated as of September 1, 1947, has been recorded as a real estate mortgage in the office of the Register of Deeds of Genesee County, Michigan as set forth in the Supplemental Indenture dated as of May 1, 1974, has been filed in the Office of the Secretary of State of Michigan on November 16, 1951 and has been filed and recorded in the office of the Interstate Commerce Commission on December 8, 1969. RECORDING AND Pursuant to the terms and provisions of the Original FILING OF Indenture, indentures supplemental thereto heretofore SUPPLEMENTAL entered into have been recorded as a real estate mortgage INDENTURES. and/or filed as a chattel mortgage or as a financing statement in the offices of the respective Registers of Deeds of certain counties in the State of Michigan, the Office of the Scretary of State of Michigan and the Office of the Interstate Commerce Commission, as set forth in supplemental indentures as follows: |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- June 1, 1925(a)(b)................ Series B Bonds February 1, 1940 August 1, 1927(a)(b).............. Series C Bonds February 1, 1940 February 1, 1931(a)(b)............ Series D Bonds February 1, 1940 June 1, 1931(a)(b)................ Subject Properties February 1, 1940 October 1, 1932(a)(b)............. Series E Bonds February 1, 1940 September 25, 1935(a)(b).......... Series F Bonds February 1, 1940 September 1, 1936(a)(b)........... Series G Bonds February 1, 1940 November 1, 1936(a)(b)............ Subject Properties February 1, 1940 February 1, 1940(a)(b)............ Subject Properties September 1, 1947 December 1, 1940(a)(b)............ Series H Bonds and September 1, 1947 Additional Provisions September 1, 1947(a)(b)(c)........ Series I Bonds, November 15, 1951 Subject Properties and Additional Provisions March 1, 1950(a)(b)(c)............ Series J Bonds November 15, 1951 and Additional Provisions November 15, 1951(a)(b)(c)........ Series K Bonds January 15, 1953 Additional Provisions and Subject Properties January 15, 1953(a)(b)............ Series L Bonds May 1, 1953 |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- May 1, 1953(a).................... Series M Bonds March 15, 1954 and Subject Properties March 15, 1954(a)(c).............. Series N Bonds May 15, 1955 and Subject Properties May 15, 1955(a)(c)................ Series O Bonds August 15, 1957 and Subject Properties August 15, 1957(a)(c)............. Series P Bonds June 1, 1959 Additional Provisions and Subject Properties June 1, 1959(a)(c)................ Series Q Bonds December 1, 1966 and Subject Properties December 1, 1966(a)(c)............ Series R Bonds October 1, 1968 Additional Provisions and Subject Properties October 1, 1968(a)(c)............. Series S Bonds December 1, 1969 and Subject Properties December 1, 1969(a)(c)............ Series T Bonds July 1, 1970 and Subject Properties July 1, 1970(c)................... Series U Bonds December 15, 1970 and Subject Properties December 15, 1970(c).............. Series V and June 15, 1971 Series W Bonds June 15, 1971(c).................. Series X Bonds November 15, 1971 and Subject Properties November 15, 1971(c).............. Series Y Bonds January 15, 1973 and Subject Properties January 15, 1973(c)............... Series Z Bonds May 1, 1974 and Subject Properties May 1, 1974....................... Series AA Bonds October 1, 1974 and Subject Properties October 1, 1974................... Series BB Bonds January 15, 1975 and Subject Properties January 15, 1975.................. Series CC Bonds November 1, 1975 and Subject Properties November 1, 1975.................. Series DDP Nos. 1-9 Bonds December 15, 1975 and Subject Properties December 15, 1975................. Series EE Bonds February 1, 1976 and Subject Properties February 1, 1976.................. Series FFR Nos. 1-13 Bonds June 15, 1976 June 15, 1976..................... Series GGP Nos. 1-7 Bonds July 15, 1976 and Subject Properties July 15, 1976..................... Series HH Bonds February 15, 1977 and Subject Properties February 15, 1977................. Series MMP Bonds and Subject March 1, 1977 Properties March 1, 1977..................... Series IIP Nos. 1-7 Bonds, June 15, 1977 Series JJP Nos. 1-7 Bonds, Series KKP Nos. 1-7 Bonds and Series LLP Nos. 1-7 Bonds June 15, 1977..................... Series FFR No. 14 Bonds and July 1, 1977 Subject Properties |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- July 1, 1977...................... Series NNP Nos. 1-7 Bonds October 1, 1977 and Subject Properties October 1, 1977................... Series GGP Nos. 8-22 Bonds June 1, 1978 and Series OOP Nos. 1-17 Bonds and Subject Properties June 1, 1978...................... Series PP Bonds, October 15, 1978 Series QQP Nos. 1-9 Bonds and Subject Properties October 15, 1978.................. Series RR Bonds March 15, 1979 and Subject Properties March 15, 1979.................... Series SS Bonds July 1, 1979 and Subject Properties July 1, 1979...................... Series IIP Nos. 8-22 Bonds, September 1, 1979 Series NNP Nos. 8-21 Bonds and Series TTP Nos. 1-15 Bonds and Subject Properties September 1, 1979................. Series JJP No. 8 Bonds, September 15, 1979 Series KKP No. 8 Bonds, Series LLP Nos. 8-15 Bonds, Series MMP No. 2 Bonds and Series OOP No. 18 Bonds and Subject Properties September 15, 1979................ Series UU Bonds January 1, 1980 January 1, 1980................... 1980 Series A Bonds and April 1, 1980 Subject Properties April 1, 1980..................... 1980 Series B Bonds August 15, 1980 August 15, 1980................... Series QQP Nos. 10-19 Bonds, August 1, 1981 1980 Series CP Nos. 1-12 Bonds and 1980 Series DP No. 1-11 Bonds and Subject Properties August 1, 1981.................... 1980 Series CP Nos. 13-25 November 1, 1981 Bonds and Subject Properties November 1, 1981.................. 1981 Series AP Nos. 1-12 June 30, 1982 Bonds June 30, 1982..................... Article XIV Reconfirmation August 15, 1982 August 15, 1982................... 1981 Series AP Nos. 13-14 June 1, 1983 and Subject Properties June 1, 1983...................... 1981 Series AP Nos. 15-16 October 1, 1984 and Subject Properties October 1, 1984................... 1984 Series AP and 1984 May 1, 1985 Series BP Bonds and Subject Properties May 1, 1985....................... 1985 Series A Bonds May 15, 1985 May 15, 1985...................... 1985 Series B Bonds and October 15, 1985 Subject Properties |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- October 15, 1985.................. Series KKP No. 9 Bonds and April 1, 1986 Subject Properties April 1, 1986..................... 1986 Series A and Subject August 15, 1986 Properties August 15, 1986................... 1986 Series B and Subject November 30, 1986 Properties November 30, 1986................. 1986 Series C Janaury 31, 1987 January 31, 1987.................. 1987 Series A April 1, 1987 April 1, 1987..................... 1987 Series B and 1987 August 15, 1987 Series C August 15, 1987................... 1987 Series D and 1987 November 30, 1987 Series E and Subject Properties November 30, 1987................. 1987 Series F June 15, 1989 June 15, 1989..................... 1989 Series A July 15, 1989 |
(b) See Supplemental Indenture dated as of May 1, 1953 for Secretary of State of Michigan filing information.
(c) See Supplemental Indenture dated as of May 1, 1974 for County of Genesee, Michigan recording and filing information.
Further, pursuant to the terms and provisions of the Original Indenture, a Supplemental Indenture dated as of July 15, 1989 providing for the terms of bonds to be issued thereunder of Series KKP No. 10 has heretofore been entered into between the Company and the Trustee and has been filed in the Office of the Secretary of State of Michigan as a financing statement on June 25, 1989 (Filing No. 96570A), has been filed and recorded in the Office of the Interstate Commerce Commission (Recordation No. 5485-NNN), and has been recorded as a real estate mortgage in the offices of the respective Register of Deeds of certain counties in the State of Michigan, as follows: |
LIBER OF MORTGAGES OR COUNTY COUNTY RECORDED RECORDS PAGE ------ -------- --------- ---- Genesee......................... July 25, 1989 2520 334-355 Huron........................... July 25, 1989 526 646-667 Ingham.......................... July 25, 1989 1766 822-843 Lapeer.......................... July 25, 1989 665 769-790 Lenawee......................... July 25, 1989 1100 937-958 Livingston...................... July 25, 1989 1355 0779-0800 Macomb.......................... July 25, 1989 04689 282-303 Mason........................... July 25, 1989 382 755-776 Monroe.......................... July 25, 1989 1085 0862-0883 Oakland......................... July 25, 1989 10993 471-492 Sanilac......................... July 25, 1989 404 446-467 St. Clair....................... July 25, 1989 935 34-55 Tuscola......................... July 25, 1989 594 728-749 Washtenaw....................... July 25, 1989 2333 501-522 Wayne........................... July 25, 1989 24269 192-213 |
RECORDING OF All the bonds of Series A which were issued under the CERTIFICATES Original Indenture dated as of October 1, 1924, and of OF PROVISION Series B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, W, FOR PAYMENT. BB, CC, DDP Nos. 1-8, FFR Nos. 1-10, GGP Nos. 1-6 and 8-15, IIP Nos. 1-6 and 8-13, JJP Nos. 1-6, KKP Nos. 1-6, LLP Nos. 1-6 and 8-13, NNP Nos. 1-6 and 8-13, OOP Nos. 1-8, QQP Nos. 1-7 and 10-14 and TTP Nos. 1-6, 1980 Series A, 1980 Series CP Nos. 1-5 and 13-16, 1980 Series DP Nos. 1-5 and 1981 Series AP No. 1-4 which were issued under Supplemental Indentures dated as of, respectively, June 1, 1925, August 1, 1927, February 1, 1931, October 1, 1932, September 25, 1935, September 1, 1936, December 1, 1940, September 1, 1947, November 15, 1951, January 15, 1953, May 1, 1953, March 15, 1954, May 15, 1955, August 15, 1957, December 15, 1970, October 1, 1974, January 15, 1975, November 1, 1975, February 1, 1976, June 15, 1976, October 1, 1977, March 1, 1977, July 1, 1979, March 1, 1977, March 1, 1977, March 1, 1977, September 1, 1979, July 1, 1977, July 1, 1979, October 1, 1977, June 1, 1978, October 1, 1977, July 1, 1979, January 1, 1980, August 15, 1980 and November 1, 1981 have matured or have been called for redemption and funds sufficient for such payment or redemption have been irrevocably deposited with the Trustee for that purpose; and Certificates of Provision for Payment have been recorded in the offices of the respective Registers of Deeds of certain counties in the State of Michigan, with respect to all bonds of Series A, B, C, D, E, F, G, H, K, L, M, O, W, BB, CC, DDP Nos. 1 and 2, FFR Nos. 1-3, GGP Nos. 1 and 2, IIP No. 1, JJP No. 1, KKP No. 1, LLP No. 1 and GGP No. 8. PART IV. THE TRUSTEE. TERMS AND The Trustee hereby accepts the trust hereby declared and CONDITIONS OF provided, and agrees to perform the same upon the terms and ACCEPTANCE OF conditions in the Original Indenture, as amended to date and TRUST BY TRUSTEE. as supplemented by this Supplemental Indenture, and in this Supplemental Indenture set forth, and upon the following terms and conditions: The Trustee shall not be responsible in any manner whatsoever for and in respect of the validity or sufficiency of this Supplemental Indenture or the due execution hereof by the Company or for or in respect of the recitals contained herein, all of which recitals are made by the Company solely. |
PART V. MISCELLANEOUS. EXECUTION IN This Supplemental Indenture may be simultaneously COUNTERPARTS. executed in any number of counterparts, each of which when so executed shall be deemed to be an original; but such counterparts shall together constitute but one and the same instrument. TESTIMONIUM. IN WITNESS WHEREOF, The Detroit Edison Company and Bankers Trust Company have caused these presents to be signed in their respective corporate names by their respective Chairmen of the Board, Presidents, Vice Presidents, Assistant Vice Presidents or Treasurers and impressed with their respective corporate seals, attested by their respective Secretaries or Assistant Secretaries, all as of the day and year first above written. |
THE DETROIT EDISON COMPANY, (Corporate Seal) By /s/ L. L. LOOMANS ------------------------------- L. L. Loomans Vice President and Treasurer EXECUTION. Attest: /s/SUSAN M. BEALE --------------------------- Susan M. Beale Secretary Signed, sealed and delivered by THE DETROIT EDISON COMPANY, in the presence of /s/ PEARL KOTTER --------------------------- Pearl Kotter /s/ BETTY M. HANSEN --------------------------- Betty M. Hansen (Corporate Seal) BANKERS TRUST COMPANY, By /s/ BARBARA A. JOINER ------------------------------- Barbara A. Joiner Vice President Attest: /s/ SANDRA SHIRLEY --------------------------- Sandra Shirley Assistant Secretary Signed, sealed and delivered by BANKERS TRUST COMPANY, in the presence of /s/ ERIC M. HAWNER --------------------------- Eric M. Hawner /s/ Y. PATRICIA BLUE --------------------------- Y. Patricia Blue |
STATE OF MICHIGAN SS.: COUNTY OF WAYNE ACKNOWLEDGMENT On this 13th day of December, 1989, before me, the OF EXECUTION subscriber, a Notary Public within and for the County of BY COMPANY. Wayne, in the State of Michigan, personally appeared L. L. Loomans, to me personally known, who, being by me duly sworn, did say that he does business at 2000 Second Avenue, Detroit, Michigan 48226 and is the Vice President and Treasurer of THE DETROIT EDISON COMPANY, one of the corporations described in and which executed the foregoing instrument; that he knows the corporate seal of the said corporation and that the seal affixed to said instrument is the corporate seal of said corporation; and that said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors and that he subscribed his name thereto by like authority; and said L. L. Loomans, acknowledged said instrument to be the free act and deed of said corporation. |
/s/ JANET A. SCULLEN ------------------------------------ (Notarial Seal) Janet A. Scullen, Notary Public Macomb County, MI (Acting in Wayne County) My Commission Expires March 30, 1993 |
STATE OF NEW YORK SS.: COUNTY OF NEW YORK ACKNOWLEDGMENT On this 13th day of December, 1989, before me, the OF EXECUTION subscriber, a Notary Public within and for the County of New BY TRUSTEE. York, in the State of New York, personally appeared Barbara A. Joiner, to me personally known, who, being by me duly sworn, did say that she does business at Four Albany Street, New York, New York 10015, and is Vice President of BANKERS TRUST COMPANY, one of the corporations described in and which executed the foregoing instrument; that she knows the corporate seal of the said corporation and that the seal affixed to said instrument is the corporate seal of said corporation; and that said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors and that she subscribed her name thereto by like authority; and said Barbara A. Joiner acknowledged said instrument to be the free act and deed of said corporation. |
(Notarial Seal) /s/ DESIREE MARSHALL ------------------------------------ Desiree Marshall Notary Public, State of New York No. 24-4885294 Qualified in Kings County Certificate filed in New York County Commission Expires February 17, 1991 |
STATE OF MICHIGAN SS.: COUNTY OF WAYNE AFFIDAVIT AS TO L. L. Loomans, being duly sworn, says: that he is the Vice CONSIDERATION President and Treasurer of THE DETROIT EDISON COMPANY, the AND GOOD FAITH. Mortgagor named in the foregoing instrument, and that he has knowledge of the facts in regard to the making of said instrument and of the consideration therefor; that the consideration for said instrument was and is actual and adequate, and that the same was given in good faith for the purposes in such instrument set forth. |
/s/ L. L. LOOMANS ----------------------------------------- L. L. Loomans Sworn to before me this 13th day of December, 1989 /s/ JANET A. SCULLEN ------------------------------------ Janet A. Scullen, Notary Public Macomb County, MI (Acting in Wayne County) My Commission Expires March 30, 1993 (Notarial Seal) This instrument was drafted by Frances B. Rohlman, Esq., 2000 Second Avenue, Detroit, Michigan 48226 |
EXHIBIT 4-212
CONFORMED COPY
THE DETROIT EDISON COMPANY
(2000 Second Avenue,
Detroit, Michigan 48226)
TO
BANKERS TRUST COMPANY
(Four Albany Street,
New York, New York 10015)
AS TRUSTEE
INDENTURE
Dated as of February 15, 1990
SUPPLEMENTAL TO MORTGAGE AND DEED OF TRUST
DATED AS OF OCTOBER 1, 1924
PROVIDING FOR
(A) GENERAL AND REFUNDING MORTGAGE BONDS,
1990 SERIES A AND 1990 SERIES D, DUE MARCH 31, 2020,
(B) GENERAL AND REFUNDING MORTGAGE BONDS,
1990 SERIES B AND 1990 SERIES E, DUE MARCH 31, 2016,
(C) 1990 SERIES C AND 1990 SERIES F, DUE MARCH 31, 2014
AND
(D) RECORDING AND FILING DATA
TABLE OF CONTENTS*
PAGE ---- PARTIES..................................................... 1 RECITALS Original Indenture and Supplementals...................... 1 Issue of Bonds under Indenture............................ 1 Bonds heretofore issued................................... 1 Reason for creation of new series......................... 5 Bonds to be 1990 Series A/1990 Series D, 1990 Series B/1990 Series E, and 1990 Series C/1990 Series F....... 5 Further assurance......................................... 5 Authorization of Supplemental Indenture................... 5 Consideration for Supplemental Indenture.................. 6 PART I. CREATION OF TWO HUNDRED EIGHTY-FIRST SERIES OF BONDS GENERAL AND REFUNDING MORTGAGE BOND, 1990 SERIES A Sec. 1. Terms of Bond of 1990 Series A...................... 7 Sec. 2. Redemption of 1990 Series A Bond.................... 8 Sec. 3. Exchange............................................ 9 Sec. 4. Consent............................................. 9 Sec. 5. Form of 1990 Series A Bond.......................... 9 Form of Trustee's Certificate....................... 13 PART II. CREATION OF TWO HUNDRED EIGHTY-SECOND SERIES OF BONDS GENERAL AND REFUNDING MORTGAGE BONDS, 1990 SERIES D Sec. 1. Terms of Bonds of 1990 Series D..................... 14 Sec. 2. Redemption of Bonds of 1990 Series D................ 15 Exchange and transfer............................... 17 Sec. 3. Consent............................................. 17 Sec. 4. Form of Bonds of 1990 Series D...................... 18 Form of Trustee's Certificate....................... 21 PART III. CREATION OF TWO HUNDRED EIGHTY-THIRD SERIES OF BONDS GENERAL AND REFUNDING MORTGAGE BOND, 1990 SERIES B Sec. 1. Terms of Bond of 1990 Series B...................... 22 Sec. 2. Redemption of 1990 Series B Bond.................... 23 Sec. 3. Exchange............................................ 24 Sec. 4. Consent............................................. 24 Sec. 5. Form of 1990 Series B Bond.......................... 25 Form of Trustee's Certificate....................... 30 |
PAGE ---- PART IV. CREATION OF TWO HUNDRED EIGHTY-FOURTH SERIES OF BONDS GENERAL AND REFUNDING MORTGAGE BONDS, 1990 SERIES E Sec. 1. Terms of Bonds of 1990 Series E..................... 31 Sec. 2. Redemption of Bonds of 1990 Series E................ 32 Exchange and transfer............................... 34 Sec. 3. Consent............................................. 34 Sec. 4. Form of Bonds of 1990 Series E...................... 35 Form of Trustee's Certificate....................... 38 PART V. CREATION OF TWO HUNDRED EIGHTY-FIFTH SERIES OF BONDS GENERAL AND REFUNDING MORTGAGE BOND, 1990 SERIES C Sec. 1. Terms of Bond of 1990 Series C...................... 39 Sec. 2. Redemption of 1990 Series C Bond.................... 40 Sec. 3. Exchange............................................ 41 Sec. 4. Consent............................................. 41 Sec. 5. Form of 1990 Series C Bond.......................... 42 Form of Trustee's Certificate....................... 47 PART VI. CREATION OF TWO HUNDRED EIGHTY-SIXTH SERIES OF BONDS GENERAL AND REFUNDING MORTGAGE BONDS, 1990 SERIES F Sec. 1. Terms of Bonds of 1990 Series F..................... 48 Sec. 2. Redemption of Bonds of 1990 Series F................ 49 Exchange and transfer............................... 51 Sec. 3. Consent............................................. 51 Sec. 4. Form of Bonds of 1990 Series F...................... 52 Form of Trustee's Certificate....................... 55 PART VII. RECORDING AND FILING DATA Recording and filing of Original Indenture.................. 56 Recording and filing of Supplemental Indentures............. 56 Recording of Certificates of Provision for Payment.......... 60 PART VIII. THE TRUSTEE Terms and conditions of acceptance of trust by Trustee...... 60 PART IX. MISCELLANEOUS Execution in Counterparts................................... 61 Testimonium................................................. 61 Execution................................................... 61 Acknowledgements............................................ 62 Affidavit as to consideration and good faith................ 63 |
PARTIES. SUPPLEMENTAL INDENTURE, dated as of the fifteenth day of February, in the year one thousand nine hundred and ninety, between THE DETROIT EDISON COMPANY, a corporation organized and existing under the laws of the State of Michigan and a transmitting utility (hereinafter called the "Company"), party of the first part, and BANKERS TRUST COMPANY, a corporation organized and existing under the laws of the State of New York, having its corporate trust office at Four Albany Street, in the Borough of Manhattan, The City and State of New York, as Trustee under the Mortgage and Deed of Trust hereinafter mentioned (hereinafter called the "Trus- tee"), party of the second part. ORIGINAL WHEREAS, the Company has heretofore executed and delivered INDENTURE AND its Mortgage and Deed of Trust (hereinafter referred to as SUPPLEMENTALS. the "Original Indenture"), dated as of October 1, 1924, to the Trustee, for the security of all bonds of the Company outstanding thereunder, and pursuant to the terms and provisions of the Original Indenture, indentures dated as of, respectively, June 1, 1925, August 1, 1927, February 1, 1931, June 1, 1931, October 1, 1932, September 25, 1935, September 1, 1936, November 1, 1936, February 1, 1940, December 1, 1940, September 1, 1947, March 1, 1950, November 15, 1951, January 15, 1953, May 1, 1953, March 15, 1954, May 15, 1955, August 15, 1957, June 1, 1959, December 1, 1966, October 1, 1968, December 1, 1969, July 1, 1970, December 15, 1970, June 15, 1971, November 15, 1971, January 15, 1973, May 1, 1974, October 1, 1974, January 15, 1975, November 1, 1975, December 15, 1975, February 1, 1976, June 15, 1976, July 15, 1976, February 15, 1977, March 1, 1977, June 15, 1977, July 1, 1977, October 1, 1977, June 1, 1978, October 15, 1978, March 15, 1979, July 1, 1979, September 1, 1979, September 15, 1979, January 1, 1980, April 1, 1980, August 15, 1980, August 1, 1981, November 1, 1981, June 30, 1982, August 15, 1982, June 1, 1983, October 1, 1984, May 1, 1985, May 15, 1985, October 15, 1985, April 1, 1986, August 15, 1986, November 30, 1986, January 31, 1987, April 1, 1987, August 15, 1987, November 30, 1987, June 15, 1989, July 15, 1989 and December 1, 1989 supplemental to the Original Indenture, have heretofore been entered into between the Company and the Trustee (the Original Indenture and all indentures supplemental thereto together being hereinafter sometimes referred to as the "Indenture"); and ISSUE OF WHEREAS, the Indenture provides that said bonds shall be BONDS UNDER issuable in one or more series, and makes provision that the INDENTURE. rates of interest and dates for the payment thereof, the date of maturity or dates of maturity, if of serial maturity, the terms and rates of optional redemption (if redeemable), the forms of registered bonds without coupons of any series and any other provisions and agreements in respect thereof, in the Indenture provided and permitted, as the Board of Directors may determine, may be expressed in a supplemental indenture to be made by the Company to the Trustee thereunder; and BONDS HERETOFORE WHEREAS, bonds in the principal amount of Five billion ISSUED. forty-four million four hundred eighty-one thousand dollars ($5,044,481,000) have heretofore been issued under the Indenture as follows, viz: |
(1) Bonds of Series A -- Principal Amount $26,016,000, (2) Bonds of Series B -- Principal Amount $23,000,000, (3) Bonds of Series C -- Principal Amount $20,000,000, (4) Bonds of Series D -- Principal Amount $50,000,000, (5) Bonds of Series E -- Principal Amount $15,000,000, (6) Bonds of Series F -- Principal Amount $49,000,000, (7) Bonds of Series G -- Principal Amount $35,000,000, (8) Bonds of Series H -- Principal Amount $50,000,000, (9) Bonds of Series I -- Principal Amount $60,000,000, (10) Bonds of Series J -- Principal Amount $35,000,000, (11) Bonds of Series K -- Principal Amount $40,000,000, (12) Bonds of Series L -- Principal Amount $24,000,000, (13) Bonds of Series M -- Principal Amount $40,000,000, (14) Bonds of Series N -- Principal Amount $40,000,000, |
(15) Bonds of Series O -- Principal Amount $60,000,000, (16) Bonds of Series P -- Principal Amount $70,000,000, (17) Bonds of Series Q -- Principal Amount $40,000,000, (18) Bonds of Series W -- Principal Amount $50,000,000, (19) Bonds of Series BB -- Principal Amount $50,000,000, (20) Bonds of Series CC -- Principal Amount $50,000,000, (21-28) Bonds of Series DDP Nos. 1-8 -- Principal Amount $6,400,000, (29-39) Bonds of Series FFR Nos. 1-11 -- Principal Amount $6,500,000, (40-53) Bonds of Series GGP Nos. 1-6 and 8-15 -- Principal Amount $7,960,000, (54-65) Bonds of Series IIP Nos. 1-6 and 8-13 -- Principal Amount $450,000, (66-71) Bonds of Series JJP Nos. 1-6 -- Principal Amount $690,000, (72-77) Bonds of Series KKP Nos. 1-6 -- Principal Amount $1,590,000, (78-89) Bonds of Series LLP Nos. 1-6 and 8-13 -- Principal Amount $4,760,000, (90-101) Bonds of Series NNP Nos. 1-6 and 8-13 -- Principal Amount $7,950,000, (102-109) Bonds of Series OOP Nos. 1-8 -- Principal Amount $2,680,000, (110-121) Bonds of Series QQP Nos. 1-7 and 10-14 -- Principal Amount $7,075,000, (122-127) Bonds of Series TTP Nos. 1-6 -- Principal Amount $330,000, (128) Bonds of 1980 Series A -- Principal Amount $50,000,000, (129-137) Bonds of 1980 Series CP Nos. 1-5 and 13-16 -- Principal Amount $3,250,000, (138-142) Bonds of 1980 Series DP Nos. 1-5 -- Principal Amount $925,000, (143-146) Bonds of 1981 Series AP Nos. 1-4 -- Principal Amount $3,200,000, |
all of which have either been retired and cancelled, or no longer represent obligations of the Company, having been called for redemption and funds necessary to effect the payment, redemption and retirement thereof having been deposited with the Trustee as a special trust fund to be applied for such purpose;
(147) Bonds of Series R in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof;
(148) Bonds of Series S in the principal amount of One hundred fifty million dollars ($150,000,000), all of which are outstanding at the date hereof;
(149) Bonds of Series T in the principal amount of Seventy-five million dollars ($75,000,000), all of which are outstanding at the date hereof;
(150) Bonds of Series U in the principal amount of Seventy-five million dollars ($75,000,000), all of which are outstanding at the date hereof;
(151) Bonds of Series V in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof;
(152) Bonds of Series X in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof;
(153) Bonds of Series Y in the principal amount of Sixty million dollars ($60,000,000), all of which are outstanding at the date hereof;
(154) Bonds of Series Z in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof;
(155) Bonds of Series AA in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof;
(156) Bonds of Series DDP No. 9 in the principal amount of Seven million nine hundred five thousand dollars ($7,905,000), of which One million six hundred thousand dollars ($1,600,000) principal amount have heretofore been retired and Six
million three hundred five thousand dollars ($6,305,000) principal amount are outstanding at the date hereof;
(157) Bonds of Series EE in the principal amount of Fifty million dollars ($50,000,000), of which Thirty million dollars ($30,000,000) principal amount have heretofore been retired and Twenty million dollars ($20,000,000) principal amount are outstanding at the date hereof;
(158-160) Bonds of Series FFR Nos. 12-14 in the principal amount of Thirty-nine million one hundred thousand dollars ($39,100,000), all of which are outstanding at the date hereof;
(161-168) Bonds of Series GGP Nos. 7 and 16-22 in the principal amount of Thirty-four million three hundred forty thousand dollars ($34,340,000), of which Two million four hundred thousand dollars ($2,400,000) principal amount have heretofore been retired and Thirty-one million nine hundred forty thousand dollars ($31,940,000) principal amount are outstanding at the date hereof;
(169) Bonds of Series HH in the principal amount of Fifty million dollars ($50,000,000), all of which are outstanding at the date hereof;
(170-171) Bonds of Series MMP and MMP No. 2 in the principal amount of Five million four hundred thirty thousand dollars ($5,430,000), of which One million two hundred thirty-five thousand dollars ($1,235,000) principal amount have heretofore been retired and Four million one hundred ninety-five thousand dollars ($4,195,000) principal amount are outstanding at the date hereof;
(172-181) Bonds of Series IIP Nos. 7 and 14-22 in the principal amount of Three million three hundred thousand dollars ($3,300,000), of which One hundred ten thousand dollars ($110,000) principal amount have heretofore been retired and Three million one hundred ninety thousand dollars ($3,190,000) principal amount are outstanding at the date hereof;
(182-183) Bonds of Series JJP Nos. 7-8 in the principal amount of Six million one hundred sixty thousand dollars ($6,160,000), of which Three hundred fifty thousand dollars ($350,000) principal amount have heretofore been retired and Five million eight hundred ten thousand dollars ($5,810,000) are outstanding at the date hereof;
(184-188) Bonds of Series KKP Nos. 7-11 in the principal amount of Seventy-three million forty-five thousand dollars ($73,045,000), of which Seven hundred ten thousand dollars ($710,000) principal amount have heretofore been retired and Seventy-two million three hundred thirty-five thousand dollars ($72,335,000) are outstanding at the date hereof;
(189-191) Bonds of Series LLP Nos. 7 and 14-15 in the principal amount of Four million ninety thousand dollars ($4,090,000), of which Two million five hundred thirty-five thousand dollars ($2,535,000) principal amount have heretofore been retired and One million five hundred fifty-five thousand dollars ($1,555,000) principal amount are outstanding at the date hereof;
(192-200) Bonds of Series NNP Nos. 7 and 14-21 in the principal amount of Forty million ($40,000,000), of which One million six hundred fifty thousand dollars ($1,650,000) principal amount have heretofore been retired and Thirty-eight million three hundred fifty thousand dollars ($38,350,000) principal amount are outstanding at the date hereof;
(201-210) Bonds of Series OOP Nos. 9-18 in the principal amount of Sixteen million two hundred thousand dollars ($16,200,000), of which Two hundred forty thousand dollars ($240,000) principal amount have heretofore been retired and Fifteen million nine hundred sixty thousand dollars ($15,960,000) are outstanding at the date hereof;
(211) Bonds of Series PP in the principal amount of Seventy million dollars ($70,000,000), all of which are outstanding at the date hereof;
(212-218) Bonds of Series QQP Nos. 8-9 and 15-19 in the principal amount of Six million five hundred seventy-five thousand dollars ($6,575,000), all of which are outstanding at the date hereof;
(219) Bonds of Series RR in the principal amount of Seventy million dollars ($70,000,000), all of which are outstanding at the date hereof;
(220) Bonds of Series SS in the principal amount of One hundred fifty million dollars ($150,000,000), of which Fifty million dollars ($50,000,000) principal amount have heretofore been retired and One hundred million dollars ($100,000,000) principal amount are outstanding at the date hereof;
(221-229) Bonds of Series TTP Nos. 7-15 in the principal amount of Three million four hundred seventy thousand dollars ($3,470,000), all of which are outstanding at the date hereof;
(230) Bonds of Series UU in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof;
(231) Bonds of 1980 Series B in the principal amount of One hundred million dollars ($100,000,000), of which Fifty-three million two hundred thousand dollars ($53,200,000) principal amount have heretofore been retired and Forty-six million eight hundred thousand dollars ($46,800,000) principal amount are outstanding at the date hereof;
(232-247) Bonds of 1980 Series CP Nos. 6-12 and 17-25 in the principal amount of Thirty-one million seven hundred fifty thousand dollars ($31,750,000), all of which are outstanding at the date hereof;
(248-253) Bonds of 1980 Series DP Nos. 6-11 in the principal amount of Nine million eight hundred twenty-five thousand dollars ($9,825,000), all of which are outstanding at the date hereof;
(254-265) Bonds of 1981 Series AP Nos. 5-16 in the principal amount of One hundred twenty million eight hundred thousand dollars ($120,800,000), all of which are outstanding at the date hereof;
(266) Bonds of 1984 Series AP in the principal amount of Two million four hundred thousand dollars ($2,400,000), all of which are outstanding at the date hereof;
(267) Bonds of 1984 Series BP in the principal amount of Seven million seven hundred fifty thousand dollars ($7,750,000), all of which are outstanding at the date hereof;
(268) Bonds of 1985 Series A in the principal amount of Thirty-five million dollars ($35,000,000), all of which are outstanding at the date hereof;
(269) Bonds of 1985 Series B in the principal amount of Fifty million dollars ($50,000,000), all of which are outstanding at the date hereof;
(270) Bonds of 1986 Series A in the principal amount of Two hundred million dollars ($200,000,000), all of which are outstanding at the date hereof;
(271) Bonds of 1986 Series B in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof;
(272) Bonds of 1986 Series C in the principal amount of Two hundred million dollars ($200,000,000), all of which are outstanding at the date hereof;
(273) Bonds of 1987 Series A in the principal amount of Three hundred million dollars ($300,000,000), all of which are outstanding at the date hereof;
(274) Bonds of 1987 Series B in the principal amount of One hundred seventy-five million dollars ($175,000,000), all of which are outstanding at the date hereof;
(275) Bonds of 1987 Series C in the principal amount of Two hundred twenty-five million dollars ($225,000,000), all of which are outstanding at the date hereof;
(276) Bonds of 1987 Series D in the principal amount of Two hundred fifty million dollars ($250,000,000), all of which are outstanding at the date hereof;
(277) Bonds of 1987 Series E in the principal amount of One hundred fifty million dollars ($150,000,000), all of which are outstanding at the date hereof;
(278) Bonds of 1987 Series F in the principal amount of Two hundred million dollars ($200,000,000), all of which are outstanding at the date hereof;
(279) Bonds of 1989 Series A in the principal amount of Three hundred million dollars ($300,000,000), all of which are outstanding at the date hereof; and
(280) Bonds of 1989 Series BP in the principal amount of Sixty-six million five hundred sixty-five thousand dollars ($66,565,000), all of which are outstanding at the date hereof;
and, accordingly, of the bonds so issued, Three billion nine hundred sixty-nine million six hundred seventy-five thousand dollars ($3,969,675,000) principal amount are outstanding at the date hereof; and
REASON FOR WHEREAS, the Company is purchasing the undivided ownership CREATION OF interest of Wolverine Power Supply Cooperative, Inc. in NEW SERIES. Fermi 2 and related nuclear fuel, materials and supplies and for this purpose desires to issue new series of bonds as final payment of the purchase price; such bonds to be issued under the Indenture in the aggregate principal amount of Five hundred thirty-seven million and fifty-six thousand dollars ($537,056,000) to be authenticated and delivered pursuant to Section 4 of Article III of the Indenture; and BONDS TO BE WHEREAS, the Company desires by this Supplemental 1990 SERIES A/ Indenture to create such new series of bonds, to be 1990 SERIES D, designated "General and Refunding Mortgage Bond, 1990 Series 1990 SERIES B/ A", "General and Refunding Mortgage Bond, 1990 Series B", 1990 SERIES E AND "General and Refunding Mortgage Bond, 1990 Series C", 1990 SERIES C/ "General and Refunding Mortgage Bonds, 1990 Series D", 1990 SERIES F. "General and Refunding Mortgage Bonds, 1990 Series E" and "General and Refunding Mortgage Bonds, 1990 Series F"; and to provide for the exchange of: (1) General and Refunding Mortgage Bonds, 1990 Series A for General and Refunding Mortgage Bonds, 1990 Series D; (2) General and Refunding Mortgage Bonds, 1990 Series B for General and Refunding Mortgage Bonds, 1990 Series E; and (3) General and Refunding Mortgage Bonds, 1990 Series C for General and Refunding Mortgage Bonds, 1990 Series F; and FURTHER WHEREAS, the Original Indenture, by its terms, includes in ASSURANCE. the property subject to the lien thereof all of the estates and properties, real, personal and mixed, rights, privileges and franchises of every nature and kind and wheresoever situate, then or thereafter owned or possessed by or belonging to the Company or to which it was then or at any time thereafter might be entitled in law or in equity (saving and excepting, however, the property therein specifically excepted or released from the lien thereof), and the Company therein convenanted that it would, upon reasonable request, execute and deliver such further instruments as may be necessary or proper for the better assuring and confirming unto the Trustee all or any part of the trust estate, whether then or thereafter owned or acquired by the Company (saving and excepting, however, property specifically excepted or released from the lien thereof); and AUTHORIZATION WHEREAS, the Company in the exercise of the powers and OF SUPPLEMENTAL authority conferred upon and reserved to it under and by INDENTURE. virtue of the provisions of the Indenture, and pursuant to resolutions of its Board of Directors has duly resolved and determined to make, execute and deliver to the Trustee a supplemental indenture in the form hereof for the purposes herein provided; and WHEREAS, all conditions and requirements necessary to make this Supplemental Indenture a valid and legally binding instrument in accordance with its terms have been done, performed and fulfilled, and the execution and delivery hereof have been in all respects duly authorized; |
CONSIDERATION FOR NOW, THEREFORE, THIS INDENTURE WITNESSETH: That The SUPPLEMENTAL Detroit Edison Company, in consideration of the premises and INDENTURE. of the covenants contained in the Indenture and of the sum of One Dollar ($1.00) and other good and valuable consideration to it duly paid by the Trustee at or before the ensealing and delivery of these presents, the reciept whereof is hereby acknowledged, hereby covenants and agrees to and with the Trustee and its successors in the trusts under the Original Indenture and in said indentures supplemental thereto as follows: |
PART I.
CREATION OF TWO HUNDRED EIGHTY-FIRST
SERIES OF BONDS.
GENERAL AND REFUNDING MORTGAGE BOND,
1990 SERIES A
TERMS OF BOND SECTION 1. The Company hereby creates the Two hundred OF 1990 SERIES A. eighty-first series of bonds to be issued under and secured by the Original Indenture as amended to date and as further amended by this Supplemental Indenture, to be designated, and to be distinguished from the bonds of all other series, by the title "General and Refunding Mortgage Bond, 1990 Series A (elsewhere herein referred to as the "1990 Series A Bond"). The aggregate principal amount of the 1990 Series A Bond shall be limited to One hundred ninety-four million six hundred forty-nine thousand dollars ($194,649,000), except as provided in Section 13 of Article II of the Original Indenture with respect to exchanges and replacement of bonds. The 1990 Series A Bond shall be a multiple of $1,000. The 1990 Series A Bond shall be issued as one registered bond without coupons in the amount of $$194,649,000, which shall bear interest, payable semi-annually on March 31 and September 30 of each year (commencing March 31, 1990) at the rate of 7.904%, and principal payments shall be made thereon annually, payable on March 31 of each year (commencing March 31, 1990) as set forth below, until the final payment of principal shall be made: |
PRINCIPAL PRINCIPAL PRINCIPAL AMOUNT PAYMENT PAYMENT REMAINING DATE DUE OUTSTANDING --------- --------- ---------------- March 31, 1990............................. $6,279,000 $188,370,000 March 31, 1991............................. 6,279,000 182,091,000 March 31, 1992............................. 6,279,000 175,812,000 March 31, 1993............................. 6,279,000 169,533,000 March 31, 1994............................. 6,279,000 163,254,000 March 31, 1995............................. 6,279,000 156,975,000 March 31, 1996............................. 6,279,000 150,696,000 March 31, 1997............................. 6,279,000 144,417,000 March 31, 1998............................. 6,279,000 138,138,000 March 31, 1999............................. 6,279,000 131,859,000 March 31, 2000............................. 6,279,000 125,580,000 March 31, 2001............................. 6,279,000 119,301,000 March 31, 2002............................. 6,279,000 113,022,000 March 31, 2003............................. 6,279,000 106,743,000 March 31, 2004............................. 6,279,000 100,464,000 March 31, 2005............................. 6,279,000 94,185,000 March 31, 2006............................. 6,279,000 87,906,000 March 31, 2007............................. 6,279,000 81,627,000 March 31, 2008............................. 6,279,000 75,348,000 March 31, 2009............................. 6,279,000 69,069,000 March 31, 2010............................. 6,279,000 62,790,000 March 31, 2011............................. 6,279,000 56,511,000 March 31, 2012............................. 6,279,000 50,232,000 March 31, 2013............................. 6,279,000 43,953,000 March 31, 2014............................. 6,279,000 37,674,000 March 31, 2015............................. 6,279,000 31,395,000 March 31, 2016............................. 6,279,000 25,116,000 March 31, 2017............................. 6,279,000 18,837,000 March 31, 2018............................. 6,279,000 12,558,000 March 31, 2019............................. 6,279,000 6,279,000 March 31, 2020............................. 6,279,000 0 |
Payments of principal, premium, if any, and interest on the 1990 Series A Bond shall be made by bank wire transfer in immediately available funds in lawful money of the United States of America to the bank account of the registered holder of such bond which such registered holder shall designate in writing to Bankers Trust Company, Trustee, not less than fifteen (15) days prior to the date such payment shall become due and payable. When a semi-annual interest payment date falls on a Saturday, Sunday or a day on which the Federal Reserve Bank of New York or the Trustee is not open for business, all payments shall be payable on the first day thereafter on which the Federal Reserve Bank of New York and the Trustee are open for business. The 1990 Series A Bond shall be dated January 3, 1990 and interest shall be payable from January 3, 1990. The 1990 Series A Bond in definitive form shall be, at the election of the Company, fully engraved or shall be lithographed or printed. The 1990 Series A Bond shall not be subject to or entitled to any sinking fund. REDEMPTION OF SECTION 2. The 1990 Series A Bond shall be redeemable 1990 SERIES A BOND. prior to stated maturity, at the election of the Company on any interest payment date, at redemption prices calculated in accordance with the formula set forth below on giving notice of such redemption by first class mail, postage prepaid, by or on behalf of the Company not more than ninety (90) days nor less than thirty (30) days prior to the date fixed for redemption to the registered holder of the 1990 Series A Bond. Any such redemption payment shall be equal to one hundred percent (100%) of the principal so redeemed, plus a prepayment premium, if any, in an amount equal to one hundred percent (100%) of the amount of interest for one year on the unpaid principal balance proposed to be redeemed, multiplied by the ratio which the number of semi- annual payment dates between the proposed redemption date and the final maturity date of the series bears to the number of semi-annual payment dates between December 31, 1994 and the final maturity date, plus in each case accrued interest to the date fixed for redemption. Any partial redemption shall, as the principal portion of such redemption, be no less than $100,000. No redemption pursuant to this paragraph shall be credited to, or relieve the Company to any extent from its obligation to make the principal payments provided for in Section 1 hereof. On or before the first day of February or August in each year, commencing September 1 1990, the Company will deliver to the Trustee a treasurer's certificate, which shall be irrevocable, specifying the amount of bonds to be optionally redeemed and the corresponding premium, if any, and accrued interest on such bonds on the next ensuing March 31 or September 30, or the first business day thereafter, respectively. The Trustee shall, upon the receipt of the treasurer's certificate, cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner herein provided for. Such notice having been duly given, the redemption of bonds of 1990 Series A shall be made upon the terms and in the manner and with the effect hereinabove provided for with respect to redemptions. A treasurer's certificate shall not be required if no bonds of a series are to be redeemed under this paragraph. |
EXCHANGE. SECTION 3. At the option of the holder, upon written request to both the Company and the Trustee made at least forty-five (45) days prior to an interest payment date and subject to the terms of the Indenture and compliance with applicable securities laws, the 1990 Series A Bond shall be exchangeable, in whole but not in part, for bonds of 1990 Series D (as hereinafter described) in an aggregate principal amount equal to the aggregate amount of unpaid principal which shall remain outstanding on the 1990 Series A Bond as of the date of such exchange. Such exchange shall occur only on an interest payment date for the 1990 Series A Bond at the office of the Trustee in the Borough of Manhattan, The City of New York, The State of New York. The 1990 Series A Bond shall bear a legend stating that such bond has not been registered under the United States Securities Act of 1933, as amended (the "Act") and that as a consequence such bond may not be offered, sold or otherwise transferred, whether or not for consideration, unless registered under such Act or pursuant to an exemption from such registration applicable to such offer, sale or other transfer, and may bear such other legends as may be necessary to comply with any law or with any rules or regulations made pursuant thereto. CONSENT. SECTION 4. The holder of the 1990 Series A Bond, by its acceptance of and holding thereof, consents and agrees that bonds of any series may be issued which mature on a date or dates later than October 1, 2024 and also consents to the deletion from the first paragraph of Section 5 of Article II of the Indenture of the phrase "but in no event later than October 1, 2024." Such holder further agrees that (a) such consent shall, for all purposes of Article XV of the Indenture and without further action on the part of such holder, be deemed the affirmative vote of such holder at any meeting called pursuant to said Article XV for the purpose of approving such deletion, and (b) such deletion shall become effective at such time as not less than eighty-five per cent (85%) in principal amount of bonds outstanding under the Indenture shall have consented thereto substan- tially in the manner set forth in this Section 4, or in writing, or by affirmative vote cast at a meeting called pursuant to said Article XV, or by any combination thereof. FORM OF SECTION 5. The 1990 Series A Bond and the form of 1990 SERIES A BOND. Trustee's Certificate to be endorsed on such bond shall be substantially in the following forms, respectively: [FORM OF FACE OF BOND] THE DETROIT EDISON COMPANY GENERAL AND REFUNDING MORTGAGE BOND 1990 Series A, 7.904% due March 31, 2020 (Payable in annual installments, commencing March 31, 1990) $194,649,000 No. ________ THE DETROIT EDISON COMPANY (hereinafter called the "Company"), a corporation of the State of Michigan, for value received, hereby promises to pay to UNITED STATES OF AMERICA, at its office or agency in the Borough of Manhattan, the City and State of New York, in lawful money of the United States of America, the principal sum of $194,649,000, together with interest at the rate specified in the title hereof on the amount of said principal sum remaining unpaid from time to time from January 3, 1990, and after the first interest payment hereon from the most recent date to which interest has been paid hereon, until the Company's obligation with respect to payment of said principal shall have been discharged, all as provided, to the extent and in the manner specified in the Indenture hereinafter mentioned on the reverse hereof and in the supplemental indenture pursuant to which this bond has been issued. Interest shall be due and payable in 61 consecutive semi-annual payments on March 31 and September 30 in each year, commencing on March 31, 1990, and principal shall be due and payable in 31 consecutive annual payments of $6,279,000 on March 31, in each year, commencing on March 31, 1990, as more fully set forth on the reverse hereof. |
Payments of principal, premium, if any, and interest on this bond are to be made by bank wire transfer in immediately available funds to the holder hereof all as provided, to the extent and in the manner specified in the Indenture hereinafter mentioned on the reverse hereof and in the supplemental indenture pursuant to which this bond has been issued. When any payment date falls on a Saturday, Sunday or a day on which the Federal Reserve Bank of New York or the Trustee is not open for business, all payments shall be payable on the first day thereafter on which the Federal Reserve Bank of New York and the Trustee are open for business. At the written request of the registered holder hereof made to the Company and the Trustee at least forty-five (45) days in advance of an interest payment date, this bond shall be exchangeable, in whole but not in part, on any interest payment date in an aggregate principal amount equal to the amount of unpaid principal which shall remain outstanding on this bond as of the date of such exchange (after giving effect to the payment of principal hereon on the date of such exchange), all as provided, to the extent and in the manner specified in the Indenture and the Supplemental Indenture hereinafter mentioned on the reverse hereof. Reference is hereby made to the further provisions of this bond set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though set forth at this place. This bond shall not be valid or become obligatory for any purpose until Bankers Trust Company, the Trustee under the Indenture hereinafter mentioned on the reverse hereof, or its successor thereunder, shall have signed the form of certificate endorsed hereon. IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY has caused this instrument to be executed on its behalf by its Chairman of the Board and its President or a Vice President, with their manual or facsimile signatures, and its corporate seal, or a facsimile thereof, to be impressed or imprinted hereon and the same to be attested by its Secretary or an Assistant Secretary by manual or facsimile signature. |
THE DETROIT EDISON COMPANY
Dated: January 3, 1990 By Chairman of the Board President Attest: Secretary |
11 |
[FORM OF REVERSE OF BOND] This bond is the only bond of an authorized issue of bonds of the Company, unlimited as to amount except as provided in the Indenture hereinafter mentioned or any indentures supplemental thereto, and is one of a series of said bonds known as General and Refunding Mortgage Bonds, 1990 Series A (elsewhere herein referred to as the "1990 Series A Bond"), limited to an aggregate principal amount of $194,649,000, except as otherwise provided in the Indenture hereinafter mentioned. This bond is issued and to be issued under, and is equally and ratably secured (except insofar as any sinking, amortization, improvement or analogous fund, established in accordance with the provisions of the Indenture hereinafter mentioned, may afford additional security for the bonds of any particular series and except as provided in Section 3 of Article VI of said Indenture) by an Indenture, dated as of October 1, 1924, duly executed by the Company to Bankers Trust Company, a corporation of the State of New York, as Trustee, to which Indenture and all indentures supplemental thereto (including the Supplemental Indenture dated as of February 15, 1990) reference is hereby made for a description of the properties and franchises mortgaged and conveyed, the nature and extent of the security, the terms and conditions upon which the bonds are issued and under which additional bonds may be issued, and the rights of the holders of the bonds and of the Trustee in respect of such security (which Indenture and all indentures supplemental thereto, including the Supplemental Indenture dated as of February 15, 1990, are hereinafter collectively called the "Indenture"). As provided in the Indenture, said bonds may be for various principal sums and are issuable in series, which may mature at different times, may bear interest at different rates and may otherwise vary as in said Indenture provided. With the consent of the Company and to the extent permitted by and as provided in the Indenture, the rights and obligations of the Company and of the holders of the bonds and the terms and provisions of the Indenture, or of any indenture supplemental thereto, may be modified or altered in certain respects by affirmative vote of at least eighty-five percent (85%) in principal amount of the bonds then outstanding, and, if the rights of one or more, but less than all, series of bonds then outstanding are to be affected by the action proposed to be taken, then also by affirmative vote of at least eighty-five percent (85%) in principal amount of the series of bonds so to be affected (excluding in every instance bonds disqualified from voting by reason of the Company's interest therein as specified in the Indenture); provided, however, that, without the consent of the holder hereof, no such modification or alteration shall, among other things, affect the terms of payment of the principal of, or the interest on, this bond, which in those respects is unconditional. The holder of the 1990 Series A Bond, by its acceptance of and holding thereof, consents and agrees that bonds of any series may be issued which mature on a date or dates later than October 1, 2024 and also consents to the deletion from the first paragraph of Section 5 of Article II of the Indenture of the phrase "but in no event later than October 1, 2024." Such holder further agrees that (a) such consent shall, for all purposes of Article XV of the Indenture and without further action on the part of such holder, be deemed the affirmative vote of such holder at any meeting called pursuant to said Article XV for the purpose of approving such deletion, and (b) such deletion shall become effective at such time as not less than eighty-five percent (85%) in principal amount of bonds outstanding under the Indenture shall have consented thereto substantially in the manner set forth in Section 3 of Part I of the Supplemental Indenture dated as of February 15, 1990, or in writing, or by affirmative vote cast at a meeting called pursuant to said Article XV, or by any combination thereof. |
Principal payments shall be made hereon annually, payable on March 31 of each year (commencing March 31, 1990) as set forth below, until the final payment of principal shall be made: |
PRINCIPAL PRINCIPAL PRINCIPAL AMOUNT PAYMENT PAYMENT REMAINING DATE DUE OUTSTANDING --------- --------- ---------------- March 31, 1990............................. $6,279,000 $188,370,000 March 31, 1991............................. 6,279,000 182,091,000 March 31, 1992............................. 6,279,000 175,812,000 March 31, 1993............................. 6,279,000 169,533,000 March 31, 1994............................. 6,279,000 163,254,000 March 31, 1995............................. 6,279,000 156,975,000 March 31, 1996............................. 6,279,000 150,696,000 March 31, 1997............................. 6,279,000 144,417,000 March 31, 1998............................. 6,279,000 138,138,000 March 31, 1999............................. 6,279,000 131,859,000 March 31, 2000............................. 6,279,000 125,580,000 March 31, 2001............................. 6,279,000 119,301,000 March 31, 2002............................. 6,279,000 113,022,000 March 31, 2003............................. 6,279,000 106,743,000 March 31, 2004............................. 6,279,000 100,464,000 March 31, 2005............................. 6,279,000 94,185,000 March 31, 2006............................. 6,279,000 87,906,000 March 31, 2007............................. 6,279,000 81,627,000 March 31, 2008............................. 6,279,000 75,348,000 March 31, 2009............................. 6,279,000 69,069,000 March 31, 2010............................. 6,279,000 62,790,000 March 31, 2011............................. 6,279,000 56,511,000 March 31, 2012............................. 6,279,000 50,232,000 March 31, 2013............................. 6,279,000 43,953,000 March 31, 2014............................. 6,279,000 37,674,000 March 31, 2015............................. 6,279,000 31,395,000 March 31, 2016............................. 6,279,000 25,116,000 March 31, 2017............................. 6,279,000 18,837,000 March 31, 2018............................. 6,279,000 12,558,000 March 31, 2019............................. 6,279,000 6,279,000 March 31, 2020............................. 6,279,000 0 |
This bond shall be redeemable prior to stated maturity, at the election of the Company on any interest payment date, at redemption prices calculated in accordance with the formula set forth below on giving notice of such redemption by first class mail, postage prepaid, by or on behalf of the Company not more than ninety (90) days nor less than thirty (30) days prior to the date fixed for redemption to the registered holder of the 1990 Series A Bond. Any such redemption payment shall be equal to one hundred percent (100%) of the principal so redeemed, plus a prepayment premium, if any, in an amount equal to one hundred percent (100%) of the amount of interest for one year on the unpaid principal balance proposed to be redeemed, multiplied by the ratio which the number of semi- annual payment dates between the proposed redemption date and the final maturity date of the series bears to the number of semi-annual payment dates between December 31, 1994 and the final maturity date, plus in each case accrued interest to the date fixed for redemption. Any partial redemption shall, as the principal portion of such redemption, be no less than $100,000. No redemption pursuant to this paragraph shall be credited to, or relieve the Company to any extent from its obligation to make the principal payments provided for above. |
In case an event of default, as defined in the Indenture, shall occur, the principal of all the bonds issued thereunder may become or be declared due and payable, in the manner, with the effect and subject to the conditions provided in said Indenture. No recourse shall be had for the payment of the principal of, or the interest on, this bond, or for any claim based hereon or otherwise in respect hereof or of the Indenture, or of any indenture supplemental thereto, against any incorporator, or against any past, present or future stockholder, director or officer, as such, of the Company, or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether for amounts unpaid on stock subscriptions or by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise howsoever, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released by every holder or owner hereof, as more fully provided in the Indenture. [FORM OF TRUSTEE'S CERTIFICATE] FORM OF This bond is the only bond of the series designated TRUSTEE'S therein, described in the within- mentioned Indenture. CERTIFICATE. |
BANKERS TRUST COMPANY,
as Trustee
By
Authorized Officer
PART II. CREATION OF TWO HUNDRED EIGHTY-SECOND SERIES OF BONDS. GENERAL AND REFUNDING MORTGAGE BONDS, 1990 SERIES D TERMS OF BONDS SECTION 1. The Company hereby creates the Two hundred OF 1990 SERIES D. eighty-second series of bonds to be issued under and secured by the Original Indenture as amended to date and as further amended by this Supplemental Indenture, to be designated, and to be distinguished from the bonds of all other series, by the title "General and Refunding Mortgage Bonds, 1990 Series D" (elsewhere herein referred to as the "bonds of 1990 Series D"). The aggregate principal amount of bonds of 1990 Series D shall be limited to the principal amount of 1990 Series A Bond being exchanged, except as provided in Sections 7 and 13 of Article II of the Original Indenture with respect to exchanges and replacements of bonds. The bonds of 1990 Series D shall mature on March 31, 2020 and shall be issued in exchange for, and in an aggregate principal amount equal to the principal amount remaining outstanding on, the 1990 Series A Bond as of the date of such exchange. The Bonds of Series D shall be issued as registered bonds without coupons in denominations of $10,000 and any multiple thereof, and shall bear interest, payable semi-annually on March 31 and September 30 of each year (commencing on the first March 31 or September 30 following the date of such exchange), at the rate of seven and 904/1000 per centum (7.904%) per annum until the principal shall have become due and payable, and thereafter until the Company's obligation with respect to the payment of said principal shall have been discharged as provided in the Indenture. Except as otherwise specifically provided in this Supplemental Indenture, the principal of and interest on the bonds of 1990 Series D shall be payable at the office or agency of the Company in the Borough of Manhattan, The City of New York, The State of New York in any coin or currency of the United States of America which at the time of payment is legal tender for public and private debts. The interest on bonds of 1990 Series D, whether in temporary or definitive form, shall be payable without presentation of such bonds and (subject to the provisions of this Section 1) only to or upon the written order of the registered holders thereof. Each bond of 1990 Series D shall be dated the date of its authentication and interest shall be payable on the principal represented thereby from the March 31 or September 30 next preceding the date thereof to which interest has been paid on bonds of 1990 Series D, unless the bond is authenticated on a date to which interest has been paid, in which case interest shall be payable from the date of authentication. The bonds of 1990 Series D in definitive form shall be, at the election of the Company, fully engraved or shall be lithographed or printed in authorized denominations as aforesaid and numbered 1 and upwards (with such further designation as may be appropriate and desirable to indicate by such designation the form, series and denomination of bonds of 1990 Series D). Until bonds of 1990 Series D in definitive form are ready for delivery, the Company may execute, and upon its request in writing the Trustee shall authenticate and deliver in lieu thereof, bonds of 1990 Series D in temporary form, as provided in Section 10 of Article II of the Indenture. Temporary bonds of 1990 Series D, if any, may be printed and may be issued in authorized denominations in substantially the form of definitive bonds of 1990 Series D, but without a recital of redemption prices and with such omissions, insertions and variations as may be appropriate for temporary bonds, all as may be determined by the Company. |
Interest on any bond of 1990 Series D which is payable on any interest payment date and is punctually paid or duly provided for shall be paid to the person in whose name that bond, or any previous bond to the extent evidencing the same debt as that evidenced by that bond, is registered at the close of business on the regular record date for such interest, which regular record date shall be the fifteenth day of March or September as the case may be (whether or not a business day) next preceding such interest payment date. If the Company shall default in the payment of the interest due on any interest payment date on the principal represented by any bond of 1990 Series D, such defaulted interest shall forthwith cease to be payable to the registered holder of that bond on the relevant regular record date by virtue of his having been such holder, and such defaulted interest may be paid to the registered holder of that bond (or any bond or bonds of 1990 Series D issued upon transfer or exchange thereof) on the date of payment of such defaulted interest or, at the election of the Company, to the person in whose name that bond (or any bond or bonds of 1990 Series D issued upon transfer or exchange thereof) is registered on a subsequent record date established by notice given by mail by or on behalf of the Company to the holders of bonds of 1990 Series D not less than ten (10) days preceding such subsequent record date, which subsequent record date shall be at least five (5) days prior to the payment date of such defaulted interest. REDEMPTION OF BONDS OF SECTION 2. The bonds of 1990 Series D shall be redeemable 1990 (i) on March 31 in each year, commencing March 31 in the SERIES D. first calendar year subsequent to initial issuance, through the operation of the sinking fund hereinafter described at 100% of the principal amount thereof, (ii) at the election of the Company on any date prior to maturity, commencing March 31 of the eleventh (11th) calendar year subsequent to initial issuance, as a whole, or in part, from time to time, at par plus in each case accrued interest to the date fixed for redemption if such redemption does not utilize, directly or indirectly, the proceeds of and is not in anticipation of any refunding operation involving borrowing at an interest cost to the Company, computed in accordance with generally accepted financial practice, of less than 7.904% per annum, and (iii) at the election of the Company on any date prior to maturity, commencing March 31 of the eleventh (11th) calendar year subsequent to initial issuance, as a whole, or in part, from time to time, at the following redemption prices (expressed as percentages of the principal amount thereof) plus in each case (whether through operation of the sinking fund or otherwise) accrued interest to the date fixed for redemption: |
IF REDEEMED DURING 12 MONTH PERIOD ENDING REDEMPTION MARCH 31, PRICE --------------- ---------- Year 11........................................... 102.50% Year 12........................................... 102.00 Year 13........................................... 101.50 Year 14........................................... 101.00 Year 15........................................... 100.50 Thereafter........................................ 100.00 |
The bonds of 1990 Series D shall be redeemable as aforesaid as provided herein and as specified in Article IV of the Indenture upon giving notice of such redemption by first class mail, postage prepaid, by or on behalf of the Company at least thirty (30) days prior to the date fixed for redemption to the registered holders of bonds of 1990 Series D so called for redemption at their last respective addresses appearing on the register thereof, but failure to mail such notice to the registered holders of any bonds of 1990 Series D designated for redemption shall not affect the validity of any such redemption of any other bonds of such series. Interest shall cease to accrue on any bonds of 1990 Series D (or any portion thereof) so called for redemption from and after the date fixed for redemption if payment sufficient to redeem the bonds of 1990 Series D (or such protion) designated for redemption has been duly provided for. Bonds of 1990 Series D redeemed in part only shall be in amounts of $10,000 or any multiple thereof. If the giving of the notice of redemption shall have been completed, or if provision satisfactory to the Trustee for the giving of such notice shall have been made, and if the Company shall have deposited with the Trustee in trust funds (which shall become available for payment to the holders of the bonds of 1990 Series D so to be redeemed) sufficient to redeem bonds of 1990 Series D in whole or in part, on the date fixed for redemption, then all obligations of the Company in respect of such bonds (or portions thereof) so to be redeemed and interest due or to become due thereon shall cease and be discharged and the holders of such bonds of 1990 Series D (or portions thereof) shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or in respect of such bonds (or portions thereof) and interest. As and for the sinking fund for the retirement of the bonds of 1990 Series D the Company will, until all the bonds of 1990 Series D are paid or payment thereof provided for, deposit with the Trustee prior to March 31 in each year, commencing March 31 of the first calendar year subsequent to initial issuance, an amount in cash sufficient to redeem on such March 31 $6,280,000 principal amount of bonds of 1990 Series D. On or before February 1 in each year, commencing February 1 of the first calendar year subsequent to initial issuance the Company (i) may deliver bonds of 1990 Series D (other than any previously called for redemption for the sinking fund) and (ii) may apply as a credit bonds for 1990 Series D redeemed at the election of the Company otherwise than through the sinking fund, in each case in satisfaction of all or any part of the amount of any sinking fund payment. Each such bond of 1990 Series D shall be received or credited for such purpose by the Trustee at the principal amount thereof and the amount of such sinking fund payment shall be reduced accordingly. On February 1 in each year, commencing February 1 of the first calendar year subsequent to initial issuance, the Company will deliver to the Trustee a treasurer's certificate, which shall be irrevocable, specifying the amount of the next ensuing sinking fund payment and the portions thereof which are to be satisfied by payment of cash, by delivery of bonds of 1990 Series D or by crediting bonds of 1990 Series D previously redeemed. The treasurer's certificate shall also state that bonds of 1990 Series D forming the basis of any such credit do not include any bonds of 1990 Series D which have been called for redemption for the sinking fund or previously credited against any sinking fund payment. The Trustee shall, upon the receipt of the treasurer's certificate, select the bonds of 1990 Series D to be redeemed upon the next ensuing March 31 in the manner hereinabove provided for and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner hereinabove provided for. Such notice having been duly given, the redemption of such bonds of 1990 Series D shall be made upon the terms and in the manner and with the effect hereinabove provided for with respect to redemptions. |
EXCHANGE AND At the option of the registered holder, any bonds of 1990 Series D, upon surrender TRANSFER. thereof for cancellation at the office or agency of the Company in the Borough of Manhattan, The City of New York, The State of New York, together with a written instrument of transfer (if so required by the Company or by the Trustee) in form approved by the Company duly executed by the holder or by its duly authorized attorney, shall be exchangeable for a like aggregate principal amount of bonds of 1990 Series D of other authorized denominations, upon the terms and conditions specified herein and in Section 7 of Article II of the Indenture. Bonds of 1990 Series D shall be transferable at the office or agency of the Company in the Borough of Manhattan, The City of New York, The State of New York. The Company waives its rights under Section 7 of Article II of the Indenture not to make exchanges or transfers of bonds of 1990 Series D during any period of ten (10) days next preceding any interest payment date for such bonds. Bonds of 1990 Series D, in definitive and temporary form, may bear such legends as may be necessary to comply with any law or with any rules or regulations made pursuant thereto or with the rules or regulations of any stock exchange or to conform to usage with respect thereto. CONSENT. SECTION 3. The holders of the bonds of 1990 Series D, by their acceptance of and holding thereof, consent and agree that bonds of any series may be issued which mature on a date or dates later than October 1, 2024 and also consent to the deletion from the first paragraph of Section 5 of Article II of the Indenture of the phrase "but in no event later than October 1, 2024". Such holders further agree that (a) such consent shall, for all purposes of Article XV of the Indenture and without further action on the part of such holders, be deemed the affirmative vote of such holders at any meeting called pursuant to said Article XV for the purpose of approving such deletion, and (b) such deletion shall become effective at such time as not less than eighty-five percent (85%) in principal amount of bonds outstanding under the Indenture shall have consented thereto substantially in the manner set forth in this Section 3, or in writing, or by affirmative vote cast at a meeting called pursuant to said Article XV, or by any combination thereof. |
FORM OF BONDS OF SECTION 4. The bonds of 1990 Series D and the form of Trustee's Certificate to be endorsed on 1990 SERIES D. such bonds shall be substantially in the following forms, respectively. [FORM OF FACE OF BOND] THE DETROIT EDISON COMPANY GENERAL AND REFUNDING MORTGAGE BOND 1990 Series D, 7.904% due March 31, 2020 $ ________ No. ________ THE DETROIT EDISON COMPANY (hereinafter called the "Company"), a corporation of the State of Michigan, for value received, hereby promises to pay to or registered assigns, at its office or agency in the Borough of Manhattan, The City and State of New York, the principal sum of in lawful money of the United States of America on the thirty-first day of March, 2020, and to pay interest thereon at the rate specified in the title hereof, at such office or agency, in like lawful money, from , and after the first interest payment on bonds of this Series from the most recent date to which such interest has been paid, semi-annually on the thirty-first day of March and the thirtieth day in September each year, to the person in whose name this bond is registered at the close of business on the preceding fifteenth day of March or September (subject to certain exceptions provided in the Indenture hereinafter mentioned), until the Company's obligation with respect to payment of said principal shall have been discharged as provided in such Indenture. Reference is hereby made to the further provisions of this bond set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though set forth at this place. This bond shall not be valid or become obligatory for any purpose until Bankers Trust Company, the Trustee under the aforesaid Indenture, or its successor thereunder, shall have signed the form of certificate endorsed hereon. IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY has caused this instrument to be executed on its behalf by its Chairman of the Board and its President or a Vice President, with their manual or facsimile signatures, and its corporate seal, or a facsimile thereof, to be impressed or imprinted hereon and the same to be attested by its Secretary or an Assistant Secretary with his manual or facsimile signature. |
Dated: THE DETROIT EDISON COMPANY By Chairman of the Board Attest: President Secretary |
[FORM OF REVERSE OF BOND] This bond is one of an authorized issue of bonds of the Company, unlimited as to amount except as provided in the Indenture hereinafter mentioned or any indentures supplemental thereto, and is one of a series of said bonds known as General and Refunding Mortgage Bonds, 1990 Series D, (elsewhere herein referred to as the "bonds of 1990 Series D"), limited to [the aggregate principal amount of the 1990 Series A Bond being converted], except as otherwise provided in the Indenture hereinafter mentioned. This bond and all other bonds of said series are issued and to be issued under, and are all equally and ratably secured (except insofar as any sinking, amortization, improvement or analogous fund, established in accordance with the provisions of the Indenture hereinafter mentioned, may afford additional security for the bonds of any particular series and except as provided in Section 3 of Article VI of said Indenture) by an Indenture, dated as of October 1, 1924, duly executed by the Company to Bankers Trust Company, a corporation of the State of New York, as Trustee, to which Indenture and all indentures supplemental thereto (including the Supplemental Indenture dated as of February 15, 1990) reference is hereby made for a description of the properties and franchises mortgaged and conveyed, the nature and extent of the security, the terms and conditions upon which the bonds are issued and under which additional bonds may be issued, and the rights of the holders of the bonds and of the Trustee in respect of such security (which Indenture and all indentures supplemental thereto, including the Supplemental Indenture dated as of February 15, 1990, are hereinafter collectively called the "Indenture"). As provided in the Indenture, said bonds may be for various principal sums and are issuable in series, which may mature at different times, may bear interest at different rates and may otherwise vary as in said Indenture provided. With the consent of the Company and to the extent permitted by and as provided in the Indenture, the rights and obligations of the Company and of the holders of the bonds and the terms and provisions of the Indenture, or of any indenture supplemental thereto, may be modified or altered in certain respects by affirmative vote of at least eighty-five percent (85%) in principal amount of the bonds then outstanding, and, if the rights of one or more, but less than all, series of bonds then outstanding are to be affected by the action proposed to be taken, then also by affirmative vote of at least eighty-five percent (85%) in principal amount of the series of bonds so to be affected (excluding in every instance bonds disqualified from voting by reason of the Company's interest therein as specified in the Indenture); provided, however, that, without the consent of the holder hereof, no such modification or alteration shall, among other things, affect the terms of payment of the principal of, or the interest on, this bond, which in those respects is unconditional. The holders of the bonds of 1990 Series D, by their acceptance of and holding thereof, consent and agree that bonds of any series may be issued which mature on a date or dates later than October 1, 2024 and also consent to the deletion from the first paragraph of Section 5 of Article II of the Indenture of the phrase "but in no event later than October 1, 2024,". Such holders further agree that (a) such consent shall, for all purposes of Article XV of the Indenture and without further action on the part of such holders, be deemed the affirmative vote of such holders at any meeting called pursuant to said Article XV for the purpose of approving such deletion, and (b) such deletion shall become effective at such time as not less than eighty-five percent (85%) in principal amount of bonds outstanding under the Indenture shall have consented thereto substantially in the manner set forth in Section 3 of Part I of the Supplemental Indenture dated as of February 15, 1990, or in writing, or by affirmative vote cast at a meeting called pursuant to said Article XV, or by any combination thereof. |
This bond is redeemable on giving notice of such redemption by first class mail, postage prepaid, by or on behalf of the Company at least thirty (30) but not more than ninety (90) days prior to the date fixed for redemption to the registered holder of this bond at his last address appearing on the register thereof, in the manner and upon the terms provided in the Indenture, (i) on March 31 in each year, commencing [March 31, ], through the operation of the sinking fund for bonds of 1990 Series D at 100% of the principal amount hereof, (ii) at the election of the Company on any date prior to maturity, commencing March 31 of the eleventh (11th) calendar year subsequent to initial issuance, as a whole, or in part, from time to time, at par plus in each case accrued interest to the date fixed for redemption if such redemption does not utilize, directly or indirectly, the proceeds of and is not in anticipation of any refunding operation involving borrowing at an interest cost to the Company, computed in accordance with generally accepted financial practice, of less than 7.904% per annum, and (iii) at the election of the Company on any date prior to maturity, commencing March 31 of the eleventh (11th) calendar year subsequent to initial issuance, as a whole or in part, from time to time, at the following redemption prices (expressed as percentages of the principal amount hereof) plus in each case (whether through operation of the sinking fund or otherwise) accrued interest to the date fixed for redemption: |
IF REDEEMED DURING 12 MONTH PERIOD ENDING REDEMPTION MARCH 31, PRICE --------------- ---------- Year 11........................................... 102.50% Year 12........................................... 102.00 Year 13........................................... 101.50 Year 14........................................... 101.00 Year 15........................................... 100.50 Thereafter........................................ 100.00 |
The Company will deposit with the Trustee as and for a sinking fund for the bonds of Series D prior to each March 31, commencing [ ], an amount sufficient to redeem $6,280,000 principal amount of bonds of 1990 Series D, less the amount of any credit against any such payment taken by the Company for bonds of 1990 Series D delivered to the Trustee or redeemed by the Company otherwise than through the sinking fund. Under the Indenture, funds may be deposited with the Trustee (which shall have become available for payment), in advance of the redemption date of any of the bonds of 1990 Series D (or portions thereof), in trust for the redemption of such bonds (or portions thereof) and the interest due or to become due thereon, and thereupon all obligations of the Company in respect of such bonds (or portions thereof) so to be redeemed and such interest shall cease and be discharged, and the holders thereof shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or with respect to such bonds and interest. In case an event of default, as defined in the Indenture, shall occur, the principal of all the bonds issued thereunder may become or be declared due and payable, in the manner, with the effect and subject to the conditions provided in said Indenture. |
This bond is transferable by the registered holder hereof, in person or by his attorney duly authorized in writing, on the books of the Company kept at its office or agency in the Borough of Manhattan, The City and State of New York, upon surrender and cancellation of this bond, and thereupon, a new registered bond or bonds of the same series of authorized denominations for a like aggregate principal amount will be issued to the transferee or transferees in exchange herefor, and this bond with others in like form may in like manner be exchanged for one or more new registered bonds of the same series of other authorized denominations, but of the same aggregate principal amount, all as provided and upon the terms and conditions set forth in the Indenture, and upon payment, in any event, of the charges prescribed in the Indenture. No recourse shall be had for the payment of the principal of or the interest on this bond, or for any claim based hereon or otherwise in respect hereof or of the Indenture, or of any indenture supplemental thereto, against any incorporator, or against any past, present or future stockholder, director or officer, as such, of the Company, or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether for amounts unpaid on stock subscriptions or by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise howsoever; all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released by every holder or owner hereof, as more fully provided in the Indenture. [FORM OF TRUSTEE'S CERTIFICATE] FORM OF This bond is one of the bonds, of the series designated TRUSTEE'S therein, described in the within-mentioned Indenture. CERTIFICATE. |
BANKERS TRUST COMPANY,
as Trustee
By
Authorized Officer
PART III.
CREATION OF TWO HUNDRED EIGHTY-THIRD
SERIES OF BONDS.
GENERAL AND REFUNDING MORTGAGE BOND,
1990 SERIES B
TERMS OF BOND SECTION 1. The Company hereby creates the Two hundred OF 1990 SERIES B. eighty-third series of bonds to be issued under and secured by the Original Indenture as amended to date and as further amended by this Supplemental Indenture, to be designated, and to be distinguished from the bonds of all other series, by the title "General and Refunding Mortgage Bond, 1990 Series B (elsewhere herein referred to as the "1990 Series B Bond"). The aggregate principal amount of the 1990 Series B Bond shall be limited to Two hundred fifty-six million nine hundred thirty-two thousand dollars ($256,932,000), except as provided in Section 13 of Article II of the Original Indenture with respect to exchanges and replacement of bonds. The 1990 Series B Bond shall be a multiple of $1,000. The 1990 Series B Bond shall be issued as one registered bond without coupons in the amount of $256,932,000, which shall bear interest, payable semi-annually on March 31 and September 30 of each year (commencing March 31, 1990) at the rate of 7.904%, and principal payments shall be made thereon annually, payable on March 31 of each year (commencing March 31, 1990) as set forth below, until the final payments of interest and principal shall be made: |
PRINCIPAL PRINCIPAL PRINCIPAL AMOUNT PAYMENT PAYMENT REMAINING DATE DUE OUTSTANDING --------- --------- ---------------- March 31, 1990............................. $9,516,000 $247,416,000 March 31, 1991............................. 9,516,000 237,900,000 March 31, 1992............................. 9,516,000 228,384,000 March 31, 1993............................. 9,516,000 218,868,000 March 31, 1994............................. 9,516,000 209,352,000 March 31, 1995............................. 9,516,000 199,836,000 March 31, 1996............................. 9,516,000 190,320,000 March 31, 1997............................. 9,516,000 180,804,000 March 31, 1998............................. 9,516,000 171,288,000 March 31, 1999............................. 9,516,000 161,772,000 March 31, 2000............................. 9,516,000 152,256,000 March 31, 2001............................. 9,516,000 142,740,000 March 31, 2002............................. 9,516,000 133,224,000 March 31, 2003............................. 9,516,000 123,708,000 March 31, 2004............................. 9,516,000 114,192,000 March 31, 2005............................. 9,516,000 104,676,000 March 31, 2006............................. 9,516,000 95,160,000 March 31, 2007............................. 9,516,000 85,644,000 March 31, 2008............................. 9,516,000 76,128,000 March 31, 2009............................. 9,516,000 66,612,000 March 31, 2010............................. 9,516,000 57,096,000 March 31, 2011............................. 9,516,000 47,580,000 March 31, 2012............................. 9,516,000 38,064,000 March 31, 2013............................. 9,516,000 28,548,000 March 31, 2014............................. 9,516,000 19,032,000 March 31, 2015............................. 9,516,000 9,516,000 March 31, 2016............................. 9,516,000 0 |
Payments of principal, premium, if any, and interest on the 1990 Series B Bond shall be made by bank wire transfer in immediately available funds in lawful money of the United States of America to the bank account of the registered holder of such bond which such registered holder shall designate in writing to Bankers Trust Company, Trustee, not less than fifteen (15) days prior to the date such payment shall become due and payable. When a semi-annual interest payment date falls on a Saturday, Sunday or a day on which the Federal Reserve Bank of New York or the Trustee is not open for business, all payments shall be payable on the first day thereafter on which the Federal Reserve Bank of New York and the Trustee are open for business. In the event any semi-annual payment is not made when due, the amount payable shall be such payment, plus interest thereon at the interest rate on such bond, based on a 360-day year, from the due date to the date of payment. The 1990 Series B Bond shall be dated January 3, 1990 and interest shall be payable from January 3, 1990. The 1990 Series B Bond in definitive form shall be, at the election of the Company, fully engraved or shall be lithographed or printed. The 1990 Series B Bond shall not be subject to or entitled to any sinking fund. REDEMPTION OF SECTION 2. The 1990 Series B Bond shall be redeemable 1990 SERIES B BOND. prior to stated maturity, at the election of the Company on any interest payment date, at redemption prices calculated in accordance with the formula set forth below on giving notice of such redemption by first class mail, postage prepaid, by or on behalf of the Company not more than ninety (90) days nor less than thirty (30) days prior to the date fixed for redemption to the registered holder of the 1990 Series B Bond. The optional redemption payment of each bond to be redeemed shall be equal to the present worth, on the date of redemption, of the remaining scheduled semi-annual payments of interest and annual retirement of principal of such bond, calculated as follows. Determine the present value of each scheduled semi-annual payment of interest and annual retirement of principal by dividing each payment by the Present Value Divisor (PVD), where: PVD = (FYYY 1.0 + I) (D) I = That annual interest rate (which has been adjusted for semi-annual compounding) for U.S. Treasury securities, with comparable maturities as set forth in the Federal Reserve statistical release, designated H.15 (519), or its successor, published at least 4 days but not more than 10 days prior to the optional redemption date. The rate shall be the "This Week" rate for Treasury Constant Maturities. Straight line interpolate to 3 decimal places after rounding the prepayment period to the nearest month (1st-15th round down) to match the remaining term of the bond to be redeemed. D = Present value divisor for the preceding 6 month interest period (D equals 1.0 for the period preceding the first period, which is the period from the redemption date to the first scheduled payment date thereafter). Add the present value for all scheduled annual retirements of principal and semi-annual payments of interest to determine the sum to be paid upon redemption of each bond. |
If the optional redemption payment is greater than the principal outstanding as of the date of optional redemption, the prepayment results in a premium, plus in each case accrued interest to the date fixed for redemption. If the optional redemption payment is less than the principal outstanding as of the date of the optional redemption, the prepayment results in a discount which shall be deducted from the outstanding principal amount which otherwise would have been paid, plus in each case accrued interest to the date fixed for redemption. Any partial redemption shall, as the principal portion of such redemption, be no less than $100,000. No redemption pursuant to this paragraph shall be credited to, or relieve the Company to any extent from its obligation to make the principal payments provided for in Section 1 hereof. On or before the first day of February or August in each year, commencing September 1 1990, the Company will deliver to the Trustee a treasurer's certificate, which shall be irrevocable, specifying the principal amount of bonds to be optionally redeemed and accrued interest on such bonds on the next ensuing March 31 or September 30, or the first business day thereafter, respectively. The Trustee shall, upon the receipt of the treasurer's certificate, cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner herein provided for. On or before noon of the business day preceding the day of prepayment, the Company will advise the Trustee of the applicable premium or discount applicable to such prepayment. Such notice having been duly given, the redemption of bonds of 1990 Series B shall be made upon the terms and in the manner and with the effect hereinabove provided for with respect to redemptions. A treasurer's certificate shall not be required if no bonds of a series are to be redeemed under this paragraph. EXCHANGE. SECTION 3. At the option of the holder, upon written request made at least forty-five (45) days prior to an interest payment date and subject to the terms of the Indenture and compliance with applicable securities laws, the 1990 Series B Bond shall be exchangeable, in whole but not in part, for bonds of 1990 Series E (as hereinafter described) in an aggregate principal amount equal to the aggregate amount of unpaid principal which shall remain outstanding on the 1990 Series B Bond as of the date of such exchange. Such exchange shall occur only on an interest payment date for the 1990 Series B Bond at the office of the Trustee in the Borough of Manhattan, The City of New York, The State of New York. The 1990 Series B Bond shall bear a legend stating that such bond has not been registered under the United States Securities Act of 1933, as amended (the "Act") and that as a consequence such bond may not be offered, sold or otherwise transferred, whether or not for consideration, unless registered under such Act or pursuant to an exemption from such registration applicable to such offer, sale or other transfer, and may bear such other legends as may be necessary to comply with any law or with any rules or regulations made pursuant thereto. CONSENT. SECTION 4. The holder of the 1990 Series B Bond, by its acceptance of and holding thereof, consents and agrees that bonds of any series may be issued which mature on a date or dates later than October 1, 2024 and also consents to the deletion from the first paragraph of Section 5 of Article II of the Indenture of the phrase "but in no event later than October 1, 2024." Such holder further agrees that (a) such consent shall, for all purposes of Article XV of the Indenture and without further action on the part of such holder, be deemed the affirmative vote of such holder at any meeting called pursuant to said Article XV for the purpose of approving such deletion, and (b) such deletion shall become effective at such time as not less than eighty-five per cent (85%) in principal amount of bonds outstanding under the Indenture shall have consented thereto substan- tially in the manner set forth in this Section 4, or in writing, or by affirmative vote cast at a meeting called pursuant to said Article XV, or by any combination thereof. |
FORM OF SECTION 5. The 1990 Series B Bond and the form of 1990 SERIES B BOND. Trustee's Certificate to be endorsed on such bond shall be substantially in the following forms, respectively: [FORM OF FACE OF BOND] THE DETROIT EDISON COMPANY GENERAL AND REFUNDING MORTGAGE BOND 1990 Series B, 7.904% due March 31, 2016 (Payable in annual installments, commencing March 31, 1990) $256,932,000 No. ________ THE DETROIT EDISON COMPANY (hereinafter called the "Company"), a corporation of the State of Michigan, for value received, hereby promises to pay to UNITED STATES OF AMERICA, at its office or agency in the Borough of Manhattan, the City and State of New York, in lawful money of the United States of America, the principal sum of $256,932,000, together with interest at the rate specified in the title hereof on the amount of said principal sum remaining unpaid from time to time from January 3, 1990, and after the first interest payment hereon from the most recent date to which interest has been paid hereon, until the Company's obligation with respect to payment of said principal shall have been discharged, all as provided, to the extent and in the manner specified in the Indenture hereinafter mentioned on the reverse hereof and in the supplemental indenture pursuant to which this bond has been issued. Interest shall be due and payable in 53 consecutive semi-annual payments on March 31 and September 30 in each year, commencing on March 31, 1990, and principal shall be due and payable in 27 consecutive annual payments on March 31, in each year, commencing on March 31, 1990, each as more fully set forth on the reverse hereof. Payments of principal, premium, if any, and interest on this bond are to be made by bank wire transfer in immediately available funds to the holder hereof all as provided, to the extent and in the manner specified in the Indenture hereinafter mentioned on the reverse hereof and in the supplemental indenture pursuant to which this bond has been issued. When any payment date falls on a Saturday, Sunday or a day on which the Federal Reserve Bank of New York or the Trustee is not open for business, all payments shall be payable on the first day thereafter on which the Federal Reserve Bank of New York and the Trustee are open for business. In the event any semi-annual payment is not made when due, the amount payable shall be such payment, plus interest thereon at the interest rate on such bond, based on a 360-day year, from the due date to the date of payment. At the written request of the registered holder hereof made at least forty-five (45) days in advance of an interest payment date, this bond shall be exchangeable, in whole but not in part, on any interest payment date in an aggregate principal amount equal to the amount of unpaid principal which shall remain outstanding on this bond as of the date of such exchange (after giving effect to the payment of principal hereon on the date of such exchange), all as provided, to the extent and in the manner specified in the Indenture and the Supplemental Indenture hereinafter mentioned on the reverse hereof. Reference is hereby made to the further provisions of this bond set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though set forth at this place. This bond shall not be valid or become obligatory for any purpose until Bankers Trust Company, the Trustee under the Indenture hereinafter mentioned on the reverse hereof, or its successor thereunder, shall have signed the form of certificate endorsed hereon. |
IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY has caused this instrument to be executed on its behalf by its Chairman of the Board and its President or a Vice President, with their manual or facsimile signatures, and its corporate seal, or a facsimile thereof, to be impressed or imprinted hereon and the same to be attested by its Secretary or an Assistant Secretary by manual or facsimile signature. |
THE DETROIT EDISON COMPANY
Dated: January 3, 1990 By Chairman of the Board President Attest: Secretary |
27 |
[FORM OF REVERSE OF BOND] This bond is the only bond of an authorized issue of bonds of the Company, unlimited as to amount except as provided in the Indenture hereinafter mentioned or any indentures supplemental thereto, and is one of a series of said bonds known as General and Refunding Mortgage Bonds, 1990 Series B (elsewhere herein referred to as the "1990 Series B Bond"), limited to an aggregate principal amount of $256,932,000, except as otherwise provided in the Indenture hereinafter mentioned. This bond is issued and to be issued under, and is equally and ratably secured (except insofar as any sinking, amortization, improvement or analogous fund, established in accordance with the provisions of the Indenture hereinafter mentioned, may afford additional security for the bonds of any particular series and except as provided in Section 3 of Article VI of said Indenture) by an Indenture, dated as of October 1, 1924, duly executed by the Company to Bankers Trust Company, a corporation of the State of New York, as Trustee, to which Indenture and all indentures supplemental thereto (including the Supplemental Indenture dated as of February 15, 1990) reference is hereby made for a description of the properties and franchises mortgaged and conveyed, the nature and extent of the security, the terms and conditions upon which the bonds are issued and under which additional bonds may be issued, and the rights of the holders of the bonds and of the Trustee in respect of such security (which Indenture and all indentures supplemental thereto, including the Supplemental Indenture dated as of February 15, 1990, are hereinafter collectively called the "Indenture"). As provided in the Indenture, said bonds may be for various principal sums and are issuable in series, which may mature at different times, may bear interest at different rates and may otherwise vary as in said Indenture provided. With the consent of the Company and to the extent permitted by and as provided in the Indenture, the rights and obligations of the Company and of the holders of the bonds and the terms and provisions of the Indenture, or of any indenture supplemental thereto, may be modified or altered in certain respects by affirmative vote of at least eighty-five percent (85%) in principal amount of the bonds then outstanding, and, if the rights of one or more, but less than all, series of bonds then outstanding are to be affected by the action proposed to be taken, then also by affirmative vote of at least eighty-five percent (85%) in principal amount of the series of bonds so to be affected (excluding in every instance bonds disqualified from voting by reason of the Company's interest therein as specified in the Indenture); provided, however, that, without the consent of the holder hereof, no such modification or alteration shall, among other things, affect the terms of payment of the principal of, or the interest on, this bond, which in those respects is unconditional. The holder of the 1990 Series B Bond, by its acceptance of and holding thereof, consents and agrees that bonds of any series may be issued which mature on a date or dates later than October 1, 2024 and also consents to the deletion from the first paragraph of Section 5 of Article II of the Indenture of the phrase "but in no event later than October 1, 2024." Such holder further agrees that (a) such consent shall, for all purposes of Article XV of the Indenture and without further action on the part of such holder, be deemed the affirmative vote of such holder at any meeting called pursuant to said Article XV for the purpose of approving such deletion, and (b) such deletion shall become effective at such time as not less than eighty-five percent (85%) in principal amount of bonds outstanding under the Indenture shall have consented thereto substantially in the manner set forth in Section 3 of Part I of the Supplemental Indenture dated as of February 15, 1990, or in writing, or by affirmative vote cast at a meeting called pursuant to said Article XV, or by any combination thereof. |
Principal payments shall be made hereon annually, payable on March 31 of each year (commencing March 31, 1990) as set forth below, until the final payment of principal shall be made: |
PRINCIPAL PRINCIPAL PRINCIPAL AMOUNT PAYMENT PAYMENT REMAINING DATE DUE OUTSTANDING --------- --------- ---------------- March 31, 1990............................. $9,516,000 $247,416,000 March 31, 1991............................. 9,516,000 237,900,000 March 31, 1992............................. 9,516,000 228,384,000 March 31, 1993............................. 9,516,000 218,868,000 March 31, 1994............................. 9,516,000 209,352,000 March 31, 1995............................. 9,516,000 199,836,000 March 31, 1996............................. 9,516,000 190,320,000 March 31, 1997............................. 9,516,000 180,804,000 March 31, 1998............................. 9,516,000 171,288,000 March 31, 1999............................. 9,516,000 161,772,000 March 31, 2000............................. 9,516,000 152,256,000 March 31, 2001............................. 9,516,000 142,740,000 March 31, 2002............................. 9,516,000 133,224,000 March 31, 2003............................. 9,516,000 123,708,000 March 31, 2004............................. 9,516,000 114,192,000 March 31, 2005............................. 9,516,000 104,676,000 March 31, 2006............................. 9,516,000 95,160,000 March 31, 2007............................. 9,516,000 85,644,000 March 31, 2008............................. 9,516,000 76,128,000 March 31, 2009............................. 9,516,000 66,612,000 March 31, 2010............................. 9,516,000 57,096,000 March 31, 2011............................. 9,516,000 47,580,000 March 31, 2012............................. 9,516,000 38,064,000 March 31, 2013............................. 9,516,000 28,548,000 March 31, 2014............................. 9,516,000 19,032,000 March 31, 2015............................. 9,516,000 9,516,000 March 31, 2016............................. 9,516,000 0 |
This bond shall be redeemable prior to stated maturity, at the election of the Company on any interest payment date, at the redemption prices calculated in accordance with the formula set forth below on giving notice of such redemption by first class mail, postage prepaid, by or on behalf of the Company not more than ninety (90) days nor less than thirty (30) days prior to the date fixed for redemption to the registered holder of the 1990 Series B Bond. |
The optional redemption payment of each bond to be redeemed shall be equal to the present worth, on the date of redemption, of the remaining scheduled semi- annual payments of interest and annual retirement of principal of such bond, calculated as follows. Determine the present value of each scheduled semi-annual payment of interest and annual retirement of principal by dividing each payment by the Present Value Divisor (PVD), where: PVD = (FYYY 1.0 + I) (D) I = That annual interest rate (which has been adjusted for semi-annual compounding) for U.S. Treasury securities, with comparable maturities as set forth in the Federal Reserve statistical release, designated H.15 (519), or its successor, published at least 4 days but not more than 10 days prior to the optional redemption date. The rate shall be the "This Week" rate for Treasury Constant Maturities. Straight line interpolate to 3 decimal places after rounding the prepayment period to the nearest month (1st-15th round down) to match the remaining term of the bond to be redeemed. D = Present value divisor for the preceding 6 month interest period (D equals 1.0 for the period preceding the first period, which is the period from the redemption date to the first scheduled payment date thereafter). Add the present value for all scheduled annual retirements of principal and semi-annual payments of interest to determine the sum to be paid upon redemption of each bond. If the optional redemption payment is greater than the principal outstanding as of the date of optional redemption, the prepayment results in a premium, plus in each case accrued interest to the date fixed for redemption. If the optional redemption payment is less than the principal outstanding as of the date of the optional redemption, the prepayment results in a discount which shall be deducted from the outstanding principal amount which otherwise would have been paid, plus in each case accrued interest to the date fixed for redemption. No redemption pursuant to this paragraph shall be credited to, or relieve the Company to any extent from its obligation to make the principal payment provided for above. In case an event of default, as defined in the Indenture, shall occur, the principal of all the bonds issued thereunder may become or be declared due and payable, in the manner, with the effect and subject to the conditions provided in said Indenture. No recourse shall be had for the payment of the principal of, or the interest on, this bond, or for any claim based hereon or otherwise in respect hereof or of the Indenture, or of any indenture supplemental thereto, against any incorporator, or against any past, present or future stockholder, director or officer, as such, of the Company, or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether for amounts unpaid on stock subscriptions or by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise howsoever, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released by every holder or owner hereof, as more fully provided in the Indenture. |
[FORM OF TRUSTEE'S CERTIFICATE] FORM OF This bond is the only bond of the series designated TRUSTEE'S therein, described in the within- mentioned Indenture. CERTIFICATE. |
BANKERS TRUST COMPANY,
as Trustee
By
Authorized Officer
PART IV. CREATION OF TWO HUNDRED EIGHTY-FOURTH SERIES OF BONDS. GENERAL AND REFUNDING MORTGAGE BONDS, 1990 SERIES E TERMS OF BONDS SECTION 1. The Company hereby creates the Two hundred OF 1990 SERIES E. eighty-fourth series of bonds to be issued under and secured by the Original Indenture as amended to date and as further amended by this Supplemental Indenture, to be designated, and to be distinguished from the bonds of all other series, by the title "General and Refunding Mortgage Bonds, 1990 Series E" (elsewhere herein referred to as the "bonds of 1990 Series E"). The aggregate principal amount of bonds of 1990 Series E shall be limited to the principal amount of 1990 Series B Bond being exchanged, except as provided in Sections 7 and 13 of Article II of the Original Indenture with respect to exchanges and replacements of bonds. The bonds of 1990 Series E shall mature on March 31, 2016 and shall be issued in exchange for, and in an aggregate principal amount equal to the principal amount remaining outstanding on, the 1990 Series B Bond as of the date of such exchange. The Bonds of Series E shall be issued as registered bonds without coupons in denominations of $10,000 and any multiple thereof, and shall bear interest, payable semi-annually on March 31 and September 30 of each year (commencing on the first March 31 or September 30 following the date of such exchange), at the rate of seven and 904/1000 per centum (7.904%) per annum until the principal shall have become due and payable, and thereafter until the Company's obligation with respect to the payment of said principal shall have been discharged as provided in the Indenture. Except as otherwise specifically provided in this Supplemental Indenture, the principal of and interest on the bonds of 1990 Series E shall be payable at the office or agency of the Company in the Borough of Manhattan, The City of New York, The State of New York in any coin or currency of the United States of America which at the time of payment is legal tender for public and private debts. The interest on bonds of 1990 Series E, whether in temporary or definitive form, shall be payable without presentation of such bonds and (subject to the provisions of this Section 1) only to or upon the written order of the registered holders thereof. Each bond of 1990 Series E shall be dated the date of its authentication and interest shall be payable on the principal represented thereby from the March 31 or September 30 next preceding the date thereof to which interest has been paid on bonds of 1990 Series E, unless the bond is authenticated on a date to which interest has been paid, in which case interest shall be payable from the date of authentication. The bonds of 1990 Series E in definitive form shall be, at the election of the Company, fully engraved or shall be lithographed or printed in authorized denominations as aforesaid and numbered 1 and upwards (with such further designation as may be appropriate and desirable to indicate by such designation the form, series and denomination of bonds of 1990 Series E). Until bonds of 1990 Series E in definitive form are ready for delivery, the Company may execute, and upon its request in writing the Trustee shall authenticate and deliver in lieu thereof, bonds of 1990 Series E in temporary form, as provided in Section 10 of Article II of the Indenture. Temporary bonds of 1990 Series E, if any, may be printed and may be issued in authorized denominations in substantially the form of definitive bonds of 1990 Series E, but without a recital of redemption prices and with such omissions, insertions and variations as may be appropriate for temporary bonds, all as may be determined by the Company. |
Interest on any bond of 1990 Series E which is payable on any interest payment date and is punctually paid or duly provided for shall be paid to the person in whose name that bond, or any previous bond to the extent evidencing the same debt as that evidenced by that bond, is registered at the close of business on the regular record date for such interest, which regular record date shall be the fifteenth day of March or September as the case may be (whether or not a business day) next preceding such interest payment date. If the Company shall default in the payment of the interest due on any interest payment date on the principal represented by any bond of 1990 Series E, such defaulted interest shall forthwith cease to be payable to the registered holder of that bond on the relevant regular record date by virtue of his having been such holder, and such defaulted interest may be paid to the registered holder of that bond (or any bond or bonds of 1990 Series E issued upon transfer or exchange thereof) on the date of payment of such defaulted interest or, at the election of the Company, to the person in whose name that bond (or any bond or bonds of 1990 Series E issued upon transfer or exchange thereof) is registered on a subsequent record date established by notice given by mail by or on behalf of the Company to the holders of bonds of 1990 Series E not less than ten (10) days preceding such subsequent record date, which subsequent record date shall be at least five (5) days prior to the payment date of such defaulted interest. REDEMPTION OF BONDS OF SECTION 2. The bonds of 1990 Series E shall be redeemable 1990 (i) on March 31 in each year, commencing March 31 in the SERIES E. first calendar year subsequent to initial issuance, through the operation of the sinking fund hereinafter described at 100% of the principal amount thereof, (ii) at the election of the Company on any date prior to maturity, commencing March 31 of the eleventh (11th) calendar year subsequent to initial issuance, as a whole, or in part, from time to time, at par plus in each case accrued interest to the date fixed for redemption if such redemption does not utilize, directly or indirectly, the proceeds of and is not in anticipation of any refunding operation involving borrowing at an interest cost to the Company, computed in accordance with generally accepted financial practice, of less than 7.904% per annum, and (iii) at the election of the Company on any date prior to maturity, commencing March 31 of the eleventh (11th) calendar year subsequent to initial issuance, as a whole, or in part, from time to time, at the following redemption prices (expressed as percentages of the principal amount thereof) plus in each case (whether through operation of the sinking fund or otherwise) accrued interest to the date fixed for redemption: |
IF REDEEMED DURING 12 MONTH PERIOD ENDING REDEMPTION MARCH 31, PRICE --------------- ---------- Year 11........................................... 102.50% Year 12........................................... 102.00 Year 13........................................... 101.50 Year 14........................................... 101.00 Year 15........................................... 100.50 Thereafter........................................ 100.00 |
The bonds of 1990 Series E shall be redeemable as aforesaid as provided herein and as specified in Article IV of the Indenture upon giving notice of such redemption by first class mail, postage prepaid, by or on behalf of the Company at least thirty (30) days prior to the date fixed for redemption to the registered holders of bonds of 1990 Series E so called for redemption at their last respective addresses appearing on the register thereof, but failure to mail such notice to the registered holders of any bonds of 1990 Series E designated for redemption shall not affect the validity of any such redemption of any other bonds of such series. Interest shall cease to accrue on any bonds of 1990 Series E (or any portion thereof) so called for redemption from and after the date fixed for redemption if payment sufficient to redeem the bonds of 1990 Series E (or such portion) designated for redemption has been duly provided for. Bonds of 1990 Series E redeemed in part only shall be in amounts of $10,000 or any multiple thereof. If the giving of the notice of redemption shall have been completed, or if provision satisfactory to the Trustee for the giving of such notice shall have been made, and if the Company shall have deposited with the Trustee in trust funds (which shall become available for payment to the holders of the bonds of 1990 Series E so to be redeemed) sufficient to redeem bonds of 1990 Series E in whole or in part, on the date fixed for redemption, then all obligations of the Company in respect of such bonds (or portions thereof) so to be redeemed and interest due or to become due thereon shall cease and be discharged and the holders of such bonds of 1990 Series E (or portions thereof) shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or in respect of such bonds (or portions thereof) and interest. As and for the sinking fund for the retirement of the bonds of 1990 Series E the Company will, until all the bonds of 1990 Series E are paid or payment thereof provided for, deposit with the Trustee prior to March 31 in each year, commencing March 31 of the first calendar year subsequent to initial issuance, an amount in cash sufficient to redeem on such March 31 $9,520,000 principal amount of bonds of 1990 Series E. On or before February 1 in each year, commencing February 1 of the first calendar year subsequent to initial issuance the Company (i) may deliver bonds of 1990 Series E (other than any previously called for redemption for the sinking fund) and (ii) may apply as a credit bonds for 1990 Series E redeemed at the election of the Company otherwise than through the sinking fund, in each case in satisfaction of all or any part of the amount of any sinking fund payment. Each such bond of 1990 Series E shall be received or credited for such purpose by the Trustee at the principal amount thereof and the amount of such sinking fund payment shall be reduced accordingly. On February 1 in each year, commencing February 1 of the first calendar year subsequent to initial issuance, the Company will deliver to the Trustee a treasurer's certificate, which shall be irrevocable, specifying the amount of the next ensuing sinking fund payment and the portions thereof which are to be satisfied by payment of cash, by delivery of bonds of 1990 Series E or by crediting bonds of 1990 Series E previously redeemed. The treasurer's certificate shall also state that bonds of 1990 Series E forming the basis of any such credit do not include any bonds of 1990 Series E which have been called for redemption for the sinking fund or previously credited against any sinking fund payment. The Trustee shall, upon the receipt of the treasurer's certificate, select the bonds of 1990 Series E to be redeemed upon the next ensuing March 31 in the manner hereinabove provided for and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner hereinabove provided for. Such notice having been duly given, the redemption of such bonds of 1990 Series E shall be made upon the terms and in the manner and with the effect hereinabove provided for with respect to redemptions. |
EXCHANGE AND At the option of the registered holder, any bonds of 1990 Series E, upon surrender TRANSFER. thereof for cancellation at the office or agency of the Company in the Borough of Manhattan, The City of New York, The State of New York, together with a written instrument of transfer (if so required by the Company or by the Trustee) in form approved by the Company duly executed by the holder or by its duly authorized attorney, shall be exchangeable for a like aggregate principal amount of bonds of 1990 Series E of other authorized denominations, upon the terms and conditions specified herein and in Section 7 of Article II of the Indenture. Bonds of 1990 Series E shall be transferable at the office or agency of the Company in the Borough of Manhattan, The City of New York, The State of New York. The Company waives its rights under Section 7 of Article II of the Indenture not to make exchanges or transfers of bonds of 1990 Series E during any period of ten (10) days next preceding any interest payment date for such bonds. Bonds of 1990 Series E, in definitive and temporary form, may bear such legends as may be necessary to comply with any law or with any rules or regulations made pursuant thereto or with the rules or regulations of any stock exchange or to conform to usage with respect thereto. CONSENT. SECTION 3. The holders of the bonds of 1990 Series E, by their acceptance of and holding thereof, consent and agree that bonds of any series may be issued which mature on a date or dates later than October 1, 2024 and also consent to the deletion from the first paragraph of Section 5 of Article II of the Indenture of the phrase "but in no event later than October 1, 2024". Such holders further agree that (a) such consent shall, for all purposes of Article XV of the Indenture and without further action on the part of such holders, be deemed the affirmative vote of such holders at any meeting called pursuant to said Article XV for the purpose of approving such deletion, and (b) such deletion shall become effective at such time as not less than eighty-five percent (85%) in principal amount of bonds outstanding under the Indenture shall have consented thereto substantially in the manner set forth in this Section 3, or in writing, or by affirmative vote cast at a meeting called pursuant to said Article XV, or by any combination thereof. |
FORM OF BONDS OF SECTION 4. The bonds of 1990 Series E and the form of Trustee's Certificate to be endorsed on 1990 SERIES E. such bonds shall be substantially in the following forms, respectively. [FORM OF FACE OF BOND] THE DETROIT EDISON COMPANY GENERAL AND REFUNDING MORTGAGE BOND 1990 Series E, 7.904% due March 31, 2016 $ ________ No. ________ THE DETROIT EDISON COMPANY (hereinafter called the "Company"), a corporation of the State of Michigan, for value received, hereby promises to pay to or registered assigns, at its office or agency in the Borough of Manhattan, The City and State of New York, the principal sum of in lawful money of the United States of America on the thirty-first day of March, 2016, and to pay interest thereon at the rate specified in the title hereof, at such office or agency, in like lawful money, from , and after the first interest payment on bonds of this Series from the most recent date to which such interest has been paid, semi-annually on the thirty-first day of March and the thirtieth day in September each year, to the person in whose name this bond is registered at the close of business on the preceding fifteenth day of March or September (subject to certain exceptions provided in the Indenture hereinafter mentioned), until the Company's obligation with respect to payment of said principal shall have been discharged as provided in such Indenture. Reference is hereby made to the further provisions of this bond set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though set forth at this place. This bond shall not be valid or become obligatory for any purpose until Bankers Trust Company, the Trustee under the aforesaid Indenture, or its successor thereunder, shall have signed the form of certificate endorsed hereon. IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY has caused this instrument to be executed on its behalf by its Chairman of the Board and its President or a Vice President, with their manual or facsimile signatures, and its corporate seal, or a facsimile thereof, to be impressed or imprinted hereon and the same to be attested by its Secretary or an Assistant Secretary with his manual or facsimile signature. |
Dated: THE DETROIT EDISON COMPANY By Chairman of the Board Attest: President Secretary |
[FORM OF REVERSE OF BOND] This bond is one of an authorized issue of bonds of the Company, unlimited as to amount except as provided in the Indenture hereinafter mentioned or any indentures supplemental thereto, and is one of a series of said bonds known as General and Refunding Mortgage Bonds, 1990 Series E, (elsewhere herein referred to as the "bonds of 1990 Series E"), limited to the aggregate principal amount of [the 1990 Series B Bonds being converted], except as otherwise provided in the Indenture hereinafter mentioned. This bond and all other bonds of said series are issued and to be issued under, and are all equally and ratably secured (except insofar as any sinking, amortization, improvement or analogous fund, established in accordance with the provisions of the Indenture hereinafter mentioned, may afford additional security for the bonds of any particular series and except as provided in Section 3 of Article VI of said Indenture) by an Indenture, dated as of October 1, 1924, duly executed by the Company to Bankers Trust Company, a corporation of the State of New York, as Trustee, to which Indenture and all indentures supplemental thereto (including the Supplemental Indenture dated as of February 15, 1990) reference is hereby made for a description of the properties and franchises mortgaged and conveyed, the nature and extent of the security, the terms and conditions upon which the bonds are issued and under which additional bonds may be issued, and the rights of the holders of the bonds and of the Trustee in respect of such security (which Indenture and all indentures supplemental thereto, including the Supplemental Indenture dated as of February 15, 1990, are hereinafter collectively called the "Indenture"). As provided in the Indenture, said bonds may be for various principal sums and are issuable in series, which may mature at different times, may bear interest at different rates and may otherwise vary as in said Indenture provided. With the consent of the Company and to the extent permitted by and as provided in the Indenture, the rights and obligations of the Company and of the holders of the bonds and the terms and provisions of the Indenture, or of any indenture supplemental thereto, may be modified or altered in certain respects by affirmative vote of at least eighty-five percent (85%) in principal amount of the bonds then outstanding, and, if the rights of one or more, but less than all, series of bonds then outstanding are to be affected by the action proposed to be taken, then also by affirmative vote of at least eighty-five percent (85%) in principal amount of the series of bonds so to be affected (excluding in every instance bonds disqualified from voting by reason of the Company's interest therein as specified in the Indenture); provided, however, that, without the consent of the holder hereof, no such modification or alteration shall, among other things, affect the terms of payment of the principal of, or the interest on, this bond, which in those respects is unconditional. The holders of the bonds of 1990 Series E, by their acceptance of and holding thereof, consent and agree that bonds of any series may be issued which mature on a date or dates later than October 1, 2024 and also consent to the deletion from the first paragraph of Section 5 of Article II of the Indenture of the phrase "but in no event later than October 1, 2024,". Such holders further agree that (a) such consent shall, for all purposes of Article XV of the Indenture and without further action on the part of such holders, be deemed the affirmative vote of such holders at any meeting called pursuant to said Article XV for the purpose of approving such deletion, and (b) such deletion shall become effective at such time as not less than eighty-five percent (85%) in principal amount of bonds outstanding under the Indenture shall have consented thereto substantially in the manner set forth in Section 3 of Part I of the Supplemental Indenture dated as of February 15, 1990, or in writing, or by affirmative vote cast at a meeting called pursuant to said Article XV, or by any combination thereof. |
This bond is redeemable on giving notice of such redemption by first class mail, postage prepaid, by or on behalf of the Company at least thirty (30) but not more than ninety (90) days prior to the date fixed for redemption to the registered holder of this bond at his last address appearing on the register thereof, in the manner and upon the terms provided in the Indenture, (i) on March 31 in each year, commencing [March 31, ], through the operation of the sinking fund for bonds of 1990 Series E at 100% of the principal amount hereof, (ii) at the election of the Company on any date prior to maturity, commencing March 31 of the eleventh (11th) calendar year subsequent to initial issuance, as a whole, or in part, from time to time, at par plus in each case accrued interest to the date fixed for redemption if such redemption does not utilize, directly or indirectly, the proceeds of and is not in anticipation of any refunding operation involving borrowing at an interest cost to the Company, computed in accordance with generally accepted financial practice, of less than 7.904% per annum, and (iii) at the election of the Company on any date prior to maturity, commencing March 31 of the eleventh (11th) calendar year subsequent to initial issuance, as a whole or in part, from time to time, at the following redemption prices (expressed as percentages of the principal amount hereof) plus in each case (whether through operation of the sinking fund or otherwise) accrued interest to the date fixed for redemption: |
IF REDEEMED DURING 12 MONTH PERIOD ENDING REDEMPTION MARCH 31, PRICE --------------- ---------- Year 11........................................... 102.50% Year 12........................................... 102.00 Year 13........................................... 101.50 Year 14........................................... 101.00 Year 15........................................... 100.50 Thereafter........................................ 100.00 |
The Company will deposit with the Trustee as and for a sinking fund for the bonds of Series E prior to each March 31, commencing [ ], an amount sufficient to redeem $9,520,000 principal amount of bonds of 1990 Series E, less the amount of any credit against any such payment taken by the Company for bonds of 1990 Series E delivered to the Trustee or redeemed by the Company otherwise than through the sinking fund. Under the Indenture, funds may be deposited with the Trustee (which shall have become available for payment), in advance of the redemption date of any of the bonds of 1990 Series E (or portions thereof), in trust for the redemption of such bonds (or portions thereof) and the interest due or to become due thereon, and thereupon all obligations of the Company in respect of such bonds (or portions thereof) so to be redeemed and such interest shall cease and be discharged, and the holders thereof shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or with respect to such bonds and interest. In case an event of default, as defined in the Indenture, shall occur, the principal of all the bonds issued thereunder may become or be declared due and payable, in the manner, with the effect and subject to the conditions provided in said Indenture. |
This bond is transferable by the registered holder hereof, in person or by his attorney duly authorized in writing, on the books of the Company kept at its office or agency in the Borough of Manhattan, The City and State of New York, upon surrender and cancellation of this bond, and thereupon, a new registered bond or bonds of the same series of authorized denominations for a like aggregate principal amount will be issued to the transferee or transferees in exchange herefor, and this bond with others in like form may in like manner be exchanged for one or more new registered bonds of the same series of other authorized denominations, but of the same aggregate principal amount, all as provided and upon the terms and conditions set forth in the Indenture, and upon payment, in any event, of the charges prescribed in the Indenture. No recourse shall be had for the payment of the principal of or the interest on this bond, or for any claim based hereon or otherwise in respect hereof or of the Indenture, or of any indenture supplemental thereto, against any incorporator, or against any past, present or future stockholder, director or officer, as such, of the Company, or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether for amounts unpaid on stock subscriptions or by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise howsoever; all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released by every holder or owner hereof, as more fully provided in the Indenture. [FORM OF TRUSTEE'S CERTIFICATE] FORM OF This bond is one of the bonds, of the series designated TRUSTEE'S therein, described in the within-mentioned Indenture. CERTIFICATE. |
BANKERS TRUST COMPANY,
as Trustee
By
Authorized Officer
PART V.
CREATION OF TWO HUNDRED EIGHTY-FIFTH
SERIES OF BONDS.
GENERAL AND REFUNDING MORTGAGE BOND,
1990 SERIES C
TERMS OF BOND SECTION 1. The Company hereby creates the Two hundred OF 1990 SERIES C. eighty-fifth series of bonds to be issued under and secured by the Original Indenture as amended to date and as further amended by this Supplemental Indenture, to be designated, and to be distinguished from the bonds of all other series, by the title "General and Refunding Mortgage Bond, 1990 Series C (elsewhere herein referred to as the "1990 Series C Bond"). The aggregate principal amount of the 1990 Series C Bond shall be limited to Eighty-five million four hundred seventy-five thousand dollars ($85,475,000), except as provided in Section 13 of Article II of the Original Indenture with respect to exchanges and replacement of bonds. The 1990 Series C Bond shall be a multiple of $1,000. The 1990 Series C Bond shall be issued as one registered bond without coupons in the amount of $85,475,000, which shall bear interest, payable semi-annually on March 31 and September 30 of each year (commencing March 31, 1990) at the rate of 8.357%, and principal payments shall be made thereon annually, payable on March 31 of each year (commencing March 31, 1990) as set forth below, until the final payments of interest and principal shall be made: |
PRINCIPAL PRINCIPAL PRINCIPAL AMOUNT PAYMENT PAYMENT REMAINING DATE DUE OUTSTANDING --------- --------- ---------------- March 31, 1990.............................. $3,419,000 $82,056,000 March 31, 1991.............................. 3,419,000 78,637,000 March 31, 1992.............................. 3,419,000 75,218,000 March 31, 1993.............................. 3,419,000 71,799,000 March 31, 1994.............................. 3,419,000 68,380,000 March 31, 1995.............................. 3,419,000 64,961,000 March 31, 1996.............................. 3,419,000 61,542,000 March 31, 1997.............................. 3,419,000 58,123,000 March 31, 1998.............................. 3,419,000 54,704,000 March 31, 1999.............................. 3,419,000 51,285,000 March 31, 2000.............................. 3,419,000 47,866,000 March 31, 2001.............................. 3,419,000 44,447,000 March 31, 2002.............................. 3,419,000 41,028,000 March 31, 2003.............................. 3,419,000 37,609,000 March 31, 2004.............................. 3,419,000 34,190,000 March 31, 2005.............................. 3,419,000 30,771,000 March 31, 2006.............................. 3,419,000 27,352,000 March 31, 2007.............................. 3,419,000 23,933,000 March 31, 2008.............................. 3,419,000 20,514,000 March 31, 2009.............................. 3,419,000 17,095,000 March 31, 2010.............................. 3,419,000 13,676,000 March 31, 2011.............................. 3,419,000 10,257,000 March 31, 2012.............................. 3,419,000 6,838,000 March 31, 2013.............................. 3,419,000 3,419,000 March 31, 2014.............................. 3,419,000 0 |
Payments of principal, premium, if any, and interest on the 1990 Series C Bond shall be made by bank wire transfer in immediately available funds in lawful money of the United States of America to the bank account of the registered holder of such bond which such registered holder shall designate in writing to Bankers Trust Company, Trustee, not less than fifteen (15) days prior to the date such payment shall become due and payable. |
When a semi-annual interest payment date falls on a Saturday, Sunday or a day on which the Federal Reserve Bank of New York or the Trustee is not open for business, all payments shall be payable on the first day thereafter on which the Federal Reserve Bank of New York and the Trustee are open for business. In the event any semi-annual payment is not made when due, the amount payable shall be such payment, plus interest thereon at the interest rate of one and one-half times the rate to be determined by the Secretary of the Treasury taking into consideration the prevailing market yield on the remaining maturity of the most recently auctioned 13-week U.S. Treasury bills, from the due date to the date of payment. Upon the expiration of each successive 91-day period following the scheduled payment date for any outstanding payment, a new rate shall be established pursuant to this paragraph and such rate shall be applied to the outstanding payment and all late charges accrued thereon. The 1990 Series C Bond shall be dated January 3, 1990 and interest shall be payable from January 3, 1990. The 1990 Series C Bond in definitive form shall be, at the election of the Company, fully engraved or shall be lithographed or printed. The 1990 Series C Bond shall not be subject to or entitled to any sinking fund. REDEMPTION OF SECTION 2. The 1990 Series C Bond shall be redeemable 1990 SERIES C BOND. prior to stated maturity, at the election of the Company on any interest payment date, at redemption prices calculated in accordance with the formula set forth below on giving notice of such redemption by first class mail, postage prepaid, by or on behalf of the Company not more than ninety (90) days nor less than thirty (30) days prior to the date fixed for redemption to the registered holder of the 1990 Series C Bond. The optional redemption payment of each bond to be redeemed shall be equal to the present worth, on the date of redemption, of the remaining scheduled semi- annual payments of interest and annual retirement of principal of such bond, calculated as follows. Determine the present value of each scheduled semi-annual payment of interest and annual retirement of principal by dividing each payment by the Present Value Divisor (PVD), where: PVD = (FYYY 1.0 + I) (D) I = That annual interest rate (which has been adjusted for semi-annual compounding) for U.S. Treasury securities, with comparable maturities as set forth in the Federal Reserve statistical release, designated H.15 (519), or its successor, published at least 4 days but not more than 10 days prior to the optional redemption date. The rate shall be the "This Week" rate for Treasury Constant Maturities. Straight line interpolate to 3 decimal places after rounding the prepayment period to the nearest month (1st-15th round down) to match the remaining term of the bond to be redeemed. D = Present value divisor for the preceding 6 month interest period (D equals 1.0 for the period preceding the first period, which is the period from the redemption date to the first scheduled payment date thereafter). Add the present value for all scheduled annual retirements of principal and semi-annual payments of interest to determine the sum to be paid upon redemption of each bond. |
If the optional redemption payment is greater than the principal outstanding as of the date of optional redemption, the prepayment results in a premium, plus in each case accrued interest to the date fixed for redemption. If the optional redemption payment is less than the principal outstanding as of the date of the optional redemption, the prepayment results in a discount which shall be deducted from the outstanding principal amount which otherwise would have been paid, plus in each case accrued interest to the date fixed for redemption. Any partial redemption shall, as the principal portion of such redemption, be no less than $100,000. No redemption pursuant to this paragraph shall be credited to, or relieve the Company to any extent from its obligation to make the principal payments provided for in Section 1 hereof. On or before the first day of February or August in each year, commencing September 1 1990, the Company will deliver to the Trustee a treasurer's certificate, which shall be irrevocable, specifying the principal amount of bonds to be optionally redeemed and accrued interest on such bonds on the next ensuing March 31 or September 30, or the first business day thereafter, respectively. The Trustee shall, upon the receipt of the treasurer's certificate, cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner herein provided for. On or before noon of the business day preceding the day of prepayment, the Company will advise the Trustee of the applicable premium or discount applicable to such prepayment. Such notice having been duly given, the redemption of bonds of 1990 Series C shall be made upon the terms and in the manner and with the effect hereinabove provided for with respect to redemptions. A treasurer's certificate shall not be required if no bonds of a series are to be redeemed under this paragraph. EXCHANGE. SECTION 3. At the option of the holder, upon written request made at least forty-five (45) days prior to an interest payment date and subject to the terms of the Indenture and compliance with applicable securities laws, the 1990 Series C Bond shall be exchangeable, in whole but not in part, for bonds of 1990 Series F (as hereinafter described) in an aggregate principal amount equal to the aggregate amount of unpaid principal which shall remain outstanding on the 1990 Series C Bond as of the date of such exchange. Such exchange shall occur only on an interest payment date for the 1990 Series C Bond at the office of the Trustee in the Borough of Manhattan, The City of New York, The State of New York. The 1990 Series C Bond shall bear a legend stating that such bond has not been registered under the United States Securities Act of 1933, as amended (the "Act") and that as a consequence such bond may not be offered, sold or otherwise transferred, whether or not for consideration, unless registered under such Act or pursuant to an exemption from such registration applicable to such offer, sale or other transfer, and may bear such other legends as may be necessary to comply with any law or with any rules or regulations made pursuant thereto. CONSENT. SECTION 4. The holder of the 1990 Series C Bond, by its acceptance of and holding thereof, consents and agrees that bonds of any series may be issued which mature on a date or dates later than October 1, 2024 and also consents to the deletion from the first paragraph of Section 5 of Article II of the Indenture of the phrase "but in no event later than October 1, 2024." Such holder further agrees that (a) such consent shall, for all purposes of Article XV of the Indenture and without further action on the part of such holder, be deemed the affirmative vote of such holder at any meeting called pursuant to said Article XV for the purpose of approving such deletion, and (b) such deletion shall become effective at such time as not less than eighty-five per cent (85%) in principal amount of bonds outstanding under the Indenture shall have consented thereto substan- tially in the manner set forth in this Section 4, or in writing, or by affirmative vote cast at a meeting called pursuant to said Article XV, or by any combination thereof. |
FORM OF SECTION 5. The 1990 Series C Bond and the form of 1990 SERIES C BOND. Trustee's Certificate to be endorsed on such bond shall be substantially in the following forms, respectively: [FORM OF FACE OF BOND] THE DETROIT EDISON COMPANY GENERAL AND REFUNDING MORTGAGE BOND 1990 Series C, 8.357% due March 31, 2014 (Payable in annual installments, commencing March 31, 1990) $85,475,000 No. ________ THE DETROIT EDISON COMPANY (hereinafter called the "Company"), a corporation of the State of Michigan, for value received, hereby promises to pay to UNITED STATES OF AMERICA, at its office or agency in the Borough of Manhattan, the City and State of New York, in lawful money of the United States of America, the principal sum of $85,475,000, together with interest at the rate specified in the title hereof on the amount of said principal sum remaining unpaid from time to time from January 3, 1990, and after the first interest payment hereon from the most recent date to which interest has been paid hereon, until the Company's obligation with respect to payment of said principal shall have been discharged, all as provided, to the extent and in the manner specified in the Indenture hereinafter mentioned on the reverse hereof and in the supplemental indenture pursuant to which this bond has been issued. Interest shall be due and payable in 49 consecutive semi-annual payments on March 31 and September 30 in each year, commencing on March 31, 1990, and principal shall be due and payable in 25 consecutive annual payments on March 31, in each year, commencing on March 31, 1990, each as more fully set forth on the reverse hereof. Payments of principal, premium, if any, and interest on this bond are to be made by bank wire transfer in immediately available funds to the holder hereof all as provided, to the extent and in the manner specified in the Indenture hereinafter mentioned on the reverse hereof and in the supplemental indenture pursuant to which this bond has been issued. In the event any semi-annual payment is not made when due, the amount payable shall be such payment, plus interest thereon at the interest rate of one and one-half times the rate to be determined by the Secretary of the Treasury taking into consideration the prevailing market yield on the remaining maturity of the most recently auctioned 13-week U.S. Treasury bills, from the due date to the date of payment. Upon the expiration of each successive 91-day period following the scheduled payment date for any outstanding payment, a new rate shall be established pursuant to this paragraph and such rate shall be applied to the outstanding payment and all late charges accrued thereon. When any payment date falls on a Saturday, Sunday or a day on which the Federal Reserve Bank of New York or the Trustee is not open for business, all payments shall be payable on the first day thereafter on which the Federal Reserve Bank of New York and the Trustee are open for business. At the written request of the registered holder hereof made at least forty-five (45) days in advance of an interest payment date, this bond shall be exchangeable, in whole but not in part, on any interest payment date in an aggregate principal amount equal to the amount of unpaid principal which shall remain outstanding on this bond as of the date of such exchange (after giving effect to the payment of principal hereon on the date of such exchange), all as provided, to the extent and in the manner specified in the Indenture and the Supplemental Indenture hereinafter mentioned on the reverse hereof. |
Reference is hereby made to the further provisions of this bond set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though set forth at this place. This bond shall not be valid or become obligatory for any purpose until Bankers Trust Company, the Trustee under the Indenture hereinafter mentioned on the reverse hereof, or its successor thereunder, shall have signed the form of certificate endorsed hereon. IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY has caused this instrument to be executed on its behalf by its Chairman of the Board and its President or a Vice President, with their manual or facsimile signatures, and its corporate seal, or a facsimile thereof, to be impressed or imprinted hereon and the same to be attested by its Secretary or an Assistant Secretary by manual or facsimile signature. |
THE DETROIT EDISON COMPANY
Dated January 3, 1990 By Chairman of the Board President Attest: Secretary |
44 |
[FORM OF REVERSE OF BOND] This bond is the only bond of an authorized issue of bonds of the Company, unlimited as to amount except as provided in the Indenture hereinafter mentioned or any indentures supplemental thereto, and is one of a series of said bonds known as General and Refunding Mortgage Bonds, 1990 Series C (elsewhere herein referred to as the "1990 Series C Bond"), limited to an aggregate principal amount of $85,475,000, except as otherwise provided in the Indenture hereinafter mentioned. This bond is issued and to be issued under, and is equally and ratably secured (except insofar as any sinking, amortization, improvement or analogous fund, established in accordance with the provisions of the Indenture hereinafter mentioned, may afford additional security for the bonds of any particular series and except as provided in Section 3 of Article VI of said Indenture) by an Indenture, dated as of October 1, 1924, duly executed by the Company to Bankers Trust Company, a corporation of the State of New York, as Trustee, to which Indenture and all indentures supplemental thereto (including the Supplemental Indenture dated as of February 15, 1990) reference is hereby made for a description of the properties and franchises mortgaged and conveyed, the nature and extent of the security, the terms and conditions upon which the bonds are issued and under which additional bonds may be issued, and the rights of the holders of the bonds and of the Trustee in respect of such security (which Indenture and all indentures supplemental thereto, including the Supplemental Indenture dated as of February 15, 1990, are hereinafter collectively called the "Indenture"). As provided in the Indenture, said bonds may be for various principal sums and are issuable in series, which may mature at different times, may bear interest at different rates and may otherwise vary as in said Indenture provided. With the consent of the Company and to the extent permitted by and as provided in the Indenture, the rights and obligations of the Company and of the holders of the bonds and the terms and provisions of the Indenture, or of any indenture supplemental thereto, may be modified or altered in certain respects by affirmative vote of at least eighty-five percent (85%) in principal amount of the bonds then outstanding, and, if the rights of one or more, but less than all, series of bonds then outstanding are to be affected by the action proposed to be taken, then also by affirmative vote of at least eighty-five percent (85%) in principal amount of the series of bonds so to be affected (excluding in every instance bonds disqualified from voting by reason of the Company's interest therein as specified in the Indenture); provided, however, that, without the consent of the holder hereof, no such modification or alteration shall, among other things, affect the terms of payment of the principal of, or the interest on, this bond, which in those respects is unconditional. The holder of the 1990 Series C Bond, by its acceptance of and holding thereof, consents and agrees that bonds of any series may be issued which mature on a date or dates later than October 1, 2024 and also consents to the deletion from the first paragraph of Section 5 of Article II of the Indenture of the phrase "but in no event later than October 1, 2024." Such holder further agrees that (a) such consent shall, for all purposes of Article XV of the Indenture and without further action on the part of such holder, be deemed the affirmative vote of such holder at any meeting called pursuant to said Article XV for the purpose of approving such deletion, and (b) such deletion shall become effective at such time as not less than eighty-five percent (85%) in principal amount of bonds outstanding under the Indenture shall have consented thereto substantially in the manner set forth in Section 3 of Part I of the Supplemental Indenture dated as of February 15, 1990, or in writing, or by affirmative vote cast at a meeting called pursuant to said Article XV, or by any combination thereof. |
Principal payments shall be made hereon annually, payable on March 31 of each year (commencing March 31, 1990) as set forth below, until the final payment of principal shall be made: |
PRINCIPAL PRINCIPAL PRINCIPAL AMOUNT PAYMENT PAYMENT REMAINING DATE DUE OUTSTANDING --------- --------- ---------------- March 31, 1990.............................. $3,419,000 $82,056,000 March 31, 1991.............................. 3,419,000 78,637,000 March 31, 1992.............................. 3,419,000 75,218,000 March 31, 1993.............................. 3,419,000 71,799,000 March 31, 1994.............................. 3,419,000 68,380,000 March 31, 1995.............................. 3,419,000 64,961,000 March 31, 1996.............................. 3,419,000 61,542,000 March 31, 1997.............................. 3,419,000 58,123,000 March 31, 1998.............................. 3,419,000 54,704,000 March 31, 1999.............................. 3,419,000 51,285,000 March 31, 2000.............................. 3,419,000 47,866,000 March 31, 2001.............................. 3,419,000 44,447,000 March 31, 2002.............................. 3,419,000 41,028,000 March 31, 2003.............................. 3,419,000 37,609,000 March 31, 2004.............................. 3,419,000 34,190,000 March 31, 2005.............................. 3,419,000 30,771,000 March 31, 2006.............................. 3,419,000 27,352,000 March 31, 2007.............................. 3,419,000 23,933,000 March 31, 2008.............................. 3,419,000 20,514,000 March 31, 2009.............................. 3,419,000 17,095,000 March 31, 2010.............................. 3,419,000 13,676,000 March 31, 2011.............................. 3,419,000 10,257,000 March 31, 2012.............................. 3,419,000 6,838,000 March 31, 2013.............................. 3,419,000 3,419,000 March 31, 2014.............................. 3,419,000 0 |
This bond shall be redeemable prior to stated maturity, at the election of the Company on any interest payment date, at the redemption prices calculated in accordance with the formula set forth below on giving notice of such redemption by first class mail, postage prepaid, by or on behalf of the Company not more than ninety (90) days nor less than thirty (30) days prior to the date fixed for redemption to the registered holder of the 1990 Series C Bond. |
The optional redemption payment of each bond to be redeemed shall be equal to the present worth, on the date of redemption, of the remaining scheduled semi- annual payments of interest and annual retirement of principal of such bond, calculated as follows. Determine the present value of each scheduled semi-annual payment of interest and annual retirement of principal by dividing each payment by the Present Value Divisor (PVD), where: PVD = (FYYY 1.0 + I) (D) I = That annual interest rate (which has been adjusted for semi-annual compounding) for U.S. Treasury securities, with comparable maturities as set forth in the Federal Reserve statistical release, designated H.15 (519), or its successor, published at least 4 days but not more than 10 days prior to the optional redemption date. The rate shall be the "This Week" rate for Treasury Constant Maturities. Straight line interpolate to 3 decimal places after rounding the prepayment period to the nearest month (1st-15th round down) to match the remaining term of the bond to be redeemed. D = Present value divisor for the preceding 6 month interest period (D equals 1.0 for the period preceding the first period, which is the period from the redemption date to the first scheduled payment date thereafter). Add the present value for all scheduled annual retirements of principal and semi-annual payments of interest to determine the sum to be paid upon redemption of each bond. If the optional redemption payment is greater than the principal outstanding as of the date of optional redemption, the prepayment results in a premium, plus in each case accrued interest to the date fixed for redemption. If the optional redemption payment is less than the principal outstanding as of the date of the optional redemption, the prepayment results in a discount which shall be deducted from the outstanding principal amount which otherwise would have been paid, plus in each case accrued interest to the date fixed for redemption. No redemption pursuant to this paragraph shall be credited to, or relieve the Company to any extent from its obligation to make the principal payment provided for above. In case an event of default, as defined in the Indenture, shall occur, the principal of all the bonds issued thereunder may become or be declared due and payable, in the manner, with the effect and subject to the conditions provided in said Indenture. No recourse shall be had for the payment of the principal of, or the interest on, this bond, or for any claim based hereon or otherwise in respect hereof or of the Indenture, or of any indenture supplemental thereto, against any incorporator, or against any past, present or future stockholder, director or officer, as such, of the Company, or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether for amounts unpaid on stock subscriptions or by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise howsoever, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released by every holder or owner hereof, as more fully provided in the Indenture. |
[FORM OF TRUSTEE'S CERTIFICATE] FORM OF This bond is the only bond of the series designated TRUSTEE'S therein, described in the within- mentioned Indenture. CERTIFICATE. |
BANKERS TRUST COMPANY,
as Trustee
By
Authorized Officer
PART VI. CREATION OF TWO HUNDRED EIGHTY-SIXTH SERIES OF BONDS. GENERAL AND REFUNDING MORTGAGE BONDS, 1990 SERIES F TERMS OF BONDS SECTION 1. The Company hereby creates the Two hundred OF 1990 SERIES F. eighty-sixth series of bonds to be issued under and secured by the Original Indenture as amended to date and as further amended by this Supplemental Indenture, to be designated, and to be distinguished from the bonds of all other series, by the title "General and Refunding Mortgage Bonds, 1990 Series F" (elsewhere herein referred to as the "bonds of 1990 Series F"). The aggregate principal amount of bonds of 1990 Series F shall be limited to the principal amount of 1990 Series C Bond being exchanged, except as provided in Sections 7 and 13 of Article II of the Original Indenture with respect to exchanges and replacements of bonds. The bonds of 1990 Series F shall mature on March 31, 2014 and shall be issued in exchange for, and in an aggregate principal amount equal to the principal amount remaining outstanding on, the 1990 Series C Bond as of the date of such exchange. The bonds of 1990 Series F shall be issued as registered bonds without coupons in denominations of $10,000 and any multiple thereof, and shall bear interest, payable semi-annually on March 31 and September 30 of each year (commencing on the first March 31 or September 30 following the date of such exchange), at the rate of eight and 357/1000 per centum (8.357%) per annum until the principal shall have become due and payable, and thereafter until the Company's obligation with respect to the payment of said principal shall have been discharged as provided in the Indenture. Except as otherwise specifically provided in this Supplemental Indenture, the principal of and interest on the bonds of 1990 Series F shall be payable at the office or agency of the Company in the Borough of Manhattan, The City of New York, The State of New York in any coin or currency of the United States of America which at the time of payment is legal tender for public and private debts. The interest on bonds of 1990 Series F, whether in temporary or definitive form, shall be payable without presentation of such bonds and (subject to the provisions of this Section 1) only to or upon the written order of the registered holders thereof. Each bond of 1990 Series F shall be dated the date of its authentication and interest shall be payable on the principal represented thereby from the March 31 or September 30 next preceding the date thereof to which interest has been paid on bonds of 1990 Series F, unless the bond is authenticated on a date to which interest has been paid, in which case interest shall be payable from the date of authentication. The bonds of 1990 Series F in definitive form shall be, at the election of the Company, fully engraved or shall be lithographed or printed in authorized denominations as aforesaid and numbered 1 and upwards (with such further designation as may be appropriate and desirable to indicate by such designation the form, series and denomination of bonds of 1990 Series F). Until bonds of 1990 Series F in definitive form are ready for delivery, the Company may execute, and upon its request in writing the Trustee shall authenticate and deliver in lieu thereof, bonds of 1990 Series F in temporary form, as provided in Section 10 of Article II of the Indenture. Temporary bonds of 1990 Series F, if any, may be printed and may be issued in authorized denominations in substantially the form of definitive bonds of 1990 Series F, but without a recital of redemption prices and with such omissions, insertions and variations as may be appropriate for temporary bonds, all as may be determined by the Company. |
Interest on any bond of 1990 Series F which is payable on any interest payment date and is punctually paid or duly provided for shall be paid to the person in whose name that bond, or any previous bond to the extent evidencing the same debt as that evidenced by that bond, is registered at the close of business on the regular record date for such interest, which regular record date shall be the fifteenth day of March or September as the case may be (whether or not a business day) next preceding such interest payment date. If the Company shall default in the payment of the interest due on any interest payment date on the principal represented by any bond of 1990 Series F, such defaulted interest shall forthwith cease to be payable to the registered holder of that bond on the relevant regular record date by virtue of his having been such holder, and such defaulted interest may be paid to the registered holder of that bond (or any bond or bonds of 1990 Series F issued upon transfer or exchange thereof) on the date of payment of such defaulted interest or, at the election of the Company, to the person in whose name that bond (or any bond or bonds of 1990 Series F issued upon transfer or exchange thereof) is registered on a subsequent record date established by notice given by mail by or on behalf of the Company to the holders of bonds of 1990 Series F not less than ten (10) days preceding such subsequent record date, which subsequent record date shall be at least five (5) days prior to the payment date of such defaulted interest. REDEMPTION OF BONDS OF SECTION 2. The bonds of 1990 Series F shall be redeemable 1990 (i) on March 31 in each year, commencing March 31 in the SERIES F. first calendar year subsequent to initial issuance, through the operation of the sinking fund hereinafter described at 100% of the principal amount thereof, (ii) at the election of the Company on any date prior to maturity, commencing March 31 of the eleventh (11th) calendar year subsequent to initial issuance, as a whole, or in part, from time to time, at par plus in each case accrued interest to the date fixed for redemption if such redemption does not utilize, directly or indirectly, the proceeds of and is not in anticipation of any refunding operation involving borrowing at an interest cost to the Company, computed in accordance with generally accepted financial practice, of less than 8.357% per annum, and (iii) at the election of the Company on any date prior to maturity, commencing March 31 of the eleventh (11th) calendar year subsequent to initial issuance as a whole, or in part, from time to time, at the following redemption prices (expressed as percentages of the principal amount thereof) plus in each case (whether through operation of the sinking fund or otherwise) accrued interest to the date fixed for redemption: |
IF REDEEMED DURING 12 MONTH PERIOD ENDING REDEMPTION MARCH 31, PRICE --------------- ---------- Year 11........................................... 102.50% Year 12........................................... 102.00 Year 13........................................... 101.50 Year 14........................................... 101.00 Year 15........................................... 100.50 Thereafter........................................ 100.00 |
The bonds of 1990 Series F shall be redeemable as aforesaid as provided herein and as specified in Article IV of the Indenture upon giving notice of such redemption by first class mail, postage prepaid, by or on behalf of the Company at least thirty (30) days prior to the date fixed for redemption to the registered holders of bonds of 1990 Series F so called for redemption at their last respective addresses appearing on the register thereof, but failure to mail such notice to the registered holders of any bonds of 1990 Series F designated for redemption shall not affect the validity of any such redemption of any other bonds of such series. Interest shall cease to accrue on any bonds of 1990 Series F (or any portion thereof) so called for redemption from and after the date fixed for redemption if payment sufficient to redeem the bonds of 1990 Series F (or such protion) designated for redemption has been duly provided for. Bonds of 1990 Series F redeemed in part only shall be in amounts of $10,000 or any multiple thereof. If the giving of the notice of redemption shall have been completed, or if provision satisfactory to the Trustee for the giving of such notice shall have been made, and if the Company shall have deposited with the Trustee in trust funds (which shall become available for payment to the holders of the bonds of 1990 Series F so to be redeemed) sufficient to redeem bonds of 1990 Series F in whole or in part, on the date fixed for redemption, then all obligations of the Company in respect of such bonds (or portions thereof) so to be redeemed and interest due or to become due thereon shall cease and be discharged and the holders of such bonds of 1990 Series F (or portions thereof) shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or in respect of such bonds (or portions thereof) and interest. As and for the sinking fund for the retirement of the bonds of 1990 Series F the Company will, until all the bonds of 1990 Series F are paid or payment thereof provided for, deposit with the Trustee prior to March 31 in each year, commencing March 31 of the first calendar year subsequent to initial issuance, an amount in cash sufficient to redeem on such March 31 $3,420,000 principal amount of bonds of 1990 Series F. On or before February 1 in each year, commencing February 1 of the first calendar year subsequent to initial issuance the Company (i) may deliver bonds of 1990 Series F (other than any previously called for redemption for the sinking fund) and (ii) may apply as a credit bonds for 1990 Series F redeemed at the election of the Company otherwise than through the sinking fund, in each case in satisfaction of all or any part of the amount of any sinking fund payment. Each such bond of 1990 Series F shall be received or credited for such purpose by the Trustee at the principal amount thereof and the amount of such sinking fund payment shall be reduced accordingly. On February 1 in each year, commencing February 1 of the first calendar year subsequent to initial issuance, the Company will deliver to the Trustee a treasurer's certificate, which shall be irrevocable, specifying the amount of the next ensuing sinking fund payment and the portions thereof which are to be satisfied by payment of cash, by delivery of bonds of 1990 Series F or by crediting bonds of 1990 Series F previously redeemed. The treasurer's certificate shall also state that bonds of 1990 Series F forming the basis of any such credit do not include any bonds of 1990 Series F which have been called for redemption for the sinking fund or previously credited against any sinking fund payment. The Trustee shall, upon the receipt of the treasurer's certificate, select the bonds of 1990 Series F to be redeemed upon the next ensuing March 31 in the manner hereinabove provided for and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner hereinabove provided for. Such notice having been duly given, the redemption of such bonds of 1990 Series F shall be made upon the terms and in the manner and with the effect hereinabove provided for with respect to redemptions. |
EXCHANGE AND At the option of the registered holder, any bonds of 1990 Series F, upon surrender TRANSFER. thereof for cancellation at the office or agency of the Company in the Borough of Manhattan, The City of New York, The State of New York, together with a written instrument of transfer (if so required by the Company or by the Trustee) in form approved by the Company duly executed by the holder or by its duly authorized attorney, shall be exchangeable for a like aggregate principal amount of bonds of 1990 Series F of other authorized denominations, upon the terms and conditions specified herein and in Section 7 of Article II of the Indenture. Bonds of 1990 Series F shall be transferable at the office or agency of the Company in the Borough of Manhattan, The City of New York, The State of New York. The Company waives its rights under Section 7 of Article II of the Indenture not to make exchanges or transfers of bonds of 1990 Series F during any period of ten (10) days next preceding any interest payment date for such bonds. Bonds of 1990 Series F, in definitive and temporary form, may bear such legends as may be necessary to comply with any law or with any rules or regulations made pursuant thereto or with the rules or regulations of any stock exchange or to conform to usage with respect thereto. CONSENT. SECTION 3. The holders of the bonds of 1990 Series F, by their acceptance of and holding thereof, consent and agree that bonds of any series may be issued which mature on a date or dates later than October 1, 2024 and also consent to the deletion from the first paragraph of Section 5 of Article II of the Indenture of the phrase "but in no event later than October 1, 2024". Such holders further agree that (a) such consent shall, for all purposes of Article XV of the Indenture and without further action on the part of such holders, be deemed the affirmative vote of such holders at any meeting called pursuant to said Article XV for the purpose of approving such deletion, and (b) such deletion shall become effective at such time as not less than eighty-five percent (85%) in principal amount of bonds outstanding under the Indenture shall have consented thereto substantially in the manner set forth in this Section 3, or in writing, or by affirmative vote cast at a meeting called pursuant to said Article XV, or by any combination thereof. |
FORM OF BONDS OF SECTION 4. The bonds of 1990 Series F and the form of Trustee's Certificate to be endorsed on 1990 SERIES F. such bonds shall be substantially in the following forms, respectively. [FORM OF FACE OF BOND] THE DETROIT EDISON COMPANY GENERAL AND REFUNDING MORTGAGE BOND 1990 Series F, 8.357% due March 31, 2014 $ ________ No. ________ THE DETROIT EDISON COMPANY (hereinafter called the "Company"), a corporation of the State of Michigan, for value received, hereby promises to pay to or registered assigns, at its office or agency in the Borough of Manhattan, The City and State of New York, the principal sum of in lawful money of the United States of America on the thirty-first day of March, 2014, and to pay interest thereon at the rate specified in the title hereof, at such office or agency, in like lawful money, from , and after the first interest payment on bonds of this Series from the most recent date to which such interest has been paid, semi-annually on the thirty-first day of March and the thirtieth day in September each year, to the person in whose name this bond is registered at the close of business on the preceding fifteenth day of March or September (subject to certain exceptions provided in the Indenture hereinafter mentioned), until the Company's obligation with respect to payment of said principal shall have been discharged as provided in such Indenture. Reference is hereby made to the further provisions of this bond set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though set forth at this place. This bond shall not be valid or become obligatory for any purpose until Bankers Trust Company, the Trustee under the aforesaid Indenture, or its successor thereunder, shall have signed the form of certificate endorsed hereon. IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY has caused this instrument to be executed on its behalf by its Chairman of the Board and its President or a Vice President, with their manual or facsimile signatures, and its corporate seal, or a facsimile thereof, to be impressed or imprinted hereon and the same to be attested by its Secretary or an Assistant Secretary with his manual or facsimile signature. |
Dated: THE DETROIT EDISON COMPANY By Chairman of the Board Attest: President Secretary |
[FORM OF REVERSE OF BOND] This bond is one of an authorized issue of bonds of the Company, unlimited as to amount except as provided in the Indenture hereinafter mentioned or any indentures supplemental thereto, and is one of a series of said bonds known as General and Refunding Mortgage Bonds, 1990 Series F, (elsewhere herein referred to as the "bonds of 1990 Series F"), limited to [the aggregate principal amount of the 1990 Series C Bond being converted], except as otherwise provided in the Indenture hereinafter mentioned. This bond and all other bonds of said series are issued and to be issued under, and are all equally and ratably secured (except insofar as any sinking, amortization, improvement or analogous fund, established in accordance with the provisions of the Indenture hereinafter mentioned, may afford additional security for the bonds of any particular series and except as provided in Section 3 of Article VI of said Indenture) by an Indenture, dated as of October 1, 1924, duly executed by the Company to Bankers Trust Company, a corporation of the State of New York, as Trustee, to which Indenture and all indentures supplemental thereto (including the Supplemental Indenture dated as of February 15, 1990) reference is hereby made for a description of the properties and franchises mortgaged and conveyed, the nature and extent of the security, the terms and conditions upon which the bonds are issued and under which additional bonds may be issued, and the rights of the holders of the bonds and of the Trustee in respect of such security (which Indenture and all indentures supplemental thereto, including the Supplemental Indenture dated as of February 15, 1990, are hereinafter collectively called the "Indenture"). As provided in the Indenture, said bonds may be for various principal sums and are issuable in series, which may mature at different times, may bear interest at different rates and may otherwise vary as in said Indenture provided. With the consent of the Company and to the extent permitted by and as provided in the Indenture, the rights and obligations of the Company and of the holders of the bonds and the terms and provisions of the Indenture, or of any indenture supplemental thereto, may be modified or altered in certain respects by affirmative vote of at least eighty-five percent (85%) in principal amount of the bonds then outstanding, and, if the rights of one or more, but less than all, series of bonds then outstanding are to be affected by the action proposed to be taken, then also by affirmative vote of at least eighty-five percent (85%) in principal amount of the series of bonds so to be affected (excluding in every instance bonds disqualified from voting by reason of the Company's interest therein as specified in the Indenture); provided, however, that, without the consent of the holder hereof, no such modification or alteration shall, among other things, affect the terms of payment of the principal of, or the interest on, this bond, which in those respects is unconditional. The holders of the bonds of 1990 Series F, by their acceptance of and holding thereof, consent and agree that bonds of any series may be issued which mature on a date or dates later than October 1, 2024 and also consent to the deletion from the first paragraph of Section 5 of Article II of the Indenture of the phrase "but in no event later than October 1, 2024,". Such holders further agree that (a) such consent shall, for all purposes of Article XV of the Indenture and without further action on the part of such holders, be deemed the affirmative vote of such holders at any meeting called pursuant to said Article XV for the purpose of approving such deletion, and (b) such deletion shall become effective at such time as not less than eighty-five percent (85%) in principal amount of bonds outstanding under the Indenture shall have consented thereto substantially in the manner set forth in Section 3 of Part I of the Supplemental Indenture dated as of February 15, 1990, or in writing, or by affirmative vote cast at a meeting called pursuant to said Article XV, or by any combination thereof. |
This bond is redeemable on giving notice of such redemption by first class mail, postage prepaid, by or on behalf of the Company at least thirty (30) but not more than ninety (90) days prior to the date fixed for redemption to the registered holder of this bond at his last address appearing on the register thereof, in the manner and upon the terms provided in the Indenture, (i) on March 31 in each year, commencing [March 31, ], through the operation of the sinking fund for bonds of 1990 Series F at 100% of the principal amount hereof, (ii) at the election of the Company on any date prior to maturity, commencing March 31 of the eleventh (11th) calendar year subsequent to initial issuance, as a whole, or in part, from time to time, at par plus in each case accrued interest to the date fixed for redemption if such redemption does not utilize, directly or indirectly, the proceeds of and is not in anticipation of any refunding operation involving borrowing at an interest cost to the Company, computed in accordance with generally accepted financial practice, of less than 8.357% per annum, and (iii) at the election of the Company on any date prior to maturity, commencing March 31 of the eleventh (11th) calendar year subsequent to initial issuance, as a whole or in part, from time to time, at the following redemption prices (expressed as percentages of the principal amount hereof) plus in each case (whether through operation of the sinking fund or otherwise) accrued interest to the date fixed for redemption: |
IF REDEEMED DURING 12 MONTH PERIOD ENDING REDEMPTION MARCH 31, PRICE --------------- ---------- Year 11........................................... 102.50% Year 12........................................... 102.00 Year 13........................................... 101.50 Year 14........................................... 101.00 Year 15........................................... 100.50 Thereafter........................................ 100.00 |
The Company will deposit with the Trustee as and for a sinking fund for the bonds of Series F prior to each March 31, commencing [ ], an amount sufficient to redeem $3,420,000 principal amount of bonds of 1990 Series F, less the amount of any credit against any such payment taken by the Company for bonds of 1990 Series F delivered to the Trustee or redeemed by the Company otherwise than through the sinking fund. Under the Indenture, funds may be deposited with the Trustee (which shall have become available for payment), in advance of the redemption date of any of the bonds of 1990 Series F (or portions thereof), in trust for the redemption of such bonds (or portions thereof) and the interest due or to become due thereon, and thereupon all obligations of the Company in respect of such bonds (or portions thereof) so to be redeemed and such interest shall cease and be discharged, and the holders thereof shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or with respect to such bonds and interest. In case an event of default, as defined in the Indenture, shall occur, the principal of all the bonds issued thereunder may become or be declared due and payable, in the manner, with the effect and subject to the conditions provided in said Indenture. |
This bond is transferable by the registered holder hereof, in person or by his attorney duly authorized in writing, on the books of the Company kept at its office or agency in the Borough of Manhattan, The City and State of New York, upon surrender and cancellation of this bond, and thereupon, a new registered bond or bonds of the same series of authorized denominations for a like aggregate principal amount will be issued to the transferee or transferees in exchange herefor, and this bond with others in like form may in like manner be exchanged for one or more new registered bonds of the same series of other authorized denominations, but of the same aggregate principal amount, all as provided and upon the terms and conditions set forth in the Indenture, and upon payment, in any event, of the charges prescribed in the Indenture. No recourse shall be had for the payment of the principal of or the interest on this bond, or for any claim based hereon or otherwise in respect hereof or of the Indenture, or of any indenture supplemental thereto, against any incorporator, or against any past, present or future stockholder, director or officer, as such, of the Company, or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether for amounts unpaid on stock subscriptions or by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise howsoever; all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released by every holder or owner hereof, as more fully provided in the Indenture. [FORM OF TRUSTEE'S CERTIFICATE] FORM OF This bond is one of the bonds, of the series designated TRUSTEE'S therein, described in the within-mentioned Indenture. CERTIFICATE. |
BANKERS TRUST COMPANY,
as Trustee
By
Authorized Officer
PART VII. RECORDING AND FILING DATA RECORDING AND The Original Indenture and indentures supplemental FILING OF ORIGINAL thereto have been recorded and/or filed and Certificates of INDENTURE. Provision for Payment have been recorded as hereinafter set forth. The Original Indenture has been recorded as a real estate mortgage and filed as a chattel mortgage in the offices of the respective Registers of Deeds of certain counties in the State of Michigan as set forth in the Supplemental Indenture dated as of September 1, 1947, has been recorded as a real estate mortgage in the office of the Register of Deeds of Genesee County, Michigan as set forth in the Supplemental Indenture dated as of May 1, 1974, has been filed in the Office of the Secretary of State of Michigan on November 16, 1951 and has been filed and recorded in the office of the Interstate Commerce Commission on December 8, 1969. RECORDING AND Pursuant to the terms and provisions of the Original FILING OF Indenture, indentures supplemental thereto heretofore SUPPLEMENTAL entered into have been recorded as a real estate mortgage INDENTURES. and/or filed as a chattel mortgage or as a financing statement in the offices of the respective Registers of Deeds of certain counties in the State of Michigan, the Office of the Scretary of State of Michigan and the Office of the Interstate Commerce Commission, as set forth in supplemental indentures as follows: |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- June 1, 1925(a)(b)................ Series B Bonds February 1, 1940 August 1, 1927(a)(b).............. Series C Bonds February 1, 1940 February 1, 1931(a)(b)............ Series D Bonds February 1, 1940 June 1, 1931(a)(b)................ Subject Properties February 1, 1940 October 1, 1932(a)(b)............. Series E Bonds February 1, 1940 September 25, 1935(a)(b).......... Series F Bonds February 1, 1940 September 1, 1936(a)(b)........... Series G Bonds February 1, 1940 November 1, 1936(a)(b)............ Subject Properties February 1, 1940 February 1, 1940(a)(b)............ Subject Properties September 1, 1947 December 1, 1940(a)(b)............ Series H Bonds and September 1, 1947 Additional Provisions September 1, 1947(a)(b)(c)........ Series I Bonds, November 15, 1951 Subject Properties and Additional Provisions March 1, 1950(a)(b)(c)............ Series J Bonds November 15, 1951 and Additional Provisions November 15, 1951(a)(b)(c)........ Series K Bonds January 15, 1953 Additional Provisions and Subject Properties January 15, 1953(a)(b)............ Series L Bonds May 1, 1953 May 1, 1953(a).................... Series M Bonds March 15, 1954 and Subject Properties March 15, 1954(a)(c).............. Series N Bonds May 15, 1955 and Subject Properties May 15, 1955(a)(c)................ Series O Bonds August 15, 1957 and Subject Properties August 15, 1957(a)(c)............. Series P Bonds June 1, 1959 Additional Provisions and Subject Properties June 1, 1959(a)(c)................ Series Q Bonds December 1, 1966 and Subject Properties |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- December 1, 1966(a)(c)............ Series R Bonds October 1, 1968 Additional Provisions and Subject Properties October 1, 1968(a)(c)............. Series S Bonds December 1, 1969 and Subject Properties December 1, 1969(a)(c)............ Series T Bonds July 1, 1970 and Subject Properties July 1, 1970(c)................... Series U Bonds December 15, 1970 and Subject Properties December 15, 1970(c).............. Series V and June 15, 1971 Series W Bonds June 15, 1971(c).................. Series X Bonds November 15, 1971 and Subject Properties November 15, 1971(c).............. Series Y Bonds January 15, 1973 and Subject Properties January 15, 1973(c)............... Series Z Bonds May 1, 1974 and Subject Properties May 1, 1974....................... Series AA Bonds October 1, 1974 and Subject Properties October 1, 1974................... Series BB Bonds January 15, 1975 and Subject Properties January 15, 1975.................. Series CC Bonds November 1, 1975 and Subject Properties November 1, 1975.................. Series DDP Nos. 1-9 Bonds December 15, 1975 and Subject Properties December 15, 1975................. Series EE Bonds February 1, 1976 and Subject Properties February 1, 1976.................. Series FFR Nos. 1-13 Bonds June 15, 1976 June 15, 1976..................... Series GGP Nos. 1-7 Bonds July 15, 1976 and Subject Properties July 15, 1976..................... Series HH Bonds February 15, 1977 and Subject Properties February 15, 1977................. Series MMP Bonds and Subject March 1, 1977 Properties March 1, 1977..................... Series IIP Nos. 1-7 Bonds, June 15, 1977 Series JJP Nos. 1-7 Bonds, Series KKP Nos. 1-7 Bonds and Series LLP Nos. 1-7 Bonds June 15, 1977..................... Series FFR No. 14 Bonds and July 1, 1977 Subject Properties July 1, 1977...................... Series NNP Nos. 1-7 Bonds October 1, 1977 and Subject Properties October 1, 1977................... Series GGP Nos. 8-22 Bonds June 1, 1978 and Series OOP Nos. 1-17 Bonds and Subject Properties |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- June 1, 1978...................... Series PP Bonds, October 15, 1978 Series QQP Nos. 1-9 Bonds and Subject Properties October 15, 1978.................. Series RR Bonds March 15, 1979 and Subject Properties March 15, 1979.................... Series SS Bonds July 1, 1979 and Subject Properties July 1, 1979...................... Series IIP Nos. 8-22 Bonds, September 1, 1979 Series NNP Nos. 8-21 Bonds and Series TTP Nos. 1-15 Bonds and Subject Properties September 1, 1979................. Series JJP No. 8 Bonds, September 15, 1979 Series KKP No. 8 Bonds, Series LLP Nos. 8-15 Bonds, Series MMP No. 2 Bonds and Series OOP No. 18 Bonds and Subject Properties September 15, 1979................ Series UU Bonds January 1, 1980 January 1, 1980................... 1980 Series A Bonds and April 1, 1980 Subject Properties April 1, 1980..................... 1980 Series B Bonds August 15, 1980 August 15, 1980................... Series QQP Nos. 10-19 Bonds, August 1, 1981 1980 Series CP Nos. 1-12 Bonds and 1980 Series DP No. 1-11 Bonds and Subject Properties August 1, 1981.................... 1980 Series CP Nos. 13-25 November 1, 1981 Bonds and Subject Properties November 1, 1981.................. 1981 Series AP Nos. 1-12 June 30, 1982 Bonds June 30, 1982..................... Article XIV Reconfirmation August 15, 1982 August 15, 1982................... 1981 Series AP Nos. 13-14 June 1, 1983 and Subject Properties June 1, 1983...................... 1981 Series AP Nos. 15-16 October 1, 1984 and Subject Properties October 1, 1984................... 1984 Series AP and 1984 May 1, 1985 Series BP Bonds and Subject Properties May 1, 1985....................... 1985 Series A Bonds May 15, 1985 May 15, 1985...................... 1985 Series B Bonds and October 15, 1985 Subject Properties October 15, 1985.................. Series KKP No. 9 Bonds and April 1, 1986 Subject Properties |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- April 1, 1986..................... 1986 Series A and Subject August 15, 1986 Properties August 15, 1986................... 1986 Series B and Subject November 30, 1986 Properties November 30, 1986................. 1986 Series C Janaury 31, 1987 January 31, 1987.................. 1987 Series A April 1, 1987 April 1, 1987..................... 1987 Series B and 1987 August 15, 1987 Series C August 15, 1987................... 1987 Series D and 1987 November 30, 1987 Series E and Subject Properties November 30, 1987................. 1987 Series F June 15, 1989 June 15, 1989..................... 1989 Series A July 15, 1989 July 15, 1989..................... Series KKP No. 10 December 1, 1989 |
(b) See Supplemental Indenture dated as of May 1, 1953 for Secretary of State of Michigan filing information.
(c) See Supplemental Indenture dated as of May 1, 1974 for County of Genesee, Michigan recording and filing information.
Further, pursuant to the terms and provisions of the Original Indenture, a Supplemental Indenture dated as of December 1, 1989 providing for the terms of bonds to be issued thereunder of Series KKP No. 11 and 1989 Series BP has heretofore been entered into between the Company and the Trustee and has been filed in the Office of the Secretary of State of Michigan as a financing statement on December 19, 1989 (Filing No. 99782), has been filed and recorded in the Office of the Interstate Commerce Commission (Recordation No. 5485-000), and has been recorded as a real estate mortgage in the offices of the respective Register of Deeds of certain counties in the State of Michigan, as follows: |
LIBER OF MORTGAGES OR COUNTY COUNTY RECORDED RECORDS PAGE ------ -------- --------- ---- Genesee.................... December 19, 1989 2548 1-29 Huron...................... December 19, 1989 533 702-730 Ingham..................... December 19, 1989 1793 766-794 Lapeer..................... December 19, 1989 676 970-998 Lenawee.................... December 19, 1989 1113 98-126 Livingston................. December 19, 1989 1382 437-465 Macomb..................... December 19, 1989 04784 792-820 Mason...................... December 19, 1989 387 516-544 Monroe..................... December 19, 1989 1103 0100-0128 Oakland.................... December 19, 1989 11194 511-539 Sanilac.................... December 19, 1989 407 685-713 St. Clair.................. December 19, 1989 946 919-947 Tuscola.................... December 19, 1989 598 863-891 Washtenaw.................. December 19, 1989 2371 834-862 Wayne...................... December 19, 1989 24466 89-837 |
RECORDING OF All the bonds of Series A which were issued under the CERTIFICATES Original Indenture dated as of October 1, 1924, and of OF PROVISION Series B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, W, FOR PAYMENT. BB, CC, DDP Nos. 1-9, FFR Nos. 1-11, GGP Nos. 1-6 and 8-15, IIP Nos. 1-6 and 8-13, JJP Nos. 1-6, KKP Nos. 1-6, LLP Nos. 1-6 and 8-13, NNP Nos. 1-6 and 8-13, OOP Nos. 1-8, QQP Nos. 1-7 and 10-14 and TTP Nos. 1-6, 1980 Series A, 1980 Series CP Nos. 1-5 and 13-16, 1980 Series DP Nos. 1-5 and 1981 Series AP No. 1-4 which were issued under Supplemental Indentures dated as of, respectively, June 1, 1925, August 1, 1927, February 1, 1931, October 1, 1932, September 25, 1935, September 1, 1936, December 1, 1940, September 1, 1947, November 15, 1951, January 15, 1953, May 1, 1953, March 15, 1954, May 15, 1955, August 15, 1957, December 15, 1970, October 1, 1974, January 15, 1975, November 1, 1975, February 1, 1976, June 15, 1976, October 1, 1977, March 1, 1977, July 1, 1979, March 1, 1977, March 1, 1977, March 1, 1977, September 1, 1979, July 1, 1977, July 1, 1979, October 1, 1977, June 1, 1978, October 1, 1977, July 1, 1979, January 1, 1980, August 15, 1980 and November 1, 1981 have matured or have been called for redemption and funds sufficient for such payment or redemption have been irrevocably deposited with the Trustee for that purpose; and Certificates of Provision for Payment have been recorded in the offices of the respective Registers of Deeds of certain counties in the State of Michigan, with respect to all bonds of Series A, B, C, D, E, F, G, H, K, L, M, O, W, BB, CC, DDP Nos. 1 and 2, FFR Nos. 1-3, GGP Nos. 1 and 2, IIP No. 1, JJP No. 1, KKP No. 1, LLP No. 1 and GGP No. 8. PART VIII. THE TRUSTEE. TERMS AND The Trustee hereby accepts the trust hereby declared and CONDITIONS OF provided, and agrees to perform the same upon the terms and ACCEPTANCE OF conditions in the Original Indenture, as amended to date and TRUST BY TRUSTEE. as supplemented by this Supplemental Indenture, and in this Supplemental Indenture set forth, and upon the following terms and conditions: The Trustee shall not be responsible in any manner whatsoever for and in respect of the validity or sufficiency of this Supplemental Indenture or the due execution hereof by the Company or for or in respect of the recitals contained herein, all of which recitals are made by the Company solely. |
PART IX. MISCELLANEOUS. EXECUTION IN This Supplemental Indenture may be simultaneously COUNTERPARTS. executed in any number of counterparts, each of which when so executed shall be deemed to be an original; but such counterparts shall together constitute but one and the same instrument. TESTIMONIUM. IN WITNESS WHEREOF, The Detroit Edison Company and Bankers Trust Company have caused these presents to be signed in their respective corporate names by their respective Chairmen of the Board, Presidents, Vice Presidents, Assistant Vice Presidents or Treasurers and impressed with their respective corporate seals, attested by their respective Secretaries or Assistant Secretaries, all as of the day and year first above written. |
THE DETROIT EDISON COMPANY, (Corporate Seal) By /s/ L. L. LOOMANS L. L. Loomans Vice President and Treasurer EXECUTION. Attest: /s/ SUSAN M. BEALE Susan M. Beale Secretary Signed, sealed and delivered by THE DETROIT EDISON COMPANY, in the presence of /s/ ELAINE M. GODFREY Elaine M. Godfrey /s/ BETTY M. HANSEN Betty M. Hansen (Corporate Seal) BANKERS TRUST COMPANY, By /s/ BARBARA A. JOINER Barbara A. Joiner Vice President Attest: /s/ SANDRA SHIRLEY Sandra Shirley Assistant Secretary Signed, sealed and delivered by BANKERS TRUST COMPANY, in the presence of /s/ ERIC M. HAWNER Eric M. Hawner /s/ Y. PATRICIA BLUE Y. Patricia Blue |
STATE OF MICHIGAN SS.: COUNTY OF WAYNE ACKNOWLEDGMENT On this 14th day of February, 1990, before me, the OF EXECUTION subscriber, a Notary Public within and for the County of BY COMPANY. Wayne, in the State of Michigan, personally appeared L. L. Loomans , to me personally known, who, being by me duly sworn, did say that his business address is 2000 Second Avenue, Detroit, Michigan 48226 and he is the Vice President and Treasurer of THE DETROIT EDISON COMPANY, one of the corporations described in and which executed the foregoing instrument; that he knows the corporate seal of the said corporation and that the seal affixed to said instrument is the corporate seal of said corporation; and that said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors and that he subscribed his name thereto by like authority; and said L. L. Loomans, acknowledged said instrument to be the free act and deed of said corporation. |
/s/ JANET A. SCULLEN (Notarial Seal) Janet A. Scullen, Notary Public Macomb County, MI (Acting in Wayne County) My Commission Expires March 30, 1993 STATE OF NEW YORK SS.: COUNTY OF NEW YORK |
ACKNOWLEDGMENT On this 12th day of February, 1990, before me, the OF EXECUTION subscriber, a Notary Public within and for the County of New BY TRUSTEE. York, in the State of New York, personally appeared Barbara A. Joiner, to me personally known, who, being by me duly sworn, did say that her business address is Four Albany Street, New York, New York 10015, and she is Vice President of BANKERS TRUST COMPANY, one of the corporations described in and which executed the foregoing instrument; that she knows the corporate seal of the said corporation and that the seal affixed to said instrument is the corporate seal of said corporation; and that said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors and that she subscribed her name thereto by like authority; and said Barbara A. Joiner acknowledged said instrument to be the free act and deed of said corporation. |
(Notarial Seal) /s/ DESIREE MARSHALL Desiree Marshall Notary Public, State of New York No. 24-4885294 Qualified in Kings County Certificate filed in New York County Commission Expires February 17, 1991 |
STATE OF MICHIGAN SS.: COUNTY OF WAYNE |
AFFIDAVIT AS TO L. L. Loomans, being duly sworn, says: that he is the Vice CONSIDERATION President and Treasurer of THE DETROIT EDISON COMPANY, the AND GOOD FAITH. Mortgagor named in the foregoing instrument, and that he has knowledge of the facts in regard to the making of said instrument and of the consideration therefor; that the consideration for said instrument was and is actual and adequate, and that the same was given in good faith for the purposes in such instrument set forth. |
/s/ L. L. LOOMANS L. L. Loomans Sworn to before me this 14th day of February, 1990 /s/ JANET A. SCULLEN Janet A. Scullen, Notary Public Macomb County, MI (Acting in Wayne County) My Commission Expires March 30, 1993 (Notarial Seal) This instrument was drafted by Frances B. Rohlman, Esq., 2000 Second Avenue, Detroit, Michigan 48226 |
EXHIBIT 4-213
CONFORMED COPY
THE DETROIT EDISON COMPANY
(2000 Second Avenue,
Detroit, Michigan 48226)
TO
BANKERS TRUST COMPANY
(Four Albany Street,
New York, New York 10015)
AS TRUSTEE
INDENTURE
Dated as of November 30, 1992
SUPPLEMENTAL TO MORTGAGE AND DEED OF TRUST
DATED AS OF OCTOBER 1, 1924
PROVIDING FOR
(A) GENERAL AND REFUNDING MORTGAGE BONDS, 1992 SERIES E, DUE DECEMBER 15, 1999,
(B) GENERAL AND REFUNDING MORTGAGE BONDS, 1993 SERIES B, DUE DECEMBER 15, 1999
AND
(C) RECORDING AND FILING DATA
TABLE OF CONTENTS*
PAGE ---- PARTIES..................................................... 1 RECITALS Original Indenture and Supplementals...................... 1 Issue of Bonds under Indenture............................ 1 Bonds heretofore issued................................... 1 Reason for creation of new series......................... 4 Bonds to be 1992 Series E and 1993 Series B............... 4 Further assurance......................................... 4 Authorization of Supplemental Indenture................... 5 Consideration for Supplemental Indenture.................. 5 PART I. CREATION OF TWO HUNDRED NINETY-NINTH SERIES OF BONDS 1992 SERIES E Sec. 1. Terms of Bonds of 1992 Series E..................... 5 Sec. 2. Optional Redemption of Bonds of 1992 Series E....... 6 Direct Payments..................................... 7 Exchange and transfer............................... 8 Sec. 3. Consent............................................. 8 Sec. 4. Form of Bonds of 1992 Series E...................... 9 Form of Trustee's Certificate....................... 14 PART II. CREATION OF THREE HUNDRETH SERIES OF BONDS 1993 SERIES B Sec. 1. Terms of Bonds of 1993 Series B..................... 14 Sec. 2. Optional Redemption of Bonds of 1993 Series B....... 15 Direct Payments..................................... 17 Exchange and transfer............................... 17 Sec. 3. Consent............................................. 17 Sec. 4. Form of Bonds of 1993 Series B...................... 18 Form of Trustee's Certificate....................... 22 PART III. RECORDING AND FILING DATA Recording and filing of Original Indenture.................. 23 Recording and filing of Supplemental Indentures............. 24 Recording of Certificates of Provision for Payment.......... 28 PART IV. THE TRUSTEE Terms and conditions of acceptance of trust by Trustee...... 29 PART V. MISCELLANEOUS Confirmation of Section 318(c) of Trust Indenture Act....... 29 Execution in Counterparts................................... 29 Testimonium................................................. 30 Execution................................................... 30 Acknowledgements............................................ 31 Affidavit as to consideration and good faith................ 32 |
PARTIES. SUPPLEMENTAL INDENTURE, dated as of the thirtieth day of November, in the year one thousand nine hundred and ninety-two, between THE DETROIT EDISON COMPANY, a corporation organized and existing under the laws of the State of Michigan and a transmitting utility (hereinafter called the "Company"), party of the first part, and BANKERS TRUST COMPANY, a corporation organized and existing under the laws of the State of New York, having its corporate trust office at Four Albany Street, in the Borough of Manhattan, The City and State of New York, as Trustee under the Mortgage and Deed of Trust hereinafter mentioned (hereinafter called the "Trustee"), party of the second part. ORIGINAL WHEREAS, the Company has heretofore executed and delivered INDENTURE AND its Mortgage and Deed of Trust (hereinafter referred to as SUPPLEMENTALS. the "Original Indenture"), dated as of October 1, 1924, to the Trustee, for the security of all bonds of the Company outstanding thereunder, and pursuant to the terms and provisions of the Original Indenture, indentures dated as of, respectively, June 1, 1925, August 1, 1927, February 1, 1931, June 1, 1931, October 1, 1932, September 25, 1935, September 1, 1936, November 1, 1936, February 1, 1940, December 1, 1940, September 1, 1947, March 1, 1950, November 15, 1951, January 15, 1953, May 1, 1953, March 15, 1954, May 15, 1955, August 15, 1957, June 1, 1959, December 1, 1966, October 1, 1968, December 1, 1969, July 1, 1970, December 15, 1970, June 15, 1971, November 15, 1971, January 15, 1973, May 1, 1974, October 1, 1974, January 15, 1975, November 1, 1975, December 15, 1975, February 1, 1976, June 15, 1976, July 15, 1976, February 15, 1977, March 1, 1977, June 15, 1977, July 1, 1977, October 1, 1977, June 1, 1978, October 15, 1978, March 15, 1979, July 1, 1979, September 1, 1979, September 15, 1979, January 1, 1980, April 1, 1980, August 15, 1980, August 1, 1981, November 1, 1981, June 30, 1982, August 15, 1982, June 1, 1983, October 1, 1984, May 1, 1985, May 15, 1985, October 15, 1985, April 1, 1986, August 15, 1986, November 30, 1986, January 31, 1987, April 1, 1987, August 15, 1987, November 30, 1987, June 15, 1989, July 15, 1989, December 1, 1989, February 15, 1990, November 1, 1990, April 1, 1991, May 1, 1991, May 15, 1991, September 1, 1991, November 1, 1991, January 15, 1992, February 29, 1992, April 15, 1992, July 15, 1992 and July 31, 1992 supplemental to the Original Indenture, have heretofore been entered into between the Company and the Trustee (the Original Indenture and all indentures supplemental thereto together being hereinafter sometimes referred to as the "Indenture"); and ISSUE OF WHEREAS, the Indenture provides that said bonds shall be BONDS UNDER issuable in one or more series, and makes provision that the INDENTURE. rates of interest and dates for the payment thereof, the date of maturity or dates of maturity, if of serial maturity, the terms and rates of optional redemption (if redeemable), the forms of registered bonds without coupons of any series and any other provisions and agreements in respect thereof, in the Indenture provided and permitted, as the Board of Directors may determine, may be expressed in a supplemental indenture to be made by the Company to the Trustee thereunder; and BONDS HERETOFORE WHEREAS, bonds in the principal amount of Six billion three ISSUED. hundred fifty-six million five hundred ninety-seven thousand dollars ($6,356,597,000) have heretofore been issued under the Indenture as follows, viz: |
(1) Bonds of Series A -- Principal Amount $26,016,000, (2) Bonds of Series B -- Principal Amount $23,000,000, (3) Bonds of Series C -- Principal Amount $20,000,000, (4) Bonds of Series D -- Principal Amount $50,000,000, (5) Bonds of Series E -- Principal Amount $15,000,000, (6) Bonds of Series F -- Principal Amount $49,000,000, (7) Bonds of Series G -- Principal Amount $35,000,000, (8) Bonds of Series H -- Principal Amount $50,000,000, (9) Bonds of Series I -- Principal Amount $60,000,000, (10) Bonds of Series J -- Principal Amount $35,000,000, (11) Bonds of Series K -- Principal Amount $40,000,000, (12) Bonds of Series L -- Principal Amount $24,000,000, |
(13) Bonds of Series M -- Principal Amount $40,000,000, (14) Bonds of Series N -- Principal Amount $40,000,000, (15) Bonds of Series O -- Principal Amount $60,000,000, (16) Bonds of Series P -- Principal Amount $70,000,000, (17) Bonds of Series Q -- Principal Amount $40,000,000, (18) Bonds of Series W -- Principal Amount $50,000,000, (19) Bonds of Series AA -- Principal Amount $100,000,000, (20) Bonds of Series BB -- Principal Amount $50,000,000, (21) Bonds of Series CC -- Principal Amount $50,000,000, (22) Bonds of Series UU -- Principal Amount $100,000,000, (23-31) Bonds of Series DDP Nos. 1-9 -- Principal Amount $14,305,000, (32-45) Bonds of Series FFR Nos. 1-14 -- Principal Amount $45,600,000, (46-67) Bonds of Series GGP Nos. 1-22 -- Principal Amount $42,300,000, (68) Bonds of Series HH -- Principal Amount $50,000,000, (69-90) Bonds of Series IIP Nos. 1-22 -- Principal Amount $3,750,000, (91-98) Bonds of Series JJP Nos. 1-8 -- Principal Amount $6,850,000, (99-106) Bonds of Series KKP Nos. 1-8 -- Principal Amount $14,890,000, (107-121) Bonds of Series LLP Nos. 1-15 -- Principal Amount $8,850,000, (122-142) Bonds of Series NNP Nos. 1-21 -- Principal Amount $47,950,000, (143-160) Bonds of Series OOP Nos. 1-18 -- Principal Amount $18,880,000, (161-177) Bonds of Series QQP Nos. 1-17 -- Principal Amount $12,780,000, (178-192) Bonds of Series TTP Nos. 1-15 -- Principal Amount $3,800,000, (193) Bonds of 1980 Series A -- Principal Amount $50,000,000, (194-218) Bonds of 1980 Series CP Nos. 1-25 -- Principal Amount $35,000,000, (219-229) Bonds of 1980 Series DP Nos. 1-11 -- Principal Amount $10,750,000, (230-243) Bonds of 1981 Series AP Nos. 1-14 -- Principal Amount $59,000,000, (244) Bonds of 1985 Series A -- Principal Amount $35,000,000, (245) Bonds of 1985 Series B -- Principal Amount $50,000,000, (246) Bonds of Series PP -- Principal Amount $70,000,000, (247) Bonds of Series RR -- Principal Amount $70,000,000, (248) Bonds of Series EE -- Principal Amount $50,000,000, (249-250) Bonds of Series MMP and MMP No. 2 -- Principal Amount $5,430,000, (251) Bonds of Series T -- Principal Amount $75,000,000, (252) Bonds of Series U -- Principal Amount $75,000,000, (253) Bonds of 1986 Series B -- Principal Amount $100,000,000, (254) Bonds of 1987 Series D -- Principal Amount $250,000,000, (255) Bonds of 1987 Series E -- Principal Amount $150,000,000, |
all of which have either been retired and cancelled, or no longer represent obligations of the Company, having been called for redemption and funds necessary to effect the payment, redemption and retirement thereof having been deposited with the Trustee as a special trust fund to be applied for such purpose; (256) Bonds of Series R in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof; (257) Bonds of Series S in the principal amount of One hundred fifty million dollars ($150,000,000), all of which are outstanding at the date hereof; (258) Bonds of Series V in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof; (259) Bonds of Series X in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof; (260) Bonds of Series Y in the principal amount of Sixty million dollars ($60,000,000), all of which are outstanding at the date hereof; (261) Bonds of Series Z in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof; |
(262-266) Bonds of Series KKP Nos. 9-13 in the principal amount of One hundred forty-four million two hundred ninety thousand dollars ($144,290,000), all of which are outstanding at the date hereof; (267-268) Bonds of Series QQP Nos. 18-19 in the principal amount of Eight hundred seventy thousand dollars ($870,000), all of which are outstanding at the date hereof; (269) Bonds of Series SS in the principal amount of One hundred fifty million dollars ($150,000,000), of which One hundred ten million dollars ($110,000,000) principal amount have heretofore been retired and Forty million dollars ($40,000,000) principal amount are outstanding at the date hereof; (270) Bonds of 1980 Series B in the principal amount of One hundred million dollars ($100,000,000), of which Seventy-three million one hundred fifty thousand dollars ($73,150,000) principal amount have heretofore been retired and Twenty-six million eight hundred fifty thousand dollars ($26,850,000) principal amount are outstanding at the date hereof; (271-272) Bonds of 1981 Series AP Nos. 15-16 in the principal amount of Sixty-five million dollars ($65,000,000), all of which are outstanding at the date hereof; (273) Bonds of 1984 Series AP in the principal amount of Two million four hundred thousand dollars ($2,400,000), all of which are outstanding at the date hereof; (274) Bonds of 1984 Series BP in the principal amount of Seven million seven hundred fifty thousand dollars ($7,750,000), all of which are outstanding at the date hereof; (275) Bonds of 1986 Series A in the principal amount of Two hundred million dollars ($200,000,000), all of which are outstanding at the date hereof; (276) Bonds of 1986 Series C in the principal amount of Two hundred million dollars ($200,000,000), all of which are outstanding at the date hereof; (277) Bonds of 1987 Series A in the principal amount of Three hundred million dollars ($300,000,000), all of which are outstanding at the date hereof; (278) Bonds of 1987 Series B in the principal amount of One hundred seventy-five million dollars ($175,000,000), all of which are outstanding at the date hereof; (279) Bonds of 1987 Series C in the principal amount of Two hundred twenty-five million dollars ($225,000,000), all of which are outstanding at the date hereof; (280) Bonds of 1987 Series F in the principal amount of Two hundred million dollars ($200,000,000), all of which are outstanding at the date hereof; (281) Bonds of 1989 Series A in the principal amount of Three hundred million dollars ($300,000,000), all of which are outstanding at the date hereof; (282) Bonds of 1989 Series BP in the principal amount of Sixty-six million five hundred sixty-five thousand dollars ($66,565,000), all of which are outstanding at the date hereof; (283) Bonds of 1990 Series A in the principal amount of One hundred ninety-four million six hundred forty-nine thousand dollars ($194,649,000) of which Eighteen million eight hundred thirty-seven thousand dollars ($18,837,000) principal amount have heretofore been retired and One hundred seventy-five million eight hundred twelve thousand dollars ($175,812,000) principal amount are outstanding at the date hereof; (284) Bonds of 1990 Series B in the principal amount of Two hundred fifty-six million nine hundred thirty-two thousand dollars ($256,932,000) of which Twenty-eight million five hundred forty-eight thousand dollars ($28,548,000) principal amount have heretofore been retired and Two hundred twenty-eight million three hundred eighty-four thousand dollars ($228,384,000) principal amount are outstanding at the date hereof; |
(285) Bonds of 1990 Series C in the principal amount of Eighty-five million four hundred seventy-five thousand dollars ($85,475,000) of which Ten million two hundred fifty-seven thousand dollars ($10,257,000) principal amount have heretofore been retired and Seventy-five million two hundred eighteen thousand dollars ($75,218,000) principal amount are outstanding at the date hereof; (286) Bonds of 1991 Series AP in the principal amount of Thirty-two million three hundred seventy-five thousand dollars ($32,375,000), all of which are outstanding at the date hereof; (287) Bonds of 1991 Series BP in the principal amount of Twenty-five million nine hundred ten thousand dollars ($25,910,000), all of which are outstanding at the date hereof; (288) Bonds of 1991 Series CP in the principal amount of Thirty-two million eight hundred thousand dollars ($32,800,000), all of which are outstanding at the date hereof; (289) Bonds of 1991 Series DP in the principal amount of Thirty-seven million six hundred thousand dollars ($37,600,000), all of which are outstanding at the date hereof; (290) Bonds of 1991 Series EP in the principal amount of Forty-one million four hundred eighty thousand dollars ($41,480,000), all of which are outstanding at the date hereof; (291) Bonds of 1991 Series FP in the principal amount of Ninety-eight million three hundred seventy-five thousand dollars ($98,375,000), all of which are outstanding at the date hereof; (292) Bonds of 1992 Series BP in the principal amount of Twenty million nine hundred seventy-five thousand dollars ($20,975,000), all of which are outstanding at the date hereof; (293) Bonds of 1992 Series AP in the principal amount of Sixty-six million dollars ($66,000,000), all of which are outstanding at the date hereof; (294) Bonds of 1992 Series D in the principal amount of Three hundred million dollars ($300,000,000), all of which are outstanding at the date hereof; and (295) Bonds of 1992 Series CP in the principal amount of Thirty-five million dollars ($35,000,000), all of which are outstanding at the date hereof; and, accordingly, of the bonds so issued, Three billion seven hundred thirty-three million six hundred fifty-four thousand dollars ($3,733,654,000) principal amount are outstanding at the date hereof; and |
REASON FOR WHEREAS, the Company desires to replace corporate funds CREATION OF utilized for certain refundings and for this purpose desires NEW SERIES. to issue and sell new series of bonds to be issued under the Indenture and to be authenticated and delivered pursuant to Section 8 of Article III of the Indenture; and BONDS TO BE WHEREAS, the Company desires by this Supplemental Indenture 1992 SERIES E AND 1993 to create such new series of bonds, to be designated SERIES B. "General and Refunding Mortgage Bonds, 1992 Series E" and "General and Refunding Mortgage Bonds, 1993 Series B"; and FURTHER WHEREAS, the Original Indenture, by its terms, includes in ASSURANCE. the property subject to the lien thereof all of the estates and properties, real, personal and mixed, rights, privileges and franchises of every nature and kind and wheresoever situate, then or thereafter owned or possessed by or belonging to the Company or to which it was then or at any time thereafter might be entitled in law or in equity (saving and excepting, however, the property therein specifically excepted or released from the lien thereof), and the Company therein covenanted that it would, upon reasonable request, execute and deliver such further instruments as may be necessary or proper for the better assuring and confirming unto the Trustee all or any part of the trust estate, whether then or thereafter owned or acquired by the Company (saving and excepting, however, property specifically excepted or released from the lien thereof); and |
AUTHORIZATION OF WHEREAS, the Company in the exercise of the powers and authority conferred upon and reserved to SUPPLEMENTAL it under and by virtue of the provisions of the Indenture, and pursuant to resolutions of its INDENTURE. Board of Directors has duly resolved and determined to make, execute and deliver to the Trustee a supplemental indenture in the form hereof for the purposes herein provided; and WHEREAS, all conditions and requirements necessary to make this Supplemental Indenture a valid and legally binding instrument in accordance with its terms have been done, performed and fulfilled, and the execution and delivery hereof have been in all respects duly authorized; CONSIDERATION FOR NOW, THEREFORE, THIS INDENTURE WITNESSETH: That The Detroit Edison Company, in consideration of SUPPLEMENTAL the premises and of the covenants contained in the Indenture and of the sum of One Dollar INDENTURE. ($1.00) and other good and valuable consideration to it duly paid by the Trustee at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, hereby covenants and agrees to and with the Trustee and its successors in the trusts under the Original Indenture and in said indentures supplemental thereto as follows: |
PART I. CREATION OF TWO HUNDRED NINETY-NINTH SERIES OF BONDS. GENERAL AND REFUNDING MORTGAGE BONDS, 1992 SERIES E TERMS OF BONDS SECTION 1. The Company hereby creates the Two hundred OF 1992 SERIES E. ninety-ninth series of bonds to be issued under and secured by the Original Indenture as amended to date and as further amended by this Supplemental Indenture, to be designated, and to be distinguished from the bonds of all other series, by the title "General and Refunding Mortgage Bonds, 1992 Series E" (elsewhere herein referred to as the "bonds of 1992 Series E"). The aggregate principal amount of bonds of 1992 Series E shall be limited to Fifty million dollars ($50,000,000), except as provided in Sections 7 and 13 of Article II of the Original Indenture with respect to exchanges and replacements of bonds. The bonds of 1992 Series E shall mature on December 15, 1999 and shall be issued as registered bonds without coupons in minimum denominations of $500,000 and integral multiples of $1,000 in excess thereof, and shall bear interest, payable semi-annually on June 15 and December 15 of each year (commencing on June 15, 1993), at the rate of 6.83% (computed on the basis of a 360-day year having twelve 30-day months) until the principal shall have become due and payable, and thereafter until the Company's obligation with respect to the payment of said principal shall have been discharged as provided in the Indenture. Except as otherwise specifically provided in this Supplemental Indenture, the principal of and interest on the bonds of 1992 Series E shall be payable at the office or agency of the Company in the Borough of Manhattan, The City of New York, The State of New York in any coin or currency of the United States of America which at the time of payment is legal tender for public and private debts. The interest on bonds of 1992 Series E, whether in temporary or definitive form, shall be payable without presentation of such bonds and (subject to the provisions of this Section 1) only to or upon the written order of the registered holders thereof. Each bond of 1992 Series E shall be dated the date of its authentication and interest shall be payable on the principal represented thereby from the June 15 or December 15 next preceding the date thereof to which interest has been paid on bonds of 1992 Series E, unless the bond is authenticated on a date to which interest has been paid, in which case interest shall be payable from the date of authentication, or unless the date of authentication is prior to June 15, 1993, in which case interest shall be payable from the date of authentication of the bond of 1992 Series E originally evidencing the debt represented thereby. |
The bonds of 1992 Series E in definitive form shall be, at the election of the Company, fully engraved or shall be lithographed or printed in authorized denominations as aforesaid and numbered 1 and upwards (with such further designation as may be appropriate and desirable to indicate by such designation the form, series and denomination of bonds of 1992 Series E). Until bonds of 1992 Series E in definitive form are ready for delivery, the Company may execute, and upon its request in writing the Trustee shall authenticate and deliver in lieu thereof, bonds of 1992 Series E in temporary form, as provided in Section 10 of Article II of the Indenture. Temporary bonds of 1992 Series E, if any, may be printed and may be issued in authorized denominations in substantially the form of definitive bonds of 1992 Series E, but without a recital of redemption prices and with such omissions, insertions and variations as may be appropriate for temporary bonds, all as may be determined by the Company. Interest on any bond of 1992 Series E which is payable on any interest payment date and is punctually paid or duly provided for shall be paid to the person in whose name that bond, or any previous bond to the extent evidencing the same debt as that evidenced by that bond, is registered at the close of business on the regular record date for such interest, which regular record date shall be the first day of June or December as the case may be (whether or not a business day) next preceding such interest payment date. If the Company shall default in the payment of the interest due on any interest payment date on the principal represented by any bond of 1992 Series E, such defaulted interest shall forthwith cease to be payable to the registered holder of that bond on the relevant regular record date by virtue of his having been such holder, and such defaulted interest may be paid to the registered holder of that bond (or any bond or bonds of 1992 Series E issued upon transfer or exchange thereof) on the date of payment of such defaulted interest or, at the election of the Company, to the person in whose name that bond (or any bond or bonds of 1992 Series E issued upon transfer or exchange thereof) is registered on a subsequent record date established by notice given by mail by or on behalf of the Company to the holders of bonds of 1992 Series E not less than ten (10) days preceding such subsequent record date, which subsequent record date shall be at least five (5) days prior to the payment date of such defaulted interest. OPTIONAL SECTION 2. The bonds of 1992 Series E, together with the REDEMPTION OF bonds of 1993 Series B, shall be redeemable, in whole only, BONDS OF 1992 prior to stated maturity, at the election of the Company on SERIES E. any date prior to maturity, at a redemption price equal to the principal amount to be redeemed plus accrued interest, if any, to the date of redemption plus the Make-Whole Amount. "Make-Whole Amount" means, in connection with any optional redemption of the bonds, of 1992 Series E and 1993 Series B, the amount (but not less than zero) equal to the excess, if any, of A. the sum of the Present Values (as hereinafter defined) of (1) the principal amount being prepaid (assuming the principal being redeemed is payable upon maturity) and (2) the amount of interest which would have been payable on each interest payment date on the amount of such principal being prepaid (assuming the principal balance payable upon maturity and interest payments are paid when due), over B. the principal amount being prepaid. |
For purposes of this definition, "Present Value" shall be determined in accordance with generally accepted financial practice by discounting on a semiannual basis to the date of such prepayment at a discount rate equal to the sum of the applicable Treasury Yield plus 0.50%; and the "Treasury Yield" for such purpose shall be determined as of 10:00 A.M. New York City time on the fifth business day prior to the date of such prepayment by reference to the yields of those actively traded "On The Run" United States Treasury securities having a maturity equal to the then-remaining maturity of the Bonds of 1992 Series E and 1993 Series B being prepaid, provided that if such maturity is not equal to the maturity of an actively traded "On The Run" United States Treasury security, such yield shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) imputed from the yields of those actively traded "On The Run" United States Treasury securities having maturities closest, before and after, to such remaining maturity as reported by the Telerate Access Service page 8003, or the equivalent pages provided by Telerate Systems Incorporated (or if such data for any reason ceases to be available through such Telerate Access Service, any publicly available source of similar market data). For purposes hereof, "On The Run" United Treasury securities refers to those United States Treasury securities of the appropriate maturity which are most recently auctioned prior to the fifth business day preceding the date of prepayment. The Make-Whole Amount shall be determined by the Company. The Company shall promptly furnish the holders of the bonds of 1992 Series E with its calculation of the Make-Whole Amount. A holder of the bonds of 1992 Series E shall promptly advise the Trustee if it disputes the Company's calculation of the Make-Whole Amount; and in such event, the Trustee shall conclusively determine the appropriate Make-Whole Amount in accordance with the terms hereof. The bonds of 1992 Series E shall be redeemable as aforesaid, except as otherwise provided herein, and as specified in Article IV of the Indenture upon giving notice of such redemption by first class mail, postage prepaid, by or on behalf of the Company at least thirty (30) days, but not more than ninety (90) days, prior to the date fixed for redemption to the registered holders of bonds of 1992 Series E so called for redemption at their last respective addresses appearing on the register thereof, but failure to mail such notice to the registered holders of any bonds of 1992 Series E designated for redemption shall not affect the validity of any such redemption of any other bonds of such series. Interest shall cease to accrue on any bonds of 1992 Series E so called for redemption from and after the date fixed for redemption if payment sufficient to redeem the bonds of 1992 Series E designated for redemption has been duly provided for. If the giving of the notice of redemption shall have been completed, or if provision satisfactory to the Trustee for the giving of such notice shall have been made, and if the Company shall have deposited with the Trustee in trust funds (which are available for payment to the holders of the bonds of 1992 Series E so to be redeemed) sufficient to redeem bonds of 1992 Series E in whole, on the date fixed for redemption, then all obligations of the Company in respect of such bonds so to be redeemed and interest due or to become due thereon shall cease and be discharged and the holders of such bonds of 1992 Series E shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or in respect of such bonds and interest. The bonds of 1992 Series E shall not be entitled to or subject to any sinking fund. DIRECT The Company may, subject to any provision of the Indenture which requires presentment of a bond PAYMENTS. upon the payment of the principal amount thereof in whole enter into a written agreement with any person who is or is to become the original holder, or an institutional investor holding at least $500,000 aggregate principal amount, of any of the bonds of 1992 Series E providing for the making of all payments on account of such bonds of 1992 Series E prior to final maturity directly to or for the account of such holder in the manner specified in or pursuant to such agreement, if there shall be filed with the Trustee an original or conformed copy of such agreement. |
EXCHANGE AND At the option of the registered holder, any bonds of 1992 Series E, upon surrender TRANSFER. thereof for cancellation at the office or agency of the Company in the Borough of Manhattan, The City of New York, The State of New York, together with a written instrument of transfer (if so required by the Company or by the Trustee) in form approved by the Company duly executed by the holder or by its duly authorized attorney, shall be exchangeable for a like aggregate principal amount of bonds of 1992 Series E of other authorized denominations, upon the terms and conditions specified herein and in Section 7 of Article II of the Indenture. Bonds of 1992 Series E shall be transferable at the office or agency of the Company in the Borough of Manhattan, The City of New York, The State of New York. The Company waives its rights under Section 7 of Article II of the Indenture not to make exchanges or transfers of bonds of 1992 Series E during any period of ten (10) days next preceding any interest payment date for such bonds. The Trustee agrees that an indemnity agreement in favor of the Company and the Trustee of any original holder of a bond of 1992 Series E, or of any institutional investor holding at least $500,000 unpaid principal amount of outstanding bonds of 1992 Series E, shall constitute sufficient indemnity (and security shall not be required) for the purposes of Section 13 of Article II of the Indenture in any case of destruction, loss, theft or mutilation of any such bonds of 1992 Series E. Bonds of 1992 Series E, in definitive and temporary form, may bear such legends as may be necessary to comply with any law or with any rules or regulations made pursuant thereto or with the rules or regulations of any stock exchange or to conform to usage with respect thereto. Notwithstanding the foregoing provisions in this Section 2, the Company shall not be required to make any transfers or exchanges of bonds of 1992 Series E for a period of fifteen (15) days next preceding any mailing of notice of redemption, and the Company shall not be required to make transfers or exchanges of the principal amount (or any portion thereof) of any bonds of 1992 Series E so called or designated for redemption. CONSENT. SECTION 3. The holders of the bonds of 1992 Series E, by their acceptance of and holding thereof, consent and agree that bonds of any series may be issued which mature on a date or dates later than October 1, 2024 and also consent to the deletion from the first paragraph of Section 5 of Article II of the Indenture of the phrase "but in no event later than October 1, 2024". Such holders further agree that (a) such consent shall, for all purposes of Article XV of the Indenture and without further action on the part of such holders, be deemed the affirmative vote of such holders at any meeting called pursuant to said Article XV for the purpose of approving such deletion, and (b) such deletion shall become effective at such time as not less than eighty-five per cent (85%) in principal amount of bonds outstanding under the Indenture shall have consented thereto substantially in the manner set forth in this Section 3, or in writing, or by affirmative vote cast at a meeting called pursuant to said Article XV, or by any combination thereof. |
FORM OF SECTION 4. The bonds of 1992 Series E and the form of Trustee's Certificate to be endorsed on BONDS OF such bonds shall be substantially in the following forms, respectively: 1992 SERIES E. [FORM OF BOND] THE DETROIT EDISON COMPANY GENERAL AND REFUNDING MORTGAGE BOND 1992 Series E, 6.83% due December 15, 1999 $ ________ No. ________ Unless and until this Bond is exchanged in whole or in part for certified Bonds registered in the names of the various beneficial holders hereof as then certified to the Trustee by The Depository Trust Company or its successor (the "Depositary"), this Bond may not be transferred except 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 or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. Unless this certificate is presented by an authorized representative of the Depositary to the issuer or its agent for registration of transfer, exchange or payment, and any certificate to be issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of the Depositary and any amount payable thereunder is made payable to Cede & Co. or such other name, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein. This Bond may be exchanged for certificated Bonds registered in the names of the various beneficial owners hereof only if (a) the Depositary is at any time unwilling or unable to continue as depositary and a successor depositary is not appointed by the issuer within 90 days, or (b) the issuer, the Trustee and the Depositary consent to such exchange. THE DETROIT EDISON COMPANY (herein called the "Company" or the "issuer"), a corporation of the State of Michigan, for value received, hereby promises to pay to or registered assigns, at its office or agency in the Borough of Manhattan, The City and State of New York, the principal sum of in lawful money of the United States of America on the fifteenth day of December, 1999, and to pay interest thereon at the rate specified in the title hereof, at such office or agency, in like lawful money, from the date hereof, and after the first interest payment on bonds of this Series has been made or otherwise provided for, from the most recent date to which such interest has been paid, semi-annually on the fifteenth day of June and December in each year (commencing on June 15, 1993), to the person in whose name this bond is registered at the close of business on the first day of the preceding June or December (subject to certain exceptions provided in the Indenture hereinafter mentioned), until the Company's obligation with respect to payment of said principal shall have been discharged, all as provided, to the extent and in the manner specified in such Indenture hereinafter mentioned on the reverse hereof and in the supplemental indenture pursuant to which this bond has been issued. This bond shall not be valid or become obligatory for any purpose until Bankers Trust Company, the Trustee under the Indenture hereinafter mentioned on the reverse hereof, or its successor thereunder, shall have signed the form of certificate endorsed hereon. |
This bond is one of an authorized issue of bonds of the Company, unlimited as to amount except as provided in the Indenture hereinafter mentioned or any indentures supplemental thereto, and is one of a series of said bonds known as General and Refunding Mortgage Bonds, 1992 Series E (elsewhere herein referred to as the "bonds of 1992 Series E"), limited to an aggregate principal amount of $50,000,000, except as otherwise provided in the Indenture hereinafter mentioned. This bond and all other bonds of said series are issued and to be issued under, and are all equally and ratably secured (except insofar as any sinking, amortization, improvement or analogous fund, established in accordance with the provisions of the Indenture hereinafter mentioned, may afford additional security for the bonds of any particular series and except as provided in Section 3 of Article VI of said Indenture) by an Indenture, dated as of October 1, 1924, duly executed by the Company to Bankers Trust Company, a corporation of the State of New York, as Trustee, to which Indenture and all indentures supplemental thereto (including the Supplemental Indenture dated as of November 30, 1992) reference is hereby made for a description of the properties and franchises mortgaged and conveyed, the nature and extent of the security, the terms and conditions upon which the bonds are issued and under which additional bonds may be issued, and the rights of the holders of the bonds and of the Trustee in respect of such security (which Indenture and all indentures supplemental thereto, including the Supplemental Indenture dated as of November 30, 1992, are hereinafter collectively called the "Indenture"). As provided in the Indenture, said bonds may be for various principal sums and are issuable in series, which may mature at different times, may bear interest at different rates and may otherwise vary as in said Indenture provided. With the consent of the Company and to the extent permitted by and as provided in the Indenture, the rights and obligations of the Company and of the holders of the bonds and the terms and provisions of the Indenture, or of any indenture supplemental thereto, may be modified or altered in certain respects by affirmative vote of at least eighty-five percent (85%) in principal amount of the bonds then outstanding, and, if the rights of one or more, but less than all, series of bonds then outstanding are to be affected by the action proposed to be taken, then also by affirmative vote of at least eighty-five percent (85%) in principal amount of the series of bonds so to be affected (excluding in every instance bonds disqualified from voting by reason of the Company's interest therein as specified in the Indenture); provided, however, that, without the consent of the holder hereof, no such modification or alteration shall, among other things, affect the terms of payment of the principal of, or the interest on, this bond, which in those respects is unconditional. The holder of this bond of 1992 Series E hereby consents that the Company may, but shall not be obligated to, fix a record date for the purpose of determining the holders of bonds of this series entitled to consent to any amendment, supplement or waiver. If a record date is fixed, those persons who were holders at such record date (or their duly designated proxies), and only those persons, shall be entitled to consent to such amendment, supplement or waiver or to revoke any consent previously given, whether or not such persons continue to be holders after such record date. No such consent shall be valid or effective for more than 90 days after such record date. The holders of the bonds of 1992 Series E, by their acceptance of and holding thereof, consent and agree that bonds of any series may be issued which mature on a date or dates later than October 1, 2024 and also consent to the deletion from the first paragraph of Section 5 of Article II of the Indenture of the phrase "but in no event later than October 1, 2024,". Such holders further agree that (a) such consent shall, for all purposes of Article XV of the Indenture and without further action on the part of such holders, be deemed the affirmative vote of such holders at any meeting called pursuant to said Article XV for the purpose of approving such deletion, and (b) such deletion shall become effective at such time as not less than eighty-five per cent (85%) in principal amount of bonds outstanding under the Indenture shall have consented thereto substantially in the manner set forth in Section 3 of Part I of the Supplemental Indenture dated as of November 30, 1992, or in writing, or by affirmative vote cast at a meeting called pursuant to said Article XV, or by any combination thereof. |
This bond is redeemable prior to stated maturity, but only as part of the redemption, in whole, of all bonds of 1992 Series E and 1993 Series B, at the election of the Company on any date prior to maturity, at a redemption price equal to the principal amount to be redeemed plus accrued interest, if any, to the date of redemption plus the Make-Whole Amount. "Make-Whole Amount" means, in connection with any optional redemption of the bonds, of 1992 Series E and 1993 Series B, the amount (but not less than zero) equal to the excess, if any, of A. the sum of the Present Values (as hereinafter defined) of (1) the principal amount being prepaid (assuming the principal being redeemed is payable upon maturity) and (2) the amount of interest which would have been payable on each interest payment date on the amount of such principal being prepaid (assuming the principal balance payable upon maturity and interest payments are paid when due), over B. the principal amount being prepaid. For purposes of this definition, "Present Value" shall be determined in accordance with generally accepted financial practice by discounting on a semiannual basis to the date of such prepayment at a discount rate equal to the sum of the applicable Treasury Yield plus 0.50%; and the "Treasury Yield" for such purpose shall be determined as of 10:00 A.M. New York City time on the fifth business day prior to the date of such prepayment by reference to the yields of those actively traded "On The Run" United States Treasury securities having a maturity equal to the then-remaining maturity of the Bonds of 1992 Series E and 1993 Series B being prepaid, provided that if such maturity is not equal to the maturity of an actively traded "On The Run" United States Treasury security, such yield shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) imputed from the yields of those actively traded "On The Run" United States Treasury securities having maturities closest, before and after, to such remaining maturity as reported by the Telerate Access Service page 8003, or the equivalent pages provided by Telerate Systems Incorporated (or if such data for any reason ceases to be available through such Telerate Access Service, any publicly available source of similar market data). For purposes hereof, "On The Run" United Treasury securities refers to those United States Treasury securities of the appropriate maturity which are most recently auctioned prior to the fifth business day preceding the date of prepayment. The Make-Whole Amount shall be determined by the Company. The Company shall promptly furnish the holder of this bond of 1992 Series E with its calculation of the Make-Whole Amount. The holder of this bond of 1992 Series E shall promptly advise the Trustee if it disputes the Company's calculation of the Make-Whole Amount, and in such event, the Trustee shall conclusively determine the appropriate Make-Whole Amount in accordance with the terms hereof. This bond is redeemable as aforesaid, except as otherwise provided herein, and as specified in Article IV of the Indenture upon giving notice of such redemption by first class mail, postage prepaid, by or on behalf of the Company at least thirty (30) days, but not more than ninety (90) days, prior to the date fixed for redemption to the registered holders of bonds of 1992 Series E so called for redemption at their last respective addresses appearing on the register thereof, but failure to mail such notice to the registered holders of any bonds of 1992 Series E designated for redemption shall not affect the validity of any such redemption of any other bonds of such series. Interest shall cease to accrue on any bonds of 1992 Series E so called for redemption from and after the date fixed for redemption if payment sufficient to redeem the bonds of 1992 Series E designated for redemption has been duly provided for. |
If the giving of the notice of redemption shall have been completed, or if provision satisfactory to the Trustee for the giving of such notice shall have been made, and if the Company shall have deposited with the Trustee in trust funds (which shall have become available for payment to the holders of the bonds of 1992 Series E so to be redeemed) sufficient to redeem bonds of 1992 Series E in whole, on the date fixed for redemption, then all obligations of the Company in respect of such bonds so to be redeemed and interest due or to become due thereon shall cease and be discharged and the holders of such bonds of 1992 Series E shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or in respect of such bonds and interest. Under the Indenture, funds may be deposited with the Trustee (which are available for payment), in advance of the redemption date of any of the bonds of 1992 Series E, in trust for the redemption of such bonds and the interest due or to become due thereon to the redemption date, and thereupon all obligations of the Company in respect of such bonds so to be redeemed and such interest shall cease and be discharged, and the holders thereof shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or with respect to such bonds and interest. The bonds of 1992 Series E, including this bond, shall not be entitled or subject to a sinking fund. In case an event of default, as defined in the Indenture, shall occur, the principal of all the bonds issued thereunder may become or be declared due and payable, in the manner, with the effect and subject to the conditions, provided in the Indenture. This bond is transferable by the registered holder hereof, in person or by his attorney duly authorized in writing, on the books of the Company kept at its office or agency in the Borough of Manhattan, The City and State of New York, upon surrender and cancellation of this bond, and, thereupon, a new registered bond or bonds of the same series of authorized denominations for a like aggregate principal amount will be issued to the transferee or transferees in exchange herefor, and this bond with others of like form may in like manner be exchanged for one or more new registered bonds of the same series of other authorized denominations, but of the same aggregate principal amount, all as provided and upon the terms and conditions set forth in the Indenture, and upon payment, in any event, of the charges prescribed in the Indenture. No recourse shall be had for the payment of the principal of, or the interest on, this bond, or for any claim based hereon or otherwise in respect hereof or of the Indenture, or of any indenture supplemental thereto, against any incorporator, or against any past, present or future stockholder, director or officer, as such, of the Company, or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether for amounts unpaid on stock subscriptions or by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise howsoever; all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released by every holder or owner hereof, as more fully provided in the Indenture. IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY has caused this instrument to be executed on its behalf by its Chairman of the Board and its President or a Vice President, with their manual or facsimile signatures, and its corporate seal, or a facsimile thereof, to be impressed or imprinted hereon and the same to be attested by its Secretary or an Assistant Secretary by manual or facsimile signature. |
Dated: THE DETROIT EDISON COMPANY By_________________________ Chairman of the Board _________________________ Executive Vice President and [SEAL] Chief Financial Officer Attest: ----------------------------------------------- Secretary |
14 |
[FORM OF TRUSTEE'S CERTIFICATE] FORM OF This bond is one of the bonds, of the series designated TRUSTEE'S therein, described in the within-mentioned Indenture. CERTIFICATE. |
BANKERS TRUST COMPANY,
as Trustee
By ..............................
Authorized Officer
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto ------------------------------------------------------------ (please insert social security or other identifying number of assignee) ------------------------------------------------------------ ------------------------------------------------------------ (please print or type name and address of assignee) the within bond of THE DETROIT EDISON COMPANY and does hereby irrevocably constitute and appoint ------------------------------------------------------------ ------------------------------------------------------------ Attorney, to transfer said bond on the books of the within-mentioned Company, with full power of substitution in the premises. Dated: ------------------------------------------------ Notice: The signature to this assignment must correspond with the name as written upon the face of the bond in every particular without alteration or enlargement or any change whatsoever. |
PART II. CREATION OF THREE HUNDRETH SERIES OF BONDS. GENERAL AND REFUNDING MORTGAGE BONDS, 1993 SERIES B TERMS OF BONDS SECTION 1. The Company hereby creates the Three hundreth OF 1993 SERIES B. series of bonds to be issued under and secured by the Original Indenture as amended to date and as further amended by this Supplemental Indenture, to be designated, and to be distinguished from the bonds of all other series, by the title "General and Refunding Mortgage Bonds, 1993 Series B" (elsewhere herein referred to as the "bonds of 1993 Series B"). The aggregate principal amount of bonds of 1993 Series B shall be limited to Fifty million dollars ($50,000,000), except as provided in Sections 7 and 13 of Article II of the Original Indenture with respect to exchanges and replacements of bonds. |
The bonds of 1993 Series B shall mature on December 15, 1999 and shall be issued as registered bonds without coupons in minimum denominations of $500,000 and integral multiples of $1,000 in excess thereof, and shall bear interest, payable semi-annually on June 15 and December 15 of each year (commencing on June 15, 1993), at the rate of 6.83% (computed on the basis of a 360-day year having twelve 30-day months) until the principal shall have become due and payable, and thereafter until the Company's obligation with respect to the payment of said principal shall have been discharged as provided in the Indenture. Except as otherwise specifically provided in this Supplemental Indenture, the principal of and interest on the bonds of 1993 Series B shall be payable at the office or agency of the Company in the Borough of Manhattan, The City of New York, The State of New York in any coin or currency of the United States of America which at the time of payment is legal tender for public and private debts. The interest on bonds of 1993 Series B, whether in temporary or definitive form, shall be payable without presentation of such bonds and (subject to the provisions of this Section 1) only to or upon the written order of the registered holders thereof. Each bond of 1993 Series B shall be dated the date of its authentication and interest shall be payable on the principal represented thereby from the June 15 or December 15 next preceding the date thereof to which interest has been paid on bonds of 1993 Series B, unless the bond is authenticated on a date to which interest has been paid, in which case interest shall be payable from the date of authentication, or unless the date of authentication is prior to June 15, 1993, in which case interest shall be payable from the date of authentication of the bond of 1993 Series B originally evidencing the debt represented thereby. The bonds of 1993 Series B in definitive form shall be, at the election of the Company, fully engraved or shall be lithographed or printed in authorized denominations as aforesaid and numbered 1 and upwards (with such further designation as may be appropriate and desirable to indicate by such designation the form, series and denomination of bonds of 1993 Series B). Until bonds of 1993 Series B in definitive form are ready for delivery, the Company may execute, and upon its request in writing the Trustee shall authenticate and deliver in lieu thereof, bonds of 1993 Series B in temporary form, as provided in Section 10 of Article II of the Indenture. Temporary bonds of 1993 Series B, if any, may be printed and may be issued in authorized denominations in substantially the form of definitive bonds of 1993 Series B, but without a recital of redemption prices and with such omissions, insertions and variations as may be appropriate for temporary bonds, all as may be determined by the Company. Interest on any bond of 1993 Series B which is payable on any interest payment date and is punctually paid or duly provided for shall be paid to the person in whose name that bond, or any previous bond to the extent evidencing the same debt as that evidenced by that bond, is registered at the close of business on the regular record date for such interest, which regular record date shall be the first day of June or December as the case may be (whether or not a business day) next preceding such interest payment date. If the Company shall default in the payment of the interest due on any interest payment date on the principal represented by any bond of 1993 Series B, such defaulted interest shall forthwith cease to be payable to the registered holder of that bond on the relevant regular record date by virtue of his having been such holder, and such defaulted interest may be paid to the registered holder of that bond (or any bond or bonds of 1993 Series B issued upon transfer or exchange thereof) on the date of payment of such defaulted interest or, at the election of the Company, to the person in whose name that bond (or any bond or bonds of 1993 Series B issued upon transfer or exchange thereof) is registered on a subsequent record date established by notice given by mail by or on behalf of the Company to the holders of bonds of 1993 Series B not less than ten (10) days preceding such subsequent record date, which subsequent record date shall be at least five (5) days prior to the payment date of such defaulted interest. |
OPTIONAL SECTION 2. The bonds of 1993 Series B, together with the REDEMPTION OF bonds of 1992 Series E, shall be redeemable, in whole only, BONDS OF 1993 prior to stated maturity, at the election of the Company on SERIES B. any date prior to maturity, at a redemption price equal to the principal amount to be redeemed plus accrued interest, if any, to the date of redemption plus the Make-Whole Amount. "Make-Whole Amount" means, in connection with any optional redemption of the bonds, of 1992 Series E and 1993 Series B, the amount (but not less than zero) equal to the excess, if any, of A. the sum of the Present Values (as hereinafter defined) of (1) the principal amount being prepaid (assuming the principal being redeemed is payable upon maturity) and (2) the amount of interest which would have been payable on each interest payment date on the amount of such principal being prepaid (assuming the principal balance payable upon maturity and interest payments are paid when due), over B. the principal amount being prepaid. For purposes of this definition, "Present Value" shall be determined in accordance with generally accepted financial practice by discounting on a semiannual basis to the date of such prepayment at a discount rate equal to the sum of the applicable Treasury Yield plus 0.50%; and the "Treasury Yield" for such purpose shall be determined as of 10:00 A.M. New York City time on the fifth business day prior to the date of such prepayment by reference to the yields of those actively traded "On The Run" United States Treasury securities having a maturity equal to the then-remaining maturity of the Bonds of 1992 Series E and 1993 Series B being prepaid, provided that if such maturity is not equal to the maturity of an actively traded "On The Run" United States Treasury security, such yield shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) imputed from the yields of those actively traded "On The Run" United States Treasury securities having maturities closest, before and after, to such maturity as reported by the Telerate Access Service page 8003, or the equivalent pages provided by Telerate Systems Incorporated (or if such data for any reason ceases to be available through such Telerate Access Service, any publicly available source of similar market data). For purposes hereof, "On The Run" United Treasury securities refers to those United States Treasury securities of the appropriate maturity which are most recently auctioned prior to the fifth business day preceding the date of prepayment. The Make-Whole Amount shall be determined by the Company. The Company shall promptly furnish the holders of the bonds of 1993 Series B with its calculation of the Make-Whole Amount. A holder of the bonds of 1993 Series B shall promptly advise the Trustee if it disputes the Company's calculation of the Make-Whole Amount; and in such event, the Trustee shall conclusively determine the appropriate Make-Whole Amount in accordance with the terms hereof. The bonds of 1993 Series B shall be redeemable as aforesaid and except as otherwise provided herein, and as specified in Article IV of the Indenture upon giving notice of such redemption by first class mail, postage prepaid, by or on behalf of the Company at least thirty (30) days, but not more than ninety (90) days, prior to the date fixed for redemption to the registered holders of bonds of 1993 Series B so called for redemption at their last respective addresses appearing on the register thereof, but failure to mail such notice to the registered holders of any bonds of 1993 Series B designated for redemption shall not affect the validity of any such redemption of any other bonds of such series. Interest shall cease to accrue on any bonds of 1993 Series B so called for redemption from and after the date fixed for redemption if payment sufficient to redeem the bonds of 1993 Series B designated for redemption has been duly provided for. |
If the giving of the notice of redemption shall have been completed, or if provision satisfactory to the Trustee for the giving of such notice shall have been made, and if the Company shall have deposited with the Trustee in trust funds (which are available for payment to the holders of the bonds of 1993 Series B so to be redeemed) sufficient to redeem bonds of 1993 Series B in whole, on the date fixed for redemption, then all obligations of the Company in respect of such bonds so to be redeemed and interest due or to become due thereon shall cease and be discharged and the holders of such bonds of 1993 Series B shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or in respect of such bonds and interest. The bonds of 1993 Series B shall not be entitled to or subject to any sinking fund. DIRECT The Company may, subject to any provision of the PAYMENTS. Indenture which requires presentment of a bond upon the payment of the principal amount thereof in whole, enter into a written agreement with any person who is or is to become the original holder, or an institutional investor holding at least $500,000 aggregate principal amount, of any of the bonds of 1993 Series B providing for the making of all payments on account of such bonds of 1993 Series B prior to final maturity directly to or for the account of such holder in the manner specified in or pursuant to such agreement, if there shall be filed with the Trustee an original or conformed copy of such agreement. EXCHANGE AND At the option of the registered holder, any bonds of TRANSFER. 1993 Series B, upon surrender thereof for cancellation at the office or agency of the Company in the Borough of Manhattan, The City of New York, The State of New York, together with a written instrument of transfer (if so required by the Company or by the Trustee) in form approved by the Company duly executed by the holder or by its duly authorized attorney, shall be exchangeable for a like aggregate principal amount of bonds of 1993 Series B of other authorized denominations, upon the terms and conditions specified herein and in Section 7 of Article II of the Indenture. Bonds of 1993 Series B shall be transferable at the office or agency of the Company in the Borough of Manhattan, The City of New York, The State of New York. The Company waives its rights under Section 7 of Article II of the Indenture not to make exchanges or transfers of bonds of 1993 Series B during any period of ten (10) days next preceding any interest payment date for such bonds. The Trustee agrees that an indemnity agreement in favor of the Company and the Trustee of any original holder of a bond of 1993 Series B, or of any institutional investor holding at least $500,000 unpaid principal amount of outstanding bonds of 1993 Series B, shall constitute sufficient indemnity (and security shall not be required) for the purposes of Section 13 of Article II of the Indenture in any case of destruction, loss, theft or mutilation of any such bonds of 1993 Series B. Bonds of 1993 Series B, in definitive and temporary form, may bear such legends as may be necessary to comply with any law or with any rules or regulations made pursuant thereto or with the rules or regulations of any stock exchange or to conform to usage with respect thereto. Notwithstanding the foregoing provisions in this Section 2, the Company shall not be required to make any transfers or exchanges of bonds of 1993 Series B for a period of fifteen (15) days next preceding any mailing of notice of redemption, and the Company shall not be required to make transfers or exchanges of the principal amount (or any portion thereof) of any bonds of 1993 Series B so called or designated for redemption. |
CONSENT. SECTION 3. The holders of the bonds of 1993 Series B, by their acceptance of and holding thereof, consent and agree that bonds of any series may be issued which mature on a date or dates later than October 1, 2024 and also consent to the deletion from the first paragraph of Section 5 of Article II of the Indenture of the phrase "but in no event later than October 1, 2024". Such holders further agree that (a) such consent shall, for all purposes of Article XV of the Indenture and without further action on the part of such holders, be deemed the affirmative vote of such holders at any meeting called pursuant to said Article XV for the purpose of approving such deletion, and (b) such deletion shall become effective at such time as not less than eighty-five per cent (85%) in principal amount of bonds outstanding under the Indenture shall have consented thereto substantially in the manner set forth in this Section 3, or in writing, or by affirmative vote cast at a meeting called pursuant to said Article XV, or by any combination thereof. FORM OF SECTION 4. The bonds of 1993 Series B and the form of BONDS OF Trustee's Certificate to be endorsed on such bonds shall be 1993 SERIES B. substantially in the following forms, respectively: [FORM OF FACE OF BOND] THE DETROIT EDISON COMPANY GENERAL AND REFUNDING MORTGAGE BOND 1993 Series B, 6.83% due December 15, 1999 $ ________ No. ________ THE DETROIT EDISON COMPANY (hereinafter called the "Company"), a corporation of the State of Michigan, for value received, hereby promises to pay to or registered assigns, at its office or agency in the Borough of Manhattan, The City and State of New York, the principal sum of in lawful money of the United States of America on the fifteenth day of December, 1999, and to pay interest thereon at the rate specified in the title hereof, at such office or agency, in like lawful money, from the date hereof, and after the first interest payment on bonds of this Series has been made or otherwise provided for, from the most recent date to which such interest has been paid, semi-annually on the fifteenth day of June and December in each year (commencing on June 15, 1993), to the person in whose name this bond is registered at the close of business on the first day of the preceding June or December (subject to certain exceptions provided in the Indenture hereinafter mentioned), until the Company's obligation with respect to payment of said principal shall have been discharged, all as provided, to the extent and in the manner specified in such Indenture hereinafter mentioned on the reverse hereof and in the supplemental indenture pursuant to which this bond has been issued. Reference is hereby made to the further provisions of this bond set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though set forth at this place. This bond shall not be valid or become obligatory for any purpose until Bankers Trust Company, the Trustee under the Indenture hereinafter mentioned on the reverse hereof, or its successor thereunder, shall have signed the form of certificate endorsed hereon. |
IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY has caused this instrument to be executed on its behalf by its Chairman of the Board and its President or a Vice President, with their manual or facsimile signatures, and its corporate seal, or a facsimile thereof, to be impressed or imprinted hereon and the same to be attested by its Secretary or an Assistant Secretary by manual or facsimile signature. |
Dated: THE DETROIT EDISON COMPANY By ----------------------------- Chairman of the Board ----------------------------- Executive Vice President and [SEAL] Chief Financial Officer Attest: ----------------------------------------------- Secretary |
20 |
[FORM OF REVERSE OF BOND] This bond is one of an authorized issue of bonds of the Company, unlimited as to amount except as provided in the Indenture hereinafter mentioned or any indentures supplemental thereto, and is one of a series of said bonds known as General and Refunding Mortgage Bonds, 1993 Series B (elsewhere herein referred to as the "bonds of 1993 Series B"), limited to an aggregate principal amount of $50,000,000, except as otherwise provided in the Indenture hereinafter mentioned. This bond and all other bonds of said series are issued and to be issued under, and are all equally and ratably secured (except insofar as any sinking, amortization, improvement or analogous fund, established in accordance with the provisions of the Indenture hereinafter mentioned, may afford additional security for the bonds of any particular series and except as provided in Section 3 of Article VI of said Indenture) by an Indenture, dated as of October 1, 1924, duly executed by the Company to Bankers Trust Company, a corporation of the State of New York, as Trustee, to which Indenture and all indentures supplemental thereto (including the Supplemental Indenture dated as of November 30, 1992) reference is hereby made for a description of the properties and franchises mortgaged and conveyed, the nature and extent of the security, the terms and conditions upon which the bonds are issued and under which additional bonds may be issued, and the rights of the holders of the bonds and of the Trustee in respect of such security (which Indenture and all indentures supplemental thereto, including the Supplemental Indenture dated as of November 30, 1992, are hereinafter collectively called the "Indenture"). As provided in the Indenture, said bonds may be for various principal sums and are issuable in series, which may mature at different times, may bear interest at different rates and may otherwise vary as in said Indenture provided. With the consent of the Company and to the extent permitted by and as provided in the Indenture, the rights and obligations of the Company and of the holders of the bonds and the terms and provisions of the Indenture, or of any indenture supplemental thereto, may be modified or altered in certain respects by affirmative vote of at least eighty-five percent (85%) in principal amount of the bonds then outstanding, and, if the rights of one or more, but less than all, series of bonds then outstanding are to be affected by the action proposed to be taken, then also by affirmative vote of at least eighty-five percent (85%) in principal amount of the series of bonds so to be affected (excluding in every instance bonds disqualified from voting by reason of the Company's interest therein as specified in the Indenture); provided, however, that, without the consent of the holder hereof, no such modification or alteration shall, among other things, affect the terms of payment of the principal of, or the interest on, this bond, which in those respects is unconditional. The holders of the bonds of 1993 Series B, by their acceptance of and holding thereof, consent and agree that bonds of any series may be issued which mature on a date or dates later than October 1, 2024 and also consent to the deletion from the first paragraph of Section 5 of Article II of the Indenture of the phrase "but in no event later than October 1, 2024,". Such holders further agree that (a) such consent shall, for all purposes of Article XV of the Indenture and without further action on the part of such holders, be deemed the affirmative vote of such holders at any meeting called pursuant to said Article XV for the purpose of approving such deletion, and (b) such deletion shall become effective at such time as not less than eighty-five per cent (85%) in principal amount of bonds outstanding under the Indenture shall have consented thereto substantially in the manner set forth in Section 3 of Part I of the Supplemental Indenture dated as of November 30, 1992, or in writing, or by affirmative vote cast at a meeting called pursuant to said Article XV, or by any combination thereof. This bond is redeemable prior to stated maturity, but only as part of the redemption, in whole, of all bonds of 1992 Series E and 1993 Series B at the election of the Company on any date prior to maturity, at a redemption price equal to the principal amount to be redeemed, plus accrued interest, if any, to the date of redemption, plus the Make-Whole Amount. |
"Make-Whole Amount" means, in connection with any optional redemption of the bonds, of 1992 Series E and 1993 Series B, the amount (but not less than zero) equal to the excess, if any, of A. the sum of the Present Values (as hereinafter defined) of (1) the principal amount being prepaid (assuming the principal being redeemed is payable upon maturity) and (2) the amount of interest which would have been payable on each interest payment date on the amount of such principal being prepaid (assuming the principal balance payable upon maturity and interest payments are paid when due), over B. the principal amount being prepaid. For purposes of this definition, "Present Value" shall be determined in accordance with generally accepted financial practice by discounting on a semiannual basis to the date of such prepayment at a discount rate equal to the sum of the applicable Treasury Yield plus 0.50%; and the "Treasury Yield" for such purpose shall be determined as of 10:00 A.M. New York City time on the fifth business day prior to the date of such prepayment by reference to the yields of those actively traded "On The Run" United States Treasury securities having a maturity equal to the then-remaining maturity of the Bonds of 1992 Series E and 1993 Series B being prepaid, provided that if such maturity is not equal to the maturity of an actively traded "On The Run" United States Treasury security, such yield shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) imputed from the yields of those actively traded "On The Run" United States Treasury securities having maturities closest, before and after, to such remaining maturity as reported by the Telerate Access Service page 8003, or the equivalent pages provided by Telerate Systems Incorporated (or if such data for any reason ceases to be available through such Telerate Access Service, any publicly available source of similar market data). For purposes hereof, "On The Run" United Treasury securities refers to those United States Treasury securities of the appropriate maturity which are most recently auctioned prior to the fifth business day preceding the date of prepayment. The Make-Whole Amount shall be determined by the Company. The Company shall promptly furnish the holder of this bond of 1993 Series B with its calculation of the Make-Whole Amount. The holder of this bond of 1993 Series B shall promptly advise the Trustee if it disputes the Company's calculation of the Make-Whole Amount, and in such event, the Trustee shall conclusively determine the appropriate Make-Whole Amount in accordance with the terms hereof. This bond is redeemable as aforesaid, except as otherwise provided herein, and as specified in Article IV of the Indenture upon giving notice of such redemption by first class mail, postage prepaid, by or on behalf of the Company at least thirty (30) days, but not more than ninety (90) days, prior to the date fixed for redemption to the registered holders of bonds of 1993 Series B so called for redemption at their last respective addresses appearing on the register thereof, but failure to mail such notice to the registered holders of any bonds of 1993 Series B designated for redemption shall not affect the validity of any such redemption of any other bonds of such series. Interest shall cease to accrue on any bonds of 1993 Series B so called for redemption from and after the date fixed for redemption if payment sufficient to redeem the bonds of 1993 Series B designated for redemption has been duly provided for. If the giving of the notice of redemption shall have been completed, or if provision satisfactory to the Trustee for the giving of such notice shall have been made, and if the Company shall have deposited with the Trustee in trust funds (which shall have become available for payment to the holders of the bonds of 1993 Series B so to be redeemed) sufficient to redeem bonds of 1993 Series B in whole, on the date fixed for redemption, then all obligations of the Company in respect of such bonds so to be redeemed and interest due or to become due thereon shall cease and be discharged and the holders of such bonds of 1993 Series B shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or in respect of such bonds and interest. |
Under the Indenture, funds may be deposited with the Trustee (which are available for payment), in advance of the redemption date of any of the bonds of 1993 Series B, in trust for the redemption of such bonds and the interest due or to become due thereon to the redemption date, and thereupon all obligations of the Company in respect of such bonds so to be redeemed and such interest shall cease and be discharged, and the holders thereof shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or with respect to such bonds and interest. The bonds of 1993 Series B, including this bond, shall not be entitled or subject to a sinking fund. In case an event of default, as defined in the Indenture, shall occur, the principal of all the bonds issued thereunder may become or be declared due and payable, in the manner, with the effect and subject to the conditions, provided in the Indenture. This bond is transferable by the registered holder hereof, in person or by his attorney duly authorized in writing, on the books of the Company kept at its office or agency in the Borough of Manhattan, The City and State of New York, upon surrender and cancellation of this bond, and, thereupon, a new registered bond or bonds of the same series of authorized denominations for a like aggregate principal amount will be issued to the transferee or transferees in exchange herefor, and this bond with others of like form may in like manner be exchanged for one or more new registered bonds of the same series of other authorized denominations, but of the same aggregate principal amount, all as provided and upon the terms and conditions set forth in the Indenture, and upon payment, in any event, of the charges prescribed in the Indenture. No recourse shall be had for the payment of the principal of, or the interest on, this bond, or for any claim based hereon or otherwise in respect hereof or of the Indenture, or of any indenture supplemental thereto, against any incorporator, or against any past, present or future stockholder, director or officer, as such, of the Company, or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether for amounts unpaid on stock subscriptions or by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise howsoever; all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released by every holder or owner hereof, as more fully provided in the Indenture. [FORM OF TRUSTEE'S CERTIFICATE] FORM OF This bond is one of the bonds, of the series designated TRUSTEE'S therein, described in the within-mentioned Indenture. CERTIFICATE. |
BANKERS TRUST COMPANY,
as Trustee
By ..............................
|
Authorized Officer
PART III. RECORDING AND FILING DATA RECORDING AND The Original Indenture and indentures supplemental FILING OF ORIGINAL thereto have been recorded and/or filed and Certificates of INDENTURE. Provision for Payment have been recorded as hereinafter set forth. |
The Original Indenture has been recorded as a real estate mortgage and filed as a chattel mortgage in the offices of the respective Registers of Deeds of certain counties in the State of Michigan as set forth in the Supplemental Indenture dated as of September 1, 1947, has been recorded as a real estate mortgage in the office of the Register of Deeds of Genesee County, Michigan as set forth in the Supplemental Indenture dated as of May 1, 1974, has been filed in the Office of the Secretary of State of Michigan on November 16, 1951 and has been filed and recorded in the office of the Interstate Commerce Commission on December 8, 1969. RECORDING AND Pursuant to the terms and provisions of the Original FILING OF Indenture, indentures supplemental thereto heretofore SUPPLEMENTAL entered into have been recorded as a real estate mortgage INDENTURES. and/or filed as a chattel mortgage or as a financing statement in the offices of the respective Registers of Deeds of certain counties in the State of Michigan, the Office of the Secretary of State of Michigan and the Office of the Interstate Commerce Commission, as set forth in supplemental indentures as follows: |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- June 1, 1925(a)(b)................ Series B Bonds February 1, 1940 August 1, 1927(a)(b).............. Series C Bonds February 1, 1940 February 1, 1931(a)(b)............ Series D Bonds February 1, 1940 June 1, 1931(a)(b)................ Subject Properties February 1, 1940 October 1, 1932(a)(b)............. Series E Bonds February 1, 1940 September 25, 1935(a)(b).......... Series F Bonds February 1, 1940 September 1, 1936(a)(b)........... Series G Bonds February 1, 1940 November 1, 1936(a)(b)............ Subject Properties February 1, 1940 February 1, 1940(a)(b)............ Subject Properties September 1, 1947 December 1, 1940(a)(b)............ Series H Bonds and September 1, 1947 Additional Provisions September 1, 1947(a)(b)(c)........ Series I Bonds, November 15, 1951 Subject Properties and Additional Provisions March 1, 1950(a)(b)(c)............ Series J Bonds November 15, 1951 and Additional Provisions November 15, 1951(a)(b)(c)........ Series K Bonds January 15, 1953 Additional Provisions and Subject Properties January 15, 1953(a)(b)............ Series L Bonds May 1, 1953 May 1, 1953(a).................... Series M Bonds March 15, 1954 and Subject Properties March 15, 1954(a)(c).............. Series N Bonds May 15, 1955 and Subject Properties May 15, 1955(a)(c)................ Series O Bonds August 15, 1957 and Subject Properties August 15, 1957(a)(c)............. Series P Bonds June 1, 1959 Additional Provisions and Subject Properties June 1, 1959(a)(c)................ Series Q Bonds December 1, 1966 and Subject Properties December 1, 1966(a)(c)............ Series R Bonds October 1, 1968 Additional Provisions and Subject Properties October 1, 1968(a)(c)............. Series S Bonds December 1, 1969 and Subject Properties December 1, 1969(a)(c)............ Series T Bonds July 1, 1970 and Subject Properties July 1, 1970(c)................... Series U Bonds December 15, 1970 and Subject Properties December 15, 1970(c).............. Series V and June 15, 1971 Series W Bonds |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- June 15, 1971(c).................. Series X Bonds November 15, 1971 and Subject Properties November 15, 1971(c).............. Series Y Bonds January 15, 1973 and Subject Properties January 15, 1973(c)............... Series Z Bonds May 1, 1974 and Subject Properties May 1, 1974....................... Series AA Bonds October 1, 1974 and Subject Properties October 1, 1974................... Series BB Bonds January 15, 1975 and Subject Properties January 15, 1975.................. Series CC Bonds November 1, 1975 and Subject Properties November 1, 1975.................. Series DDP Nos. 1-9 Bonds December 15, 1975 and Subject Properties December 15, 1975................. Series EE Bonds February 1, 1976 and Subject Properties February 1, 1976.................. Series FFR Nos. 1-13 Bonds June 15, 1976 June 15, 1976..................... Series GGP Nos. 1-7 Bonds July 15, 1976 and Subject Properties July 15, 1976..................... Series HH Bonds February 15, 1977 and Subject Properties February 15, 1977................. Series MMP Bonds and Subject March 1, 1977 Properties March 1, 1977..................... Series IIP Nos. 1-7 Bonds, June 15, 1977 Series JJP Nos. 1-7 Bonds, Series KKP Nos. 1-7 Bonds and Series LLP Nos. 1-7 Bonds June 15, 1977..................... Series FFR No. 14 Bonds and July 1, 1977 Subject Properties July 1, 1977...................... Series NNP Nos. 1-7 Bonds October 1, 1977 and Subject Properties October 1, 1977................... Series GGP Nos. 8-22 Bonds June 1, 1978 and Series OOP Nos. 1-17 Bonds and Subject Properties June 1, 1978...................... Series PP Bonds, October 15, 1978 Series QQP Nos. 1-9 Bonds and Subject Properties October 15, 1978.................. Series RR Bonds March 15, 1979 and Subject Properties March 15, 1979.................... Series SS Bonds July 1, 1979 and Subject Properties July 1, 1979...................... Series IIP Nos. 8-22 Bonds, September 1, 1979 Series NNP Nos. 8-21 Bonds and Series TTP Nos. 1-15 Bonds and Subject Properties |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- September 1, 1979................. Series JJP No. 8 Bonds, September 15, 1979 Series KKP No. 8 Bonds, Series LLP Nos. 8-15 Bonds, Series MMP No. 2 Bonds and Series OOP No. 18 Bonds and Subject Properties September 15, 1979................ Series UU Bonds January 1, 1980 January 1, 1980................... 1980 Series A Bonds and April 1, 1980 Subject Properties April 1, 1980..................... 1980 Series B Bonds August 15, 1980 August 15, 1980................... Series QQP Nos. 10-19 Bonds, August 1, 1981 1980 Series CP Nos. 1-12 Bonds and 1980 Series DP No. 1-11 Bonds and Subject Properties August 1, 1981.................... 1980 Series CP Nos. 13-25 November 1, 1981 Bonds and Subject Properties November 1, 1981.................. 1981 Series AP Nos. 1-12 June 30, 1982 Bonds June 30, 1982..................... Article XIV Reconfirmation August 15, 1982 August 15, 1982................... 1981 Series AP Nos. 13-14 June 1, 1983 and Subject Properties June 1, 1983...................... 1981 Series AP Nos. 15-16 October 1, 1984 and Subject Properties October 1, 1984................... 1984 Series AP and 1984 May 1, 1985 Series BP Bonds and Subject Properties May 1, 1985....................... 1985 Series A Bonds May 15, 1985 May 15, 1985...................... 1985 Series B Bonds and October 15, 1985 Subject Properties October 15, 1985.................. Series KKP No. 9 Bonds and April 1, 1986 Subject Properties April 1, 1986..................... 1986 Series A and Subject August 15, 1986 Properties August 15, 1986................... 1986 Series B and Subject November 30, 1986 Properties November 30, 1986................. 1986 Series C January 31, 1987 January 31, 1987.................. 1987 Series A April 1, 1987 April 1, 1987..................... 1987 Series B and 1987 August 15, 1987 Series C August 15, 1987................... 1987 Series D and 1987 November 30, 1987 Series E and Subject Properties November 30, 1987................. 1987 Series F June 15, 1989 June 15, 1989..................... 1989 Series A July 15, 1989 July 15, 1989..................... Series KKP No. 10 December 1, 1989 December 1, 1989.................. Series KKP No. 11 and 1989 February 15, 1990 Series BP |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- February 15, 1990................. 1990 Series A, 1990 Series November 1, 1990 B, 1990 Series C, 1990 Series D, 1990 Series E and 1990 Series F November 1, 1990.................. Series KKP No. 12 April 1, 1991 April 1, 1991..................... 1991 Series AP May 1, 1991 May 1, 1991....................... 1991 Series BP and 1991 May 15, 1991 Series CP May 15, 1991...................... 1991 Series DP September 1, 1991 September 1, 1991................. 1991 Series EP November 1, 1991 November 1, 1991.................. 1991 Series FP January 15, 1992 January 15, 1992.................. 1992 Series BP February 29, 1992 and April 15, 1992 February 29, 1992................. 1992 Series AP April 15, 1992 April 15, 1992.................... Series KKP No. 13 July 15, 1992 July 15, 1992..................... 1992 Series CP November 30, 1992 July 31, 1992..................... 1992 Series D November 30, 1992 |
(b) See Supplemental Indenture dated as of May 1, 1953 for Secretary of State of Michigan filing information.
(c) See Supplemental Indenture dated as of May 1, 1974 for County of Genesee, Michigan recording and filing information.
Pursuant to the terms and provisions of the Original Indenture, a Supplemental Indenture dated as of July 15, 1992 providing for the terms of bonds to be issued thereunder of 1992 Series CP has heretofore been entered into between the Company and the Trustee and has been filed in the Office of the Secretary of State of Michigan as a financing statement on August 7, 1992 (Filing No. 22675B), has been filed and recorded in the Office of the Interstate Commerce Commission (Recordation No. 5485-ZZZ) on July 31, 1992, and has been recorded as a real estate mortgage in the offices of the respective Register of Deeds of certain counties in the State of Michigan, as follows:
LIBER OF MORTGAGES OR COUNTY COUNTY RECORDED RECORDS PAGE ------ -------- --------- ---- Genessee........................... July 31, 1992 2775 40-63 Huron.............................. July 31, 1992 582 576-599 Ingham............................. August 3, 1992 1981 1131-1153 Lapeer............................. July 31, 1992 765 513-536 Lenawee............................ July 31, 1992 1213 354-377 Livingston......................... July 31, 1992 1597 0311-0334 Macomb............................. July 31, 1992 05520 957-980 Mason.............................. July 31, 1992 431 1031-1054 Monroe............................. July 31, 1992 1241 0977-1000 Oakland............................ July 31, 1992 12796 818-841 Sanilac............................ July 31, 1992 431 534-557 St. Clair.......................... August 3, 1992 1052 102-125 Tuscola............................ August 5, 1992 629 590-613 Washtenaw.......................... July 31, 1992 2658 971-994 Wayne.............................. July 30, 1992 25920 516-539 |
Further, pursuant to the terms and provisions of the Original Indenture, a Supplemental Indenture dated as of July 31, 1992 providing for the terms of bonds to be issued thereunder of 1992 Series D has heretofore been entered into between the Company and the Trustee and has been filed in the Office of the Secretary of State of Michigan as a financing statement on August 7, 1992 (Filing No. 22676B), has been filed and recorded in the Office of the Interstate Commerce Commission (Recordation No. 5485-AAAA) on August 7, 1992, and has been recorded as a real estate mortgage in the offices of the respective Register of Deeds of certain counties in the State of Michigan, as follows:
LIBER OF MORTGAGES OR COUNTY COUNTY RECORDED RECORDS PAGE ------ -------- --------- ---- Genesee.............. August 7, 1992 2777 11-36 Huron................ August 7, 1992 583 79-104 Ingham............... August 7, 1992 1983 58-83 Lapeer............... August 7, 1992 766 245-270 Lenawee.............. August 7, 1992 1214 152-177 Livingston........... August 7, 1992 1599 0344-0369 Macomb............... August 7, 1992 05528 832-857 Mason................ August 7, 1992 419 299-324 Monroe............... August 7, 1992 1243 0188-0213 Oakland.............. August 7, 1992 12813 603-628 Sanilac.............. August 7, 1992 431 703-728 St. Clair............ August 7, 1992 1053 157-182 Tuscola.............. August 7, 1992 629 734-759 Washtenaw............ August 7, 1992 2661 474-499 Wayne................ August 7, 1992 25935 492-517 |
RECORDING OF All the bonds of Series A which were issued under the CERTIFICATES Original Indenture dated as of October 1, 1924, and of OF PROVISION Series B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, T, U, FOR PAYMENT. W, AA, BB, CC, DDP Nos. 1-9, FFR Nos. 1-14, GGP Nos. 1-22, HH, IIP Nos. 1-22, JJP Nos. 1-8, KKP Nos. 1-8, LLP Nos. 1-15, NNP Nos. 1-21, OOP Nos. 1-18, QQP Nos. 1-17, TTP Nos. 1-15, UU, 1980 Series A, 1980 Series CP Nos. 1-25, 1980 Series DP Nos. 1-11, 1981 Series AP Nos. 1-14, 1985 Series A, 1985 Series B, PP, RR, EE, MMP, MMP No. 2, 1986 Series B, 1987 Series D, and 1987 Series E which were issued under Supplemental Indentures dated as of, respectively, June 1, 1925, August 1, 1927, February 1, 1931, October 1, 1932, September 25, 1935, September 1, 1936, December 1, 1940, September 1, 1947, November 15, 1951, January 15, 1953, May 1, 1953, March 15, 1954, May 15, 1955, August 15, 1957, June 1, 1959, December 1, 1969, July 1, 1970, December 15, 1970, May 1, 1974, October 1, 1974, January 15, 1975, November 1, 1975, February 1, 1976, June 15, 1976, July 15, 1976, October 1, 1977, March 1, 1977, July 1, 1979, March 1, 1977, March 1, 1977, March 1, 1977, September 1, 1979, July 1, 1977, July 1, 1979, September 15, 1979, October 1, 1977, June 1, 1978, October 1, 1977, July 1, 1979, January 1, 1980, August 15, 1980, November 1, 1981, May 1, 1985, May 15, 1985, June 1, 1978, October 15, 1978, December 15, 1975, February 15, 1977, September 1, 1979, August 15, 1986 and August 15, 1987 have matured or have been called for redemption and funds sufficient for such payment or redemption have been irrevocably deposited with the Trustee for that purpose; and Certificates of Provision for Payment have been recorded in the offices of the respective Registers of Deeds of certain counties in the State of Michigan, with respect to all bonds of Series A, B, C, D, E, F, G, H, K, L, M, O, W, BB, CC, DDP Nos. 1 and 2, FFR Nos. 1-3, GGP Nos. 1 and 2, IIP No. 1, JJP No. 1, KKP No. 1, LLP No. 1 and GGP No. 8. |
[TO BE UPDATED] PART IV. THE TRUSTEE. TERMS AND The Trustee hereby accepts the trust hereby declared and provided, and agrees to perform the CONDITIONS OF same upon the terms and conditions in the Original Indenture, as amended to date and as ACCEPTANCE OF supplemented by this Supplemental Indenture, and in this Supplemental Indenture set forth, and TRUST BY TRUSTEE. upon the following terms and conditions: The Trustee shall not be responsible in any manner whatsoever for and in respect of the validity or sufficiency of this Supplemental Indenture or the due execution hereof by the Company or for or in respect of the recitals contained herein, all of which recitals are made by the Company solely. PART V. MISCELLANEOUS. CONFIRMATION OF Except to the extent specifically provided therein, no provision of this supplemental SECTION 318(C) OF indenture or any future supplemental indenture is intended to modify, and the parties do hereby TRUST INDENTURE adopt and confirm, the provisions of Section 318(c) of the Trust Indenture Act which amend and ACT. supercede provisions of the Indenture in effect prior to November 15, 1990. EXECUTION IN THIS SUPPLEMENTAL INDENTURE MAY BE SIMULTANEOUSLY EXECUTED IN ANY NUMBER OF COUNTERPARTS, COUNTERPARTS. EACH OF WHICH WHEN SO EXECUTED SHALL BE DEEMED TO BE AN ORIGINAL; BUT SUCH COUNTERPARTS SHALL TOGETHER CONSTITUTE BUT ONE AND THE SAME INSTRUMENT. |
TESTIMONIUM. IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY AND BANKERS TRUST COMPANY HAVE CAUSED THESE PRESENTS TO BE SIGNED IN THEIR RESPECTIVE CORPORATE NAMES BY THEIR RESPECTIVE CHAIRMEN OF THE BOARD, PRESIDENTS, VICE PRESIDENTS, ASSISTANT VICE PRESIDENTS, TREASURERS OR ASSISTANT TREASURERS AND IMPRESSED WITH THEIR RESPECTIVE CORPORATE SEALS, ATTESTED BY THEIR RESPECTIVE SECRETARIES OR ASSISTANT SECRETARIES, ALL AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN. |
THE DETROIT EDISON COMPANY, (Corporate Seal) By /s/ C. C. ARVANI ------------------------ C. C. Arvani Assistant Treasurer EXECUTION. Attest: /s/ SUSAN M. BEALE ------------------------------- Susan M. Beale Secretary Signed, sealed and delivered by THE DETROIT EDISON COMPANY, in the presence of /s/ JANE E. LENART ------------------------------- Jane E. Lenart /s/ JANET A. SCULLEN ------------------------------- Janet A. Scullen (Corporate Seal) BANKERS TRUST COMPANY, By /s/ R. T. GORMAN ------------------------ R. T. Gorman Vice President Attest: /s/ SHIKHA DOMBEK ------------------------------- Shikha Dombek Assistant Secretary Signed, sealed and delivered by BANKERS TRUST COMPANY, in the presence of /s/ JOHN FLORIO ------------------------------- John Florio /s/ KENWYN HACKSHAW ------------------------------- Kenwyn Hackshaw |
STATE OF MICHIGAN SS.: COUNTY OF WAYNE ACKNOWLEDGMENT On this 7th day of December, 1992, before me, the OF EXECUTION subscriber, a Notary Public within and for the County of BY COMPANY. Wayne, in the State of Michigan, personally appeared C. C. Arvani, to me personally known, who, being by me duly sworn, did say that he does business at 2000 Second Avenue, Detroit, Michigan 48226 and is the Assistant Treasurer of THE DETROIT EDISON COMPANY, one of the corporations described in and which executed the foregoing instrument; that he knows the corporate seal of the said corporation and that the seal affixed to said instrument is the corporate seal of said corporation; and that said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors and that he subscribed his name thereto by like authority; and said C. C. Arvani, acknowledged said instrument to be the free act and deed of said corporation. |
/s/ PEARL E. KOTTER ________________________________ (Notarial Seal) Pearl E. Kotter, Notary Public Macomb County, MI (Acting in Wayne County) My Commission Expires August 23, 1993 STATE OF NEW YORK SS.: COUNTY OF NEW YORK |
ACKNOWLEDGMENT On this 4th day of December, 1992, before me, the OF EXECUTION subscriber, a Notary Public within and for the County of BY TRUSTEE. Queens, in the State of New York, personally appeared R. T. Gorman, to me personally known, who, being by me duly sworn, did say that his business office is located at Four Albany Street, New York, New York 10015, and he is Vice President of BANKERS TRUST COMPANY, one of the corporations described in and which executed the foregoing instrument; that he knows the corporate seal of the said corporation and that the seal affixed to said instrument is the corporate seal of said corporation; and that said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors and that he subscribed his name thereto by like authority; and said R. T. Gorman acknowledged said instrument to be the free act and deed of said corporation. |
(Notarial Seal) /s/ MARJORIE STANLEY _________________________________ Marjorie Stanley Notary Public, State of New York No. 41-4986405 Qualified in Queens County Certificate filed in New York County Commission Expires Sept. 16, 1993 |
STATE OF MICHIGAN SS.: COUNTY OF WAYNE |
AFFIDAVIT AS TO C. C. Arvani, being duly sworn, says: that he is the CONSIDERATION Assistant Treasurer of THE DETROIT EDISON COMPANY, the AND GOOD FAITH. Mortgagor named in the foregoing instrument, and that he has knowledge of the facts in regard to the making of said instrument and of the consideration therefor; that the consideration for said instrument was and is actual and adequate, and that the same was given in good faith for the purposes in such instrument set forth. |
/s/ C. C. ARVANI ______________________ C. C. Arvani Sworn to before me this 7th day of December, 1992 Pearl E. Kotter, Notary Public Macomb County, MI (Acting in Wayne County) My Commission Expires August 23, 1993 (Notarial Seal) |
This instrument was drafted by Frances B. Rohlman, Esq., 2000 Second Avenue, Detroit, Michigan 48226. |
EXHIBIT 4-214
EXECUTED IN ____COUNTERPARTS OF WHICH
THIS IS COUNTERPART NO. ____.
THE DETROIT EDISON COMPANY
(2000 Second Avenue,
Detroit, Michigan 48226)
TO
BANKERS TRUST COMPANY
(Four Albany Street,
New York, New York 10015)
AS TRUSTEE
INDENTURE
Dated as of April 1, 1993
SUPPLEMENTAL TO MORTGAGE AND DEED OF TRUST
DATED AS OF OCTOBER 1, 1924
PROVIDING FOR
(A) GENERAL AND REFUNDING MORTGAGE BONDS, 1993 SERIES FP, DUE OCTOBER 1, 2023, (B) GENERAL AND REFUNDING MORTGAGE BONDS, 1993 SERIES IP, DUE OCTOBER 1, 2023
AND
(C) RECORDING AND FILING DATA
TABLE OF CONTENTS*
PAGE ---- PARTIES..................................................... 1 RECITALS Original Indenture and Supplementals...................... 1 Issue of Bonds under Indenture............................ 1 Bonds heretofore issued................................... 1 Reason for creation of new series......................... 5 Bonds to be 1993 Series FP and 1993 Series IP............. 5 Further Assurance......................................... 5 Authorization of Supplemental Indenture................... 5 Consideration for Supplemental Indenture.................. 5 PART I. CREATION OF THREE HUNDRED SIXTH SERIES OF BONDS GENERAL AND REFUNDING MORTGAGE BONDS, 1993 SERIES FP Sec. 1. Certain terms of Bonds of 1993 Series FP............ 6 Sec. 2. Redemption of Bonds of 1993 Series FP............... 7 Sec. 3. Redemption of Bonds of 1993 Series FP in event of acceleration of Strategic Fund Revenue Bonds........ 8 Sec. 4. Consent............................................. 9 Sec. 5. Form of Bonds of 1993 Series FP..................... 9 Form of Trustee's Certificate....................... 14 PART II. CREATION OF THREE HUNDRED SEVENTH SERIES OF BONDS GENERAL AND REFUNDING MORTGAGE BONDS, 1993 SERIES IP Sec. 1. Certain terms of Bonds of 1993 Series IP............ 14 Sec. 2. Redemption of Bonds of 1993 Series IP............... 16 Sec. 3.Redemption of Bonds of 1993 Series IP in event of acceleration of Strategic Fund Revenue Bonds......... 16 Sec. 4. Consent............................................. 17 Sec. 5. Form of Bonds of 1993 Series IP..................... 17 Form of Trustee's Certificate....................... 22 PART III. RECORDING AND FILING DATA Recording and filing of Original Indenture.................. 22 Recording and filing of Supplemental Indentures............. 22 Recording of Certificates of Provision for Payment.......... 26 PART IV. THE TRUSTEE Terms and conditions of acceptance of trust by Trustee...... 27 PART V. MISCELLANEOUS Confirmation of Section 318(c) of Trust Indenture Act....... 27 Execution in Counterparts................................... 27 Testimonium................................................. 28 Execution................................................... 28 Acknowledgment of execution by Company...................... 28 Acknowledgment of execution by Trustee...................... 29 Affidavit as to consideration and good faith................ 30 |
PARTIES. SUPPLEMENTAL INDENTURE, dated as of the first day of April, in the year one thousand nine hundred and ninety-three, between THE DETROIT EDISON COMPANY, a corporation organized and existing under the laws of the State of Michigan and a transmitting utility (hereinafter called the "Company"), party of the first part, and BANKERS TRUST COMPANY, a corporation organized and existing under the laws of the State of New York, having its corporate trust office at Four Albany Street, in the Borough of Manhattan, The City and State of New York, as Trustee under the Mortgage and Deed of Trust hereinafter mentioned (hereinafter called the "Trustee"), party of the second part. ORIGINAL WHEREAS, the Company has heretofore executed and delivered INDENTURE AND its Mortgage and Deed of Trust (hereinafter referred to as SUPPLEMENTALS. the "Original Indenture"), dated as of October 1, 1924, to the Trustee, for the security of all bonds of the Company outstanding thereunder, and pursuant to the terms and provisions of the Original Indenture, indentures dated as of, respectively, June 1, 1925, August 1, 1927, February 1, 1931, June 1, 1931, October 1, 1932, September 25, 1935, September 1, 1936, November 1, 1936, February 1, 1940, December 1, 1940, September 1, 1947, March 1, 1950, November 15, 1951, January 15, 1953, May 1, 1953, March 15, 1954, May 15, 1955, August 15, 1957, June 1, 1959, December 1, 1966, October 1, 1968, December 1, 1969, July 1, 1970, December 15, 1970, June 15, 1971, November 15, 1971, January 15, 1973, May 1, 1974, October 1, 1974, January 15, 1975, November 1, 1975, December 15, 1975, February 1, 1976, June 15, 1976, July 15, 1976, February 15, 1977, March 1, 1977, June 15, 1977, July 1, 1977, October 1, 1977, June 1, 1978, October 15, 1978, March 15, 1979, July 1, 1979, September 1, 1979, September 15, 1979, January 1, 1980, April 1, 1980, August 15, 1980, August 1, 1981, November 1, 1981, June 30, 1982, August 15, 1982, June 1, 1983, October 1, 1984, May 1, 1985, May 15, 1985, October 15, 1985, April 1, 1986, August 15, 1986, November 30, 1986, January 31, 1987, April 1, 1987, August 15, 1987, November 30, 1987, June 15, 1989, July 15, 1989, December 1, 1989, February 15, 1990, November 1, 1990, April 1, 1991, May 1, 1991, May 15, 1991, September 1, 1991, November 1, 1991, January 15, 1992, February 29, 1992, April 15, 1992, July 15, 1992, July 31, 1992, November 30, 1992, December 15, 1992, January 1, 1993, March 1, 1993 and March 15, 1993 supplemental to the Original Indenture, have heretofore been entered into between the Company and the Trustee (the Original Indenture and all indentures supplemental thereto together being hereinafter sometimes referred to as the "Indenture"); and ISSUE OF WHEREAS, the Indenture provides that said bonds shall be BONDS UNDER issuable in one or more series, and makes provision that the INDENTURE. rates of interest and dates for the payment thereof, the date of maturity or dates of maturity, if of serial maturity, the terms and rates of optional redemption (if redeemable), the forms of registered bonds without coupons of any series and any other provisions and agreements in respect thereof, in the Indenture provided and permitted, as the Board of Directors may determine, may be expressed in a supplemental indenture to be made by the Company to the Trustee thereunder; and BONDS HERETOFORE WHEREAS, bonds in the principal amount of Seven billion two ISSUED. hundred sixty-six million five hundred ninety-seven thousand dollars ($7,266,597,000) have heretofore been issued under the Indenture as follows, viz: |
(1) Bonds of Series A -- Principal Amount $26,016,000, (2) Bonds of Series B -- Principal Amount $23,000,000, (3) Bonds of Series C -- Principal Amount $20,000,000, (4) Bonds of Series D -- Principal Amount $50,000,000, (5) Bonds of Series E -- Principal Amount $15,000,000, (6) Bonds of Series F -- Principal Amount $49,000,000, (7) Bonds of Series G -- Principal Amount $35,000,000, (8) Bonds of Series H -- Principal Amount $50,000,000, (9) Bonds of Series I -- Principal Amount $60,000,000, (10) Bonds of Series J -- Principal Amount $35,000,000, (11) Bonds of Series K -- Principal Amount $40,000,000, (12) Bonds of Series L -- Principal Amount $24,000,000, |
(13) Bonds of Series M -- Principal Amount $40,000,000, (14) Bonds of Series N -- Principal Amount $40,000,000, (15) Bonds of Series O -- Principal Amount $60,000,000, (16) Bonds of Series P -- Principal Amount $70,000,000, (17) Bonds of Series Q -- Principal Amount $40,000,000, (18) Bonds of Series W -- Principal Amount $50,000,000, (19) Bonds of Series AA -- Principal Amount $100,000,000, (20) Bonds of Series BB -- Principal Amount $50,000,000, (21) Bonds of Series CC -- Principal Amount $50,000,000, (22) Bonds of Series UU -- Principal Amount $100,000,000, (23-31) Bonds of Series DDP Nos. 1-9 -- Principal Amount $14,305,000, (32-45) Bonds of Series FFR Nos. 1-14 -- Principal Amount $45,600,000, (46-67) Bonds of Series GGP Nos. 1-22 -- Principal Amount $42,300,000, (68) Bonds of Series HH -- Principal Amount $50,000,000, (69-90) Bonds of Series IIP Nos. 1-22 -- Principal Amount $3,750,000, (91-98) Bonds of Series JJP Nos. 1-8 -- Principal Amount $6,850,000, (99-106) Bonds of Series KKP Nos. 1-8 -- Principal Amount $14,890,000, (107-121) Bonds of Series LLP Nos. 1-15 -- Principal Amount $8,850,000, (122-142) Bonds of Series NNP Nos. 1-21 -- Principal Amount $47,950,000, (143-160) Bonds of Series OOP Nos. 1-18 -- Principal Amount $18,880,000, (161-177) Bonds of Series QQP Nos. 1-17 -- Principal Amount $12,780,000, (178-192) Bonds of Series TTP Nos. 1-15 -- Principal Amount $3,800,000, (193) Bonds of 1980 Series A -- Principal Amount $50,000,000, (194-218) Bonds of 1980 Series CP Nos. 1-25 -- Principal Amount $35,000,000, (219-229) Bonds of 1980 Series DP Nos. 1-11 -- Principal Amount $10,750,000, (230-243) Bonds of 1981 Series AP Nos. 1-14 -- Principal Amount $59,000,000, (244) Bonds of 1985 Series A -- Principal Amount $35,000,000, (245) Bonds of 1985 Series B -- Principal Amount $50,000,000, (246) Bonds of Series PP -- Principal Amount $70,000,000, (247) Bonds of Series RR -- Principal Amount $70,000,000, (248) Bonds of Series EE -- Principal Amount $50,000,000, (249-250) Bonds of Series MMP and MMP No. 2 -- Principal Amount $5,430,000, (251) Bonds of Series T -- Principal Amount $75,000,000, (252) Bonds of Series U -- Principal Amount $75,000,000, (253) Bonds of 1986 Series B -- Principal Amount $100,000,000, (254) Bonds of 1987 Series D -- Principal Amount $250,000,000, (255) Bonds of 1987 Series E -- Principal Amount $150,000,000, |
all of which have either been retired and cancelled, or no longer represent obligations of the Company, having been called for redemption and funds necessary to effect the payment, redemption and retirement thereof having been deposited with the Trustee as a special trust fund to be applied for such purpose; (256) Bonds of Series R in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof; (257) Bonds of Series S in the principal amount of One hundred fifty million dollars ($150,000,000), all of which are outstanding at the date hereof; (258) Bonds of Series V in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof; (259) Bonds of Series X in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof; (260) Bonds of Series Y in the principal amount of Sixty million dollars ($60,000,000), all of which are outstanding at the date hereof; (261) Bonds of Series Z in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof; |
(262-267) Bonds of Series KKP Nos. 9-14 in the principal amount of One hundred ninety-three million two hundred ninety thousand dollars ($193,290,000), all of which are outstanding at the date hereof; (268-269) Bonds of Series QQP Nos. 18-19 in the principal amount of Eight hundred seventy thousand dollars ($870,000), all of which are outstanding at the date hereof; (270) Bonds of Series SS in the principal amount of One hundred fifty million dollars ($150,000,000), of which One hundred thirty million dollars ($130,000,000) principal amount have heretofore been retired and Twenty million dollars ($20,000,000) principal amount are outstanding at the date hereof; (271) Bonds of 1980 Series B in the principal amount of One hundred million dollars ($100,000,000), of which Seventy-nine million eight hundred thousand dollars ($79,800,000) principal amount have heretofore been retired and Twenty million two hundred thousand dollars ($20,200,000) principal amount are outstanding at the date hereof; (272-273) Bonds of 1981 Series AP Nos. 15-16 in the principal amount of Sixty-five million dollars ($65,000,000), all of which are outstanding at the date hereof; (274) Bonds of 1984 Series AP in the principal amount of Two million four hundred thousand dollars ($2,400,000), all of which are outstanding at the date hereof; (275) Bonds of 1984 Series BP in the principal amount of Seven million seven hundred fifty thousand dollars ($7,750,000), all of which are outstanding at the date hereof; (276) Bonds of 1986 Series A in the principal amount of Two hundred million dollars ($200,000,000), all of which are outstanding at the date hereof; (277) Bonds of 1986 Series C in the principal amount of Two hundred million dollars ($200,000,000), all of which are outstanding at the date hereof; (278) Bonds of 1987 Series A in the principal amount of Three hundred million dollars ($300,000,000), all of which are outstanding at the date hereof; (279) Bonds of 1987 Series B in the principal amount of One hundred seventy-five million dollars ($175,000,000), all of which are outstanding at the date hereof; (280) Bonds of 1987 Series C in the principal amount of Two hundred twenty-five million dollars ($225,000,000), all of which are outstanding at the date hereof; (281) Bonds of 1987 Series F in the principal amount of Two hundred million dollars ($200,000,000), all of which are outstanding at the date hereof; (282) Bonds of 1989 Series A in the principal amount of Three hundred million dollars ($300,000,000), all of which are outstanding at the date hereof; (283) Bonds of 1989 Series BP in the principal amount of Sixty-six million five hundred sixty-five thousand dollars ($66,565,000), all of which are outstanding at the date hereof; (284) Bonds of 1990 Series A in the principal amount of One hundred ninety-four million six hundred forty-nine thousand dollars ($194,649,000) of which Twenty-five million one hundred sixteen thousand dollars ($25,116,000) principal amount have heretofore been retired and One hundred sixty-nine million five hundred thirty-three thousand dollars ($169,533,000) principal amount are outstanding at the date hereof; (285) Bonds of 1990 Series B in the principal amount of Two hundred fifty-six million nine hundred thirty-two thousand dollars ($256,932,000) of which Thirty-eight million sixty-four thousand dollars ($38,064,000) principal amount have heretofore been retired and Two hundred eighteen million eight hundred sixty-eight thousand dollars ($218,868,000) principal amount are outstanding at the date hereof; |
(286) Bonds of 1990 Series C in the principal amount of Eighty-five million four hundred seventy-five thousand dollars ($85,475,000) of which Thirteen million six hundred seventy-six thousand dollars ($13,676,000) principal amount have heretofore been retired and Seventy-one million seven hundred ninety-nine thousand dollars ($71,799,000) principal amount are outstanding at the date hereof; (287) Bonds of 1991 Series AP in the principal amount of Thirty-two million three hundred seventy-five thousand dollars ($32,375,000), all of which are outstanding at the date hereof; (288) Bonds of 1991 Series BP in the principal amount of Twenty-five million nine hundred ten thousand dollars ($25,910,000), all of which are outstanding at the date hereof; (289) Bonds of 1991 Series CP in the principal amount of Thirty-two million eight hundred thousand dollars ($32,800,000), all of which are outstanding at the date hereof; (290) Bonds of 1991 Series DP in the principal amount of Thirty-seven million six hundred thousand dollars ($37,600,000), all of which are outstanding at the date hereof; (291) Bonds of 1991 Series EP in the principal amount of Forty-one million four hundred eighty thousand dollars ($41,480,000), all of which are outstanding at the date hereof; (292) Bonds of 1991 Series FP in the principal amount of Ninety-eight million three hundred seventy-five thousand dollars ($98,375,000), all of which are outstanding at the date hereof; (293) Bonds of 1992 Series BP in the principal amount of Twenty million nine hundred seventy-five thousand dollars ($20,975,000), all of which are outstanding at the date hereof; (294) Bonds of 1992 Series AP in the principal amount of Sixty-six million dollars ($66,000,000), all of which are outstanding at the date hereof; (295) Bonds of 1992 Series D in the principal amount of Three hundred million dollars ($300,000,000), all of which are outstanding at the date hereof; (296) Bonds of 1992 Series CP in the principal amount of Thirty-five million dollars ($35,000,000), all of which are outstanding at the date hereof; (297) Bonds of 1992 Series E in the principal amount of Fifty million dollars ($50,000,000), all of which are outstanding at the date hereof; (298) Bonds of 1989 Series BP No. 2 in the principal amount of Thirty-six million dollars ($36,000,000), all of which are outstanding at the date hereof; (299) Bonds of 1993 Series C in the principal amount of Two hundred twenty-five million dollars ($225,000,000), all of which are outstanding at the date hereof; (300) Bonds of 1993 Series B in the principal amount of Fifty million dollars ($50,000,000), all of which are outstanding at the date hereof; (301) Bonds of 1993 Series E in the principal amount of Four hundred million dollars ($400,000,000), all of which are outstanding at the date hereof; and (302) Bonds of 1993 Series D in the principal amount of one hundred million dollars ($100,000,000), all of which are outstanding at the date hereof; and, accordingly, of the bonds so issued, Four billion five hundred ninety-seven million seven hundred ninety thousand dollars ($4,597,790,000) principal amount are outstanding at the date hereof; and |
REASON FOR WHEREAS, the Michigan Strategic Fund has agreed to issue CREATION OF and sell $5,685,000 principal amount of its Limited NEW SERIES. Obligation Refunding Revenue Bonds (The Detroit Edison Company Pollution Control Bonds Project), Collateralized Series 1993BB, and $5,825,000 principal amount of its Limited Obligation Refunding Revenue Bonds (The Detroit Edison Company Pollution Control Bonds Project), Collateralized Series 1993CC, each in order to provide funds for the refunding of certain pollution control related bonds previously issued to finance pollution control projects of the Company; and |
WHEREAS, the Company will enter into Loan Agreements, dated as of April 1, 1993 and June 1, 1993 with the Michigan Strategic Fund in connection with the issuance of the Collateralized Series 1993BB Bonds and the Collateralized Series 1993CC Bonds, respectively, in order to refund certain pollution control related bonds, and pursuant to such Loan Agreements the Company has agreed to issue its General and Refunding Mortgage Bonds under the Indenture in order further to secure its obligations under such Loan Agreements; and WHEREAS, for such purposes the Company desires to issue new series of bonds to be issued under the Indenture and to be authenticated and delivered pursuant to Section 8 of Article III of the Indenture; and BONDS TO BE WHEREAS, the Company desires by this Supplemental 1993 SERIES FP AND 1993 Indenture to create such new series of bonds, to be SERIES IP. designated "General and Refunding Mortgage Bonds, 1993 Series FP" and "General and Refunding Mortgage Bonds, 1993 Series IP"; and FURTHER WHEREAS, the Original Indenture, by its terms, includes in ASSURANCE. the property subject to the lien thereof all of the estates and properties, real, personal and mixed, rights, privileges and franchises of every nature and kind and wheresoever situate, then or thereafter owned or possessed by or belonging to the Company or to which it was then or at any time thereafter might be entitled in law or in equity (saving and excepting, however, the property therein specifically excepted or released from the lien thereof), and the Company therein covenanted that it would, upon reasonable request, execute and deliver such further instruments as may be necessary or proper for the better assuring and confirming unto the Trustee all or any part of the trust estate, whether then or thereafter owned or acquired by the Company (saving and excepting, however, property specifically excepted or released from the lien thereof); and AUTHORIZATION WHEREAS, the Company in the exercise of the powers and OF SUPPLEMENTAL authority conferred upon and reserved to it under and by INDENTURE. virtue of the provisions of the Indenture, and pursuant to resolutions of its Board of Directors has duly resolved and determined to make, execute and deliver to the Trustee a supplemental indenture in the form hereof for the purposes herein provided; and WHEREAS, all conditions and requirements necessary to make this Supplemental Indenture a valid and legally binding instrument in accordance with its terms have been done, performed and fulfilled, and the execution and delivery hereof have been in all respects duly authorized; CONSIDERATION NOW, THEREFORE, THIS INDENTURE WITNESSETH: That The FOR SUPPLEMENTAL Detroit Edison Company, in consideration of the premises and INDENTURE. of the covenants contained in the Indenture and of the sum of One Dollar ($1.00) and other good and valuable consideration to it duly paid by the Trustee at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, hereby covenants and agrees to and with the Trustee and its successors in the trusts under the Original Indenture and in said indentures supplemental thereto as follows: |
PART I. CREATION OF THREE HUNDRED SIXTH SERIES OF BONDS. GENERAL AND REFUNDING MORTGAGE BONDS, 1993 SERIES FP |
CERTAIN TERMS SECTION 1. The Company hereby creates the Three hundred OF BONDS OF sixth series of bonds to be issued under and secured by the 1993 SERIES FP. Original Indenture as amended to date and as further amended by this Supplemental Indenture, to be designated, and to be distinguished from the bonds of all other series, by the title "General and Refunding Mortgage Bonds, 1993 Series FP" (elsewhere herein referred to as the "bonds of 1993 Series FP"). The aggregate principal amount of bonds of 1993 Series FP shall be limited to Five million six hundred eighty-five thousand dollars ($5,685,000), except as provided in Sections 7 and 13 of Article II of the Original Indenture with respect to exchanges and replacements of bonds. Each bond of 1993 Series FP is to be irrevocably assigned to, and registered in the name of, NBD Bank, N.A., as trustee, or a successor trustee (said trustee or any successor trustee being hereinafter referred to as the "Strategic Fund Trust Indenture Trustee"), under the Trust Indenture, dated as of April 1, 1993 (hereinafter called the "Strategic Fund Trust Indenture"), between the Michigan Strategic Fund (hereinafter called "Strategic Fund"), and the Strategic Fund Trust Indenture Trustee, to secure payment of the Michigan Strategic Fund Limited Obligation Refunding Revenue Bonds (The Detroit Edison Company Pollution Control Bonds Project), Collateralized Series 1993BB (hereinafter called the "Strategic Fund Revenue Bonds"), issued by the Strategic Fund under the Strategic Fund Trust Indenture, the proceeds of which have been provided for the refunding of certain pollution control related bonds which the Company has agreed to refund pursuant to the provisions of the Loan Agreement, dated as of April 1, 1993 (hereinafter called the "Strategic Fund Agreement"), between the Company and the Strategic Fund. The bonds of 1993 Series FP shall be issued as registered bonds without coupons in denominations of a multiple of $5,000. The bonds of 1993 Series FP shall be issued in the aggregate principal amount of $5,685,000, shall mature on October 1, 2023 and shall bear interest, payable semi-annually on April 1 and October 1 of each year (commencing October 1, 1993), at the rate of 6.05%, until the principal thereof shall have become due and payable and thereafter until the Company's obligation with respect to the payment of said principal shall have been discharged as provided in the Indenture. The bonds of 1993 Series FP shall be payable as to principal, premium, if any, and interest as provided in the Indenture, but only to the extent and in the manner herein provided. The bonds of 1993 Series FP shall be payable, both as to principal and interest, at the office or agency of the Company in the Borough of Manhattan, The City and State of New York, in any coin or currency of the United States of America which at the time of payment is legal tender for public and private debts. Except as provided herein, each bond of 1993 Series FP shall be dated the date of its authentication and interest shall be payable on the principal represented thereby from the April 1 or October 1 next preceding the date thereof to which interest has been paid on bonds of 1993 Series FP, unless the bond is authenticated on a date to which interest has been paid, in which case interest shall be payable from the date of authentication, or unless the date of authentication is prior to October 1, 1993, in which case interest shall be payable from April 1, 1993. The bonds of 1993 Series FP in definitive form shall be, at the election of the Company, fully engraved or shall be lithographed or printed in authorized denominations as aforesaid and numbered 1 and upwards (with such further designation as may be appropriate and desirable to indicate by such designation the form, series and denominations of bonds of 1993 Series FP). Until bonds of 1993 Series FP in definitive form are ready for delivery, the Company may execute, and upon its request in writing the Trustee shall authenticate and deliver in lieu thereof, bonds of 1993 Series FP in temporary form, as provided in Section 10 of Article II of the Indenture. Temporary bonds of 1993 Series FP, if any, may be printed and may be issued in authorized denominations in substantially the form of definitive bonds of 1993 Series FP, but with such omissions, insertions and variations as may be appropriate for temporary bonds, all as may be determined by the Company. |
Bonds of 1993 Series FP shall not be assignable or transferable except as may be required to effect a transfer to any successor trustee under the Strategic Fund Trust Indenture, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under the Strategic Fund Trust Indenture. Any such transfer shall be made upon surrender thereof for cancellation at the office or agency of the Company in the Borough of Manhattan, The City and State of New York, together with a written instrument of transfer (if so required by the Company or by the Trustee) in form approved by the Company duly executed by the holder or by its duly authorized attorney. Bonds of 1993 Series FP shall in the same manner be exchangeable for a like aggregate principal amount of bonds of 1993 Series FP upon the terms and conditions specified herein and in Section 7 of Article II of the Indenture. The Company waives its rights under Section 7 of Article II of the Indenture not to make exchanges or transfers of bonds of 1993 Series FP, during any period of ten days next preceding any redemption date for such bonds. Bonds of 1993 Series FP, in definitive and temporary form, may bear such legends as may be necessary to comply with any law or with any rules or regulations made pursuant thereto or as may be specified in the Strategic Fund Agreement. Upon payment of the principal or premium, if any, or interest on the Strategic Fund Revenue Bonds, whether at maturity or prior to maturity by redemption or otherwise, or upon provision for the payment thereof having been made in accordance with Articles I or IV of the Strategic Fund Trust Indenture, bonds of 1993 Series FP in a principal amount equal to the principal amount of such Strategic Fund Revenue Bonds, shall, to the extent of such payment of principal, premium or interest, be deemed fully paid and the obligation of the Company thereunder to make such payment shall forthwith cease and be discharged, and, in the case of the payment of principal and premium, if any, such bonds shall be surrendered for cancellation or presented for appropriate notation to the Trustee. REDEMPTION SECTION 2. Bonds of 1993 Series FP shall be redeemed on OF BONDS OF the respective dates and in the respective principal amounts 1993 SERIES FP. which correspond to the redemption dates for, and the principal amounts to be redeemed of, the Strategic Fund Revenue Bonds. In the event the Company elects to redeem any Strategic Fund Revenue Bonds prior to maturity in accordance with the provisions of the Strategic Fund Trust Indenture, the Company shall on the same date redeem bonds of 1993 Series FP in principal amounts and at redemption prices corresponding to the Strategic Fund Revenue Bonds so redeemed. The Company agrees to give the Trustee notice of any such redemption of bonds of 1993 Series FP on the same date as it gives notice of redemption of Strategic Fund Revenue Bonds to the Strategic Fund Trust Indenture Trustee. |
REDEMPTION SECTION 3. In the event of an Event of Default under the OF BONDS OF 1993 SERIES Strategic Fund Trust Indenture and the acceleration of all FP IN EVENT OF Strategic Fund Revenue Bonds, the bonds of 1993 Series FP ACCELERATION shall be redeemable in whole upon receipt by the Trustee of OF STRATEGIC FUND a written demand (hereinafter called a "Redemption Demand") REVENUE BONDS. from the Strategic Fund Trust Indenture Trustee stating that there has occurred under the Strategic Fund Trust Indenture both an Event of Default and a declaration of acceleration of payment of principal, accrued interest and premium, if any, on the Strategic Fund Revenue Bonds, specifying the last date to which interest on the Strategic Fund Revenue Bonds has been paid (such date being hereinafter referred to as the "Initial Interest Accrual Date") and demanding redemption of the bonds of said series. The Trustee shall, within five days after receiving such Redemption Demand, mail a copy thereof to the Company marked to indicate the date of its receipt by the Trustee. Promptly upon receipt by the Company of such copy of a Redemption Demand, the Company shall fix a date on which it will redeem the bonds of said series so demanded to be redeemed (hereinafter called the "Demand Redemption Date"). Notice of the date fixed as the Demand Redemption Date shall be mailed by the Company to the Trustee at least ten days prior to such Demand Redemption Date. The date to be fixed by the Company as and for the Demand Redemption Date may be any date up to and including the earlier of (x) the 60th day after receipt by the Trustee of the Redemption Demand or (y) the maturity date of such bonds first occurring following the 20th day after the receipt by the Trustee of the Redemption Demand; provided, however, that if the Trustee shall not have received such notice fixing the Demand Redemption Date on or before the 10th day preceding the earlier of such dates, the Demand Redemption Date shall be deemed to be the earlier of such dates. The Trustee shall mail notice of the Demand Redemption Date (such notice being hereinafter called the "Demand Redemption Notice") to the Strategic Fund Trust Indenture Trustee not more than ten nor less than five days prior to the Demand Redemption Date. Each bond of 1993 Series FP shall be redeemed by the Company on the Demand Redemption Date therefore upon surrender thereof by the Strategic Fund Trust Indenture Trustee to the Trustee at a redemption price equal to the principal amount thereof plus accrued interest thereon at the rate specified for such bond from the Initial Interest Accrual Date to the Demand Redemption Date plus an amount equal to the aggregate premium, if any, due and payable on such Demand Redemption Date on all Strategic Fund Revenue Bonds; provided, however, that in the event of a receipt by the Trustee of a notice that, pursuant to Section 604 of the Strategic Fund Trust Indenture, the Strategic Fund Trust Indenture Trustee has terminated proceedings to enforce any right under the Strategic Fund Trust Indenture, then any Redemption Demand shall thereby be rescinded by the Strategic Fund Trust Indenture Trustee, and no Demand Redemption Notice shall be given, or, if already given, shall be automatically annulled; but no such rescission or annulment shall extend to or affect any subsequent default or impair any right consequent thereon. Anything herein contained to the contrary notwithstanding, the Trustee is not authorized to take any action pursuant to a Redemption Demand and such Redemption Demand shall be of no force or effect, unless it is executed in the name of the Strategic Fund Trust Indenture Trustee by its President or one of its Vice Presidents. |
CONSENT. SECTION 4. The holders of the bonds of 1993 Series FP, by their acceptance of and holding thereof, consent and agree that bonds of any series may be issued which mature on a date or dates later than October 1, 2024 and also consent to the deletion from the first paragraph of Section 5 of Article II of the Indenture of the phrase "but in no event later than October 1, 2024". Such holders further agree that (a) such consent shall, for all purposes of Article XV of the Indenture and without further action on the part of such holders, be deemed the affirmative vote of such holders at any meeting called pursuant to said Article XV for the purpose of approving such deletion, and (b) such deletion shall become effective at such time as not less than eighty-five per cent (85%) in principal amount of bonds outstanding under the Indenture shall have consented thereto substantially in the manner set forth in this Section 4, or in writing, or by affirmative vote cast at a meeting called pursuant to said Article XV, or by any combination thereof. FORM OF BONDS SECTION 5. The bonds of 1993 Series FP and the form of OF 1993 SERIES FP. Trustee's Certificate to be endorsed on such bonds shall be substantially in the following forms, respectively: |
[FORM OF FACE OF BOND] THE DETROIT EDISON COMPANY GENERAL AND REFUNDING MORTGAGE BOND 1993 SERIES FP, 6.05% DUE OCTOBER 1, 2023 Notwithstanding any provisions hereof or in the Indenture, this bond is not assignable or transferable except as may be required to effect a transfer to any successor trustee under the Trust Indenture, dated as of April 1, 1993 between the Michigan Strategic Fund and NBD Bank, N.A., as trustee, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under said Trust Indenture. $......... No.......... THE DETROIT EDISON COMPANY (hereinafter called the "Company"), a corporation of the State of Michigan, for value received, hereby promises to pay to the Michigan Strategic Fund, or registered assigns, at the Company's office or agency in the Borough of Manhattan, The City and State of New York, the principal sum of dollars ($ ) in lawful money of the United States of America on the date specified in the title hereof and interest thereon at the rate specified in the title hereof, in like lawful money, from April 1, 1993, and after the first payment of interest on bonds of this Series has been made or otherwise provided for, from the most recent date to which interest has been paid or otherwise provided for, semi-annually on April 1 and October 1 of each year (commencing October 1, 1993), until the Company's obligation with respect to payment of said principal shall have been discharged, all as provided, to the extent and in the manner specified in the Indenture hereinafter mentioned on the reverse hereof and in the supplemental indenture pursuant to which this bond has been issued. Under a Trust Indenture, dated as of April 1, 1993 (hereinafter called the "Strategic Fund Trust Indenture"), between the Michigan Strategic Fund (hereinafter called "Strategic Fund"), and NBD Bank, N.A., as trustee (hereinafter called the "Strategic Fund Trust Indenture Trustee"), the Strategic Fund has issued Limited Obligation Refunding Revenue Bonds (The Detroit Edison Company Pollution Control Bonds Project), Collateralized Series 1993BB (hereinafter called the "Strategic Fund Revenue Bonds"). This bond was originally issued to the Strategic Fund and simultaneously irrevocably assigned to the Strategic Fund Trust Indenture Trustee so as to secure the payment of the Strategic Fund Revenue Bonds. Payments of principal of, or premium, if any, or interest on, Strategic Fund Revenue Bonds shall constitute like payments on this bond as further provided herein and in the supplemental indenture pursuant to which this bond has been issued. Reference is hereby made to such further provisions of this bond set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though set forth at this place. This bond shall not be valid or become obligatory for any purpose until Bankers Trust Company, the Trustee under the Indenture hereinafter mentioned on the reverse hereof, or its successor thereunder, shall have signed the form of certificate endorsed hereon. |
IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY has caused this instrument to be executed by its Chairman of the Board and its Vice President and Treasurer, with their manual or facsimile signatures, and its corporate seal, or a facsimile thereof, to be impressed or imprinted hereon and the same to be attested by its Corporate Secretary or an Assistant Corporate Secretary with his or her manual or facsimile signature. |
Dated: THE DETROIT EDISON COMPANY By ............................ Chairman of the Board ............................ Vice President Attest: and Treasurer ............................ Corporate Secretary |
[FORM OF REVERSE OF BOND] This bond is one of an authorized issue of bonds of the Company, unlimited as to amount except as provided in the Indenture hereinafter mentioned or any indentures supplemental thereto, and is one of a series of General and Refunding Mortgage Bonds known as 1993 Series FP, limited to an aggregate principal amount of $5,685,000, except as otherwise provided in the Indenture hereinafter mentioned. This bond and all other bonds of said series are issued and to be issued under, and are all equally and ratably secured (except insofar as any sinking, amortization, improvement or analogous fund, established in accordance with the provisions of the Indenture hereinafter mentioned, may afford additional security for the bonds of any particular series and except as provided in Section 3 of Article VI of said Indenture) by an Indenture, dated as of October 1, 1924, duly executed by the Company to Bankers Trust Company, a corporation of the State of New York, as Trustee, to which Indenture and all indentures supplemental thereto (including the Supplemental Indenture dated as of April 1, 1993) reference is hereby made for a description of the properties and franchises mortgaged and conveyed, the nature and extent of the security, the terms and conditions upon which the bonds are issued and under which additional bonds may be issued, and the rights of the holders of the bonds and of the Trustee in respect of such security (which Indenture and all indentures supplemental thereto, including the Supplemental Indenture dated as of April 1, 1993, are hereinafter collectively called the "Indenture"). As provided in the Indenture, said bonds may be for various principal sums and are issuable in series, which may mature at different times, may bear interest at different rates and may otherwise vary as in said Indenture provided. With the consent of the Company and to the extent permitted by and as provided in the Indenture, the rights and obligations of the Company and of the holders of the bonds and the terms and provisions of the Indenture, or of any indenture supplemental thereto, may be modified or altered in certain respects by affirmative vote of at least eighty-five percent (85%) in amount of the bonds then outstanding, and, if the rights of one or more, but less than all, series of bonds then outstanding are to be affected by the action proposed to be taken, then also by affirmative vote of at least eighty-five percent (85%) in amount of the series of bonds so to be affected (excluding in every instance bonds disqualified from voting by reason of the Company's interest therein as specified in the Indenture); provided, however, that, without the consent of the holder hereof, no such modification or alteration shall, among other things, affect the terms of payment of the principal of or the interest on this bond, which in those respects is unconditional. The holders of the bonds of 1993 Series FP, by their acceptance of and holding thereof, consent and agree that bonds of any series may be issued which mature on a date or dates later than October 1, 2024 and also consent to the deletion from the first paragraph of Section 5 of Article II of the Indenture of the phrase "but in no event later than October 1, 2024,". Such holders further agree that (a) such consent shall, for all purposes of Article XV of the Indenture and without further action on the part of such holders, be deemed the affirmative vote of such holders at any meeting called pursuant to said Article XV for the purpose of approving such deletion, and (b) such deletion shall become effective at such time as not less than eighty-five per cent (85%) in principal amount of bonds outstanding under the Indenture shall have consented thereto substantially in the manner set forth in Section 4 of Part I of the Supplemental Indenture dated as of April 1, 1993, or in writing, or by affirmative vote cast at a meeting called pursuant to said Article XV, or by any combination thereof. This bond is redeemable upon the terms and conditions set forth in the Indenture, including provision for redemption upon demand of the Strategic Fund Trust Indenture Trustee following the occurrence of an Event of Default under the Strategic Fund Trust Indenture and the acceleration of the principal of the Strategic Fund Revenue Bonds. |
Under the Indenture, funds may be deposited with the Trustee (which shall have become available for payment), in advance of the redemption date of any of the bonds of 1993 Series FP (or portions thereof), in trust for the redemption of such bonds (or portions thereof) and the interest due or to become due thereon, and thereupon all obligations of the Company in respect of such bonds (or portions thereof) so to be redeemed and such interest shall cease and be discharged, and the holders thereof shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or with respect to such bonds (or portions thereof) and interest. In case an event of default, as defined in the Indenture, shall occur, the principal of all the bonds issued thereunder may become or be declared due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture. Upon payment of the principal of, or premium, if any, or interest on, the Strategic Fund Revenue Bonds, whether at maturity or prior to maturity by redemption or otherwise or upon provision for the payment thereof having been made in accordance with Articles I or IV of the Strategic Fund Trust Indenture, bonds of 1993 Series FP in a principal amount equal to the principal amount of such Strategic Fund Revenue Bonds and having both a corresponding maturity date and interest rate shall, to the extent of such payment of principal, premium or interest, be deemed fully paid and the obligation of the Company thereunder to make such payment shall forthwith cease and be discharged, and, in the case of the payment of principal and premium, if any, such bonds of said series shall be surrendered for cancellation or presented for appropriate notation to the Trustee. This bond is not assignable or transferable except as may be required to effect a transfer to any successor trustee under the Strategic Fund Trust Indenture, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under the Strategic Fund Trust Indenture. Any such transfer shall be made by the registered holder hereof, in person or by his attorney duly authorized in writing, on the books of the Company kept at its office or agency in the Borough of Manhattan, The City and State of New York, upon surrender and cancellation of this bond, and thereupon, a new registered bond of the same series of authorized denominations for a like aggregate principal amount will be issued to the transferee in exchange therefor, and this bond with others in like form may in like manner be exchanged for one or more new bonds of the same series of other authorized denominations, but of the same aggregate principal amount, all as provided and upon the terms and conditions set forth in the Indenture, and upon payment, in any event, of the charges prescribed in the Indenture. No recourse shall be had for the payment of the principal of or the interest on this bond, or for any claim based hereon or otherwise in respect hereof or of the Indenture, or of any indenture supplemental thereto, against any incorporator, or against any past, present or future stockholder, director or officer, as such, of the Company, or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether for amounts unpaid on stock subscriptions or by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise howsoever; all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released by every holder or owner hereof, as more fully provided in the Indenture. |
[FORM OF TRUSTEE'S CERTIFICATE] FORM OF This bond is one of the bonds, of the series designated TRUSTEE'S therein, described in the within-mentioned Indenture. CERTIFICATE. |
BANKERS TRUST COMPANY,
as Trustee
By ...........................
Authorized Officer
PART II. CREATION OF THREE HUNDRED SEVENTH SERIES OF BONDS. GENERAL AND REFUNDING MORTGAGE BONDS, 1993 SERIES IP CERTAIN TERMS SECTION 1. The Company hereby creates the Three hundred OF BONDS OF seventh series of bonds to be issued under and secured by 1993 SERIES IP. the Original Indenture as amended to date and as further amended by this Supplemental Indenture, to be designated, and to be distinguished from the bonds of all other series, by the title "General and Refunding Mortgage Bonds, 1993 Series IP" (elsewhere herein referred to as the "bonds of 1993 Series IP"). The aggregate principal amount of bonds of 1993 Series IP shall be limited to Five million eight hundred twenty-five thousand dollars ($5,825,000), except as provided in Sections 7 and 13 of Article II of the Original Indenture with respect to exchanges and replacements of bonds. Each bond of 1993 Series IP is to be irrevocably assigned to, and registered in the name of, NBD Bank, N.A., as trustee, or a successor trustee (said trustee or any successor trustee being hereinafter referred to as the "Strategic Fund Trust Indenture Trustee"), under the Trust Indenture, dated as of June 1, 1993 (hereinafter called the "Strategic Fund Trust Indenture"), between the Michigan Strategic Fund (hereinafter called "Strategic Fund"), and the Strategic Fund Trust Indenture Trustee, to secure payment of the Michigan Strategic Fund Limited Obligation Refunding Revenue Bonds (The Detroit Edison Company Pollution Control Bonds Project), Collateralized Series 1993CC (hereinafter called the "Strategic Fund Revenue Bonds"), issued by the Strategic Fund under the Strategic Fund Trust Indenture, the proceeds of which have been provided for the refunding of certain pollution control related bonds which the Company has agreed to refund pursuant to the provisions of the Loan Agreement, dated as of June 1, 1993 (hereinafter called the "Strategic Fund Agreement"), between the Company and the Strategic Fund. The bonds of 1993 Series IP shall be issued as registered bonds without coupons in denominations of a multiple of $5,000. The bonds of 1993 Series IP shall be issued in the aggregate principal amount of $5,825,000, shall mature on October 1, 2023 and shall bear interest, payable semi-annually on April 1 and October 1 of each year (commencing October 1, 1993), at the rate of 6.05%, until the principal thereof shall have become due and payable and thereafter until the Company's obligation with respect to the payment of said principal shall have been discharged as provided in the Indenture. The bonds of 1993 Series IP shall be payable as to principal, premium, if any, and interest as provided in the Indenture, but only to the extent and in the manner herein provided. The bonds of 1993 Series IP shall be payable, both as to principal and interest, at the office or agency of the Company in the Borough of Manhattan, The City and State of New York, in any coin or currency of the United States of America which at the time of payment is legal tender for public and private debts. |
Except as provided herein, each bond of 1993 Series IP shall be dated the date of its authentication and interest shall be payable on the principal represented thereby from the April 1 or October 1 next preceding the date thereof to which interest has been paid on bonds of 1993 Series FP, unless the bond is authenticated on a date to which interest has been paid, in which case interest shall be payable from the date of authentication, or unless the date of authentication is prior to October 1, 1993, in which case interest shall be payable from June 1, 1993. The bonds of 1993 Series IP in definitive form shall be, at the election of the Company, fully engraved or shall be lithographed or printed in authorized denominations as aforesaid and numbered 1 and upwards (with such further designation as may be appropriate and desirable to indicate by such designation the form, series and denominations of bonds of 1993 Series IP). Until bonds of 1993 Series IP in definitive form are ready for delivery, the Company may execute, and upon its request in writing the Trustee shall authenticate and deliver in lieu thereof, bonds of 1993 Series IP in temporary form, as provided in Section 10 of Article II of the Indenture. Temporary bonds of 1993 Series IP, if any, may be printed and may be issued in authorized denominations in substantially the form of definitive bonds of 1993 Series IP, but with such omissions, insertions and variations as may be appropriate for temporary bonds, all as may be determined by the Company. Bonds of 1993 Series IP shall not be assignable or transferable except as may be required to effect a transfer to any successor trustee under the Strategic Fund Trust Indenture, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under the Strategic Fund Trust Indenture. Any such transfer shall be made upon surrender thereof for cancellation at the office or agency of the Company in the Borough of Manhattan, The City and State of New York, together with a written instrument of transfer (if so required by the Company or by the Trustee) in form approved by the Company duly executed by the holder or by its duly authorized attorney. Bonds of 1993 Series IP shall in the same manner be exchangeable for a like aggregate principal amount of bonds of 1993 Series IP upon the terms and conditions specified herein and in Section 7 of Article II of the Indenture. The Company waives its rights under Section 7 of Article II of the Indenture not to make exchanges or transfers of bonds of 1993 Series IP, during any period of ten days next preceding any redemption date for such bonds. Bonds of 1993 Series IP, in definitive and temporary form, may bear such legends as may be necessary to comply with any law or with any rules or regulations made pursuant thereto or as may be specified in the Strategic Fund Agreement. Upon payment of the principal or premium, if any, or interest on the Strategic Fund Revenue Bonds, whether at maturity or prior to maturity by redemption or otherwise, or upon provision for the payment thereof having been made in accordance with Articles I or IV of the Strategic Fund Trust Indenture, bonds of 1993 Series IP in a principal amount equal to the principal amount of such Strategic Fund Revenue Bonds, shall, to the extent of such payment of principal, premium or interest, be deemed fully paid and the obligation of the Company thereunder to make such payment shall forthwith cease and be discharged, and, in the case of the payment of principal and premium, if any, such bonds shall be surrendered for cancellation or presented for appropriate notation to the Trustee. |
REDEMPTION SECTION 2. Bonds of 1993 Series IP shall be redeemed on OF BONDS OF the respective dates and in the respective principal amounts 1993 SERIES IP. which correspond to the redemption dates for, and the principal amounts to be redeemed of, the Strategic Fund Revenue Bonds. In the event the Company elects to redeem any Strategic Fund Revenue Bonds prior to maturity in accordance with the provisions of the Strategic Fund Trust Indenture, the Company shall on the same date redeem bonds of 1993 Series IP in principal amounts and at redemption prices corresponding to the Strategic Fund Revenue Bonds so redeemed. The Company agrees to give the Trustee notice of any such redemption of bonds of 1993 Series IP on the same date as it gives notice of redemption of Strategic Fund Revenue Bonds to the Strategic Fund Trust Indenture Trustee. REDEMPTION SECTION 3. In the event of an Event of Default under the OF BONDS OF 1993 SERIES Strategic Fund Trust Indenture and the acceleration of all IP IN EVENT OF Strategic Fund Revenue Bonds, the bonds of 1993 Series IP ACCELERATION shall be redeemable in whole upon receipt by the Trustee of OF STRATEGIC FUND a written demand (hereinafter called a "Redemption Demand") REVENUE BONDS. from the Strategic Fund Trust Indenture Trustee stating that there has occurred under the Strategic Fund Trust Indenture both an Event of Default and a declaration of acceleration of payment of principal, accrued interest and premium, if any, on the Strategic Fund Revenue Bonds, specifying the last date to which interest on the Strategic Fund Revenue Bonds has been paid (such date being hereinafter referred to as the "Initial Interest Accrual Date") and demanding redemption of the bonds of said series. The Trustee shall, within five days after receiving such Redemption Demand, mail a copy thereof to the Company marked to indicate the date of its receipt by the Trustee. Promptly upon receipt by the Company of such copy of a Redemption Demand, the Company shall fix a date on which it will redeem the bonds of said series so demanded to be redeemed (hereinafter called the "Demand Redemption Date"). Notice of the date fixed as the Demand Redemption Date shall be mailed by the Company to the Trustee at least ten days prior to such Demand Redemption Date. The date to be fixed by the Company as and for the Demand Redemption Date may be any date up to and including the earlier of (x) the 60th day after receipt by the Trustee of the Redemption Demand or (y) the maturity date of such bonds first occurring following the 20th day after the receipt by the Trustee of the Redemption Demand; provided, however, that if the Trustee shall not have received such notice fixing the Demand Redemption Date on or before the 10th day preceding the earlier of such dates, the Demand Redemption Date shall be deemed to be the earlier of such dates. The Trustee shall mail notice of the Demand Redemption Date (such notice being hereinafter called the "Demand Redemption Notice") to the Strategic Fund Trust Indenture Trustee not more than ten nor less than five days prior to the Demand Redemption Date. Each bond of 1993 Series IP shall be redeemed by the Company on the Demand Redemption Date therefore upon surrender thereof by the Strategic Fund Trust Indenture Trustee to the Trustee at a redemption price equal to the principal amount thereof plus accrued interest thereon at the rate specified for such bond from the Initial Interest Accrual Date to the Demand Redemption Date plus an amount equal to the aggregate premium, if any, due and payable on such Demand Redemption Date on all Strategic Fund Revenue Bonds; provided, however, that in the event of a receipt by the Trustee of a notice that, pursuant to Section 604 of the Strategic Fund Trust Indenture, the Strategic Fund Trust Indenture Trustee has terminated proceedings to enforce any right under the Strategic Fund Trust Indenture, then any Redemption Demand shall thereby be rescinded by the Strategic Fund Trust Indenture Trustee, and no Demand Redemption Notice shall be given, or, if already given, shall be automatically annulled; but no such rescission or annulment shall extend to or affect any subsequent default or impair any right consequent thereon. Anything herein contained to the contrary notwithstanding, the Trustee is not authorized to take any action pursuant to a Redemption Demand and such Redemption Demand shall be of no force or effect, unless it is executed in the name of the Strategic Fund Trust Indenture Trustee by its President or one of its Vice Presidents. |
CONSENT. SECTION 4. The holders of the bonds of 1993 Series IP, by their acceptance of and holding thereof, consent and agree that bonds of any series may be issued which mature on a date or dates later than October 1, 2024 and also consent to the deletion from the first paragraph of Section 5 of Article II of the Indenture of the phrase "but in no event later than October 1, 2024". Such holders further agree that (a) such consent shall, for all purposes of Article XV of the Indenture and without further action on the part of such holders, be deemed the affirmative vote of such holders at any meeting called pursuant to said Article XV for the purpose of approving such deletion, and (b) such deletion shall become effective at such time as not less than eighty-five per cent (85%) in principal amount of bonds outstanding under the Indenture shall have consented thereto substantially in the manner set forth in this Section 4, or in writing, or by affirmative vote cast at a meeting called pursuant to said Article XV, or by any combination thereof. FORM OF BONDS SECTION 5. The bonds of 1993 Series IP and the form of OF 1993 SERIES IP. Trustee's Certificate to be endorsed on such bonds shall be substantially in the following forms, respectively: |
[FORM OF FACE OF BOND] THE DETROIT EDISON COMPANY GENERAL AND REFUNDING MORTGAGE BOND 1993 SERIES IP, 6.05% DUE OCTOBER 1, 2023 Notwithstanding any provisions hereof or in the Indenture, this bond is not assignable or transferable except as may be required to effect a transfer to any successor trustee under the Trust Indenture, dated as of June 1, 1993 between the Michigan Strategic Fund and NBD Bank, N.A., as trustee, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under said Trust Indenture. $......... No.......... THE DETROIT EDISON COMPANY (hereinafter called the "Company"), a corporation of the State of Michigan, for value received, hereby promises to pay to the Michigan Strategic Fund, or registered assigns, at the Company's office or agency in the Borough of Manhattan, The City and State of New York, the principal sum of dollars ($ ) in lawful money of the United States of America on the date specified in the title hereof and interest thereon at the rate specified in the title hereof, in like lawful money, from June 1, 1993, and after the first payment of interest on bonds of this Series has been made or otherwise provided for, from the most recent date to which interest has been paid or otherwise provided for, semi-annually on April 1 and October 1 of each year (commencing October 1, 1993), until the Company's obligation with respect to payment of said principal shall have been discharged, all as provided, to the extent and in the manner specified in the Indenture hereinafter mentioned on the reverse hereof and in the supplemental indenture pursuant to which this bond has been issued. Under a Trust Indenture, dated as of June 1, 1993 (hereinafter called the "Strategic Fund Trust Indenture"), between the Michigan Strategic Fund (hereinafter called "Strategic Fund"), and NBD Bank, N.A., as trustee (hereinafter called the "Strategic Fund Trust Indenture Trustee"), the Strategic Fund has issued Limited Obligation Refunding Revenue Bonds (The Detroit Edison Company Pollution Control Bonds Project), Collateralized Series 1993CC (hereinafter called the "Strategic Fund Revenue Bonds"). This bond was originally issued to the Strategic Fund and simultaneously irrevocably assigned to the Strategic Fund Trust Indenture Trustee so as to secure the payment of the Strategic Fund Revenue Bonds. Payments of principal of, or premium, if any, or interest on, Strategic Fund Revenue Bonds shall constitute like payments on this bond as further provided herein and in the supplemental indenture pursuant to which this bond has been issued. Reference is hereby made to such further provisions of this bond set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though set forth at this place. This bond shall not be valid or become obligatory for any purpose until Bankers Trust Company, the Trustee under the Indenture hereinafter mentioned on the reverse hereof, or its successor thereunder, shall have signed the form of certificate endorsed hereon. |
IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY has caused this instrument to be executed by its Chairman of the Board and its Vice President and Treasurer, with their manual or facsimile signatures, and its corporate seal, or a facsimile thereof, to be impressed or imprinted hereon and the same to be attested by its Corporate Secretary or an Assistant Corporate Secretary with his or her manual or facsimile signature. |
Dated: THE DETROIT EDISON COMPANY By ............................ Chairman of the Board ............................ Vice President Attest: and Treasurer ............................ Corporate Secretary |
[FORM OF REVERSE OF BOND] This bond is one of an authorized issue of bonds of the Company, unlimited as to amount except as provided in the Indenture hereinafter mentioned or any indentures supplemental thereto, and is one of a series of General and Refunding Mortgage Bonds known as 1993 Series IP, limited to an aggregate principal amount of $5,825,000, except as otherwise provided in the Indenture hereinafter mentioned. This bond and all other bonds of said series are issued and to be issued under, and are all equally and ratably secured (except insofar as any sinking, amortization, improvement or analogous fund, established in accordance with the provisions of the Indenture hereinafter mentioned, may afford additional security for the bonds of any particular series and except as provided in Section 3 of Article VI of said Indenture) by an Indenture, dated as of October 1, 1924, duly executed by the Company to Bankers Trust Company, a corporation of the State of New York, as Trustee, to which Indenture and all indentures supplemental thereto (including the Supplemental Indenture dated as of April 1, 1993) reference is hereby made for a description of the properties and franchises mortgaged and conveyed, the nature and extent of the security, the terms and conditions upon which the bonds are issued and under which additional bonds may be issued, and the rights of the holders of the bonds and of the Trustee in respect of such security (which Indenture and all indentures supplemental thereto, including the Supplemental Indenture dated as of April 1, 1993, are hereinafter collectively called the "Indenture"). As provided in the Indenture, said bonds may be for various principal sums and are issuable in series, which may mature at different times, may bear interest at different rates and may otherwise vary as in said Indenture provided. With the consent of the Company and to the extent permitted by and as provided in the Indenture, the rights and obligations of the Company and of the holders of the bonds and the terms and provisions of the Indenture, or of any indenture supplemental thereto, may be modified or altered in certain respects by affirmative vote of at least eighty-five percent (85%) in amount of the bonds then outstanding, and, if the rights of one or more, but less than all, series of bonds then outstanding are to be affected by the action proposed to be taken, then also by affirmative vote of at least eighty-five percent (85%) in amount of the series of bonds so to be affected (excluding in every instance bonds disqualified from voting by reason of the Company's interest therein as specified in the Indenture); provided, however, that, without the consent of the holder hereof, no such modification or alteration shall, among other things, affect the terms of payment of the principal of or the interest on this bond, which in those respects is unconditional. The holders of the bonds of 1993 Series IP, by their acceptance of and holding thereof, consent and agree that bonds of any series may be issued which mature on a date or dates later than October 1, 2024 and also consent to the deletion from the first paragraph of Section 5 of Article II of the Indenture of the phrase "but in no event later than October 1, 2024,". Such holders further agree that (a) such consent shall, for all purposes of Article XV of the Indenture and without further action on the part of such holders, be deemed the affirmative vote of such holders at any meeting called pursuant to said Article XV for the purpose of approving such deletion, and (b) such deletion shall become effective at such time as not less than eighty-five per cent (85%) in principal amount of bonds outstanding under the Indenture shall have consented thereto substantially in the manner set forth in Section 4 of Part II of the Supplemental Indenture dated as of April 1, 1993, or in writing, or by affirmative vote cast at a meeting called pursuant to said Article XV, or by any combination thereof. This bond is redeemable upon the terms and conditions set forth in the Indenture, including provision for redemption upon demand of the Strategic Fund Trust Indenture Trustee following the occurrence of an Event of Default under the Strategic Fund Trust Indenture and the acceleration of the principal of the Strategic Fund Revenue Bonds. |
Under the Indenture, funds may be deposited with the Trustee (which shall have become available for payment), in advance of the redemption date of any of the bonds of 1993 Series IP (or portions thereof), in trust for the redemption of such bonds (or portions thereof) and the interest due or to become due thereon, and thereupon all obligations of the Company in respect of such bonds (or portions thereof) so to be redeemed and such interest shall cease and be discharged, and the holders thereof shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or with respect to such bonds (or portions thereof) and interest. In case an event of default, as defined in the Indenture, shall occur, the principal of all the bonds issued thereunder may become or be declared due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture. Upon payment of the principal of, or premium, if any, or interest on, the Strategic Fund Revenue Bonds, whether at maturity or prior to maturity by redemption or otherwise or upon provision for the payment thereof having been made in accordance with Articles I or IV of the Strategic Fund Trust Indenture, bonds of 1993 Series IP in a principal amount equal to the principal amount of such Strategic Fund Revenue Bonds and having both a corresponding maturity date and interest rate shall, to the extent of such payment of principal, premium or interest, be deemed fully paid and the obligation of the Company thereunder to make such payment shall forthwith cease and be discharged, and, in the case of the payment of principal and premium, if any, such bonds of said series shall be surrendered for cancellation or presented for appropriate notation to the Trustee. This bond is not assignable or transferable except as may be required to effect a transfer to any successor trustee under the Strategic Fund Trust Indenture, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under the Strategic Fund Trust Indenture. Any such transfer shall be made by the registered holder hereof, in person or by his attorney duly authorized in writing, on the books of the Company kept at its office or agency in the Borough of Manhattan, The City and State of New York, upon surrender and cancellation of this bond, and thereupon, a new registered bond of the same series of authorized denominations for a like aggregate principal amount will be issued to the transferee in exchange therefor, and this bond with others in like form may in like manner be exchanged for one or more new bonds of the same series of other authorized denominations, but of the same aggregate principal amount, all as provided and upon the terms and conditions set forth in the Indenture, and upon payment, in any event, of the charges prescribed in the Indenture. No recourse shall be had for the payment of the principal of or the interest on this bond, or for any claim based hereon or otherwise in respect hereof or of the Indenture, or of any indenture supplemental thereto, against any incorporator, or against any past, present or future stockholder, director or officer, as such, of the Company, or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether for amounts unpaid on stock subscriptions or by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise howsoever; all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released by every holder or owner hereof, as more fully provided in the Indenture. |
[FORM OF TRUSTEE'S CERTIFICATE] FORM OF This bond is one of the bonds, of the series designated TRUSTEE'S therein, described in the within-mentioned Indenture. CERTIFICATE. |
BANKERS TRUST COMPANY,
as Trustee
By ...........................
Authorized Officer
PART III. RECORDING AND FILING DATA RECORDING AND The Original Indenture and indentures supplemental FILING OF ORIGINAL thereto have been recorded and/or filed and Certificates of INDENTURE. Provision for Payment have been recorded as hereinafter set forth. The Original Indenture has been recorded as a real estate mortgage and filed as a chattel mortgage in the offices of the respective Registers of Deeds of certain counties in the State of Michigan as set forth in the Supplemental Indenture dated as of September 1, 1947, has been recorded as a real estate mortgage in the office of the Register of Deeds of Genesee County, Michigan as set forth in the Supplemental Indenture dated as of May 1, 1974, has been filed in the Office of the Secretary of State of Michigan on November 16, 1951 and has been filed and recorded in the office of the Interstate Commerce Commission on December 8, 1969. RECORDING AND Pursuant to the terms and provisions of the Original FILING OF Indenture, indentures supplemental thereto heretofore SUPPLEMENTAL entered into have been recorded as a real estate mortgage INDENTURES. and/or filed as a chattel mortgage or as a financing statement in the offices of the respective Registers of Deeds of certain counties in the State of Michigan, the Office of the Secretary of State of Michigan and the Office of the Interstate Commerce Commission, as set forth in supplemental indentures as follows: |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- June 1, 1925(a)(b)................ Series B Bonds February 1, 1940 August 1, 1927(a)(b).............. Series C Bonds February 1, 1940 February 1, 1931(a)(b)............ Series D Bonds February 1, 1940 June 1, 1931(a)(b)................ Subject Properties February 1, 1940 October 1, 1932(a)(b)............. Series E Bonds February 1, 1940 September 25, 1935(a)(b).......... Series F Bonds February 1, 1940 September 1, 1936(a)(b)........... Series G Bonds February 1, 1940 November 1, 1936(a)(b)............ Subject Properties February 1, 1940 February 1, 1940(a)(b)............ Subject Properties September 1, 1947 December 1, 1940(a)(b)............ Series H Bonds and September 1, 1947 Additional Provisions September 1, 1947(a)(b)(c)........ Series I Bonds, November 15, 1951 Subject Properties and Additional Provisions March 1, 1950(a)(b)(c)............ Series J Bonds November 15, 1951 and Additional Provisions November 15, 1951(a)(b)(c)........ Series K Bonds January 15, 1953 Additional Provisions and Subject Properties January 15, 1953(a)(b)............ Series L Bonds May 1, 1953 May 1, 1953(a).................... Series M Bonds March 15, 1954 and Subject Properties March 15, 1954(a)(c).............. Series N Bonds May 15, 1955 and Subject Properties |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- May 15, 1955(a)(c)................ Series O Bonds August 15, 1957 and Subject Properties August 15, 1957(a)(c)............. Series P Bonds June 1, 1959 Additional Provisions and Subject Properties June 1, 1959(a)(c)................ Series Q Bonds December 1, 1966 and Subject Properties December 1, 1966(a)(c)............ Series R Bonds October 1, 1968 Additional Provisions and Subject Properties October 1, 1968(a)(c)............. Series S Bonds December 1, 1969 and Subject Properties December 1, 1969(a)(c)............ Series T Bonds July 1, 1970 and Subject Properties July 1, 1970(c)................... Series U Bonds December 15, 1970 and Subject Properties December 15, 1970(c).............. Series V and June 15, 1971 Series W Bonds June 15, 1971(c).................. Series X Bonds November 15, 1971 and Subject Properties November 15, 1971(c).............. Series Y Bonds January 15, 1973 and Subject Properties January 15, 1973(c)............... Series Z Bonds May 1, 1974 and Subject Properties May 1, 1974....................... Series AA Bonds October 1, 1974 and Subject Properties October 1, 1974................... Series BB Bonds January 15, 1975 and Subject Properties January 15, 1975.................. Series CC Bonds November 1, 1975 and Subject Properties November 1, 1975.................. Series DDP Nos. 1-9 Bonds December 15, 1975 and Subject Properties December 15, 1975................. Series EE Bonds February 1, 1976 and Subject Properties February 1, 1976.................. Series FFR Nos. 1-13 Bonds June 15, 1976 June 15, 1976..................... Series GGP Nos. 1-7 Bonds July 15, 1976 and Subject Properties July 15, 1976..................... Series HH Bonds February 15, 1977 and Subject Properties February 15, 1977................. Series MMP Bonds and Subject March 1, 1977 Properties March 1, 1977..................... Series IIP Nos. 1-7 Bonds, June 15, 1977 Series JJP Nos. 1-7 Bonds, Series KKP Nos. 1-7 Bonds and Series LLP Nos. 1-7 Bonds June 15, 1977..................... Series FFR No. 14 Bonds and July 1, 1977 Subject Properties July 1, 1977...................... Series NNP Nos. 1-7 Bonds October 1, 1977 and Subject Properties October 1, 1977................... Series GGP Nos. 8-22 Bonds June 1, 1978 and Series OOP Nos. 1-17 Bonds and Subject Properties |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- June 1, 1978...................... Series PP Bonds, October 15, 1978 Series QQP Nos. 1-9 Bonds and Subject Properties October 15, 1978.................. Series RR Bonds March 15, 1979 and Subject Properties March 15, 1979.................... Series SS Bonds July 1, 1979 and Subject Properties July 1, 1979...................... Series IIP Nos. 8-22 Bonds, September 1, 1979 Series NNP Nos. 8-21 Bonds and Series TTP Nos. 1-15 Bonds and Subject Properties September 1, 1979................. Series JJP No. 8 Bonds, September 15, 1979 Series KKP No. 8 Bonds, Series LLP Nos. 8-15 Bonds, Series MMP No. 2 Bonds and Series OOP No. 18 Bonds and Subject Properties September 15, 1979................ Series UU Bonds January 1, 1980 January 1, 1980................... 1980 Series A Bonds and April 1, 1980 Subject Properties April 1, 1980..................... 1980 Series B Bonds August 15, 1980 August 15, 1980................... Series QQP Nos. 10-19 Bonds, August 1, 1981 1980 Series CP Nos. 1-12 Bonds and 1980 Series DP No. 1-11 Bonds and Subject Properties August 1, 1981.................... 1980 Series CP Nos. 13-25 November 1, 1981 Bonds and Subject Properties November 1, 1981.................. 1981 Series AP Nos. 1-12 June 30, 1982 Bonds June 30, 1982..................... Article XIV Reconfirmation August 15, 1982 August 15, 1982................... 1981 Series AP Nos. 13-14 June 1, 1983 and Subject Properties June 1, 1983...................... 1981 Series AP Nos. 15-16 October 1, 1984 and Subject Properties October 1, 1984................... 1984 Series AP and 1984 May 1, 1985 Series BP Bonds and Subject Properties May 1, 1985....................... 1985 Series A Bonds May 15, 1985 May 15, 1985...................... 1985 Series B Bonds and October 15, 1985 Subject Properties October 15, 1985.................. Series KKP No. 9 Bonds and April 1, 1986 Subject Properties |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- April 1, 1986..................... 1986 Series A and Subject August 15, 1986 Properties August 15, 1986................... 1986 Series B and Subject November 30, 1986 Properties November 30, 1986................. 1986 Series C January 31, 1987 January 31, 1987.................. 1987 Series A April 1, 1987 April 1, 1987..................... 1987 Series B and 1987 August 15, 1987 Series C August 15, 1987................... 1987 Series D and 1987 November 30, 1987 Series E and Subject Properties November 30, 1987................. 1987 Series F June 15, 1989 June 15, 1989..................... 1989 Series A July 15, 1989 July 15, 1989..................... Series KKP No. 10 December 1, 1989 December 1, 1989.................. Series KKP No. 11 and 1989 February 15, 1990 Series BP February 15, 1990................. 1990 Series A, 1990 Series November 1, 1990 B, 1990 Series C, 1990 Series D, 1990 Series E and 1990 Series F November 1, 1990.................. Series KKP No. 12 April 1, 1991 April 1, 1991..................... 1991 Series AP May 1, 1991 May 1, 1991....................... 1991 Series BP and 1991 May 15, 1991 Series CP May 15, 1991...................... 1991 Series DP September 1, 1991 September 1, 1991................. 1991 Series EP November 1, 1991 November 1, 1991.................. 1991 Series FP January 15, 1992 January 15, 1992.................. 1992 Series BP February 29, 1992 and April 15, 1992 February 29, 1992................. 1992 Series AP April 15, 1992 April 15, 1992.................... Series KKP No. 13 July 15, 1992 July 15, 1992..................... 1992 Series CP November 30, 1992 July 31, 1992..................... 1992 Series D November 30, 1992 November 30, 1992................. 1992 Series E and 1993 March 15, 1993 Series D December 15, 1992................. Series KKP No. 14 and 1989 March 15, 1992 Series BP No. 2 January 1, 1993................... 1993 Series C April 1, 1993 |
(b) See Supplemental Indenture dated as of May 1, 1953 for Secretary of State of Michigan filing information.
(c) See Supplemental Indenture dated as of May 1, 1974 for County of Genesee, Michigan recording and filing information.
Further, pursuant to the terms and provisions of the Original Indenture, a Supplemental Indenture dated as of January 1, 1993 providing for the terms of bonds to be issued thereunder of 1993 Series C has heretofore been entered into between the Company and the Trustee and has been filed in the Office of the Secretary of State of Michigan as a financing statement on January 7, 1993 (Filing No. 27056B), has been filed and recorded in the Office of the Interstate Commerce Commission (Recordation No. 5485-DDDD) on January 7, 1993, and has been recorded as a real estate mortgage in the offices of the respective Register of Deeds of certain counties in the State of Michigan, as follows: |
LIBER OF MORTGAGES OR COUNTY COUNTY RECORDED RECORDS PAGE ------ -------- --------- ---- Genesee............................ January 7, 1993 2833 116-141 Huron.............................. January 7, 1993 592 259-284 Ingham............................. January 7, 1993 2077 424-449 Lapeer............................. January 7, 1993 786 362-387 Lenawee............................ January 7, 1993 1235 707-732 Livingston......................... January 7, 1993 1650 0492-0517 Macomb............................. January 7, 1993 5711 44-69 Mason.............................. January 7, 1993 424 146-171 Monroe............................. January 7, 1993 1273 0988-1013 Oakland............................ January 7, 1993 13232 229-254 Sanilac............................ January 7, 1993 437 299-324 St. Clair.......................... January 7, 1993 1081 517-542 Tuscola............................ January 7, 1993 635 772-797 Washtenaw.......................... January 7, 1993 2733 746-771 Wayne.............................. January 7, 1993 26270 267-292 |
RECORDING OF All the bonds of Series A which were issued under the CERTIFICATES Original Indenture dated as of October 1, 1924, and of OF PROVISION Series B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, T, U, FOR PAYMENT. W, AA, BB, CC, DDP Nos. 1-9, FFR Nos. 1-14, GGP Nos. 1-22, HH, IIP Nos. 1-22, JJP Nos. 1-8, KKP Nos. 1-8, LLP Nos. 1-15, NNP Nos. 1-21, OOP Nos. 1-18, QQP Nos. 1-17, TTP Nos. 1-15, UU, 1980 Series A, 1980 Series CP Nos. 1-25, 1980 Series DP Nos. 1-11, 1981 Series AP Nos. 1-14, 1985 Series A, 1985 Series B, PP, RR, EE, MMP, MMP No. 2, 1986 Series B, 1987 Series D, and 1987 Series E which were issued under Supplemental Indentures dated as of, respectively, June 1, 1925, August 1, 1927, February 1, 1931, October 1, 1932, September 25, 1935, September 1, 1936, December 1, 1940, September 1, 1947, November 15, 1951, January 15, 1953, May 1, 1953, March 15, 1954, May 15, 1955, August 15, 1957, June 1, 1959, December 1, 1969, July 1, 1970, December 15, 1970, May 1, 1974, October 1, 1974, January 15, 1975, November 1, 1975, February 1, 1976, June 15, 1976, July 15, 1976, October 1, 1977, March 1, 1977, July 1, 1979, March 1, 1977, March 1, 1977, March 1, 1977, September 1, 1979, July 1, 1977, July 1, 1979, September 15, 1979, October 1, 1977, June 1, 1978, October 1, 1977, July 1, 1979, January 1, 1980, August 15, 1980, November 1, 1981, May 1, 1985, May 15, 1985, June 1, 1978, October 15, 1978, December 15, 1975, February 15, 1977, September 1, 1979, August 15, 1986 and August 15, 1987 have matured or have been called for redemption and funds sufficient for such payment or redemption have been irrevocably deposited with the Trustee for that purpose; and Certificates of Provision for Payment have been recorded in the offices of the respective Registers of Deeds of certain counties in the State of Michigan, with respect to all bonds of Series A, B, C, D, E, F, G, H, K, L, M, O, W, BB, CC, DDP Nos. 1 and 2, FFR Nos. 1-3, GGP Nos. 1 and 2, IIP No. 1, JJP No. 1, KKP No. 1, LLP No. 1 and GGP No. 8. |
PART IV. THE TRUSTEE. TERMS AND The Trustee hereby accepts the trust hereby declared and CONDITIONS OF provided, and agrees to perform the same upon the terms and ACCEPTANCE OF conditions in the Original Indenture, as amended to date and TRUST BY TRUSTEE. as supplemented by this Supplemental Indenture, and in this Supplemental Indenture set forth, and upon the following terms and conditions: The Trustee shall not be responsible in any manner whatsoever for and in respect of the validity or sufficiency of this Supplemental Indenture or the due execution hereof by the Company or for or in respect of the recitals contained herein, all of which recitals are made by the Company solely. PART V. MISCELLANEOUS. CONFIRMATION OF Except to the extent specifically provided therein, no SECTION 318(C) OF provision of this supplemental indenture or any future TRUST INDENTURE supplemental indenture is intended to modify, and the ACT. parties do hereby adopt and confirm, the provisions of Section 318(c) of the Trust Indenture Act which amend and supercede provisions of the Indenture in effect prior to November 15, 1990. EXECUTION IN THIS SUPPLEMENTAL INDENTURE MAY BE SIMULTANEOUSLY COUNTERPARTS. EXECUTED IN ANY NUMBER OF COUNTERPARTS, EACH OF WHICH WHEN SO EXECUTED SHALL BE DEEMED TO BE AN ORIGINAL; BUT SUCH COUNTERPARTS SHALL TOGETHER CONSTITUTE BUT ONE AND THE SAME INSTRUMENT. |
TESTIMONIUM. IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY AND BANKERS TRUST COMPANY HAVE CAUSED THESE PRESENTS TO BE SIGNED IN THEIR RESPECTIVE CORPORATE NAMES BY THEIR RESPECTIVE CHAIRMEN OF THE BOARD, PRESIDENTS, VICE PRESIDENTS, ASSISTANT VICE PRESIDENTS, TREASURERS OR ASSISTANT TREASURERS AND IMPRESSED WITH THEIR RESPECTIVE CORPORATE SEALS, ATTESTED BY THEIR RESPECTIVE SECRETARIES OR ASSISTANT SECRETARIES, ALL AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN. |
THE DETROIT EDISON COMPANY, (Corporate Seal) By _________________ C. C. Arvani Assistant Treasurer EXECUTION. Attest: ________________________ Susan M. Beale Secretary Signed, sealed and delivered by THE DETROIT EDISON COMPANY, in the presence of ________________________ Jane E. Lenart ________________________ Janet A. Scullen |
STATE OF MICHIGAN SS.: COUNTY OF WAYNE ACKNOWLEDGMENT On this 5th day of April, 1993, before me, the subscriber, a OF EXECUTION Notary Public within and for the County of Wayne, in the BY COMPANY. State of Michigan, personally appeared C. C. Arvani, to me personally known, who, being by me duly sworn, did say that he does business at 2000 Second Avenue, Detroit, Michigan 48226 and is the Assistant Treasurer of THE DETROIT EDISON COMPANY, one of the corporations described in and which executed the foregoing instrument; that he knows the corporate seal of the said corporation and that the seal affixed to said instrument is the corporate seal of said corporation; and that said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors and that he subscribed his name thereto by like authority; and said C. C. Arvani, acknowledged said instrument to be the free act and deed of said corporation. |
______________________ (Notarial Seal) Pearl E. Kotter, Notary Public Macomb County, MI (Acting in Wayne County) My Commission Expires August 23, 1993 |
BANKERS TRUST COMPANY, (Corporate Seal) By ________________________ Samir Pandiri Assistant Vice President Attest: ___________________________ Shikha Dombek Assistant Secretary Signed, sealed and delivered by BANKERS TRUST COMPANY, in the presence of ___________________________ Jackie Bartnick ___________________________ Kenwyn Hackshaw |
STATE OF NEW YORK SS.: COUNTY OF NEW YORK |
ACKNOWLEDGMENT On this 5th day of April, 1993, before me, the subscriber, a OF EXECUTION Notary Public within and for the County of Queens, in the BY TRUSTEE. State of New York, personally appeared Samir Pandiri, to me personally known, who, being by me duly sworn, did say that his business office is located at Four Albany Street, New York, New York 10015, and he is Assistant Vice President of BANKERS TRUST COMPANY, one of the corporations described in and which executed the foregoing instrument; that he knows the corporate seal of the said corporation and that the seal affixed to said instrument is the corporate seal of said corporation; and that said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors and that he subscribed his name thereto by like authority; and said Samir Pandiri acknowledged said instrument to be the free act and deed of said corporation. |
(Notarial Seal) _________________________ Marjorie Stanley Notary Public, State of New York No. 41-4986405 Qualified in Queens County Certificate filed in New York County Commission Expires Sept. 16, 1993 |
STATE OF MICHIGAN SS.: COUNTY OF WAYNE |
AFFIDAVIT AS TO C. C. Arvani, being duly sworn, says: that he is the CONSIDERATION Assistant Treasurer of THE DETROIT EDISON COMPANY, the AND GOOD FAITH. Mortgagor named in the foregoing instrument, and that he has knowledge of the facts in regard to the making of said instrument and of the consideration therefor; that the consideration for said instrument was and is actual and adequate, and that the same was given in good faith for the purposes in such instrument set forth. |
_________________ C. C. Arvani Sworn to before me this 5th day of April, 1993 _________________________________ Pearl E. Kotter, Notary Public Macomb County, MI (Acting in Wayne County) My Commission Expires August 23, 1993 (Notarial Seal) This instrument was drafted by Frances B. Rohlman, Esq., 2000 Second Avenue, Detroit, Michigan 48226 |
EXHIBIT 4-25
EXECUTED IN ________ COUNTERPARTS
OF WHICH THIS IS COUNTERPART NO. ________ .
THE DETROIT EDISON COMPANY
(2000 Second Avenue,
Detroit, Michigan 48226)
TO
BANKERS TRUST COMPANY
(Four Albany Street,
New York, New York 10015)
AS TRUSTEE
INDENTURE
Dated as of April 26, 1993
SUPPLEMENTAL TO MORTGAGE AND DEED OF TRUST
DATED AS OF OCTOBER 1, 1924
PROVIDING FOR
(A) SECURED MEDIUM-TERM NOTES, 1993 SERIES G,
AND
(B) RECORDING AND FILING DATA
TABLE OF CONTENTS*
PAGE ---- PARTIES..................................................... 1 RECITALS Original Indenture and Supplementals...................... 1 Issue of Bonds under Indenture............................ 1 Bonds heretofore issued................................... 1 Reason for creation of new series......................... 5 Indenture to be Amended and Bonds to be 1993 Series G..... 5 Further assurance......................................... 5 Authorization of Supplemental Indenture................... 5 Consideration for Supplemental Indenture.................. 5 PART I. AMENDMENT OF ARTICLE II, SECTION 5 OF THE ORIGINAL INDENTURE PART II. CREATION OF THREE HUNDRED EIGHTH SERIES OF BONDS 1993 SERIES G Sec. 1. Terms of Bonds of 1993 Series G..................... 6 Sec. 2. Redemption of Bonds of 1993 Series G................ 7 Exchange and transfer............................... 8 Sec. 3. Consent............................................. 8 Sec. 4. Form of Bonds of 1993 Series G...................... 9 Form of Trustee's Certificate....................... 15 PART III. RECORDING AND FILING DATA Recording and filing of Original Indenture.................. 17 Recording and filing of Supplemental Indentures............. 17 Recording of Certificates of Provision for Payment.......... 21 PART IV. THE TRUSTEE Terms and conditions of acceptance of trust by Trustee...... 22 PART V. MISCELLANEOUS Confirmation of Section 318(c) of Trust Indenture Act....... 22 Execution in Counterparts................................... 22 Testimonium................................................. 23 Execution and Acknowledgements.............................. 23 Affidavit as to consideration and good faith................ 25 |
PARTIES. SUPPLEMENTAL INDENTURE, dated as of the twenty-sixth day of April, in the year one thousand nine hundred and ninety-three, between THE DETROIT EDISON COMPANY, a corporation organized and existing under the laws of the State of Michigan and a transmitting utility (hereinafter called the "Company"), party of the first part, and BANKERS TRUST COMPANY, a corporation organized and existing under the laws of the State of New York, having its corporate trust office at Four Albany Street, in the Borough of Manhattan, The City and State of New York, as Trustee under the Mortgage and Deed of Trust hereinafter mentioned (hereinafter called the "Trustee"), party of the second part. ORIGINAL WHEREAS, the Company has heretofore executed and delivered INDENTURE AND its Mortgage and Deed of Trust (hereinafter referred to as SUPPLEMENTALS. the "Original Indenture"), dated as of October 1, 1924, to the Trustee, for the security of all bonds of the Company outstanding thereunder, and pursuant to the terms and provisions of the Original Indenture, indentures dated as of, respectively, June 1, 1925, August 1, 1927, February 1, 1931, June 1, 1931, October 1, 1932, September 25, 1935, September 1, 1936, November 1, 1936, February 1, 1940, December 1, 1940, September 1, 1947, March 1, 1950, November 15, 1951, January 15, 1953, May 1, 1953, March 15, 1954, May 15, 1955, August 15, 1957, June 1, 1959, December 1, 1966, October 1, 1968, December 1, 1969, July 1, 1970, December 15, 1970, June 15, 1971, November 15, 1971, January 15, 1973, May 1, 1974, October 1, 1974, January 15, 1975, November 1, 1975, December 15, 1975, February 1, 1976, June 15, 1976, July 15, 1976, February 15, 1977, March 1, 1977, June 15, 1977, July 1, 1977, October 1, 1977, June 1, 1978, October 15, 1978, March 15, 1979, July 1, 1979, September 1, 1979, September 15, 1979, January 1, 1980, April 1, 1980, August 15, 1980, August 1, 1981, November 1, 1981, June 30, 1982, August 15, 1982, June 1, 1983, October 1, 1984, May 1, 1985, May 15, 1985, October 15, 1985, April 1, 1986, August 15, 1986, November 30, 1986, January 31, 1987, April 1, 1987, August 15, 1987, November 30, 1987, June 15, 1989, July 15, 1989, December 1, 1989, February 15, 1990, November 1, 1990, April 1, 1991, May 1, 1991, May 15, 1991, September 1, 1991, November 1, 1991, January 15, 1992, February 29, 1992, April 15, 1992, July 15, 1992, July 31, 1992, November 30, 1992, December 15, 1992, January 1, 1993, March 1, 1993, March 15, 1993 and April 1, 1993 supplemental to the Original Indenture, have heretofore been entered into between the Company and the Trustee (the Original Indenture and all indentures supplemental thereto together being hereinafter sometimes referred to as the "Indenture"); and ISSUE OF WHEREAS, the Indenture provides that said bonds shall be BONDS UNDER issuable in one or more series, and makes provision that the INDENTURE. rates of interest and dates for the payment thereof, the date of maturity or dates of maturity, if of serial maturity, the terms and rates of optional redemption (if redeemable), the forms of registered bonds without coupons of any series and any other provisions and agreements in respect thereof, in the Indenture provided and permitted, as the Board of Directors may determine, may be expressed in a supplemental indenture to be made by the Company to the Trustee thereunder; and BONDS HERETOFORE WHEREAS, bonds in the principal amount of Seven billion two ISSUED. hundred seventy-two million two hundred eighty-two thousand dollars ($7,272,282,000) have heretofore been issued under the indenture as follows, viz: |
(1) Bonds of Series A -- Principal Amount $26,016,000, (2) Bonds of Series B -- Principal Amount $23,000,000, (3) Bonds of Series C -- Principal Amount $20,000,000, (4) Bonds of Series D -- Principal Amount $50,000,000, (5) Bonds of Series E -- Principal Amount $15,000,000, (6) Bonds of Series F -- Principal Amount $49,000,000, (7) Bonds of Series G -- Principal Amount $35,000,000, (8) Bonds of Series H -- Principal Amount $50,000,000, (9) Bonds of Series I -- Principal Amount $60,000,000, (10) Bonds of Series J -- Principal Amount $35,000,000, |
(11) Bonds of Series K -- Principal Amount $40,000,000, (12) Bonds of Series L -- Principal Amount $24,000,000, (13) Bonds of Series M -- Principal Amount $40,000,000, (14) Bonds of Series N -- Principal Amount $40,000,000, (15) Bonds of Series O -- Principal Amount $60,000,000, (16) Bonds of Series P -- Principal Amount $70,000,000, (17) Bonds of Series Q -- Principal Amount $40,000,000, (18) Bonds of Series W -- Principal Amount $50,000,000, (19) Bonds of Series AA -- Principal Amount $100,000,000, (20) Bonds of Series BB -- Principal Amount $50,000,000, (21) Bonds of Series CC -- Principal Amount $50,000,000, (22) Bonds of Series UU -- Principal Amount $100,000,000, (23-31) Bonds of Series DDP Nos. 1-9 -- Principal Amount $14,305,000, (32-45) Bonds of Series FFR Nos. 1-14 -- Principal Amount $45,600,000, (46-67) Bonds of Series GGP Nos. 1-22 -- Principal Amount $42,300,000, (68) Bonds of Series HH -- Principal Amount $50,000,000, (69-90) Bonds of Series IIP Nos. 1-22 -- Principal Amount $3,750,000, (91-98) Bonds of Series JJP Nos. 1-8 -- Principal Amount $6,850,000, (99-106) Bonds of Series KKP Nos. 1-8 -- Principal Amount $14,890,000, (107-121) Bonds of Series LLP Nos. 1-15 -- Principal Amount $8,850,000, (122-142) Bonds of Series NNP Nos. 1-21 -- Principal Amount $47,950,000, (143-160) Bonds of Series OOP Nos. 1-18 -- Principal Amount $18,880,000, (161-177) Bonds of Series QQP Nos. 1-17 -- Principal Amount $12,780,000, (178-192) Bonds of Series TTP Nos. 1-15 -- Principal Amount $3,800,000, (193) Bonds of 1980 Series A -- Principal Amount $50,000,000, (194-218) Bonds of 1980 Series CP Nos. 1-25 -- Principal Amount $35,000,000, (219-229) Bonds of 1980 Series DP Nos. 1-11 -- Principal Amount $10,750,000, (230-243) Bonds of 1981 Series AP Nos. 1-14 -- Principal Amount $59,000,000, (244) Bonds of 1985 Series A -- Principal Amount $35,000,000, (245) Bonds of 1985 Series B -- Principal Amount $50,000,000, (246) Bonds of Series PP -- Principal Amount $70,000,000, (247) Bonds of Series RR -- Principal Amount $70,000,000, (248) Bonds of Series EE -- Principal Amount $50,000,000, (249-250) Bonds of Series MMP and MMP No. 2 -- Principal Amount $5,430,000, (251) Bonds of Series T -- Principal Amount $75,000,000, (252) Bonds of Series U -- Principal Amount $75,000,000, (253) Bonds of 1986 Series B -- Principal Amount $100,000,000, (254) Bonds of 1987 Series D -- Principal Amount $250,000,000, (255) Bonds of 1987 Series E -- Principal Amount $150,000,000, (256) Bonds of 1987 Series C -- Principal Amount $225,000,000, (257) Bonds of Series V -- Principal Amount $100,000,000 (258) Bonds of Series SS -- Principal Amount $150,000,000 (259) Bonds of 1980 Series B -- Principal Amount $100,000,000 (260) Bonds of 1986 Series C -- Principal Amount $200,000,000, |
all of which have either been retired and cancelled, or no longer represent obligations of the Company, having been called for redemption and funds necessary to effect the payment, redemption and retirement thereof having been deposited with the Trustee as a special trust fund to be applied for such purpose; (261) Bonds of Series R in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof; (262) Bonds of Series S in the principal amount of One hundred fifty million dollars ($150,000,000), all of which are outstanding at the date hereof; (263) Bonds of Series X in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof; |
(264) Bonds of Series Y in the principal amount of Sixty million dollars ($60,000,000), all of which are outstanding at the date hereof; (265) Bonds of Series Z in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof; (266-271) Bonds of Series KKP Nos. 9-14 in the principal amount of One hundred ninety-three million two hundred ninety thousand dollars ($193,290,000), all of which are outstanding at the date hereof; (272-273) Bonds of Series QQP Nos. 18-19 in the principal amount of Eight hundred seventy thousand dollars ($870,000), all of which are outstanding at the date hereof; (274-275) Bonds of 1981 Series AP Nos. 15-16 in the principal amount of Sixty-five million dollars ($65,000,000), all of which are outstanding at the date hereof; (276) Bonds of 1984 Series AP in the principal amount of Two million four hundred thousand dollars ($2,400,000), all of which are outstanding at the date hereof; (277) Bonds of 1984 Series BP in the principal amount of Seven million seven hundred fifty thousand dollars ($7,750,000), all of which are outstanding at the date hereof; (278) Bonds of 1986 Series A in the principal amount of Two hundred million dollars ($200,000,000), all of which are outstanding at the date hereof; (279) Bonds of 1987 Series A in the principal amount of Three hundred million dollars ($300,000,000), all of which are outstanding at the date hereof; (280) Bonds of 1987 Series B in the principal amount of One hundred seventy-five million dollars ($175,000,000), all of which are outstanding at the date hereof; (281) Bonds of 1987 Series F in the principal amount of Two hundred million dollars ($200,000,000), all of which are outstanding at the date hereof; (282) Bonds of 1989 Series A in the principal amount of Three hundred million dollars ($300,000,000), all of which are outstanding at the date hereof; (283) Bonds of 1989 Series BP in the principal amount of Sixty-six million five hundred sixty-five thousand dollars ($66,565,000), all of which are outstanding at the date hereof; (284) Bonds of 1990 Series A in the principal amount of One hundred ninety-four million six hundred forty-nine thousand dollars ($194,649,000) of which Twenty-five million one hundred sixteen thousand dollars ($25,116,000) principal amount have heretofore been retired and One hundred sixty-nine million five hundred thirty-three thousand dollars ($169,533,000) principal amount are outstanding at the date hereof; (285) Bonds of 1990 Series B in the principal amount of Two hundred fifty-six million nine hundred thirty-two thousand dollars ($256,932,000) of which Thirty-eight million sixty-four thousand dollars ($38,064,000) principal amount have heretofore been retired and Two hundred eighteen million eight hundred sixty-eight thousand dollars ($218,868,000) principal amount are outstanding at the date hereof; (286) Bonds of 1990 Series C in the principal amount of Eighty-five million four hundred seventy-five thousand dollars ($85,475,000) of which Thirteen million six hundred seventy-six thousand dollars ($13,676,000) principal amount have heretofore been retired and Seventy-one million seven hundred ninety-nine thousand dollars ($71,799,000) principal amount are outstanding at the date hereof; |
(287) Bonds of 1991 Series AP in the principal amount of Thirty-two million three hundred seventy-five thousand dollars ($32,375,000), all of which are outstanding at the date hereof; (288) Bonds of 1991 Series BP in the principal amount of Twenty-five million nine hundred ten thousand dollars ($25,910,000), all of which are outstanding at the date hereof; (289) Bonds of 1991 Series CP in the principal amount of Thirty-two million eight hundred thousand dollars ($32,800,000), all of which are outstanding at the date hereof; (290) Bonds of 1991 Series DP in the principal amount of Thirty-seven million six hundred thousand dollars ($37,600,000), all of which are outstanding at the date hereof; (291) Bonds of 1991 Series EP in the principal amount of Forty-one million four hundred eighty thousand dollars ($41,480,000), all of which are outstanding at the date hereof; (292) Bonds of 1991 Series FP in the principal amount of Ninety-eight million three hundred seventy-five thousand dollars ($98,375,000), all of which are outstanding at the date hereof; (293) Bonds of 1992 Series BP in the principal amount of Twenty million nine hundred seventy-five thousand dollars ($20,975,000), all of which are outstanding at the date hereof; (294) Bonds of 1992 Series AP in the principal amount of Sixty-six million dollars ($66,000,000), all of which are outstanding at the date hereof; (295) Bonds of 1992 Series D in the principal amount of Three hundred million dollars ($300,000,000), all of which are outstanding at the date hereof; (296) Bonds of 1992 Series CP in the principal amount of Thirty-five million dollars ($35,000,000), all of which are outstanding at the date hereof; (297) Bonds of 1992 Series E in the principal amount of Fifty million dollars ($50,000,000), all of which are outstanding at the date hereof; (298) Bonds of 1989 Series BP No. 2 in the principal amount of Thirty-six million dollars ($36,000,000), all of which are outstanding at the date hereof; (299) Bonds of 1993 Series C in the principal amount of Two hundred twenty-five million dollars ($225,000,000), all of which are outstanding at the date hereof; (300) Bonds of 1993 Series B in the principal amount of Fifty million dollars ($50,000,000), all of which are outstanding at the date hereof; (301) Bonds of 1993 Series E in the principal amount of Four hundred million dollars ($400,000,000), all of which are outstanding at the date hereof; and (302) Bonds of 1993 Series D in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof; (303) Bonds of 1993 Series FP in the principal amount of Five million six hundred eighty-five thousand dollars ($5,685,000), all of which are outstanding at the date hereof; and, accordingly, of the bonds so issued, Four billion thirty-eight million two hundred seventy-five thousand dollars ($4,038,275,000) principal amount are outstanding at the date hereof; and |
REASON FOR WHEREAS, the Company desires to provide funds to refund CREATION OF or replace funds utilized by the Company for the purpose of NEW SERIES. meeting (or replacing corporate funds utilized for such purposes) debt and Preferred and Preference Stock refundings (including optional redemptions) and for this purpose desires to issue and sell a new series of bonds to be issued under the Indenture in the aggregate principal amount of up to Two hundred twenty-five million dollars ($225,000,000) to be authenticated and delivered pursuant to Section 8 of Article III of the Indenture; and INDENTURE TO BE AMENDED WHEREAS, the Company desires by this Supplemental AND BONDS TO BE 1993 Indenture to agree with the Trustee to amend the Indenture SERIES G. and to create such new series of bonds, to be designated "Secured Medium-Term Notes, 1993 Series G"; and FURTHER WHEREAS, the Original Indenture, by its terms, includes ASSURANCE. in the property subject to the lien thereof all of the estates and properties, real, personal and mixed, rights, privileges and franchises of every nature and kind and wheresoever situate, then or thereafter owned or possessed by or belonging to the Company or to which it was then or at any time thereafter might be entitled in law or in equity (saving and excepting, however, the property therein specifically excepted or released from the lien thereof), and the Company therein covenanted that it would, upon reasonable request, execute and deliver such further instruments as may be necessary or proper for the better assuring and confirming unto the Trustee all or any part of the trust estate, whether then or thereafter owned or acquired by the Company (saving and excepting, however, property specifically excepted or released from the lien thereof); and AUTHORIZATION OF WHEREAS, the Company in the exercise of the powers and SUPPLEMENTAL authority conferred upon and reserved to it under and by INDENTURE. virtue of the provisions of the Indenture, and pursuant to resolutions of its Board of Directors has duly resolved and determined to make, execute and deliver to the Trustee a supplemental indenture in the form hereof for the purposes herein provided; and WHEREAS, all conditions and requirements necessary to make this Supplemental Indenture a valid and legally binding instrument in accordance with its terms have been done, performed and fulfilled, and the execution and delivery hereof have been in all respects duly authorized; CONSIDERATION FOR NOW, THEREFORE, THIS INDENTURE WITNESSETH: That The SUPPLEMENTAL Detroit Edison Company, in consideration of the premises and INDENTURE. of the covenants contained in the Indenture and of the sum of One Dollar ($1.00) and other good and valuable consideration to it duly paid by the Trustee at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, hereby covenants and agrees to and with the Trustee and its successors in the trusts under the Original Indenture and in said indentures supplemental thereto as follows: PART I. AMENDMENT OF ARTICLE II, SECTION 5 OF THE ORIGINAL INDENTURE Eighty-five percent of the holders of all bonds outstanding have consented to amend Article II, Section 5 of the Indenture. Accordingly, the first paragraph of Article II, Section 5 of the Indenture is hereby amended to read as follows: "SECTION 5. The bonds of each series other than the said bonds of Series A shall be dated as of October 1, 1924 (except as herein otherwise provided with respect to registered bonds without coupons), shall bear interest at such rate, payable in such installments and on such dates, shall mature on such date or dates, shall be payable in gold coin of such standard, and may be redeemable at the election of the Company before maturity at such price or prices and upon such terms and conditions, as shall be fixed and determined in respect of such series by the Board of Directors of the Company, and as shall be appropriately expressed in the bonds of such series." |
PART II. CREATION OF THREE HUNDRED EIGHTH SERIES OF BONDS. SECURED MEDIUM-TERM NOTES, 1993 SERIES G TERMS OF BONDS SECTION 1. The Company hereby creates the Three hundred OF 1993 SERIES G. eighth series of General and Refunding Mortgage Bonds to be issued under and secured by the Original Indenture as amended to date and as further amended by this Supplemental Indenture, to be designated, and to be distinguished from the bonds of all other series, by the title "Secured Medium-Term Notes, 1993 Series G" (elsewhere herein referred to as the "bonds of 1993 Series G"). The aggregate principal amount of bonds of 1993 Series G, which shall be issued from time to time, shall be limited to Two hundred twenty-five million dollars ($225,000,000), except as provided in Sections 7 and 13 of Article II of the Original Indenture with respect to exchanges and replacements of bonds. The bonds of 1993 Series G shall be issued as registered bonds without coupons in denominations of $1,000 and any multiple thereof. Each bond of 1993 Series G shall mature on such date not less than two years from date of issue, shall bear interest at such rate or rates and have such other terms and provisions not inconsistent with the Indenture as may be set forth in a Certificate filed by the Company with the Trustee referring to this Supplemental Indenture; interest on bonds of 1993 Series G shall be payable semi-annually on interest payment dates specified by the Company and at maturity; and thereafter until the Company's obligation with respect to the payment of said principal shall have been discharged as provided in the Indenture. Except as otherwise specifically provided in this Supplemental Indenture, the principal of and interest on the bonds of 1993 Series G shall be payable at the office or agency of the Company in the Borough of Manhattan, The City of New York, The State of New York in any coin or currency of the United States of America which at the time of payment is legal tender for public and private debts. The interest on bonds of 1993 Series G, whether in temporary or definitive form, shall be payable without presentation of such bonds and (subject to the provisions of this Section 1) only to or upon the written order of the registered holders thereof. Each bond of 1993 Series G shall be dated the date of its authentication. The bonds of 1993 Series G in definitive form shall be, at the election of the Company, fully engraved or shall be lithographed or printed in authorized denominations as aforesaid and numbered 1 and upwards (with such further designation as may be appropriate and desirable to indicate by such designation the form, series and denomination of bonds of 1993 Series G). Until bonds of 1993 Series G in definitive form are ready for delivery, the Company may execute, and upon its request in writing the Trustee shall authenticate and deliver in lieu thereof, bonds of 1993 Series G in temporary form, as provided in Section 10 of Article II of the Indenture. Temporary bonds of 1993 Series G, if any, may be printed and may be issued in authorized denominations in substantially the form of definitive bonds of 1993 Series G. |
Interest on any bond of 1993 Series G which is payable on any interest payment date and is punctually paid or duly provided for shall be paid to the person in whose name that bond, or any previous bond to the extent evidencing the same debt as that evidenced by that bond, is registered at the close of business on the regular record date for such interest, which regular record date shall be specified by the Company. If the Issue Date of the bonds of 1993 Series G of a designated interest rate and maturity is after the record date, such bonds shall bear interest from the Issue Date but payment of interest shall commence on the second interest payment date succeeding the Issue Date. "Issue Date" with respect to bonds of 1993 Series G of a designated interest rate and maturity shall mean the date of first authentication of bonds of such designated interest rate and maturity. If the Company shall default in the payment of the interest due on any interest payment date on the principal represented by any bond of 1993 Series G, such defaulted interest shall forthwith cease to be payable to the registered holder of that bond on the relevant regular record date by virtue of his having been such holder, and such defaulted interest may be paid to the registered holder of that bond (or any bond or bonds of 1993 Series G issued upon transfer or exchange thereof) on the date of payment of such defaulted interest or, at the election of the Company, to the person in whose name that bond (or any bond or bonds of 1993 Series G issued upon transfer or exchange thereof) is registered on a subsequent record date established by notice given by mail by or on behalf of the Company to the holders of bonds of 1993 Series G not less than ten (10) days preceding such subsequent record date, which subsequent record date shall be at least five (5) days prior to the payment date of such defaulted interest. REDEMPTION OF SECTION 2. The bonds of 1993 Series G may be redeemable BONDS OF 1993 prior to stated maturity in the manner set forth in a SERIES G. Certificate filed by the Company with the Trustee. The bonds of 1993 Series G may be redeemable as aforesaid and except as otherwise provided herein, and as specified in Article IV of the Indenture upon giving notice of such redemption by first class mail, postage prepaid, by or on behalf of the Company at least thirty (30) days, but not more than ninety (90) days, prior to the date fixed for redemption to the registered holders of bonds of 1993 Series G so called for redemption at their last respective addresses appearing on the register thereof, but failure to mail such notice to the registered holders of any bonds of 1993 Series G designated for redemption shall not affect the validity of any such redemption of any other bonds of such series. Interest shall cease to accrue on any bonds of 1993 Series G (or any portion thereof) so called for redemption from and after the date fixed for redemption if payment sufficient to redeem the bonds of 1993 Series G (or such portion) designated for redemption has been duly provided for. Bonds of 1993 Series G redeemed in part only shall be in amounts of $1,000 or any multiple thereof. If the giving of the notice of redemption shall have been completed, or if provision satisfactory to the Trustee for the giving of such notice shall have been made, and if the Company shall have deposited with the Trustee in trust funds (which shall have become available for payment to the holders of the bonds of 1993 Series G so to be redeemed) sufficient to redeem bonds of 1993 Series G in whole or in part, on the date fixed for redemption, then all obligations of the Company in respect of such bonds (or portions thereof) so to be redeemed and interest due or to become due thereon shall cease and be discharged and the holders of such bonds of 1993 Series G (or portions thereof) shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or in respect of such bonds (or portions thereof) and interest. The bonds of 1993 Series G may be entitled to or subject to any sinking fund specified in a Certificate filed by the Company with the Trustee. |
EXCHANGE AND At the option of the registered holder, any bonds of TRANSFER. 1993 Series G, upon surrender thereof for cancellation at the office or agency of the Company in the Borough of Manhattan, The City of New York, The State of New York, together with a written instrument of transfer (if so required by the Company or by the Trustee) in form approved by the Company duly executed by the holder or by its duly authorized attorney, shall be exchangeable for a like aggregate principal amount of bonds of 1993 Series G subject to the same terms and conditions of other authorized denominations, upon the terms and conditions specified herein and in Section 7 of Article II of the Indenture. Bonds of 1993 Series G shall be transferable at the office or agency of the Company in the Borough of Manhattan, The City of New York, The State of New York. The Company waives its rights under Section 7 of Article II of the Indenture not to make exchanges or transfers of bonds of 1993 Series G during any period of ten (10) days next preceding any interest payment date for such bonds. Bonds of 1993 Series G, in definitive and temporary form, may bear such legends as may be necessary to comply with any law or with any rules or regulations made pursuant thereto or with the rules or regulations of any stock exchange or to conform to usage with respect thereto. CONSENT. SECTION 3. The holders of bonds of the 1993 Series G consent that the Company may, but shall not be obligated to, fix a record date for the purpose of determining the holders of bonds of 1993 Series G entitled to consent to any amendment, supplement or waiver. If a record date is fixed, those persons who were holders at such record date (or their duly designated proxies), and only those persons, shall be entitled to consent to such amendment, supplement or waiver or to revoke any consent previously given, whether or not such persons continue to be holders after such record date. No such consent shall be valid or effective for more than 90 days after such record date. |
FORM OF SECTION 4. The bonds of 1993 Series G and the form of BONDS OF Trustee's Certificate to be endorsed on such bonds shall be 1993 SERIES G. substantially in the following forms, respectively: [FORM OF BOND] THE DETROIT EDISON COMPANY SECURED MEDIUM-TERM NOTE 1993 Series G Unless and until this Bond is exchanged in whole or in part for certified Bonds registered in the names of the various beneficial holders hereof as then certified to the Trustee by The Depository Trust Company or its successor (the "Depositary"), this Bond may not be transferred except 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 or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. Unless this certificate is presented by an authorized representative of the Depositary to the issuer or its agent for registration of transfer, exchange or payment, and any certificate to be issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of the Depositary and any amount payable thereunder is made payable to Cede & Co. or such other name, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein. This Bond may be exchanged for certificated Bonds registered in the names of the various beneficial owners hereof only if (a) the Depositary is at any time unwilling or unable to continue as depositary and a successor depositary is not appointed by the issuer within 90 days, or (b) the issuer, the Trustee and the Depositary consent to such exchange. If applicable, the "Amount of OID", the "Original Issue Date", the "Yield to Maturity", and the "Short Accrual Period OID" (computed under the Approximate Method) will be set forth below. The calculation of the amount of OID upon (a) optional redemption or (b) declaration of acceleration is discussed herein. |
R- $ CUSIP No. ________ (principal amount) ORIGINAL INITIAL REDEMPTION APPLICABILITY OF ISSUE DATE: DATE: MODIFIED PAYMENT UPON ACCELERATION: MATURITY DATE: INITIAL REDEMPTION PERCENTAGE: If yes, state Issue INTEREST RATE: Price: AMOUNT OF OID PER $1,000 INTEREST PAYMENT DATES: OF PRINCIPAL: APPLICABILITY OF ANNUAL REDEMPTION PERCENTAGE INTEREST PAYMENT PERIOD: INCREASE: RECORD DATES: APPLICABILITY OF ANNUAL If yes, state each REDEMPTION PERCENTAGE redemption date and OPTIONAL REPAYMENT REDUCTION: redemption price: DATE(S): If yes, state Annual SHORT ACCRUAL PERIOD Percentage Reduction: OID: YIELD TO MATURITY: SINKING FUND PROVISIONS: AMORTIZATION SCHEDULE: |
THE DETROIT EDISON COMPANY (hereinafter called the "Company"), a corporation of the State of Michigan, for value received, hereby promises to pay to Cede & Co. or registered assigns, at its office or agency in the Borough of Manhattan, The City and State of New York, the principal sum specified above in lawful money of the United States of America on the Maturity Date specified above, and to pay interest thereon at the rate specified above, at such office or agency, in like lawful money, from the Issue Date specified above if the date of this bond is prior to the first interest payment date, otherwise from the most recent date to which interest has been paid, semi-annually on the Interest Payment Dates specified above in each year, to the person in whose name this bond is registered at the close of business on the applicable Record Date specified above (subject to certain exceptions provided in the Indenture hereinafter mentioned), until the Company's obligation with respect to payment of said principal shall have been discharged, all as provided, to the extent and in the manner specified in such Indenture hereinafter mentioned on the reverse hereof and in the supplemental indenture pursuant to which this bond has been issued. If the date of this bond (if other than the Issue Date) is after a Record Date (as specified above) with respect to any Interest Payment Date and on or prior to such Interest Payment Date, then interest shall be payable only from such Interest Payment Date. If the Issue Date is after such Record Date, then interest shall be payable from the Issue Date and payment of interest shall commence on the second Interest Payment Date succeeding the Issue Date. If the Company shall default in the payment of interest due on any Interest Payment Date, then interest shall be payable from the next preceding Interest Payment Date to which interest has been paid, or, if no interest has been paid, from the Issue Date. This bond shall not be valid or become obligatory for any purpose until Bankers Trust Company, the Trustee under the Indenture hereinafter mentioned on the reverse hereof, or its successor thereunder, shall have signed the form of certificate endorsed hereon. |
This bond is one of an authorized issue of bonds of the Company, unlimited as to amount except as provided in the Indenture hereinafter mentioned or any indentures supplemental thereto, and is one of a series of General and Refunding Mortgage Bonds known as Secured Medium-Term Notes, 1993 Series G (elsewhere herein referred to as the "bonds of 1993 Series G"), limited to an aggregate principal amount of $225,000,000, except as otherwise provided in the Indenture hereinafter mentioned. This bond and all other bonds of said series are issued and to be issued under, and are all equally and ratably secured (except insofar as any sinking, amortization, improvement or analogous fund, established in accordance with the provisions of the Indenture hereinafter mentioned, may afford additional security for the bonds of any particular series and except as provided in Section 3 of Article VI of said Indenture) by an Indenture, dated as of October 1, 1924, duly executed by the Company to Bankers Trust Company, a corporation of the State of New York, as Trustee, to which Indenture and all indentures supplemental thereto (including the Supplemental Indenture dated as of April 26, 1993) reference is hereby made for a description of the properties and franchises mortgaged and conveyed, the nature and extent of the security, the terms and conditions upon which the bonds are issued and under which additional bonds may be issued, and the rights of the holders of the bonds and of the Trustee in respect of such security (which Indenture and all indentures supplemental thereto, including the Supplemental Indenture dated as of April 26, 1993, are hereinafter collectively called the "Indenture"). As provided in the Indenture, said bonds may be for various principal sums and are issuable in series, which may mature at different times, may bear interest at different rates and may otherwise vary as in said Indenture provided. With the consent of the Company and to the extent permitted by and as provided in the Indenture, the rights and obligations of the Company and of the holders of the bonds and the terms and provisions of the Indenture, or of any indenture supplemental thereto, may be modified or altered in certain respects by affirmative vote of at least eighty-five percent (85%) in principal amount of the bonds then outstanding, and, if the rights of one or more, but less than all, series of bonds then outstanding are to be affected by the action proposed to be taken, then also by affirmative vote of at least eighty-five percent (85%) in principal amount of the series of bonds so to be affected (excluding in every instance bonds disqualified from voting by reason of the Company's interest therein as specified in the Indenture); provided, however, that, without the consent of the holder hereof, no such modification or alteration shall, among other things, affect the terms of payment of the principal of, or the interest on, this bond, which in those respects is unconditional.
The holder of this bond of 1993 Series G hereby consents that the Company may, but shall not be obligated to, fix a record date for the purpose of determining the holders of bonds of this series entitled to consent to any amendment, supplement or waiver. If a record date is fixed, those persons who were holders at such record date (or their duly designated proxies), and only those persons, shall be entitled to consent to such amendment, supplement or waiver or to revoke any consent previously given, whether or not such persons continue to be holders after such record date. No such consent shall be valid or effective for more than 90 days after such record date.
This bond is subject to the redemption provisions specified above.
Under the Indenture, funds may be deposited with the Trustee (which shall have become available for payment), in advance of the redemption date of any of the bonds of 1993 Series G (or portions thereof), in trust for the redemption of such bonds (or portions thereof) and the interest due or to become due thereon, and thereupon all obligations of the Company in respect of such bonds (or portions thereof) so to be redeemed and such interest shall cease and be discharged, and the holders thereof shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or with respect to such bonds (or portions thereof) and interest.
This bond is entitled to or subject to the sinking fund provisions specified above. |
This bond will be subject to repayment at the option of the holder hereof on the Optional Repayment Date(s), if any, indicated on the face hereof. If no Optional Repayment Dates are set forth on the face hereof, this bond shall not be so repaid at the option of the holder hereof prior to maturity. On any Optional Repayment Date, this bond shall be repayable in whole or in part in increments of $1,000 (provided that any remaining principal amount hereof shall not be less than the minimum authorized denomination hereof) at the option of the holder hereof at a repayment price equal to 100% of the principal amount to be repaid, together with interest thereon payable to the date of repayment. For this bond to be repaid in whole or in part at the option of the holder hereof, this bond must be received, with the form entitled "Option to Elect Repayment" below duly completed, by the Trustee at its corporate trust office at 4 Albany Street, New York, New York, or such address which the Company shall from time to time notify the holders of the bond, not more than 60 nor less than 30 days prior to an Optional Repayment Date. Exercise of such repayment option by the Holder hereof shall be irrevocable. If specified above that this bond is subject to (i) "Annual Redemption Percentage Reduction" or (ii) "Annual Redemption Percentage Increase", then this bond may be redeemed in whole or in part at the option of the Company on or after the Initial Redemption Date specified on the face hereof on the terms set forth above, together with interest accrued and unpaid hereon to the date of redemption (except as provided below). If this bond is subject to "Annual Redemption Percentage Reduction", the Initial Redemption Percentage indicated on the face hereof will be reduced on each anniversary of the Initial Redemption Date specified above by the Annual Percentage Reduction specified on the face hereof until the redemption price of this bond is 100% of the principal amount hereof. If this bond is subject to "Annual Redemption Percentage Increase", the amount of original issue discount allocable to such short accrual period is the Amortized Amount. "Amortized Amount" means the original issue discount amortized from the Original Issue Date to the date of redemption or declaration, as the case may be, which amortization shall be calculated using the "constant yield method" (computed in accordance with the rules under the Internal Revenue Code of 1986, as amended, and the regulations thereunder, in effect on the date of redemption or declaration, as the case may be). In case an event of default, as defined in the Indenture, shall occur, the principal of all the bonds issued thereunder may become or be declared due and payable, in the manner, with the effect and subject to the conditions, provided in the Indenture. If specified above that this bond is subject to "Modified Payment upon Acceleration," then (i) if the principal hereof is declared to be due and payable as discussed in the preceding paragraph, the amount of principal due and payable with respect to this bond shall be limited to the sum of the Issue Price specified above plus the Amortized Amount, (ii) for the purpose of any vote of securityholders taken pursuant to the Indenture prior to the acceleration of payment of this bond, the principal amount hereof shall equal the amount that would be due and payable hereon, calculated as set forth in clause (i) above, if this bond were declared to be due and payable on the date of any such vote and (iii) for the purpose of any vote of securityholders taken pursuant to the Indenture following the acceleration of payment of this bond, the principal amount hereof shall equal the amount of principal due and payable with respect to this bond, calculated as set forth in clause (i) above. This bond is transferable by the registered holder hereof, in person or by his attorney duly authorized in writing, on the books of the Company kept at its office or agency in the Borough of Manhattan, The City and State of New York, upon surrender and cancellation of this bond, and, thereupon, a new registered bond or bonds of the same series of authorized denominations for a like aggregate principal amount will be issued to the transferee or transferees in exchange herefor, and this bond with others of like form may in like manner be exchanged for one or more new registered bonds of the same series of other authorized denominations, but of the same aggregate principal amount, all as provided and upon the terms and conditions set forth in the Indenture, and upon payment, in any event, of the charges prescribed in the Indenture. |
No recourse shall be had for the payment of the principal of, or the interest on, this bond, or for any claim based hereon or otherwise in respect hereof or of the Indenture, or of any indenture supplemental thereto, against any incorporator, or against any past, present or future stockholder, director or officer, as such, of the Company, or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether for amounts unpaid on stock subscriptions or by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise howsoever; all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released by every holder or owner hereof, as more fully provided in the Indenture. IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY has caused this instrument to be executed on its behalf by its Chairman of the Board and its Vice President and Treasurer, with their manual or facsimile signatures, and its corporate seal, or a facsimile thereof, to be impressed or imprinted hereon and the same to be attested by its Secretary or an Assistant Secretary by manual or facsimile signature. |
Dated: THE DETROIT EDISON COMPANY By ------------------------------ Chairman of the Board ------------------------------ [SEAL] Vice President and Treasurer Attest: ----------------------------------------------- Corporate Secretary |
15 |
[FORM OF TRUSTEE'S CERTIFICATE] FORM OF This bond is one of the bonds, of the series designated TRUSTEE'S therein, described in the within-mentioned Indenture. CERTIFICATE. |
BANKERS TRUST COMPANY,
as Trustee
By ..............................
Authorized Officer
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto ------------------------------------------------------------ (please insert social security or other identifying number of assignee) ------------------------------------------------------------ ------------------------------------------------------------ (please print or type name and address of assignee) the within bond of THE DETROIT EDISON COMPANY and does hereby irrevocably constitute and appoint ------------------------------------------------------------ ------------------------------------------------------------ Attorney, to transfer said bond on the books of the within-mentioned Company, with full power of substitution in the premises. Dated: ------------------------------------------------ Notice: The signature to this assignment must correspond with the name as written upon the face of the bond in every particular without alteration or enlargement or any change whatsoever. |
OPTION TO ELECT REPAYMENT The undersigned hereby irrevocably request(s) and instruct(s) the Company to repay this bond (or portion hereof specified below) pursuant to its terms at a price equal to the principal amount hereof together with interest to the applicable Optional Repayment Date, to the undersigned, at ------------------------------------------------------------ ------------------------------------------------------------ (please print or typewrite name and address of the undersigned) For this bond to be repaid, the Trustee must receive at 4 Albany St., New York, New York, or at such other place or places of which the Company shall from time to time notify the holder of this bond, not more than 60 nor less than 30 days prior to an Optional Repayment Date, if any, shown on the face of this bond, this bond with this "Option to Elect Repayment" form duly completed. If less than the entire principal amount of this bond is to be repaid, specify the portion hereof (which shall be in increments of $1,000) which the holder elects to have repaid and specify the denomination or denominations (which shall not be less than the minimum authorized denomination of this bond and shall be an integral multiple of $1,000 of the bond to be issued to the holder for the portion of this bond not being repaid (in the absence of any such specification, one such bond will be issued for the portion not being repaid). $ ----------------------------- Date -------------------------- Notice: The signature on this Option to Elect Repayment must correspond with the name as written upon the face of this bond in every particular, without alteration or enlargement or any change whatever. |
PART III. RECORDING AND FILING DATA RECORDING AND The Original Indenture and indentures supplemental FILING OF ORIGINAL thereto have been recorded and/or filed and Certificates of INDENTURE. Provision for Payment have been recorded as hereinafter set forth. The Original Indenture has been recorded as a real estate mortgage and filed as a chattel mortgage in the offices of the respective Registers of Deeds of certain counties in the State of Michigan as set forth in the Supplemental Indenture dated as of September 1, 1947, has been recorded as a real estate mortgage in the office of the Register of Deeds of Genesee County, Michigan as set forth in the Supplemental Indenture dated as of May 1, 1974, has been filed in the Office of the Secretary of State of Michigan on November 16, 1951 and has been filed and recorded in the office of the Interstate Commerce Commission on December 8, 1969. RECORDING AND Pursuant to the terms and provisions of the Original FILING OF Indenture, indentures supplemental thereto heretofore SUPPLEMENTAL entered into have been recorded as a real estate mortgage INDENTURES. and/or filed as a chattel mortgage or as a financing statement in the offices of the respective Registers of Deeds of certain counties in the State of Michigan, the Office of the Secretary of State of Michigan and the Office of the Interstate Commerce Commission, as set forth in supplemental indentures as follows: |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- June 1, 1925(a)(b)................ Series B Bonds February 1, 1940 August 1, 1927(a)(b).............. Series C Bonds February 1, 1940 February 1, 1931(a)(b)............ Series D Bonds February 1, 1940 June 1, 1931(a)(b)................ Subject Properties February 1, 1940 October 1, 1932(a)(b)............. Series E Bonds February 1, 1940 September 25, 1935(a)(b).......... Series F Bonds February 1, 1940 September 1, 1936(a)(b)........... Series G Bonds February 1, 1940 November 1, 1936(a)(b)............ Subject Properties February 1, 1940 February 1, 1940(a)(b)............ Subject Properties September 1, 1947 December 1, 1940(a)(b)............ Series H Bonds and September 1, 1947 Additional Provisions September 1, 1947(a)(b)(c)........ Series I Bonds, November 15, 1951 Subject Properties and Additional Provisions March 1, 1950(a)(b)(c)............ Series J Bonds November 15, 1951 and Additional Provisions November 15, 1951(a)(b)(c)........ Series K Bonds January 15, 1953 Additional Provisions and Subject Properties January 15, 1953(a)(b)............ Series L Bonds May 1, 1953 May 1, 1953(a).................... Series M Bonds March 15, 1954 and Subject Properties March 15, 1954(a)(c).............. Series N Bonds May 15, 1955 and Subject Properties May 15, 1955(a)(c)................ Series O Bonds August 15, 1957 and Subject Properties August 15, 1957(a)(c)............. Series P Bonds June 1, 1959 Additional Provisions and Subject Properties June 1, 1959(a)(c)................ Series Q Bonds December 1, 1966 and Subject Properties December 1, 1966(a)(c)............ Series R Bonds October 1, 1968 Additional Provisions and Subject Properties October 1, 1968(a)(c)............. Series S Bonds December 1, 1969 and Subject Properties |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- December 1, 1969(a)(c)............ Series T Bonds July 1, 1970 and Subject Properties July 1, 1970(c)................... Series U Bonds December 15, 1970 and Subject Properties December 15, 1970(c).............. Series V and June 15, 1971 Series W Bonds June 15, 1971(c).................. Series X Bonds November 15, 1971 and Subject Properties November 15, 1971(c).............. Series Y Bonds January 15, 1973 and Subject Properties January 15, 1973(c)............... Series Z Bonds May 1, 1974 and Subject Properties May 1, 1974....................... Series AA Bonds October 1, 1974 and Subject Properties October 1, 1974................... Series BB Bonds January 15, 1975 and Subject Properties January 15, 1975.................. Series CC Bonds November 1, 1975 and Subject Properties November 1, 1975.................. Series DDP Nos. 1-9 Bonds December 15, 1975 and Subject Properties December 15, 1975................. Series EE Bonds February 1, 1976 and Subject Properties February 1, 1976.................. Series FFR Nos. 1-13 Bonds June 15, 1976 June 15, 1976..................... Series GGP Nos. 1-7 Bonds July 15, 1976 and Subject Properties July 15, 1976..................... Series HH Bonds February 15, 1977 and Subject Properties February 15, 1977................. Series MMP Bonds and Subject March 1, 1977 Properties March 1, 1977..................... Series IIP Nos. 1-7 Bonds, June 15, 1977 Series JJP Nos. 1-7 Bonds, Series KKP Nos. 1-7 Bonds and Series LLP Nos. 1-7 Bonds June 15, 1977..................... Series FFR No. 14 Bonds and July 1, 1977 Subject Properties July 1, 1977...................... Series NNP Nos. 1-7 Bonds October 1, 1977 and Subject Properties October 1, 1977................... Series GGP Nos. 8-22 Bonds June 1, 1978 and Series OOP Nos. 1-17 Bonds and Subject Properties June 1, 1978...................... Series PP Bonds, October 15, 1978 Series QQP Nos. 1-9 Bonds and Subject Properties October 15, 1978.................. Series RR Bonds March 15, 1979 and Subject Properties March 15, 1979.................... Series SS Bonds July 1, 1979 and Subject Properties |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- July 1, 1979...................... Series IIP Nos. 8-22 Bonds, September 1, 1979 Series NNP Nos. 8-21 Bonds and Series TTP Nos. 1-15 Bonds and Subject Properties September 1, 1979................. Series JJP No. 8 Bonds, September 15, 1979 Series KKP No. 8 Bonds, Series LLP Nos. 8-15 Bonds, Series MMP No. 2 Bonds and Series OOP No. 18 Bonds and Subject Properties September 15, 1979................ Series UU Bonds January 1, 1980 January 1, 1980................... 1980 Series A Bonds and April 1, 1980 Subject Properties April 1, 1980..................... 1980 Series B Bonds August 15, 1980 August 15, 1980................... Series QQP Nos. 10-19 Bonds, August 1, 1981 1980 Series CP Nos. 1-12 Bonds and 1980 Series DP No. 1-11 Bonds and Subject Properties August 1, 1981.................... 1980 Series CP Nos. 13-25 November 1, 1981 Bonds and Subject Properties November 1, 1981.................. 1981 Series AP Nos. 1-12 June 30, 1982 Bonds June 30, 1982..................... Article XIV Reconfirmation August 15, 1982 August 15, 1982................... 1981 Series AP Nos. 13-14 June 1, 1983 and Subject Properties June 1, 1983...................... 1981 Series AP Nos. 15-16 October 1, 1984 and Subject Properties October 1, 1984................... 1984 Series AP and 1984 May 1, 1985 Series BP Bonds and Subject Properties May 1, 1985....................... 1985 Series A Bonds May 15, 1985 May 15, 1985...................... 1985 Series B Bonds and October 15, 1985 Subject Properties October 15, 1985.................. Series KKP No. 9 Bonds and April 1, 1986 Subject Properties |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- April 1, 1986..................... 1986 Series A and Subject August 15, 1986 Properties August 15, 1986................... 1986 Series B and Subject November 30, 1986 Properties November 30, 1986................. 1986 Series C January 31, 1987 January 31, 1987.................. 1987 Series A April 1, 1987 April 1, 1987..................... 1987 Series B and 1987 August 15, 1987 Series C August 15, 1987................... 1987 Series D and 1987 November 30, 1987 Series E and Subject Properties November 30, 1987................. 1987 Series F June 15, 1989 June 15, 1989..................... 1989 Series A July 15, 1989 July 15, 1989..................... Series KKP No. 10 December 1, 1989 December 1, 1989.................. Series KKP No. 11 and 1989 February 15, 1990 Series BP February 15, 1990................. 1990 Series A, 1990 Series November 1, 1990 B, 1990 Series C, 1990 Series D, 1990 Series E and 1990 Series F November 1, 1990.................. Series KKP No. 12 April 1, 1991 April 1, 1991..................... 1991 Series AP May 1, 1991 May 1, 1991....................... 1991 Series BP and 1991 May 15, 1991 Series CP May 15, 1991...................... 1991 Series DP September 1, 1991 September 1, 1991................. 1991 Series EP November 1, 1991 November 1, 1991.................. 1991 Series FP January 15, 1992 January 15, 1992.................. 1992 Series BP February 29, 1992 and April 15, 1992 February 29, 1992................. 1992 Series AP April 15, 1992 April 15, 1992.................... Series KKP No. 13 July 15, 1992 July 15, 1992..................... 1992 Series CP November 30, 1992 July 31, 1992..................... 1992 Series D November 30, 1992 November 30, 1992................. 1992 Series E and 1993 March 15, 1993 Series D December 15, 1992................. Series KKP No. 14 and 1989 March 15, 1992 Series BP No. 2 January 1, 1993................... 1993 Series C April 1, 1993 |
(b) See Supplemental Indenture dated as of May 1, 1953 for Secretary of State of Michigan filing information.
(c) See Supplemental Indenture dated as of May 1, 1974 for County of Genesee, Michigan recording and filing information.
RECORDING OF All the bonds of Series A which were issued under the CERTIFICATES Original Indenture dated as of October 1, 1924, and of OF PROVISION Series B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, T, U, FOR PAYMENT. V, W, AA, BB, CC, DDP Nos. 1-9, FFR Nos. 1-14, GGP Nos. 1-22, HH, IIP Nos. 1-22, JJP Nos. 1-8, KKP Nos. 1-8, LLP Nos. 1-15, NNP Nos. 1-21, OOP Nos. 1-18, QQP Nos. 1-17, SS, TTP Nos. 1-15, UU, 1980 Series A, 1980 Series B, 1980 Series CP Nos. 1-25, 1980 Series DP Nos. 1-11, 1981 Series AP Nos. 1-14, 1985 Series A, 1985 Series B, PP, RR, EE, MMP, MMP No. 2, 1986 Series B, 1986 Series C, 1987 Series C, 1987 Series D, and 1987 Series E which were issued under Supplemental Indentures dated as of, respectively, June 1, 1925, August 1, 1927, February 1, 1931, October 1, 1932, September 25, 1935, September 1, 1936, December 1, 1940, September 1, 1947, November 15, 1951, January 15, 1953, May 1, 1953, March 15, 1954, May 15, 1955, August 15, 1957, June 1, 1959, December 1, 1969, July 1, 1970, December 15, 1970, May 1, 1974, October 1, 1974, January 15, 1975, November 1, 1975, February 1, 1976, June 15, 1976, July 15, 1976, October 1, 1977, March 1, 1977, July 1, 1979, March 1, 1977, March 1, 1977, March 1, 1977, March 15, 1979, September 1, 1979, July 1, 1977, July 1, 1979, September 15, 1979, October 1, 1977, June 1, 1978, October 1, 1977, July 1, 1979, January 1, 1980, April 1, 1980, August 15, 1980, November 1, 1981, May 1, 1985, May 15, 1985, June 1, 1978, October 15, 1978, December 15, 1975, February 15, 1977, September 1, 1979, August 15, 1986, November 30, 1986, April 1, 1987 and August 15, 1987 have matured or have been called for redemption and funds sufficient for such payment or redemption have been irrevocably deposited with the Trustee for that purpose; and Certificates of Provision for Payment have been recorded in the offices of the respective Registers of Deeds of certain counties in the State of Michigan, with respect to all bonds of Series A, B, C, D, E, F, G, H, K, L, M, O, W, BB, CC, DDP Nos. 1 and 2, FFR Nos. 1-3, GGP Nos. 1 and 2, IIP No. 1, JJP No. 1, KKP No. 1, LLP No. 1 and GGP No. 8. |
PART IV. THE TRUSTEE. TERMS AND The Trustee hereby accepts the trust hereby declared and CONDITIONS OF provided, and agrees to perform the same upon the terms and ACCEPTANCE OF conditions in the Original Indenture, as amended to date and TRUST BY TRUSTEE. as supplemented by this Supplemental Indenture, and in this Supplemental Indenture set forth, and upon the following terms and conditions: The Trustee shall not be responsible in any manner whatsoever for and in respect of the validity or sufficiency of this Supplemental Indenture or the due execution hereof by the Company or for or in respect of the recitals contained herein, all of which recitals are made by the Company solely. PART V. MISCELLANEOUS. CONFIRMATION OF Except to the extent specifically provided therein, no SECTION 318(C) OF provision of this supplemental indenture or any future TRUST INDENTURE supplemental indenture is intended to modify, and the ACT. parties do hereby adopt and confirm, the provisions of Section 318(c) of the Trust Indenture Act which amend and supercede provisions of the Indenture in effect prior to November 15, 1990. EXECUTION IN THIS SUPPLEMENTAL INDENTURE MAY BE SIMULTANEOUSLY COUNTERPARTS. EXECUTED IN ANY NUMBER OF COUNTERPARTS, EACH OF WHICH WHEN SO EXECUTED SHALL BE DEEMED TO BE AN ORIGINAL; BUT SUCH COUNTERPARTS SHALL TOGETHER CONSTITUTE BUT ONE AND THE SAME INSTRUMENT. |
TESTIMONIUM. IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY AND BANKERS TRUST COMPANY HAVE CAUSED THESE PRESENTS TO BE SIGNED IN THEIR RESPECTIVE CORPORATE NAMES BY THEIR RESPECTIVE CHAIRMEN OF THE BOARD, PRESIDENTS, VICE PRESIDENTS, ASSISTANT VICE PRESIDENTS, TREASURERS OR ASSISTANT TREASURERS AND IMPRESSED WITH THEIR RESPECTIVE CORPORATE SEALS, ATTESTED BY THEIR RESPECTIVE SECRETARIES OR ASSISTANT SECRETARIES, ALL AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN. |
THE DETROIT EDISON COMPANY, (Corporate Seal) By _________________ C. C. Arvani Assistant Treasurer EXECUTION. Attest: __________________________ Ronald J. Gdowski Assistant Corporate Secretary Signed, sealed and delivered by THE DETROIT EDISON COMPANY, in the presence of _____________________ Jack L. Somers ________________________ Michael J. Chudy |
STATE OF MICHIGAN SS.: COUNTY OF WAYNE ACKNOWLEDGMENT On this 23rd day of April, 1993, before me, the subscriber, OF EXECUTION a Notary Public within and for the County of Wayne, in the BY COMPANY. State of Michigan, personally appeared C. C. Arvani, to me personally known, who, being by me duly sworn, did say that he does business at 2000 Second Avenue, Detroit, Michigan 48226 and is the Assistant Treasurer of THE DETROIT EDISON COMPANY, one of the corporations described in and which executed the foregoing instrument; that he knows the corporate seal of the said corporation and that the seal affixed to said instrument is the corporate seal of said corporation; and that said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors and that he subscribed his name thereto by like authority; and said C. C. Arvani, acknowledged said instrument to be the free act and deed of said corporation. |
______________________ (Notarial Seal) Pearl E. Kotter, Notary Public Macomb County, MI (Acting in Wayne County) My Commission Expires August 23, 1993 |
BANKERS TRUST COMPANY, (Corporate Seal) By __________________ R. T. Gorman Vice President Attest: ______________________ Shikha Dombek Assistant Secretary Signed, sealed and delivered by BANKERS TRUST COMPANY, in the presence of __________________ John Florio __________________________ Kenwyn Hackshaw |
STATE OF NEW YORK SS.: COUNTY OF NEW YORK |
ACKNOWLEDGMENT On this 23rd day of April, 1993, before me, the subscriber, OF EXECUTION a Notary Public within and for the County of Queens, in the BY TRUSTEE. State of New York, personally appeared R. T. Gorman, to me personally known, who, being by me duly sworn, did say that his business office is located at Four Albany Street, New York, New York 10015, and he is Vice President of BANKERS TRUST COMPANY, one of the corporations described in and which executed the foregoing instrument; that he knows the corporate seal of the said corporation and that the seal affixed to said instrument is the corporate seal of said corporation; and that said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors and that he subscribed his name thereto by like authority; and said R. T. Gorman acknowledged said instrument to be the free act and deed of said corporation. |
(Notarial Seal) _________________________ Marjorie Stanley Notary Public, State of New York No. 41-4986405 Qualified in Queens County Certificate filed in New York County Commission Expires Sept. 16, 1993 |
STATE OF MICHIGAN SS.: COUNTY OF WAYNE |
AFFIDAVIT AS TO C. C. Arvani, being duly sworn, says: that he is the CONSIDERATION Assistant Treasurer of THE DETROIT EDISON COMPANY, the AND GOOD FAITH. Mortgagor named in the foregoing instrument, and that he has knowledge of the facts in regard to the making of said instrument and of the consideration therefor; that the consideration for said instrument was and is actual and adequate, and that the same was given in good faith for the purposes in such instrument set forth. |
_________________ C. C. Arvani Sworn to before me this 23rd day of April, 1993 ______________________ Pearl E. Kotter, Notary Public Macomb County, MI (Acting in Wayne County) My Commission Expires August 23, 1993 (Notarial Seal) This instrument was drafted by Frances B. Rohlman, Esq., 2000 Second Avenue, Detroit, Michigan 48226 |
EXHIBIT 4-216
CONFORMED COPY
THE DETROIT EDISON COMPANY
(2000 Second Avenue,
Detroit, Michigan 48226)
TO
BANKERS TRUST COMPANY
(Four Albany Street,
New York, New York 10015)
AS TRUSTEE
INDENTURE
Dated as of June 30, 1993
SUPPLEMENTAL TO MORTGAGE AND DEED OF TRUST
DATED AS OF OCTOBER 1, 1924
PROVIDING FOR
(A) GENERAL AND REFUNDING MORTGAGE BONDS, 1993 SERIES AP, DUE AUGUST 1, 2024
AND
(B) RECORDING AND FILING DATA
TABLE OF CONTENTS*
PAGE ---- PARTIES..................................................... 1 RECITALS Original Indenture and Supplementals...................... 1 Issue of Bonds under Indenture............................ 1 Bonds heretofore issued................................... 1 Reason for creation of new series......................... 4 Bonds to be 1993 Series AP................................ 5 Further Assurance......................................... 5 Authorization of Supplemental Indenture................... 5 Consideration for Supplemental Indenture.................. 5 PART I. CREATION OF THREE HUNDRED ELEVENTH SERIES OF BONDS GENERAL AND REFUNDING MORTGAGE BONDS, 1993 SERIES AP Sec. 1. Terms of Bonds of 1993 Series AP.................... 5 Sec. 2. Redemption of Bonds of 1993 Series AP............... 7 Sec. 3. Redemption in Event of Acceleration................. 8 Sec. 4. Form of Bonds of 1993 Series AP..................... 9 Form of Trustee's Certificate....................... 14 PART II. RECORDING AND FILING DATA Recording and filing of Original Indenture.................. 14 Recording and filing of Supplemental Indentures............. 14 Recording of Certificates of Provision for Payment.......... 19 PART III. THE TRUSTEE Terms and conditions of acceptance of trust by Trustee...... 19 PART IV. MISCELLANEOUS Confirmation of Series 318(c) of Trust Indenture Act........ 19 Execution in Counterparts................................... 19 Testimonium................................................. 20 Execution................................................... 20 Acknowledgements............................................ 21 Affidavit as to consideration and good faith................ 22 |
PARTIES. SUPPLEMENTAL INDENTURE, dated as of the thirtieth day of June, in the year one thousand nine hundred and ninety-three, between THE DETROIT EDISON COMPANY, a corporation organized and existing under the laws of the State of Michigan and a transmitting utility (hereinafter called the "Company"), party of the first part, and BANKERS TRUST COMPANY, a corporation organized and existing under the laws of the State of New York, having its corporate trust office at Four Albany Street, in the Borough of Manhattan, The City and State of New York, as Trustee under the Mortgage and Deed of Trust hereinafter mentioned (hereinafter called the "Trustee"), party of the second part. ORIGINAL WHEREAS, the Company has heretofore executed and delivered INDENTURE AND its Mortgage and Deed of Trust (hereinafter referred to as SUPPLEMENTALS. the "Original Indenture"), dated as of October 1, 1924, to the Trustee, for the security of all bonds of the Company outstanding thereunder, and pursuant to the terms and provisions of the Original Indenture, indentures dated as of, respectively, June 1, 1925, August 1, 1927, February 1, 1931, June 1, 1931, October 1, 1932, September 25, 1935, September 1, 1936, November 1, 1936, February 1, 1940, December 1, 1940, September 1, 1947, March 1, 1950, November 15, 1951, January 15, 1953, May 1, 1953, March 15, 1954, May 15, 1955, August 15, 1957, June 1, 1959, December 1, 1966, October 1, 1968, December 1, 1969, July 1, 1970, December 15, 1970, June 15, 1971, November 15, 1971, January 15, 1973, May 1, 1974, October 1, 1974, January 15, 1975, November 1, 1975, December 15, 1975, February 1, 1976, June 15, 1976, July 15, 1976, February 15, 1977, March 1, 1977, June 15, 1977, July 1, 1977, October 1, 1977, June 1, 1978, October 15, 1978, March 15, 1979, July 1, 1979, September 1, 1979, September 15, 1979, January 1, 1980, April 1, 1980, August 15, 1980, August 1, 1981, November 1, 1981, June 30, 1982, August 15, 1982, June 1, 1983, October 1, 1984, May 1, 1985, May 15, 1985, October 15, 1985, April 1, 1986, August 15, 1986, November 30, 1986, January 31, 1987, April 1, 1987, August 15, 1987, November 30, 1987, June 15, 1989, July 15, 1989, December 1, 1989, February 15, 1990, November 1, 1990, April 1, 1991, May 1, 1991, May 15, 1991, September 1, 1991, November 1, 1991, January 15, 1992, February 29, 1992, April 15, 1992, July 15, 1992, July 31, 1992, November 30, 1992, December 15, 1992, January 1, 1993, March 1, 1993, March 15, 1993, April 1, 1993, April 26, 1993 and May 31, 1993 supplemental to the Original Indenture, have heretofore been entered into between the Company and the Trustee (the Original Indenture and all indentures supplemental thereto together being hereinafter sometimes referred to as the "Indenture"); and ISSUE OF WHEREAS, the Indenture provides that said bonds shall be BONDS UNDER issuable in one or more series, and makes provision that the INDENTURE. rates of interest and dates for the payment thereof, the date of maturity or dates of maturity, if of serial maturity, the terms and rates of optional redemption (if redeemable), the forms of registered bonds without coupons of any series and any other provisions and agreements in respect thereof, in the Indenture provided and permitted, as the Board of Directors may determine, may be expressed in a supplemental indenture to be made by the Company to the Trustee thereunder; and BONDS HERETOFORE WHEREAS, bonds in the principal amount of Seven billion ISSUED. eight hundred three million one hundred seven thousand dollars ($7,803,107,000) have heretofore been issued under the indenture as follows, viz: |
(1) Bonds of Series A -- Principal Amount $26,016,000, (2) Bonds of Series B -- Principal Amount $23,000,000, (3) Bonds of Series C -- Principal Amount $20,000,000, (4) Bonds of Series D -- Principal Amount $50,000,000, (5) Bonds of Series E -- Principal Amount $15,000,000, (6) Bonds of Series F -- Principal Amount $49,000,000, (7) Bonds of Series G -- Principal Amount $35,000,000, (8) Bonds of Series H -- Principal Amount $50,000,000, (9) Bonds of Series I -- Principal Amount $60,000,000, (10) Bonds of Series J -- Principal Amount $35,000,000, (11) Bonds of Series K -- Principal Amount $40,000,000, |
(12) Bonds of Series L -- Principal Amount $24,000,000, (13) Bonds of Series M -- Principal Amount $40,000,000, (14) Bonds of Series N -- Principal Amount $40,000,000, (15) Bonds of Series O -- Principal Amount $60,000,000, (16) Bonds of Series P -- Principal Amount $70,000,000, (17) Bonds of Series Q -- Principal Amount $40,000,000, (18) Bonds of Series W -- Principal Amount $50,000,000, (19) Bonds of Series AA -- Principal Amount $100,000,000, (20) Bonds of Series BB -- Principal Amount $50,000,000, (21) Bonds of Series CC -- Principal Amount $50,000,000, (22) Bonds of Series UU -- Principal Amount $100,000,000, (23-31) Bonds of Series DDP Nos. 1-9 -- Principal Amount $14,305,000, (32-45) Bonds of Series FFR Nos. 1-14 -- Principal Amount $45,600,000, (46-67) Bonds of Series GGP Nos. 1-22 -- Principal Amount $42,300,000, (68) Bonds of Series HH -- Principal Amount $50,000,000, (69-90) Bonds of Series IIP Nos. 1-22 -- Principal Amount $3,750,000, (91-98) Bonds of Series JJP Nos. 1-8 -- Principal Amount $6,850,000, (99-106) Bonds of Series KKP Nos. 1-8 -- Principal Amount $14,890,000, (107-121) Bonds of Series LLP Nos. 1-15 -- Principal Amount $8,850,000, (122-142) Bonds of Series NNP Nos. 1-21 -- Principal Amount $47,950,000, (143-160) Bonds of Series OOP Nos. 1-18 -- Principal Amount $18,880,000, (161-178) Bonds of Series QQP Nos. 1-18 -- Principal Amount $13,215,000, (179-193) Bonds of Series TTP Nos. 1-15 -- Principal Amount $3,800,000, (194) Bonds of 1980 Series A -- Principal Amount $50,000,000, (195-219) Bonds of 1980 Series CP Nos. 1-25 -- Principal Amount $35,000,000, (220-230) Bonds of 1980 Series DP Nos. 1-11 -- Principal Amount $10,750,000, (231-244) Bonds of 1981 Series AP Nos. 1-14 -- Principal Amount $59,000,000, (245) Bonds of 1985 Series A -- Principal Amount $35,000,000, (246) Bonds of 1985 Series B -- Principal Amount $50,000,000, (247) Bonds of Series PP -- Principal Amount $70,000,000, (248) Bonds of Series RR -- Principal Amount $70,000,000, (249) Bonds of Series EE -- Principal Amount $50,000,000, (250-251) Bonds of Series MMP and MMP No. 2 -- Principal Amount $5,430,000, (252) Bonds of Series T -- Principal Amount $75,000,000, (253) Bonds of Series U -- Principal Amount $75,000,000, (254) Bonds of 1986 Series B -- Principal Amount $100,000,000, (255) Bonds of 1987 Series D -- Principal Amount $250,000,000, (256) Bonds of 1987 Series E -- Principal Amount $150,000,000, (257) Bonds of 1987 Series C -- Principal Amount $225,000,000, (258) Bonds of Series V -- Principal Amount $100,000,000, (259) Bonds of Series SS -- Principal Amount $150,000,000, (260) Bonds of 1980 Series B -- Principal Amount $100,000,000, (261) Bonds of 1986 Series C -- Principal Amount $200,000,000, (262) Bonds of 1986 Series A -- Principal Amount $200,000,000, (263) Bonds of 1987 Series B -- Principal Amount $175,000,000, (264) Bonds of Series X -- Principal Amount $100,000,000, (265) Bonds of 1987 Series F -- Principal Amount $200,000,000, |
all of which have either been retired and cancelled, or no longer represent obligations of the Company, having been called for redemption and funds necessary to effect the payment, redemption and retirement thereof having been deposited with the Trustee as a special trust fund to be applied for such purpose; (266) Bonds of Series R in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof; (267) Bonds of Series S in the principal amount of One hundred fifty million dollars ($150,000,000), all of which are outstanding at the date hereof; |
(268) Bonds of Series Y in the principal amount of Sixty million dollars ($60,000,000), all of which are outstanding at the date hereof; (269) Bonds of Series Z in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof; (270-275) Bonds of Series KKP Nos. 9-14 in the principal amount of One hundred ninety-three million two hundred ninety thousand dollars ($193,290,000), all of which are outstanding at the date hereof; (276) Bonds of Series QQP No. 19 in the principal amount of Four hundred thirty-five thousand dollars ($435,000), all of which are outstanding at the date hereof; (277-278) Bonds of 1981 Series AP Nos. 15-16 in the principal amount of Sixty-five million dollars ($65,000,000), all of which are outstanding at the date hereof; (279) Bonds of 1984 Series AP in the principal amount of Two million four hundred thousand dollars ($2,400,000), all of which are outstanding at the date hereof; (280) Bonds of 1984 Series BP in the principal amount of Seven million seven hundred fifty thousand dollars ($7,750,000), all of which are outstanding at the date hereof; (281) Bonds of 1987 Series A in the principal amount of Three hundred million dollars ($300,000,000), all of which are outstanding at the date hereof; (282) Bonds of 1989 Series A in the principal amount of Three hundred million dollars ($300,000,000), all of which are outstanding at the date hereof; (283) Bonds of 1989 Series BP in the principal amount of Sixty-six million five hundred sixty-five thousand dollars ($66,565,000), all of which are outstanding at the date hereof; (284) Bonds of 1990 Series A in the principal amount of One hundred ninety-four million six hundred forty-nine thousand dollars ($194,649,000) of which Twenty-five million one hundred sixteen thousand dollars ($25,116,000) principal amount have heretofore been retired and One hundred sixty-nine million five hundred thirty-three thousand dollars ($169,533,000) principal amount are outstanding at the date hereof; (285) Bonds of 1990 Series B in the principal amount of Two hundred fifty-six million nine hundred thirty-two thousand dollars ($256,932,000) of which Thirty-eight million sixty-four thousand dollars ($38,064,000) principal amount have heretofore been retired and Two hundred eighteen million eight hundred sixty-eight thousand dollars ($218,868,000) principal amount are outstanding at the date hereof; (286) Bonds of 1990 Series C in the principal amount of Eighty-five million four hundred seventy-five thousand dollars ($85,475,000) of which Thirteen million six hundred seventy-six thousand dollars ($13,676,000) principal amount have heretofore been retired and Seventy-one million seven hundred ninety-nine thousand dollars ($71,799,000) principal amount are outstanding at the date hereof; (287) Bonds of 1991 Series AP in the principal amount of Thirty-two million three hundred seventy-five thousand dollars ($32,375,000), all of which are outstanding at the date hereof; (288) Bonds of 1991 Series BP in the principal amount of Twenty-five million nine hundred ten thousand dollars ($25,910,000), all of which are outstanding at the date hereof; (289) Bonds of 1991 Series CP in the principal amount of Thirty-two million eight hundred thousand dollars ($32,800,000), all of which are outstanding at the date hereof; |
(290) Bonds of 1991 Series DP in the principal amount of Thirty-seven million six hundred thousand dollars ($37,600,000), all of which are outstanding at the date hereof; (291) Bonds of 1991 Series EP in the principal amount of Forty-one million four hundred eighty thousand dollars ($41,480,000), all of which are outstanding at the date hereof; (292) Bonds of 1991 Series FP in the principal amount of Ninety-eight million three hundred seventy-five thousand dollars ($98,375,000), all of which are outstanding at the date hereof; (293) Bonds of 1992 Series BP in the principal amount of Twenty million nine hundred seventy-five thousand dollars ($20,975,000), all of which are outstanding at the date hereof; (294) Bonds of 1992 Series AP in the principal amount of Sixty-six million dollars ($66,000,000), all of which are outstanding at the date hereof; (295) Bonds of 1992 Series D in the principal amount of Three hundred million dollars ($300,000,000), all of which are outstanding at the date hereof; (296) Bonds of 1992 Series CP in the principal amount of Thirty-five million dollars ($35,000,000), all of which are outstanding at the date hereof; (297) Bonds of 1992 Series E in the principal amount of Fifty million dollars ($50,000,000), all of which are outstanding at the date hereof; (298) Bonds of 1989 Series BP No. 2 in the principal amount of Thirty-six million dollars ($36,000,000), all of which are outstanding at the date hereof; (299) Bonds of 1993 Series C in the principal amount of Two hundred twenty-five million dollars ($225,000,000), all of which are outstanding at the date hereof; (300) Bonds of 1993 Series B in the principal amount of Fifty million dollars ($50,000,000), all of which are outstanding at the date hereof; (301) Bonds of 1993 Series E in the principal amount of Four hundred million dollars ($400,000,000), all of which are outstanding at the date hereof; (302) Bonds of 1993 Series D in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof; (303) Bonds of 1993 Series FP in the principal amount of Five million six hundred eighty-five thousand dollars ($5,685,000), all of which are outstanding at the date hereof; (304) Bonds of 1993 Series G in the principal amount of Two hundred twenty-five million dollars ($225,000,000), all of which are outstanding at the date hereof; (305) Bonds of 1993 Series J in the principal amount of Three hundred million dollars ($300,000,000), all of which are outstanding at the date hereof; (306) Bonds of 1993 Series IP in the principal amount of Five million eight hundred twenty-five thousand dollars, all of which are outstanding at the date hereof; and, accordingly, of the bonds so issued, Three billion eight hundred ninety-three million six hundred sixty-five thousand dollars ($3,893,665,000) principal amount are outstanding at the date hereof; and |
REASON FOR WHEREAS, The Economic Development Corporation of the CREATION OF County of St. Clair, State of Michigan has agreed to issue NEW SERIES. and sell $65,000,000 principal amount of its Pollution Control Refunding Revenue Bonds (The Detroit Edison Company Project), Collateralized Series 1993AA so as to provide funds for the refunding of certain pollution control revenue bonds previously issued to finance pollution control projects of the Company; and |
WHEREAS, the Company has entered into Loan Agreement, dated as of August 1, 1993 with The Economic Development Corporation of the County of St Clair, State of Michigan in order to refund certain pollution control revenue bonds, and pursuant to such Loan Agreement the Company has agreed to issue its General and Refunding Mortgage Bonds under the Indenture in order further to secure its obligations under such Loan Agreement; and WHEREAS, for such purposes the Company desires to issue a new series of bonds to be issued under the Indenture and to be authenticated and delivered pursuant to Section 8 of Article III of the Indenture; and BONDS TO BE WHEREAS, the Company desires by this Supplemental 1993 SERIES AP. Indenture to create such new series of bonds, to be designated "General and Refunding Mortgage Bonds, 1993 Series AP"; and FURTHER WHEREAS, the Original Indenture, by its terms, includes in ASSURANCE. the property subject to the lien thereof all of the estates and properties, real, personal and mixed, rights, privileges and franchises of every nature and kind and wheresoever situate, then or thereafter owned or possessed by or belonging to the Company or to which it was then or at any time thereafter might be entitled in law or in equity (saving and excepting, however, the property therein specifically excepted or released from the lien thereof), and the Company therein covenanted that it would, upon reasonable request, execute and deliver such further instruments as may be necessary or proper for the better assuring and confirming unto the Trustee all or any part of the trust estate, whether then or thereafter owned or acquired by the Company (saving and excepting, however, property specifically excepted or released from the lien thereof); and AUTHORIZATION WHEREAS, the Company in the exercise of the powers and OF SUPPLEMENTAL authority conferred upon and reserved to it under and by INDENTURE. virtue of the provisions of the Indenture, and pursuant to resolutions of its Board of Directors has duly resolved and determined to make, execute and deliver to the Trustee a supplemental indenture in the form hereof for the purposes herein provided; and WHEREAS, all conditions and requirements necessary to make this Supplemental Indenture a valid and legally binding instrument in accordance with its terms have been done, performed and fulfilled, and the execution and delivery hereof have been in all respects duly authorized; CONSIDERATION NOW, THEREFORE, THIS INDENTURE WITNESSETH: That The FOR SUPPLEMENTAL Detroit Edison Company, in consideration of the premises and INDENTURE. of the covenants contained in the Indenture and of the sum of One Dollar ($1.00) and other good and valuable consideration to it duly paid by the Trustee at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, hereby covenants and agrees to and with the Trustee and its successors in the trusts under the Original Indenture and in said indentures supplemental thereto as follows: |
PART I. CREATION OF THREE HUNDRED ELEVENTH SERIES OF BONDS. GENERAL AND REFUNDING MORTGAGE BONDS, 1993 SERIES AP CERTAIN TERMS SECTION 1. The Company hereby creates the Three hundred OF BONDS OF eleventh series of bonds to be issued under and secured by 1993 SERIES AP. the Original Indenture as amended to date and as further amended by this Supplemental Indenture, to be designated, and to be distinguished from the bonds of all other series, by the title "General and Refunding Mortgage Bonds, 1993 Series AP" (elsewhere herein referred to as the "bonds of 1993 Series AP"). The aggregate principal amount of bonds of 1993 Series AP shall be limited to Sixty-five million dollars ($65,000,000), except as provided in Sections 7 and 13 of Article II of the Original Indenture with respect to exchanges and replacements of bonds. Each bond of 1993 Series AP is to be irrevocably assigned to, and registered in the name of, Comerica Bank, as trustee, or a successor trustee (said trustee or any successor trustee being hereinafter referred to as the "St. Clair EDC Trust Indenture Trustee"), under the Trust Indenture, dated as of August 1, 1993 (hereinafter called the "St. Clair EDC Trust Indenture"), between The Economic Development Corporation of the County of St. Clair, State of Michigan (hereinafter called "St. Clair EDC"), and the St. Clair EDC Trust Indenture Trustee, to secure payment of The Economic Development Corporation of the County of St. Clair, State of Michigan, Pollution Control Refunding Revenue Bonds (The Detroit Edison Company Project), Collateralized Series 1993AA (hereinafter called the "St. Clair EDC Revenue Bonds"), issued by the St. Clair EDC under the St. Clair EDC Trust Indenture, the proceeds of which have been provided for the refunding of certain pollution control revenue bonds which the Company has agreed to refund pursuant to the provisions of the Loan Agreement, dated as of August 1, 1993 (hereinafter called the "St. Clair EDC Agreement"), between the Company and the St. Clair EDC. The bonds of 1993 Series AP shall be issued as registered bonds without coupons in denominations of a multiple of $5,000. The bonds of 1993 Series AP shall be issued in the aggregate principal amount of $65,000,000, shall mature on August 1, 2024 and shall bear interest, payable semi-annually on February 1 and August 1 of each year (commencing February 1, 1994), at the rate of 6.40%, until the principal thereof shall have become due and payable and thereafter until the Company's obligation with respect to the payment of said principal shall have been discharged as provided in the Indenture. The bonds of 1993 Series AP shall be payable as to principal, premium, if any, and interest as provided in the Indenture, but only to the extent and in the manner herein provided. The bonds of 1993 Series AP shall be payable, both as to principal and interest, at the office or agency of the Company in the Borough of Manhattan, The City and State of New York, in any coin or currency of the United States of America which at the time of payment is legal tender for public and private debts. Except as provided herein, each bond of 1993 Series AP shall be dated the date of its authentication and interest shall be payable on the principal represented thereby from the February 1 or August 1 next preceding the date thereof to which interest has been paid on bonds of 1993 Series AP, unless the bond is authenticated on a date to which interest has been paid, in which case interest shall be payable from the date of authentication, or unless the date of authentication is prior to February 1, 1994, in which case interest shall be payable from August 1, 1993. |
The bonds of 1993 Series AP in definitive form shall be, at the election of the Company, fully engraved or shall be lithographed or printed in authorized denominations as aforesaid and numbered 1 and upwards (with such further designation as may be appropriate and desirable to indicate by such designation the form, series and denominations of bonds of 1993 Series AP). Until bonds of 1993 Series AP in definitive form are ready for delivery, the Company may execute, and upon its request in writing the Trustee shall authenticate and deliver in lieu thereof, bonds of 1993 Series AP in temporary form, as provided in Section 10 of Article II of the Indenture. Temporary bonds of 1993 Series AP, if any, may be printed and may be issued in authorized denominations in substantially the form of definitive bonds of 1993 Series AP, but with such omissions, insertions and variations as may be appropriate for temporary bonds, all as may be determined by the Company. Bonds of 1993 Series AP shall not be assignable or transferable except as may be required to effect a transfer to any successor trustee under the St. Clair EDC Trust Indenture, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under the St. Clair EDC Trust Indenture. Any such transfer shall be made upon surrender thereof for cancellation at the office or agency of the Company in the Borough of Manhattan, The City and State of New York, together with a written instrument of transfer (if so required by the Company or by the Trustee) in form approved by the Company duly executed by the holder or by its duly authorized attorney. Bonds of 1993 Series AP shall in the same manner be exchangeable for a like aggregate principal amount of bonds of 1993 Series AP upon the terms and conditions specified herein and in Section 7 of Article II of the Indenture. The Company waives its rights under Section 7 of Article II of the Indenture not to make exchanges or transfers of bonds of 1993 Series AP, during any period of ten days next preceding any redemption date for such bonds. Bonds of 1993 Series AP, in definitive and temporary form, may bear such legends as may be necessary to comply with any law or with any rules or regulations made pursuant thereto or as may be specified in the St. Clair EDC Agreement. Upon payment of the principal or premium, if any, or interest on the St. Clair EDC Revenue Bonds, whether at maturity or prior to maturity by redemption or otherwise, or upon provision for the payment thereof having been made in accordance with Article IV of the St. Clair EDC Trust Indenture, bonds of 1993 Series AP in a principal amount equal to the principal amount of such St. Clair EDC Revenue Bonds, shall, to the extent of such payment of principal, premium or interest, be deemed fully paid and the obligation of the Company thereunder to make such payment shall forthwith cease and be discharged, and, in the case of the payment of principal and premium, if any, such bonds shall be surrendered for cancellation or presented for appropriate notation to the Trustee. REDEMPTION SECTION 2. Bonds of 1993 Series AP shall be redeemed on OF BONDS OF the respective dates and in the respective principal amounts 1993 SERIES AP. which correspond to the redemption dates for, and the principal amounts to be redeemed of, the St. Clair EDC Revenue Bonds. In the event the Company elects to redeem any St. Clair EDC Revenue Bonds prior to maturity in accordance with the provisions of the St. Clair EDC Trust Indenture, the Company shall on the same date redeem bonds of 1993 Series AP in principal amounts and at redemption prices corresponding to the St. Clair EDC Revenue Bonds so redeemed. The Company agrees to give the Trustee notice of any such redemption of bonds of 1993 Series AP on the same date as it gives notice of redemption of St. Clair EDC Revenue Bonds to the St. Clair EDC Trust Indenture Trustee. |
REDEMPTION SECTION 3. In the event of an Event of Default under the OF BONDS OF 1993 SERIES St. Clair EDC Trust Indenture and the acceleration of all AP IN EVENT OF St. Clair EDC Revenue Bonds, the bonds of 1993 Series AP ACCELERATION shall be redeemable in whole upon receipt by the Trustee of OF ST. CLAIR EDC a written demand (hereinafter called a "Redemption Demand") REVENUE BONDS. from the St. Clair EDC Trust Indenture Trustee stating that there has occurred under the St. Clair EDC Trust Indenture both an Event of Default and a declaration of acceleration of payment of principal, accrued interest and premium, if any, on the St. Clair EDC Revenue Bonds, specifying the last date to which interest on the St. Clair EDC Revenue Bonds has been paid (such date being hereinafter referred to as the "Initial Interest Accrual Date") and demanding redemption of the bonds of said series. The Trustee shall, within five days after receiving such Redemption Demand, mail a copy thereof to the Company marked to indicate the date of its receipt by the Trustee. Promptly upon receipt by the Company of such copy of a Redemption Demand, the Company shall fix a date on which it will redeem the bonds of said series so demanded to be redeemed (hereinafter called the "Demand Redemption Date"). Notice of the date fixed as the Demand Redemption Date shall be mailed by the Company to the Trustee at least ten days prior to such Demand Redemption Date. The date to be fixed by the Company as and for the Demand Redemption Date may be any date up to and including the earlier of (x) the 60th day after receipt by the Trustee of the Redemption Demand or (y) the maturity date of such bonds first occurring following the 20th day after the receipt by the Trustee of the Redemption Demand; provided, however, that if the Trustee shall not have received such notice fixing the Demand Redemption Date on or before the 10th day preceding the earlier of such dates, the Demand Redemption Date shall be deemed to be the earlier of such dates. The Trustee shall mail notice of the Demand Redemption Date (such notice being hereinafter called the "Demand Redemption Notice") to the St. Clair EDC Trust Indenture Trustee not more than ten nor less than five days prior to the Demand Redemption Date. Each bond of 1993 Series AP shall be redeemed by the Company on the Demand Redemption Date therefore upon surrender thereof by the St. Clair EDC Trust Indenture Trustee to the Trustee at a redemption price equal to the principal amount thereof plus accrued interest thereon at the rate specified for such bond from the Initial Interest Accrual Date to the Demand Redemption Date plus an amount equal to the aggregate premium, if any, due and payable on such Demand Redemption Date on all St. Clair EDC Revenue Bonds; provided, however, that in the event of a receipt by the Trustee of a notice that, pursuant to Section 604 of the St. Clair EDC Trust Indenture, the St. Clair EDC Trust Indenture Trustee has terminated proceedings to enforce any right under the St. Clair EDC Trust Indenture, then any Redemption Demand shall thereby be rescinded by the St. Clair EDC Trust Indenture Trustee, and no Demand Redemption Notice shall be given, or, if already given, shall be automatically annulled; but no such rescission or annulment shall extend to or affect any subsequent default or impair any right consequent thereon. Anything herein contained to the contrary notwithstanding, the Trustee is not authorized to take any action pursuant to a Redemption Demand and such Redemption Demand shall be of no force or effect, unless it is executed in the name of the St. Clair EDC Trust Indenture Trustee by its President or one of its Vice Presidents. FORM OF BONDS SECTION 4. The bonds of 1993 Series AP and the form of OF 1993 SERIES AP. Trustee's Certificate to be endorsed on such bonds shall be substantially in the following forms, respectively: |
[FORM OF FACE OF BOND] THE DETROIT EDISON COMPANY GENERAL AND REFUNDING MORTGAGE BOND 1993 SERIES AP, 6.40% DUE AUGUST 1, 2024 Notwithstanding any provisions hereof or in the Indenture, this bond is not assignable or transferable except as may be required to effect a transfer to any successor trustee under the Trust Indenture, dated as of August 1, 1993 between The Economic Development Corporation of the County of St. Clair, State of Michigan and Comerica Bank, as trustee, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under said Trust Indenture. $......... No.......... THE DETROIT EDISON COMPANY (hereinafter called the "Company"), a corporation of the State of Michigan, for value received, hereby promises to pay to Comerica Bank, as trustee, or registered assigns, at the Company's office or agency in the Borough of Manhattan, The City and State of New York, the principal sum of dollars ($ ) in lawful money of the United States of America on the date specified in the title hereof and interest thereon at the rate specified in the title hereof, in like lawful money, from August 1, 1993, and after the first payment of interest on bonds of this Series has been made or otherwise provided for, from the most recent date to which interest has been paid or otherwise provided for, semi-annually on February 1 and August 1 of each year (commencing February 1, 1994), until the Company's obligation with respect to payment of said principal shall have been discharged, all as provided, to the extent and in the manner specified in the Indenture hereinafter mentioned on the reverse hereof and in the supplemental indenture pursuant to which this bond has been issued. Under a Trust Indenture, dated as of August 1, 1993 (hereinafter called the "St. Clair EDC Trust Indenture"), between The Economic Development Corporation of the County of St. Clair, State of Michigan (hereinafter called "St. Clair EDC"), and Comerica Bank, as trustee (hereinafter called the "St. Clair EDC Trust Indenture Trustee"), the St. Clair EDC has issued its Pollution Control Refunding Revenue Bonds (The Detroit Edison Company Project), Collateralized Series 1993AA (hereinafter called the "St. Clair EDC Revenue Bonds"). This bond was originally issued to the St. Clair EDC and simultaneously irrevocably assigned to the St. Clair EDC Trust Indenture Trustee so as to secure the payment of the St. Clair EDC Revenue Bonds. Payments of principal of, or premium, if any, or interest on, the St. Clair EDC Revenue Bonds shall constitute like payments on this bond as further provided herein and in the supplemental indenture pursuant to which this bond has been issued. Reference is hereby made to such further provisions of this bond set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though set forth at this place. This bond shall not be valid or become obligatory for any purpose until Bankers Trust Company, the Trustee under the Indenture hereinafter mentioned on the reverse hereof, or its successor thereunder, shall have signed the form of certificate endorsed hereon. |
IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY has caused this instrument to be executed by its Chairman of the Board and its Vice President and Treasurer, with their manual or facsimile signatures, and its corporate seal, or a facsimile thereof, to be impressed or imprinted hereon and the same to be attested by its Corporate Secretary or an Assistant Corporate Secretary with his or her manual or facsimile signature. |
Dated: THE DETROIT EDISON COMPANY By ............................ Chairman of the Board ............................ Attest: Vice President and Treasurer ............................ Corporate Secretary |
[FORM OF REVERSE OF BOND] This bond is one of an authorized issue of bonds of the Company, unlimited as to amount except as provided in the Indenture hereinafter mentioned or any indentures supplemental thereto, and is one of a series of General and Refunding Mortgage Bonds known as 1993 Series AP, limited to an aggregate principal amount of $65,000,000, except as otherwise provided in the Indenture hereinafter mentioned. This bond and all other bonds of said series are issued and to be issued under, and are all equally and ratably secured (except insofar as any sinking, amortization, improvement or analogous fund, established in accordance with the provisions of the Indenture hereinafter mentioned, may afford additional security for the bonds of any particular series and except as provided in Section 3 of Article VI of said Indenture) by an Indenture, dated as of October 1, 1924, duly executed by the Company to Bankers Trust Company, a corporation of the State of New York, as Trustee, to which Indenture and all indentures supplemental thereto (including the Supplemental Indenture dated as of June 30, 1993) reference is hereby made for a description of the properties and franchises mortgaged and conveyed, the nature and extent of the security, the terms and conditions upon which the bonds are issued and under which additional bonds may be issued, and the rights of the holders of the bonds and of the Trustee in respect of such security (which Indenture and all indentures supplemental thereto, including the Supplemental Indenture dated as of June 30, 1993, are hereinafter collectively called the "Indenture"). As provided in the Indenture, said bonds may be for various principal sums and are issuable in series, which may mature at different times, may bear interest at different rates and may otherwise vary as in said Indenture provided. With the consent of the Company and to the extent permitted by and as provided in the Indenture, the rights and obligations of the Company and of the holders of the bonds and the terms and provisions of the Indenture, or of any indenture supplemental thereto, may be modified or altered in certain respects by affirmative vote of at least eighty-five percent (85%) in amount of the bonds then outstanding, and, if the rights of one or more, but less than all, series of bonds then outstanding are to be affected by the action proposed to be taken, then also by affirmative vote of at least eighty-five percent (85%) in amount of the series of bonds so to be affected (excluding in every instance bonds disqualified from voting by reason of the Company's interest therein as specified in the Indenture); provided, however, that, without the consent of the holder hereof, no such modification or alteration shall, among other things, affect the terms of payment of the principal of or the interest on this bond, which in those respects is unconditional. This bond is redeemable upon the terms and conditions set forth in the Indenture, including provision for redemption upon demand of the St. Clair EDC Trust Indenture Trustee following the occurrence of an Event of Default under the St. Clair EDC Trust Indenture and the acceleration of the principal of the St. Clair EDC Revenue Bonds. Under the Indenture, funds may be deposited with the Trustee (which shall have become available for payment), in advance of the redemption date of any of the bonds of 1993 Series AP (or portions thereof), in trust for the redemption of such bonds (or portions thereof) and the interest due or to become due thereon, and thereupon all obligations of the Company in respect of such bonds (or portions thereof) so to be redeemed and such interest shall cease and be discharged, and the holders thereof shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or with respect to such bonds (or portions thereof) and interest. In case an event of default, as defined in the Indenture, shall occur, the principal of all the bonds issued thereunder may become or be declared due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture. |
Upon payment of the principal of, or premium, if any, or interest on, the St. Clair EDC Revenue Bonds, whether at maturity or prior to maturity by redemption or otherwise or upon provision for the payment thereof having been made in accordance with Article IV of the St. Clair EDC Trust Indenture, bonds of 1993 Series AP in a principal amount equal to the principal amount of such St. Clair EDC Revenue Bonds and having both a corresponding maturity date and interest rate shall, to the extent of such payment of principal, premium or interest, be deemed fully paid and the obligation of the Company thereunder to make such payment shall forthwith cease and be discharged, and, in the case of the payment of principal and premium, if any, such bonds of said series shall be surrendered for cancellation or presented for appropriate notation to the Trustee. This bond is not assignable or transferable except as may be required to effect a transfer to any successor trustee under the St. Clair EDC Trust Indenture, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under the St. Clair EDC Trust Indenture. Any such transfer shall be made by the registered holder hereof, in person or by his attorney duly authorized in writing, on the books of the Company kept at its office or agency in the Borough of Manhattan, The City and State of New York, upon surrender and cancellation of this bond, and thereupon, a new registered bond of the same series of authorized denominations for a like aggregate principal amount will be issued to the transferee in exchange therefor, and this bond with others in like form may in like manner be exchanged for one or more new bonds of the same series of other authorized denominations, but of the same aggregate principal amount, all as provided and upon the terms and conditions set forth in the Indenture, and upon payment, in any event, of the charges prescribed in the Indenture. No recourse shall be had for the payment of the principal of or the interest on this bond, or for any claim based hereon or otherwise in respect hereof or of the Indenture, or of any indenture supplemental thereto, against any incorporator, or against any past, present or future stockholder, director or officer, as such, of the Company, or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether for amounts unpaid on stock subscriptions or by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise howsoever; all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released by every holder or owner hereof, as more fully provided in the Indenture. |
[FORM OF TRUSTEE'S CERTIFICATE] FORM OF This bond is one of the bonds, of the series designated TRUSTEE'S therein, described in the within-mentioned Indenture. CERTIFICATE. |
BANKERS TRUST COMPANY,
as Trustee
By ...........................
Authorized Officer
PART II. RECORDING AND FILING DATA RECORDING AND The Original Indenture and indentures supplemental FILING OF ORIGINAL thereto have been recorded and/or filed and Certificates of INDENTURE. Provision for Payment have been recorded as hereinafter set forth. The Original Indenture has been recorded as a real estate mortgage and filed as a chattel mortgage in the offices of the respective Registers of Deeds of certain counties in the State of Michigan as set forth in the Supplemental Indenture dated as of September 1, 1947, has been recorded as a real estate mortgage in the office of the Register of Deeds of Genesee County, Michigan as set forth in the Supplemental Indenture dated as of May 1, 1974, has been filed in the Office of the Secretary of State of Michigan on November 16, 1951 and has been filed and recorded in the office of the Interstate Commerce Commission on December 8, 1969. RECORDING AND Pursuant to the terms and provisions of the Original FILING OF Indenture, indentures supplemental thereto heretofore SUPPLEMENTAL entered into have been recorded as a real estate mortgage INDENTURES. and/or filed as a chattel mortgage or as a financing statement in the offices of the respective Registers of Deeds of certain counties in the State of Michigan, the Office of the Secretary of State of Michigan and the Office of the Interstate Commerce Commission, as set forth in supplemental indentures as follows: |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- June 1, 1925(a)(b)................ Series B Bonds February 1, 1940 August 1, 1927(a)(b).............. Series C Bonds February 1, 1940 February 1, 1931(a)(b)............ Series D Bonds February 1, 1940 June 1, 1931(a)(b)................ Subject Properties February 1, 1940 October 1, 1932(a)(b)............. Series E Bonds February 1, 1940 September 25, 1935(a)(b).......... Series F Bonds February 1, 1940 September 1, 1936(a)(b)........... Series G Bonds February 1, 1940 November 1, 1936(a)(b)............ Subject Properties February 1, 1940 February 1, 1940(a)(b)............ Subject Properties September 1, 1947 December 1, 1940(a)(b)............ Series H Bonds and September 1, 1947 Additional Provisions September 1, 1947(a)(b)(c)........ Series I Bonds, November 15, 1951 Subject Properties and Additional Provisions March 1, 1950(a)(b)(c)............ Series J Bonds November 15, 1951 and Additional Provisions November 15, 1951(a)(b)(c)........ Series K Bonds January 15, 1953 Additional Provisions and Subject Properties January 15, 1953(a)(b)............ Series L Bonds May 1, 1953 May 1, 1953(a).................... Series M Bonds March 15, 1954 and Subject Properties March 15, 1954(a)(c).............. Series N Bonds May 15, 1955 and Subject Properties |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- May 15, 1955(a)(c)................ Series O Bonds August 15, 1957 and Subject Properties August 15, 1957(a)(c)............. Series P Bonds June 1, 1959 Additional Provisions and Subject Properties June 1, 1959(a)(c)................ Series Q Bonds December 1, 1966 and Subject Properties December 1, 1966(a)(c)............ Series R Bonds October 1, 1968 Additional Provisions and Subject Properties October 1, 1968(a)(c)............. Series S Bonds December 1, 1969 and Subject Properties December 1, 1969(a)(c)............ Series T Bonds July 1, 1970 and Subject Properties July 1, 1970(c)................... Series U Bonds December 15, 1970 and Subject Properties December 15, 1970(c).............. Series V and June 15, 1971 Series W Bonds June 15, 1971(c).................. Series X Bonds November 15, 1971 and Subject Properties November 15, 1971(c).............. Series Y Bonds January 15, 1973 and Subject Properties January 15, 1973(c)............... Series Z Bonds May 1, 1974 and Subject Properties May 1, 1974....................... Series AA Bonds October 1, 1974 and Subject Properties October 1, 1974................... Series BB Bonds January 15, 1975 and Subject Properties January 15, 1975.................. Series CC Bonds November 1, 1975 and Subject Properties November 1, 1975.................. Series DDP Nos. 1-9 Bonds December 15, 1975 and Subject Properties December 15, 1975................. Series EE Bonds February 1, 1976 and Subject Properties February 1, 1976.................. Series FFR Nos. 1-13 Bonds June 15, 1976 June 15, 1976..................... Series GGP Nos. 1-7 Bonds July 15, 1976 and Subject Properties July 15, 1976..................... Series HH Bonds February 15, 1977 and Subject Properties February 15, 1977................. Series MMP Bonds and Subject March 1, 1977 Properties March 1, 1977..................... Series IIP Nos. 1-7 Bonds, June 15, 1977 Series JJP Nos. 1-7 Bonds, Series KKP Nos. 1-7 Bonds and Series LLP Nos. 1-7 Bonds June 15, 1977..................... Series FFR No. 14 Bonds and July 1, 1977 Subject Properties July 1, 1977...................... Series NNP Nos. 1-7 Bonds October 1, 1977 and Subject Properties |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- October 1, 1977................... Series GGP Nos. 8-22 Bonds June 1, 1978 and Series OOP Nos. 1-17 Bonds and Subject Properties June 1, 1978...................... Series PP Bonds, October 15, 1978 Series QQP Nos. 1-9 Bonds and Subject Properties October 15, 1978.................. Series RR Bonds March 15, 1979 and Subject Properties March 15, 1979.................... Series SS Bonds July 1, 1979 and Subject Properties July 1, 1979...................... Series IIP Nos. 8-22 Bonds, September 1, 1979 Series NNP Nos. 8-21 Bonds and Series TTP Nos. 1-15 Bonds and Subject Properties September 1, 1979................. Series JJP No. 8 Bonds, September 15, 1979 Series KKP No. 8 Bonds, Series LLP Nos. 8-15 Bonds, Series MMP No. 2 Bonds and Series OOP No. 18 Bonds and Subject Properties September 15, 1979................ Series UU Bonds January 1, 1980 January 1, 1980................... 1980 Series A Bonds and April 1, 1980 Subject Properties April 1, 1980..................... 1980 Series B Bonds August 15, 1980 August 15, 1980................... Series QQP Nos. 10-19 Bonds, August 1, 1981 1980 Series CP Nos. 1-12 Bonds and 1980 Series DP No. 1-11 Bonds and Subject Properties August 1, 1981.................... 1980 Series CP Nos. 13-25 November 1, 1981 Bonds and Subject Properties November 1, 1981.................. 1981 Series AP Nos. 1-12 June 30, 1982 Bonds June 30, 1982..................... Article XIV Reconfirmation August 15, 1982 August 15, 1982................... 1981 Series AP Nos. 13-14 June 1, 1983 and Subject Properties June 1, 1983...................... 1981 Series AP Nos. 15-16 October 1, 1984 and Subject Properties October 1, 1984................... 1984 Series AP and 1984 May 1, 1985 Series BP Bonds and Subject Properties May 1, 1985....................... 1985 Series A Bonds May 15, 1985 May 15, 1985...................... 1985 Series B Bonds and October 15, 1985 Subject Properties October 15, 1985.................. Series KKP No. 9 Bonds and April 1, 1986 Subject Properties |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- April 1, 1986..................... 1986 Series A and Subject August 15, 1986 Properties August 15, 1986................... 1986 Series B and Subject November 30, 1986 Properties November 30, 1986................. 1986 Series C January 31, 1987 January 31, 1987.................. 1987 Series A April 1, 1987 April 1, 1987..................... 1987 Series B and 1987 August 15, 1987 Series C August 15, 1987................... 1987 Series D and 1987 November 30, 1987 Series E and Subject Properties November 30, 1987................. 1987 Series F June 15, 1989 June 15, 1989..................... 1989 Series A July 15, 1989 July 15, 1989..................... Series KKP No. 10 December 1, 1989 December 1, 1989.................. Series KKP No. 11 and 1989 February 15, 1990 Series BP February 15, 1990................. 1990 Series A, 1990 Series November 1, 1990 B, 1990 Series C, 1990 Series D, 1990 Series E and 1990 Series F November 1, 1990.................. Series KKP No. 12 April 1, 1991 April 1, 1991..................... 1991 Series AP May 1, 1991 May 1, 1991....................... 1991 Series BP and 1991 May 15, 1991 Series CP May 15, 1991...................... 1991 Series DP September 1, 1991 September 1, 1991................. 1991 Series EP November 1, 1991 November 1, 1991.................. 1991 Series FP January 15, 1992 January 15, 1992.................. 1992 Series BP February 29, 1992 and April 15, 1992 February 29, 1992................. 1992 Series AP April 15, 1992 April 15, 1992.................... Series KKP No. 13 July 15, 1992 July 15, 1992..................... 1992 Series CP November 30, 1992 July 31, 1992..................... 1992 Series D November 30, 1992 November 30, 1992................. 1992 Series E and 1993 March 15, 1993 Series D December 15, 1992................. Series KKP No. 14 and 1989 March 15, 1992 Series BP No. 2 January 1, 1993................... 1993 Series C April 1, 1993 March 1, 1993..................... 1993 Series E June 30, 1993 |
(b) See Supplemental Indenture dated as of May 1, 1953 for Secretary of State of Michigan filing information.
(c) See Supplemental Indenture dated as of May 1, 1974 for County of Genesee, Michigan recording and filing information.
Further, pursuant to the terms and provisions of the Original Indenture, a Supplemental Indenture dated as of March 1, 1993 providing for the terms of bonds to be issued thereunder of 1993 Series E has heretofore been entered into between the Company and the Trustee and has been filed in the Office of the Secretary of State of Michigan as a financing statement on March 15, 1993 (Filing No. 28877B), has been filed and recorded in the Office of the Interstate Commerce Commission (Recordation No. 5485-EEEE) on March 15, 1993, and has been recorded as a real estate mortgage in the offices of the respective Register of Deeds of certain counties in the State of Michigan, as follows: |
LIBER OF MORTGAGES OR COUNTY COUNTY RECORDED RECORDS PAGE ------ -------- --------- ---- Genesee...................... March 15, 1993 2854 734-759 Huron........................ March 15, 1993 595 583-608 Ingham....................... March 15, 1993 2042 64-89 Lapeer....................... March 15, 1993 794 01-26 Lenawee...................... March 15, 1993 1244 131-156 Livingston................... March 15, 1993 1669 0663-0688 Macomb....................... March 15, 1993 05776 884-909 Mason........................ March 15, 1993 426 403-428 Monroe....................... March 15, 1993 1285 0060-0085 Oakland...................... March 15, 1993 13399 505-530 Sanilac...................... March 15, 1993 439 125-150 St. Clair.................... March 15, 1993 1092 597-622 Tuscola...................... March 15, 1993 638 167-192 Washtenaw.................... March 15, 1993 2761 009-034 Wayne........................ March 15, 1993 26397 900-925 |
RECORDING OF All the bonds of Series A which were issued under the CERTIFICATES Original Indenture dated as of October 1, 1924, and of OF PROVISION Series B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, W, FOR PAYMENT. AA, BB, CC, DDP Nos. 1-9, FFR Nos. 1-14, GGP Nos. 1-22, HH, IIP Nos. 1-22, JJP Nos. 1-8, KKP Nos. 1-8, LLP Nos. 1-15, NNP Nos. 1-21, OOP Nos. 1-18, QQP Nos. 1-17, TTP Nos. 1-15, UU, 1980 Series A, 1980 Series CP Nos. 1-25, 1980 Series DP Nos. 1-11, 1981 Series AP Nos. 1-12, 1985 Series A, 1985 Series B, PP, RR, EE, MMP and MMP No. 2 which were issued under Supplemental Indentures dated as of, respectively, June 1, 1925, August 1, 1927, February 1, 1931, October 1, 1932, September 25, 1935, September 1, 1936, December 1, 1940, September 1, 1947, November 15, 1951, January 15, 1953, May 1, 1953, March 15, 1954, May 15, 1955, August 15, 1957, December 15, 1970, May 1, 1974, October 1, 1974, January 15, 1975, November 1, 1975, February 1, 1976, June 15, 1976, July 15, 1976, October 1, 1977, March 1, 1977, July 1, 1979, March 1, 1977, March 1, 1977, March 1, 1977, September 1, 1979, July 1, 1977, July 1, 1979, September 15, 1979, October 1, 1977, June 1, 1978, October 1, 1977, July 1, 1979, January 1, 1980, August 15, 1980, November 1, 1981, May 1, 1985, May 15, 1985, June 1, 1978, October 15, 1978, December 15, 1975, February 15, 1977, and September 1, 1979 have matured or have been called for redemption and funds sufficient for such payment or redemption have been irrevocably deposited with the Trustee for that purpose; and Certificates of Provision for Payment have been recorded in the offices of the respective Registers of Deeds of certain counties in the State of Michigan, with respect to all bonds of Series A, B, C, D, E, F, G, H, K, L, M, O, W, BB, CC, DDP Nos. 1 and 2, FFR Nos. 1-3, GGP Nos. 1 and 2, IIP No. 1, JJP No. 1, KKP No. 1, LLP No. 1 and GGP No. 8. PART III. THE TRUSTEE. TERMS AND The Trustee hereby accepts the trust hereby declared and CONDITIONS OF provided, and agrees to perform the same upon the terms and ACCEPTANCE OF conditions in the Original Indenture, as amended to date and TRUST BY TRUSTEE. as supplemented by this Supplemental Indenture, and in this Supplemental Indenture set forth, and upon the following terms and conditions: The Trustee shall not be responsible in any manner whatsoever for and in respect of the validity or sufficiency of this Supplemental Indenture or the due execution hereof by the Company or for or in respect of the recitals contained herein, all of which recitals are made by the Company solely. PART IV. MISCELLANEOUS. CONFIRMATION OF Except to the extent specifically provided therein, no SECTION 318(C) OF provision of this supplemental indenture or any future TRUST INDENTURE supplemental indenture is intended to modify, and the ACT. parties do hereby adopt and confirm, the provisions of Section 318(c) of the Trust Indenture Act which amend and supercede provisions of the Indenture in effect prior to November 15, 1990. EXECUTION IN THIS SUPPLEMENTAL INDENTURE MAY BE SIMULTANEOUSLY COUNTERPARTS. EXECUTED IN ANY NUMBER OF COUNTERPARTS, EACH OF WHICH WHEN SO EXECUTED SHALL BE DEEMED TO BE AN ORIGINAL; BUT SUCH COUNTERPARTS SHALL TOGETHER CONSTITUTE BUT ONE AND THE SAME INSTRUMENT. |
TESTIMONIUM. IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY AND BANKERS TRUST COMPANY HAVE CAUSED THESE PRESENTS TO BE SIGNED IN THEIR RESPECTIVE CORPORATE NAMES BY THEIR RESPECTIVE CHAIRMEN OF THE BOARD, PRESIDENTS, VICE PRESIDENTS, ASSISTANT VICE PRESIDENTS, TREASURERS OR ASSISTANT TREASURERS AND IMPRESSED WITH THEIR RESPECTIVE CORPORATE SEALS, ATTESTED BY THEIR RESPECTIVE SECRETARIES OR ASSISTANT SECRETARIES, ALL AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN. |
THE DETROIT EDISON COMPANY, -------------------------------- (Corporate Seal) By /S/ C. C. ARVANI C. C. Arvani Assistant Treasurer EXECUTION. Attest: /S/ RONALD J. GDOWSKI ------------------------------------------ Ronald J. Gdowski Assistant Corporate Secretary Signed, sealed and delivered by THE DETROIT EDISON COMPANY, in the presence of /S/ JACK L. SOMERS ------------------------------------------ Jack L. Somers /S/ CATHY M. LEWIS ------------------------------------------ Cathy M. Lewis |
STATE OF MICHIGAN SS.: COUNTY OF WAYNE ACKNOWLEDGMENT On this 30th day of June, 1993, before me, the subscriber, a OF EXECUTION Notary Public within and for the County of Wayne, in the BY COMPANY. State of Michigan, personally appeared C. C. Arvani, to me personally known, who, being by me duly sworn, did say that he does business at 2000 Second Avenue, Detroit, Michigan 48226 and is the Assistant Treasurer of THE DETROIT EDISON COMPANY, one of the corporations described in and which executed the foregoing instrument; that he knows the corporate seal of the said corporation and that the seal affixed to said instrument is the corporate seal of said corporation; and that said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors and that he subscribed his name thereto by like authority; and said C. C. Arvani, acknowledged said instrument to be the free act and deed of said corporation. |
/S/ JUDITH THUN ----------------------------------- (Notarial Seal) Judith Thun, Notary Public Wayne County, MI My Commission Expires March 4, 1995 |
|
BANKERS TRUST COMPANY, ------------------------------- (Corporate Seal) By /S/ SAMIR PANDIRI Samir Pandiri Assistant Vice President Attest: /S/ SHIKHA DOMBEK --------------------------------- Shikha Dombek Assistant Secretary Signed, sealed and delivered by BANKERS TRUST COMPANY, in the presence of /S/ JOHN FLORIO --------------------------------- John Florio /S/ KENWYN HACKSHAW --------------------------------- Kenwyn Hackshaw |
STATE OF NEW YORK SS.: COUNTY OF NEW YORK |
ACKNOWLEDGMENT On this 30th day of June, 1993, before me, the subscriber, a OF EXECUTION Notary Public within and for the County of Queens, in the BY TRUSTEE. State of New York, personally appeared Samir Pandiri, to me personally known, who, being by me duly sworn, did say that his business office is located at Four Albany Street, New York, New York 10015, and he is Assistant Vice President of BANKERS TRUST COMPANY, one of the corporations described in and which executed the foregoing instrument; that he knows the corporate seal of the said corporation and that the seal affixed to said instrument is the corporate seal of said corporation; and that said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors and that he subscribed his name thereto by like authority; and said Samir Pandiri acknowledged said instrument to be the free act and deed of said corporation. |
(Notarial Seal) /S/ MARJORIE STANLEY ------------------------------------ Marjorie Stanley Notary Public, State of New York No. 41-4986405 Qualified in Queens County Certificate filed in New York County Commission Expires Sept. 16, 1993 |
STATE OF MICHIGAN SS.: COUNTY OF WAYNE |
AFFIDAVIT AS TO C. C. Arvani, being duly sworn, says: that he is the CONSIDERATION Assistant Treasurer of THE DETROIT EDISON COMPANY, the AND GOOD FAITH. Mortgagor named in the foregoing instrument, and that he has knowledge of the facts in regard to the making of said instrument and of the consideration therefor; that the consideration for said instrument was and is actual and adequate, and that the same was given in good faith for the purposes in such instrument set forth. |
/S/ C. C. ARVANI ------------------- C. C. Arvani Sworn to before me this 30th day of June, 1993 /S/ JUDITH THUN ----------------------------------- Judith Thun, Notary Public Wayne County, MI My Commission Expires March 4, 1995 (Notarial Seal) This instrument was drafted by Frances B. Rohlman, Esq., 2000 Second Avenue, Detroit, Michigan 48226 |
EXHIBIT 4-217
CONFORMED COPY
THE DETROIT EDISON COMPANY
(2000 Second Avenue,
Detroit, Michigan 48226)
TO
BANKERS TRUST COMPANY
(Four Albany Street,
New York, New York 10015)
AS TRUSTEE
INDENTURE
Dated as of September 15, 1993
SUPPLEMENTAL TO MORTGAGE AND DEED OF TRUST
DATED AS OF OCTOBER 1, 1924
PROVIDING FOR
(A) 1993 SERIES K
AND
(B) RECORDING AND FILING DATA
TABLE OF CONTENTS*
PAGE ---- PARTIES..................................................... 1 RECITALS Original Indenture and Supplementals...................... 1 Issue of Bonds under Indenture............................ 1 Bonds heretofore issued................................... 1 Reason for creation of new series......................... 5 Bonds to be 1993 Series K................................. 5 Further Assurance......................................... 5 Authorization of Supplemental Indenture................... 5 Consideration for Supplemental Indenture.................. 5 PART I. CREATION OF THREE HUNDRED TWELFTH SERIES OF BONDS GENERAL AND REFUNDING MORTGAGE BONDS, 1993 SERIES K Sec. 1. Certain terms of Bonds of 1993 Series K............. 6 Sec. 2. Redemption of Bonds of 1993 Series K................ 7 Sec. 3.Redemption of Bonds of 1993 Series K in event of acceleration of Secured Notes 1993B.............................. 8 Sec. 4. Form of Bonds of 1993 Series K...................... 8 Form of Trustee's Certificate....................... 13 PART II. RECORDING AND FILING DATA Recording and filing of Original Indenture.................. 14 Recording and filing of Supplemental Indentures............. 14 Recording of Certificates of Provision for Payment.......... 22 PART III. THE TRUSTEE Terms and conditions of acceptance of trust by Trustee...... 22 PART IV. MISCELLANEOUS Confirmation of Section 318(c) of Trust Indenture Act....... 22 Execution in Counterparts................................... 22 Testimonium................................................. 23 Execution................................................... 23 Acknowledgment of execution by Company...................... 23 Acknowledgment of execution by Trustee...................... 24 Affidavit as to consideration and good faith................ 25 |
PARTIES. SUPPLEMENTAL INDENTURE, dated as of the fifteenth day of September, in the year one thousand nine hundred and ninety-three, between THE DETROIT EDISON COMPANY, a corporation organized and existing under the laws of the State of Michigan and a transmitting utility (hereinafter called the "Company"), party of the first part, and BANKERS TRUST COMPANY, a corporation organized and existing under the laws of the State of New York, having its corporate trust office at Four Albany Street, in the Borough of Manhattan, The City and State of New York, as Trustee under the Mortgage and Deed of Trust hereinafter mentioned (hereinafter called the "Trustee"), party of the second part. ORIGINAL WHEREAS, the Company has heretofore executed and delivered INDENTURE AND its Mortgage and Deed of Trust (hereinafter referred to as SUPPLEMENTALS. the "Original Indenture"), dated as of October 1, 1924, to the Trustee, for the security of all bonds of the Company outstanding thereunder, and pursuant to the terms and provisions of the Original Indenture, indentures dated as of, respectively, June 1, 1925, August 1, 1927, February 1, 1931, June 1, 1931, October 1, 1932, September 25, 1935, September 1, 1936, November 1, 1936, February 1, 1940, December 1, 1940, September 1, 1947, March 1, 1950, November 15, 1951, January 15, 1953, May 1, 1953, March 15, 1954, May 15, 1955, August 15, 1957, June 1, 1959, December 1, 1966, October 1, 1968, December 1, 1969, July 1, 1970, December 15, 1970, June 15, 1971, November 15, 1971, January 15, 1973, May 1, 1974, October 1, 1974, January 15, 1975, November 1, 1975, December 15, 1975, February 1, 1976, June 15, 1976, July 15, 1976, February 15, 1977, March 1, 1977, June 15, 1977, July 1, 1977, October 1, 1977, June 1, 1978, October 15, 1978, March 15, 1979, July 1, 1979, September 1, 1979, September 15, 1979, January 1, 1980, April 1, 1980, August 15, 1980, August 1, 1981, November 1, 1981, June 30, 1982, August 15, 1982, June 1, 1983, October 1, 1984, May 1, 1985, May 15, 1985, October 15, 1985, April 1, 1986, August 15, 1986, November 30, 1986, January 31, 1987, April 1, 1987, August 15, 1987, November 30, 1987, June 15, 1989, July 15, 1989, December 1, 1989, February 15, 1990, November 1, 1990, April 1, 1991, May 1, 1991, May 15, 1991, September 1, 1991, November 1, 1991, January 15, 1992, February 29, 1992, April 15, 1992, July 15, 1992, July 31, 1992, November 30, 1992, December 15, 1992, January 1, 1993, March 1, 1993, March 15, 1993, April 1, 1993, April 26, 1993, May 31, 1993, June 30, 1993 and June 30, 1993 supplemental to the Original Indenture, have heretofore been entered into between the Company and the Trustee (the Original Indenture and all indentures supplemental thereto together being hereinafter sometimes referred to as the "Indenture"); and ISSUE OF WHEREAS, the Indenture provides that said bonds shall be BONDS UNDER issuable in one or more series, and makes provision that the INDENTURE. rates of interest and dates for the payment thereof, the date of maturity or dates of maturity, if of serial maturity, the terms and rates of optional redemption (if redeemable), the forms of registered bonds without coupons of any series and any other provisions and agreements in respect thereof, in the Indenture provided and permitted, as the Board of Directors may determine, may be expressed in a supplemental indenture to be made by the Company to the Trustee thereunder; and BONDS HERETOFORE WHEREAS, bonds in the principal amount of Seven billion nine ISSUED. hundred eighteen million one hundred seven thousand dollars ($7,918,107,000) have heretofore been issued under the indenture as follows, viz: |
(1) Bonds of Series A -- Principal Amount $26,016,000, (2) Bonds of Series B -- Principal Amount $23,000,000, (3) Bonds of Series C -- Principal Amount $20,000,000, (4) Bonds of Series D -- Principal Amount $50,000,000, (5) Bonds of Series E -- Principal Amount $15,000,000, (6) Bonds of Series F -- Principal Amount $49,000,000, (7) Bonds of Series G -- Principal Amount $35,000,000, (8) Bonds of Series H -- Principal Amount $50,000,000, (9) Bonds of Series I -- Principal Amount $60,000,000, (10) Bonds of Series J -- Principal Amount $35,000,000, (11) Bonds of Series K -- Principal Amount $40,000,000, (12) Bonds of Series L -- Principal Amount $24,000,000, |
(13) Bonds of Series M -- Principal Amount $40,000,000, (14) Bonds of Series N -- Principal Amount $40,000,000, (15) Bonds of Series O -- Principal Amount $60,000,000, (16) Bonds of Series P -- Principal Amount $70,000,000, (17) Bonds of Series Q -- Principal Amount $40,000,000, (18) Bonds of Series W -- Principal Amount $50,000,000, (19) Bonds of Series AA -- Principal Amount $100,000,000, (20) Bonds of Series BB -- Principal Amount $50,000,000, (21) Bonds of Series CC -- Principal Amount $50,000,000, (22) Bonds of Series UU -- Principal Amount $100,000,000, (23-31) Bonds of Series DDP Nos. 1-9 -- Principal Amount $14,305,000, (32-45) Bonds of Series FFR Nos. 1-14 -- Principal Amount $45,600,000, (46-67) Bonds of Series GGP Nos. 1-22 -- Principal Amount $42,300,000, (68) Bonds of Series HH -- Principal Amount $50,000,000, (69-90) Bonds of Series IIP Nos. 1-22 -- Principal Amount $3,750,000, (91-98) Bonds of Series JJP Nos. 1-8 -- Principal Amount $6,850,000, (99-106) Bonds of Series KKP Nos. 1-8 -- Principal Amount $14,890,000, (107-121) Bonds of Series LLP Nos. 1-15 -- Principal Amount $8,850,000, (122-142) Bonds of Series NNP Nos. 1-21 -- Principal Amount $47,950,000, (143-160) Bonds of Series OOP Nos. 1-18 -- Principal Amount $18,880,000, (161-178) Bonds of Series QQP Nos. 1-18 -- Principal Amount $13,215,000, (179-193) Bonds of Series TTP Nos. 1-15 -- Principal Amount $3,800,000, (194) Bonds of 1980 Series A -- Principal Amount $50,000,000, (195-219) Bonds of 1980 Series CP Nos. 1-25 -- Principal Amount $35,000,000, (220-230) Bonds of 1980 Series DP Nos. 1-11 -- Principal Amount $10,750,000, (231-244) Bonds of 1981 Series AP Nos. 1-14 -- Principal Amount $59,000,000, (245) Bonds of 1985 Series A -- Principal Amount $35,000,000, (246) Bonds of 1985 Series B -- Principal Amount $50,000,000, (247) Bonds of Series PP -- Principal Amount $70,000,000, (248) Bonds of Series RR -- Principal Amount $70,000,000, (249) Bonds of Series EE -- Principal Amount $50,000,000, (250-251) Bonds of Series MMP and MMP No. 2 -- Principal Amount $5,430,000, (252) Bonds of Series T -- Principal Amount $75,000,000, (253) Bonds of Series U -- Principal Amount $75,000,000, (254) Bonds of 1986 Series B -- Principal Amount $100,000,000, (255) Bonds of 1987 Series D -- Principal Amount $250,000,000, (256) Bonds of 1987 Series E -- Principal Amount $150,000,000, (257) Bonds of 1987 Series C -- Principal Amount $225,000,000, (258) Bonds of Series V -- Principal Amount $100,000,000, (259) Bonds of Series SS -- Principal Amount $150,000,000, (260) Bonds of 1980 Series B -- Principal Amount $100,000,000, (261) Bonds of 1986 Series C -- Principal Amount $200,000,000, (262) Bonds of 1986 Series A -- Principal Amount $200,000,000, (263) Bonds of 1987 Series B -- Principal Amount $175,000,000, (264) Bonds of Series X -- Principal Amount $100,000,000, (265) Bonds of 1987 Series F -- Principal Amount $200,000,000, (266) Bonds of 1987 Series A -- Principal Amount $300,000,000, |
all of which have either been retired and cancelled, or no longer represent obligations of the Company, having been called for redemption and funds necessary to effect the payment, redemption and retirement thereof having been deposited with the Trustee as a special trust fund to be applied for such purpose; (267) Bonds of Series R in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof; (268) Bonds of Series S in the principal amount of One hundred fifty million dollars ($150,000,000), all of which are outstanding at the date hereof; |
(269) Bonds of Series Y in the principal amount of Sixty million dollars ($60,000,000), all of which are outstanding at the date hereof; (270) Bonds of Series Z in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof; (271-276) Bonds of Series KKP Nos. 9-14 in the principal amount of One hundred ninety-three million two hundred ninety thousand dollars ($193,290,000), all of which are outstanding at the date hereof; (277) Bonds of Series QQP No. 19 in the principal amount of Four hundred thirty-five thousand dollars ($435,000), all of which are outstanding at the date hereof; (278-279) Bonds of 1981 Series AP Nos. 15-16 in the principal amount of Sixty-five million dollars ($65,000,000), all of which are outstanding at the date hereof; (280) Bonds of 1984 Series AP in the principal amount of Two million four hundred thousand dollars ($2,400,000), all of which are outstanding at the date hereof; (281) Bonds of 1984 Series BP in the principal amount of Seven million seven hundred fifty thousand dollars ($7,750,000), all of which are outstanding at the date hereof; (282) Bonds of 1989 Series A in the principal amount of Three hundred million dollars ($300,000,000), all of which are outstanding at the date hereof; (283) Bonds of 1989 Series BP in the principal amount of Sixty-six million five hundred sixty-five thousand dollars ($66,565,000), all of which are outstanding at the date hereof; (284) Bonds of 1990 Series A in the principal amount of One hundred ninety-four million six hundred forty-nine thousand dollars ($194,649,000) of which Twenty-five million one hundred sixteen thousand dollars ($25,116,000) principal amount have heretofore been retired and One hundred sixty-nine million five hundred thirty-three thousand dollars ($169,533,000) principal amount are outstanding at the date hereof; (285) Bonds of 1990 Series B in the principal amount of Two hundred fifty-six million nine hundred thirty-two thousand dollars ($256,932,000) of which Thirty-eight million sixty-four thousand dollars ($38,064,000) principal amount have heretofore been retired and Two hundred eighteen million eight hundred sixty-eight thousand dollars ($218,868,000) principal amount are outstanding at the date hereof; (286) Bonds of 1990 Series C in the principal amount of Eighty-five million four hundred seventy-five thousand dollars ($85,475,000) of which Thirteen million six hundred seventy-six thousand dollars ($13,676,000) principal amount have heretofore been retired and Seventy-one million seven hundred ninety-nine thousand dollars ($71,799,000) principal amount are outstanding at the date hereof; (287) Bonds of 1991 Series AP in the principal amount of Thirty-two million three hundred seventy-five thousand dollars ($32,375,000), all of which are outstanding at the date hereof; (288) Bonds of 1991 Series BP in the principal amount of Twenty-five million nine hundred ten thousand dollars ($25,910,000), all of which are outstanding at the date hereof; (289) Bonds of 1991 Series CP in the principal amount of Thirty-two million eight hundred thousand dollars ($32,800,000), all of which are outstanding at the date hereof; (290) Bonds of 1991 Series DP in the principal amount of Thirty-seven million six hundred thousand dollars ($37,600,000), all of which are outstanding at the date hereof; (291) Bonds of 1991 Series EP in the principal amount of Forty-one million four hundred eighty thousand dollars ($41,480,000), all of which are outstanding at the date hereof; |
(292) Bonds of 1991 Series FP in the principal amount of Ninety-eight million three hundred seventy-five thousand dollars ($98,375,000), all of which are outstanding at the date hereof; (293) Bonds of 1992 Series BP in the principal amount of Twenty million nine hundred seventy-five thousand dollars ($20,975,000), all of which are outstanding at the date hereof; (294) Bonds of 1992 Series AP in the principal amount of Sixty-six million dollars ($66,000,000), all of which are outstanding at the date hereof; (295) Bonds of 1992 Series D in the principal amount of Three hundred million dollars ($300,000,000), all of which are outstanding at the date hereof; (296) Bonds of 1992 Series CP in the principal amount of Thirty-five million dollars ($35,000,000), all of which are outstanding at the date hereof; (297) Bonds of 1992 Series E in the principal amount of Fifty million dollars ($50,000,000), all of which are outstanding at the date hereof; (298) Bonds of 1989 Series BP No. 2 in the principal amount of Thirty-six million dollars ($36,000,000), all of which are outstanding at the date hereof; (299) Bonds of 1993 Series C in the principal amount of Two hundred twenty-five million dollars ($225,000,000), all of which are outstanding at the date hereof; (300) Bonds of 1993 Series B in the principal amount of Fifty million dollars ($50,000,000), all of which are outstanding at the date hereof; (301) Bonds of 1993 Series E in the principal amount of Four hundred million dollars ($400,000,000), all of which are outstanding at the date hereof; (302) Bonds of 1993 Series D in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof; (303) Bonds of 1993 Series FP in the principal amount of Five million six hundred eighty-five thousand dollars ($5,685,000), all of which are outstanding at the date hereof; (304) Bonds of 1993 Series G in the principal amount of Two hundred twenty-five million dollars ($225,000,000), all of which are outstanding at the date hereof; (305) Bonds of 1993 Series J in the principal amount of Three hundred million dollars ($300,000,000), all of which are outstanding at the date hereof; (306) Bonds of 1993 Series IP in the principal amount of Five million eight hundred twenty-five thousand dollars ($5,825,000), all of which are outstanding at the date hereof; (307) Bonds of 1993 Series AP in the principal amount of Sixty-five million dollars ($65,000,000), all of which are outstanding at the date hereof; (308) Bond of 1993 Series H in the principal amount of Fifty million dollars ($50,000,000), all of which are outstanding as of the date hereof; and, accordingly, of the bonds so issued, Three billion seven hundred eight million six hundred sixty-five thousand dollars ($3,708,665,000) principal amount are outstanding at the date hereof; and |
REASON FOR WHEREAS, the Company intends to issue and sell a series of CREATION OF its debt securities entitled "Remarketed Secured Notes 1993 NEW SERIES. Series B Due 2033" (hereinafter referred to as "Secured Notes, 1993B"); and WHEREAS, the Secured Notes, 1993B, will be issued pursuant to a Collateral Trust Indenture, dated as of June 30, 1993, as amended, and as further amended by a Second Supplemental Indenture, dated as of September 15, 1993, between the Company and Bankers Trust Company, as Note Trustee (the Collateral Trust Indenture, as amended, and as further amended by the Second Supplemental Indenture being hereinafter referred to as the "Note Indenture"); and |
WHEREAS, pursuant to the Note Indenture the Company has agreed to issue its General and Refunding Mortgage Bonds under the Indenture in order further to secure its obligations under the Note Indenture and with respect to the Secured Notes, 1993B; and WHEREAS, for such purposes the Company desires to issue a new series of bonds to be issued under the Indenture and to be authenticated and delivered pursuant to Section 8 of Article III of the Indenture; and BONDS TO BE WHEREAS, the Company desires by this Supplemental 1993 SERIES K. Indenture to create a new series of bonds, to be designated "General and Refunding Mortgage Bonds, 1993 Series K"; and FURTHER WHEREAS, the Original Indenture, by its terms, includes in ASSURANCE. the property subject to the lien thereof all of the estates and properties, real, personal and mixed, rights, privileges and franchises of every nature and kind and wheresoever situate, then or thereafter owned or possessed by or belonging to the Company or to which it was then or at any time thereafter might be entitled in law or in equity (saving and excepting, however, the property therein specifically excepted or released from the lien thereof), and the Company therein covenanted that it would, upon reasonable request, execute and deliver such further instruments as may be necessary or proper for the better assuring and confirming unto the Trustee all or any part of the trust estate, whether then or thereafter owned or acquired by the Company (saving and excepting, however, property specifically excepted or released from the lien thereof); and AUTHORIZATION WHEREAS, the Company in the exercise of the powers and OF SUPPLEMENTAL authority conferred upon and reserved to it under and by INDENTURE. virtue of the provisions of the Indenture, and pursuant to resolutions of its Board of Directors has duly resolved and determined to make, execute and deliver to the Trustee a supplemental indenture in the form hereof for the purposes herein provided; and WHEREAS, all conditions and requirements necessary to make this Supplemental Indenture a valid and legally binding instrument in accordance with its terms have been done, performed and fulfilled, and the execution and delivery hereof have been in all respects duly authorized; CONSIDERATION NOW, THEREFORE, THIS INDENTURE WITNESSETH: That The FOR SUPPLEMENTAL Detroit Edison Company, in consideration of the premises and INDENTURE. of the covenants contained in the Indenture and of the sum of One Dollar ($1.00) and other good and valuable consideration to it duly paid by the Trustee at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, hereby covenants and agrees to and with the Trustee and its successors in the trusts under the Original Indenture and in said indentures supplemental thereto as follows: |
PART I. CREATION OF THREE HUNDRED TWELFTH SERIES OF BONDS. GENERAL AND REFUNDING MORTGAGE BONDS, 1993 SERIES K CERTAIN TERMS SECTION 1. The Company hereby creates the Three hundred OF BONDS OF twelfth series of bonds to be issued under and secured by 1993 SERIES K. the Original Indenture as amended to date and as further amended by this Supplemental Indenture, to be designated, and to be distinguished from the bonds of all other series, by the title "General and Refunding Mortgage Bonds, 1993 Series K" (elsewhere herein referred to as the "bonds of 1993 Series K"). The aggregate principal amount of bonds of 1993 Series K shall be limited to One hundred sixty million dollars ($160,000,000), except as provided in Sections 7 and 13 of Article II of the Original Indenture with respect to exchanges and replacements of bonds. Each bond of 1993 Series K is to be irrevocably assigned to, and registered in the name of, Bankers Trust Company, as trustee, or a successor trustee (said trustee or any successor trustee being hereinafter referred to as the "Note Indenture Trustee"), under the Note Indenture between the Note Indenture Trustee and the Company, to secure payment of the Company's Secured Notes, 1993B. The bonds of 1993 Series K shall be issued as registered bonds without coupons in denominations of a multiple of $100,000. The bonds of 1993 Series K shall be issued in the aggregate principal amount of $160,000,000, shall mature on August 15, 2033 and shall bear interest at a maximum rate of 15% per annum (unless such maximum rate shall be increased by resolution of the Company's Board of Directors and set forth in an additional Supplemental Indenture between the Company and the Trustee) or such lesser amount as shall be provided for in the Note Indenture on such date or dates provided for in the Note Indenture and thereafter until the Company's obligation with respect to the payment of said principal shall have been discharged as provided in the Indenture. The bonds of 1993 Series K shall be payable as to principal, premium, if any, and interest as provided in the Indenture, but only to the extent and in the manner herein provided. The bonds of 1993 Series K shall be payable, both as to principal and interest, at the office or agency of the Company in the Borough of Manhattan, The City and State of New York, in any coin or currency of the United States of America which at the time of payment is legal tender for public and private debts. Except as provided herein, each bond of 1993 Series K shall be dated the date of its authentication and interest shall be payable on the principal represented thereby as provided in the Note Indenture. The bonds of 1993 Series K in definitive form shall be, at the election of the Company, fully engraved or shall be lithographed or printed in authorized denominations as aforesaid and numbered 1 and upwards (with such further designation as may be appropriate and desirable to indicate by such designation the form, series and denominations of bonds of 1993 Series K). Until bonds of 1993 Series K in definitive form are ready for delivery, the Company may execute, and upon its request in writing the Trustee shall authenticate and deliver in lieu thereof, bonds of 1993 Series K in temporary form, as provided in Section 10 of Article II of the Indenture. Temporary bonds of 1993 Series K, if any, may be printed and may be issued in authorized denominations in substantially the form of definitive bonds of 1993 Series K, but with such omissions, insertions and variations as may be appropriate for temporary bonds, all as may be determined by the Company. |
Bonds of 1993 Series K shall not be assignable or transferable except as may be set forth under Section 405 of the Note Indenture, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under the Note Indenture. Any such transfer shall be made upon surrender thereof for cancellation at the office or agency of the Company in the Borough of Manhattan, The City and State of New York, together with a written instrument of transfer (if so required by the Company or by the Trustee) in form approved by the Company duly executed by the holder or by its duly authorized attorney. Bonds of 1993 Series K shall in the same manner be exchangeable for a like aggregate principal amount of bonds of 1993 Series K upon the terms and conditions specified herein and in Section 7 of Article II of the Indenture. The Company waives its rights under Section 7 of Article II of the Indenture not to make exchanges or transfers of bonds of 1993 Series K, during any period of ten days next preceding any redemption date for such bonds. Bonds of 1993 Series K, in definitive and temporary form, may bear such legends as may be necessary to comply with any law or with any rules or regulations made pursuant thereto or as may be specified in the Note Indenture. Upon payment of the principal or premium, if any, or interest on the Secured Notes, 1993B, whether at maturity or prior to maturity by redemption or otherwise, or upon provision for the payment thereof having been made in accordance with Article V of the Note Indenture, bonds of 1993 Series K in a principal amount equal to the principal amount of such Secured Notes, 1993B, shall, to the extent of such payment of principal, premium or interest, be deemed fully paid and the obligation of the Company thereunder to make such payment shall forthwith cease and be discharged, and, in the case of the payment of principal and premium, if any, such bonds shall be surrendered for cancellation or presented for appropriate notation to the Trustee. REDEMPTION SECTION 2. Bonds of 1993 Series K shall be redeemed on the OF BONDS OF respective dates and in the respective principal amounts 1993 SERIES K. which correspond to the redemption dates for, and the principal amounts to be redeemed of, the Secured Notes, 1993B. In the event the Company elects to redeem any Secured Notes, 1993B prior to maturity in accordance with the provisions of the Note Indenture, the Company shall on the same date redeem bonds of 1993 Series K in principal amounts and at redemption prices corresponding to the Secured Notes, 1993B so redeemed. The Company agrees to give the Trustee notice of any such redemption of bonds of 1993 Series K on the same date as it gives notice of redemption of Secured Notes, 1993B to the Note Indenture Trustee. |
REDEMPTION SECTION 3. In the event of an Event of Default under the OF BONDS OF 1993 SERIES Note Indenture and the acceleration of all Secured Notes, K IN EVENT OF 1993B, the bonds of 1993 Series K shall be redeemable in ACCELERATION whole upon receipt by the Trustee of a written demand OF SECURED NOTES, (hereinafter called a "Redemption Demand") from the Note 1993B. Indenture Trustee stating that there has occurred under the Note Indenture both an Event of Default and a declaration of acceleration of payment of principal, accrued interest and premium, if any, on the Secured Notes, 1993B, specifying the last date to which interest on the Secured Notes, 1993B has been paid (such date being hereinafter referred to as the "Initial Interest Accrual Date") and demanding redemption of the bonds of said series. The Trustee shall, within five days after receiving such Redemption Demand, mail a copy thereof to the Company marked to indicate the date of its receipt by the Trustee. Promptly upon receipt by the Company of such copy of a Redemption Demand, the Company shall fix a date on which it will redeem the bonds of said series so demanded to be redeemed (hereinafter called the "Demand Redemption Date"). Notice of the date fixed as the Demand Redemption Date shall be mailed by the Company to the Trustee at least ten days prior to such Demand Redemption Date. The date to be fixed by the Company as and for the Demand Redemption Date may be any date up to and including the earlier of (x) the 60th day after receipt by the Trustee of the Redemption Demand or (y) the maturity date of such bonds first occurring following the 20th day after the receipt by the Trustee of the Redemption Demand; provided, however, that if the Trustee shall not have received such notice fixing the Demand Redemption Date on or before the 10th day preceding the earlier of such dates, the Demand Redemption Date shall be deemed to be the earlier of such dates. The Trustee shall mail notice of the Demand Redemption Date (such notice being hereinafter called the "Demand Redemption Notice") to the Note Indenture Trustee not more than ten nor less than five days prior to the Demand Redemption Date. Each bond of 1993 Series K shall be redeemed by the Company on the Demand Redemption Date therefore upon surrender thereof by the Note Indenture Trustee to the Trustee at a redemption price equal to the principal amount thereof plus accrued interest thereon at the rate specified for such bond from the Initial Interest Accrual Date to the Demand Redemption Date plus an amount equal to the aggregate premium, if any, due and payable on such Demand Redemption Date on all Secured Notes, 1993B; provided, however, that in the event of a receipt by the Trustee of a notice that, pursuant to Section 613 of the Note Indenture, the Note Indenture Trustee has terminated proceedings to enforce any right under the Note Indenture, then any Redemption Demand shall thereby be rescinded by the Note Indenture Trustee, and no Demand Redemption Notice shall be given, or, if already given, shall be automatically annulled; but no such rescission or annulment shall extend to or affect any subsequent default or impair any right consequent thereon. Anything herein contained to the contrary notwithstanding, the Trustee is not authorized to take any action pursuant to a Redemption Demand and such Redemption Demand shall be of no force or effect, unless it is executed in the name of the Note Indenture Trustee by its President or one of its Vice Presidents. FORM OF BONDS SECTION 4. The bonds of 1993 Series K and the form of OF 1993 SERIES K. Trustee's Certificate to be endorsed on such bonds shall be substantially in the following forms, respectively: |
[FORM OF FACE OF BOND] THE DETROIT EDISON COMPANY GENERAL AND REFUNDING MORTGAGE BOND 1993 SERIES K, DUE AUGUST 15, 2033 Notwithstanding any provisions hereof or in the Indenture, this bond is not assignable or transferable except as may be required to effect a transfer to any successor trustee under the Collateral Trust Indenture, dated as of June 30, 1993, as amended, and as further amended as of September 15, 1993, between The Detroit Edison Company and Bankers Trust Company, as Note Trustee, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under said Trust Indenture. $......... No.......... THE DETROIT EDISON COMPANY (hereinafter called the "Company"), a corporation of the State of Michigan, for value received, hereby promises to pay to Bankers Trust Company, as Note Trustee, or registered assigns, at the Company's office or agency in the Borough of Manhattan, The City and State of New York, the principal sum of dollars ($ ) in lawful money of the United States of America on the date specified in the title hereof and interest thereon on such date or dates provided for in a Collateral Trust Indenture, dated as of June 30, 1993, as amended and as further amended as of September 15, 1993 (hereinafter called the "Note Trust Indenture"), between the Company and Bankers Trust Company, as Note Trustee (hereinafter called the "Note Indenture Trustee"). This bond of 1993 Series K shall bear interest at a maximum rate of 15% per annum (unless such maximum rate shall be increased by resolution of the Company's Board of Directors and set forth in an additional Supplemental Indenture between the Company and the Trustee) or such lessor amount as shall be provided in the Note Trust Indenture on such date or dates provided for in the Note Trust Indenture and thereafter until the Company's obligation with respect to payment of said principal shall have been discharged, all as provided, to the extent and in the manner specified in the Indenture hereinafter mentioned on the reverse hereof and in the supplemental indenture pursuant to which this bond has been issued. This bond was originally issued to the Note Indenture Trustee so as to secure the payment of the Company's Remarketed Secured Notes, 1993 Series B (hereinafter referred to as "Secured Notes, 1993B"). Payments of principal of, or premium, if any, or interest on, the Secured Notes, 1993B shall constitute like payments on this bond as further provided herein and in the supplemental indenture pursuant to which this bond has been issued. Reference is hereby made to such further provisions of this bond set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though set forth at this place. This bond shall not be valid or become obligatory for any purpose until Bankers Trust Company, the Trustee under the Indenture hereinafter mentioned on the reverse hereof, or its successor thereunder, shall have signed the form of certificate endorsed hereon. |
IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY has caused this instrument to be executed by its Chairman of the Board and its Vice President and Treasurer, with their manual or facsimile signatures, and its corporate seal, or a facsimile thereof, to be impressed or imprinted hereon and the same to be attested by its Corporate Secretary or an Assistant Corporate Secretary with his or her manual or facsimile signature. |
Dated: THE DETROIT EDISON COMPANY By ............................ Chairman of the Board ............................ Vice President Attest: and Treasurer ............................ Corporate Secretary |
[FORM OF REVERSE OF BOND] This bond is one of an authorized issue of bonds of the Company, unlimited as to amount except as provided in the Indenture hereinafter mentioned or any indentures supplemental thereto, and is one of a series of General and Refunding Mortgage Bonds known as 1993 Series K, limited to an aggregate principal amount of $160,000,000, except as otherwise provided in the Indenture hereinafter mentioned. This bond and all other bonds of said series are issued and to be issued under, and are all equally and ratably secured (except insofar as any sinking, amortization, improvement or analogous fund, established in accordance with the provisions of the Indenture hereinafter mentioned, may afford additional security for the bonds of any particular series and except as provided in Section 3 of Article VI of said Indenture) by an Indenture, dated as of October 1, 1924, duly executed by the Company to Bankers Trust Company, a corporation of the State of New York, as Trustee, to which Indenture and all indentures supplemental thereto (including the Supplemental Indenture dated as of September 15, 1993) reference is hereby made for a description of the properties and franchises mortgaged and conveyed, the nature and extent of the security, the terms and conditions upon which the bonds are issued and under which additional bonds may be issued, and the rights of the holders of the bonds and of the Trustee in respect of such security (which Indenture and all indentures supplemental thereto, including the Supplemental Indenture dated as of September 15, 1993, are hereinafter collectively called the "Indenture"). As provided in the Indenture, said bonds may be for various principal sums and are issuable in series, which may mature at different times, may bear interest at different rates and may otherwise vary as in said Indenture provided. With the consent of the Company and to the extent permitted by and as provided in the Indenture, the rights and obligations of the Company and of the holders of the bonds and the terms and provisions of the Indenture, or of any indenture supplemental thereto, may be modified or altered in certain respects by affirmative vote of at least eighty-five percent (85%) in amount of the bonds then outstanding, and, if the rights of one or more, but less than all, series of bonds then outstanding are to be affected by the action proposed to be taken, then also by affirmative vote of at least eighty-five percent (85%) in amount of the series of bonds so to be affected (excluding in every instance bonds disqualified from voting by reason of the Company's interest therein as specified in the Indenture); provided, however, that, without the consent of the holder hereof, no such modification or alteration shall, among other things, affect the terms of payment of the principal of or the interest on this bond, which in those respects is unconditional. This bond is redeemable upon the terms and conditions set forth in the Indenture, including provision for redemption upon demand of the Note Indenture Trustee following the occurrence of an Event of Default under the Note Trust Indenture and the acceleration of the principal of the Secured Notes, 1993B. Under the Indenture, funds may be deposited with the Trustee (which shall have become available for payment), in advance of the redemption date of any of the bonds of 1993 Series K (or portions thereof), in trust for the redemption of such bonds (or portions thereof) and the interest due or to become due thereon, and thereupon all obligations of the Company in respect of such bonds (or portions thereof) so to be redeemed and such interest shall cease and be discharged, and the holders thereof shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or with respect to such bonds (or portions thereof) and interest. In case an event of default, as defined in the Indenture, shall occur, the principal of all the bonds issued thereunder may become or be declared due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture. |
Upon payment of the principal of, or premium, if any, or interest on, the Secured Notes, 1993B, whether at maturity or prior to maturity by redemption or otherwise or upon provision for the payment thereof having been made in accordance with Article IV of the Note Trust Indenture, bonds of 1993 Series K in a principal amount equal to the principal amount of such Secured Notes, 1993B and having both a corresponding maturity date and interest rate shall, to the extent of such payment of principal, premium or interest, be deemed fully paid and the obligation of the Company thereunder to make such payment shall forthwith cease and be discharged, and, in the case of the payment of principal and premium, if any, such bonds of said series shall be surrendered for cancellation or presented for appropriate notation to the Trustee. This bond is not assignable or transferable except as set forth under Section 405 of the Note Trust Indenture, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under the Note Trust Indenture. Any such transfer shall be made by the registered holder hereof, in person or by his attorney duly authorized in writing, on the books of the Company kept at its office or agency in the Borough of Manhattan, The City and State of New York, upon surrender and cancellation of this bond, and thereupon, a new registered bond of the same series of authorized denominations for a like aggregate principal amount will be issued to the transferee in exchange therefor, and this bond with others in like form may in like manner be exchanged for one or more new bonds of the same series of other authorized denominations, but of the same aggregate principal amount, all as provided and upon the terms and conditions set forth in the Indenture, and upon payment, in any event, of the charges prescribed in the Indenture. No recourse shall be had for the payment of the principal of or the interest on this bond, or for any claim based hereon or otherwise in respect hereof or of the Indenture, or of any indenture supplemental thereto, against any incorporator, or against any past, present or future stockholder, director or officer, as such, of the Company, or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether for amounts unpaid on stock subscriptions or by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise howsoever; all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released by every holder or owner hereof, as more fully provided in the Indenture. |
[FORM OF TRUSTEE'S CERTIFICATE] FORM OF This bond is one of the bonds, of the series designated therein, described in the TRUSTEE'S within-mentioned Indenture. CERTIFICATE. |
BANKERS TRUST COMPANY,
as Trustee
By ...........................
Authorized Officer
PART II. RECORDING AND FILING DATA RECORDING AND The Original Indenture and indentures supplemental FILING OF ORIGINAL thereto have been recorded and/or filed and Certificates of INDENTURE. Provision for Payment have been recorded as hereinafter set forth. The Original Indenture has been recorded as a real estate mortgage and filed as a chattel mortgage in the offices of the respective Registers of Deeds of certain counties in the State of Michigan as set forth in the Supplemental Indenture dated as of September 1, 1947, has been recorded as a real estate mortgage in the office of the Register of Deeds of Genesee County, Michigan as set forth in the Supplemental Indenture dated as of May 1, 1974, has been filed in the Office of the Secretary of State of Michigan on November 16, 1951 and has been filed and recorded in the office of the Interstate Commerce Commission on December 8, 1969. RECORDING AND Pursuant to the terms and provisions of the Original FILING OF Indenture, indentures supplemental thereto heretofore SUPPLEMENTAL entered into have been recorded as a real estate mortgage INDENTURES. and/or filed as a chattel mortgage or as a financing statement in the offices of the respective Registers of Deeds of certain counties in the State of Michigan, the Office of the Secretary of State of Michigan and the Office of the Interstate Commerce Commission, as set forth in supplemental indentures as follows: |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- June 1, 1925(a)(b)................ Series B Bonds February 1, 1940 August 1, 1927(a)(b).............. Series C Bonds February 1, 1940 February 1, 1931(a)(b)............ Series D Bonds February 1, 1940 June 1, 1931(a)(b)................ Subject Properties February 1, 1940 October 1, 1932(a)(b)............. Series E Bonds February 1, 1940 September 25, 1935(a)(b).......... Series F Bonds February 1, 1940 September 1, 1936(a)(b)........... Series G Bonds February 1, 1940 November 1, 1936(a)(b)............ Subject Properties February 1, 1940 February 1, 1940(a)(b)............ Subject Properties September 1, 1947 December 1, 1940(a)(b)............ Series H Bonds and September 1, 1947 Additional Provisions September 1, 1947(a)(b)(c)........ Series I Bonds, November 15, 1951 Subject Properties and Additional Provisions March 1, 1950(a)(b)(c)............ Series J Bonds November 15, 1951 and Additional Provisions November 15, 1951(a)(b)(c)........ Series K Bonds January 15, 1953 Additional Provisions and Subject Properties January 15, 1953(a)(b)............ Series L Bonds May 1, 1953 May 1, 1953(a).................... Series M Bonds March 15, 1954 and Subject Properties March 15, 1954(a)(c).............. Series N Bonds May 15, 1955 and Subject Properties May 15, 1955(a)(c)................ Series O Bonds August 15, 1957 and Subject Properties August 15, 1957(a)(c)............. Series P Bonds June 1, 1959 Additional Provisions and Subject Properties June 1, 1959(a)(c)................ Series Q Bonds December 1, 1966 and Subject Properties December 1, 1966(a)(c)............ Series R Bonds October 1, 1968 Additional Provisions and Subject Properties |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- October 1, 1968(a)(c)............. Series S Bonds December 1, 1969 and Subject Properties December 1, 1969(a)(c)............ Series T Bonds July 1, 1970 and Subject Properties July 1, 1970(c)................... Series U Bonds December 15, 1970 and Subject Properties December 15, 1970(c).............. Series V and June 15, 1971 Series W Bonds June 15, 1971(c).................. Series X Bonds November 15, 1971 and Subject Properties November 15, 1971(c).............. Series Y Bonds January 15, 1973 and Subject Properties January 15, 1973(c)............... Series Z Bonds May 1, 1974 and Subject Properties May 1, 1974....................... Series AA Bonds October 1, 1974 and Subject Properties October 1, 1974................... Series BB Bonds January 15, 1975 and Subject Properties January 15, 1975.................. Series CC Bonds November 1, 1975 and Subject Properties November 1, 1975.................. Series DDP Nos. 1-9 Bonds December 15, 1975 and Subject Properties December 15, 1975................. Series EE Bonds February 1, 1976 and Subject Properties February 1, 1976.................. Series FFR Nos. 1-13 Bonds June 15, 1976 June 15, 1976..................... Series GGP Nos. 1-7 Bonds July 15, 1976 and Subject Properties July 15, 1976..................... Series HH Bonds February 15, 1977 and Subject Properties February 15, 1977................. Series MMP Bonds and Subject March 1, 1977 Properties March 1, 1977..................... Series IIP Nos. 1-7 Bonds, June 15, 1977 Series JJP Nos. 1-7 Bonds, Series KKP Nos. 1-7 Bonds and Series LLP Nos. 1-7 Bonds June 15, 1977..................... Series FFR No. 14 Bonds and July 1, 1977 Subject Properties July 1, 1977...................... Series NNP Nos. 1-7 Bonds October 1, 1977 and Subject Properties October 1, 1977................... Series GGP Nos. 8-22 Bonds June 1, 1978 and Series OOP Nos. 1-17 Bonds and Subject Properties June 1, 1978...................... Series PP Bonds, October 15, 1978 Series QQP Nos. 1-9 Bonds and Subject Properties October 15, 1978.................. Series RR Bonds March 15, 1979 and Subject Properties March 15, 1979.................... Series SS Bonds July 1, 1979 and Subject Properties |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- July 1, 1979...................... Series IIP Nos. 8-22 Bonds, September 1, 1979 Series NNP Nos. 8-21 Bonds and Series TTP Nos. 1-15 Bonds and Subject Properties September 1, 1979................. Series JJP No. 8 Bonds, September 15, 1979 Series KKP No. 8 Bonds, Series LLP Nos. 8-15 Bonds, Series MMP No. 2 Bonds and Series OOP No. 18 Bonds and Subject Properties September 15, 1979................ Series UU Bonds January 1, 1980 January 1, 1980................... 1980 Series A Bonds and April 1, 1980 Subject Properties April 1, 1980..................... 1980 Series B Bonds August 15, 1980 August 15, 1980................... Series QQP Nos. 10-19 Bonds, August 1, 1981 1980 Series CP Nos. 1-12 Bonds and 1980 Series DP No. 1-11 Bonds and Subject Properties August 1, 1981.................... 1980 Series CP Nos. 13-25 November 1, 1981 Bonds and Subject Properties November 1, 1981.................. 1981 Series AP Nos. 1-12 June 30, 1982 Bonds June 30, 1982..................... Article XIV Reconfirmation August 15, 1982 August 15, 1982................... 1981 Series AP Nos. 13-14 June 1, 1983 and Subject Properties June 1, 1983...................... 1981 Series AP Nos. 15-16 October 1, 1984 and Subject Properties October 1, 1984................... 1984 Series AP and 1984 May 1, 1985 Series BP Bonds and Subject Properties May 1, 1985....................... 1985 Series A Bonds May 15, 1985 May 15, 1985...................... 1985 Series B Bonds and October 15, 1985 Subject Properties October 15, 1985.................. Series KKP No. 9 Bonds and April 1, 1986 Subject Properties |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- April 1, 1986..................... 1986 Series A and Subject August 15, 1986 Properties August 15, 1986................... 1986 Series B and Subject November 30, 1986 Properties November 30, 1986................. 1986 Series C January 31, 1987 January 31, 1987.................. 1987 Series A April 1, 1987 April 1, 1987..................... 1987 Series B and 1987 August 15, 1987 Series C August 15, 1987................... 1987 Series D and 1987 November 30, 1987 Series E and Subject Properties November 30, 1987................. 1987 Series F June 15, 1989 June 15, 1989..................... 1989 Series A July 15, 1989 July 15, 1989..................... Series KKP No. 10 December 1, 1989 December 1, 1989.................. Series KKP No. 11 and 1989 February 15, 1990 Series BP February 15, 1990................. 1990 Series A, 1990 Series November 1, 1990 B, 1990 Series C, 1990 Series D, 1990 Series E and 1990 Series F November 1, 1990.................. Series KKP No. 12 April 1, 1991 April 1, 1991..................... 1991 Series AP May 1, 1991 May 1, 1991....................... 1991 Series BP and 1991 May 15, 1991 Series CP May 15, 1991...................... 1991 Series DP September 1, 1991 September 1, 1991................. 1991 Series EP November 1, 1991 November 1, 1991.................. 1991 Series FP January 15, 1992 January 15, 1992.................. 1992 Series BP February 29, 1992 and April 15, 1992 February 29, 1992................. 1992 Series AP April 15, 1992 April 15, 1992.................... Series KKP No. 13 July 15, 1992 July 15, 1992..................... 1992 Series CP November 30, 1992 July 31, 1992..................... 1992 Series D November 30, 1992 November 30, 1992................. 1992 Series E and 1993 March 15, 1993 Series D December 15, 1992................. Series KKP No. 14 and 1989 March 15, 1992 Series BP No. 2 January 1, 1993................... 1993 Series C April 1, 1993 March 1, 1993..................... 1993 Series E June 30, 1993 March 15, 1993.................... 1993 Series D September 15, 1993 April 1, 1993..................... 1993 Series FP and 1993 September 15, 1993 Series IP April 26, 1993.................... 1993 Series G and Amendment September 15, 1993 of Article II, Section 5 May 31, 1993...................... 1993 Series J September 15, 1993 |
(b) See Supplemental Indenture dated as of May 1, 1953 for Secretary of State of Michigan filing information.
(c) See Supplemental Indenture dated as of May 1, 1974 for County of Genesee, Michigan recording and filing information.
Further, pursuant to the terms and provisions of the Original Indenture, a Supplemental Indenture dated as March 15, 1993 providing for the terms of bonds to be issued thereunder of 1993 Series D has heretofore been entered into between the Company and the Trustee and has been filed in the Office of the Secretary of State of Michigan as a financing statement on March 29, 1993 (Filing No. 29269B), has been filed and recorded in the Office of the Interstate Commerce Commission (Recordation No. 5485-FFFF) on March 29, 1993, and has been recorded as a real estate mortgage in the offices of the respective Register of Deeds of certain counties in the State of Michigan, as follows: |
LIBER OF MORTGAGES OR COUNTY COUNTY RECORDED RECORDS PAGE ------ -------- --------- ---- Genesee...................... March 29, 1993 2858 534-558 Huron........................ March 29, 1993 596 326-350 Ingham....................... March 29, 1993 2044 880-904 Lapeer....................... March 29, 1993 795 722-746 Lenawee...................... March 29, 1993 1246 95-119 Livingston................... March 29, 1993 1673 0443-0467 Macomb....................... March 29, 1993 05791 917-941 Mason........................ March 29, 1993 426 940-964 Monroe....................... March 29, 1993 1287 0804-0828 Oakland...................... March 29, 1993 13436 012-036 Sanilac...................... March 29, 1993 439 508-532 St. Clair.................... March 29, 1993 1094 584-608 Tuscola...................... March 29, 1993 638 908-932 Washtenaw.................... March 29, 1993 2766 470-494 Wayne........................ March 29, 1993 26424 265-289 |
Further, pursuant to the terms and provisions of the Original Indenture, a Supplemental Indenture dated as of April 1, 1993 providing for the terms of bonds to be issued thereunder of 1993 Series FP and 1993 Series IP has heretofore been entered into between the Company and the Trustee and has been filed in the Office of the Secretary of State of Michigan as a financing statement on April 12, 1993 (Filing No. 29769B), has been filed and recorded in the Office of the Interstate Commerce Commission (Recordation No. 5485-GGGG) on April 12, 1993, and has been recorded as a real estate mortgage in the offices of the respective Register of Deeds of certain counties in the State of Michigan, as follows: |
LIBER OF MORTGAGES OR COUNTY COUNTY RECORDED RECORDS PAGE ------ -------- --------- ---- Genesee...................... April 12, 1993 2863 517-548 Huron........................ April 12, 1993 597 232-263 Ingham....................... April 12, 1993 2048 436-467 Lapeer....................... April 12, 1993 797 291-322 Lenawee...................... April 12, 1993 1248 64-95 Livingston................... April 12, 1993 1678 0119-0150 Macomb....................... April 12, 1993 05806 436-467 Mason........................ April 12, 1993 427 390-421 Monroe....................... April 12, 1993 1291 0065-0096 Oakland...................... April 12, 1993 13476 876-907 Sanilac...................... April 12, 1993 440 73-104 St. Clair.................... April 12, 1993 1096 625-656 Tuscola...................... April 12, 1993 639 243-274 Washtenaw.................... April 12, 1993 2772 427-458 Wayne........................ April 12, 1993 26451 921-952 |
Further, pursuant to the terms and provisions of the Original Indenture, a Supplemental Indenture dated as of April 26, 1993 providing for the terms of bonds to be issued thereunder of 1993 Series G has heretofore been entered into between the Company and the Trustee and has been filed in the Office of the Secretary of State of Michigan as a financing statement on April 27, 1993 (Filing No. 30378B), has been filed and recorded in the Office of the Interstate Commerce Commission (Recordation No. 5485-HHHH) on April 27, 1993, and has been recorded as a real estate mortgage in the offices of the respective Register of Deeds of certain counties in the State of Michigan, as follows: |
LIBER OF MORTGAGES OR COUNTY COUNTY RECORDED RECORDS PAGE ------ -------- --------- ---- Genesee...................... April 27, 1993 2869 575-601 Huron........................ April 27, 1993 598 331-357 Ingham....................... April 27, 1993 2052 1066-1092 Lapeer....................... April 27, 1993 799 306-332 Lenawee...................... April 27, 1993 1250 408-434 Livingston................... April 27, 1993 1683 0087-0113 Macomb....................... April 27, 1993 05826 540-566 Mason........................ April 27, 1993 427 853-879 Monroe....................... April 27, 1993 1293 0929-0955 Oakland...................... April 27, 1993 13520 508-534 Sanilac...................... April 27, 1993 440 655-681 St. Clair.................... April 27, 1993 1099 772-798 Tuscola...................... April 27, 1993 639 1311-1337 Washtenaw.................... April 27, 1993 2779 79-105 Wayne........................ April 27, 1993 26482 899-925 |
Further, pursuant to the terms and provisions of the Original Indenture, a Supplemental Indenture dated as of May 31, 1993 providing for the terms of bonds to be issued thereunder of 1993 Series J has heretofore been entered into between the Company and the Trustee and has been filed in the Office of the Secretary of State of Michigan as a financing statement on June 3, 1993 (Filing No. 31923B), has been filed and recorded in the Office of the Interstate Commerce Commission (Recordation No. 5485-IIII) on June 3, 1993, and has been recorded as a real estate mortgage in the offices of the respective Register of Deeds of certain counties in the State of Michigan, as follows: |
LIBER OF MORTGAGES OR COUNTY COUNTY RECORDED RECORDS PAGE ------ -------- --------- ---- Genesee...................... June 3, 1993 2885 401-427 Huron........................ June 3, 1993 602 281-307 Ingham....................... June 3, 1993 2065 226-252 Lapeer....................... June 3, 1993 804 837-863 Lenawee...................... June 3, 1993 1256 587-613 Livingston................... June 3, 1993 1696 0340-0366 Macomb....................... June 3, 1993 05876 207-233 Mason........................ June 3, 1993 429 223-249 Monroe....................... June 3, 1993 1302 0873-0899 Oakland...................... June 3, 1993 13638 357-383 Sanilac...................... June 3, 1993 442 217-243 St. Clair.................... June 3, 1993 1106 575-601 Tuscola...................... June 3, 1993 641 1240-1266 Washtenaw.................... June 3, 1993 2797 131-157 Wayne........................ June 3, 1993 26558 793-819 |
RECORDING OF All the bonds of Series A which were issued under the CERTIFICATES Original Indenture dated as of October 1, 1924, and of OF PROVISION Series B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, W, FOR PAYMENT. AA, BB, CC, DDP Nos. 1-9, FFR Nos. 1-14, GGP Nos. 1-22, HH, IIP Nos. 1-22, JJP Nos. 1-8, KKP Nos. 1-8, LLP Nos. 1-15, NNP Nos. 1-21, OOP Nos. 1-18, QQP Nos. 1-17, TTP Nos. 1-15, UU, 1980 Series A, 1980 Series CP Nos. 1-25, 1980 Series DP Nos. 1-11, 1981 Series AP Nos. 1-12, 1985 Series A, 1985 Series B, 1987 Series A, PP, RR, EE, MMP and MMP No. 2 which were issued under Supplemental Indentures dated as of, respectively, June 1, 1925, August 1, 1927, February 1, 1931, October 1, 1932, September 25, 1935, September 1, 1936, December 1, 1940, September 1, 1947, November 15, 1951, January 15, 1953, May 1, 1953, March 15, 1954, May 15, 1955, August 15, 1957, December 15, 1970, May 1, 1974, October 1, 1974, January 15, 1975, November 1, 1975, February 1, 1976, June 15, 1976, July 15, 1976, October 1, 1977, March 1, 1977, July 1, 1979, March 1, 1977, March 1, 1977, March 1, 1977, September 1, 1979, July 1, 1977, July 1, 1979, September 15, 1979, October 1, 1977, June 1, 1978, October 1, 1977, July 1, 1979, January 1, 1980, August 15, 1980, November 1, 1981, May 1, 1985, May 15, 1985, January 31, 1987, June 1, 1978, October 15, 1978, December 15, 1975, February 15, 1977, and September 1, 1979 have matured or have been called for redemption and funds sufficient for such payment or redemption have been irrevocably deposited with the Trustee for that purpose; and Certificates of Provision for Payment have been recorded in the offices of the respective Registers of Deeds of certain counties in the State of Michigan, with respect to all bonds of Series A, B, C, D, E, F, G, H, K, L, M, O, W, BB, CC, DDP Nos. 1 and 2, FFR Nos. 1-3, GGP Nos. 1 and 2, IIP No. 1, JJP No. 1, KKP No. 1, LLP No. 1 and GGP No. 8. PART III. THE TRUSTEE. TERMS AND The Trustee hereby accepts the trust hereby declared and CONDITIONS OF provided, and agrees to perform the same upon the terms and ACCEPTANCE OF conditions in the Original Indenture, as amended to date and TRUST BY TRUSTEE. as supplemented by this Supplemental Indenture, and in this Supplemental Indenture set forth, and upon the following terms and conditions: The Trustee shall not be responsible in any manner whatsoever for and in respect of the validity or sufficiency of this Supplemental Indenture or the due execution hereof by the Company or for or in respect of the recitals contained herein, all of which recitals are made by the Company solely. PART IV. MISCELLANEOUS. CONFIRMATION OF Except to the extent specifically provided therein, no SECTION 318(C) OF provision of this supplemental indenture or any future TRUST INDENTURE supplemental indenture is intended to modify, and the ACT parties do hereby adopt and confirm, the provisions of Section 318(c) of the Trust Indenture Act which amend and supercede provisions of the Indenture in effect prior to November 15, 1990. EXECUTION IN THIS SUPPLEMENTAL INDENTURE MAY BE SIMULTANEOUSLY COUNTERPARTS. EXECUTED IN ANY NUMBER OF COUNTERPARTS, EACH OF WHICH WHEN SO EXECUTED SHALL BE DEEMED TO BE AN ORIGINAL; BUT SUCH COUNTERPARTS SHALL TOGETHER CONSTITUTE BUT ONE AND THE SAME INSTRUMENT. |
TESTIMONIUM. IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY AND BANKERS TRUST COMPANY HAVE CAUSED THESE PRESENTS TO BE SIGNED IN THEIR RESPECTIVE CORPORATE NAMES BY THEIR RESPECTIVE CHAIRMEN OF THE BOARD, PRESIDENTS, VICE PRESIDENTS, ASSISTANT VICE PRESIDENTS, TREASURERS OR ASSISTANT TREASURERS AND IMPRESSED WITH THEIR RESPECTIVE CORPORATE SEALS, ATTESTED BY THEIR RESPECTIVE SECRETARIES OR ASSISTANT SECRETARIES, ALL AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN. |
THE DETROIT EDISON COMPANY, (Corporate Seal) By /s/ C. C. ARVANI ------------------------------ C. C. Arvani Assistant Treasurer EXECUTION. Attest: /s/ RONALD J. GDOWSKI -------------------------------- Ronald J. Gdowski Assistant Corporate Secretary Signed, sealed and delivered by THE DETROIT EDISON COMPANY, in the presence of /s/ JACK L. SOMERS -------------------------------- Jack L. Somers -------------------------------- /s/ CATHY M. LEWIS Cathy M. Lewis |
STATE OF MICHIGAN SS.: COUNTY OF WAYNE ACKNOWLEDGMENT On this 30th day of September, 1993, before me, the OF EXECUTION subscriber, a Notary Public within and for the County of BY COMPANY. Wayne, in the State of Michigan, personally appeared C. C. Arvani, to me personally known, who, being by me duly sworn, did say that he does business at 2000 Second Avenue, Detroit, Michigan 48226 and is the Assistant Treasurer of THE DETROIT EDISON COMPANY, one of the corporations described in and which executed the foregoing instrument; that he knows the corporate seal of the said corporation and that the seal affixed to said instrument is the corporate seal of said corporation; and that said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors and that he subscribed his name thereto by like authority; and said C. C. Arvani, acknowledged said instrument to be the free act and deed of said corporation. |
/s/ JUDITH THUN --------------------------------------- (Notarial Seal) Judith Thun, Notary Public Wayne County, MI My Commission Expires March 4, 1995 |
BANKERS TRUST COMPANY, (Corporate Seal) By /s/ R.T. GORMAN ------------------------------------ R.T. Gorman Vice President Attest: /s/ SHIKHA DOMBEK ------------------------------------ Shikha Dombek Assistant Secretary Signed, sealed and delivered by BANKERS TRUST COMPANY, in the presence of /s/ JOHN FLORIO ------------------------------------ John Florio /s/ SCOTT THIEL ------------------------------------ Scott Thiel |
STATE OF NEW YORK SS.: COUNTY OF NEW YORK |
ACKNOWLEDGMENT On this 22nd day of September, 1993, before me, the OF EXECUTION subscriber, a Notary Public within and for the County of BY TRUSTEE. Kings, in the State of New York, personally appeared R.T. Gorman, to me personally known, who, being by me duly sworn, did say that his business office is located at Four Albany Street, New York, New York 10015, and he is Vice President of BANKERS TRUST COMPANY, one of the corporations described in and which executed the foregoing instrument; that he knows the corporate seal of the said corporation and that the seal affixed to said instrument is the corporate seal of said corporation; and that said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors and that he subscribed his name thereto by like authority; and said R.T. Gorman acknowledged said instrument to be the free act and deed of said corporation. |
(Notarial Seal) /s/ CAROL ALLEN ------------------------------------ Carol Allen Notary Public, State of New York No. 24-4920187 Qualified in Kings County Commission Expires 2-16-94 |
STATE OF MICHIGAN SS.: COUNTY OF WAYNE |
AFFIDAVIT AS TO C. C. Arvani, being duly sworn, says: that he is the CONSIDERATION Assistant Treasurer of THE DETROIT EDISON COMPANY, the AND GOOD FAITH. Mortgagor named in the foregoing instrument, and that he has knowledge of the facts in regard to the making of said instrument and of the consideration therefor; that the consideration for said instrument was and is actual and adequate, and that the same was given in good faith for the purposes in such instrument set forth. |
/s/ C. C. ARVANI --------------------------- C. C. Arvani Sworn to before me this 30th day of September, 1993 /s/ Judith Thun ----------------------------------- Judith Thun, Notary Public Wayne County, MI My Commission Expires March 4, 1995 (Notarial Seal) This instrument was drafted by Frances B. Rohlman, Esq., 2000 Second Avenue, Detroit, Michigan 48226 |
EXHIBIT 4-218
EXECUTED IN COUNTERPARTS
OF WHICH THIS IS COUNTERPART NO.
THE DETROIT EDISON COMPANY
(2000 Second Avenue,
Detroit, Michigan 48226)
TO
BANKERS TRUST COMPANY
(Four Albany Street,
New York, New York 10015)
AS TRUSTEE
INDENTURE
Dated as of June 15, 1994
SUPPLEMENTAL TO MORTGAGE AND DEED OF TRUST
DATED AS OF OCTOBER 1, 1924
PROVIDING FOR
(A) 1994 SERIES BP
AND
(B) RECORDING AND FILING DATA
TABLE OF CONTENTS*
PAGE ---- PARTIES..................................................... 1 RECITALS Original Indenture and Supplemental....................... 1 Issue of Bonds under Indenture............................ 1 Bonds heretofore issued................................... 1 Reason for creation of new series......................... 5 Bonds to be 1994 Series BP................................ 5 Further Assurance......................................... 5 Authorization of Supplemental Indenture................... 5 Consideration for Supplemental Indenture.................. 5 PART I. CREATION OF THREE HUNDRED FOURTEENTH SERIES OF BONDS GENERAL AND REFUNDING MORTGAGE BONDS, 1994 SERIES BP Sec. 1. Certain terms of Bonds of 1994 Series BP............ 6 Sec. 2. Redemption of Bonds of 1994 Series BP............... 7 Sec. 3. Redemption of Bonds of 1994 Series BP in event of acceleration of Strategic Fund Revenue Bonds........................ 8 Sec. 4. Form of Bonds of 1994 Series BP..................... 8 Form of Trustee's Certificate....................... 13 PART II. RECORDING AND FILING DATA Recording and filing of Original Indenture.................. 14 Recording and filing of Supplemental Indentures............. 14 Recording of Certificates of Provision for Payment.......... 19 PART III. THE TRUSTEE Terms and conditions of acceptance of trust by Trustee...... 19 PART IV. MISCELLANEOUS Confirmation of Section 318(c) of Trust Indenture Act....... 19 Execution in Counterparts................................... 19 Testimonium................................................. 20 Execution................................................... 20 Acknowledgment of execution by Company...................... 20 Acknowledgment of execution by Trustee...................... 21 Affidavit as to consideration and good faith................ 22 |
PARTIES. SUPPLEMENTAL INDENTURE, dated as of the fifteenth day of June, in the year one thousand nine hundred and ninety-four, between THE DETROIT EDISON COMPANY, a corporation organized and existing under the laws of the State of Michigan and a transmitting utility (hereinafter called the "Company"), party of the first part, and BANKERS TRUST COMPANY, a corporation organized and existing under the laws of the State of New York, having its corporate trust office at Four Albany Street, in the Borough of Manhattan, The City and State of New York, as Trustee under the Mortgage and Deed of Trust hereinafter mentioned (hereinafter called the "Trus- tee"), party of the second part. ORIGINAL WHEREAS, the Company has heretofore executed and delivered INDENTURE AND its Mortgage and Deed of Trust (hereinafter referred to as SUPPLEMENTALS. the "Original Indenture"), dated as of October 1, 1924, to the Trustee, for the security of all bonds of the Company outstanding thereunder, and pursuant to the terms and provisions of the Original Indenture, indentures dated as of, respectively, June 1, 1925, August 1, 1927, February 1, 1931, June 1, 1931, October 1, 1932, September 25, 1935, September 1, 1936, November 1, 1936, February 1, 1940, December 1, 1940, September 1, 1947, March 1, 1950, November 15, 1951, January 15, 1953, May 1, 1953, March 15, 1954, May 15, 1955, August 15, 1957, June 1, 1959, December 1, 1966, October 1, 1968, December 1, 1969, July 1, 1970, December 15, 1970, June 15, 1971, November 15, 1971, January 15, 1973, May 1, 1974, October 1, 1974, January 15, 1975, November 1, 1975, December 15, 1975, February 1, 1976, June 15, 1976, July 15, 1976, February 15, 1977, March 1, 1977, June 15, 1977, July 1, 1977, October 1, 1977, June 1, 1978, October 15, 1978, March 15, 1979, July 1, 1979, September 1, 1979, September 15, 1979, January 1, 1980, April 1, 1980, August 15, 1980, August 1, 1981, November 1, 1981, June 30, 1982, August 15, 1982, June 1, 1983, October 1, 1984, May 1, 1985, May 15, 1985, October 15, 1985, April 1, 1986, August 15, 1986, November 30, 1986, January 31, 1987, April 1, 1987, August 15, 1987, November 30, 1987, June 15, 1989, July 15, 1989, December 1, 1989, February 15, 1990, November 1, 1990, April 1, 1991, May 1, 1991, May 15, 1991, September 1, 1991, November 1, 1991, January 15, 1992, February 29, 1992, April 15, 1992, July 15, 1992, July 31, 1992, November 30, 1992, December 15, 1992, January 1, 1993, March 1, 1993, March 15, 1993, April 1, 1993, April 26, 1993, May 31, 1993, June 30, 1993, June 30, 1993, September 15, 1993 and March 1, 1994 supplemental to the Original Indenture, have heretofore been entered into between the Company and the Trustee (the Original Indenture and all indentures supplemental thereto together being hereinafter sometimes referred to as the "Indenture"); and ISSUE OF WHEREAS, the Indenture provides that said bonds shall be BONDS UNDER issuable in one or more series, and makes provision that the INDENTURE. rates of interest and dates for the payment thereof, the date of maturity or dates of maturity, if of serial maturity, the terms and rates of optional redemption (if redeemable), the forms of registered bonds without coupons of any series and any other provisions and agreements in respect thereof, in the Indenture provided and permitted, as the Board of Directors may determine, may be expressed in a supplemental indenture to be made by the Company to the Trustee thereunder; and BONDS HERETOFORE WHEREAS, bonds in the principal amount of Eight billion ISSUED. eighty-five million six hundred forty-two thousand dollars ($8,085,642,000) have heretofore been issued under the indenture as follows, viz: |
(1) Bonds of Series A -- Principal Amount $26,016,000, (2) Bonds of Series B -- Principal Amount $23,000,000, (3) Bonds of Series C -- Principal Amount $20,000,000, (4) Bonds of Series D -- Principal Amount $50,000,000, (5) Bonds of Series E -- Principal Amount $15,000,000, (6) Bonds of Series F -- Principal Amount $49,000,000, (7) Bonds of Series G -- Principal Amount $35,000,000, (8) Bonds of Series H -- Principal Amount $50,000,000, (9) Bonds of Series I -- Principal Amount $60,000,000, (10) Bonds of Series J -- Principal Amount $35,000,000, (11) Bonds of Series K -- Principal Amount $40,000,000, |
(12) Bonds of Series L -- Principal Amount $24,000,000, (13) Bonds of Series M -- Principal Amount $40,000,000, (14) Bonds of Series N -- Principal Amount $40,000,000, (15) Bonds of Series O -- Principal Amount $60,000,000, (16) Bonds of Series P -- Principal Amount $70,000,000, (17) Bonds of Series Q -- Principal Amount $40,000,000, (18) Bonds of Series W -- Principal Amount $50,000,000, (19) Bonds of Series AA -- Principal Amount $100,000,000, (20) Bonds of Series BB -- Principal Amount $50,000,000, (21) Bonds of Series CC -- Principal Amount $50,000,000, (22) Bonds of Series UU -- Principal Amount $100,000,000, (23-31) Bonds of Series DDP Nos. 1-9 -- Principal Amount $14,305,000, (32-45) Bonds of Series FFR Nos. 1-14 -- Principal Amount $45,600,000, (46-67) Bonds of Series GGP Nos. 1-22 -- Principal Amount $42,300,000, (68) Bonds of Series HH -- Principal Amount $50,000,000, (69-90) Bonds of Series IIP Nos. 1-22 -- Principal Amount $3,750,000, (91-98) Bonds of Series JJP Nos. 1-8 -- Principal Amount $6,850,000, (99-106) Bonds of Series KKP Nos. 1-8 -- Principal Amount $14,890,000, (107-121) Bonds of Series LLP Nos. 1-15 -- Principal Amount $8,850,000, (122-142) Bonds of Series NNP Nos. 1-21 -- Principal Amount $47,950,000, (143-160) Bonds of Series OOP Nos. 1-18 -- Principal Amount $18,880,000, (161-179) Bonds of Series QQP Nos. 1-19 -- Principal Amount $13,650,000, (180-194) Bonds of Series TTP Nos. 1-15 -- Principal Amount $3,800,000, (195) Bonds of 1980 Series A -- Principal Amount $50,000,000, (196-220) Bonds of 1980 Series CP Nos. 1-25 -- Principal Amount $35,000,000, (221-231) Bonds of 1980 Series DP Nos. 1-11 -- Principal Amount $10,750,000, (232-247) Bonds of 1981 Series AP Nos. 1-16 -- Principal Amount $124,000,000, (248) Bonds of 1985 Series A -- Principal Amount $35,000,000, (249) Bonds of 1985 Series B -- Principal Amount $50,000,000, (250) Bonds of Series PP -- Principal Amount $70,000,000, (251) Bonds of Series RR -- Principal Amount $70,000,000, (252) Bonds of Series EE -- Principal Amount $50,000,000, (253-254) Bonds of Series MMP and MMP No. 2 -- Principal Amount $5,430,000, (255) Bonds of Series T -- Principal Amount $75,000,000, (256) Bonds of Series U -- Principal Amount $75,000,000, (257) Bonds of 1986 Series B -- Principal Amount $100,000,000, (258) Bonds of 1987 Series D -- Principal Amount $250,000,000, (259) Bonds of 1987 Series E -- Principal Amount $150,000,000, (260) Bonds of 1987 Series C -- Principal Amount $225,000,000, (261) Bonds of Series V -- Principal Amount $100,000,000, (262) Bonds of Series SS -- Principal Amount $150,000,000, (263) Bonds of 1980 Series B -- Principal Amount $100,000,000, (264) Bonds of 1986 Series C -- Principal Amount $200,000,000, (265) Bonds of 1986 Series A -- Principal Amount $200,000,000, (266) Bonds of 1987 Series B -- Principal Amount $175,000,000, (267) Bonds of Series X -- Principal Amount $100,000,000, (268) Bonds of 1987 Series F -- Principal Amount $200,000,000, (269) Bonds of 1987 Series A -- Principal Amount $300,000,000, (270) Bonds of Series Y -- Principal Amount $60,000,000, (271) Bonds of Series Z -- Principal Amount $100,000,000, |
all of which have either been retired and cancelled, or no longer represent obligations of the Company, having been called for redemption and funds necessary to effect the payment, redemption and retirement thereof having been deposited with the Trustee as a special trust fund to be applied for such purpose; (272) Bonds of Series R in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof; |
(273) Bonds of Series S in the principal amount of One hundred fifty million dollars ($150,000,000), all of which are outstanding at the date hereof; (274-279) Bonds of Series KKP Nos. 9-14 in the principal amount of One hundred ninety-three million two hundred ninety thousand dollars ($193,290,000), all of which are outstanding at the date hereof; (280) Bonds of 1984 Series AP in the principal amount of Two million four hundred thousand dollars ($2,400,000), all of which are outstanding at the date hereof; (281) Bonds of 1984 Series BP in the principal amount of Seven million seven hundred fifty thousand dollars ($7,750,000), all of which are outstanding at the date hereof; (282) Bonds of 1989 Series A in the principal amount of Three hundred million dollars ($300,000,000) of which One hundred thirty-one million seven hundred fifteen thousand dollars ($131,715,000) principal amount have heretofore been retired and One hundred sixty-eight million two hundred eighty-five thousand dollars ($168,285,000) principal amount are outstanding at the date hereof; (283) Bonds of 1989 Series BP in the principal amount of Sixty-six million five hundred sixty-five thousand dollars ($66,565,000), all of which are outstanding at the date hereof; (284) Bonds of 1990 Series A in the principal amount of One hundred ninety-four million six hundred forty-nine thousand dollars ($194,649,000) of which Thirty-one million three hundred ninety-five thousand dollars ($31,395,000) principal amount have heretofore been retired and One hundred sixty-three million two hundred fifty-four thousand dollars ($163,254,000) principal amount are outstanding at the date hereof; (285) Bonds of 1990 Series B in the principal amount of Two hundred fifty-six million nine hundred thirty-two thousand dollars ($256,932,000) of which Forty-seven million five hundred eighty thousand dollars ($47,580,000) principal amount have heretofore been retired and Two hundred nine million three hundred fifty-two thousand dollars ($209,352,000) principal amount are outstanding at the date hereof; (286) Bonds of 1990 Series C in the principal amount of Eighty-five million four hundred seventy-five thousand dollars ($85,475,000) of which Seventeen million ninety- five thousand dollars ($17,095,000) principal amount have heretofore been retired and Sixty-eight million three hundred eighty thousand dollars ($68,380,000) principal amount are outstanding at the date hereof; (287) Bonds of 1991 Series AP in the principal amount of Thirty-two million three hundred seventy-five thousand dollars ($32,375,000), all of which are outstanding at the date hereof; (288) Bonds of 1991 Series BP in the principal amount of Twenty-five million nine hundred ten thousand dollars ($25,910,000), all of which are outstanding at the date hereof; (289) Bonds of 1991 Series CP in the principal amount of Thirty-two million eight hundred thousand dollars ($32,800,000), all of which are outstanding at the date hereof; (290) Bonds of 1991 Series DP in the principal amount of Thirty-seven million six hundred thousand dollars ($37,600,000), all of which are outstanding at the date hereof; (291) Bonds of 1991 Series EP in the principal amount of Forty-one million four hundred eighty thousand dollars ($41,480,000), all of which are outstanding at the date hereof; (292) Bonds of 1991 Series FP in the principal amount of Ninety-eight million three hundred seventy-five thousand dollars ($98,375,000), all of which are outstanding at the date hereof; |
(293) Bonds of 1992 Series BP in the principal amount of Twenty million nine hundred seventy-five thousand dollars ($20,975,000), all of which are outstanding at the date hereof; (294) Bonds of 1992 Series AP in the principal amount of Sixty-six million dollars ($66,000,000), all of which are outstanding at the date hereof; (295) Bonds of 1992 Series D in the principal amount of Three hundred million dollars ($300,000,000), all of which are outstanding at the date hereof; (296) Bonds of 1992 Series CP in the principal amount of Thirty-five million dollars ($35,000,000), all of which are outstanding at the date hereof; (297) Bonds of 1992 Series E in the principal amount of Fifty million dollars ($50,000,000), all of which are outstanding at the date hereof; (298) Bonds of 1989 Series BP No. 2 in the principal amount of Thirty-six million dollars ($36,000,000), all of which are outstanding at the date hereof; (299) Bonds of 1993 Series C in the principal amount of Two hundred twenty-five million dollars ($225,000,000), all of which are outstanding at the date hereof; (300) Bonds of 1993 Series B in the principal amount of Fifty million dollars ($50,000,000), all of which are outstanding at the date hereof; (301) Bonds of 1993 Series E in the principal amount of Four hundred million dollars ($400,000,000), all of which are outstanding at the date hereof; (302) Bonds of 1993 Series D in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof; (303) Bonds of 1993 Series FP in the principal amount of Five million six hundred eighty-five thousand dollars ($5,685,000), all of which are outstanding at the date hereof; (304) Bonds of 1993 Series G in the principal amount of Two hundred twenty-five million dollars ($225,000,000), all of which are outstanding at the date hereof; (305) Bonds of 1993 Series J in the principal amount of Three hundred million dollars ($300,000,000), all of which are outstanding at the date hereof; (306) Bonds of 1993 Series IP in the principal amount of Five million eight hundred twenty-five thousand dollars ($5,825,000), all of which are outstanding at the date hereof; (307) Bonds of 1993 Series AP in the principal amount of Sixty-five million dollars ($65,000,000), all of which are outstanding at the date hereof; (308) Bonds of 1993 Series H in the principal amount of Fifty million dollars ($50,000,000), all of which are outstanding at the date hereof; (309) Bonds of 1993 Series K in the principal amount of One hundred sixty million dollars ($160,000,000), all of which are outstanding at the date hereof; (310) Bonds of 1994 Series AP in the principal amount of Seven million five hundred thirty-five thousand dollars ($7,535,000), all of which are outstanding at the date hereof; and, accordingly, of the bonds so issued, three billion four hundred ninety-nine million eight hundred thirty-six thousand dollars ($3,499,836,000) principal amount are out- standing at the date hereof; and |
REASON FOR WHEREAS, the Michigan Strategic Fund has agreed to issue CREATION OF and sell $12,935,000 principal amount of its Limited NEW SERIES. Obligation Refunding Revenue Bonds (The Detroit Edison Company Pollution Control Bonds Project), Collateralized Series 1994BB, in order to provide funds for the refunding of certain pollution control related bonds previously issued to finance pollution control projects of the Company; and |
WHEREAS, the Company will enter into a Loan Agreement, dated as of June 15, 1994, with the Michigan Strategic Fund in connection with the issuance of the Collateralized Series 1994BB Bonds in order to refund certain pollution control related bonds, and pursuant to such Loan Agreement the Company has agreed to issue its General and Refunding Mortgage Bonds under the Indenture in order further to secure its obligations under such Loan Agreement; and WHEREAS, for such purposes the Company desires to issue new series of bonds to be issued under the Indenture and to be authenticated and delivered pursuant to Section 8 of Article III of the Indenture; and BONDS TO BE WHEREAS, the Company desires by this Supplemental 1994 SERIES BP. Indenture to create a new series of bonds, to be designated "General and Refunding Mortgage Bonds, 1994 Series BP"; and FURTHER WHEREAS, the Original Indenture, by its terms, includes in ASSURANCE. the property subject to the lien thereof all of the estates and properties, real, personal and mixed, rights, privileges and franchises of every nature and kind and wheresoever situate, then or thereafter owned or possessed by or belonging to the Company or to which it was then or at any time thereafter might be entitled in law or in equity (saving and excepting, however, the property therein specifically excepted or released from the lien thereof), and the Company therein covenanted that it would, upon reasonable request, execute and deliver such further instruments as may be necessary or proper for the better assuring and confirming unto the Trustee all or any part of the trust estate, whether then or thereafter owned or acquired by the Company (saving and excepting, however, property specifically excepted or released from the lien thereof); and AUTHORIZATION WHEREAS, the Company in the exercise of the powers and OF SUPPLEMENTAL authority conferred upon and reserved to it under and by INDENTURE. virtue of the provisions of the Indenture, and pursuant to resolutions of its Board of Directors has duly resolved and determined to make, execute and deliver to the Trustee a supplemental indenture in the form hereof for the purposes herein provided; and WHEREAS, all conditions and requirements necessary to make this Supplemental Indenture a valid and legally binding instrument in accordance with its terms have been done, performed and fulfilled, and the execution and delivery hereof have been in all respects duly authorized; CONSIDERATION NOW, THEREFORE, THIS INDENTURE WITNESSETH: That The FOR SUPPLEMENTAL Detroit Edison Company, in consideration of the premises and INDENTURE. of the covenants contained in the Indenture and of the sum of One Dollar ($1.00) and other good and valuable consideration to it duly paid by the Trustee at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, hereby covenants and agrees to and with the Trustee and its successors in the trusts under the Original Indenture and in said indentures supplemental thereto as follows: |
PART I. CREATION OF THREE HUNDRED FOURTEENTH SERIES OF BONDS. GENERAL AND REFUNDING MORTGAGE BONDS, 1994 SERIES BP CERTAIN TERMS SECTION 1. The Company hereby creates the Three hundred OF BONDS OF fourteenth series of bonds to be issued under and secured by 1994 SERIES BP. the Original Indenture as amended to date and as further amended by this Supplemental Indenture, to be designated, and to be distinguished from the bonds of all other series, by the title "General and Refunding Mortgage Bonds, 1994 Series BP" (elsewhere herein referred to as the "bonds of 1994 Series BP"). The aggregate principal amount of bonds of 1994 Series BP shall be limited to Twelve million nine hundred thirty-five thousand dollars ($12,935,000), except as provided in Sections 7 and 13 of Article II of the Original Indenture with respect to exchanges and replacements of bonds. Each bond of 1994 Series BP is to be irrevocably assigned to, and registered in the name of, NBD Bank, N.A., as trustee, or a successor trustee (said trustee or any successor trustee being hereinafter referred to as the "Strategic Fund Trust Indenture Trustee"), under the Trust Indenture, dated as of June 15, 1994 (hereinafter called the "Strategic Fund Trust Indenture"), between the Michigan Strategic Fund (hereinafter called "Strategic Fund"), and the Strategic Fund Trust Indenture Trustee, to secure payment of the Michigan Strategic Fund Limited Obligation Refunding Revenue Bonds (The Detroit Edison Company Pollution Control Bonds Project), Collateralized Series 1994BB (hereinafter called the "Strategic Fund Revenue Bonds"), issued by the Strategic Fund under the Strategic Fund Trust Indenture, the proceeds of which have been provided for the refunding of certain pollution control related bonds which the Company has agreed to refund pursuant to the provisions of the Loan Agreement, dated as of June 15, 1994 (hereinafter called the "Strategic Fund Agreement"), between the Company and the Strategic Fund. The bonds of 1994 Series BP shall be issued as registered bonds without coupons in denominations of a multiple of $5,000. The bonds of 1994 Series BP shall be issued in the aggregate principal amount of $12,935,000, shall mature on June 15, 2024 and shall bear interest, payable semi-annually on June 15 and December 15 of each year (commencing December 15, 1994), at the rate of 6.45%, until the principal thereof shall have become due and payable and thereafter until the Company's obligation with respect to the payment of said principal shall have been discharged as provided in the Indenture. The bonds of 1994 Series BP shall be payable as to principal, premium, if any, and interest as provided in the Indenture, but only to the extent and in the manner herein provided. The bonds of 1994 Series BP shall be payable, both as to principal and interest, at the office or agency of the Company in the Borough of Manhattan, The City and State of New York, in any coin or currency of the United States of America which at the time of payment is legal tender for public and private debts. Except as provided herein, each bond of 1994 Series BP shall be dated the date of its authentication and interest shall be payable on the principal represented thereby from the June 15 or December 15 next preceding the date thereof to which interest has been paid on bonds of 1994 Series BP, unless the bond is authenticated on a date to which interest has been paid, in which case interest shall be payable from the date of authentication, or unless the date of authentication is prior to December 15, 1994, in which case interest shall be payable from June 15, 1994. |
The bonds of 1994 Series BP in definitive form shall be, at the election of the Company, fully engraved or shall be lithographed or printed in authorized denominations as aforesaid and numbered 1 and upwards (with such further designation as may be appropriate and desirable to indicate by such designation the form, series and denominations of bonds of 1994 Series BP). Until bonds of 1994 Series BP in definitive form are ready for delivery, the Company may execute, and upon its request in writing the Trustee shall authenticate and deliver in lieu thereof, bonds of 1994 Series BP in temporary form, as provided in Section 10 of Article II of the Indenture. Temporary bonds of 1994 Series BP, if any, may be printed and may be issued in authorized denominations in substantially the form of definitive bonds of 1994 Series BP, but with such omissions, insertions and variations as may be appropriate for temporary bonds, all as may be determined by the Company. Bonds of 1994 Series BP shall not be assignable or transferable except as may be required to effect a transfer to any successor trustee under the Strategic Fund Trust Indenture, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under the Strategic Fund Trust Indenture. Any such transfer shall be made upon surrender thereof for cancellation at the office or agency of the Company in the Borough of Manhattan, The City and State of New York, together with a written instrument of transfer (if so required by the Company or by the Trustee) in form approved by the Company duly executed by the holder or by its duly authorized attorney. Bonds of 1994 Series BP shall in the same manner be exchangeable for a like aggregate principal amount of bonds of 1994 Series BP upon the terms and conditions specified herein and in Section 7 of Article II of the Indenture. The Company waives its rights under Section 7 of Article II of the Indenture not to make exchanges or transfers of bonds of 1994 Series BP, during any period of ten days next preceding any redemption date for such bonds. Bonds of 1994 Series BP, in definitive and temporary form, may bear such legends as may be necessary to comply with any law or with any rules or regulations made pursuant thereto or as may be specified in the Strategic Fund Agreement. Upon payment of the principal or premium, if any, or interest on the Strategic Fund Revenue Bonds, whether at maturity or prior to maturity by redemption or otherwise, or upon provision for the payment thereof having been made in accordance with Articles I or IV of the Strategic Fund Trust Indenture, bonds of 1994 Series BP in a principal amount equal to the principal amount of the Strategic Fund Revenue Bonds, shall, to the extent of such payment of principal, premium or interest, be deemed fully paid and the obligation of the Company thereunder to make such payment shall forthwith cease and be discharged, and, in the case of the payment of principal and premium, if any, such bonds shall be surrendered for cancellation or presented for appropriate notation to the Trustee. REDEMPTION SECTION 2. Bonds of 1994 Series BP shall be redeemed on OF BONDS OF the date and in the respective principal amount which 1994 SERIES BP. correspond to the redemption date for, and the principal amount to be redeemed of, the Strategic Fund Revenue Bonds. In the event the Company elects to redeem any Strategic Fund Revenue Bonds prior to maturity in accordance with the provisions of the Strategic Fund Trust Indenture, the Company shall on the same date redeem bonds of 1994 Series BP in the principal amount and at the redemption price corresponding to the Strategic Fund Revenue Bonds so redeemed. The Company agrees to give the Trustee notice of any such redemption of bonds of 1994 Series BP on the same date as it gives notice of redemption of Strategic Fund Revenue Bonds to the Strategic Fund Trust Indenture Trustee. |
REDEMPTION SECTION 3. In the event of an Event of Default under the OF BONDS OF 1994 SERIES Strategic Fund Trust Indenture and the acceleration of all BP IN EVENT OF Strategic Fund Revenue Bonds, the bonds of 1994 Series BP ACCELERATION shall be redeemable in whole upon receipt by the Trustee of OF STRATEGIC FUND a written demand (hereinafter called a "Redemption Demand") REVENUE BONDS. from the Strategic Fund Trust Indenture Trustee stating that there has occurred under the Strategic Fund Trust Indenture both an Event of Default and a declaration of acceleration of payment of principal, accrued interest and premium, if any, on the Strategic Fund Revenue Bonds, specifying the last date to which interest on the Strategic Fund Revenue Bonds has been paid (such date being hereinafter referred to as the "Initial Interest Accrual Date") and demanding redemption of the bonds of said series. The Trustee shall, within five days after receiving such Redemption Demand, mail a copy thereof to the Company marked to indicate the date of its receipt by the Trustee. Promptly upon receipt by the Company of such copy of a Redemption Demand, the Company shall fix a date on which it will redeem the bonds of said series so demanded to be redeemed (hereinafter called the "Demand Redemption Date"). Notice of the date fixed as the Demand Redemption Date shall be mailed by the Company to the Trustee at least ten days prior to such Demand Redemption Date. The date to be fixed by the Company as and for the Demand Redemption Date may be any date up to and including the earlier of (x) the 60th day after receipt by the Trustee of the Redemption Demand or (y) the maturity date of such bonds first occurring following the 20th day after the receipt by the Trustee of the Redemption Demand; provided, however, that if the Trustee shall not have received such notice fixing the Demand Redemption Date on or before the 10th day preceding the earlier of such dates, the Demand Redemption Date shall be deemed to be the earlier of such dates. The Trustee shall mail notice of the Demand Redemption Date (such notice being hereinafter called the "Demand Redemption Notice") to the Strategic Fund Trust Indenture Trustee not more than ten nor less than five days prior to the Demand Redemption Date. Each bond of 1994 Series BP shall be redeemed by the Company on the Demand Redemption Date therefore upon surrender thereof by the Strategic Fund Trust Indenture Trustee to the Trustee at a redemption price equal to the principal amount thereof plus accrued interest thereon at the rate specified for such bond from the Initial Interest Accrual Date to the Demand Redemption Date plus an amount equal to the aggregate premium, if any, due and payable on such Demand Redemption Date on all Strategic Fund Revenue Bonds; provided, however, that in the event of a receipt by the Trustee of a notice that, pursuant to Section 604 of the Strategic Fund Trust Indenture, the Strategic Fund Trust Indenture Trustee has terminated proceedings to enforce any right under the Strategic Fund Trust Indenture, then any Redemption Demand shall thereby be rescinded by the Strategic Fund Trust Indenture Trustee, and no Demand Redemption Notice shall be given, or, if already given, shall be automatically annulled; but no such rescission or annulment shall extend to or affect any subsequent default or impair any right consequent thereon. Anything herein contained to the contrary notwithstanding, the Trustee is not authorized to take any action pursuant to a Redemption Demand and such Redemption Demand shall be of no force or effect, unless it is executed in the name of the Strategic Fund Trust Indenture Trustee by its President or one of its Vice Presidents. FORM OF BONDS SECTION 4. The bonds of 1994 Series BP and the form of OF 1994 SERIES BP. Trustee's Certificate to be endorsed on such bonds shall be substantially in the following forms, respectively: |
[FORM OF FACE OF BOND] THE DETROIT EDISON COMPANY General and Refunding Mortgage Bond 1994 Series BP, 6.45% due June 15, 2024 Notwithstanding any provisions hereof or in the Indenture, this bond is not assignable or transferable except as may be required to effect a transfer to any successor trustee under the Trust Indenture, dated as of June 15, 1994 between the Michigan Strategic Fund and NBD Bank, N.A., as trustee, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under said Trust Indenture. $......... No.......... THE DETROIT EDISON COMPANY (hereinafter called the "Company"), a corporation of the State of Michigan, for value received, hereby promises to pay to the Michigan Strategic Fund, or registered assigns, at the Company's office or agency in the Borough of Manhattan, The City and State of New York, the principal sum of dollars ($ ) in lawful money of the United States of America on the date specified in the title hereof and interest thereon at the rate specified in the title hereof, in like lawful money, from June 15, 1994, and after the first payment of interest on bonds of this Series has been made or otherwise provided for, from the most recent date to which interest has been paid or otherwise provided for, semi-annually on June 15 and December 15 of each year (commencing December 15, 1994), until the Company's obligation with respect to payment of said principal shall have been discharged, all as provided, to the extent and in the manner specified in the Indenture hereinafter mentioned on the reverse hereof and in the supplemental indenture pursuant to which this bond has been issued. Under a Trust Indenture, dated as of June 15, 1994 (hereinafter called the "Strategic Fund Trust Indenture"), between the Michigan Strategic Fund (hereinafter called "Strategic Fund"), and NBD Bank, N.A., as trustee (hereinafter called the "Strategic Fund Trust Indenture Trustee"), the Strategic Fund has issued Limited Obligation Refunding Revenue Bonds (The Detroit Edison Company Pollution Control Bonds Project), Collateralized Series 1994BB (hereinafter called the "Strategic Fund Revenue Bonds"). This bond was originally issued to the Strategic Fund and simultaneously irrevocably assigned to the Strategic Fund Trust Indenture Trustee so as to secure the payment of the Strategic Fund Revenue Bonds. Payments of principal of, or premium, if any, or interest on, Strategic Fund Revenue Bonds shall constitute like payments on this bond as further provided herein and in the supplemental indenture pursuant to which this bond has been issued. Reference is hereby made to such further provisions of this bond set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though set forth at this place. This bond shall not be valid or become obligatory for any purpose until Bankers Trust Company, the Trustee under the Indenture hereinafter mentioned on the reverse hereof, or its successor thereunder, shall have signed the form of certificate endorsed hereon. |
IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY has caused this instrument to be executed by its Chairman of the Board and its Vice President and Treasurer, with their manual or facsimile signatures, and its corporate seal, or a facsimile thereof, to be impressed or imprinted hereon and the same to be attested by its Corporate Secretary or an Assistant Corporate Secretary with his or her manual or facsimile signature. |
Dated: THE DETROIT EDISON COMPANY By ............................ Chairman of the Board ............................ Vice President Attest: and Treasurer ............................ Corporate Secretary |
[FORM OF REVERSE OF BOND] This bond is one of an authorized issue of bonds of the Company, unlimited as to amount except as provided in the Indenture hereinafter mentioned or any indentures supplemental thereto, and is one of a series of General and Refunding Mortgage Bonds known as 1994 Series BP, limited to an aggregate principal amount of $12,935,000, except as otherwise provided in the Indenture hereinafter mentioned. This bond and all other bonds of said series are issued and to be issued under, and are all equally and ratably secured (except insofar as any sinking, amortization, improvement or analogous fund, established in accordance with the provisions of the Indenture hereinafter mentioned, may afford additional security for the bonds of any particular series and except as provided in Section 3 of Article VI of said Indenture) by an Indenture, dated as of October 1, 1924, duly executed by the Company to Bankers Trust Company, a corporation of the State of New York, as Trustee, to which Indenture and all indentures supplemental thereto (including the Supplemental Indenture dated as of June 15, 1994) reference is hereby made for a description of the properties and franchises mortgaged and conveyed, the nature and extent of the security, the terms and conditions upon which the bonds are issued and under which additional bonds may be issued, and the rights of the holders of the bonds and of the Trustee in respect of such security (which Indenture and all indentures supplemental thereto, including the Supplemental Indenture dated as of June 15, 1994, are hereinafter collectively called the "Indenture"). As provided in the Indenture, said bonds may be for various principal sums and are issuable in series, which may mature at different times, may bear interest at different rates and may otherwise vary as in said Indenture provided. With the consent of the Company and to the extent permitted by and as provided in the Indenture, the rights and obligations of the Company and of the holders of the bonds and the terms and provisions of the Indenture, or of any indenture supplemental thereto, may be modified or altered in certain respects by affirmative vote of at least eighty-five percent (85%) in amount of the bonds then outstanding, and, if the rights of one or more, but less than all, series of bonds then outstanding are to be affected by the action proposed to be taken, then also by affirmative vote of at least eighty-five percent (85%) in amount of the series of bonds so to be affected (excluding in every instance bonds disqualified from voting by reason of the Company's interest therein as specified in the Indenture); provided, however, that, without the consent of the holder hereof, no such modification or alteration shall, among other things, affect the terms of payment of the principal of or the interest on this bond, which in those respects is unconditional. This bond is redeemable upon the terms and conditions set forth in the Indenture, including provision for redemption upon demand of the Strategic Fund Trust Indenture Trustee following the occurrence of an Event of Default under the Strategic Fund Trust Indenture and the acceleration of the principal of the Strategic Fund Revenue Bonds. Under the Indenture, funds may be deposited with the Trustee (which shall have become available for payment), in advance of the redemption date of any of the bonds of 1994 Series BP (or portions thereof), in trust for the redemption of such bonds (or portions thereof) and the interest due or to become due thereon, and thereupon all obligations of the Company in respect of such bonds (or portions thereof) so to be redeemed and such interest shall cease and be discharged, and the holders thereof shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or with respect to such bonds (or portions thereof) and interest. In case an event of default, as defined in the Indenture, shall occur, the principal of all the bonds issued thereunder may become or be declared due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture. |
Upon payment of the principal of, or premium, if any, or interest on, the Strategic Fund Revenue Bonds, whether at maturity or prior to maturity by redemption or otherwise or upon provision for the payment thereof having been made in accordance with Articles I or IV of the Strategic Fund Trust Indenture, bonds of 1994 Series BP in a principal amount equal to the principal amount of such Strategic Fund Revenue Bonds and having both a corresponding maturity date and interest rate shall, to the extent of such payment of principal, premium or interest, be deemed fully paid and the obligation of the Company thereunder to make such payment shall forthwith cease and be discharged, and, in the case of the payment of principal and premium, if any, such bonds of said series shall be surrendered for cancellation or presented for appropriate notation to the Trustee. This bond is not assignable or transferable except as may be required to effect a transfer to any successor trustee under the Strategic Fund Trust Indenture, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under the Strategic Fund Trust Indenture. Any such transfer shall be made by the registered holder hereof, in person or by his attorney duly authorized in writing, on the books of the Company kept at its office or agency in the Borough of Manhattan, The City and State of New York, upon surrender and cancellation of this bond, and thereupon, a new registered bond of the same series of authorized denominations for a like aggregate principal amount will be issued to the transferee in exchange therefor, and this bond with others in like form may in like manner be exchanged for one or more new bonds of the same series of other authorized denominations, but of the same aggregate principal amount, all as provided and upon the terms and conditions set forth in the Indenture, and upon payment, in any event, of the charges prescribed in the Indenture. No recourse shall be had for the payment of the principal of or the interest on this bond, or for any claim based hereon or otherwise in respect hereof or of the Indenture, or of any indenture supplemental thereto, against any incorporator, or against any past, present or future stockholder, director or officer, as such, of the Company, or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether for amounts unpaid on stock subscriptions or by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise howsoever; all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released by every holder or owner hereof, as more fully provided in the Indenture. |
[FORM OF TRUSTEE'S CERTIFICATE] FORM OF This bond is one of the bonds, of the series designated TRUSTEE'S therein, described in the within-mentioned Indenture. CERTIFICATE. |
BANKERS TRUST COMPANY,
as Trustee
By ...........................
Authorized Officer
PART II. RECORDING AND FILING DATA RECORDING AND The Original Indenture and indentures supplemental FILING OF ORIGINAL thereto have been recorded and/or filed and Certificates of INDENTURE. Provision for Payment have been recorded as hereinafter set forth. The Original Indenture has been recorded as a real estate mortgage and filed as a chattel mortgage in the offices of the respective Registers of Deeds of certain counties in the State of Michigan as set forth in the Supplemental Indenture dated as of September 1, 1947, has been recorded as a real estate mortgage in the office of the Register of Deeds of Genesee County, Michigan as set forth in the Supplemental Indenture dated as of May 1, 1974, has been filed in the Office of the Secretary of State of Michigan on November 16, 1951 and has been filed and recorded in the office of the Interstate Commerce Commission on December 8, 1969. RECORDING AND Pursuant to the terms and provisions of the Original FILING OF Indenture, indentures supplemental thereto heretofore SUPPLEMENTAL entered into have been recorded as a real estate mortgage INDENTURES. and/or filed as a chattel mortgage or as a financing statement in the offices of the respective Registers of Deeds of certain counties in the State of Michigan, the Office of the Secretary of State of Michigan and the Office of the Interstate Commerce Commission, as set forth in supplemental indentures as follows: |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- June 1, 1925(a)(b)................ Series B Bonds February 1, 1940 August 1, 1927(a)(b).............. Series C Bonds February 1, 1940 February 1, 1931(a)(b)............ Series D Bonds February 1, 1940 June 1, 1931(a)(b)................ Subject Properties February 1, 1940 October 1, 1932(a)(b)............. Series E Bonds February 1, 1940 September 25, 1935(a)(b).......... Series F Bonds February 1, 1940 September 1, 1936(a)(b)........... Series G Bonds February 1, 1940 November 1, 1936(a)(b)............ Subject Properties February 1, 1940 February 1, 1940(a)(b)............ Subject Properties September 1, 1947 December 1, 1940(a)(b)............ Series H Bonds and September 1, 1947 Additional Provisions September 1, 1947(a)(b)(c)........ Series I Bonds, November 15, 1951 Subject Properties and Additional Provisions March 1, 1950(a)(b)(c)............ Series J Bonds November 15, 1951 and Additional Provisions November 15, 1951(a)(b)(c)........ Series K Bonds January 15, 1953 Additional Provisions and Subject Properties January 15, 1953(a)(b)............ Series L Bonds May 1, 1953 May 1, 1953(a).................... Series M Bonds March 15, 1954 and Subject Properties March 15, 1954(a)(c).............. Series N Bonds May 15, 1955 and Subject Properties May 15, 1955(a)(c)................ Series O Bonds August 15, 1957 and Subject Properties August 15, 1957(a)(c)............. Series P Bonds June 1, 1959 Additional Provisions and Subject Properties June 1, 1959(a)(c)................ Series Q Bonds December 1, 1966 and Subject Properties December 1, 1966(a)(c)............ Series R Bonds October 1, 1968 Additional Provisions and Subject Properties |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- October 1, 1968(a)(c)............. Series S Bonds December 1, 1969 and Subject Properties December 1, 1969(a)(c)............ Series T Bonds July 1, 1970 and Subject Properties July 1, 1970(c)................... Series U Bonds December 15, 1970 and Subject Properties December 15, 1970(c).............. Series V and June 15, 1971 Series W Bonds June 15, 1971(c).................. Series X Bonds November 15, 1971 and Subject Properties November 15, 1971(c).............. Series Y Bonds January 15, 1973 and Subject Properties January 15, 1973(c)............... Series Z Bonds May 1, 1974 and Subject Properties May 1, 1974....................... Series AA Bonds October 1, 1974 and Subject Properties October 1, 1974................... Series BB Bonds January 15, 1975 and Subject Properties January 15, 1975.................. Series CC Bonds November 1, 1975 and Subject Properties November 1, 1975.................. Series DDP Nos. 1-9 Bonds December 15, 1975 and Subject Properties December 15, 1975................. Series EE Bonds February 1, 1976 and Subject Properties February 1, 1976.................. Series FFR Nos. 1-13 Bonds June 15, 1976 June 15, 1976..................... Series GGP Nos. 1-7 Bonds July 15, 1976 and Subject Properties July 15, 1976..................... Series HH Bonds February 15, 1977 and Subject Properties February 15, 1977................. Series MMP Bonds and Subject March 1, 1977 Properties March 1, 1977..................... Series IIP Nos. 1-7 Bonds, June 15, 1977 Series JJP Nos. 1-7 Bonds, Series KKP Nos. 1-7 Bonds and Series LLP Nos. 1-7 Bonds June 15, 1977..................... Series FFR No. 14 Bonds and July 1, 1977 Subject Properties July 1, 1977...................... Series NNP Nos. 1-7 Bonds October 1, 1977 and Subject Properties October 1, 1977................... Series GGP Nos. 8-22 Bonds June 1, 1978 and Series OOP Nos. 1-17 Bonds and Subject Properties June 1, 1978...................... Series PP Bonds, October 15, 1978 Series QQP Nos. 1-9 Bonds and Subject Properties October 15, 1978.................. Series RR Bonds March 15, 1979 and Subject Properties March 15, 1979.................... Series SS Bonds July 1, 1979 and Subject Properties |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- July 1, 1979...................... Series IIP Nos. 8-22 Bonds, September 1, 1979 Series NNP Nos. 8-21 Bonds and Series TTP Nos. 1-15 Bonds and Subject Properties September 1, 1979................. Series JJP No. 8 Bonds, September 15, 1979 Series KKP No. 8 Bonds, Series LLP Nos. 8-15 Bonds, Series MMP No. 2 Bonds and Series OOP No. 18 Bonds and Subject Properties September 15, 1979................ Series UU Bonds January 1, 1980 January 1, 1980................... 1980 Series A Bonds and April 1, 1980 Subject Properties April 1, 1980..................... 1980 Series B Bonds August 15, 1980 August 15, 1980................... Series QQP Nos. 10-19 Bonds, August 1, 1981 1980 Series CP Nos. 1-12 Bonds and 1980 Series DP No. 1-11 Bonds and Subject Properties August 1, 1981.................... 1980 Series CP Nos. 13-25 November 1, 1981 Bonds and Subject Properties November 1, 1981.................. 1981 Series AP Nos. 1-12 June 30, 1982 Bonds June 30, 1982..................... Article XIV Reconfirmation August 15, 1982 August 15, 1982................... 1981 Series AP Nos. 13-14 June 1, 1983 and Subject Properties June 1, 1983...................... 1981 Series AP Nos. 15-16 October 1, 1984 and Subject Properties October 1, 1984................... 1984 Series AP and 1984 May 1, 1985 Series BP Bonds and Subject Properties May 1, 1985....................... 1985 Series A Bonds May 15, 1985 May 15, 1985...................... 1985 Series B Bonds and October 15, 1985 Subject Properties October 15, 1985.................. Series KKP No. 9 Bonds and April 1, 1986 Subject Properties |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- April 1, 1986..................... 1986 Series A and Subject August 15, 1986 Properties August 15, 1986................... 1986 Series B and Subject November 30, 1986 Properties November 30, 1986................. 1986 Series C January 31, 1987 January 31, 1987.................. 1987 Series A April 1, 1987 April 1, 1987..................... 1987 Series B and 1987 August 15, 1987 Series C August 15, 1987................... 1987 Series D and 1987 November 30, 1987 Series E and Subject Properties November 30, 1987................. 1987 Series F June 15, 1989 June 15, 1989..................... 1989 Series A July 15, 1989 July 15, 1989..................... Series KKP No. 10 December 1, 1989 December 1, 1989.................. Series KKP No. 11 and 1989 February 15, 1990 Series BP February 15, 1990................. 1990 Series A, 1990 Series November 1, 1990 B, 1990 Series C, 1990 Series D, 1990 Series E and 1990 Series F November 1, 1990.................. Series KKP No. 12 April 1, 1991 April 1, 1991..................... 1991 Series AP May 1, 1991 May 1, 1991....................... 1991 Series BP and 1991 May 15, 1991 Series CP May 15, 1991...................... 1991 Series DP September 1, 1991 September 1, 1991................. 1991 Series EP November 1, 1991 November 1, 1991.................. 1991 Series FP January 15, 1992 January 15, 1992.................. 1992 Series BP February 29, 1992 and April 15, 1992 February 29, 1992................. 1992 Series AP April 15, 1992 April 15, 1992.................... Series KKP No. 13 July 15, 1992 July 15, 1992..................... 1992 Series CP November 30, 1992 July 31, 1992..................... 1992 Series D November 30, 1992 November 30, 1992................. 1992 Series E and 1993 March 15, 1993 Series D December 15, 1992................. Series KKP No. 14 and 1989 March 15, 1992 Series BP No. 2 January 1, 1993................... 1993 Series C April 1, 1993 March 1, 1993..................... 1993 Series E June 30, 1993 March 15, 1993.................... 1993 Series D September 15, 1993 April 1, 1993..................... 1993 Series FP and 1993 September 15, 1993 Series IP April 26, 1993.................... 1993 Series G and Amendment September 15, 1993 of Article II, Section 5 May 31, 1993...................... 1993 Series J September 15, 1993 September 15, 1993................ 1993 Series K March 1, 1994 March 1, 1994..................... 1993 Series AP June 15, 1994 |
(b) See Supplemental Indenture dated as of May 1, 1953 for Secretary of State of Michigan filing information.
(c) See Supplemental Indenture dated as of May 1, 1974 for County of Genesee, Michigan recording and filing information.
Further, pursuant to the terms and provisions of the Original Indenture, a Supplemental Indenture dated as March 1, 1994 providing for the terms of bonds to be issued thereunder of 1994 Series AP has heretofore been entered into between the Company and the Trustee and has been filed in the Office of the Secretary of State of Michigan as a financing statement on March 29, 1994 (Filing No. 41262B), has been filed and recorded in the Office of the Interstate Commerce Commission (Recordation No. 5485-mmmm>) on March 30, 1994, and has been recorded as a real estate mortgage in the offices of the respective Register of Deeds of certain counties in the State of Michigan, as follows: |
LIBER OF MORTGAGES OR COUNTY COUNTY RECORDED RECORDS PAGE ------ -------- --------- ---- Genesee........................ March 30, 1994 3013 800-823 Huron.......................... March 29, 1994 623 481-504 Ingham......................... March 30, 1994 2164 976-999 Lapeer......................... March 29, 1994 850 362-385 Lenawee........................ March 29, 1994 1306 122-145 Livingston..................... March 29, 1994 1812 0662-0685 Macomb......................... March 29, 1994 06275 627-650 Mason.......................... March 29, 1994 438 1607-1630 Monroe......................... March 30, 1994 1371 0909-0932 Oakland........................ March 29, 1994 14565 148-171 Sanilac........................ March 29, 1994 1338 776-799 St. Clair...................... March 29, 1994 454 784-807 Tuscola........................ March 30, 1994 656 497-520 Washtenaw...................... March 29, 1994 2956 926-949 Wayne.......................... March 29, 1994 27268 90-113 |
RECORDING OF All the bonds of Series A which were issued under the CERTIFICATES Original Indenture dated as of October 1, 1924, and of OF PROVISION Series B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, W, Y, FOR PAYMENT. Z, AA, BB, CC, DDP Nos. 1-9, FFR Nos. 1-14, GGP Nos. 1-22, HH, IIP Nos. 1-22, JJP Nos. 1-8, KKP Nos. 1-8, LLP Nos. 1-15, NNP Nos. 1-21, OOP Nos. 1-18, QQP Nos. 1-17, TTP Nos. 1-15, UU, 1980 Series A, 1980 Series CP Nos. 1-25, 1980 Series DP Nos. 1-11, 1981 Series AP Nos. 1-16, 1985 Series A, 1985 Series B, 1987 Series A, PP, RR, EE, MMP and MMP No. 2 which were issued under Supplemental Indentures dated as of, respectively, June 1, 1925, August 1, 1927, February 1, 1931, October 1, 1932, September 25, 1935, September 1, 1936, December 1, 1940, September 1, 1947, November 15, 1951, January 15, 1953, May 1, 1953, March 15, 1954, May 15, 1955, August 15, 1957, December 15, 1970, November 15, 1971, January 15, 1973, May 1, 1974, October 1, 1974, January 15, 1975, November 1, 1975, February 1, 1976, June 15, 1976, July 15, 1976, October 1, 1977, March 1, 1977, July 1, 1979, March 1, 1977, March 1, 1977, March 1, 1977, September 1, 1979, July 1, 1977, July 1, 1979, September 15, 1979, October 1, 1977, June 1, 1978, October 1, 1977, July 1, 1979, January 1, 1980, August 15, 1980, November 1, 1981, May 1, 1985, May 15, 1985, January 31, 1987, June 1, 1978, October 15, 1978, December 15, 1975, February 15, 1977, and September 1, 1979 have matured or have been called for redemption and funds sufficient for such payment or redemption have been irrevocably deposited with the Trustee for that purpose; and Certificates of Provision for Payment have been recorded in the offices of the respective Registers of Deeds of certain counties in the State of Michigan, with respect to all bonds of Series A, B, C, D, E, F, G, H, K, L, M, O, W, BB, CC, DDP Nos. 1 and 2, FFR Nos. 1-3, GGP Nos. 1 and 2, IIP No. 1, JJP No. 1, KKP No. 1, LLP No. 1 and GGP No. 8. PART III. THE TRUSTEE. TERMS AND The Trustee hereby accepts the trust hereby declared and CONDITIONS OF provided, and agrees to perform the same upon the terms and ACCEPTANCE OF conditions in the Original Indenture, as amended to date and TRUST BY TRUSTEE. as supplemented by this Supplemental Indenture, and in this Supplemental Indenture set forth, and upon the following terms and conditions: The Trustee shall not be responsible in any manner whatsoever for and in respect of the validity or sufficiency of this Supplemental Indenture or the due execution hereof by the Company or for or in respect of the recitals contained herein, all of which recitals are made by the Company solely. PART IV. MISCELLANEOUS. CONFIRMATION OF Except to the extent specifically provided therein, no SECTION 318(C) OF provision of this supplemental indenture or any future TRUST INDENTURE supplemental indenture is intended to modify, and the ACT parties do hereby adopt and confirm, the provisions of Section 318(c) of the Trust Indenture Act which amend and supercede provisions of the Indenture in effect prior to November 15, 1990. EXECUTION IN THIS SUPPLEMENTAL INDENTURE MAY BE SIMULTANEOUSLY COUNTERPARTS. EXECUTED IN ANY NUMBER OF COUNTERPARTS, EACH OF WHICH WHEN SO EXECUTED SHALL BE DEEMED TO BE AN ORIGINAL; BUT SUCH COUNTERPARTS SHALL TOGETHER CONSTITUTE BUT ONE AND THE SAME INSTRUMENT. |
TESTIMONIUM. IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY AND BANKERS TRUST COMPANY HAVE CAUSED THESE PRESENTS TO BE SIGNED IN THEIR RESPECTIVE CORPORATE NAMES BY THEIR RESPECTIVE CHAIRMEN OF THE BOARD, PRESIDENTS, VICE PRESIDENTS, ASSISTANT VICE PRESIDENTS, TREASURERS OR ASSISTANT TREASURERS AND IMPRESSED WITH THEIR RESPECTIVE CORPORATE SEALS, ATTESTED BY THEIR RESPECTIVE SECRETARIES OR ASSISTANT SECRETARIES, ALL AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN. |
THE DETROIT EDISON COMPANY, (Corporate Seal) By ______________________ C. C. Arvani Assistant Treasurer EXECUTION. Attest: _____________________________ Ronald J. Gdowski Assistant Corporate Secretary Signed, sealed and delivered by THE DETROIT EDISON COMPANY, in the presence of _____________________________ Jack L. Somers _____________________________ Cathy M. Lewis |
STATE OF MICHIGAN SS.: COUNTY OF WAYNE ACKNOWLEDGMENT On this day of June, 1994, before me, the subscriber, a OF EXECUTION Notary Public within and for the County of Wayne, in the BY COMPANY. State of Michigan, personally appeared C. C. Arvani, to me personally known, who, being by me duly sworn, did say that he does business at 2000 Second Avenue, Detroit, Michigan 48226 and is the Assistant Treasurer of THE DETROIT EDISON COMPANY, one of the corporations described in and which executed the foregoing instrument; that he knows the corporate seal of the said corporation and that the seal affixed to said instrument is the corporate seal of said corporation; and that said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors and that he subscribed his name thereto by like authority; and said C. C. Arvani, acknowledged said instrument to be the free act and deed of said corporation. |
___________________________________ (Notarial Seal) Judith Thun, Notary Public Wayne County, MI My Commission Expires March 4, 1995 |
BANKERS TRUST COMPANY, (Corporate Seal) By ____________________ R.T. Gorman Vice President Attest: _____________________________ Shikha Dombek Assistant Secretary Signed, sealed and delivered by BANKERS TRUST COMPANY, in the presence of _____________________________ Scott Thiel _____________________________ Denise Mitchell |
STATE OF NEW YORK SS.: COUNTY OF NEW YORK |
ACKNOWLEDGMENT On this day of June, 1994, before me, the subscriber, a OF EXECUTION Notary Public within and for the County of New York, in the BY TRUSTEE. State of New York, personally appeared R.T. Gorman, to me personally known, who, being by me duly sworn, did say that his business office is located at Four Albany Street, New York, New York 10015, and he is Vice President of BANKERS TRUST COMPANY, one of the corporations described in and which executed the foregoing instrument; that he knows the corporate seal of the said corporation and that the seal affixed to said instrument is the corporate seal of said corporation; and that said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors and that he subscribed his name thereto by like authority; and said R.T. Gorman acknowledged said instrument to be the free act and deed of said corporation. |
(Notarial Seal) ________________________________ Karen Morena Notary Public, State of New York No. 41-4991083 Qualified in Queens County Commission Expires 1-21-96 |
STATE OF MICHIGAN SS.: COUNTY OF WAYNE |
AFFIDAVIT AS TO C. C. Arvani, being duly sworn, says: that he is the CONSIDERATION Assistant Treasurer of THE DETROIT EDISON COMPANY, the AND GOOD FAITH. Mortgagor named in the foregoing instrument, and that he has knowledge of the facts in regard to the making of said instrument and of the consideration therefor; that the consideration for said instrument was and is actual and adequate, and that the same was given in good faith for the purposes in such instrument set forth. |
________________ C. C. Arvani Sworn to before me this day of June, 1994 _______________________________________ Judith Thun, Notary Public Wayne County, MI My Commission Expires March 4, 1995 (Notarial Seal) This instrument was drafted by Frances B. Rohlman, Esq., 2000 Second Avenue, Detroit, Michigan 48226 |
EXHIBIT 4-219
CONFORMED COPY
THE DETROIT EDISON COMPANY
(2000 Second Avenue,
Detroit, Michigan 48226)
TO
BANKERS TRUST COMPANY
(Four Albany Street,
New York, New York 10015)
AS TRUSTEE
INDENTURE
Dated as of August 15, 1994
SUPPLEMENTAL TO MORTGAGE AND DEED OF TRUST
DATED AS OF OCTOBER 1, 1924
PROVIDING FOR
(A) 1994 SERIES C
AND
(B) RECORDING AND FILING DATA
TABLE OF CONTENTS*
PAGE ---- PARTIES..................................................... 1 RECITALS Original Indenture and Supplemental....................... 1 Issue of Bonds under Indenture............................ 1 Bonds heretofore issued................................... 1 Reason for creation of new series......................... 5 Bonds to be 1994 Series C................................. 5 Further Assurance......................................... 5 Authorization of Supplemental Indenture................... 5 Consideration for Supplemental Indenture.................. 5 PART I. CREATION OF THREE HUNDRED FIFTEENTH SERIES OF BONDS GENERAL AND REFUNDING MORTGAGE BONDS, 1994 SERIES C Sec. 1. Certain terms of Bonds of 1994 Series C............. 6 Sec. 2. Redemption of Bonds of 1994 Series C................ 7 Sec. 3.Redemption of Bonds of 1994 Series C in event of acceleration of Secured Notes 1994C................................. 8 Sec. 4. Form of Bonds of 1994 Series C...................... 8 Form of Trustee's Certificate....................... 13 PART II. RECORDING AND FILING DATA Recording and filing of Original Indenture.................. 14 Recording and filing of Supplemental Indentures............. 14 Recording of Certificates of Provision for Payment.......... 19 PART III. THE TRUSTEE Terms and conditions of acceptance of trust by Trustee...... 19 PART IV. MISCELLANEOUS Confirmation of Section 318(c) of Trust Indenture Act....... 19 Execution in Counterparts................................... 19 Testimonium................................................. 20 Execution................................................... 20 Acknowledgment of execution by Company...................... 20 Acknowledgment of execution by Trustee...................... 21 Affidavit as to consideration and good faith................ 22 |
PARTIES. SUPPLEMENTAL INDENTURE, dated as of the fifteenth day of August, in the year one thousand nine hundred and ninety-four, between THE DETROIT EDISON COMPANY, a corporation organized and existing under the laws of the State of Michigan and a transmitting utility (hereinafter called the "Company"), party of the first part, and BANKERS TRUST COMPANY, a corporation organized and existing under the laws of the State of New York, having its corporate trust office at Four Albany Street, in the Borough of Manhattan, The City and State of New York, as Trustee under the Mortgage and Deed of Trust hereinafter mentioned (hereinafter called the "Trustee"), party of the second part. ORIGINAL WHEREAS, the Company has heretofore executed and delivered INDENTURE AND its Mortgage and Deed of Trust (hereinafter referred to as SUPPLEMENTALS. the "Original Indenture"), dated as of October 1, 1924, to the Trustee, for the security of all bonds of the Company outstanding thereunder, and pursuant to the terms and provisions of the Original Indenture, indentures dated as of, respectively, June 1, 1925, August 1, 1927, February 1, 1931, June 1, 1931, October 1, 1932, September 25, 1935, September 1, 1936, November 1, 1936, February 1, 1940, December 1, 1940, September 1, 1947, March 1, 1950, November 15, 1951, January 15, 1953, May 1, 1953, March 15, 1954, May 15, 1955, August 15, 1957, June 1, 1959, December 1, 1966, October 1, 1968, December 1, 1969, July 1, 1970, December 15, 1970, June 15, 1971, November 15, 1971, January 15, 1973, May 1, 1974, October 1, 1974, January 15, 1975, November 1, 1975, December 15, 1975, February 1, 1976, June 15, 1976, July 15, 1976, February 15, 1977, March 1, 1977, June 15, 1977, July 1, 1977, October 1, 1977, June 1, 1978, October 15, 1978, March 15, 1979, July 1, 1979, September 1, 1979, September 15, 1979, January 1, 1980, April 1, 1980, August 15, 1980, August 1, 1981, November 1, 1981, June 30, 1982, August 15, 1982, June 1, 1983, October 1, 1984, May 1, 1985, May 15, 1985, October 15, 1985, April 1, 1986, August 15, 1986, November 30, 1986, January 31, 1987, April 1, 1987, August 15, 1987, November 30, 1987, June 15, 1989, July 15, 1989, December 1, 1989, February 15, 1990, November 1, 1990, April 1, 1991, May 1, 1991, May 15, 1991, September 1, 1991, November 1, 1991, January 15, 1992, February 29, 1992, April 15, 1992, July 15, 1992, July 31, 1992, November 30, 1992, December 15, 1992, January 1, 1993, March 1, 1993, March 15, 1993, April 1, 1993, April 26, 1993, May 31, 1993, June 30, 1993, June 30, 1993, September 15, 1993, March 1, 1994 and June 15, 1994 supplemental to the Original Indenture, have heretofore been entered into between the Company and the Trustee (the Original Indenture and all indentures supplemental thereto together being hereinafter sometimes referred to as the "Indenture"); and ISSUE OF WHEREAS, the Indenture provides that said bonds shall be BONDS UNDER issuable in one or more series, and makes provision that the INDENTURE. rates of interest and dates for the payment thereof, the date of maturity or dates of maturity, if of serial maturity, the terms and rates of optional redemption (if redeemable), the forms of registered bonds without coupons of any series and any other provisions and agreements in respect thereof, in the Indenture provided and permitted, as the Board of Directors may determine, may be expressed in a supplemental indenture to be made by the Company to the Trustee thereunder; and BONDS HERETOFORE WHEREAS, bonds in the principal amount of Eight billion ISSUED. ninety-eight million five hundred seventy-seven thousand dollars ($8,098,577,000) have heretofore been issued under the indenture as follows, viz: |
(1) Bonds of Series A -- Principal Amount $26,016,000, (2) Bonds of Series B -- Principal Amount $23,000,000, (3) Bonds of Series C -- Principal Amount $20,000,000, (4) Bonds of Series D -- Principal Amount $50,000,000, (5) Bonds of Series E -- Principal Amount $15,000,000, (6) Bonds of Series F -- Principal Amount $49,000,000, (7) Bonds of Series G -- Principal Amount $35,000,000, (8) Bonds of Series H -- Principal Amount $50,000,000, (9) Bonds of Series I -- Principal Amount $60,000,000, (10) Bonds of Series J -- Principal Amount $35,000,000, (11) Bonds of Series K -- Principal Amount $40,000,000, |
(12) Bonds of Series L -- Principal Amount $24,000,000, (13) Bonds of Series M -- Principal Amount $40,000,000, (14) Bonds of Series N -- Principal Amount $40,000,000, (15) Bonds of Series O -- Principal Amount $60,000,000, (16) Bonds of Series P -- Principal Amount $70,000,000, (17) Bonds of Series Q -- Principal Amount $40,000,000, (18) Bonds of Series W -- Principal Amount $50,000,000, (19) Bonds of Series AA -- Principal Amount $100,000,000, (20) Bonds of Series BB -- Principal Amount $50,000,000, (21) Bonds of Series CC -- Principal Amount $50,000,000, (22) Bonds of Series UU -- Principal Amount $100,000,000, (23-31) Bonds of Series DDP Nos. 1-9 -- Principal Amount $14,305,000, (32-45) Bonds of Series FFR Nos. 1-14 -- Principal Amount $45,600,000, (46-67) Bonds of Series GGP Nos. 1-22 -- Principal Amount $42,300,000, (68) Bonds of Series HH -- Principal Amount $50,000,000, (69-90) Bonds of Series IIP Nos. 1-22 -- Principal Amount $3,750,000, (91-98) Bonds of Series JJP Nos. 1-8 -- Principal Amount $6,850,000, (99-106) Bonds of Series KKP Nos. 1-8 -- Principal Amount $14,890,000, (107-121) Bonds of Series LLP Nos. 1-15 -- Principal Amount $8,850,000, (122-142) Bonds of Series NNP Nos. 1-21 -- Principal Amount $47,950,000, (143-160) Bonds of Series OOP Nos. 1-18 -- Principal Amount $18,880,000, (161-179) Bonds of Series QQP Nos. 1-19 -- Principal Amount $13,650,000, (180-194) Bonds of Series TTP Nos. 1-15 -- Principal Amount $3,800,000, (195) Bonds of 1980 Series A -- Principal Amount $50,000,000, (196-220) Bonds of 1980 Series CP Nos. 1-25 -- Principal Amount $35,000,000, (221-231) Bonds of 1980 Series DP Nos. 1-11 -- Principal Amount $10,750,000, (232-247) Bonds of 1981 Series AP Nos. 1-16 -- Principal Amount $124,000,000, (248) Bonds of 1985 Series A -- Principal Amount $35,000,000, (249) Bonds of 1985 Series B -- Principal Amount $50,000,000, (250) Bonds of Series PP -- Principal Amount $70,000,000, (251) Bonds of Series RR -- Principal Amount $70,000,000, (252) Bonds of Series EE -- Principal Amount $50,000,000, (253-254) Bonds of Series MMP and MMP No. 2 -- Principal Amount $5,430,000, (255) Bonds of Series T -- Principal Amount $75,000,000, (256) Bonds of Series U -- Principal Amount $75,000,000, (257) Bonds of 1986 Series B -- Principal Amount $100,000,000, (258) Bonds of 1987 Series D -- Principal Amount $250,000,000, (259) Bonds of 1987 Series E -- Principal Amount $150,000,000, (260) Bonds of 1987 Series C -- Principal Amount $225,000,000, (261) Bonds of Series V -- Principal Amount $100,000,000, (262) Bonds of Series SS -- Principal Amount $150,000,000, (263) Bonds of 1980 Series B -- Principal Amount $100,000,000, (264) Bonds of 1986 Series C -- Principal Amount $200,000,000, (265) Bonds of 1986 Series A -- Principal Amount $200,000,000, (266) Bonds of 1987 Series B -- Principal Amount $175,000,000, (267) Bonds of Series X -- Principal Amount $100,000,000, (268) Bonds of 1987 Series F -- Principal Amount $200,000,000, (269) Bonds of 1987 Series A -- Principal Amount $300,000,000, (270) Bonds of Series Y -- Principal Amount $60,000,000, (271) Bonds of Series Z -- Principal Amount $100,000,000, (272) Bonds of 1989 Series A -- Principal Amount $300,000,000, |
all of which have either been retired and cancelled, or no longer represent obligations of the Company, having been called for redemption and funds necessary to effect the payment, redemption and retirement thereof having been deposited with the Trustee as a special trust fund to be applied for such purpose; |
(273) Bonds of Series R in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof; (274) Bonds of Series S in the principal amount of One hundred fifty million dollars ($150,000,000), all of which are outstanding at the date hereof; (275-280) Bonds of Series KKP Nos. 9-14 in the principal amount of One hundred ninety-three million two hundred ninety thousand dollars ($193,290,000), all of which are outstanding at the date hereof; (281) Bonds of 1984 Series AP in the principal amount of Two million four hundred thousand dollars ($2,400,000), all of which are outstanding at the date hereof; (282) Bonds of 1984 Series BP in the principal amount of Seven million seven hundred fifty thousand dollars ($7,750,000), all of which are outstanding at the date hereof; (283) Bonds of 1989 Series BP in the principal amount of Sixty-six million five hundred sixty-five thousand dollars ($66,565,000), all of which are outstanding at the date hereof; (284) Bonds of 1990 Series A in the principal amount of One hundred ninety-four million six hundred forty-nine thousand dollars ($194,649,000) of which Thirty-one million three hundred ninety-five thousand dollars ($31,395,000) principal amount have heretofore been retired and One hundred sixty-three million two hundred fifty-four thousand dollars ($163,254,000) principal amount are outstanding at the date hereof; (285) Bonds of 1990 Series B in the principal amount of Two hundred fifty-six million nine hundred thirty-two thousand dollars ($256,932,000) of which Forty-seven million five hundred eighty thousand dollars ($47,580,000) principal amount have heretofore been retired and Two hundred nine million three hundred fifty-two thousand dollars ($209,352,000) principal amount are outstanding at the date hereof; (286) Bonds of 1990 Series C in the principal amount of Eighty-five million four hundred seventy-five thousand dollars ($85,475,000) of which Seventeen million ninety- five thousand dollars ($17,095,000) principal amount have heretofore been retired and Sixty-eight million three hundred eighty thousand dollars ($68,380,000) principal amount are outstanding at the date hereof; (287) Bonds of 1991 Series AP in the principal amount of Thirty-two million three hundred seventy-five thousand dollars ($32,375,000), all of which are outstanding at the date hereof; (288) Bonds of 1991 Series BP in the principal amount of Twenty-five million nine hundred ten thousand dollars ($25,910,000), all of which are outstanding at the date hereof; (289) Bonds of 1991 Series CP in the principal amount of Thirty-two million eight hundred thousand dollars ($32,800,000), all of which are outstanding at the date hereof; (290) Bonds of 1991 Series DP in the principal amount of Thirty-seven million six hundred thousand dollars ($37,600,000), all of which are outstanding at the date hereof; (291) Bonds of 1991 Series EP in the principal amount of Forty-one million four hundred eighty thousand dollars ($41,480,000), all of which are outstanding at the date hereof; (292) Bonds of 1991 Series FP in the principal amount of Ninety-eight million three hundred seventy-five thousand dollars ($98,375,000), all of which are outstanding at the date hereof; (293) Bonds of 1992 Series BP in the principal amount of Twenty million nine hundred seventy-five thousand dollars ($20,975,000), all of which are outstanding at the date hereof; |
(294) Bonds of 1992 Series AP in the principal amount of Sixty-six million dollars ($66,000,000), all of which are outstanding at the date hereof; (295) Bonds of 1992 Series D in the principal amount of Three hundred million dollars ($300,000,000), all of which are outstanding at the date hereof; (296) Bonds of 1992 Series CP in the principal amount of Thirty-five million dollars ($35,000,000), all of which are outstanding at the date hereof; (297) Bonds of 1992 Series E in the principal amount of Fifty million dollars ($50,000,000), all of which are outstanding at the date hereof; (298) Bonds of 1989 Series BP No. 2 in the principal amount of Thirty-six million dollars ($36,000,000), all of which are outstanding at the date hereof; (299) Bonds of 1993 Series C in the principal amount of Two hundred twenty-five million dollars ($225,000,000), all of which are outstanding at the date hereof; (300) Bonds of 1993 Series B in the principal amount of Fifty million dollars ($50,000,000), all of which are outstanding at the date hereof; (301) Bonds of 1993 Series E in the principal amount of Four hundred million dollars ($400,000,000), all of which are outstanding at the date hereof; (302) Bonds of 1993 Series D in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof; (303) Bonds of 1993 Series FP in the principal amount of Five million six hundred eighty-five thousand dollars ($5,685,000), all of which are outstanding at the date hereof; (304) Bonds of 1993 Series G in the principal amount of Two hundred twenty-five million dollars ($225,000,000), all of which are outstanding at the date hereof; (305) Bonds of 1993 Series J in the principal amount of Three hundred million dollars ($300,000,000), all of which are outstanding at the date hereof; (306) Bonds of 1993 Series IP in the principal amount of Five million eight hundred twenty-five thousand dollars ($5,825,000), all of which are outstanding at the date hereof; (307) Bonds of 1993 Series AP in the principal amount of Sixty-five million dollars ($65,000,000), all of which are outstanding at the date hereof; (308) Bonds of 1993 Series H in the principal amount of Fifty million dollars ($50,000,000), all of which are outstanding at the date hereof; (309) Bonds of 1993 Series K in the principal amount of One hundred sixty million dollars ($160,000,000), all of which are outstanding at the date hereof; (310) Bonds of 1994 Series AP in the principal amount of Seven million five hundred thirty-five thousand dollars ($7,535,000), all of which are outstanding at the date hereof; (311) Bonds of 1994 Series BP in the principal amount of Twelve million nine hundred thirty-five thousand dollars ($12,935,000), all of which are outstanding at the date hereof; and, accordingly, of the bonds so issued, three billion three hundred forty-four million four hundred eighty-six thousand dollars ($3,344,486,000) principal amount are out- standing at the date hereof; and |
REASON FOR WHEREAS, the Company desires to provide funds to refund or CREATION OF replace funds utilized by the Company for the purpose of NEW SERIES. meeting (or replacing corporate funds utilized for such purposes) debt refundings (including open market purchases of such securities) and for this purpose intends to issue and sell a new series of its debt securities entitled "Remarketed Secured Notes 1994 Series C Due 2034" (hereinafter referred to as "Secured Notes, 1994C"); and WHEREAS, the Secured Notes, 1994C, will be issued from time to time pursuant to a Collateral Trust Indenture, dated as of June 30, 1993, as amended, and as further amended by a Third Supplemental Indenture, dated as of August 15, 1994, between the Company and Bankers Trust Company, as Note Trustee (the Collateral Trust Indenture, as amended, and as further amended by the Third Supplemental Note Indenture ("Third Supplemental Note Indenture") being hereinafter referred to as the "Note Indenture"); and WHEREAS, pursuant to the Note Indenture the Company has agreed to issue from time to time its General and Refunding Mortgage Bonds under the Indenture in order further to secure its obligations under the Note Indenture and with respect to the Secured Notes, 1994C; and WHEREAS, for such purposes the Company desires to issue a new series of bonds to be issued under the Indenture and to be authenticated and delivered pursuant to Section 8 of Article III of the Indenture; and BONDS TO BE WHEREAS, the Company desires by this Supplemental 1994 SERIES C. Indenture to create a new series of bonds, to be designated "General and Refunding Mortgage Bonds, 1994 Series C"; and FURTHER WHEREAS, the Original Indenture, by its terms, includes in ASSURANCE. the property subject to the lien thereof all of the estates and properties, real, personal and mixed, rights, privileges and franchises of every nature and kind and wheresoever situate, then or thereafter owned or possessed by or belonging to the Company or to which it was then or at any time thereafter might be entitled in law or in equity (saving and excepting, however, the property therein specifically excepted or released from the lien thereof), and the Company therein covenanted that it would, upon reasonable request, execute and deliver such further instruments as may be necessary or proper for the better assuring and confirming unto the Trustee all or any part of the trust estate, whether then or thereafter owned or acquired by the Company (saving and excepting, however, property specifically excepted or released from the lien thereof); and AUTHORIZATION WHEREAS, the Company in the exercise of the powers and OF SUPPLEMENTAL authority conferred upon and reserved to it under and by INDENTURE. virtue of the provisions of the Indenture, and pursuant to resolutions of its Board of Directors has duly resolved and determined to make, execute and deliver to the Trustee a supplemental indenture in the form hereof for the purposes herein provided; and WHEREAS, all conditions and requirements necessary to make this Supplemental Indenture a valid and legally binding instrument in accordance with its terms have been done, performed and fulfilled, and the execution and delivery hereof have been in all respects duly authorized; CONSIDERATION NOW, THEREFORE, THIS INDENTURE WITNESSETH: That The FOR SUPPLEMENTAL Detroit Edison Company, in consideration of the premises and INDENTURE. of the covenants contained in the Indenture and of the sum of One Dollar ($1.00) and other good and valuable consideration to it duly paid by the Trustee at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, hereby covenants and agrees to and with the Trustee and its successors in the trusts under the Original Indenture and in said indentures supplemental thereto as follows: |
PART I. CREATION OF THREE HUNDRED FIFTEENTH SERIES OF BONDS. GENERAL AND REFUNDING MORTGAGE BONDS, 1994 SERIES C CERTAIN TERMS SECTION 1. The Company hereby creates the Three hundred OF BONDS OF fifteenth series of bonds to be issued under and secured by 1994 SERIES C. the Original Indenture as amended to date and as further amended by this Supplemental Indenture, to be designated, and to be distinguished from the bonds of all other series, by the title "General and Refunding Mortgage Bonds, 1994 Series C" (elsewhere herein referred to as the "bonds of 1994 Series C"). The aggregate principal amount of bonds of 1994 Series C, which shall be issued from time to time, shall be limited to Two hundred million dollars ($200,000,000), except as provided in Sections 7 and 13 of Article II of the Original Indenture with respect to exchanges and replacements of bonds. Pursuant to Section 401(b) of the Note Indenture, each bond of 1994 Series C is to be irrevocably assigned to, and registered in the name of, Bankers Trust Company, as trustee, or a successor trustee (said trustee or any successor trustee being hereinafter referred to as the "Note Indenture Trustee"), under the Note Indenture between the Note Indenture Trustee and the Company, to secure payment of the Company's Secured Notes, 1994C. The bonds of 1994 Series C shall be issued from time to time as registered bonds without coupons in denominations of a multiple of $100,000 in such principal amount as may be set forth in a Certificate filed by the Company with the Trustee. The bonds of 1994 Series C shall be issued in the aggregate principal amount of $200,000,000, shall mature on August 15, 2034 and shall bear interest at such rate or rates not in excess of a maximum rate of 15% per annum (unless such maximum rate shall be increased by resolution of the Company's Board of Directors and set forth in an additional Supplemental Indenture between the Company and the Trustee) or such lesser amount as shall be provided for in the Third Supplemental Note Indenture on such date or dates provided for in the Third Supplemental Note Indenture and thereafter until the Company's obligation with respect to the payment of said principal shall have been discharged as provided in the Indenture. The bonds of 1994 Series C shall be payable as to principal, premium, if any, and interest as provided in the Indenture, but only to the extent and in the manner herein provided. The bonds of 1994 Series C shall be payable, both as to principal and interest, at the office or agency of the Company in the Borough of Manhattan, The City and State of New York, in any coin or currency of the United States of America which at the time of payment is legal tender for public and private debts. Except as provided herein, each bond of 1994 Series C shall be dated the date of its authentication and interest shall be payable on the principal represented thereby as provided in the Third Supplemental Note Indenture. The bonds of 1994 Series C in definitive form shall be, at the election of the Company, fully engraved or shall be lithographed or printed in authorized denominations as aforesaid and numbered 1 and upwards (with such further designation as may be appropriate and desirable to indicate by such designation the form, series and denominations of bonds of 1994 Series C). Until bonds of 1994 Series C in definitive form are ready for delivery, the Company may execute, and upon its request in writing the Trustee shall authenticate and deliver in lieu thereof, bonds of 1994 Series C in temporary form, as provided in Section 10 of Article II of the Indenture. Temporary bonds of 1994 Series C, if any, may be printed and may be issued in authorized denominations in substantially the form of definitive bonds of 1994 Series C, but with such omissions, insertions and variations as may be appropriate for temporary bonds, all as may be determined by the Company. |
Bonds of 1994 Series C shall not be assignable or transferable except as may be set forth under Section 405 of the Note Indenture, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under the Note Indenture. Any such transfer shall be made upon surrender thereof for cancellation at the office or agency of the Company in the Borough of Manhattan, The City and State of New York, together with a written instrument of transfer (if so required by the Company or by the Trustee) in form approved by the Company duly executed by the holder or by its duly authorized attorney. Bonds of 1994 Series C shall in the same manner be exchangeable for a like aggregate principal amount of bonds of 1994 Series C upon the terms and conditions specified herein and in Section 7 of Article II of the Indenture. The Company waives its rights under Section 7 of Article II of the Indenture not to make exchanges or transfers of bonds of 1994 Series C, during any period of ten days next preceding any redemption date for such bonds. Bonds of 1994 Series C, in definitive and temporary form, may bear such legends as may be necessary to comply with any law or with any rules or regulations made pursuant thereto or as may be specified in the Note Indenture. Upon payment of the principal or premium, if any, or interest on the Secured Notes, 1994C, whether at maturity or prior to maturity by redemption or otherwise, or upon provision for the payment thereof having been made in accordance with Article V of the Note Indenture, bonds of 1994 Series C in a principal amount equal to the principal amount of such Secured Notes, 1994C, shall, to the extent of such payment of principal, premium or interest, be deemed fully paid and the obligation of the Company thereunder to make such payment shall forthwith cease and be discharged, and, in the case of the payment of principal and premium, if any, such bonds shall be surrendered for cancellation or presented for appropriate notation to the Trustee. REDEMPTION SECTION 2. Bonds of 1994 Series C shall be redeemed on the OF BONDS OF respective dates and in the respective principal amounts 1994 SERIES C. which correspond to the redemption dates for, and the principal amounts to be redeemed of, the Secured Notes, 1994C. In the event the Company elects to redeem any Secured Notes, 1994C prior to maturity in accordance with the provisions of the Note Indenture, the Company shall on the same date redeem bonds of 1994 Series C in principal amounts and at redemption prices corresponding to the Secured Notes, 1994C so redeemed. The Company agrees to give the Trustee notice of any such redemption of bonds of 1994 Series C on the same date as it gives notice of redemption of Secured Notes, 1994C to the Note Indenture Trustee. |
REDEMPTION SECTION 3. In the event of an Event of Default under the OF BONDS OF 1994 SERIES Note Indenture and the acceleration of all Secured Notes, C IN EVENT OF 1994C, the bonds of 1994 Series C shall be redeemable in ACCELERATION whole upon receipt by the Trustee of a written demand OF SECURED NOTES, (hereinafter called a "Redemption Demand") from the Note 1994C. Indenture Trustee stating that there has occurred under the Note Indenture both an Event of Default and a declaration of acceleration of payment of principal, accrued interest and premium, if any, on the Secured Notes, 1994C, specifying the last date to which interest on the Secured Notes, 1994C has been paid (such date being hereinafter referred to as the "Initial Interest Accrual Date") and demanding redemption of the bonds of said series. The Trustee shall, within five days after receiving such Redemption Demand, mail a copy thereof to the Company marked to indicate the date of its receipt by the Trustee. Promptly upon receipt by the Company of such copy of a Redemption Demand, the Company shall fix a date on which it will redeem the bonds of said series so demanded to be redeemed (hereinafter called the "Demand Redemption Date"). Notice of the date fixed as the Demand Redemption Date shall be mailed by the Company to the Trustee at least ten days prior to such Demand Redemption Date. The date to be fixed by the Company as and for the Demand Redemption Date may be any date up to and including the earlier of (x) the 60th day after receipt by the Trustee of the Redemption Demand or (y) the maturity date of such bonds first occurring following the 20th day after the receipt by the Trustee of the Redemption Demand; provided, however, that if the Trustee shall not have received such notice fixing the Demand Redemption Date on or before the 10th day preceding the earlier of such dates, the Demand Redemption Date shall be deemed to be the earlier of such dates. The Trustee shall mail notice of the Demand Redemption Date (such notice being hereinafter called the "Demand Redemption Notice") to the Note Indenture Trustee not more than ten nor less than five days prior to the Demand Redemption Date. Each bond of 1994 Series C shall be redeemed by the Company on the Demand Redemption Date therefore upon surrender thereof by the Note Indenture Trustee to the Trustee at a redemption price equal to the principal amount thereof plus accrued interest thereon at the rate specified for such bond from the Initial Interest Accrual Date to the Demand Redemption Date plus an amount equal to the aggregate premium, if any, due and payable on such Demand Redemption Date on all Secured Notes, 1994C; provided, however, that in the event of a receipt by the Trustee of a notice that, pursuant to Section 613 of the Note Indenture, the Note Indenture Trustee has terminated proceedings to enforce any right under the Note Indenture, then any Redemption Demand shall thereby be rescinded by the Note Indenture Trustee, and no Demand Redemption Notice shall be given, or, if already given, shall be automatically annulled; but no such rescission or annulment shall extend to or affect any subsequent default or impair any right consequent thereon. Anything herein contained to the contrary notwithstanding, the Trustee is not authorized to take any action pursuant to a Redemption Demand and such Redemption Demand shall be of no force or effect, unless it is executed in the name of the Note Indenture Trustee by its President or one of its Vice Presidents. FORM OF BONDS SECTION 4. The bonds of 1994 Series C and the form of OF 1994 SERIES C. Trustee's Certificate to be endorsed on such bonds shall be substantially in the following forms, respectively: |
[FORM OF FACE OF BOND] THE DETROIT EDISON COMPANY GENERAL AND REFUNDING MORTGAGE BOND 1994 SERIES C, DUE AUGUST 15, 2034 Notwithstanding any provisions hereof or in the Indenture, this bond is not assignable or transferable except as may be required to effect a transfer to any successor trustee under the Collateral Trust Indenture, dated as of June 30, 1993, as amended, and as further amended as of August 15, 1994, between The Detroit Edison Company and Bankers Trust Company, as Note Trustee, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under said Trust Indenture. $......... No.......... THE DETROIT EDISON COMPANY (hereinafter called the "Company"), a corporation of the State of Michigan, for value received, hereby promises to pay to Bankers Trust Company, as Note Trustee, or registered assigns, at the Company's office or agency in the Borough of Manhattan, The City and State of New York, the principal sum of dollars ($ ) in lawful money of the United States of America on the date specified in the title hereof and interest thereon on such date or dates provided for in a Collateral Trust Indenture, dated as of June 30, 1993, as amended (hereinafter called "Note Trust Indenture") and as further amended by the Third Supplemental Note Indenture dated as of August 15, 1994 (hereinafter called the "Third Supplemental Note Trust Indenture"), between the Company and Bankers Trust Company, as Note Trustee (hereinafter called the "Note Indenture Trustee"). This bond of 1994 Series C shall bear interest at a maximum rate of 15% per annum (unless such maximum rate shall be increased by resolution of the Company's Board of Directors and set forth in an additional Supplemental Indenture between the Company and the Trustee) or such lessor amount as shall be provided in the Third Supplemental Note Trust Indenture on such date or dates provided for in the Third Supplemental Note Trust Indenture and thereafter until the Company's obligation with respect to payment of said principal shall have been discharged, all as provided, to the extent and in the manner specified in the Indenture hereinafter mentioned on the reverse hereof and in the supplemental indenture pursuant to which this bond has been issued. Pursuant to Section 401(b) of the Note Trust Indenture, this bond was originally issued to the Note Indenture Trustee so as to secure the payment of the Company's Remarketed Secured Notes, 1994 Series C Due 2034 (hereinafter referred to as "Secured Notes, 1994C"). Payments of principal of, or premium, if any, or interest on, the Secured Notes, 1994C shall constitute like payments on this bond as further provided herein and in the supplemental indenture pursuant to which this bond has been issued. Reference is hereby made to such further provisions of this bond set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though set forth at this place. This bond shall not be valid or become obligatory for any purpose until Bankers Trust Company, the Trustee under the Indenture hereinafter mentioned on the reverse hereof, or its successor thereunder, shall have signed the form of certificate endorsed hereon. |
IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY has caused this instrument to be executed by its Chairman of the Board and its Vice President and Treasurer, with their manual or facsimile signatures, and its corporate seal, or a facsimile thereof, to be impressed or imprinted hereon and the same to be attested by its Corporate Secretary or an Assistant Corporate Secretary with his or her manual or facsimile signature. |
Dated: THE DETROIT EDISON COMPANY By ............................ Chairman of the Board ............................ Vice President Attest: and Treasurer ............................ Assistant Corporate Secretary |
[FORM OF REVERSE OF BOND] This bond is one of an authorized issue of bonds of the Company, unlimited as to amount except as provided in the Indenture hereinafter mentioned or any indentures supplemental thereto, and is one of a series of General and Refunding Mortgage Bonds known as 1994 Series C, limited to an aggregate principal amount of $200,000,000, except as otherwise provided in the Indenture hereinafter mentioned. This bond and all other bonds of said series are issued and to be issued under, and are all equally and ratably secured (except insofar as any sinking, amortization, improvement or analogous fund, established in accordance with the provisions of the Indenture hereinafter mentioned, may afford additional security for the bonds of any particular series and except as provided in Section 3 of Article VI of said Indenture) by an Indenture, dated as of October 1, 1924, duly executed by the Company to Bankers Trust Company, a corporation of the State of New York, as Trustee, to which Indenture and all indentures supplemental thereto (including the Supplemental Indenture dated as of August 15, 1994) reference is hereby made for a description of the properties and franchises mortgaged and conveyed, the nature and extent of the security, the terms and conditions upon which the bonds are issued and under which additional bonds may be issued, and the rights of the holders of the bonds and of the Trustee in respect of such security (which Indenture and all indentures supplemental thereto, including the Supplemental Indenture dated as of August 15, 1994, are hereinafter collectively called the "Indenture"). As provided in the Indenture, said bonds may be for various principal sums and are issuable in series, which may mature at different times, may bear interest at different rates and may otherwise vary as in said Indenture provided. With the consent of the Company and to the extent permitted by and as provided in the Indenture, the rights and obligations of the Company and of the holders of the bonds and the terms and provisions of the Indenture, or of any indenture supplemental thereto, may be modified or altered in certain respects by affirmative vote of at least eighty-five percent (85%) in amount of the bonds then outstanding, and, if the rights of one or more, but less than all, series of bonds then outstanding are to be affected by the action proposed to be taken, then also by affirmative vote of at least eighty-five percent (85%) in amount of the series of bonds so to be affected (excluding in every instance bonds disqualified from voting by reason of the Company's interest therein as specified in the Indenture); provided, however, that, without the consent of the holder hereof, no such modification or alteration shall, among other things, affect the terms of payment of the principal of or the interest on this bond, which in those respects is unconditional. This bond is redeemable upon the terms and conditions set forth in the Indenture, including provision for redemption upon demand of the Note Indenture Trustee following the occurrence of an Event of Default under the Note Trust Indenture and the acceleration of the principal of the Secured Notes, 1994C. Under the Indenture, funds may be deposited with the Trustee (which shall have become available for payment), in advance of the redemption date of any of the bonds of 1994 Series C (or portions thereof), in trust for the redemption of such bonds (or portions thereof) and the interest due or to become due thereon, and thereupon all obligations of the Company in respect of such bonds (or portions thereof) so to be redeemed and such interest shall cease and be discharged, and the holders thereof shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or with respect to such bonds (or portions thereof) and interest. In case an event of default, as defined in the Indenture, shall occur, the principal of all the bonds issued thereunder may become or be declared due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture. |
Upon payment of the principal of, or premium, if any, or interest on, the Secured Notes, 1994C provided for in the Third Supplemental Trust Indenture, whether at maturity or prior to maturity by redemption or otherwise or upon provision for the payment thereof having been made in accordance with Article IV of the Note Trust Indenture, bonds of 1994 Series C in a principal amount equal to the principal amount of such Secured Notes, 1994C and having both a corresponding maturity date and interest rate shall, to the extent of such payment of principal, premium or interest, be deemed fully paid and the obligation of the Company thereunder to make such payment shall forthwith cease and be discharged, and, in the case of the payment of principal and premium, if any, such bonds of said series shall be surrendered for cancellation or presented for appropriate notation to the Trustee. This bond is not assignable or transferable except as set forth under Section 405 of the Note Trust Indenture, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under the Note Trust Indenture. Any such transfer shall be made by the registered holder hereof, in person or by his attorney duly authorized in writing, on the books of the Company kept at its office or agency in the Borough of Manhattan, The City and State of New York, upon surrender and cancellation of this bond, and thereupon, a new registered bond of the same series of authorized denominations for a like aggregate principal amount will be issued to the transferee in exchange therefor, and this bond with others in like form may in like manner be exchanged for one or more new bonds of the same series of other authorized denominations, but of the same aggregate principal amount, all as provided and upon the terms and conditions set forth in the Indenture, and upon payment, in any event, of the charges prescribed in the Indenture. No recourse shall be had for the payment of the principal of or the interest on this bond, or for any claim based hereon or otherwise in respect hereof or of the Indenture, or of any indenture supplemental thereto, against any incorporator, or against any past, present or future stockholder, director or officer, as such, of the Company, or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether for amounts unpaid on stock subscriptions or by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise howsoever; all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released by every holder or owner hereof, as more fully provided in the Indenture. |
[FORM OF TRUSTEE'S CERTIFICATE] FORM OF This bond is one of the bonds, of the series designated TRUSTEE'S therein, described in the within-mentioned Indenture. CERTIFICATE. |
BANKERS TRUST COMPANY,
as Trustee
By ...........................
Authorized Officer
PART II. RECORDING AND FILING DATA RECORDING AND The Original Indenture and indentures supplemental FILING OF ORIGINAL thereto have been recorded and/or filed and Certificates of INDENTURE. Provision for Payment have been recorded as hereinafter set forth. The Original Indenture has been recorded as a real estate mortgage and filed as a chattel mortgage in the offices of the respective Registers of Deeds of certain counties in the State of Michigan as set forth in the Supplemental Indenture dated as of September 1, 1947, has been recorded as a real estate mortgage in the office of the Register of Deeds of Genesee County, Michigan as set forth in the Supplemental Indenture dated as of May 1, 1974, has been filed in the Office of the Secretary of State of Michigan on November 16, 1951 and has been filed and recorded in the office of the Interstate Commerce Commission on December 8, 1969. RECORDING AND Pursuant to the terms and provisions of the Original FILING OF Indenture, indentures supplemental thereto heretofore SUPPLEMENTAL entered into have been recorded as a real estate mortgage INDENTURES. and/or filed as a chattel mortgage or as a financing statement in the offices of the respective Registers of Deeds of certain counties in the State of Michigan, the Office of the Secretary of State of Michigan and the Office of the Interstate Commerce Commission, as set forth in supplemental indentures as follows: |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- June 1, 1925(a)(b)................ Series B Bonds February 1, 1940 August 1, 1927(a)(b).............. Series C Bonds February 1, 1940 February 1, 1931(a)(b)............ Series D Bonds February 1, 1940 June 1, 1931(a)(b)................ Subject Properties February 1, 1940 October 1, 1932(a)(b)............. Series E Bonds February 1, 1940 September 25, 1935(a)(b).......... Series F Bonds February 1, 1940 September 1, 1936(a)(b)........... Series G Bonds February 1, 1940 November 1, 1936(a)(b)............ Subject Properties February 1, 1940 February 1, 1940(a)(b)............ Subject Properties September 1, 1947 December 1, 1940(a)(b)............ Series H Bonds and September 1, 1947 Additional Provisions September 1, 1947(a)(b)(c)........ Series I Bonds, November 15, 1951 Subject Properties and Additional Provisions March 1, 1950(a)(b)(c)............ Series J Bonds November 15, 1951 and Additional Provisions November 15, 1951(a)(b)(c)........ Series K Bonds January 15, 1953 Additional Provisions and Subject Properties January 15, 1953(a)(b)............ Series L Bonds May 1, 1953 May 1, 1953(a).................... Series M Bonds March 15, 1954 and Subject Properties March 15, 1954(a)(c).............. Series N Bonds May 15, 1955 and Subject Properties May 15, 1955(a)(c)................ Series O Bonds August 15, 1957 and Subject Properties August 15, 1957(a)(c)............. Series P Bonds June 1, 1959 Additional Provisions and Subject Properties June 1, 1959(a)(c)................ Series Q Bonds December 1, 1966 and Subject Properties December 1, 1966(a)(c)............ Series R Bonds October 1, 1968 Additional Provisions and Subject Properties |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- October 1, 1968(a)(c)............. Series S Bonds December 1, 1969 and Subject Properties December 1, 1969(a)(c)............ Series T Bonds July 1, 1970 and Subject Properties July 1, 1970(c)................... Series U Bonds December 15, 1970 and Subject Properties December 15, 1970(c).............. Series V and June 15, 1971 Series W Bonds June 15, 1971(c).................. Series X Bonds November 15, 1971 and Subject Properties November 15, 1971(c).............. Series Y Bonds January 15, 1973 and Subject Properties January 15, 1973(c)............... Series Z Bonds May 1, 1974 and Subject Properties May 1, 1974....................... Series AA Bonds October 1, 1974 and Subject Properties October 1, 1974................... Series BB Bonds January 15, 1975 and Subject Properties January 15, 1975.................. Series CC Bonds November 1, 1975 and Subject Properties November 1, 1975.................. Series DDP Nos. 1-9 Bonds December 15, 1975 and Subject Properties December 15, 1975................. Series EE Bonds February 1, 1976 and Subject Properties February 1, 1976.................. Series FFR Nos. 1-13 Bonds June 15, 1976 June 15, 1976..................... Series GGP Nos. 1-7 Bonds July 15, 1976 and Subject Properties July 15, 1976..................... Series HH Bonds February 15, 1977 and Subject Properties February 15, 1977................. Series MMP Bonds and Subject March 1, 1977 Properties March 1, 1977..................... Series IIP Nos. 1-7 Bonds, June 15, 1977 Series JJP Nos. 1-7 Bonds, Series KKP Nos. 1-7 Bonds and Series LLP Nos. 1-7 Bonds June 15, 1977..................... Series FFR No. 14 Bonds and July 1, 1977 Subject Properties July 1, 1977...................... Series NNP Nos. 1-7 Bonds October 1, 1977 and Subject Properties October 1, 1977................... Series GGP Nos. 8-22 Bonds June 1, 1978 and Series OOP Nos. 1-17 Bonds and Subject Properties June 1, 1978...................... Series PP Bonds, October 15, 1978 Series QQP Nos. 1-9 Bonds and Subject Properties October 15, 1978.................. Series RR Bonds March 15, 1979 and Subject Properties March 15, 1979.................... Series SS Bonds July 1, 1979 and Subject Properties |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- July 1, 1979...................... Series IIP Nos. 8-22 Bonds, September 1, 1979 Series NNP Nos. 8-21 Bonds and Series TTP Nos. 1-15 Bonds and Subject Properties September 1, 1979................. Series JJP No. 8 Bonds, September 15, 1979 Series KKP No. 8 Bonds, Series LLP Nos. 8-15 Bonds, Series MMP No. 2 Bonds and Series OOP No. 18 Bonds and Subject Properties September 15, 1979................ Series UU Bonds January 1, 1980 January 1, 1980................... 1980 Series A Bonds and April 1, 1980 Subject Properties April 1, 1980..................... 1980 Series B Bonds August 15, 1980 August 15, 1980................... Series QQP Nos. 10-19 Bonds, August 1, 1981 1980 Series CP Nos. 1-12 Bonds and 1980 Series DP No. 1-11 Bonds and Subject Properties August 1, 1981.................... 1980 Series CP Nos. 13-25 November 1, 1981 Bonds and Subject Properties November 1, 1981.................. 1981 Series AP Nos. 1-12 June 30, 1982 Bonds June 30, 1982..................... Article XIV Reconfirmation August 15, 1982 August 15, 1982................... 1981 Series AP Nos. 13-14 June 1, 1983 and Subject Properties June 1, 1983...................... 1981 Series AP Nos. 15-16 October 1, 1984 and Subject Properties October 1, 1984................... 1984 Series AP and 1984 May 1, 1985 Series BP Bonds and Subject Properties May 1, 1985....................... 1985 Series A Bonds May 15, 1985 May 15, 1985...................... 1985 Series B Bonds and October 15, 1985 Subject Properties October 15, 1985.................. Series KKP No. 9 Bonds and April 1, 1986 Subject Properties April 1, 1986..................... 1986 Series A and Subject August 15, 1986 Properties August 15, 1986................... 1986 Series B and Subject November 30, 1986 Properties November 30, 1986................. 1986 Series C January 31, 1987 |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- January 31, 1987.................. 1987 Series A April 1, 1987 April 1, 1987..................... 1987 Series B and 1987 August 15, 1987 Series C August 15, 1987................... 1987 Series D and 1987 November 30, 1987 Series E and Subject Properties November 30, 1987................. 1987 Series F June 15, 1989 June 15, 1989..................... 1989 Series A July 15, 1989 July 15, 1989..................... Series KKP No. 10 December 1, 1989 December 1, 1989.................. Series KKP No. 11 and 1989 February 15, 1990 Series BP February 15, 1990................. 1990 Series A, 1990 Series November 1, 1990 B, 1990 Series C, 1990 Series D, 1990 Series E and 1990 Series F November 1, 1990.................. Series KKP No. 12 April 1, 1991 April 1, 1991..................... 1991 Series AP May 1, 1991 May 1, 1991....................... 1991 Series BP and 1991 May 15, 1991 Series CP May 15, 1991...................... 1991 Series DP September 1, 1991 September 1, 1991................. 1991 Series EP November 1, 1991 November 1, 1991.................. 1991 Series FP January 15, 1992 January 15, 1992.................. 1992 Series BP February 29, 1992 and April 15, 1992 February 29, 1992................. 1992 Series AP April 15, 1992 April 15, 1992.................... Series KKP No. 13 July 15, 1992 July 15, 1992..................... 1992 Series CP November 30, 1992 July 31, 1992..................... 1992 Series D November 30, 1992 November 30, 1992................. 1992 Series E and 1993 March 15, 1993 Series D December 15, 1992................. Series KKP No. 14 and 1989 March 15, 1992 Series BP No. 2 January 1, 1993................... 1993 Series C April 1, 1993 March 1, 1993..................... 1993 Series E June 30, 1993 March 15, 1993.................... 1993 Series D September 15, 1993 April 1, 1993..................... 1993 Series FP and 1993 September 15, 1993 Series IP April 26, 1993.................... 1993 Series G and Amendment September 15, 1993 of Article II, Section 5 May 31, 1993...................... 1993 Series J September 15, 1993 September 15, 1993................ 1993 Series K March 1, 1994 March 1, 1994..................... 1994 Series AP June 15, 1994 |
(b) See Supplemental Indenture dated as of May 1, 1953 for Secretary of State of Michigan filing information.
(c) See Supplemental Indenture dated as of May 1, 1974 for County of Genesee, Michigan recording and filing information.
RECORDING OF All the bonds of Series A which were issued under the CERTIFICATES Original Indenture dated as of October 1, 1924, and of OF PROVISION Series B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, W, Y, FOR PAYMENT. Z, AA, BB, CC, DDP Nos. 1-9, FFR Nos. 1-14, GGP Nos. 1-22, HH, IIP Nos. 1-22, JJP Nos. 1-8, KKP Nos. 1-8, LLP Nos. 1-15, NNP Nos. 1-21, OOP Nos. 1-18, QQP Nos. 1-17, TTP Nos. 1-15, UU, 1980 Series A, 1980 Series CP Nos. 1-25, 1980 Series DP Nos. 1-11, 1981 Series AP Nos. 1-16, 1985 Series A, 1985 Series B, 1987 Series A, PP, RR, EE, MMP, MMP No. 2 and 1989 Series A which were issued under Supplemental Indentures dated as of, respectively, June 1, 1925, August 1, 1927, February 1, 1931, October 1, 1932, September 25, 1935, September 1, 1936, December 1, 1940, September 1, 1947, November 15, 1951, January 15, 1953, May 1, 1953, March 15, 1954, May 15, 1955, August 15, 1957, December 15, 1970, November 15, 1971, January 15, 1973, May 1, 1974, October 1, 1974, January 15, 1975, November 1, 1975, February 1, 1976, June 15, 1976, July 15, 1976, October 1, 1977, March 1, 1977, July 1, 1979, March 1, 1977, March 1, 1977, March 1, 1977, September 1, 1979, July 1, 1977, July 1, 1979, September 15, 1979, October 1, 1977, June 1, 1978, October 1, 1977, July 1, 1979, January 1, 1980, August 15, 1980, November 1, 1981, May 1, 1985, May 15, 1985, January 31, 1987, June 1, 1978, October 15, 1978, December 15, 1975, February 15, 1977, September 1, 1979 and June 15, 1989 have matured or have been called for redemption and funds sufficient for such payment or redemption have been irrevocably deposited with the Trustee for that purpose; and Certificates of Provision for Payment have been recorded in the offices of the respective Registers of Deeds of certain counties in the State of Michigan, with respect to all bonds of Series A, B, C, D, E, F, G, H, K, L, M, O, W, BB, CC, DDP Nos. 1 and 2, FFR Nos. 1-3, GGP Nos. 1 and 2, IIP No. 1, JJP No. 1, KKP No. 1, LLP No. 1 and GGP No. 8. PART III. THE TRUSTEE. TERMS AND The Trustee hereby accepts the trust hereby declared and CONDITIONS OF provided, and agrees to perform the same upon the terms and ACCEPTANCE OF conditions in the Original Indenture, as amended to date and TRUST BY TRUSTEE. as supplemented by this Supplemental Indenture, and in this Supplemental Indenture set forth, and upon the following terms and conditions: The Trustee shall not be responsible in any manner whatsoever for and in respect of the validity or sufficiency of this Supplemental Indenture or the due execution hereof by the Company or for or in respect of the recitals contained herein, all of which recitals are made by the Company solely. PART IV. MISCELLANEOUS. CONFIRMATION OF Except to the extent specifically provided therein, no SECTION 318(C) OF provision of this supplemental indenture or any future TRUST INDENTURE supplemental indenture is intended to modify, and the ACT parties do hereby adopt and confirm, the provisions of Section 318(c) of the Trust Indenture Act which amend and supercede provisions of the Indenture in effect prior to November 15, 1990. EXECUTION IN THIS SUPPLEMENTAL INDENTURE MAY BE SIMULTANEOUSLY COUNTERPARTS. EXECUTED IN ANY NUMBER OF COUNTERPARTS, EACH OF WHICH WHEN SO EXECUTED SHALL BE DEEMED TO BE AN ORIGINAL; BUT SUCH COUNTERPARTS SHALL TOGETHER CONSTITUTE BUT ONE AND THE SAME INSTRUMENT. |
TESTIMONIUM. IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY AND BANKERS TRUST COMPANY HAVE CAUSED THESE PRESENTS TO BE SIGNED IN THEIR RESPECTIVE CORPORATE NAMES BY THEIR RESPECTIVE CHAIRMEN OF THE BOARD, PRESIDENTS, VICE PRESIDENTS, ASSISTANT VICE PRESIDENTS, TREASURERS OR ASSISTANT TREASURERS AND IMPRESSED WITH THEIR RESPECTIVE CORPORATE SEALS, ATTESTED BY THEIR RESPECTIVE SECRETARIES OR ASSISTANT SECRETARIES, ALL AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN. |
THE DETROIT EDISON COMPANY, (Corporate Seal) By /s/ C. C. ARVANI ---------------------------- C. C. Arvani Assistant Treasurer EXECUTION. Attest: /s/ RONALD J. GDOWSKI ------------------------------------ Ronald J. Gdowski Assistant Corporate Secretary Signed, sealed and delivered by THE DETROIT EDISON COMPANY, in the presence of /s/ JACK L. SOMERS ------------------------------------ Jack L. Somers /s/ CATHY M. LEWIS ------------------------------------ Cathy M. Lewis |
STATE OF MICHIGAN SS.: COUNTY OF WAYNE ACKNOWLEDGMENT On this 10th day of August, 1994, before me, the subscriber, OF EXECUTION a Notary Public within and for the County of Wayne, in the BY COMPANY. State of Michigan, personally appeared C. C. Arvani, to me personally known, who, being by me duly sworn, did say that he does business at 2000 Second Avenue, Detroit, Michigan 48226 and is the Assistant Treasurer of THE DETROIT EDISON COMPANY, one of the corporations described in and which executed the foregoing instrument; that he knows the corporate seal of the said corporation and that the seal affixed to said instrument is the corporate seal of said corporation; and that said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors and that he subscribed his name thereto by like authority; and said C. C. Arvani, acknowledged said instrument to be the free act and deed of said corporation. |
/s/ JUDITH THUN ------------------------------------ (Notarial Seal) Judith Thun, Notary Public Wayne County, MI My Commission Expires March 4, 1995 |
BANKERS TRUST COMPANY, (Corporate Seal) By /s/ ROBERT CAPORALE --------------------------- Robert Caporale Vice President Attest: /s/ LISA MORRONE -------------------------------- M. Lisa Morrone Assistant Vice President Signed, sealed and delivered by BANKERS TRUST COMPANY, in the presence of /s/ MICHAEL WATERS -------------------------------- Michael Waters /s/ DENISE MITCHELL -------------------------------- Denise Mitchell |
STATE OF NEW YORK SS.: COUNTY OF NEW YORK |
ACKNOWLEDGMENT On this 11th day of August, 1994, before me, the subscriber, OF EXECUTION a Notary Public within and for the County of New York, in BY TRUSTEE. the State of New York, personally appeared Robert Caporale, to me personally known, who, being by me duly sworn, did say that his business office is located at Four Albany Street, New York, New York 10015, and he is Vice President of BANKERS TRUST COMPANY, one of the corporations described in and which executed the foregoing instrument; that he knows the corporate seal of the said corporation and that the seal affixed to said instrument is the corporate seal of said corporation; and that said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors and that he subscribed his name thereto by like authority; and said Robert Caporale acknowledged said instrument to be the free act and deed of said corporation. |
(Notarial Seal) /s/ KAREN MORENA --------------------------------------- Karen J. Morena Notary Public, State of New York No. 41-4991083 Qualified in Queens County Commission Expires 1-21-96 Certificate Filed in New York County |
STATE OF MICHIGAN SS.: COUNTY OF WAYNE |
AFFIDAVIT AS TO C. C. Arvani, being duly sworn, says: that he is the CONSIDERATION Assistant Treasurer of THE DETROIT EDISON COMPANY, the AND GOOD FAITH. Mortgagor named in the foregoing instrument, and that he has knowledge of the facts in regard to the making of said instrument and of the consideration therefor; that the consideration for said instrument was and is actual and adequate, and that the same was given in good faith for the purposes in such instrument set forth. |
/s/ C. C. ARVANI C. C. Arvani Sworn to before me this 10th day of August, 1994 /s/ Judith Thun Judith Thun, Notary Public Wayne County, MI My Commission Expires March 4, 1995 (Notarial Seal) This instrument was drafted by Frances B. Rohlman, Esq., 2000 Second Avenue, Detroit, Michigan 48226 |
EXHIBIT 4-220
EXECUTED IN COUNTERPARTS
OF WHICH THIS IS COUNTERPART NO. .
THE DETROIT EDISON COMPANY
(2000 Second Avenue,
Detroit, Michigan 48226)
TO
BANKERS TRUST COMPANY
(Four Albany Street,
New York, New York 10015)
AS TRUSTEE
INDENTURE
Dated as of December 1, 1994
SUPPLEMENTAL TO MORTGAGE AND DEED OF TRUST
DATED AS OF OCTOBER 1, 1924
PROVIDING FOR
(A) GENERAL AND REFUNDING MORTGAGE BONDS,
SERIES KKP NO. 15, DUE SEPTEMBER 1, 2004,
(B) GENERAL AND REFUNDING MORTGAGE BONDS,
1994 SERIES DP, DUE DECEMBER 1, 2004
AND
(C) RECORDING AND FILING DATA
TABLE OF CONTENTS*
PAGE ---- PARTIES..................................................... 1 RECITALS Original Indenture and Supplementals...................... 1 Issue of Bonds under Indenture............................ 1 Bonds heretofore issued................................... 1 Reason for creation of new series......................... 5 Bonds to be Series KKP No. 15 and 1994 Series DP.......... 5 Further Assurance......................................... 5 Authorization of Supplemental Indenture................... 5 Consideration for Supplemental Indenture.................. 6 PART I. CREATION OF THREE HUNDRED SIXTEENTH SERIES OF BONDS GENERAL AND REFUNDING MORTGAGE BONDS, SERIES KKP NO. 15 Sec. 1. Terms of Bonds of Series KKP No. 15................. 6 Sec. 2. Redemption of Bonds of Series KKP No. 15............ 8 Sec. 3. Redemption in Event of Acceleration................. 8 Sec. 4. Form of Bonds of Series KKP No. 15.................. 9 Form of Trustee's Certificate....................... 14 PART II. CREATION OF THREE HUNDRED SEVENTEENTH SERIES OF BONDS GENERAL AND REFUNDING MORTGAGE BONDS, 1994 SERIES DP Sec. 1. Terms of Bonds of 1994 Series DP.................... 14 Sec. 2. Redemption of Bonds of 1994 Series DP............... 16 Sec. 3. Redemption and Payment in Event of AMBAC Payment.... 16 Sec. 4. Form of Bonds of 1994 Series DP..................... 17 Form of Trustee's Certificate....................... 21 PART III. RECORDING AND FILING DATA Recording and filing of Original Indenture.................. 21 Recording and filing of Supplemental Indentures............. 21 Recording of Certificates of Provision for Payment.......... 28 PART IV. THE TRUSTEE Terms and conditions of acceptance of trust by Trustee...... 28 PART V. MISCELLANEOUS Confirmation of Section 318(c) of Trust Indenture Act....... 28 Execution in Counterparts................................... 28 Testimonium................................................. 29 Execution................................................... 29 Acknowledgements............................................ 29 Affidavit as to consideration and good faith................ 31 |
PARTIES. SUPPLEMENTAL INDENTURE, dated as of the first day of December, in the year one thousand nine hundred and ninety-four, between THE DETROIT EDISON COMPANY, a corporation organized and existing under the laws of the State of Michigan and a transmitting utility (hereinafter called the "Company"), party of the first part, and BANKERS TRUST COMPANY, a corporation organized and existing under the laws of the State of New York, having its corporate trust office at Four Albany Street, in the Borough of Manhattan, The City and State of New York, as Trustee under the Mortgage and Deed of Trust hereinafter mentioned (hereinafter called the "Trustee"), party of the second part. ORIGINAL WHEREAS, the Company has heretofore executed and delivered INDENTURE AND its Mortgage and Deed of Trust (hereinafter referred to as SUPPLEMENTALS. the "Original Indenture"), dated as of October 1, 1924, to the Trustee, for the security of all bonds of the Company outstanding thereunder, and pursuant to the terms and provisions of the Original Indenture, indentures dated as of, respectively, June 1, 1925, August 1, 1927, February 1, 1931, June 1, 1931, October 1, 1932, September 25, 1935, September 1, 1936, November 1, 1936, February 1, 1940, December 1, 1940, September 1, 1947, March 1, 1950, November 15, 1951, January 15, 1953, May 1, 1953, March 15, 1954, May 15, 1955, August 15, 1957, June 1, 1959, December 1, 1966, October 1, 1968, December 1, 1969, July 1, 1970, December 15, 1970, June 15, 1971, November 15, 1971, January 15, 1973, May 1, 1974, October 1, 1974, January 15, 1975, November 1, 1975, December 15, 1975, February 1, 1976, June 15, 1976, July 15, 1976, February 15, 1977, March 1, 1977, June 15, 1977, July 1, 1977, October 1, 1977, June 1, 1978, October 15, 1978, March 15, 1979, July 1, 1979, September 1, 1979, September 15, 1979, January 1, 1980, April 1, 1980, August 15, 1980, August 1, 1981, November 1, 1981, June 30, 1982, August 15, 1982, June 1, 1983, October 1, 1984, May 1, 1985, May 15, 1985, October 15, 1985, April 1, 1986, August 15, 1986, November 30, 1986, January 31, 1987, April 1, 1987, August 15, 1987, November 30, 1987, June 15, 1989, July 15, 1989, December 1, 1989, February 15, 1990, November 1, 1990, April 1, 1991, May 1, 1991, May 15, 1991, September 1, 1991, November 1, 1991, January 15, 1992, February 29, 1992, April 15, 1992, July 15, 1992, July 31, 1992, November 30, 1992, December 15, 1992, January 1, 1993, March 1, 1993, March 15, 1993, April 1, 1993, April 26, 1993, May 31, 1993, June 30, 1993, June 30, 1993, September 15, 1993, March 1, 1994, June 15, 1994 and August 15, 1994 supplemental to the Original Indenture, have heretofore been entered into between the Company and the Trustee (the Original Indenture and all indentures supplemental thereto together being hereinafter sometimes referred to as the "Indenture"); and ISSUE OF WHEREAS, the Indenture provides that said bonds shall be BONDS UNDER issuable in one or more series, and makes provision that the INDENTURE. rates of interest and dates for the payment thereof, the date of maturity or dates of maturity, if of serial maturity, the terms and rates of optional redemption (if redeemable), the forms of registered bonds without coupons of any series and any other provisions and agreements in respect thereof, in the Indenture provided and permitted, as the Board of Directors may determine, may be expressed in a supplemental indenture to be made by the Company to the Trustee thereunder; and BONDS HERETOFORE WHEREAS, bonds in the principal amount of Eight billion two ISSUED. hundred ninety-eight million five hundred seventy-seven thousand dollars ($8,298,577,000) have heretofore been issued under the indenture as follows, viz: |
(1) Bonds of Series A -- Principal Amount $26,016,000, (2) Bonds of Series B -- Principal Amount $23,000,000, (3) Bonds of Series C -- Principal Amount $20,000,000, (4) Bonds of Series D -- Principal Amount $50,000,000, (5) Bonds of Series E -- Principal Amount $15,000,000, (6) Bonds of Series F -- Principal Amount $49,000,000, (7) Bonds of Series G -- Principal Amount $35,000,000, (8) Bonds of Series H -- Principal Amount $50,000,000, (9) Bonds of Series I -- Principal Amount $60,000,000, (10) Bonds of Series J -- Principal Amount $35,000,000, (11) Bonds of Series K -- Principal Amount $40,000,000, |
(12) Bonds of Series L -- Principal Amount $24,000,000, (13) Bonds of Series M -- Principal Amount $40,000,000, (14) Bonds of Series N -- Principal Amount $40,000,000, (15) Bonds of Series O -- Principal Amount $60,000,000, (16) Bonds of Series P -- Principal Amount $70,000,000, (17) Bonds of Series Q -- Principal Amount $40,000,000, (18) Bonds of Series W -- Principal Amount $50,000,000, (19) Bonds of Series AA -- Principal Amount $100,000,000, (20) Bonds of Series BB -- Principal Amount $50,000,000, (21) Bonds of Series CC -- Principal Amount $50,000,000, (22) Bonds of Series UU -- Principal Amount $100,000,000, (23-31) Bonds of Series DDP Nos. 1-9 -- Principal Amount $14,305,000, (32-45) Bonds of Series FFR Nos. 1-14 -- Principal Amount $45,600,000, (46-67) Bonds of Series GGP Nos. 1-22 -- Principal Amount $42,300,000, (68) Bonds of Series HH -- Principal Amount $50,000,000, (69-90) Bonds of Series IIP Nos. 1-22 -- Principal Amount $3,750,000, (91-98) Bonds of Series JJP Nos. 1-8 -- Principal Amount $6,850,000, (99-106) Bonds of Series KKP Nos. 1-8 -- Principal Amount $14,890,000, (107-121) Bonds of Series LLP Nos. 1-15 -- Principal Amount $8,850,000, (122-142) Bonds of Series NNP Nos. 1-21 -- Principal Amount $47,950,000, (143-160) Bonds of Series OOP Nos. 1-18 -- Principal Amount $18,880,000, (161-179) Bonds of Series QQP Nos. 1-19 -- Principal Amount $13,650,000, (180-194) Bonds of Series TTP Nos. 1-15 -- Principal Amount $3,800,000, (195) Bonds of 1980 Series A -- Principal Amount $50,000,000, (196-220) Bonds of 1980 Series CP Nos. 1-25 -- Principal Amount $35,000,000, (221-231) Bonds of 1980 Series DP Nos. 1-11 -- Principal Amount $10,750,000, (232-247) Bonds of 1981 Series AP Nos. 1-16 -- Principal Amount $124,000,000, (248) Bonds of 1985 Series A -- Principal Amount $35,000,000, (249) Bonds of 1985 Series B -- Principal Amount $50,000,000, (250) Bonds of Series PP -- Principal Amount $70,000,000, (251) Bonds of Series RR -- Principal Amount $70,000,000, (252) Bonds of Series EE -- Principal Amount $50,000,000, (253-254) Bonds of Series MMP and MMP No. 2 -- Principal Amount $5,430,000, (255) Bonds of Series T -- Principal Amount $75,000,000, (256) Bonds of Series U -- Principal Amount $75,000,000, (257) Bonds of 1986 Series B -- Principal Amount $100,000,000, (258) Bonds of 1987 Series D -- Principal Amount $250,000,000, (259) Bonds of 1987 Series E -- Principal Amount $150,000,000, (260) Bonds of 1987 Series C -- Principal Amount $225,000,000, (261) Bonds of Series V -- Principal Amount $100,000,000, (262) Bonds of Series SS -- Principal Amount $150,000,000, (263) Bonds of 1980 Series B -- Principal Amount $100,000,000, (264) Bonds of 1986 Series C -- Principal Amount $200,000,000, (265) Bonds of 1986 Series A -- Principal Amount $200,000,000, (266) Bonds of 1987 Series B -- Principal Amount $175,000,000, (267) Bonds of Series X -- Principal Amount $100,000,000, (268) Bonds of 1987 Series F -- Principal Amount $200,000,000, (269) Bonds of 1987 Series A -- Principal Amount $300,000,000, (270) Bonds of Series Y -- Principal Amount $60,000,000, (271) Bonds of Series Z -- Principal Amount $100,000,000, (272) Bonds of 1989 Series A -- Principal Amount $300,000,000, (273) Bonds of 1984 Series AP -- Principal Amount $2,400,000 (274) Bonds of 1984 Series BP -- Principal Amount $7,750,000 |
all of which have either been retired and cancelled, or no longer represent obligations of the Company, having been called for redemption and funds necessary to effect the payment, redemption and retirement thereof having been deposited with the Trustee as a special trust fund to be applied for such purpose; (275) Bonds of Series R in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof; (276) Bonds of Series S in the principal amount of One hundred fifty million dollars ($150,000,000), all of which are outstanding at the date hereof; (277-282) Bonds of Series KKP Nos. 9-14 in the principal amount of One hundred ninety-three million two hundred ninety thousand dollars ($193,290,000), all of which are outstanding at the date hereof; (283) Bonds of 1989 Series BP in the principal amount of Sixty-six million five hundred sixty-five thousand dollars ($66,565,000), all of which are outstanding at the date hereof; (284) Bonds of 1990 Series A in the principal amount of One hundred ninety-four million six hundred forty-nine thousand dollars ($194,649,000) of which Thirty-one million three hundred ninety-five thousand dollars ($31,395,000) principal amount have heretofore been retired and One hundred sixty-three million two hundred fifty-four thousand dollars ($163,254,000) principal amount are outstanding at the date hereof; (285) Bonds of 1990 Series B in the principal amount of Two hundred fifty-six million nine hundred thirty-two thousand dollars ($256,932,000) of which Forty-seven million five hundred eighty thousand dollars ($47,580,000) principal amount have heretofore been retired and Two hundred nine million three hundred fifty-two thousand dollars ($209,352,000) principal amount are outstanding at the date hereof; (286) Bonds of 1990 Series C in the principal amount of Eighty-five million four hundred seventy-five thousand dollars ($85,475,000) of which Seventeen million ninety- five thousand dollars ($17,095,000) principal amount have heretofore been retired and Sixty-eight million three hundred eighty thousand dollars ($68,380,000) principal amount are outstanding at the date hereof; (287) Bonds of 1991 Series AP in the principal amount of Thirty-two million three hundred seventy-five thousand dollars ($32,375,000), all of which are outstanding at the date hereof; (288) Bonds of 1991 Series BP in the principal amount of Twenty-five million nine hundred ten thousand dollars ($25,910,000), all of which are outstanding at the date hereof; (289) Bonds of 1991 Series CP in the principal amount of Thirty-two million eight hundred thousand dollars ($32,800,000), all of which are outstanding at the date hereof; (290) Bonds of 1991 Series DP in the principal amount of Thirty-seven million six hundred thousand dollars ($37,600,000), all of which are outstanding at the date hereof; (291) Bonds of 1991 Series EP in the principal amount of Forty-one million four hundred eighty thousand dollars ($41,480,000), all of which are outstanding at the date hereof; (292) Bonds of 1991 Series FP in the principal amount of Ninety-eight million three hundred seventy-five thousand dollars ($98,375,000), all of which are outstanding at the date hereof; (293) Bonds of 1992 Series BP in the principal amount of Twenty million nine hundred seventy-five thousand dollars ($20,975,000), all of which are outstanding at the date hereof; (294) Bonds of 1992 Series AP in the principal amount of Sixty-six million dollars ($66,000,000), all of which are outstanding at the date hereof; |
(295) Bonds of 1992 Series D in the principal amount of Three hundred million dollars ($300,000,000), of which Ten million dollars ($10,000,000) principal amount have heretofore been retired and Two hundred ninety million ($290,000,000) principal amount are outstanding at the date hereof; (296) Bonds of 1992 Series CP in the principal amount of Thirty-five million dollars ($35,000,000), all of which are outstanding at the date hereof; (297) Bonds of 1992 Series E in the principal amount of Fifty million dollars ($50,000,000), all of which are outstanding at the date hereof; (298) Bonds of 1989 Series BP No. 2 in the principal amount of Thirty-six million dollars ($36,000,000), all of which are outstanding at the date hereof; (299) Bonds of 1993 Series C in the principal amount of Two hundred twenty-five million dollars ($225,000,000), all of which are outstanding at the date hereof; (300) Bonds of 1993 Series B in the principal amount of Fifty million dollars ($50,000,000), all of which are outstanding at the date hereof; (301) Bonds of 1993 Series E in the principal amount of Four hundred million dollars ($400,000,000), of which Ten million dollars ($10,000,000) principal amount have heretofore been retired and Three hundred ninety million ($390,000,000) principal amount are outstanding at the date hereof; (302) Bonds of 1993 Series D in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof; (303) Bonds of 1993 Series FP in the principal amount of Five million six hundred eighty-five thousand dollars ($5,685,000), all of which are outstanding at the date hereof; (304) Bonds of 1993 Series G in the principal amount of Two hundred twenty-five million dollars ($225,000,000), all of which are outstanding at the date hereof; (305) Bonds of 1993 Series J in the principal amount of Three hundred million dollars ($300,000,000), of which Thirty million dollars ($30,000,000) principal amount have heretofore been retired and Two hundred seventy million ($270,000,000) principal amount are outstanding at the date hereof; (306) Bonds of 1993 Series IP in the principal amount of Five million eight hundred twenty-five thousand dollars ($5,825,000), all of which are outstanding at the date hereof; (307) Bonds of 1993 Series AP in the principal amount of Sixty-five million dollars ($65,000,000), all of which are outstanding at the date hereof; (308) Bonds of 1993 Series H in the principal amount of Fifty million dollars ($50,000,000), all of which are outstanding at the date hereof; (309) Bonds of 1993 Series K in the principal amount of One hundred sixty million dollars ($160,000,000), all of which are outstanding at the date hereof; (310) Bonds of 1994 Series AP in the principal amount of Seven million five hundred thirty-five thousand dollars ($7,535,000), all of which are outstanding at the date hereof; (311) Bonds of 1994 Series BP in the principal amount of Twelve million nine hundred thirty-five thousand dollars ($12,935,000), all of which are outstanding at the date hereof; (312) Bonds of 1994 Series C in the principal amount of Two hundred million dollars ($200,000,000), all of which are outstanding at the date hereof; and, accordingly, of the bonds so issued, Three billion four hundred eighty-four million three hundred thirty-six thousand dollars ($3,484,336,000) principal amount are out- standing at the date hereof; and |
REASON FOR WHEREAS, the County of Monroe, Michigan has agreed to CREATION OF issue and sell $6,300,000 principal amount of its Pollution NEW SERIES. Control Revenue Bonds (The Detroit Edison Company Monroe and Fermi Plants Project), Collateralized Series I-1994 so as to provide funds for the purchase and construction of certain pollution control facilities installed in the Company's Monroe and Fermi 2 Power Plants; and WHEREAS, the Company has entered into an Installment Sales Contract, dated as of March 1, 1977, as previously amended and amended as of December 1, 1994 in order to purchase certain pollution control facilities, and pursuant to such Installment Sales Contract, as amended, the Company has agreed to issue its General and Refunding Mortgage Bonds under the Indenture in order further to secure its obligations under such Installment Sales Contract, as amended; and WHEREAS, the County of Monroe, Michigan has agreed to issue and sell $23,700,000 principal amount of its Pollution Control Revenue Bonds (The Detroit Edison Company Project), Series A-1994 so as to provide funds for the purchase and construction of certain pollution control facilities installed in the Company's Fermi 2 Power Plant; and subject to certain conditions, AMBAC Indemnity Corporation, a Wisconsin-domiciled stock insurance company, has agreed to issue its municipal bond insurance policy guaranteeing the payment of principal and interest on the Series A-1994 Bonds; and WHEREAS, the Company, in order to induce AMBAC to issue its municipal bond insurance policy relating to the Series A-1994 Bonds, has agreed to issue its General and Refunding Mortgage Bonds under the Indenture to AMBAC; and WHEREAS, for such purposes the Company desires to issue new series of bonds to be issued under the Indenture and to be authenticated and delivered pursuant to Section 8 of Article III of the Indenture; and BONDS TO BE WHEREAS, the Company desires by this Supplemental SERIES KKP Indenture to create such new series of bonds, to be NO. 15 AND 1994 SERIES designated "General and Refunding Mortgage Bonds, Series KKP DP. No. 15" and "General and Refunding Mortgage Bonds, 1994 Series DP"; and FURTHER WHEREAS, the Original Indenture, by its terms, includes in ASSURANCE. the property subject to the lien thereof all of the estates and properties, real, personal and mixed, rights, privileges and franchises of every nature and kind and wheresoever situate, then or thereafter owned or possessed by or belonging to the Company or to which it was then or at any time thereafter might be entitled in law or in equity (saving and excepting, however, the property therein specifically excepted or released from the lien thereof), and the Company therein covenanted that it would, upon reasonable request, execute and deliver such further instruments as may be necessary or proper for the better assuring and confirming unto the Trustee all or any part of the trust estate, whether then or thereafter owned or acquired by the Company (saving and excepting, however, property specifically excepted or released from the lien thereof); and AUTHORIZATION WHEREAS, the Company in the exercise of the powers and OF SUPPLEMENTAL authority conferred upon and reserved to it under and by INDENTURE. virtue of the provisions of the Indenture, and pursuant to resolutions of its Board of Directors has duly resolved and determined to make, execute and deliver to the Trustee a supplemental indenture in the form hereof for the purposes herein provided; and WHEREAS, all conditions and requirements necessary to make this Supplemental Indenture a valid and legally binding instrument in accordance with its terms have been done, performed and fulfilled, and the execution and delivery hereof have been in all respects duly authorized; |
CONSIDERATION NOW, THEREFORE, THIS INDENTURE WITNESSETH: That The FOR SUPPLEMENTAL Detroit Edison Company, in consideration of the premises and INDENTURE. of the covenants contained in the Indenture and of the sum of One Dollar ($1.00) and other good and valuable consideration to it duly paid by the Trustee at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, hereby covenants and agrees to and with the Trustee and its successors in the trusts under the Original Indenture and in said indentures supplemental thereto as follows: PART I. CREATION OF THREE HUNDRED SIXTEENTH SERIES OF BONDS. GENERAL AND REFUNDING MORTGAGE BONDS, SERIES KKP NO. 15 CERTAIN TERMS SECTION 1. The Company hereby creates the Three hundred OF BONDS OF sixteenth series of bonds to be issued under and secured by SERIES KKP NO. 15. the Original Indenture as amended to date and as further amended by this Supplemental Indenture, to be designated, and to be distinguished from the bonds of all other series, by the title "General and Refunding Mortgage Bonds, Series KKP No. 15" (elsewhere herein referred to as the "bonds of Series KKP No. 15"). The aggregate principal amount of bonds of Series KKP No. 15 shall be limited to six million three hundred thousand dollars ($6,300,000), except as provided in Sections 7 and 13 of Article II of the Original Indenture with respect to exchanges and replacements of bonds. Each bond of Series KKP No. 15 is to be irrevocably assigned to, and registered in the name of, Comerica Bank, successor to Manufacturers Bank, N.A., formerly known as Manufacturers National Bank of Detroit, as trustee, or a successor trustee (said trustee or any successor trustee being hereinafter referred to as the "Monroe Trust Indenture Trustee"), under the Trust Indenture, dated as of March 1, 1977, as amended September 1, 1979, October 15, 1985, July 1, 1989, December 1, 1989, November 1, 1990, May 1, 1992, December 15, 1992 and December 1, 1994 (hereinafter called the "Monroe Trust Indenture"), between the County of Monroe, Michigan (hereinafter called "Monroe"), and the Monroe Trust Indenture Trustee, to secure payment of the County of Monroe, Michigan, Pollution Control Revenue Bonds (The Detroit Edison Company Monroe and Fermi Plants Project), Collateralized Series I-1994 (hereinafter called the "Monroe Revenue Bonds"), issued by Monroe under the Monroe Trust Indenture, the proceeds of which (other than any accrued interest thereon) have been provided for the acquisition and construction of certain pollution control facilities which the Company has agreed to purchase pursuant to the provisions of the Installment Sales Contract, dated as of March 1, 1977, as amended as of September 1, 1979, as of October 15, 1985, as of July 1, 1989, as of December 1, 1989, as of November 1, 1990, as of May 1, 1992 as of December 15, 1992 and as of December 1, 1994 (hereinafter called the "Monroe Contract"), between the Company and Monroe. The bonds of Series KKP No. 15 shall be issued as registered bonds without coupons in denominations of a multiple of $5,000. The bonds of Series KKP No. 15 shall be issued in the aggregate principal amount of $6,300,000, shall mature on September 1, 2004 and shall bear interest, payable semi-annually on March 1 and September 1 of each year (commencing March 1, 1995), at the rate of 6.35%, until the principal thereof shall have become due and payable and thereafter until the Company's obligation with respect to the payment of said principal shall have been discharged as provided in the Indenture. The bonds of Series KKP No. 15 shall be payable as to principal, premium, if any, and interest as provided in the Indenture, but only to the extent and in the manner herein provided. The bonds of Series KKP No. 15 shall be payable, both as to principal and interest, at the office or agency of the Company in the Borough of Manhattan, The City and State of New York, in any coin or currency of the United States of America which at the time of payment is legal tender for public and private debts. |
Except as provided herein, each bond of Series KKP No. 15 shall be dated the date of its authentication and interest shall be payable on the principal represented thereby from the March 1 or September 1 next preceding the date thereof to which interest has been paid on bonds of Series KKP No. 15, unless the bond is authenticated on a date to which interest has been paid, in which case interest shall be payable from the date of authentication, or unless the date of authentication is prior to March 1, 1995, in which case interest shall be payable from December 1, 1994. The bonds of Series KKP No. 15 in definitive form shall be, at the election of the Company, fully engraved or shall be lithographed or printed in authorized denominations as aforesaid and numbered 1 and upwards (with such further designation as may be appropriate and desirable to indicate by such designation the form, series and denominations of bonds of Series KKP No. 15). Until bonds of Series KKP No. 15 in definitive form are ready for delivery, the Company may execute, and upon its request in writing the Trustee shall authenticate and deliver in lieu thereof, bonds of Series KKP No. 15 in temporary form, as provided in Section 10 of Article II of the Indenture. Temporary bonds of Series KKP No. 15, if any, may be printed and may be issued in authorized denominations in substantially the form of definitive bonds of Series KKP No. 15, but with such omissions, insertions and variations as may be appropriate for temporary bonds, all as may be determined by the Company. Bonds of Series KKP No. 15 shall not be assignable or transferable except as may be required to effect a transfer to any successor trustee under the Monroe Trust Indenture, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under the Monroe Trust Indenture. Any such transfer shall be made upon surrender thereof for cancellation at the office or agency of the Company in the Borough of Manhattan, The City and State of New York, together with a written instrument of transfer (if so required by the Company or by the Trustee) in form approved by the Company duly executed by the holder or by its duly authorized attorney. Bonds of Series KKP No. 15 shall in the same manner be exchangeable for a like aggregate principal amount of bonds of Series KKP No. 15 upon the terms and conditions specified herein and in Section 7 of Article II of the Indenture. The Company waives its rights under Section 7 of Article II of the Indenture not to make exchanges or transfers of bonds of Series KKP No. 15, during any period of ten days next preceding any redemption date for such bonds. Bonds of Series KKP No. 15, in definitive and temporary form, may bear such legends as may be necessary to comply with any law or with any rules or regulations made pursuant thereto or as may be specified in the Monroe Contract. Upon payment of the principal or premium, if any, or interest on the Monroe Revenue Bonds, whether at maturity or prior to maturity by redemption or otherwise, or upon provision for the payment thereof having been made in accordance with Article IX of the Monroe Trust Indenture, bonds of Series KKP No. 15 in a principal amount equal to the principal amount of such Monroe Revenue Bonds, shall, to the extent of such payment of principal, premium or interest, be deemed fully paid and the obligation of the Company thereunder to make such payment shall forthwith cease and be discharged, and, in the case of the payment of principal and premium, if any, such bonds shall be surrendered for cancellation or presented for appropriate notation to the Trustee. |
REDEMPTION SECTION 2. Bonds of Series KKP No. 15 shall be redeemed on OF BONDS OF the respective dates and in the respective principal amounts SERIES KKP NO. 15. which correspond to the redemption dates for, and the principal amounts to be redeemed of, the Monroe Revenue Bonds. In the event the Company elects to redeem any Monroe Revenue Bonds prior to maturity in accordance with the provisions of the Monroe Trust Indenture, the Company shall on the same date redeem bonds of Series KKP No. 15 in principal amounts and at redemption prices corresponding to the Monroe Revenue Bonds so redeemed. The Company agrees to give the Trustee notice of any such redemption of bonds of Series KKP No. 15 on the same date as it gives notice of redemption of Monroe Revenue Bonds to the Monroe Trust Indenture Trustee. REDEMPTION SECTION 3. In the event of an Event of Default under the OF BONDS OF SERIES KKP Monroe Trust Indenture and the acceleration of all Monroe NO. 15 IN EVENT OF Revenue Bonds, the bonds of Series KKP No. 15 shall be ACCELERATION redeemable in whole upon receipt by the Trustee of a written OF MONROE demand (hereinafter called a "Redemption Demand") from the REVENUE BONDS. Monroe Trust Indenture Trustee stating that there has occurred under the Monroe Trust Indenture both an Event of Default and a declaration of acceleration of payment of principal, accrued interest and premium, if any, on the Monroe Revenue Bonds, specifying the last date to which interest on the Monroe Revenue Bonds has been paid (such date being hereinafter referred to as the "Initial Interest Accrual Date") and demanding redemption of the bonds of said series. The Trustee shall, within five days after receiving such Redemption Demand, mail a copy thereof to the Company marked to indicate the date of its receipt by the Trustee. Promptly upon receipt by the Company of such copy of a Redemption Demand, the Company shall fix a date on which it will redeem the bonds of said series so demanded to be redeemed (hereinafter called the "Demand Redemption Date"). Notice of the date fixed as the Demand Redemption Date shall be mailed by the Company to the Trustee at least ten days prior to such Demand Redemption Date. The date to be fixed by the Company as and for the Demand Redemption Date may be any date up to and including the earlier of (x) the 60th day after receipt by the Trustee of the Redemption Demand or (y) the maturity date of such bonds first occurring following the 20th day after the receipt by the Trustee of the Redemption Demand; provided, however, that if the Trustee shall not have received such notice fixing the Demand Redemption Date on or before the 10th day preceding the earlier of such dates, the Demand Redemption Date shall be deemed to be the earlier of such dates. The Trustee shall mail notice of the Demand Redemption Date (such notice being hereinafter called the "Demand Redemption Notice") to the Monroe Trust Indenture Trustee not more than ten nor less than five days prior to the Demand Redemption Date. Each bond of Series KKP No. 15 shall be redeemed by the Company on the Demand Redemption Date therefore upon surrender thereof by the Monroe Trust Indenture Trustee to the Trustee at a redemption price equal to the principal amount thereof plus accrued interest thereon at the rate specified for such bond from the Initial Interest Accrual Date to the Demand Redemption Date plus an amount equal to the aggregate premium, if any, due and payable on such Demand Redemption Date on all Monroe Revenue Bonds; provided, however, that in the event of a receipt by the Trustee of a notice that, pursuant to Section 1010 of the Monroe Trust Indenture, the Monroe Trust Indenture Trustee has terminated proceedings to enforce any right under the Monroe Trust Indenture, then any Redemption Demand shall thereby be rescinded by the Monroe Trust Indenture Trustee, and no Demand Redemption Notice shall be given, or, if already given, shall be automatically annulled; but no such rescission or annulment shall extend to or affect any subsequent default or impair any right consequent thereon. Anything herein contained to the contrary notwithstanding, the Trustee is not authorized to take any action pursuant to a Redemption Demand and such Redemption Demand shall be of no force or effect, unless it is executed in the name of the Monroe Trust Indenture Trustee by its President or one of its Vice Presidents. |
FORM OF BONDS SECTION 4. The bonds of Series KKP No. 15 and the form of OF SERIES KKP NO. 15. Trustee's Certificate to be endorsed on such bonds shall be substantially in the following forms, respectively: |
[FORM OF FACE OF BOND] THE DETROIT EDISON COMPANY GENERAL AND REFUNDING MORTGAGE BOND SERIES KKP NO. 15, 6.35% DUE SEPTEMBER 1, 2004 Notwithstanding any provisions hereof or in the Indenture, this bond is not assignable or transferable except as may be required to effect a transfer to any successor trustee under the Trust Indenture, dated as of March 1, 1977 and amended as of September 1, 1979, October 15, 1985, July 1, 1989, December 1, 1989, November 1, 1990, May 1, 1992, December 15, 1992 and December 1, 1994 between the County of Monroe, Michigan and Comerica Bank, successor to Manufacturers Bank, N.A., formerly known as Manufacturers National Bank of Detroit, as trustee, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under said Trust Indenture. $......... No.......... THE DETROIT EDISON COMPANY (hereinafter called the "Company"), a corporation of the State of Michigan, for value received, hereby promises to pay to Comerica Bank, as trustee, or registered assigns, at the Company's office or agency in the Borough of Manhattan, The City and State of New York, the principal sum of dollars ($ ) in lawful money of the United States of America on the date specified in the title hereof and interest thereon at the rate specified in the title hereof, in like lawful money, from December 1, 1994, and after the first payment of interest on bonds of this Series has been made or otherwise provided for, from the most recent date to which interest has been paid or otherwise provided for, semi-annually on March 1 and September 1 of each year (commencing March 1, 1995), until the Company's obligation with respect to payment of said principal shall have been discharged, all as provided, to the extent and in the manner specified in the Indenture hereinafter mentioned on the reverse hereof and in the supplemental indenture pursuant to which this bond has been issued. Under a Trust Indenture, dated as of March 1, 1977 and amended as of September 1, 1979, October 15, 1985, July 1, 1989, December 1, 1989, November 1, 1990, May 1, 1992, December 15, 1992 and December 1, 1994 (hereinafter called the "Monroe Trust Indenture"), between the County of Monroe, Michigan (hereinafter called "Monroe"), and Comerica Bank, as trustee (hereinafter called the "Monroe Trust Indenture Trustee"), Monroe has issued Pollution Control Revenue Bonds (The Detroit Edison Company Monroe and Fermi Plants Project), Collateralized Series I-1994 (hereinafter called the "Monroe Revenue Bonds"). This bond was originally issued to Monroe and simultaneously irrevocably assigned to the Monroe Trust Indenture Trustee so as to secure the payment of the Monroe Revenue Bonds. Payments of principal of, or premium, if any, or interest on, the Monroe Revenue Bonds shall constitute like payments on this bond as further provided herein and in the supplemental indenture pursuant to which this bond has been issued. Reference is hereby made to such further provisions of this bond set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though set forth at this place. This bond shall not be valid or become obligatory for any purpose until Bankers Trust Company, the Trustee under the Indenture hereinafter mentioned on the reverse hereof, or its successor thereunder, shall have signed the form of certificate endorsed hereon. |
IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY has caused this instrument to be executed by its Chairman of the Board and its Vice President and Treasurer, with their manual or facsimile signatures, and its corporate seal, or a facsimile thereof, to be impressed or imprinted hereon and the same to be attested by its Corporate Secretary or an Assistant Corporate Secretary with his or her manual or facsimile signature. |
Dated: THE DETROIT EDISON COMPANY By ............................ Chairman of the Board ............................ Vice President Attest: and Treasurer ............................ Corporate Secretary |
[FORM OF REVERSE OF BOND] This bond is one of an authorized issue of bonds of the Company, unlimited as to amount except as provided in the Indenture hereinafter mentioned or any indentures supplemental thereto, and is one of a series of General and Refunding Mortgage Bonds known as Series KKP No. 15, limited to an aggregate principal amount of $6,300,000, except as otherwise provided in the Indenture hereinafter mentioned. This bond and all other bonds of said series are issued and to be issued under, and are all equally and ratably secured (except insofar as any sinking, amortization, improvement or analogous fund, established in accordance with the provisions of the Indenture hereinafter mentioned, may afford additional security for the bonds of any particular series and except as provided in Section 3 of Article VI of said Indenture) by an Indenture, dated as of October 1, 1924, duly executed by the Company to Bankers Trust Company, a corporation of the State of New York, as Trustee, to which Indenture and all indentures supplemental thereto (including the Supplemental Indenture dated as of December 1, 1994) reference is hereby made for a description of the properties and franchises mortgaged and conveyed, the nature and extent of the security, the terms and conditions upon which the bonds are issued and under which additional bonds may be issued, and the rights of the holders of the bonds and of the Trustee in respect of such security (which Indenture and all indentures supplemental thereto, including the Supplemental Indenture dated as of December 15, 1992, are hereinafter collectively called the "Indenture"). As provided in the Indenture, said bonds may be for various principal sums and are issuable in series, which may mature at different times, may bear interest at different rates and may otherwise vary as in said Indenture provided. With the consent of the Company and to the extent permitted by and as provided in the Indenture, the rights and obligations of the Company and of the holders of the bonds and the terms and provisions of the Indenture, or of any indenture supplemental thereto, may be modified or altered in certain respects by affirmative vote of at least eighty-five percent (85%) in amount of the bonds then outstanding, and, if the rights of one or more, but less than all, series of bonds then outstanding are to be affected by the action proposed to be taken, then also by affirmative vote of at least eighty-five percent (85%) in amount of the series of bonds so to be affected (excluding in every instance bonds disqualified from voting by reason of the Company's interest therein as specified in the Indenture); provided, however, that, without the consent of the holder hereof, no such modification or alteration shall, among other things, affect the terms of payment of the principal of or the interest on this bond, which in those respects is unconditional. This bond is redeemable upon the terms and conditions set forth in the Indenture, including provision for redemption upon demand of the Monroe Trust Indenture Trustee following the occurrence of an Event of Default under the Monroe Trust Indenture and the acceleration of the principal of the Monroe Revenue Bonds. Under the Indenture, funds may be deposited with the Trustee (which shall have become available for payment), in advance of the redemption date of any of the bonds of Series KKP No. 15 (or portions thereof), in trust for the redemption of such bonds (or portions thereof) and the interest due or to become due thereon, and thereupon all obligations of the Company in respect of such bonds (or portions thereof) so to be redeemed and such interest shall cease and be discharged, and the holders thereof shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or with respect to such bonds (or portions thereof) and interest. In case an event of default, as defined in the Indenture, shall occur, the principal of all the bonds issued thereunder may become or be declared due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture. |
Upon payment of the principal of, or premium, if any, or interest on, the Monroe Revenue Bonds, whether at maturity or prior to maturity by redemption or otherwise or upon provision for the payment thereof having been made in accordance with Article IX of the Monroe Trust Indenture, bonds of Series KKP No. 15 in a principal amount equal to the principal amount of such Monroe Revenue Bonds and having both a corresponding maturity date and interest rate shall, to the extent of such payment of principal, premium or interest, be deemed fully paid and the obligation of the Company thereunder to make such payment shall forthwith cease and be discharged, and, in the case of the payment of principal and premium, if any, such bonds of said series shall be surrendered for cancellation or presented for appropriate notation to the Trustee. This bond is not assignable or transferable except as may be required to effect a transfer to any successor trustee under the Monroe Trust Indenture, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under the Monroe Trust Indenture. Any such transfer shall be made by the registered holder hereof, in person or by his attorney duly authorized in writing, on the books of the Company kept at its office or agency in the Borough of Manhattan, The City and State of New York, upon surrender and cancellation of this bond, and thereupon, a new registered bond of the same series of authorized denominations for a like aggregate principal amount will be issued to the transferee in exchange therefor, and this bond with others in like form may in like manner be exchanged for one or more new bonds of the same series of other authorized denominations, but of the same aggregate principal amount, all as provided and upon the terms and conditions set forth in the Indenture, and upon payment, in any event, of the charges prescribed in the Indenture. No recourse shall be had for the payment of the principal of or the interest on this bond, or for any claim based hereon or otherwise in respect hereof or of the Indenture, or of any indenture supplemental thereto, against any incorporator, or against any past, present or future stockholder, director or officer, as such, of the Company, or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether for amounts unpaid on stock subscriptions or by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise howsoever; all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released by every holder or owner hereof, as more fully provided in the Indenture. |
[FORM OF TRUSTEE'S CERTIFICATE] FORM OF This bond is one of the bonds, of the series designated TRUSTEE'S therein, described in the within-mentioned Indenture. CERTIFICATE. |
BANKERS TRUST COMPANY,
as Trustee
By ...........................
Authorized Officer
PART II. CREATION OF THREE HUNDRED SEVENTEENTH SERIES OF BONDS. GENERAL AND REFUNDING MORTGAGE BONDS, 1994 SERIES DP CERTAIN TERMS SECTION 1. The Company hereby creates the Three hundred OF BONDS OF seventeenth series of bonds to be issued under and secured 1994 SERIES DP. by the Original Indenture as amended to date and as further amended by this Supplemental Indenture, to be designated, and to be distinguished from the bonds of all other series, by the title "General and Refunding Mortgage Bonds, 1994 Series DP" (elsewhere herein referred to as the "bonds of 1994 Series DP"). The aggregate principal amount of bonds of 1994 Series DP shall be limited to Twenty-three million seven hundred thousand dollars ($23,700,000), except as provided in Sections 7 and 13 of Article II of the Original Indenture with respect to exchanges and replacements of bonds. Each bond of 1994 Series DP is to be issued to AMBAC Indemnity Corporation ("AMBAC"), a Wisconsin-domiciled stock insurance company, and simultaneously assigned to, and registered in the name of, United States Trust Company of New York, as trustee ("Insurance Trustee") under the Municipal Bond Insurance Policy ("Series A Insurance Policy") issued by AMBAC relating to the guarantee of payment of principal and interest with respect to the County of Monroe, Michigan Pollution Control Revenue Bonds (The Detroit Edison Company Project), Series A-1994 in the aggregate principal amount of Twenty-three million seven hundred thousand dollars ($23,700,000) ("Series A-1994 Bonds"), which Series A-1994 Bonds were created and issued pursuant to a Resolution adopted by the County of Monroe, Michigan ("Monroe") on May 22, 1973, as previously amended and supplemented and as amended and supplemented by a Resolution adopted December 13, 1994 (the "Series A Resolution"), to induce AMBAC to issue the Series A Insurance Policy. Under an Installment Sales Contract, dated as of June 1, 1973, as previously amended and as amended as of December 1, 1994, between the Company and Monroe (the "Series A Contract"), the Company is obligated to make payments to NBD Bank, N.A. (or its successor), as trustee (the "Series A Trustee") for the Series A-1994-Bonds in amounts and at times equal and corresponding to the amount and time of payments of principal, premium and interest due on the Series A-1994. The bonds of 1994 Series DP shall be issued as registered bonds without coupons in denominations of a multiple of $5,000. The bonds of 1994 Series DP shall be issued in the aggregate principal amount of $23,700,000, shall mature on December 1, 2004 and shall bear interest, payable semi-annually on June 1 and December 1 of each year (commencing June 1, 1995), at the rate of 6.35%, until the principal thereof shall have become due and payable and thereafter until the Company's obligation with respect to the payment of said principal shall have been discharged as provided in the Indenture. |
The bonds of 1994 Series DP shall be payable as to principal, premium, if any, and interest as provided in the Indenture, but only to the extent and in the manner herein provided. The bonds of 1994 Series DP shall be payable, both as to principal and interest, at the office or agency of the Company in the Borough of Manhattan, The City and State of New York, in any coin or currency of the United States of America which at the time of payment is legal tender for public and private debts. Except as provided herein, each bond of 1994 Series DP shall be dated the date of its authentication and interest shall be payable on the principal represented thereby from the June 1 or December 1 next preceding the date thereof to which interest has been paid on bonds of 1994 Series DP, unless the bond is authenticated on a date to which interest has been paid, in which case interest shall be payable from the date of authentication, or unless the date of authentication is prior to June 1, 1995, in which case interest shall be payable from December 1, 1994. The bonds of 1994 Series DP in definitive form shall be, at the election of the Company, fully engraved or shall be lithographed or printed in authorized denominations as aforesaid and numbered 1 and upwards (with such further designation as may be appropriate and desirable to indicate by such designation the form, series and denominations of bonds of 1994 Series DP). Until bonds of 1994 Series DP in definitive form are ready for delivery, the Company may execute, and upon its request in writing the Trustee shall authenticate and deliver in lieu thereof, bonds of 1994 Series DP in temporary form, as provided in Section 10 of Article II of the Indenture. Temporary bonds of 1994 Series DP, if any, may be printed and may be issued in authorized denominations in substantially the form of definitive bonds of 1994 Series DP, but with such omissions, insertions and variations as may be appropriate for temporary bonds, all as may be determined by the Company. Bonds of 1994 Series DP shall not be assignable or transferable except as may be required to effect a transfer to any successor insurance trustee under the Series A Insurance Policy, or, to AMBAC in the event that (1) AMBAC makes a payment to fulfill its obligations under the Series A Resolution to cure an Event of Default by the Company as may have occurred under the Series A Resolution and/or (2) an Event of Default shall have occurred under the Indenture. Any such transfer shall be made upon surrender thereof for cancellation at the office or agency of the Company in the Borough of Manhattan, The City and State of New York, together with a written instrument of transfer (if so required by the Company or by the Trustee) in form approved by the Company duly executed by the holder or by its duly authorized attorney. Bonds of 1994 Series DP shall in the same manner be exchangeable for a like aggregate principal amount of bonds of 1994 Series DP upon the terms and conditions specified herein and in Section 7 of Article II of the Indenture. The Company waives its rights under Section 7 of Article II of the Indenture not to make exchanges or transfers of bonds of 1994 Series DP, during any period of ten days next preceding any redemption date for such bonds. So long as the Series A Insurance Policy shall be in full force and effect, AMBAC shall have the right to direct the Trustee in all matters relating to the bonds of 1994 Series DP. Bonds of 1994 Series DP, in definitive and temporary form, may bear such legends as may be necessary to comply with any law or with any rules or regulations made pursuant thereto or as may be specified pursuant to the terms and conditions specified herein. |
Upon payment by the Company as part of its obligations under the Series A Contract of the principal or premium, if any, or interest on the Series A-1994 Bonds, whether at maturity or prior to maturity by redemption or otherwise, or upon provision for the payment thereof having been made in accordance with the Series A Resolution, bonds of 1994 Series DP in a principal amount equal to the principal amount of such Series A-1994 Bonds, shall, to the extent of such payment of principal, premium or interest, be deemed fully paid and the obligation of the Company thereunder to make such payment shall forthwith cease and be discharged, and, in the case of the payment of principal and premium, if any, such bonds shall be surrendered for cancellation or presented for appropriate notation to the Trustee. REDEMPTION SECTION 2. Bonds of 1994 Series DP shall be redeemed on OF BONDS the respective dates and in the respective principal amounts OF 1994 which correspond to the redemption dates for, and the SERIES DP. principal amounts to be redeemed of, the Series A-1994 Bonds. In the event the Company elects to redeem any Series A-1994 Bonds prior to maturity in accordance with the provisions of the Monroe Trust Indenture, the Company shall on the same date redeem bonds of 1994 Series DP in principal amounts and at redemption prices corresponding to the Series A-1994 Bonds so redeemed. The Company agrees to give the Trustee notice of any such redemption of bonds of 1994 Series DP on the same date as it gives notice of redemption of Series A-1994 Bonds to the Series A Trustee. REDEMPTION SECTION 3. In the event that (1) AMBAC cures an Event of OF BONDS OF Default (as defined in the Series A Resolution) by the 1994 SERIES Company under the Series A Resolution by the payment of DP IN EVENT principal or interest, or both, due on the Series A-1994 OF AMBAC PAYMENT. Bonds pursuant to the Series A Resolution, the bonds of 1994 Series DP shall be payable or redeemable, or both, in an amount corresponding to the payment of principal or interest or both, by AMBAC or (2) the Series A Trustee has called for redemption the Series A-1994 Bonds as a result of an Event of Default under the Series A Resolution and, in each case, upon receipt by the Trustee of a written demand by the AMBAC, accompanied by a certification from the Series A Trustee as to the amount and type (principal, interest or both) of payment by AMBAC ("Payment Demand"). The Trustee shall, within five days after receiving such Payment Demand, mail a copy thereof to the Company marked to indicate the date of its receipt by the Trustee. Promptly upon receipt by the Company of such copy of a Payment Demand, the Company shall be obligated to pay such amount as may be deemed to be interest and shall fix a date on which it will redeem the bonds of said series so demanded to be redeemed (hereinafter called the "Demand Redemption Date") and. Notice of the date fixed as the Demand Redemption Date shall be mailed by the Company to the Trustee at least ten days prior to such Demand Redemption Date. The date to be fixed by the Company as and for the Demand Redemption Date may be any date up to and including the earlier of (x) the 60th day after receipt by the Trustee of the Payment Demand or (y) the maturity date of such bonds first occurring following the 20th day after the receipt by the Trustee of the Payment Demand; provided, however, that if the Trustee shall not have received such notice fixing the Demand Redemption Date on or before the 10th day preceding the earlier of such dates, the Demand Redemption Date shall be deemed to be the earlier of such dates. The Trustee shall mail notice of the Demand Redemption Date (such notice being hereinafter called the "Demand Redemption Notice") to the Insurance Trustee not more than ten nor less than five days prior to the Demand Redemption Date. |
Each bond of 1994 Series DP shall be redeemed by the Company on the Demand Redemption Date therefore upon surrender thereof by the Insurance Trustee to the Trustee at a redemption price equal to the principal amount thereof plus accrued interest paid by AMBAC pursuant to the Series A Resolution from the date of such payment to the Demand Redemption Date plus an amount equal to the aggregate premium, if any, due and payable on such Demand Redemption Date on a corresponding amount of Series A-1994 Bonds; provided, however, that in the event of a receipt by the Trustee of a notice that, pursuant to the Series A Resolution, AMBAC has terminated proceedings to enforce any right it may have against the Company under the Series A Insurance Policy, then any Payment Demand shall thereby be rescinded by the Insurance Trustee, and no Demand Redemption Notice shall be given, or, if already given, shall be automatically annulled; but no such rescission or annulment shall extend to or affect any subsequent default or impair any right consequent thereon. Anything herein contained to the contrary notwithstanding, the Trustee is not authorized to take any action pursuant to a Payment Demand and such Payment Demand shall be of no force or effect, unless it is executed in the name of the Insurance Trustee by its President or one of its Vice Presidents. FORM OF BONDS SECTION 4. The bonds of 1994 Series DP and the form of OF 1994 SERIES DP. Trustee's Certificate to be endorsed on such bonds shall be substantially in the following forms, respectively: [FORM OF FACE OF BOND] THE DETROIT EDISON COMPANY GENERAL AND REFUNDING MORTGAGE BOND 1994 SERIES DP, 6.35% DUE DECEMBER 1, 2004 Notwithstanding any provisions hereof or in the Indenture, this bond is not assignable or transferable except as may be required to effect a transfer to any successor insurance trustee under the Municipal Bond Insurance Policy, dated as of December 21, 1994 issued by AMBAC Indemnity Corporation and relating to the County of Monroe, Michigan Pollution Control Bonds (The Detroit Edison Company Project), Series A-1994, or to AMBAC Indemnity Corporation pursuant to Part II, Section 1 of the Supplemental Indenture dated as of December 1, 1994, or, subject to compliance with applicable law. $......... No.......... THE DETROIT EDISON COMPANY (hereinafter called the "Company"), a corporation of the State of Michigan, for value received, hereby promises to pay to United States Trust Company of New York, as Insurance Trustee, or registered assigns, at the Company's office or agency in the Borough of Manhattan, The City and State of New York, the principal sum of Twenty-three million seven hundred thousand dollars ($23,700,000) in lawful money of the United States of America on the date specified in the title hereof and interest thereon at the rate specified in the title hereof, in like lawful money, from December 1, 1994, and after the first payment of interest on bonds of this Series has been made or otherwise provided for, from the most recent date to which interest has been paid or otherwise provided for, semi-annually on June 1 and December 1 of each year (commencing June 1, 1995), until the Company's obligation with respect to payment of said principal shall have been discharged, all as provided, to the extent and in the manner specified in the Indenture hereinafter mentioned on the reverse hereof and in the supplemental indenture pursuant to which this bond has been issued. |
Under a Resolution, dated as of May 8, 1973, as previously amended and supplemented and amended and supplemented as of December 13, 1994 (hereinafter called the "Series A Resolution Monroe Trust Indenture"), adopted by the County of Monroe, Michigan (hereinafter called "Monroe"), Monroe has issued Pollution Control Revenue Bonds (The Detroit Edison Company Project), Series A-1994 (hereinafter called the "Series A-1994 Bonds") and AMBAC Indemnity Corporation ("AMBAC") has issued its Municipal Bond Insurance Policy ("Series A Insurance Policy") relating to the guarantee of the payment of principal and interest on the Series A-1994 Bond. This bond is being issued to induce AMBAC to issue the Series A Insurance Policy. Payments of principal of, or premium, if any, or interest on, the Series A-1994 Bonds shall constitute like payments on this bond as further provided herein and in the supplemental indenture pursuant to which this bond has been issued. Reference is hereby made to such further provisions of this bond set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though set forth at this place. This bond shall not be valid or become obligatory for any purpose until Bankers Trust Company, the Trustee under the Indenture hereinafter mentioned on the reverse hereof, or its successor thereunder, shall have signed the form of certificate endorsed hereon. IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY has caused this instrument to be executed by its Chairman of the Board and its President or a Vice President, with their manual or facsimile signatures, and its corporate seal, or a facsimile thereof, to be impressed or imprinted hereon and the same to be attested by its Secretary or an Assistant Secretary with his manual or facsimile signature. |
Dated: THE DETROIT EDISON COMPANY By ............................ Chairman of the Board ............................ Attest: Vice President and Treasurer ............................ Corporate Secretary |
[FORM OF REVERSE OF BOND] This bond is one of an authorized issue of bonds of the Company, unlimited as to amount except as provided in the Indenture hereinafter mentioned or any indentures supplemental thereto, and is one of a series of General and Refunding Mortgage Bonds known as 1994 Series DP, limited to an aggregate principal amount of $23,700,000, except as otherwise provided in the Indenture hereinafter mentioned. This bond and all other bonds of said series are issued and to be issued under, and are all equally and ratably secured (except insofar as any sinking, amortization, improvement or analogous fund, established in accordance with the provisions of the Indenture hereinafter mentioned, may afford additional security for the bonds of any particular series and except as provided in Section 3 of Article VI of said Indenture) by an Indenture, dated as of October 1, 1924, duly executed by the Company to Bankers Trust Company, a corporation of the State of New York, as Trustee, to which Indenture and all indentures supplemental thereto (including the Supplemental Indenture dated as of December 1, 1994) reference is hereby made for a description of the properties and franchises mortgaged and conveyed, the nature and extent of the security, the terms and conditions upon which the bonds are issued and under which additional bonds may be issued, and the rights of the holders of the bonds and of the Trustee in respect of such security (which Indenture and all indentures supplemental thereto, including the Supplemental Indenture dated as of December 1, 1994, are hereinafter collectively called the "Indenture"). As provided in the Indenture, said bonds may be for various principal sums and are issuable in series, which may mature at different times, may bear interest at different rates and may otherwise vary as in said Indenture provided. With the consent of the Company and to the extent permitted by and as provided in the Indenture, the rights and obligations of the Company and of the holders of the bonds and the terms and provisions of the Indenture, or of any indenture supplemental thereto, may be modified or altered in certain respects by affirmative vote of at least eighty-five percent (85%) in amount of the bonds then outstanding, and, if the rights of one or more, but less than all, series of bonds then outstanding are to be affected by the action proposed to be taken, then also by affirmative vote of at least eighty-five percent (85%) in amount of the series of bonds so to be affected (excluding in every instance bonds disqualified from voting by reason of the Company's interest therein as specified in the Indenture); provided, however, that, without the consent of the holder hereof, no such modification or alteration shall, among other things, affect the terms of payment of the principal of or the interest on this bond, which in those respects is unconditional. This bond is redeemable upon the terms and conditions set forth in the Indenture. Under the Indenture, funds may be deposited with the Trustee (which shall have become available for payment), in advance of the redemption date of any of the bonds of 1994 Series DP (or portions thereof), in trust for the redemption of such bonds (or portions thereof) and the interest due or to become due thereon, and thereupon all obligations of the Company in respect of such bonds (or portions thereof) so to be redeemed and such interest shall cease and be discharged, and the holders thereof shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or with respect to such bonds (or portions thereof) and interest. |
Upon payment by the Company as part of its obligations under the Series A Resolution of the principal of, or premium, if any, or interest on, the Series A-1994 Bonds, whether at maturity or prior to maturity by redemption or otherwise or upon provision for the payment thereof having been made in accordance with Series A Resolution, bonds of 1994 Series DP in a principal amount equal to the principal amount of such Series A-1994 Bonds and having both a corresponding maturity date and interest rate shall, to the extent of such payment of principal, premium or interest, be deemed fully paid and the obligation of the Company thereunder to make such payment shall forthwith cease and be discharged, and, in the case of the payment of principal and premium, if any, such bonds of said series shall be surrendered for cancellation or presented for appropriate notation to the Trustee. This bond is not assignable or transferable except as may be required to effect a transfer to any successor insurance trustee under the Series A Insurance Policy, or, to AMBAC Indemnity Corporation pursuant to the terms and conditions set forth in Part II, Section I of the Supplemental Indenture, dated as of December 1, 1994 or subject to compliance with applicable law. Any such transfer shall be made by the registered holder hereof, in person or by his attorney duly authorized in writing, on the books of the Company kept at its office or agency in the Borough of Manhattan, The City and State of New York, upon surrender and cancellation of this bond, and thereupon, a new registered bond of the same series of authorized denominations for a like aggregate principal amount will be issued to the transferee in exchange therefor, and this bond with others in like form may in like manner be exchanged for one or more new bonds of the same series of other authorized denominations, but of the same aggregate principal amount, all as provided and upon the terms and conditions set forth in the Indenture, and upon payment, in any event, of the charges prescribed in the Indenture. So long as the Series A Insurance Policy shall be in full force and effect, AMBAC shall have the right to direct the Trustee in all matters relating to the bonds of 1994 Series DP. No recourse shall be had for the payment of the principal of or the interest on this bond, or for any claim based hereon or otherwise in respect hereof or of the Indenture, or of any indenture supplemental thereto, against any incorporator, or against any past, present or future stockholder, director or officer, as such, of the Company, or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether for amounts unpaid on stock subscriptions or by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise howsoever; all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released by every holder or owner hereof, as more fully provided in the Indenture. |
[FORM OF TRUSTEE'S CERTIFICATE] FORM OF This bond is one of the bonds, of the series designated TRUSTEE'S therein, described in the within-mentioned Indenture. CERTIFICATE. |
BANKERS TRUST COMPANY,
as Trustee
By ...........................
Authorized Officer
PART III. RECORDING AND FILING DATA RECORDING AND The Original Indenture and indentures supplemental FILING OF ORIGINAL thereto have been recorded and/or filed and Certificates of INDENTURE. Provision for Payment have been recorded as hereinafter set forth. The Original Indenture has been recorded as a real estate mortgage and filed as a chattel mortgage in the offices of the respective Registers of Deeds of certain counties in the State of Michigan as set forth in the Supplemental Indenture dated as of September 1, 1947, has been recorded as a real estate mortgage in the office of the Register of Deeds of Genesee County, Michigan as set forth in the Supplemental Indenture dated as of May 1, 1974, has been filed in the Office of the Secretary of State of Michigan on November 16, 1951 and has been filed and recorded in the office of the Interstate Commerce Commission on December 8, 1969. RECORDING AND Pursuant to the terms and provisions of the Original FILING OF Indenture, indentures supplemental thereto heretofore SUPPLEMENTAL entered into have been recorded as a real estate mortgage INDENTURES. and/or filed as a chattel mortgage or as a financing statement in the offices of the respective Registers of Deeds of certain counties in the State of Michigan, the Office of the Secretary of State of Michigan and the Office of the Interstate Commerce Commission, as set forth in supplemental indentures as follows: |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- June 1, 1925(a)(b)................ Series B Bonds February 1, 1940 August 1, 1927(a)(b).............. Series C Bonds February 1, 1940 February 1, 1931(a)(b)............ Series D Bonds February 1, 1940 June 1, 1931(a)(b)................ Subject Properties February 1, 1940 October 1, 1932(a)(b)............. Series E Bonds February 1, 1940 September 25, 1935(a)(b).......... Series F Bonds February 1, 1940 September 1, 1936(a)(b)........... Series G Bonds February 1, 1940 November 1, 1936(a)(b)............ Subject Properties February 1, 1940 February 1, 1940(a)(b)............ Subject Properties September 1, 1947 December 1, 1940(a)(b)............ Series H Bonds and September 1, 1947 Additional Provisions September 1, 1947(a)(b)(c)........ Series I Bonds, November 15, 1951 Subject Properties and Additional Provisions March 1, 1950(a)(b)(c)............ Series J Bonds November 15, 1951 and Additional Provisions November 15, 1951(a)(b)(c)........ Series K Bonds January 15, 1953 Additional Provisions and Subject Properties January 15, 1953(a)(b)............ Series L Bonds May 1, 1953 |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- May 1, 1953(a).................... Series M Bonds March 15, 1954 and Subject Properties March 15, 1954(a)(c).............. Series N Bonds May 15, 1955 and Subject Properties May 15, 1955(a)(c)................ Series O Bonds August 15, 1957 and Subject Properties August 15, 1957(a)(c)............. Series P Bonds June 1, 1959 Additional Provisions and Subject Properties June 1, 1959(a)(c)................ Series Q Bonds December 1, 1966 and Subject Properties December 1, 1966(a)(c)............ Series R Bonds October 1, 1968 Additional Provisions and Subject Properties October 1, 1968(a)(c)............. Series S Bonds December 1, 1969 and Subject Properties December 1, 1969(a)(c)............ Series T Bonds July 1, 1970 and Subject Properties July 1, 1970(c)................... Series U Bonds December 15, 1970 and Subject Properties December 15, 1970(c).............. Series V and June 15, 1971 Series W Bonds June 15, 1971(c).................. Series X Bonds November 15, 1971 and Subject Properties November 15, 1971(c).............. Series Y Bonds January 15, 1973 and Subject Properties January 15, 1973(c)............... Series Z Bonds May 1, 1974 and Subject Properties May 1, 1974....................... Series AA Bonds October 1, 1974 and Subject Properties October 1, 1974................... Series BB Bonds January 15, 1975 and Subject Properties January 15, 1975.................. Series CC Bonds November 1, 1975 and Subject Properties November 1, 1975.................. Series DDP Nos. 1-9 Bonds December 15, 1975 and Subject Properties December 15, 1975................. Series EE Bonds February 1, 1976 and Subject Properties February 1, 1976.................. Series FFR Nos. 1-13 Bonds June 15, 1976 June 15, 1976..................... Series GGP Nos. 1-7 Bonds July 15, 1976 and Subject Properties July 15, 1976..................... Series HH Bonds February 15, 1977 and Subject Properties February 15, 1977................. Series MMP Bonds and Subject March 1, 1977 Properties March 1, 1977..................... Series IIP Nos. 1-7 Bonds, June 15, 1977 Series JJP Nos. 1-7 Bonds, Series KKP Nos. 1-7 Bonds and Series LLP Nos. 1-7 Bonds June 15, 1977..................... Series FFR No. 14 Bonds and July 1, 1977 Subject Properties |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- July 1, 1977...................... Series NNP Nos. 1-7 Bonds October 1, 1977 and Subject Properties October 1, 1977................... Series GGP Nos. 8-22 Bonds June 1, 1978 and Series OOP Nos. 1-17 Bonds and Subject Properties June 1, 1978...................... Series PP Bonds, October 15, 1978 Series QQP Nos. 1-9 Bonds and Subject Properties October 15, 1978.................. Series RR Bonds March 15, 1979 and Subject Properties March 15, 1979.................... Series SS Bonds July 1, 1979 and Subject Properties July 1, 1979...................... Series IIP Nos. 8-22 Bonds, September 1, 1979 Series NNP Nos. 8-21 Bonds and Series TTP Nos. 1-15 Bonds and Subject Properties September 1, 1979................. Series JJP No. 8 Bonds, September 15, 1979 Series KKP No. 8 Bonds, Series LLP Nos. 8-15 Bonds, Series MMP No. 2 Bonds and Series OOP No. 18 Bonds and Subject Properties September 15, 1979................ Series UU Bonds January 1, 1980 January 1, 1980................... 1980 Series A Bonds and April 1, 1980 Subject Properties April 1, 1980..................... 1980 Series B Bonds August 15, 1980 August 15, 1980................... Series QQP Nos. 10-19 Bonds, August 1, 1981 1980 Series CP Nos. 1-12 Bonds and 1980 Series DP No. 1-11 Bonds and Subject Properties August 1, 1981.................... 1980 Series CP Nos. 13-25 November 1, 1981 Bonds and Subject Properties November 1, 1981.................. 1981 Series AP Nos. 1-12 June 30, 1982 Bonds June 30, 1982..................... Article XIV Reconfirmation August 15, 1982 August 15, 1982................... 1981 Series AP Nos. 13-14 June 1, 1983 and Subject Properties June 1, 1983...................... 1981 Series AP Nos. 15-16 October 1, 1984 and Subject Properties October 1, 1984................... 1984 Series AP and 1984 May 1, 1985 Series BP Bonds and Subject Properties May 1, 1985....................... 1985 Series A Bonds May 15, 1985 May 15, 1985...................... 1985 Series B Bonds and October 15, 1985 Subject Properties |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- October 15, 1985.................. Series KKP No. 9 Bonds and April 1, 1986 Subject Properties April 1, 1986..................... 1986 Series A and Subject August 15, 1986 Properties August 15, 1986................... 1986 Series B and Subject November 30, 1986 Properties November 30, 1986................. 1986 Series C January 31, 1987 January 31, 1987.................. 1987 Series A April 1, 1987 April 1, 1987..................... 1987 Series B and 1987 August 15, 1987 Series C August 15, 1987................... 1987 Series D and 1987 November 30, 1987 Series E and Subject Properties November 30, 1987................. 1987 Series F June 15, 1989 June 15, 1989..................... 1989 Series A July 15, 1989 July 15, 1989..................... Series KKP No. 10 December 1, 1989 December 1, 1989.................. Series KKP No. 11 and 1989 February 15, 1990 Series BP February 15, 1990................. 1990 Series A, 1990 Series November 1, 1990 B, 1990 Series C, 1990 Series D, 1990 Series E and 1990 Series F November 1, 1990.................. Series KKP No. 12 April 1, 1991 April 1, 1991..................... 1991 Series AP May 1, 1991 May 1, 1991....................... 1991 Series BP and 1991 May 15, 1991 Series CP May 15, 1991...................... 1991 Series DP September 1, 1991 September 1, 1991................. 1991 Series EP November 1, 1991 November 1, 1991.................. 1991 Series FP January 15, 1992 January 15, 1992.................. 1992 Series BP February 29, 1992 and April 15, 1992 February 29, 1992................. 1992 Series AP April 15, 1992 April 15, 1992.................... Series KKP No. 13 July 15, 1992 July 15, 1992..................... 1992 Series CP November 30, 1992 July 31, 1992..................... 1992 Series D November 30, 1992 April 1, 1986..................... 1986 Series A and Subject August 15, 1986 Properties August 15, 1986................... 1986 Series B and Subject November 30, 1986 Properties November 30, 1986................. 1986 Series C January 31, 1987 January 31, 1987.................. 1987 Series A April 1, 1987 April 1, 1987..................... 1987 Series B and 1987 August 15, 1987 Series C August 15, 1987................... 1987 Series D and 1987 November 30, 1987 Series E and Subject Properties November 30, 1987................. 1987 Series F June 15, 1989 June 15, 1989..................... 1989 Series A July 15, 1989 July 15, 1989..................... Series KKP No. 10 December 1, 1989 December 1, 1989.................. Series KKP No. 11 and 1989 February 15, 1990 Series BP February 15, 1990................. 1990 Series A, 1990 Series November 1, 1990 B, 1990 Series C, 1990 Series D, 1990 Series E and 1990 Series F November 1, 1990.................. Series KKP No. 12 April 1, 1991 |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- April 1, 1991..................... 1991 Series AP May 1, 1991 May 1, 1991....................... 1991 Series BP and 1991 May 15, 1991 Series CP May 15, 1991...................... 1991 Series DP September 1, 1991 September 1, 1991................. 1991 Series EP November 1, 1991 November 1, 1991.................. 1991 Series FP January 15, 1992 January 15, 1992.................. 1992 Series BP February 29, 1992 and April 15, 1992 February 29, 1992................. 1992 Series AP April 15, 1992 April 15, 1992.................... Series KKP No. 13 July 15, 1992 July 15, 1992..................... 1992 Series CP November 30, 1992 November 30, 1992................. 1992 Series E and 1993 March 15, 1993 Series D December 15, 1992................. Series KKP No. 14 and 1989 March 15, 1992 Series BP No. 2 January 1, 1993................... 1993 Series C April 1, 1993 March 1, 1993..................... 1993 Series E June 30, 1993 March 15, 1993.................... 1993 Series D September 15, 1993 April 1, 1993..................... 1993 Series FP and 1993 September 15, 1993 Series IP April 26, 1993.................... 1993 Series G and Amendment September 15, 1993 of Article II, Section 5 May 31, 1993...................... 1993 Series J September 15, 1993 September 15, 1993................ 1993 Series K March 1, 1994 March 1, 1994..................... 1994 Series AP June 15, 1994 June 15, 1994..................... 1994 Series BP December 1, 1994 August 15, 1994................... 1994 Series C December 1, 1994 |
(b) See Supplemental Indenture dated as of May 1, 1953 for Secretary of State of Michigan filing information.
(c) See Supplemental Indenture dated as of May 1, 1974 for County of Genesee, Michigan recording and filing information.
Further, pursuant to the terms and provisions of the Original Indenture, a Supplemental Indenture dated as June 15, 1994 providing for the terms of bonds to be issued thereunder of 1994 Series BP has heretofore been entered into between the Company and the Trustee and has been filed in the Office of the Secretary of State of Michigan as a financing statement on July 1, 1994 (Filing No. 44411B), has been filed and recorded in the Office of the Interstate Commerce Commission (Recordation No. 5485-NNNN) on July 1, 1994, and has been recorded as a real estate mortgage in the offices of the respective Register of Deeds of certain counties in the State of Michigan, as follows: |
LIBER OF MORTGAGES OR COUNTY COUNTY RECORDED RECORDS PAGE ------ -------- --------- ---- Genesee.................................... July 5, 1994 3052 811-834 Huron...................................... July 1, 1994 630 333-356 Ingham..................................... July 1, 1994 2191 854-877 Lapeer..................................... July 1, 1994 0864 0459-0482 Lenawee.................................... July 1, 1994 1319 901-924 Livingston................................. July 1, 1994 1843 0672-0695 Macomb..................................... July 1, 1994 06381 684-707 Mason...................................... July 1, 1994 442 90-113 Monroe..................................... July 1, 1994 1390 0931-0954 Oakland.................................... July 20, 1994 14843 827-850 St. Clair.................................. July 5, 1994 1361 599-622 Sanilac.................................... July 1, 1994 459 74-97 Tuscola.................................... July 6, 1994 661 391-414 Washtenaw.................................. July 1, 1994 2997 527-550 Wayne...................................... July 1, 1994 27471 444-467 |
Further, pursuant to the terms and provisions of the Original Indenture, a Supplemental Indenture dated as August 15, 1994 providing for the terms of bonds to be issued thereunder of 1994 Series C has heretofore been entered into between the Company and the Trustee and has been filed in the Office of the Secretary of State of Michigan as a financing statement on August 16, 1994 (Filing No. 46000B), has been filed and recorded in the Office of the Interstate Commerce Commission (Recordation No. 5485-OOOO) on August 16, 1994, and has been recorded as a real estate mortgage in the offices of the respective Register of Deeds of certain counties in the State of Michigan, as follows: |
LIBER OF MORTGAGES OR COUNTY COUNTY RECORDED RECORDS PAGES ------ -------- --------- ----- Genesee.................................. August 16, 1994 3068 11-33 Huron.................................... August 16, 1994 632 650-672 Ingham................................... August 16, 1994 2202 288-310 Lapeer................................... August 16, 1994 0869 0936-0958 Lenawee.................................. August 16, 1994 1325 559-581 Livingston............................... August 16, 1994 1855 0990-1012 Macomb................................... August 16, 1994 06425 191-213 Mason.................................... August 16, 1994 443 561-583 Monroe................................... August 16, 1994 1398 0968-0990 Oakland.................................. August 16, 1994 14910 248-270 St. Clair................................ August 16, 1994 1370 957-979 Sanilac.................................. August 16, 1994 460 661-683 Tuscola.................................. August 16, 1994 662 1224-1246 Washtenaw................................ August 16, 1994 3016 827-849 Wayne.................................... August 16, 1994 27560 686-708 |
RECORDING OF All the bonds of Series A which were issued under the CERTIFICATES Original Indenture dated as of October 1, 1924, and of OF PROVISION Series B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, W, Y, FOR PAYMENT. Z, AA, BB, CC, DDP Nos. 1-9, FFR Nos. 1-14, GGP Nos. 1-22, HH, IIP Nos. 1-22, JJP Nos. 1-8, KKP Nos. 1-8, LLP Nos. 1-15, NNP Nos. 1-21, OOP Nos. 1-18, QQP Nos. 1-17, TTP Nos. 1-15, UU, 1980 Series A, 1980 Series CP Nos. 1-25, 1980 Series DP Nos. 1-11, 1981 Series AP Nos. 1-16, 1984 Series AP, 1984 Series BP, 1985 Series A, 1985 Series B, 1987 Series A, PP, RR, EE, MMP, MMP No. 2 and 1989 Series A which were issued under Supplemental Indentures dated as of, respectively, June 1, 1925, August 1, 1927, February 1, 1931, October 1, 1932, September 25, 1935, September 1, 1936, December 1, 1940, September 1, 1947, November 15, 1951, January 15, 1953, May 1, 1953, March 15, 1954, May 15, 1955, August 15, 1957, December 15, 1970, November 15, 1971, January 15, 1973, May 1, 1974, October 1, 1974, January 15, 1975, November 1, 1975, February 1, 1976, June 15, 1976, July 15, 1976, October 1, 1977, March 1, 1977, July 1, 1979, March 1, 1977, March 1, 1977, March 1, 1977, September 1, 1979, July 1, 1977, July 1, 1979, September 15, 1979, October 1, 1977, June 1, 1978, October 1, 1977, July 1, 1979, January 1, 1980, August 15, 1980, November 1, 1981, October 1, 1984, May 1, 1985, May 15, 1985, January 31, 1987, June 1, 1978, October 15, 1978, December 15, 1975, February 15, 1977, September 1, 1979 and June 15, 1989 have matured or have been called for redemption and funds sufficient for such payment or redemption have been irrevocably deposited with the Trustee for that purpose; and Certificates of Provision for Payment have been recorded in the offices of the respective Registers of Deeds of certain counties in the State of Michigan, with respect to all bonds of Series A, B, C, D, E, F, G, H, K, L, M, O, W, BB, CC, DDP Nos. 1 and 2, FFR Nos. 1-3, GGP Nos. 1 and 2, IIP No. 1, JJP No. 1, KKP No. 1, LLP No. 1 and GGP No. 8. PART IV. THE TRUSTEE. TERMS AND The Trustee hereby accepts the trust hereby declared and CONDITIONS OF provided, and agrees to perform the same upon the terms and ACCEPTANCE OF conditions in the Original Indenture, as amended to date and TRUST BY TRUSTEE. as supplemented by this Supplemental Indenture, and in this Supplemental Indenture set forth, and upon the following terms and conditions: The Trustee shall not be responsible in any manner whatsoever for and in respect of the validity or sufficiency of this Supplemental Indenture or the due execution hereof by the Company or for or in respect of the recitals contained herein, all of which recitals are made by the Company solely. PART V. MISCELLANEOUS. CONFIRMATION OF Except to the extent specifically provided therein, no SECTION 318(C) OF provision of this supplemental indenture or any future TRUST INDENTURE supplemental indenture is intended to modify, and the ACT parties do hereby adopt and confirm, the provisions of Section 318(c) of the Trust Indenture Act which amend and supercede provisions of the Indenture in effect prior to November 15, 1990. EXECUTION IN THIS SUPPLEMENTAL INDENTURE MAY BE SIMULTANEOUSLY COUNTERPARTS. EXECUTED IN ANY NUMBER OF COUNTERPARTS, EACH OF WHICH WHEN SO EXECUTED SHALL BE DEEMED TO BE AN ORIGINAL; BUT SUCH COUNTERPARTS SHALL TOGETHER CONSTITUTE BUT ONE AND THE SAME INSTRUMENT. |
TESTIMONIUM. IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY AND BANKERS TRUST COMPANY HAVE CAUSED THESE PRESENTS TO BE SIGNED IN THEIR RESPECTIVE CORPORATE NAMES BY THEIR RESPECTIVE CHAIRMEN OF THE BOARD, PRESIDENTS, VICE PRESIDENTS, ASSISTANT VICE PRESIDENTS, TREASURERS OR ASSISTANT TREASURERS AND IMPRESSED WITH THEIR RESPECTIVE CORPORATE SEALS, ATTESTED BY THEIR RESPECTIVE SECRETARIES OR ASSISTANT SECRETARIES, ALL AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN. |
THE DETROIT EDISON COMPANY, (Corporate Seal) By ______________________________ L. L. Loomans Vice President and Treasurer EXECUTION. Attest: ________________________________ Ronald J. Gdowski Assistant Corporate Secretary Signed, sealed and delivered by THE DETROIT EDISON COMPANY, in the presence of __________________________ Jack L. Somers __________________________ Cathy M. Lewis |
STATE OF MICHIGAN SS.: COUNTY OF WAYNE ACKNOWLEDGMENT On this day of December, 1994, before me, the OF EXECUTION subscriber, a Notary Public within and for the County of BY COMPANY. Wayne, in the State of Michigan, personally appeared L. L. Loomans, to me personally known, who, being by me duly sworn, did say that he does business at 2000 Second Avenue, Detroit, Michigan 48226 and is the Vice President and Treasurer of THE DETROIT EDISON COMPANY, one of the corporations described in and which executed the foregoing instrument; that he knows the corporate seal of the said corporation and that the seal affixed to said instrument is the corporate seal of said corporation; and that said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors and that he subscribed his name thereto by like authority; and said L. L. Loomans, acknowledged said instrument to be the free act and deed of said corporation. |
___________________________________ (Notarial Seal) Judith Thun, Notary Public Wayne County, MI My Commission Expires March 4, 1995 |
BANKERS TRUST COMPANY, (Corporate Seal) By ____________________________ Robert Caporale Vice President Attest: ________________________________ M. Lisa Morrone Assistant Vice President Signed, sealed and delivered by BANKERS TRUST COMPANY, in the presence of ___________________________ Scott Thiel ___________________________ Denise Mitchell |
STATE OF NEW YORK SS.: COUNTY OF NEW YORK |
ACKNOWLEDGMENT On this day of December, 1994, before me, the OF EXECUTION subscriber, a Notary Public within and for the County of New BY TRUSTEE. York, in the State of New York, personally appeared Robert Caporale, to me personally known, who, being by me duly sworn, did say that his business office is located at Four Albany Street, New York, New York 10015, and he is Vice President of BANKERS TRUST COMPANY, one of the corporations described in and which executed the foregoing instrument; that he knows the corporate seal of the said corporation and that the seal affixed to said instrument is the corporate seal of said corporation; and that said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors and that he subscribed his name thereto by like authority; and said Robert Caporale acknowledged said instrument to be the free act and deed of said corporation. |
(Notarial Seal) ___________________________________ Karen J. Morena Notary Public, State of New York No. 41-4991083 Qualified in Queens County Certificate Filed in New York County Commission Expires 1-21-96 |
STATE OF MICHIGAN
SS.:
COUNTY OF WAYNE
AFFIDAVIT AS TO L. L. Loomans, being duly sworn, says: that he is the Vice CONSIDERATION President and Treasurer of THE DETROIT EDISON COMPANY, the AND GOOD FAITH. Mortgagor named in the foregoing instrument, and that he has knowledge of the facts in regard to the making of said instrument and of the consideration therefor; that the consideration for said instrument was and is actual and adequate, and that the same was given in good faith for the purposes in such instrument set forth. |
------------------- L. L. Loomans Sworn to before me this day of December, 1994 /s/ JUDITH THUN --------------------------------------- Judith Thun, Notary Public Wayne County, MI My Commission Expires March 4, 1995 (Notarial Seal) This instrument was drafted by Frances B. Rohlman, Esq., 2000 Second Avenue, Detroit, Michigan 48226 |
EXHIBIT 4-221
EXECUTED IN COUNTERPARTS
OF WHICH THIS IS COUNTERPART NO. .
THE DETROIT EDISON COMPANY
(2000 Second Avenue,
Detroit, Michigan 48226)
TO
BANKERS TRUST COMPANY
(Four Albany Street,
New York, New York 10015)
AS TRUSTEE
INDENTURE
Dated as of August 1, 1995
SUPPLEMENTAL TO MORTGAGE AND DEED OF TRUST
DATED AS OF OCTOBER 1, 1924
PROVIDING FOR
(A) GENERAL AND REFUNDING MORTGAGE BONDS,
1995 SERIES AP, DUE SEPTEMBER 1, 2025
(B) GENERAL AND REFUNDING MORTGAGE BONDS,
1995 SERIES BP, DUE AUGUST 15, 2025
AND
(C) RECORDING AND FILING DATA
TABLE OF CONTENTS*
PAGE ---- PARTIES..................................................... 1 RECITALS Original Indenture and Supplementals...................... 1 Issue of Bonds under Indenture............................ 1 Bonds heretofore issued................................... 1 Reason for creation of new series......................... 5 Bonds to be 1995 Series AP and 1995 Series BP............. 5 Further Assurance......................................... 5 Authorization of Supplemental Indenture................... 5 Consideration for Supplemental Indenture.................. 5 PART I. CREATION OF THREE HUNDRED EIGHTEENTH SERIES OF BONDS GENERAL AND REFUNDING MORTGAGE BONDS, 1995 SERIES AP Sec. 1. Certain terms of Bonds of 1995 Series AP............ 6 Sec. 2. Redemption of Bonds of 1995 Series AP............... 8 Sec. 3. Redemption of Bonds of 1995 Series AP in event of acceleration of Strategic Fund Revenue Bonds........ 8 Sec. 4. Form of Bonds of 1995 Series AP..................... 9 Form of Trustee's Certificate....................... 14 PART II. CREATION OF THREE HUNDRED NINETEENTH SERIES OF BONDS GENERAL AND REFUNDING MORTGAGE BONDS, 1995 SERIES BP Sec. 1. Certain terms of Bonds of 1995 Series BP............ 15 Sec. 2. Redemption of Bonds of 1995 Series BP............... 17 Sec. 3. Redemption of Bonds of 1995 Series BP in event of acceleration of Strategic Fund Revenue Bonds........ 17 Sec. 4. Form of Bonds of 1995 Series BP..................... 18 Form of Trustee's Certificate....................... 23 PART III. RECORDING AND FILING DATA Recording and filing of Original Indenture.................. 24 Recording and filing of Supplemental Indentures............. 24 Recording of Certificates of Provision for Payment.......... 30 PART IV. THE TRUSTEE Terms and conditions of acceptance of trust by Trustee...... 30 PART V. MISCELLANEOUS Confirmation of Section 318(c) of Trust Indenture Act....... 30 Execution in Counterparts................................... 30 Testimonium................................................. 31 Execution................................................... 31 Acknowledgement of execution by Company..................... 31 Acknowledgement of execution by Trustee..................... 32 Affidavit as to consideration and good faith................ 33 |
PARTIES. SUPPLEMENTAL INDENTURE, dated as of the first day of August, in the year one thousand nine hundred and ninety-five, between THE DETROIT EDISON COMPANY, a corporation organized and existing under the laws of the State of Michigan and a transmitting utility (hereinafter called the "Company"), party of the first part, and BANKERS TRUST COMPANY, a corporation organized and existing under the laws of the State of New York, having its corporate trust office at Four Albany Street, in the Borough of Manhattan, The City and State of New York, as Trustee under the Mortgage and Deed of Trust hereinafter mentioned (hereinafter called the "Trus- tee"), party of the second part. ORIGINAL WHEREAS, the Company has heretofore executed and delivered INDENTURE AND its Mortgage and Deed of Trust (hereinafter referred to as SUPPLEMENTALS. the "Original Indenture"), dated as of October 1, 1924, to the Trustee, for the security of all bonds of the Company outstanding thereunder, and pursuant to the terms and provisions of the Original Indenture, indentures dated as of, respectively, June 1, 1925, August 1, 1927, February 1, 1931, June 1, 1931, October 1, 1932, September 25, 1935, September 1, 1936, November 1, 1936, February 1, 1940, December 1, 1940, September 1, 1947, March 1, 1950, November 15, 1951, January 15, 1953, May 1, 1953, March 15, 1954, May 15, 1955, August 15, 1957, June 1, 1959, December 1, 1966, October 1, 1968, December 1, 1969, July 1, 1970, December 15, 1970, June 15, 1971, November 15, 1971, January 15, 1973, May 1, 1974, October 1, 1974, January 15, 1975, November 1, 1975, December 15, 1975, February 1, 1976, June 15, 1976, July 15, 1976, February 15, 1977, March 1, 1977, June 15, 1977, July 1, 1977, October 1, 1977, June 1, 1978, October 15, 1978, March 15, 1979, July 1, 1979, September 1, 1979, September 15, 1979, January 1, 1980, April 1, 1980, August 15, 1980, August 1, 1981, November 1, 1981, June 30, 1982, August 15, 1982, June 1, 1983, October 1, 1984, May 1, 1985, May 15, 1985, October 15, 1985, April 1, 1986, August 15, 1986, November 30, 1986, January 31, 1987, April 1, 1987, August 15, 1987, November 30, 1987, June 15, 1989, July 15, 1989, December 1, 1989, February 15, 1990, November 1, 1990, April 1, 1991, May 1, 1991, May 15, 1991, September 1, 1991, November 1, 1991, January 15, 1992, February 29, 1992, April 15, 1992, July 15, 1992, July 31, 1992, November 30, 1992, December 15, 1992, January 1, 1993, March 1, 1993, March 15, 1993, April 1, 1993, April 26, 1993, May 31, 1993, June 30, 1993, June 30, 1993, September 15, 1993, March 1, 1994, June 15, 1994, August 15, 1994 and December 1, 1994 supplemental to the Original Indenture, have heretofore been entered into between the Company and the Trustee (the Original Indenture and all indentures supplemental thereto together being hereinafter sometimes referred to as the "Indenture"); and ISSUE OF WHEREAS, the Indenture provides that said bonds shall be BONDS UNDER issuable in one or more series, and makes provision that the INDENTURE. rates of interest and dates for the payment thereof, the date of maturity or dates of maturity, if of serial maturity, the terms and rates of optional redemption (if redeemable), the forms of registered bonds without coupons of any series and any other provisions and agreements in respect thereof, in the Indenture provided and permitted, as the Board of Directors may determine, may be expressed in a supplemental indenture to be made by the Company to the Trustee thereunder; and BONDS HERETOFORE WHEREAS, bonds in the principal amount of Eight billion ISSUED. three hundred twenty- eight million five hundred seventy-seven thousand dollars ($8,328,577,000) have hereto- fore been issued under the indenture as follows, viz: |
(1) Bonds of Series A -- Principal Amount $26,016,000, (2) Bonds of Series B -- Principal Amount $23,000,000, (3) Bonds of Series C -- Principal Amount $20,000,000, (4) Bonds of Series D -- Principal Amount $50,000,000, (5) Bonds of Series E -- Principal Amount $15,000,000, (6) Bonds of Series F -- Principal Amount $49,000,000, (7) Bonds of Series G -- Principal Amount $35,000,000, (8) Bonds of Series H -- Principal Amount $50,000,000, (9) Bonds of Series I -- Principal Amount $60,000,000, (10) Bonds of Series J -- Principal Amount $35,000,000, (11) Bonds of Series K -- Principal Amount $40,000,000, (12) Bonds of Series L -- Principal Amount $24,000,000, (13) Bonds of Series M -- Principal Amount $40,000,000, (14) Bonds of Series N -- Principal Amount $40,000,000, |
(15) Bonds of Series O -- Principal Amount $60,000,000, (16) Bonds of Series P -- Principal Amount $70,000,000, (17) Bonds of Series Q -- Principal Amount $40,000,000, (18) Bonds of Series W -- Principal Amount $50,000,000, (19) Bonds of Series AA -- Principal Amount $100,000,000, (20) Bonds of Series BB -- Principal Amount $50,000,000, (21) Bonds of Series CC -- Principal Amount $50,000,000, (22) Bonds of Series UU -- Principal Amount $100,000,000, (23-31) Bonds of Series DDP Nos. 1-9 -- Principal Amount $14,305,000, (32-45) Bonds of Series FFR Nos. 1-14 -- Principal Amount $45,600,000, (46-67) Bonds of Series GGP Nos. 1-22 -- Principal Amount $42,300,000, (68) Bonds of Series HH -- Principal Amount $50,000,000, (69-90) Bonds of Series IIP Nos. 1-22 -- Principal Amount $3,750,000, (91-98) Bonds of Series JJP Nos. 1-8 -- Principal Amount $6,850,000, (99-106) Bonds of Series KKP Nos. 1-8 -- Principal Amount $14,890,000, (107-121) Bonds of Series LLP Nos. 1-15 -- Principal Amount $8,850,000, (122-142) Bonds of Series NNP Nos. 1-21 -- Principal Amount $47,950,000, (143-160) Bonds of Series OOP Nos. 1-18 -- Principal Amount $18,880,000, (161-179) Bonds of Series QQP Nos. 1-19 -- Principal Amount $13,650,000, (180-194) Bonds of Series TTP Nos. 1-15 -- Principal Amount $3,800,000, (195) Bonds of 1980 Series A -- Principal Amount $50,000,000, (196-220) Bonds of 1980 Series CP Nos. 1-25 -- Principal Amount $35,000,000, (221-231) Bonds of 1980 Series DP Nos. 1-11 -- Principal Amount $10,750,000, (232-247) Bonds of 1981 Series AP Nos. 1-16 -- Principal Amount $124,000,000, (248) Bonds of 1985 Series A -- Principal Amount $35,000,000, (249) Bonds of 1985 Series B -- Principal Amount $50,000,000, (250) Bonds of Series PP -- Principal Amount $70,000,000, (251) Bonds of Series RR -- Principal Amount $70,000,000, (252) Bonds of Series EE -- Principal Amount $50,000,000, (253-254) Bonds of Series MMP and MMP No. 2 -- Principal Amount $5,430,000, (255) Bonds of Series T -- Principal Amount $75,000,000, (256) Bonds of Series U -- Principal Amount $75,000,000, (257) Bonds of 1986 Series B -- Principal Amount $100,000,000, (258) Bonds of 1987 Series D -- Principal Amount $250,000,000, (259) Bonds of 1987 Series E -- Principal Amount $150,000,000, (260) Bonds of 1987 Series C -- Principal Amount $225,000,000, (261) Bonds of Series V -- Principal Amount $100,000,000, (262) Bonds of Series SS -- Principal Amount $150,000,000, (263) Bonds of 1980 Series B -- Principal Amount $100,000,000, (264) Bonds of 1986 Series C -- Principal Amount $200,000,000, (265) Bonds of 1986 Series A -- Principal Amount $200,000,000, (266) Bonds of 1987 Series B -- Principal Amount $175,000,000, (267) Bonds of Series X -- Principal Amount $100,000,000, (268) Bonds of 1987 Series F -- Principal Amount $200,000,000, (269) Bonds of 1987 Series A -- Principal Amount $300,000,000, (270) Bonds of Series Y -- Principal Amount $60,000,000, (271) Bonds of Series Z -- Principal Amount $100,000,000, (272) Bonds of 1989 Series A -- Principal Amount $300,000,000, (273) Bonds of 1984 Series AP -- Principal Amount $2,400,000 (274) Bonds of 1984 Series BP -- Principal Amount $7,750,000 |
all of which have either been retired and cancelled, or no longer represent obligations of the Company, having been called for redemption and funds necessary to effect the payment, redemption and retirement thereof having been deposited with the Trustee as a special trust fund to be applied for such purpose; (275) Bonds of Series R in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof; |
(276) Bonds of Series S in the principal amount of One hundred fifty million dollars ($150,000,000), all of which are outstanding at the date hereof; (277-283) Bonds of Series KKP Nos. 9-15 in the principal amount of One hundred ninety-nine million five hundred ninety thousand dollars ($199,590,000), all of which are outstanding at the date hereof; (284) Bonds of 1989 Series BP in the principal amount of Sixty-six million five hundred sixty-five thousand dollars ($66,565,000), all of which are outstanding at the date hereof; (285) Bonds of 1990 Series A in the principal amount of One hundred ninety-four million six hundred forty-nine thousand dollars ($194,649,000) of which Thirty-seven million six hundred seventy-four thousand dollars ($37,674,000) principal amount have heretofore been retired and One hundred fifty-six million nine hundred seventy-five thousand dollars ($156,975,000) principal amount are outstanding at the date hereof; (286) Bonds of 1990 Series B in the principal amount of Two hundred fifty-six million nine hundred thirty-two thousand dollars ($256,932,000) of which Fifty-seven million ninety-six thousand dollars ($57,096,000) principal amount have heretofore been retired and One hundred ninety-nine million eight hundred thirty-six thousand dollars ($199,836,000) principal amount are outstanding at the date hereof; (287) Bonds of 1990 Series C in the principal amount of Eighty-five million four hundred seventy-five thousand dollars ($85,475,000) of which Twenty million five hundred fourteen thousand dollars ($20,514,000) principal amount have heretofore been retired and Sixty-four million nine hundred sixty-one thousand dollars ($64,961,000) principal amount are outstanding at the date hereof; (288) Bonds of 1991 Series AP in the principal amount of Thirty-two million three hundred seventy-five thousand dollars ($32,375,000), all of which are outstanding at the date hereof; (289) Bonds of 1991 Series BP in the principal amount of Twenty-five million nine hundred ten thousand dollars ($25,910,000), all of which are outstanding at the date hereof; (290) Bonds of 1991 Series CP in the principal amount of Thirty-two million eight hundred thousand dollars ($32,800,000), all of which are outstanding at the date hereof; (291) Bonds of 1991 Series DP in the principal amount of Thirty-seven million six hundred thousand dollars ($37,600,000), all of which are outstanding at the date hereof; (292) Bonds of 1991 Series EP in the principal amount of Forty-one million four hundred eighty thousand dollars ($41,480,000), all of which are outstanding at the date hereof; (293) Bonds of 1991 Series FP in the principal amount of Ninety-eight million three hundred seventy-five thousand dollars ($98,375,000), all of which are outstanding at the date hereof; (294) Bonds of 1992 Series BP in the principal amount of Twenty million nine hundred seventy-five thousand dollars ($20,975,000), all of which are outstanding at the date hereof; (295) Bonds of 1992 Series AP in the principal amount of Sixty-six million dollars ($66,000,000), all of which are outstanding at the date hereof; (296) Bonds of 1992 Series D in the principal amount of Three hundred million dollars ($300,000,000), of which Ten million dollars ($10,000,000) principal amount have heretofore been retired and Two hundred ninety million ($290,000,000) principal amount are outstanding at the date hereof; (297) Bonds of 1992 Series CP in the principal amount of Thirty-five million dollars ($35,000,000), all of which are outstanding at the date hereof; (298) Bonds of 1992 Series E in the principal amount of Fifty million dollars ($50,000,000), all of which are outstanding at the date hereof; (299) Bonds of 1989 Series BP No. 2 in the principal amount of Thirty-six million dollars ($36,000,000), all of which are outstanding at the date hereof; |
(300) Bonds of 1993 Series C in the principal amount of Two hundred twenty-five million dollars ($225,000,000), all of which are outstanding at the date hereof; (301) Bonds of 1993 Series B in the principal amount of Fifty million dollars ($50,000,000), all of which are outstanding at the date hereof; (302) Bonds of 1993 Series E in the principal amount of Four hundred million dollars ($400,000,000), of which Ten million dollars ($10,000,000) principal amount have heretofore been retired and Three hundred ninety million ($390,000,000) principal amount are outstanding at the date hereof; (303) Bonds of 1993 Series D in the principal amount of One hundred million dollars ($100,000,000), all of which are outstanding at the date hereof; (304) Bonds of 1993 Series FP in the principal amount of Five million six hundred eighty-five thousand dollars ($5,685,000), all of which are outstanding at the date hereof; (305) Bonds of 1993 Series G in the principal amount of Two hundred twenty-five million dollars ($225,000,000), all of which are outstanding at the date hereof; (306) Bonds of 1993 Series J in the principal amount of Three hundred million dollars ($300,000,000), of which Thirty million dollars ($30,000,000) principal amount have heretofore been retired and Two hundred seventy million ($270,000,000) principal amount are outstanding at the date hereof; (307) Bonds of 1993 Series IP in the principal amount of Five million eight hundred twenty-five thousand dollars ($5,825,000), all of which are outstanding at the date hereof; (308) Bonds of 1993 Series AP in the principal amount of Sixty-five million dollars ($65,000,000), all of which are outstanding at the date hereof; (309) Bonds of 1993 Series H in the principal amount of Fifty million dollars ($50,000,000), all of which are outstanding at the date hereof; (310) Bonds of 1993 Series K in the principal amount of One hundred sixty million dollars ($160,000,000), all of which are outstanding at the date hereof; (311) Bonds of 1994 Series AP in the principal amount of Seven million five hundred thirty-five thousand dollars ($7,535,000), all of which are outstanding at the date hereof; (312) Bonds of 1994 Series BP in the principal amount of Twelve million nine hundred thirty-five thousand dollars ($12,935,000), all of which are outstanding at the date hereof; (313) Bonds of 1994 Series C in the principal amount of Two hundred million dollars ($200,000,000), all of which are outstanding at the date hereof; (314) Bonds of 1994 Series DP in the principal amount of Twenty-three million seven hundred thousand dollars ($23,700,000), all of which are outstanding at the date hereof; and, accordingly, of the bonds so issued, Three billion four hundred ninety-five million one hundred twenty-two thousand dollars ($3,495,122,000) principal amount are outstanding at the date hereof; and |
REASON FOR WHEREAS, the Michigan Strategic Fund has agreed to issue CREATION OF and sell $97,000,000 principal amount of its Limited NEW SERIES. Obligation Refunding Revenue Bonds (The Detroit Edison Company Pollution Control Bonds Project), Collateralized Series 1995AA, in order to provide funds for the refunding of certain pollution control related bonds previously issued to finance pollution control projects of the Company; and WHEREAS, the Company will enter into a Loan Agreement, dated as of September 1, 1995, with the Michigan Strategic Fund in connection with the issuance of the Collateralized Series 1995AA Bonds in order to refund certain pollution control related bonds, and pursuant to such Loan Agreement the Company has agreed to issue its General and Refunding Mortgage Bonds under the Indenture in order further to secure its obligations under such Loan Agreement; and WHEREAS, the Michigan Strategic Fund has agreed to issue and sell $22,175,000 principal amount of its Limited Obligation Refunding Revenue Bonds (The Detroit Edison Company Pollution Control Bonds Project), Collateralized Series 1995BB, in order to provide funds for the refunding of certain pollution control related bonds previously issued to finance pollution control projects of the Company; and |
WHEREAS, the Company will enter into a Loan Agreement, dated as of August 1, 1995, with the Michigan Strategic Fund in connection with the issuance of the Collateralized Series 1995BB Bonds in order to refund certain pollution control related bonds, and pursuant to such Loan Agreement the Company has agreed to issue its General and Refunding Mortgage Bonds under the Indenture in order further to secure its obligations under such Loan Agreement; and WHEREAS, for such purposes the Company desires to issue new series of bonds to be issued under the Indenture and to be authenticated and delivered pursuant to Section 8 of Article III of the Indenture; and BONDS TO BE WHEREAS, the Company desires by this Supplemental 1995 SERIES AP AND Indenture to create new series of bonds, to be designated 1995 SERIES BP. "General and Refunding Mortgage Bonds, 1995 Series AP" and "General and Refunding Mortgage Bonds, 1995 Series BP"; and FURTHER WHEREAS, the Original Indenture, by its terms, includes in ASSURANCE. the property subject to the lien thereof all of the estates and properties, real, personal and mixed, rights, privileges and franchises of every nature and kind and wheresoever situate, then or thereafter owned or possessed by or belonging to the Company or to which it was then or at any time thereafter might be entitled in law or in equity (saving and excepting, however, the property therein specifically excepted or released from the lien thereof), and the Company therein covenanted that it would, upon reasonable request, execute and deliver such further instruments as may be necessary or proper for the better assuring and confirming unto the Trustee all or any part of the trust estate, whether then or thereafter owned or acquired by the Company (saving and excepting, however, property specifically excepted or released from the lien thereof); and AUTHORIZATION WHEREAS, the Company in the exercise of the powers and OF SUPPLEMENTAL authority conferred upon and reserved to it under and by INDENTURE. virtue of the provisions of the Indenture, and pursuant to resolutions of its Board of Directors has duly resolved and determined to make, execute and deliver to the Trustee a supplemental indenture in the form hereof for the purposes herein provided; and WHEREAS, all conditions and requirements necessary to make this Supplemental Indenture a valid and legally binding instrument in accordance with its terms have been done, performed and fulfilled, and the execution and delivery hereof have been in all respects duly authorized; CONSIDERATION NOW, THEREFORE, THIS INDENTURE WITNESSETH: That The FOR SUPPLEMENTAL Detroit Edison Company, in consideration of the premises and INDENTURE. of the covenants contained in the Indenture and of the sum of One Dollar ($1.00) and other good and valuable consideration to it duly paid by the Trustee at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, hereby covenants and agrees to and with the Trustee and its successors in the trusts under the Original Indenture and in said indentures supplemental thereto as follows: |
PART I. CREATION OF THREE HUNDRED EIGHTEENTH SERIES OF BONDS. GENERAL AND REFUNDING MORTGAGE BONDS, 1995 SERIES AP CERTAIN TERMS SECTION 1. The Company hereby creates the Three hundred OF BONDS OF eighteenth series of bonds to be issued under and secured by 1995 SERIES AP. the Original Indenture as amended to date and as further amended by this Supplemental Indenture, to be designated, and to be distinguished from the bonds of all other series, by the title "General and Refunding Mortgage Bonds, 1995 Series AP" (elsewhere herein referred to as the "bonds of 1995 Series AP"). The aggregate principal amount of bonds of 1995 Series AP shall be limited to Ninety-seven million dollars ($97,000,000), except as provided in Sections 7 and 13 of Article II of the Original Indenture with respect to exchanges and replacements of bonds. Each bond of 1995 Series AP is to be irrevocably assigned to, and registered in the name of, NBD Bank, as trustee, or a successor trustee (said trustee or any successor trustee being hereinafter referred to as the "Strategic Fund Trust Indenture Trustee"), under the Trust Indenture, dated as of September 1, 1995 (hereinafter called the "Strategic Fund Trust Indenture"), between the Michigan Strategic Fund (hereinafter called "Strategic Fund"), and the Strategic Fund Trust Indenture Trustee, to secure payment of the Michigan Strategic Fund Limited Obligation Refunding Revenue Bonds (The Detroit Edison Company Pollution Control Bonds Project), Collateralized Series 1995AA (hereinafter called the "Strategic Fund Revenue Bonds"), issued by the Strategic Fund under the Strategic Fund Trust Indenture, the proceeds of which have been provided for the refunding of certain pollution control related bonds which the Company has agreed to refund pursuant to the provisions of the Loan Agreement, dated as of September 1, 1995 (hereinafter called the "Strategic Fund Agreement"), between the Company and the Strategic Fund. The bonds of 1995 Series AP shall be issued as registered bonds without coupons in denominations of a multiple of $5,000. The bonds of 1995 Series AP shall be issued in the aggregate principal amount of $97,000,000, shall mature on September 1, 2025 and shall bear interest, payable semi-annually on March 1 and September 1 of each year (commencing March 1, 1996), at the rate of 6.40%, until the principal thereof shall have become due and payable and thereafter until the Company's obligation with respect to the payment of said principal shall have been discharged as provided in the Indenture. The bonds of 1995 Series AP shall be payable as to principal, premium, if any, and interest as provided in the Indenture, but only to the extent and in the manner herein provided. The bonds of 1995 Series AP shall be payable, both as to principal and interest, at the office or agency of the Company in the Borough of Manhattan, The City and State of New York, in any coin or currency of the United States of America which at the time of payment is legal tender for public and private debts. Except as provided herein, each bond of 1995 Series AP shall be dated the date of its authentication and interest shall be payable on the principal represented thereby from the March 1 or September 1 next preceding the date thereof to which interest has been paid on bonds of 1995 Series AP, unless the bond is authenticated on a date to which interest has been paid, in which case interest shall be payable from the date of authentication, or unless the date of authentication is prior to March 1, 1996, in which case interest shall be payable from September 1, 1995. |
The bonds of 1995 Series AP in definitive form shall be, at the election of the Company, fully engraved or shall be lithographed or printed in authorized denominations as aforesaid and numbered 1 and upwards (with such further designation as may be appropriate and desirable to indicate by such designation the form, series and denominations of bonds of 1995 Series AP). Until bonds of 1995 Series AP in definitive form are ready for delivery, the Company may execute, and upon its request in writing the Trustee shall authenticate and deliver in lieu thereof, bonds of 1995 Series AP in temporary form, as provided in Section 10 of Article II of the Indenture. Temporary bonds of 1995 Series AP, if any, may be printed and may be issued in authorized denominations in substantially the form of definitive bonds of 1995 Series AP, but with such omissions, insertions and variations as may be appropriate for temporary bonds, all as may be determined by the Company. Bonds of 1995 Series AP shall not be assignable or transferable except as may be required to effect a transfer to any successor trustee under the Strategic Fund Trust Indenture, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under the Strategic Fund Trust Indenture. Any such transfer shall be made upon surrender thereof for cancellation at the office or agency of the Company in the Borough of Manhattan, The City and State of New York, together with a written instrument of transfer (if so required by the Company or by the Trustee) in form approved by the Company duly executed by the holder or by its duly authorized attorney. Bonds of 1995 Series AP shall in the same manner be exchangeable for a like aggregate principal amount of bonds of 1995 Series AP upon the terms and conditions specified herein and in Section 7 of Article II of the Indenture. The Company waives its rights under Section 7 of Article II of the Indenture not to make exchanges or transfers of bonds of 1995 Series AP, during any period of ten days next preceding any redemption date for such bonds. Bonds of 1995 Series AP, in definitive and temporary form, may bear such legends as may be necessary to comply with any law or with any rules or regulations made pursuant thereto or as may be specified in the Strategic Fund Agreement. Upon payment of the principal or premium, if any, or interest on the Strategic Fund Revenue Bonds, whether at maturity or prior to maturity by redemption or otherwise, or upon provision for the payment thereof having been made in accordance with Articles I or IV of the Strategic Fund Trust Indenture, bonds of 1995 Series AP in a principal amount equal to the principal amount of the Strategic Fund Revenue Bonds, shall, to the extent of such payment of principal, premium or interest, be deemed fully paid and the obligation of the Company thereunder to make such payment shall forthwith cease and be discharged, and, in the case of the payment of principal and premium, if any, such bonds shall be surrendered for cancellation or presented for appropriate notation to the Trustee. |
REDEMPTION SECTION 2. Bonds of 1995 Series AP shall be redeemed on OF BONDS OF the date and in the respective principal amount which 1995 SERIES AP. correspond to the redemption date for, and the principal amount to be redeemed of, the Strategic Fund Revenue Bonds. In the event the Company elects to redeem any Strategic Fund Revenue Bonds prior to maturity in accordance with the provisions of the Strategic Fund Trust Indenture, the Company shall on the same date redeem bonds of 1995 Series AP in the principal amount and at the redemption price corresponding to the Strategic Fund Revenue Bonds so redeemed. The Company agrees to give the Trustee notice of any such redemption of bonds of 1995 Series AP on the same date as it gives notice of redemption of Strategic Fund Revenue Bonds to the Strategic Fund Trust Indenture Trustee. REDEMPTION SECTION 3. In the event of an Event of Default under the OF BONDS OF 1995 SERIES Strategic Fund Trust Indenture and the acceleration of all AP IN EVENT OF Strategic Fund Revenue Bonds, the bonds of 1995 Series AP ACCELERATION shall be redeemable in whole upon receipt by the Trustee of OF STRATEGIC FUND a written demand (hereinafter called a "Redemption Demand") REVENUE BONDS. from the Strategic Fund Trust Indenture Trustee stating that there has occurred under the Strategic Fund Trust Indenture both an Event of Default and a declaration of acceleration of payment of principal, accrued interest and premium, if any, on the Strategic Fund Revenue Bonds, specifying the last date to which interest on the Strategic Fund Revenue Bonds has been paid (such date being hereinafter referred to as the "Initial Interest Accrual Date") and demanding redemption of the bonds of said series. The Trustee shall, within five days after receiving such Redemption Demand, mail a copy thereof to the Company marked to indicate the date of its receipt by the Trustee. Promptly upon receipt by the Company of such copy of a Redemption Demand, the Company shall fix a date on which it will redeem the bonds of said series so demanded to be redeemed (hereinafter called the "Demand Redemption Date"). Notice of the date fixed as the Demand Redemption Date shall be mailed by the Company to the Trustee at least ten days prior to such Demand Redemption Date. The date to be fixed by the Company as and for the Demand Redemption Date may be any date up to and including the earlier of (x) the 60th day after receipt by the Trustee of the Redemption Demand or (y) the maturity date of such bonds first occurring following the 20th day after the receipt by the Trustee of the Redemption Demand; provided, however, that if the Trustee shall not have received such notice fixing the Demand Redemption Date on or before the 10th day preceding the earlier of such dates, the Demand Redemption Date shall be deemed to be the earlier of such dates. The Trustee shall mail notice of the Demand Redemption Date (such notice being hereinafter called the "Demand Redemption Notice") to the Strategic Fund Trust Indenture Trustee not more than ten nor less than five days prior to the Demand Redemption Date. |
Each bond of 1995 Series AP shall be redeemed by the Company on the Demand Redemption Date therefore upon surrender thereof by the Strategic Fund Trust Indenture Trustee to the Trustee at a redemption price equal to the principal amount thereof plus accrued interest thereon at the rate specified for such bond from the Initial Interest Accrual Date to the Demand Redemption Date plus an amount equal to the aggregate premium, if any, due and payable on such Demand Redemption Date on all Strategic Fund Revenue Bonds; provided, however, that in the event of a receipt by the Trustee of a notice that, pursuant to Section 604 of the Strategic Fund Trust Indenture, the Strategic Fund Trust Indenture Trustee has terminated proceedings to enforce any right under the Strategic Fund Trust Indenture, then any Redemption Demand shall thereby be rescinded by the Strategic Fund Trust Indenture Trustee, and no Demand Redemption Notice shall be given, or, if already given, shall be automatically annulled; but no such rescission or annulment shall extend to or affect any subsequent default or impair any right consequent thereon. Anything herein contained to the contrary notwithstanding, the Trustee is not authorized to take any action pursuant to a Redemption Demand and such Redemption Demand shall be of no force or effect, unless it is executed in the name of the Strategic Fund Trust Indenture Trustee by its President or one of its Vice Presidents. FORM OF BONDS SECTION 4. The bonds of 1995 Series AP and the form of OF 1995 SERIES AP. Trustee's Certificate to be endorsed on such bonds shall be substantially in the following forms, respectively: |
[FORM OF FACE OF BOND] THE DETROIT EDISON COMPANY General and Refunding Mortgage Bond 1995 Series AP, 6.40% due September 1, 2025 Notwithstanding any provisions hereof or in the Indenture, this bond is not assignable or transferable except as may be required to effect a transfer to any successor trustee under the Trust Indenture, dated as of September 1, 1995 between the Michigan Strategic Fund and NBD Bank, as trustee, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under said Trust Indenture. $......... No.......... THE DETROIT EDISON COMPANY (hereinafter called the "Company"), a corporation of the State of Michigan, for value received, hereby promises to pay to the Michigan Strategic Fund, or registered assigns, at the Company's office or agency in the Borough of Manhattan, The City and State of New York, the principal sum of dollars ($ ) in lawful money of the United States of America on the date specified in the title hereof and interest thereon at the rate specified in the title hereof, in like lawful money, from September 1, 1995, and after the first payment of interest on bonds of this Series has been made or otherwise provided for, from the most recent date to which interest has been paid or otherwise provided for, semi-annually on March 1 and September 1 of each year (commencing March 1, 1996), until the Company's obligation with respect to payment of said principal shall have been discharged, all as provided, to the extent and in the manner specified in the Indenture hereinafter mentioned on the reverse hereof and in the supplemental indenture pursuant to which this bond has been issued. Under a Trust Indenture, dated as of September 1, 1995 (hereinafter called the "Strategic Fund Trust Indenture"), between the Michigan Strategic Fund (hereinafter called "Strategic Fund"), and NBD Bank, as trustee (hereinafter called the "Strategic Fund Trust Indenture Trustee"), the Strategic Fund has issued Limited Obligation Refunding Revenue Bonds (The Detroit Edison Company Pollution Control Bonds Project), Collateralized Series 1995AA (hereinafter called the "Strategic Fund Revenue Bonds"). This bond was originally issued to the Strategic Fund and simultaneously irrevocably assigned to the Strategic Fund Trust Indenture Trustee so as to secure the payment of the Strategic Fund Revenue Bonds. Payments of principal of, or premium, if any, or interest on, Strategic Fund Revenue Bonds shall constitute like payments on this bond as further provided herein and in the supplemental indenture pursuant to which this bond has been issued. Reference is hereby made to such further provisions of this bond set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though set forth at this place. This bond shall not be valid or become obligatory for any purpose until Bankers Trust Company, the Trustee under the Indenture hereinafter mentioned on the reverse hereof, or its successor thereunder, shall have signed the form of certificate endorsed hereon. |
IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY has caused this instrument to be executed by its Chairman of the Board and its Vice President and Treasurer, with their manual or facsimile signatures, and its corporate seal, or a facsimile thereof, to be impressed or imprinted hereon and the same to be attested by its Corporate Secretary or an Assistant Corporate Secretary with his or her manual or facsimile signature. |
Dated: THE DETROIT EDISON COMPANY By ............................ Chairman of the Board ............................ Vice President Attest: and Treasurer ............................ Vice President and Corporate Secretary |
[FORM OF REVERSE OF BOND] This bond is one of an authorized issue of bonds of the Company, unlimited as to amount except as provided in the Indenture hereinafter mentioned or any indentures supplemental thereto, and is one of a series of General and Refunding Mortgage Bonds known as 1995 Series AP, limited to an aggregate principal amount of $97,000,000, except as otherwise provided in the Indenture hereinafter mentioned. This bond and all other bonds of said series are issued and to be issued under, and are all equally and ratably secured (except insofar as any sinking, amortization, improvement or analogous fund, established in accordance with the provisions of the Indenture hereinafter mentioned, may afford additional security for the bonds of any particular series and except as provided in Section 3 of Article VI of said Indenture) by an Indenture, dated as of October 1, 1924, duly executed by the Company to Bankers Trust Company, a corporation of the State of New York, as Trustee, to which Indenture and all indentures supplemental thereto (including the Supplemental Indenture dated as of August 1, 1995) reference is hereby made for a description of the properties and franchises mortgaged and conveyed, the nature and extent of the security, the terms and conditions upon which the bonds are issued and under which additional bonds may be issued, and the rights of the holders of the bonds and of the Trustee in respect of such security (which Indenture and all indentures supplemental thereto, including the Supplemental Indenture dated as of August 1, 1995, are hereinafter collectively called the "Indenture"). As provided in the Indenture, said bonds may be for various principal sums and are issuable in series, which may mature at different times, may bear interest at different rates and may otherwise vary as in said Indenture provided. With the consent of the Company and to the extent permitted by and as provided in the Indenture, the rights and obligations of the Company and of the holders of the bonds and the terms and provisions of the Indenture, or of any indenture supplemental thereto, may be modified or altered in certain respects by affirmative vote of at least eighty-five percent (85%) in amount of the bonds then outstanding, and, if the rights of one or more, but less than all, series of bonds then outstanding are to be affected by the action proposed to be taken, then also by affirmative vote of at least eighty-five percent (85%) in amount of the series of bonds so to be affected (excluding in every instance bonds disqualified from voting by reason of the Company's interest therein as specified in the Indenture); provided, however, that, without the consent of the holder hereof, no such modification or alteration shall, among other things, affect the terms of payment of the principal of or the interest on this bond, which in those respects is unconditional. This bond is redeemable upon the terms and conditions set forth in the Indenture, including provision for redemption upon demand of the Strategic Fund Trust Indenture Trustee following the occurrence of an Event of Default under the Strategic Fund Trust Indenture and the acceleration of the principal of the Strategic Fund Revenue Bonds. Under the Indenture, funds may be deposited with the Trustee (which shall have become available for payment), in advance of the redemption date of any of the bonds of 1995 Series AP (or portions thereof), in trust for the redemption of such bonds (or portions thereof) and the interest due or to become due thereon, and thereupon all obligations of the Company in respect of such bonds (or portions thereof) so to be redeemed and such interest shall cease and be discharged, and the holders thereof shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or with respect to such bonds (or portions thereof) and interest. In case an event of default, as defined in the Indenture, shall occur, the principal of all the bonds issued thereunder may become or be declared due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture. |
Upon payment of the principal of, or premium, if any, or interest on, the Strategic Fund Revenue Bonds, whether at maturity or prior to maturity by redemption or otherwise or upon provision for the payment thereof having been made in accordance with Articles I or IV of the Strategic Fund Trust Indenture, bonds of 1995 Series AP in a principal amount equal to the principal amount of such Strategic Fund Revenue Bonds and having both a corresponding maturity date and interest rate shall, to the extent of such payment of principal, premium or interest, be deemed fully paid and the obligation of the Company thereunder to make such payment shall forthwith cease and be discharged, and, in the case of the payment of principal and premium, if any, such bonds of said series shall be surrendered for cancellation or presented for appropriate notation to the Trustee. This bond is not assignable or transferable except as may be required to effect a transfer to any successor trustee under the Strategic Fund Trust Indenture, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under the Strategic Fund Trust Indenture. Any such transfer shall be made by the registered holder hereof, in person or by his attorney duly authorized in writing, on the books of the Company kept at its office or agency in the Borough of Manhattan, The City and State of New York, upon surrender and cancellation of this bond, and thereupon, a new registered bond of the same series of authorized denominations for a like aggregate principal amount will be issued to the transferee in exchange therefor, and this bond with others in like form may in like manner be exchanged for one or more new bonds of the same series of other authorized denominations, but of the same aggregate principal amount, all as provided and upon the terms and conditions set forth in the Indenture, and upon payment, in any event, of the charges prescribed in the Indenture. No recourse shall be had for the payment of the principal of or the interest on this bond, or for any claim based hereon or otherwise in respect hereof or of the Indenture, or of any indenture supplemental thereto, against any incorporator, or against any past, present or future stockholder, director or officer, as such, of the Company, or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether for amounts unpaid on stock subscriptions or by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise howsoever; all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released by every holder or owner hereof, as more fully provided in the Indenture. |
[FORM OF TRUSTEE'S CERTIFICATE] FORM OF This bond is one of the bonds, of the series designated TRUSTEE'S therein, described in the within-mentioned Indenture. CERTIFICATE. |
BANKERS TRUST COMPANY,
as Trustee
By ...........................
Authorized Officer
PART II. CREATION OF THREE HUNDRED NINETEENTH SERIES OF BONDS. GENERAL AND REFUNDING MORTGAGE BONDS, 1995 SERIES BP CERTAIN TERMS SECTION 1. The Company hereby creates the Three hundred OF BONDS OF nineteenth series of bonds to be issued under and secured by 1995 SERIES BP. the Original Indenture as amended to date and as further amended by this Supplemental Indenture, to be designated, and to be distinguished from the bonds of all other series, by the title "General and Refunding Mortgage Bonds, 1995 Series BP" (elsewhere herein referred to as the "bonds of 1995 Series BP"). The aggregate principal amount of bonds of 1995 Series BP shall be limited to Twenty-two million one hundred seventy-five thousand dollars ($22,175,000), except as provided in Sections 7 and 13 of Article II of the Original Indenture with respect to exchanges and replacements of bonds. Each bond of 1995 Series BP is to be irrevocably assigned to, and registered in the name of, Comerica Bank, as trustee, or a successor trustee (said trustee or any successor trustee being hereinafter referred to as the "Strategic Fund Trust Indenture Trustee"), under the Trust Indenture, dated as of August 1, 1995 (hereinafter called the "Strategic Fund Trust Indenture"), between the Michigan Strategic Fund (hereinafter called "Strategic Fund"), and the Strategic Fund Trust Indenture Trustee, to secure payment of the Michigan Strategic Fund Limited Obligation Refunding Revenue Bonds (The Detroit Edison Company Pollution Control Bonds Project), Collateralized Series 1995BB (hereinafter called the "Strategic Fund Revenue Bonds"), issued by the Strategic Fund under the Strategic Fund Trust Indenture, the proceeds of which have been provided for the refunding of certain pollution control related bonds which the Company has agreed to refund pursuant to the provisions of the Loan Agreement, dated as of August 1, 1995 (hereinafter called the "Strategic Fund Agreement"), between the Company and the Strategic Fund. The bonds of 1995 Series BP shall be issued as registered bonds without coupons in denominations of a multiple of $5,000. The bonds of 1995 Series BP shall be issued in the aggregate principal amount of $22,175,000, shall mature on August 15, 2025 and shall bear interest, payable semi-annually on February 15 and August 15 of each year (commencing February 15, 1996), at the rate of 6.20%, until the principal thereof shall have become due and payable and thereafter until the Company's obligation with respect to the payment of said principal shall have been discharged as provided in the Indenture. The bonds of 1995 Series BP shall be payable as to principal, premium, if any, and interest as provided in the Indenture, but only to the extent and in the manner herein provided. The bonds of 1995 Series BP shall be payable, both as to principal and interest, at the office or agency of the Company in the Borough of Manhattan, The City and State of New York, in any coin or currency of the United States of America which at the time of payment is legal tender for public and private debts. Except as provided herein, each bond of 1995 Series BP shall be dated the date of its authentication and interest shall be payable on the principal represented thereby from the February 15 or August 15 next preceding the date thereof to which interest has been paid on bonds of 1995 Series BP, unless the bond is authenticated on a date to which interest has been paid, in which case interest shall be payable from the date of authentication, or unless the date of authentication is prior to February 15, 1996, in which case interest shall be payable from August 1, 1995. |
The bonds of 1995 Series BP in definitive form shall be, at the election of the Company, fully engraved or shall be lithographed or printed in authorized denominations as aforesaid and numbered 1 and upwards (with such further designation as may be appropriate and desirable to indicate by such designation the form, series and denominations of bonds of 1995 Series BP). Until bonds of 1995 Series BP in definitive form are ready for delivery, the Company may execute, and upon its request in writing the Trustee shall authenticate and deliver in lieu thereof, bonds of 1995 Series BP in temporary form, as provided in Section 10 of Article II of the Indenture. Temporary bonds of 1995 Series BP, if any, may be printed and may be issued in authorized denominations in substantially the form of definitive bonds of 1995 Series BP, but with such omissions, insertions and variations as may be appropriate for temporary bonds, all as may be determined by the Company. Bonds of 1995 Series BP shall not be assignable or transferable except as may be required to effect a transfer to any successor trustee under the Strategic Fund Trust Indenture, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under the Strategic Fund Trust Indenture. Any such transfer shall be made upon surrender thereof for cancellation at the office or agency of the Company in the Borough of Manhattan, The City and State of New York, together with a written instrument of transfer (if so required by the Company or by the Trustee) in form approved by the Company duly executed by the holder or by its duly authorized attorney. Bonds of 1995 Series BP shall in the same manner be exchangeable for a like aggregate principal amount of bonds of 1995 Series BP upon the terms and conditions specified herein and in Section 7 of Article II of the Indenture. The Company waives its rights under Section 7 of Article II of the Indenture not to make exchanges or transfers of bonds of 1995 Series BP, during any period of ten days next preceding any redemption date for such bonds. Bonds of 1995 Series BP, in definitive and temporary form, may bear such legends as may be necessary to comply with any law or with any rules or regulations made pursuant thereto or as may be specified in the Strategic Fund Agreement. Upon payment of the principal or premium, if any, or interest on the Strategic Fund Revenue Bonds, whether at maturity or prior to maturity by redemption or otherwise, or upon provision for the payment thereof having been made in accordance with Articles I or IV of the Strategic Fund Trust Indenture, bonds of 1995 Series BP in a principal amount equal to the principal amount of the Strategic Fund Revenue Bonds, shall, to the extent of such payment of principal, premium or interest, be deemed fully paid and the obligation of the Company thereunder to make such payment shall forthwith cease and be discharged, and, in the case of the payment of principal and premium, if any, such bonds shall be surrendered for cancellation or presented for appropriate notation to the Trustee. |
REDEMPTION SECTION 2. Bonds of 1995 Series BP shall be redeemed on OF BONDS OF the date and in the respective principal amount which 1995 SERIES BP. correspond to the redemption date for, and the principal amount to be redeemed of, the Strategic Fund Revenue Bonds. In the event the Company elects to redeem any Strategic Fund Revenue Bonds prior to maturity in accordance with the provisions of the Strategic Fund Trust Indenture, the Company shall on the same date redeem bonds of 1995 Series BP in the principal amount and at the redemption price corresponding to the Strategic Fund Revenue Bonds so redeemed. The Company agrees to give the Trustee notice of any such redemption of bonds of 1995 Series BP on the same date as it gives notice of redemption of Strategic Fund Revenue Bonds to the Strategic Fund Trust Indenture Trustee. REDEMPTION SECTION 3. In the event of an Event of Default under the OF BONDS OF 1995 SERIES Strategic Fund Trust Indenture and the acceleration of all BP IN EVENT OF Strategic Fund Revenue Bonds, the bonds of 1995 Series BP ACCELERATION shall be redeemable in whole upon receipt by the Trustee of OF STRATEGIC FUND a written demand (hereinafter called a "Redemption Demand") REVENUE BONDS. from the Strategic Fund Trust Indenture Trustee stating that there has occurred under the Strategic Fund Trust Indenture both an Event of Default and a declaration of acceleration of payment of principal, accrued interest and premium, if any, on the Strategic Fund Revenue Bonds, specifying the last date to which interest on the Strategic Fund Revenue Bonds has been paid (such date being hereinafter referred to as the "Initial Interest Accrual Date") and demanding redemption of the bonds of said series. The Trustee shall, within five days after receiving such Redemption Demand, mail a copy thereof to the Company marked to indicate the date of its receipt by the Trustee. Promptly upon receipt by the Company of such copy of a Redemption Demand, the Company shall fix a date on which it will redeem the bonds of said series so demanded to be redeemed (hereinafter called the "Demand Redemption Date"). Notice of the date fixed as the Demand Redemption Date shall be mailed by the Company to the Trustee at least ten days prior to such Demand Redemption Date. The date to be fixed by the Company as and for the Demand Redemption Date may be any date up to and including the earlier of (x) the 60th day after receipt by the Trustee of the Redemption Demand or (y) the maturity date of such bonds first occurring following the 20th day after the receipt by the Trustee of the Redemption Demand; provided, however, that if the Trustee shall not have received such notice fixing the Demand Redemption Date on or before the 10th day preceding the earlier of such dates, the Demand Redemption Date shall be deemed to be the earlier of such dates. The Trustee shall mail notice of the Demand Redemption Date (such notice being hereinafter called the "Demand Redemption Notice") to the Strategic Fund Trust Indenture Trustee not more than ten nor less than five days prior to the Demand Redemption Date. |
Each bond of 1995 Series BP shall be redeemed by the Company on the Demand Redemption Date therefore upon surrender thereof by the Strategic Fund Trust Indenture Trustee to the Trustee at a redemption price equal to the principal amount thereof plus accrued interest thereon at the rate specified for such bond from the Initial Interest Accrual Date to the Demand Redemption Date plus an amount equal to the aggregate premium, if any, due and payable on such Demand Redemption Date on all Strategic Fund Revenue Bonds; provided, however, that in the event of a receipt by the Trustee of a notice that, pursuant to Section 604 of the Strategic Fund Trust Indenture, the Strategic Fund Trust Indenture Trustee has terminated proceedings to enforce any right under the Strategic Fund Trust Indenture, then any Redemption Demand shall thereby be rescinded by the Strategic Fund Trust Indenture Trustee, and no Demand Redemption Notice shall be given, or, if already given, shall be automatically annulled; but no such rescission or annulment shall extend to or affect any subsequent default or impair any right consequent thereon. Anything herein contained to the contrary notwithstanding, the Trustee is not authorized to take any action pursuant to a Redemption Demand and such Redemption Demand shall be of no force or effect, unless it is executed in the name of the Strategic Fund Trust Indenture Trustee by its President or one of its Vice Presidents. FORM OF BONDS SECTION 4. The bonds of 1995 Series BP and the form of OF 1995 SERIES BP. Trustee's Certificate to be endorsed on such bonds shall be substantially in the following forms, respectively: |
[FORM OF FACE OF BOND] THE DETROIT EDISON COMPANY General and Refunding Mortgage Bond 1995 Series BP, 6.20% due August 15, 2025 Notwithstanding any provisions hereof or in the Indenture, this bond is not assignable or transferable except as may be required to effect a transfer to any successor trustee under the Trust Indenture, dated as of August 1, 1995 between the Michigan Strategic Fund and Comerica Bank, as trustee, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under said Trust Indenture. $......... No.......... THE DETROIT EDISON COMPANY (hereinafter called the "Company"), a corporation of the State of Michigan, for value received, hereby promises to pay to the Michigan Strategic Fund, or registered assigns, at the Company's office or agency in the Borough of Manhattan, The City and State of New York, the principal sum of dollars ($ ) in lawful money of the United States of America on the date specified in the title hereof and interest thereon at the rate specified in the title hereof, in like lawful money, from August 1, 1995, and after the first payment of interest on bonds of this Series has been made or otherwise provided for, from the most recent date to which interest has been paid or otherwise provided for, semi-annually on February 15 and August 15 of each year (commencing February 15, 1996), until the Company's obligation with respect to payment of said principal shall have been discharged, all as provided, to the extent and in the manner specified in the Indenture hereinafter mentioned on the reverse hereof and in the supplemental indenture pursuant to which this bond has been issued. Under a Trust Indenture, dated as of August 1, 1995 (hereinafter called the "Strategic Fund Trust Indenture"), between the Michigan Strategic Fund (hereinafter called "Strategic Fund"), and Comerica Bank, as trustee (hereinafter called the "Strategic Fund Trust Indenture Trustee"), the Strategic Fund has issued Limited Obligation Refunding Revenue Bonds (The Detroit Edison Company Pollution Control Bonds Project), Collateralized Series 1995BB (hereinafter called the "Strategic Fund Revenue Bonds"). This bond was originally issued to the Strategic Fund and simultaneously irrevocably assigned to the Strategic Fund Trust Indenture Trustee so as to secure the payment of the Strategic Fund Revenue Bonds. Payments of principal of, or premium, if any, or interest on, Strategic Fund Revenue Bonds shall constitute like payments on this bond as further provided herein and in the supplemental indenture pursuant to which this bond has been issued. Reference is hereby made to such further provisions of this bond set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though set forth at this place. This bond shall not be valid or become obligatory for any purpose until Bankers Trust Company, the Trustee under the Indenture hereinafter mentioned on the reverse hereof, or its successor thereunder, shall have signed the form of certificate endorsed hereon. |
IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY has caused this instrument to be executed by its Chairman of the Board and its Vice President and Treasurer, with their manual or facsimile signatures, and its corporate seal, or a facsimile thereof, to be impressed or imprinted hereon and the same to be attested by its Corporate Secretary or an Assistant Corporate Secretary with his or her manual or facsimile signature. |
Dated: THE DETROIT EDISON COMPANY By ............................ Chairman of the Board ............................ Vice President Attest: and Treasurer ............................ Vice President and Corporate Secretary |
[FORM OF REVERSE OF BOND] This bond is one of an authorized issue of bonds of the Company, unlimited as to amount except as provided in the Indenture hereinafter mentioned or any indentures supplemental thereto, and is one of a series of General and Refunding Mortgage Bonds known as 1995 Series BP, limited to an aggregate principal amount of $22,175,000, except as otherwise provided in the Indenture hereinafter mentioned. This bond and all other bonds of said series are issued and to be issued under, and are all equally and ratably secured (except insofar as any sinking, amortization, improvement or analogous fund, established in accordance with the provisions of the Indenture hereinafter mentioned, may afford additional security for the bonds of any particular series and except as provided in Section 3 of Article VI of said Indenture) by an Indenture, dated as of October 1, 1924, duly executed by the Company to Bankers Trust Company, a corporation of the State of New York, as Trustee, to which Indenture and all indentures supplemental thereto (including the Supplemental Indenture dated as of August 1, 1995) reference is hereby made for a description of the properties and franchises mortgaged and conveyed, the nature and extent of the security, the terms and conditions upon which the bonds are issued and under which additional bonds may be issued, and the rights of the holders of the bonds and of the Trustee in respect of such security (which Indenture and all indentures supplemental thereto, including the Supplemental Indenture dated as of August 1, 1995, are hereinafter collectively called the "Indenture"). As provided in the Indenture, said bonds may be for various principal sums and are issuable in series, which may mature at different times, may bear interest at different rates and may otherwise vary as in said Indenture provided. With the consent of the Company and to the extent permitted by and as provided in the Indenture, the rights and obligations of the Company and of the holders of the bonds and the terms and provisions of the Indenture, or of any indenture supplemental thereto, may be modified or altered in certain respects by affirmative vote of at least eighty-five percent (85%) in amount of the bonds then outstanding, and, if the rights of one or more, but less than all, series of bonds then outstanding are to be affected by the action proposed to be taken, then also by affirmative vote of at least eighty-five percent (85%) in amount of the series of bonds so to be affected (excluding in every instance bonds disqualified from voting by reason of the Company's interest therein as specified in the Indenture); provided, however, that, without the consent of the holder hereof, no such modification or alteration shall, among other things, affect the terms of payment of the principal of or the interest on this bond, which in those respects is unconditional. This bond is redeemable upon the terms and conditions set forth in the Indenture, including provision for redemption upon demand of the Strategic Fund Trust Indenture Trustee following the occurrence of an Event of Default under the Strategic Fund Trust Indenture and the acceleration of the principal of the Strategic Fund Revenue Bonds. Under the Indenture, funds may be deposited with the Trustee (which shall have become available for payment), in advance of the redemption date of any of the bonds of 1995 Series BP (or portions thereof), in trust for the redemption of such bonds (or portions thereof) and the interest due or to become due thereon, and thereupon all obligations of the Company in respect of such bonds (or portions thereof) so to be redeemed and such interest shall cease and be discharged, and the holders thereof shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or with respect to such bonds (or portions thereof) and interest. In case an event of default, as defined in the Indenture, shall occur, the principal of all the bonds issued thereunder may become or be declared due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture. |
Upon payment of the principal of, or premium, if any, or interest on, the Strategic Fund Revenue Bonds, whether at maturity or prior to maturity by redemption or otherwise or upon provision for the payment thereof having been made in accordance with Articles I or IV of the Strategic Fund Trust Indenture, bonds of 1995 Series BP in a principal amount equal to the principal amount of such Strategic Fund Revenue Bonds and having both a corresponding maturity date and interest rate shall, to the extent of such payment of principal, premium or interest, be deemed fully paid and the obligation of the Company thereunder to make such payment shall forthwith cease and be discharged, and, in the case of the payment of principal and premium, if any, such bonds of said series shall be surrendered for cancellation or presented for appropriate notation to the Trustee. This bond is not assignable or transferable except as may be required to effect a transfer to any successor trustee under the Strategic Fund Trust Indenture, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under the Strategic Fund Trust Indenture. Any such transfer shall be made by the registered holder hereof, in person or by his attorney duly authorized in writing, on the books of the Company kept at its office or agency in the Borough of Manhattan, The City and State of New York, upon surrender and cancellation of this bond, and thereupon, a new registered bond of the same series of authorized denominations for a like aggregate principal amount will be issued to the transferee in exchange therefor, and this bond with others in like form may in like manner be exchanged for one or more new bonds of the same series of other authorized denominations, but of the same aggregate principal amount, all as provided and upon the terms and conditions set forth in the Indenture, and upon payment, in any event, of the charges prescribed in the Indenture. No recourse shall be had for the payment of the principal of or the interest on this bond, or for any claim based hereon or otherwise in respect hereof or of the Indenture, or of any indenture supplemental thereto, against any incorporator, or against any past, present or future stockholder, director or officer, as such, of the Company, or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether for amounts unpaid on stock subscriptions or by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise howsoever; all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released by every holder or owner hereof, as more fully provided in the Indenture. |
[FORM OF TRUSTEE'S CERTIFICATE] FORM OF This bond is one of the bonds, of the series designated TRUSTEE'S therein, described in the within-mentioned Indenture. CERTIFICATE. |
BANKERS TRUST COMPANY,
as Trustee
By ...........................
Authorized Officer
PART III. RECORDING AND FILING DATA RECORDING AND The Original Indenture and indentures supplemental FILING OF ORIGINAL thereto have been recorded and/or filed and Certificates of INDENTURE. Provision for Payment have been recorded as hereinafter set forth. The Original Indenture has been recorded as a real estate mortgage and filed as a chattel mortgage in the offices of the respective Registers of Deeds of certain counties in the State of Michigan as set forth in the Supplemental Indenture dated as of September 1, 1947, has been recorded as a real estate mortgage in the office of the Register of Deeds of Genesee County, Michigan as set forth in the Supplemental Indenture dated as of May 1, 1974, has been filed in the Office of the Secretary of State of Michigan on November 16, 1951 and has been filed and recorded in the office of the Interstate Commerce Commission on December 8, 1969. RECORDING AND Pursuant to the terms and provisions of the Original FILING OF Indenture, indentures supplemental thereto heretofore SUPPLEMENTAL entered into have been recorded as a real estate mortgage INDENTURES. and/or filed as a chattel mortgage or as a financing statement in the offices of the respective Registers of Deeds of certain counties in the State of Michigan, the Office of the Secretary of State of Michigan and the Office of the Interstate Commerce Commission, as set forth in supplemental indentures as follows: |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- June 1, 1925(a)(b)................ Series B Bonds February 1, 1940 August 1, 1927(a)(b).............. Series C Bonds February 1, 1940 February 1, 1931(a)(b)............ Series D Bonds February 1, 1940 June 1, 1931(a)(b)................ Subject Properties February 1, 1940 October 1, 1932(a)(b)............. Series E Bonds February 1, 1940 September 25, 1935(a)(b).......... Series F Bonds February 1, 1940 September 1, 1936(a)(b)........... Series G Bonds February 1, 1940 November 1, 1936(a)(b)............ Subject Properties February 1, 1940 February 1, 1940(a)(b)............ Subject Properties September 1, 1947 December 1, 1940(a)(b)............ Series H Bonds and September 1, 1947 Additional Provisions September 1, 1947(a)(b)(c)........ Series I Bonds, November 15, 1951 Subject Properties and Additional Provisions March 1, 1950(a)(b)(c)............ Series J Bonds November 15, 1951 and Additional Provisions November 15, 1951(a)(b)(c)........ Series K Bonds January 15, 1953 Additional Provisions and Subject Properties January 15, 1953(a)(b)............ Series L Bonds May 1, 1953 May 1, 1953(a).................... Series M Bonds March 15, 1954 and Subject Properties March 15, 1954(a)(c).............. Series N Bonds May 15, 1955 and Subject Properties May 15, 1955(a)(c)................ Series O Bonds August 15, 1957 and Subject Properties August 15, 1957(a)(c)............. Series P Bonds June 1, 1959 Additional Provisions and Subject Properties June 1, 1959(a)(c)................ Series Q Bonds December 1, 1966 and Subject Properties December 1, 1966(a)(c)............ Series R Bonds October 1, 1968 Additional Provisions and Subject Properties |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- October 1, 1968(a)(c)............. Series S Bonds December 1, 1969 and Subject Properties December 1, 1969(a)(c)............ Series T Bonds July 1, 1970 and Subject Properties July 1, 1970(c)................... Series U Bonds December 15, 1970 and Subject Properties December 15, 1970(c).............. Series V and June 15, 1971 Series W Bonds June 15, 1971(c).................. Series X Bonds November 15, 1971 and Subject Properties November 15, 1971(c).............. Series Y Bonds January 15, 1973 and Subject Properties January 15, 1973(c)............... Series Z Bonds May 1, 1974 and Subject Properties May 1, 1974....................... Series AA Bonds October 1, 1974 and Subject Properties October 1, 1974................... Series BB Bonds January 15, 1975 and Subject Properties January 15, 1975.................. Series CC Bonds November 1, 1975 and Subject Properties November 1, 1975.................. Series DDP Nos. 1-9 Bonds December 15, 1975 and Subject Properties December 15, 1975................. Series EE Bonds February 1, 1976 and Subject Properties February 1, 1976.................. Series FFR Nos. 1-13 Bonds June 15, 1976 June 15, 1976..................... Series GGP Nos. 1-7 Bonds July 15, 1976 and Subject Properties July 15, 1976..................... Series HH Bonds February 15, 1977 and Subject Properties February 15, 1977................. Series MMP Bonds and Subject March 1, 1977 Properties March 1, 1977..................... Series IIP Nos. 1-7 Bonds, June 15, 1977 Series JJP Nos. 1-7 Bonds, Series KKP Nos. 1-7 Bonds and Series LLP Nos. 1-7 Bonds June 15, 1977..................... Series FFR No. 14 Bonds and July 1, 1977 Subject Properties July 1, 1977...................... Series NNP Nos. 1-7 Bonds October 1, 1977 and Subject Properties October 1, 1977................... Series GGP Nos. 8-22 Bonds June 1, 1978 and Series OOP Nos. 1-17 Bonds and Subject Properties June 1, 1978...................... Series PP Bonds, October 15, 1978 Series QQP Nos. 1-9 Bonds and Subject Properties October 15, 1978.................. Series RR Bonds March 15, 1979 and Subject Properties March 15, 1979.................... Series SS Bonds July 1, 1979 and Subject Properties |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- July 1, 1979...................... Series IIP Nos. 8-22 Bonds, September 1, 1979 Series NNP Nos. 8-21 Bonds and Series TTP Nos. 1-15 Bonds and Subject Properties September 1, 1979................. Series JJP No. 8 Bonds, September 15, 1979 Series KKP No. 8 Bonds, Series LLP Nos. 8-15 Bonds, Series MMP No. 2 Bonds and Series OOP No. 18 Bonds and Subject Properties September 15, 1979................ Series UU Bonds January 1, 1980 January 1, 1980................... 1980 Series A Bonds and April 1, 1980 Subject Properties April 1, 1980..................... 1980 Series B Bonds August 15, 1980 August 15, 1980................... Series QQP Nos. 10-19 Bonds, August 1, 1981 1980 Series CP Nos. 1-12 Bonds and 1980 Series DP No. 1-11 Bonds and Subject Properties August 1, 1981.................... 1980 Series CP Nos. 13-25 November 1, 1981 Bonds and Subject Properties November 1, 1981.................. 1981 Series AP Nos. 1-12 June 30, 1982 Bonds June 30, 1982..................... Article XIV Reconfirmation August 15, 1982 August 15, 1982................... 1981 Series AP Nos. 13-14 June 1, 1983 and Subject Properties June 1, 1983...................... 1981 Series AP Nos. 15-16 October 1, 1984 and Subject Properties October 1, 1984................... 1984 Series AP and 1984 May 1, 1985 Series BP Bonds and Subject Properties May 1, 1985....................... 1985 Series A Bonds May 15, 1985 May 15, 1985...................... 1985 Series B Bonds and October 15, 1985 Subject Properties October 15, 1985.................. Series KKP No. 9 Bonds and April 1, 1986 Subject Properties April 1, 1986..................... 1986 Series A and Subject August 15, 1986 Properties August 15, 1986................... 1986 Series B and Subject November 30, 1986 Properties November 30, 1986................. 1986 Series C January 31, 1987 January 31, 1987.................. 1987 Series A April 1, 1987 April 1, 1987..................... 1987 Series B and 1987 August 15, 1987 Series C August 15, 1987................... 1987 Series D and 1987 November 30, 1987 Series E and Subject Properties November 30, 1987................. 1987 Series F June 15, 1989 June 15, 1989..................... 1989 Series A July 15, 1989 |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- July 15, 1989..................... Series KKP No. 10 December 1, 1989 December 1, 1989.................. Series KKP No. 11 and 1989 February 15, 1990 Series BP February 15, 1990................. 1990 Series A, 1990 Series November 1, 1990 B, 1990 Series C, 1990 Series D, 1990 Series E and 1990 Series F November 1, 1990.................. Series KKP No. 12 April 1, 1991 April 1, 1991..................... 1991 Series AP May 1, 1991 May 1, 1991....................... 1991 Series BP and 1991 May 15, 1991 Series CP May 15, 1991...................... 1991 Series DP September 1, 1991 September 1, 1991................. 1991 Series EP November 1, 1991 November 1, 1991.................. 1991 Series FP January 15, 1992 January 15, 1992.................. 1992 Series BP February 29, 1992 and April 15, 1992 February 29, 1992................. 1992 Series AP April 15, 1992 April 15, 1992.................... Series KKP No. 13 July 15, 1992 July 15, 1992..................... 1992 Series CP November 30, 1992 July 31, 1992..................... 1992 Series D November 30, 1992 April 1, 1986..................... 1986 Series A and Subject August 15, 1986 Properties August 15, 1986................... 1986 Series B and Subject November 30, 1986 Properties November 30, 1986................. 1986 Series C January 31, 1987 January 31, 1987.................. 1987 Series A April 1, 1987 April 1, 1987..................... 1987 Series B and 1987 August 15, 1987 Series C August 15, 1987................... 1987 Series D and 1987 November 30, 1987 Series E and Subject Properties November 30, 1987................. 1987 Series F June 15, 1989 June 15, 1989..................... 1989 Series A July 15, 1989 July 15, 1989..................... Series KKP No. 10 December 1, 1989 December 1, 1989.................. Series KKP No. 11 and 1989 February 15, 1990 Series BP February 15, 1990................. 1990 Series A, 1990 Series November 1, 1990 B, 1990 Series C, 1990 Series D, 1990 Series E and 1990 Series F November 1, 1990.................. Series KKP No. 12 April 1, 1991 April 1, 1991..................... 1991 Series AP May 1, 1991 May 1, 1991....................... 1991 Series BP and 1991 May 15, 1991 Series CP May 15, 1991...................... 1991 Series DP September 1, 1991 September 1, 1991................. 1991 Series EP November 1, 1991 November 1, 1991.................. 1991 Series FP January 15, 1992 |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ --------------------- January 15, 1992.................. 1992 Series BP February 29, 1992 and April 15, 1992 February 29, 1992................. 1992 Series AP April 15, 1992 April 15, 1992.................... Series KKP No. 13 July 15, 1992 July 15, 1992..................... 1992 Series CP November 30, 1992 November 30, 1992................. 1992 Series E and 1993 March 15, 1993 Series D December 15, 1992................. Series KKP No. 14 and 1989 March 15, 1992 Series BP No. 2 January 1, 1993................... 1993 Series C April 1, 1993 March 1, 1993..................... 1993 Series E June 30, 1993 March 15, 1993.................... 1993 Series D September 15, 1993 April 1, 1993..................... 1993 Series FP and 1993 September 15, 1993 Series IP April 26, 1993.................... 1993 Series G and Amendment September 15, 1993 of Article II, Section 5 May 31, 1993...................... 1993 Series J September 15, 1993 September 15, 1993................ 1993 Series K March 1, 1994 March 1, 1994..................... 1994 Series AP June 15, 1994 June 15, 1994..................... 1994 Series BP December 1, 1994 August 15, 1994................... 1994 Series C December 1, 1994 December 1, 1994.................. Series KKP No. 15 and 1994 August 1, 1995 Series DP |
(b) See Supplemental Indenture dated as of May 1, 1953 for Secretary of State of Michigan filing information.
(c) See Supplemental Indenture dated as of May 1, 1974 for County of Genesee, Michigan recording and filing information.
Further, pursuant to the terms and provisions of the Original Indenture, a Supplemental Indenture dated as December 1, 1994 providing for the terms of bonds to be issued thereunder of Series KKP No. 15 and 1994 Series DP has heretofore been entered into between the Company and the Trustee and has been filed in the Office of the Secretary of State of Michigan as a financing statement on March 29, 1994 (Filing No. 41262B), has been filed and recorded in the Office of the Interstate Commerce Commission (Recordation No. 5485-MMMM) on March 29, 1994, and has been recorded as a real estate mortgage in the offices of the respective Register of Deeds of certain counties in the State of Michigan, as follows: |
LIBER OF MORTGAGES OR COUNTY COUNTY RECORDED RECORDS PAGE ------ -------- --------- ---- Genesee......................................... 3-30-94 3013 800-823 Huron........................................... 3-29-94 623 481-504 Ingham.......................................... 3-30-94 2164 976-999 Lapeer.......................................... 3-29-94 850 362-385 Lenawee......................................... 3-29-94 1306 122-145 Livingston...................................... 3-29-94 1812 0662-0685 Macomb.......................................... 3-29-94 06275 627-650 Mason........................................... 3-29-94 438 1607-1630 Monroe.......................................... 3-30-94 1371 0909-0932 Oakland......................................... 3-29-94 14565 148-171 St. Clair....................................... 3-29-94 1338 776-799 Sanilac......................................... 3-29-94 454 784-807 Tuscola......................................... 3-30-94 656 497-520 Washtenaw....................................... 3-29-94 2956 926-949 Wayne........................................... 3-29-94 27268 90-113 |
RECORDING OF All the bonds of Series A which were issued under the CERTIFICATES Original Indenture dated as of October 1, 1924, and of OF PROVISION Series B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, W, Y, FOR PAYMENT. Z, AA, BB, CC, DDP Nos. 1-9, FFR Nos. 1-14, GGP Nos. 1-22, HH, IIP Nos. 1-22, JJP Nos. 1-8, KKP Nos. 1-8, LLP Nos. 1-15, NNP Nos. 1-21, OOP Nos. 1-18, QQP Nos. 1-17, TTP Nos. 1-15, UU, 1980 Series A, 1980 Series CP Nos. 1-25, 1980 Series DP Nos. 1-11, 1981 Series AP Nos. 1-16, 1984 Series AP, 1984 Series BP, 1985 Series A, 1985 Series B, 1987 Series A, PP, RR, EE, MMP, MMP No. 2 and 1989 Series A which were issued under Supplemental Indentures dated as of, respectively, June 1, 1925, August 1, 1927, February 1, 1931, October 1, 1932, September 25, 1935, September 1, 1936, December 1, 1940, September 1, 1947, November 15, 1951, January 15, 1953, May 1, 1953, March 15, 1954, May 15, 1955, August 15, 1957, December 15, 1970, November 15, 1971, January 15, 1973, May 1, 1974, October 1, 1974, January 15, 1975, November 1, 1975, February 1, 1976, June 15, 1976, July 15, 1976, October 1, 1977, March 1, 1977, July 1, 1979, March 1, 1977, March 1, 1977, March 1, 1977, September 1, 1979, July 1, 1977, July 1, 1979, September 15, 1979, October 1, 1977, June 1, 1978, October 1, 1977, July 1, 1979, January 1, 1980, August 15, 1980, November 1, 1981, October 1, 1984, May 1, 1985, May 15, 1985, January 31, 1987, June 1, 1978, October 15, 1978, December 15, 1975, February 15, 1977, September 1, 1979 and June 15, 1989 have matured or have been called for redemption and funds sufficient for such payment or redemption have been irrevocably deposited with the Trustee for that purpose; and Certificates of Provision for Payment have been recorded in the offices of the respective Registers of Deeds of certain counties in the State of Michigan, with respect to all bonds of Series A, B, C, D, E, F, G, H, K, L, M, O, W, BB, CC, DDP Nos. 1 and 2, FFR Nos. 1-3, GGP Nos. 1 and 2, IIP No. 1, JJP No. 1, KKP No. 1, LLP No. 1 and GGP No. 8. PART IV. THE TRUSTEE. TERMS AND The Trustee hereby accepts the trust hereby declared and CONDITIONS OF provided, and agrees to perform the same upon the terms and ACCEPTANCE OF conditions in the Original Indenture, as amended to date and TRUST BY TRUSTEE. as supplemented by this Supplemental Indenture, and in this Supplemental Indenture set forth, and upon the following terms and conditions: The Trustee shall not be responsible in any manner whatsoever for and in respect of the validity or sufficiency of this Supplemental Indenture or the due execution hereof by the Company or for or in respect of the recitals contained herein, all of which recitals are made by the Company solely. PART V. MISCELLANEOUS. CONFIRMATION OF Except to the extent specifically provided therein, no SECTION 318(C) OF provision of this supplemental indenture or any future TRUST INDENTURE supplemental indenture is intended to modify, and the ACT parties do hereby adopt and confirm, the provisions of Section 318(c) of the Trust Indenture Act which amend and supercede provisions of the Indenture in effect prior to November 15, 1990. EXECUTION IN THIS SUPPLEMENTAL INDENTURE MAY BE SIMULTANEOUSLY COUNTERPARTS. EXECUTED IN ANY NUMBER OF COUNTERPARTS, EACH OF WHICH WHEN SO EXECUTED SHALL BE DEEMED TO BE AN ORIGINAL; BUT SUCH COUNTERPARTS SHALL TOGETHER CONSTITUTE BUT ONE AND THE SAME INSTRUMENT. |
TESTIMONIUM. IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY AND BANKERS TRUST COMPANY HAVE CAUSED THESE PRESENTS TO BE SIGNED IN THEIR RESPECTIVE CORPORATE NAMES BY THEIR RESPECTIVE CHAIRMEN OF THE BOARD, PRESIDENTS, VICE PRESIDENTS, ASSISTANT VICE PRESIDENTS, TREASURERS OR ASSISTANT TREASURERS AND IMPRESSED WITH THEIR RESPECTIVE CORPORATE SEALS, ATTESTED BY THEIR RESPECTIVE SECRETARIES, ASSISTANT SECRETARIES, TREASURERS OR ASSISTANT TREASURERS ALL AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN. |
THE DETROIT EDISON COMPANY, (Corporate Seal) By ____________________ C. C. Arvani Assistant Treasurer EXECUTION. Attest: _______________________________ Elaine M. Godfrey Assistant Corporate Secretary Signed, sealed and delivered by THE DETROIT EDISON COMPANY, in the presence of _______________________________ Jack L. Somers _______________________________ Cathy M. Lewis |
STATE OF MICHIGAN SS.: COUNTY OF WAYNE ACKNOWLEDGEMENT On this day of August, 1995, before me, the subscriber, OF EXECUTION a Notary Public within and for the County of Wayne, in the BY COMPANY. State of Michigan, personally appeared C. C. Arvani, to me personally known, who, being by me duly sworn, did say that he does business at 2000 Second Avenue, Detroit, Michigan 48226 and is the Assistant Treasurer of THE DETROIT EDISON COMPANY, one of the corporations described in and which executed the foregoing instrument; that he knows the corporate seal of the said corporation and that the seal affixed to said instrument is the corporate seal of said corporation; and that said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors and that he subscribed his name thereto by like authority; and said C. C. Arvani, acknowledged said instrument to be the free act and deed of said corporation. |
___________________________ (Notarial Seal) Judith Thun, Notary Public Wayne County, MI My Commission Expires 6-6-99 |
BANKERS TRUST COMPANY, (Corporate Seal) By ________________________ James McDonough Assistant Vice President Attest: _________________________ Scott Thiel Assistant Treasurer Signed, sealed and delivered by BANKERS TRUST COMPANY, in the presence of _________________________ Gina Evangelista _________________________ Jason C. Theriault |
STATE OF NEW YORK SS.: COUNTY OF NEW YORK |
ACKNOWLEDGEMENT On this day of August, 1995, before me, the subscriber, OF EXECUTION a Notary Public within and for the County of New York, in BY TRUSTEE. the State of New York, personally appeared James McDonough, to me personally known, who, being by me duly sworn, did say that his business office is located at Four Albany Street, New York, New York 10015, and he is Assistant Vice President of BANKERS TRUST COMPANY, one of the corporations described in and which executed the foregoing instrument; that he knows the corporate seal of the said corporation and that the seal affixed to said instrument is the corporate seal of said corporation; and that said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors and that he subscribed his name thereto by like authority; and said James McDonough acknowledged said instrument to be the free act and deed of said corporation. |
(Notarial Seal) ________________________________ Carol Allen Notary Public, State of New York No. 24-4820187 Qualified in Kings County Commission Expires 2-16-96 |
STATE OF MICHIGAN
SS.:
COUNTY OF WAYNE
AFFIDAVIT AS TO C. C. Arvani, being duly sworn, says: that he is the CONSIDERATION Assistant Treasurer of THE DETROIT EDISON COMPANY, the AND GOOD FAITH. Mortgagor named in the foregoing instrument, and that he has knowledge of the facts in regard to the making of said instrument and of the consideration therefor; that the consideration for said instrument was and is actual and adequate, and that the same was given in good faith for the purposes in such instrument set forth. |
________________ C. C. Arvani Sworn to before me this day of August, 1995 ___________________________ Judith Thun, Notary Public Wayne County, MI My Commission Expires 6-6-99 (Notarial Seal) This instrument was drafted by Frances B. Rohlman, Esq., 2000 Second Avenue, Detroit, Michigan 48226 |
EXHIBIT 10-40*
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made as of the ____ day of _______________, _______ by and between The Detroit Edison Company, a Michigan corporation (the "Company"), and __________________, an officer of the Company (the "Indemnitee").
RECITALS
A. The Indemnitee is presently serving as an officer of the Company and the Company desires the Indemnitee to continue in such capacity. The Indemnitee is willing, subject to certain conditions, including without limitation the execution and performance of this Agreement by the Company, to continue in that capacity.
B. In addition to the indemnification to which the Indemnitee is entitled under the Articles of Incorporation (the "Articles") or By-Laws of the Company in effect from time to time, the Company has obtained at its sole expense insurance protecting its officers and directors, including the Indemnitee, against certain losses arising out of actual or threatened actions, suits or proceedings to which such persons may be made or threatened to be made parties. However, as a result of circumstances having no relation to, and beyond the control of, the Company and the Indemnitee, there can be no assurance of the continuation, renewal or scope of that insurance.
Accordingly, and in order to induce the Indemnitee to continue to serve in the Indemnitee's present capacity, the Company and Indemnitee agree as follows:
1. Continued Service. The Indemnitee will continue to serve as an officer of the Company so long as the Indemnitee is duly elected and qualified in accordance with the By-Laws of the Company in effect from time to time or until the Indemnitee resigns in writing in accordance with applicable law.
2. Initial Indemnity.
(a) The Company shall indemnify the Indemnitee when the Indemnitee was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative and whether formal or informal, other than an action by or in the right of the Company, by reason of the fact that the Indemnitee is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust or other enterprise, whether for profit or not, against expenses, including attorneys' fees, judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by the Indemnitee in connection with such action, suit or proceeding if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to the best interests of the Company or its shareholders, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the Indemnitee did not act in good faith and in a manner which the Indemnitee reasonably believed to be in or not opposed to the best interests of the
Company or its shareholders and, with respect to any criminal action or proceeding, that the Indemnitee had reasonable cause to believe that such conduct was unlawful.
(b) The Company shall indemnify the Indemnitee when the Indemnitee was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Company to procure a judgment in its favor by reason of the fact that the Indemnitee is or was a director, officer, employee, or agent of the Company, or is or was serving or had agreed to serve at the request of the Company as a director, officer, partner, trustee, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust or other enterprise, whether for profit or not, against expenses, including attorneys' fees and amounts paid in settlement actually and reasonably incurred by the Indemnitee in connection with the action or suit, if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in, or not opposed to the best interests of the Company or its shareholders. Indemnification shall not be made for a claim, issue or matter in which the Indemnitee has been found liable to the Company except to the extent the Court conducting the proceeding or another court of competent jurisdiction shall determine upon application that the Indemnitee is fairly and reasonably entitled to indemnification in view of all relevant circumstances whether or not the Indemnitee met the standard of conduct set forth in this paragraph (b) or was so adjudged liable to the Company, provided that if the Indemnitee was adjudged liable, such indemnification is limited to reasonable expenses incurred.
(c) To the extent that the Indemnitee has been successful, on the
merits or otherwise, in defense of any action, suit or proceeding referred to in
Section 2(a) or 2(b) hereof, or in defense of any claim, issue or matter in the
action, suit or proceeding, the Indemnitee shall
be indemnified against actual and reasonable expenses, including attorneys' fees incurred by the Indemnitee in connection with the action, suit or proceeding and an action suit or proceeding brought to enforce the mandatory indemnification provided in this Section.
(d) Any indemnification under Section 2(a) or 2(b) (unless
ordered by a court) shall be made by the Company only as authorized in the
specific case upon a determination in accordance with Section 4 hereof or any
applicable provision of the Articles of Incorporation of the Company in effect
from time to time, By-Laws, other agreement, resolution or otherwise. Such
determination shall be made (i) by a majority vote of a quorum of the Board of
Directors of the Company (the "Board") consisting of directors who are not
parties or threatened to be made parties to such action, suit or proceeding or
(ii) if such a quorum is not obtainable, by a majority vote of a committee duly
designated by the Board consisting solely of two or more directors not at the
time parties or threatened to be made parties to the suit, action, or proceeding
or (iii) by independent legal counsel (designated in the manner provided below
in this subsection (d)) in a written opinion or (iv) by all independent
directors who are not parties to such action, suit or proceeding or (v) by the
shareholders of the Company (the "Shareholders"), but shares held by directors,
officers, employees or agents who are parties or threatened to be made parties
to the action suit or proceeding may not be voted. Independent legal counsel
shall be designated by the Board or its Committee in the manner prescribed in
Section 2(d)(i) or 2(d)(ii); provided, however, that if the Board is unable or
fails to so designate, such designation shall be made by the Indemnitee subject
to the approval of the Company (which approval shall not be unreasonably
withheld). In the designation of a committee under subsection 2(d)(ii) or the
selection of independent legal counsel by the Board, all directors may
participate. Independent
legal counsel shall not be any person or firm who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or the Indemnitee in an action to determine the Indemnitee's rights under this Agreement. The Company agrees to pay the reasonable fees and expenses of such independent legal counsel and to indemnify fully such counsel against costs, charges and expenses (including attorneys' and others' fees and expenses) actually and reasonably incurred by such counsel in connection with this Agreement or the opinion of such counsel pursuant hereto.
(e) If the Indemnitee is entitled to indemnification under Section 2(a) or 2(b) for a portion of expenses, including reasonable attorneys' fees, judgments, penalties, fines and amounts paid in settlement, but not for the total amount, the Company shall indemnify the Indemnitee for the portion of the expenses, judgments, penalties, fines or amounts paid in settlement for which the Indemnitee is entitled to be indemnified.
(f) The Company shall pay or reimburse the reasonable expenses (including attorneys' and others' fees and expenses) incurred by the Indemnitee in the Indemnitee's capacity as a director or officer of the Company who is a party or threatened to be made a party to an action, suit or proceeding in advance of the final disposition of such action, suit or proceeding subject to the provisions of and in the manner prescribed by Section 4(b) hereof.
(g) The Company shall not adopt any amendment to the Articles or By-Laws the effect of which would be to deny, diminish or encumber the Indemnitee's rights to indemnity pursuant to the Articles, By-Laws, the Business Corporation Act of the State of Michigan (the "BCA") or any other applicable law as applied to any act or failure to act occurring in whole or in part prior to the date (the "Effective Date") upon which the amendment was approved by the
Board or the Shareholders, as the case may be. In the event that the Company shall adopt any amendment to the Articles or By-Laws the effect of which is to so deny, diminish or encumber the Indemnitee's rights to indemnity, such amendment shall apply only to acts or failures to act occurring entirely after the Effective Date thereof unless the Indemnitee shall have voted in favor of such adoption as a officer or holder of record of the Company's voting stock, as the case may be.
(b) Upon application to a court by the Indemnitee pursuant to
Section 564c of the BCA, and a determination of such court that the Indemnitee
is fairly and reasonably entitled to indemnification, the Company shall pay to
the Indemnitee the amount so ordered by the court.
3. Additional Indemnification.
(a) Pursuant to Section 565 of the BCA, without limiting any right which the Indemnitee may have pursuant to Section 2 hereof, the Articles, the By-Laws, the BCA, any policy of insurance or otherwise, but subject to the limitations on the maximum permissible indemnity which may exist under applicable law at the time of any request for indemnity hereunder determined as contemplated by Section 3(a) hereof, the Company shall indemnify the Indemnitee against any amount which the Indemnitee is or becomes legally obligated to pay relating to or arising out of any claim made against the Indemnitee because of any act, failure to act or neglect or breach of duty, including any actual or alleged error, misstatement or misleading statement, which the Indemnitee commits, suffers, permits or acquiesces in while acting in such capacity as an officer or director of the Company, or, at the request of the Company, as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. The payments which the Company is obligated to make pursuant to this
Section 3 shall include without limitation damages, judgments, settlements and charges, costs, expenses, expenses of investigation and expenses of defense of legal actions, suits, proceedings or claims and appeals therefrom, and expenses of appeal, attachment or similar bonds; provided, however, that the Company shall not be obligated under this Section 3(a) to make any payment in connection with any claim against the Indemnitee:
(i) to the extent of any fine or similar governmental imposition which the Company is prohibited by applicable law from paying which results from a final nonappealable order; or
(ii) to the extent based upon or attributable to the Indemnitee gaining in fact a personal profit to which the Indemnitee was not legally entitled, including without limitation profits made from the purchase and sale by the Indemnitee of equity securities of the Company which are recoverable by the Company pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended, and profits arising from transactions in publicly traded securities of the Company which were effected by the Indemnitee in violation of Section 10(b) of the Securities Exchange Act of 1934, as amended, including Rule 10b-5 promulgated thereunder.
The determination of whether the Indemnitee shall be entitled to indemnification under this Section 3(a) may be, but shall not be required to be, made in accordance with Section 4(a) hereof. If that determination is so made, it shall be binding upon the Company and the Indemnitee for all purposes.
(b) Expenses (including without limitation attorneys' and others' fees and expenses) incurred by Indemnitee in defending any actual or threatened civil or criminal action,
suit, proceeding or claim shall be paid by the Company in advance of the final disposition thereof as authorized in accordance with Section 4(b) hereof.
4. Certain Procedures Relating to Indemnification and Advancement of Expenses.
(a) Except as otherwise permitted or required by the BCA, for
purposes of pursuing the Indemnitee's rights to indemnification under Section
2(a), 2(b) or 3(a) hereof, as the case may be, the Indemnitee may, but shall not
be required to, (i) submit to the Board a sworn statement of request for
indemnification substantially in the form of Exhibit 1 attached hereto and made
a part hereof (the "Indemnification Statement") averring that the Indemnitee is
entitled to indemnification hereunder; and (ii) present to the Company
reasonable evidence of all expenses for which payment is requested. Submission
of an Indemnification Statement to the Board shall create a presumption that the
Indemnitee is entitled to indemnification under Section 2(a), 2(b) or 3(a)
hereof, as the case may be, and the Board shall be deemed to have determined
that the Indemnitee is entitled to such indemnification unless within 30
calendar days after submission of the Indemnification Statement the Board shall
determine by vote of a majority of the directors at a meeting at which a quorum
is present, based upon clear and convincing evidence (sufficient to rebut the
foregoing presumption), and the Indemnitee shall have received notice within
such period in writing of such determination, that the Indemnitee is not so
entitled to indemnification. No such determination shall be effective unless
written notice thereof, disclosing with particularity the evidence in support of
the Board's determination, shall have been given to the Indemnitee within 30
calendar days after submission of the Indemnification Statement. The foregoing
notice shall be sworn to by all persons who participated in the determination
and voted to deny indemnification. The provisions of this
Section 4(a) are intended to be procedural only and shall not affect the right of the Indemnitee to indemnification under this Agreement, and any determination by the Board that the Indemnitee is not entitled to indemnification and any failure to make the payments requested in the Indemnification Statement shall be subject to judicial review as provided in Section 6 hereof.
(b) For purposes of determining whether to authorize advancement of expenses pursuant to Section 2(e) hereof, the Indemnitee shall submit to the Board a sworn statement of request for advancement of expenses substantially in the form of Exhibit 2 attached hereto and made a part hereof (the "Undertaking"), averring that (i) the Indemnitee, in good faith, believes that the applicable standards of conduct set forth in Section 2(a), 2(b) or 3(a), as the case may be, have been met, (ii) the Indemnitee has reasonably incurred or will reasonably incur actual expenses in defending an actual civil or criminal action, suit, proceeding or claim and (iii) the Indemnitee undertakes to repay such amount if it shall ultimately be determined that the Indemnitee did not meet the applicable standard of conduct or is not entitled to be indemnified by the Company under this Agreement or otherwise. For purposes of requesting advancement of expenses pursuant to Section 3(b) hereof, the Indemnitee may, but shall not be required to, submit an Undertaking or such other form of request as the Indemnitee determines to be appropriate (an "Expense Request"). Upon receipt of an Undertaking or Expense Request, as the case may be, such payments shall immediately be made by the Company provided that a determination is made that facts then known to those making the determination would not preclude indemnification under the BCA. Such determination shall be made within 10 calendar days of the date of receipt by the Company of the Expense Request and shall be made in the manner specified in Section 2(d). No security shall be required in connection with any
Undertaking or Expense Request and any Undertaking or Expense Request shall be accepted without reference to the Indemnitee's ability to make repayment.
5. Subrogation: Duplication of Payments.
(a) In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute all papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights.
(b) The Company shall not be liable under this Agreement to make any payment in connection with any claim made against the Indemnitee to the extent the Indemnitee has actually received payment (under any insurance policy, the Articles, the By-Laws or otherwise) of the amounts otherwise payable hereunder.
6. Enforcement.
(a) If a claim for indemnification made to the Company pursuant to
Section 4 hereof is not paid in full by the Company within 30 calendar days
after a written claim has been received by the Company, the Indemnitee may at
any time thereafter bring suit against the Company to recover the unpaid amount
of the claim.
(b) In any action brought under Section 6(a) hereof, it shall be a defense to a claim for indemnification pursuant to Section 2(a) or 2(b) hereof that the Indemnitee has not met the standards of conduct which make it permissible under the BCA for the Company to indemnify the Indemnitee for the amount claimed, but the burden of proving such defense shall be on the Company. Neither the failure of the Company (including the Board, independent legal
counsel or the Shareholders) to have made a determination prior to commencement of such action that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in the BCA, nor an actual determination by the Company (including the Board, independent legal counsel or the Shareholders) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.
(c) It is the intent of the Company that the Indemnitee not be required to incur the expenses associated with the enforcement of the Indemnitee's rights under this Agreement by litigation or other legal action because the cost and expense thereof would substantially detract from the benefits intended to be extended to the Indemnitee hereunder. Accordingly, if it should appear to the Indemnitee that the Company has failed to comply with any of its obligations under the Agreement or in the event that the Company or any other person takes any action to declare this Agreement void or unenforceable, or institutes any action, suit or proceeding designed (or having the effect of being designed) to deny, or to recover from, the Indemnitee the benefits intended to be provided to the Indemnitee hereunder, the Company irrevocably authorizes the Indemnitee from time to time to retain counsel of the Indemnitee's choice, at the expense of the Company as hereafter provided, to represent the Indemnitee in connection with the initiation or defense of any litigation or other legal action, whether by or against the Company or any director, officer, stockholder or other person affiliated with the Company, in any jurisdiction. Regardless of the outcome thereof, the Company shall pay and be solely responsible for any and all costs, charges and expenses, including without limitation attorneys' and others' fees and
expenses, reasonably incurred by the Indemnitee (i) as a result of the Company's failure to perform this Agreement or any provision thereof or (ii) as a result of the Company or any person contesting the validity or enforceability of this Agreement or any provision thereof as aforesaid.
7. Merger or Consolidation. In the event that the Company shall be a constituent corporation in a consolidation, merger or other reorganization, the Company, if it shall not be the surviving, resulting or other corporation therein, shall require as a condition thereto the surviving, resulting or acquiring corporation to agree to indemnify the Indemnitee to the full extent provided in this Agreement. Whether or not the Company is the resulting, surviving or acquiring corporation in any such transaction, the Indemnitee shall also stand in the same position under this Agreement with respect to the resulting, surviving or acquiring corporation as the Indemnitee would have with respect to the Company if its separate existence had continued.
8. Nonexclusivity and Severability.
(a) The right to indemnification provided by this Agreement shall not be exclusive of any other rights to which the Indemnitee may be entitled under the Articles, By-Laws, the BCA, any other statute, insurance policy, agreement, vote of shareholders or of directors or otherwise, both as to actions in the Indemnitee's official capacity and as to actions in another capacity while holding such office, and shall continue after the Indemnitee has ceased to be a director, officer, employee or agent and shall inure to the benefit of the Indemnitee's heirs, executors and administrators.
(b) If any provision of this Agreement or the application of any provision hereof to any person or circumstances is held invalid, unenforceable or otherwise illegal, the remainder of this Agreement and the application of such provision to other persons or
circumstances shall not be affected, and the provision so held to be invalid, unenforceable or otherwise illegal shall be reformed to the extent (and only to the extent) necessary to make it enforceable, valid and legal.
9. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, without giving effect to the principles of conflict of laws thereof.
10. Modification: Survival. This Agreement contains the entire agreement of the parties relating to the subject matter hereof. This Agreement may be modified only by an instrument in writing signed by both parties hereto. The provisions of this Agreement shall survive the death, disability, or incapacity of the Indemnitee or the termination of the Indemnitee's service as a an officer or director of the Company and shall inure to the benefit of the Indemnitee's heirs, executors and administrators.
11. Certain Terms. For purposes of this Agreement, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on Indemnitee with respect to any employee benefit plan; and references to "serving at the request of the Company" shall include any service as a director, officer, employee or agent of the Company which imposes duties on, or involves services by, the Indemnitee with respect to an employee benefit plan, its participants or beneficiaries; references to the masculine shall include the feminine and vice versa; references to the singular shall include the plural and vice versa; and if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan the Indemnitee shall
be deemed to have acted in a manner "not opposed to the best interests of the "Company" as referred to herein.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.
THE DETROIT EDISON COMPANY
INDEMNITEE
EXHIBIT 1
INDEMNIFICATION STATEMENT
STATE OF MICHIGAN )
)SS
COUNTY OF________________)
I, _____________________________, being first duly sworn, do depose and say as follows:
1. This Indemnification Statement is submitted pursuant to the Indemnification Agreement, dated as of ___________, ______, between The Detroit Edison Company, a Michigan corporation (the "Company"), and the undersigned.
2. I am requesting indemnification against charges, costs, expenses (including attorneys' and others' fees and expenses), judgments, fines and amounts paid in settlement, all of which (collectively, "Liabilities") have been or will be incurred by me in connection with an actual or threatened action, suit, proceeding or claim to which I am a party or am threatened to be made a party.
3. With respect to all matters related to any such action, suit, proceeding or claim, I am entitled to be indemnified as herein contemplated pursuant to the aforesaid Agreement.
4. Without limiting any other rights which I have or may have, I am requesting indemnification against Liabilities which have arisen or may arise out of
Subscribed and sworn to before me, a Notary Public in and for said County and State, this ___ day of __________, 19___.
[Seal]
My commission expires the ____ day of _______________________, 19___.
EXHIBIT 2
UNDERTAKING
STATE OF MICHIGAN )
)SS
COUNTY OF________________)
I, _____________________, being first duly sworn do depose and say as follows:
1. This Undertaking is submitted pursuant to the Indemnification Agreement (the "Agreement"), dated as of ___________, ______, between The Detroit Edison Company, a Michigan corporation (the "Company"), and the undersigned.
2. I am requesting advancement of certain costs, charges and expenses which I have incurred or will incur in defending an actual or pending civil or criminal action, suit, proceeding or claim.
3. I affirm my good faith belief that I meet the applicable standard of conduct set forth in Section 2(a), 2(b) or 3(a) of the Agreement.
4. I hereby undertake to repay this advancement of expenses if it shall ultimately be determined that I did not meet the applicable standard of conduct or am not entitled to be indemnified by the Company under the aforesaid Agreement or otherwise.
5. My undertaking to repay is my unlimited general obligation.
6. The costs, charges and expenses for which advancement is requested are, in general, all expenses related to _______________________________.
Subscribed and sworn to before me, a Notary Public in and for said County and State, this ___ day of __________, 19___.
[Seal]
My commission expires the ____ day of _______________________, 19___.
EXHIBIT 11-21
Year Ended December 31 | |||||||||||||
|
|||||||||||||
2000 | 1999 | 1998 | |||||||||||
|
|
|
|||||||||||
(Thousands, except per share amounts) | |||||||||||||
BASIC:
|
|||||||||||||
Net Income
|
$ | 468,550 | $ | 482,653 | $ | 443,012 | |||||||
Weighted average number of common
shares outstanding (a)
|
143,116 | 145,047 | 145,076 | ||||||||||
Earnings per share of Common Stock
based on weighted average number
of shares outstanding
|
$ | 3.27 | $ | 3.33 | $ | 3.05 | |||||||
DILUTED:
|
|||||||||||||
Net Income
|
$ | 468,550 | $ | 482,653 | $ | 443,012 | |||||||
Weighted average number of common
shares outstanding (a)
|
143,116 | 145,047 | 145,076 | ||||||||||
Incremental shares from assumed
conversion of options
|
149 | 89 | 106 | ||||||||||
|
|
|
|
||||||||||
|
143,265 | 145,136 | 145,182 | ||||||||||
|
|
|
|
||||||||||
Earnings per share of Common Stock
assuming conversion of options
|
$ | 3.27 | $ | 3.33 | $ | 3.05 |
(a) | Based on a daily average. |
EXHIBIT 12-28
Year Ended December 31 | ||||||||||||||||||||
|
||||||||||||||||||||
2000 | 1999 | 1998 | ||||||||||||||||||
|
|
|
||||||||||||||||||
(Millions, except for ratio and percent) | ||||||||||||||||||||
Net income
|
$ | 468 | $ | 483 | $ | 443 | ||||||||||||||
|
|
|
|
|||||||||||||||||
Taxes based on income:
|
||||||||||||||||||||
Income taxes
|
9 | 60 | 154 | |||||||||||||||||
Municipal and state
|
3 | 3 | 3 | |||||||||||||||||
|
|
|
|
|||||||||||||||||
Total taxes based on income
|
12 | 63 | 157 | |||||||||||||||||
|
|
|
|
|||||||||||||||||
Fixed charges:
|
||||||||||||||||||||
Interest on long-term debt
|
260 | 279 | 279 | |||||||||||||||||
Amortization of debt discount, premium
and expense
|
11 | 18 | 11 | |||||||||||||||||
Other interest
|
65 | 47 | 29 | |||||||||||||||||
Interest factor of rents
|
34 | 34 | 34 | |||||||||||||||||
Preferred stock dividend factor
|
| | 7 | |||||||||||||||||
|
|
|
|
|||||||||||||||||
Total fixed charges
|
370 | 378 | 360 | |||||||||||||||||
|
|
|
|
|||||||||||||||||
Earnings before taxes based on income
and fixed charges
|
$ | 850 | $ | 924 | $ | 960 | ||||||||||||||
|
|
|
|
|||||||||||||||||
Ratio of earnings to fixed charges
|
2.30 | 2.44 | 2.67 | |||||||||||||||||
Preferred stock dividends
|
$ | | $ | | $ | 6 | ||||||||||||||
Dividends meeting requirement of
IRC Section 247
|
N/A | N/A | 4 | |||||||||||||||||
Percent deductible for income tax purposes
|
N/A | N/A | 40.00 | % | ||||||||||||||||
Amount deductible
|
N/A | N/A | 2 | |||||||||||||||||
Amount not deductible
|
N/A | N/A | 4 | |||||||||||||||||
Ratio of pretax income to net income
|
N/A | N/A | 1.35 | |||||||||||||||||
Dividend factor for amount not deductible
|
N/A | N/A | 5 | |||||||||||||||||
Amount deductible
|
N/A | N/A | 2 | |||||||||||||||||
|
|
|
|
|||||||||||||||||
Total preferred stock dividend factor
|
$ | N/A | $ | N/A | $ | 7 | ||||||||||||||
|
|
|
|
|||||||||||||||||
EXHIBIT 12-29
Year Ended December 31 | |||||||||||
|
|||||||||||
2000 | 1999 | 1998 | |||||||||
|
|
|
|||||||||
(Millions, except for ratio) | |||||||||||
Net income
|
$ | 411 | $ | 434 | $ | 418 | |||||
|
|
|
|||||||||
Taxes based on income:
|
|||||||||||
Income taxes
|
172 | 211 | 260 | ||||||||
Municipal and state
|
3 | 3 | 3 | ||||||||
|
|
|
|||||||||
Total taxes based on income
|
175 | 214 | 263 | ||||||||
|
|
|
|||||||||
Fixed charges:
|
|||||||||||
Interest on long-term debt
|
245 | 252 | 254 | ||||||||
Amortization of debt discount, premium
and expense
|
10 | 17 | 11 | ||||||||
Other interest
|
22 | 19 | 13 | ||||||||
Interest factor of rents
|
34 | 34 | 34 | ||||||||
|
|
|
|||||||||
Total fixed charges
|
311 | 322 | 312 | ||||||||
|
|
|
|||||||||
Earnings before taxes based on income
and fixed charges
|
$ | 897 | $ | 970 | $ | 993 | |||||
|
|
|
|||||||||
Ratio of earnings to fixed charges
|
2.88 | 3.01 | 3.18 |
EXHIBIT 21-5
DTE ENERGY COMPANY
SUBSIDIARY
DTE CAPITAL CORPORATION
(MICHIGAN)
DTE ENERGY RESOURCES, INC.
(MICHIGAN)
DTE BIOMASS ENERGY, INC.
(MICHIGAN)
ADRIAN GAS PRODUCERS, L.L.C.
(MICHIGAN)
BELLEFONTAINE GAS PRODUCERS, L.L.C.
(DELAWARE)
BELLEVILLE GAS PRODUCERS, INC.
(MICHIGAN)
BIRMINGHAM GAS PRODUCERS, L.L.C.
(MICHIGAN)
BRIDGETON GAS PRODUCERS, L.L.C.
(DELAWARE)
CRIMSON GAS PRODUCERS, L.L.C.
(MICHIGAN)
DTE ARBOR GAS PRODUCERS, INC.
(MICHIGAN)
ESCAMBIA GAS PRODUCERS, INC.
(MICHIGAN)
FAYETTEVILLE GAS PRODUCERS, L.L.C.
(NORTH CAROLINA)
KANSAS CITY GAS PRODUCERS, L.L.C.
(MICHIGAN)
LYCOMING GAS PRODUCERS, INC.
(MICHIGAN)
MONTGOMERY GAS PRODUCERS, L.L.C.
(MICHIGAN)
MOUNTAINEER SYNFUEL, L.L.C.
(DELAWARE)
OKLAHOMA GAS PRODUCERS, L.L.C.
(MICHIGAN)
ORLANDO GAS PRODUCERS, INC.
(MICHIGAN)
PHOENIX GAS PRODUCERS, L.L.C.
(MICHIGAN)
PLAINVILLE GAS PRODUCERS, INC.
(MICHIGAN)
RES POWER, INC.
(MICHIGAN)
RIVERVIEW ENERGY SYSTEMS
(MICHIGAN)
RALEIGH STEAM PRODUCERS, L.L.C.
(NORTH CAROLINA)
RIVERVIEW GAS PRODUCERS, INC.
(MICHIGAN)
ROXANA GAS PRODUCERS, INC.
(MICHIGAN)
SACRAMENTO GAS PRODUCERS, L.L.C.
(MICHIGAN)
SALEM ENERGY SYSTEMS, L.L.C.
(NORTH CAROLINA)
SONOMA ENERGY SYSTEMS, INC.
(MICHIGAN)
SOUTH SIDE GAS PRODUCERS, L.L.C.
(MICHIGAN)
ST. LOUIS GAS PRODUCERS, L.L.C.
(DELAWARE)
WAKE GAS PRODUCERS, L.L.C.
(NORTH CAROLINA)
WICHITA GAS PRODUCERS, L.L.C.
(MIGHIGAN)
WINSTON GAS PRODUCERS, L.L.C.
(NORTH CAROLINA)
DTE COAL SERVICES, INC.
(MICHIGAN)
DTE RAIL SERVICES, INC.
(MICHIGAN)
DTECS HOLDINGS, INC.
(MICHIGAN)
DTECS LIMITED PARTNERSHIP
(MICHIGAN)
DTE ENERGY MARKETING, INC. (NEW)
(MICHIGAN)
DTE ENERGY SERVICES, INC.
(MICHIGAN)
CHICAGO HEIGHTS ENERGY PARTNERS, L.L.C.
(DELAWARE)
DTE BACKUP GENERATION LEASING
(DELAWARE)
DTE BH HOLDINGS, INC.
(DELAWARE)
DTE BURNS HARBOR, L.L.C.
(DELAWARE)
DTE ES HOLDINGS, INC.
(MICHIGAN)
DTE GEORGETOWN HOLDINGS, L.L.C.
(DELAWARE)
DTE HOLLAND, L.L.C.
(MICHIGAN)
DTE KENTUCKY, L.L.C.
(DELAWARE)
DTE NORTHWIND, L.L.C.
(DELAWARE)
DTE NORTHWIND OPERATIONS, L.L.C.
(MICHIGAN)
DTE RIVER HILL, L.L.C.
(DELAWARE)
DTE SPARROWS POINT, L.L.C.
(DELAWARE)
DTE SPARROWS POINT HOLDINGS, INC.
(DELAWARE)
DTE SPARROWS POINT OPERATIONS, INC.
(MICHIGAN)
DTE SYNFUELS, L.L.C.
(DELAWARE)
DTE CLOVER, L.L.C. (FORMERLY CRC NO. 6, L.L.C.)
(DELAWARE)
DTE INDYCOKE, L.L.C.
(DELAWARE)
DTE SMITH BRANCH, L.L.C.
(DELAWARE)
DTE SYNFUELS OPERATIONS, L.L.C.
(DELAWARE)
DTE TONAWANDA, L.L.C.
(MICHIGAN)
EES COKE BATTERY COMPANY, INC.
(MICHIGAN)
PCI ENTERPRISE COMPANY
(MICHIGAN)
POWER ENERGY PARTNERS, L.L.C.
(DELAWARE)
WOODWARD ENERGY, L.L.C.
(MICHIGAN)
DTE ENERGY TRADING, INC.
(MICHIGAN)
DTE GENERATION, INC.
(MICHIGAN)
DTE RIVER ROUGE NO. 1, L.L.C.
(MICHIGAN)
DTE ENTERPRISES, INC.
(MICHIGAN)
EDISON DEVELOPMENTAL CORPORATION
(MICHIGAN)
DTE SOLAR COMPANY OF CALIFORNIA
(MICHIGAN)
EDVENTURE CAPITAL CORP.
(MICHIGAN)
PLUG POWER, L.L.C.
(DELAWARE)
SYNDECO REALTY CORPORATION
(MICHIGAN)
ASHLEY MEWS LIABILITY COMPANY
(MICHIGAN)
SYNDECO PLAZA, L.L.C.
(MICHIGAN)
THE DETROIT EDISON COMPANY
(MICHIGAN)
INTERNATIONAL TRANSMISSION COMPANY
(MICHIGAN)
MIDWEST ENERGY RESOURCES COMPANY
(MICHIGAN)
ST. CLAIR ENERGY CORPORATION
(MICHIGAN)
THE EDISON ILLUMINATING COMPANY OF DETROIT EDISON
(MICHIGAN)
WOLVERINE ENERGY SERVICES, INC.
(MICHIGAN)
DTE EDISON AMERICA, INC.
(MICHIGAN)
DTE ENERGY SOLUTIONS, INC.
(MICHIGAN)
DTE ENGINEERING SERVICES, INC.
(MICHIGAN)
MILAGRO INTEGRATED TECHNOLOGIES, L.L.C.
(MICHIGAN)
DTE ENERGY TECHNOLOGIES, INC.
(MICHIGAN)
EXHIBIT 23-14
INDEPENDENT AUDITORS CONSENT
We consent to the incorporation by reference of our report dated January 24, 2001 appearing in this Annual Report
on Form 10-K of DTE Energy Company and The Detroit Edison Company for the year ended December 31, 2000 in the
following registration statements:
Deloitte & Touche LLP
Detroit, Michigan
Form
Registration Number
33-57545
333-89175
333-00023
33-53207
33-64296
333-65765
March 1, 2001
EXHIBIT 99-38
EXECUTION COPY
FOURTH AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of January 16, 2001
Among
DTE CAPITAL CORPORATION,
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders
and
CITIBANK, N.A.,
as Agent and ABN AMRO BANK N.V., BANK ONE, NA, as Co-Agent as Co-Agent BARCLAYS BANK PLC, BAYERISCHE LANDESBANK GIROZENTRALE, as Co-Agent CAYMAN ISLANDS BRANCH, as Co-Agent COMERICA BANK, as Co-Agent |
SALOMON SMITH BARNEY INC.,
as Arranger
TABLE OF CONTENTS
PAGE ARTICLE I DEFINITIONS AND ACCOUNTING TERMS SECTION 1.01. Certain Defined Terms................................................................... 1 SECTION 1.02. Computation of Time Periods............................................................. 18 SECTION 1.03. Accounting Terms........................................................................ 18 ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES SECTION 2.01. The Revolving Credit Advances........................................................... 18 SECTION 2.02. Making the Revolving Credit Advances.................................................... 18 SECTION 2.03. The Competitive Bid Advances............................................................ 20 SECTION 2.04. Fees.................................................................................... 24 SECTION 2.05. Increase of the Commitments............................................................. 24 SECTION 2.06. Termination or Reduction of the Commitments............................................. 25 SECTION 2.07. Repayment of Revolving Credit Advances; Term Loan Election.............................. 26 SECTION 2.08. Interest on Revolving Credit Advances................................................... 26 SECTION 2.09. Interest Rate Determination............................................................. 27 SECTION 2.10. Optional Conversion of Revolving Credit Advances........................................ 28 SECTION 2.11. Prepayments of Revolving Credit Advances................................................ 28 SECTION 2.12. Increased Costs......................................................................... 29 SECTION 2.13. Illegality.............................................................................. 30 SECTION 2.14. Payments and Computations............................................................... 30 SECTION 2.15. Taxes................................................................................... 31 SECTION 2.16. Sharing of Payments, Etc................................................................ 33 SECTION 2.17. Extensions of Revolver Termination Date................................................. 34 SECTION 2.18. Use of Proceeds......................................................................... 34 SECTION 2.19. Termination Events...................................................................... 34 ARTICLE III CONDITIONS TO EFFECTIVENESS AND LENDING SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and 2.03......................... 35 SECTION 3.02. Conditions Precedent to Each Revolving Credit Borrowing................................. 37 SECTION 3.03. Conditions Precedent to Each Competitive Bid Borrowing.................................. 38 SECTION 3.04. Conditions Precedent to the Term Loan Election.......................................... 39 SECTION 3.05. Determinations Under Section 3.01....................................................... 39 |
ARTICLE IV REPRESENTATIONS AND WARRANTIES SECTION 4.01. Representations and Warranties of the Borrower.......................................... 39 ARTICLE V COVENANTS OF THE BORROWER SECTION 5.01. Affirmative Covenants................................................................... 42 SECTION 5.02. Negative Covenants Prior to the Parent Assumption Date.................................. 44 SECTION 5.03. Negative Covenants Applicable on or after the Parent Assumption Date.................... 46 ARTICLE VI EVENTS OF DEFAULT SECTION 6.01. Events of Default....................................................................... 47 ARTICLE VII THE AGENT SECTION 7.01. Authorization and Action................................................................ 50 SECTION 7.02. Agent's Reliance, Etc................................................................... 50 SECTION 7.03. Citibank and Affiliates................................................................. 50 SECTION 7.04. Lender Credit Decision.................................................................. 51 SECTION 7.05. Indemnification......................................................................... 51 SECTION 7.06. Successor Agent......................................................................... 51 ARTICLE VIII MISCELLANEOUS SECTION 8.01. Amendments, Etc......................................................................... 52 SECTION 8.02. Notices, Etc............................................................................ 52 SECTION 8.03. No Waiver; Remedies..................................................................... 53 SECTION 8.04. Costs and Expenses...................................................................... 53 SECTION 8.05. Right of Set-off........................................................................ 54 SECTION 8.06. Binding Effect.......................................................................... 54 SECTION 8.07. Assignments, Designations and Participations............................................ 55 SECTION 8.08. Confidentiality......................................................................... 59 SECTION 8.09. Governing Law........................................................................... 60 SECTION 8.10. Execution in Counterparts............................................................... 60 SECTION 8.11. Jurisdiction, Etc....................................................................... 60 SECTION 8.12. Effective Date.......................................................................... 60 SECTION 8.13. Waiver of Jury Trial.................................................................... 60 |
Schedules --------- Schedule I - List of Applicable Lending Offices Schedule 5.02(a) - Existing Liens |
Exhibits -------- Exhibit A-1 - Form of Revolving Credit Note Exhibit A-2 - Form of Competitive Bid Note Exhibit B-1 - Form of Notice of Revolving Credit Borrowing Exhibit B-2 - Form of Notice of Competitive Bid Borrowing Exhibit C - Form of Assignment and Acceptance Exhibit D - Form of Designation Agreement Exhibit E - Form of Certificate by DTE Energy Company Exhibit F - Form of Opinion of Counsel to the Loan Parties Exhibit G - Form of Assignment and Assumption Agreement Exhibit H - Form of Guaranty Exhibit I - Form of New Commitment Acceptance |
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT dated as of
January 16, 2001 among DTE CAPITAL CORPORATION, a Michigan corporation (the
"Borrower") which is wholly owned by DTE Energy Company, a Michigan corporation
(the "Parent"), the banks, financial institutions and other institutional
lenders (the "Initial Lenders") listed on the signature pages hereof, and
CITIBANK, N.A. ("Citibank"), as agent (the "Agent") and ABN AMRO BANK N.V., BANK
ONE, NA, BARCLAYS BANK PLC, BAYERISCHE LANDESBANK GIROZENTRALE, CAYMAN ISLANDS
BRANCH, and COMERICA BANK, as co-agents, for the Lenders (as hereinafter
defined).
PRELIMINARY STATEMENTS.
(1) The Borrower has entered into a Third Amended and Restated Credit Agreement dated as of January 18, 2000, (the "Existing Credit Agreement") with the Agent and certain lenders, financial institutions and other institutional lenders named therein or a party thereto immediately prior to the effectiveness of this Agreement (collectively, the "Existing Lenders").
(2) The Borrower has requested that the Initial Lenders enter into this Agreement to amend and restate the Existing Credit Agreement as set forth herein. The Initial Lenders have indicated their willingness to amend and restate the Existing Credit Agreement upon the terms and conditions stated herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein, the parties hereto hereby agree that, subject to the satisfaction of the conditions set forth in Article III, the Existing Credit Agreement is amended and restated in its entirety to read as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
"Acquisition" means the Parent's proposed acquisition of MCN Energy Group Inc. in accordance with the Merger Agreement.
"Advance" means a Revolving Credit Advance or a Competitive Bid Advance.
"Affiliate" means, as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person or is a director or officer of such Person. For purposes of this definition, the term "control" (including the terms "controlling", "controlled by" and "under common control with") of a Person means the possession, direct or indirect, of the power to vote 5% or more of the Voting
Stock of such Person or to direct or cause the direction of the management and policies of such Person, whether through the ownership of Voting Stock, by contract or otherwise.
"Agent's Account" means the account of the Agent maintained by the Agent at Citibank with its office at Two Penns Way, Suite 200, New Castle, Delaware, 19720, Account No. 36852248, Attention: Christian Laughton.
"Applicable Lending Office" means, with respect to each Lender, such Lender's Domestic Lending Office in the case of a Base Rate Advance and such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate Advance and, in the case of a Competitive Bid Advance, the office of such Lender notified by such Lender to the Agent as its Applicable Lending Office with respect to such Competitive Bid Advance.
"Applicable Margin" means, as of any date, a percentage per annum determined by reference to the Public Debt Rating in effect on such date as set forth below:
Public Debt Rating Applicable Margin for Applicable Margin for S&P/Moody's Base Rate Advances Eurodollar Rate Advances ------------------ --------------------- ------------------------ Level 1 0% .400% A- / A3 or above Level 2 0% .500% Lower than Level 1, but at least BBB+ / Baal or above Level 3 0% .600% Lower than Level 2, but at least BBB / Baa2 or above Level 4 0% .800% Lower than Level 3, but at least BBB- / Baa3 or above Level 5 0% 1.600% Lower than Level 4, or no Public Debt Rating in Effect |
At any time more than 50% of the Commitments are utilized, the Applicable Margin will increase by (i) .125% at Levels 1, 2 and 3, (ii) .250% at Level 4, and (iii) .500% at Level 5.
"Applicable Percentage" means, as of any date, a percentage per annum determined by reference to the Public Debt Rating in effect on such date as set forth below:
Public Debt Rating Applicable S&P/Moody's Percentage ------------------ ---------- Level 1 A- / A3 or above .100% Level 2 Lower than Level 1, but at least BBB+ / Baa1 or above .125% Level 3 Lower than Level 2, but at least BBB / Baa2 or above .150% Level 4 Lower than Level 3, but at least BBB- / Baa3 or above .200% Level 5 Lower than Level 4, or no Public Debt Rating in Effect .400% |
"Assigned Rights" means the rights of the Borrower under Sections 1, 2, 3 and 4 of the Support Agreement and all other rights that are intended to secure the obligations of the Borrower under this Agreement.
"Assignment and Acceptance" means an assignment and acceptance entered into by a Lender and an Eligible Assignee, and accepted by the Agent, in substantially the form of Exhibit C hereto.
"Assignment and Assumption Agreement" means the assignment and assumption agreement, entered into by the Borrower and the Parent, and accepted by the Agent, in accordance with Sections 2.19, 5.02(b) or 8.06, in substantially the form of Exhibit G hereto, or such other agreement in form and substance satisfactory to the Agent and the Lenders, by which the Parent assumes all of the Borrower's obligations under this Agreement.
"Audited Statements" means (i) in the case of the Borrower or the Parent, the Consolidated balance sheets of the Parent and DECO as at December 31, 1999, and the related Consolidated statements of income and cash flows of the Parent and DECO for the fiscal year then ended, accompanied by the opinion thereon of the Parent's and DECO's independent public accountants; and (ii) in the case of MCN and MichCon, the Consolidated balance sheets of MCN and MichCon as at December 31, 1999, and the related Consolidated statements of income and cash flows of MCN and MichCon for the fiscal year then ended, accompanied by the opinion thereon of the MCN's and MichCon's independent public accountants
"Base Rate" means a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be equal to the highest of:
(a) the rate of interest announced publicly by Citibank in New York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%, to the next higher 1/16 of 1%) of (i) 1/2 of 1% per annum, plus (ii) the rate obtained by dividing (A) the latest three-week moving average of secondary market morning offering rates in the United States for three-month certificates of deposit of major United States money market banks, such three-week moving average (adjusted to the basis of a year of 360 days) being determined weekly on each Monday (or, if such day is not a Business Day, on the next succeeding Business Day) for the three-week period ending on the previous Friday by Citibank on the basis of such rates reported by certificate of deposit dealers to and published by the Federal Reserve Bank of New York or, if such publication shall be suspended or terminated, on the basis of quotations for such rates received by Citibank from three New York certificate of deposit dealers of recognized standing selected by Citibank, by (B) a percentage equal to 100% minus the average of the daily percentages specified during such three-week period by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, but not limited to, any emergency, supplemental or other marginal reserve requirement) for Citibank with respect to liabilities consisting of or including (among other liabilities) three-month U.S. dollar non-personal time deposits in the United States, plus (iii) the average during such three-week period of the annual assessment rates estimated by Citibank for determining the then current annual assessment payable by Citibank to the Federal Deposit Insurance Corporation (or any successor) for insuring U.S. dollar deposits of Citibank in the United States; and
(c) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance that bears interest as provided in Section 2.08(a)(i).
"Borrower" has the meaning specified in the recital of parties to this Agreement.
"Borrowing" means a Revolving Credit Borrowing or a Competitive Bid Borrowing.
"Business Day" means a day of the year on which banks are not required or authorized by law to close in New York City and, if the applicable Business Day relates to any Eurodollar Rate Advances, on which dealings are carried on in the London interbank market.
"Capitalization" means the sum of tangible net worth plus Consolidated Debt.
"Collateral Assignment Agreement" means that certain Collateral Assignment Agreement, dated as of January 19, 1999, made by the Borrower to the Agent, as amended, supplemented or modified in accordance with the terms thereof and hereof.
"Commitment" has the meaning specified in Section 2.01.
"Competitive Bid Advance" means an advance by a Lender to the Borrower as part of a Competitive Bid Borrowing resulting from the competitive bidding procedure described in Section 2.03 and refers to a Fixed Rate Advance or a LIBO Rate Advance.
"Competitive Bid Borrowing" means a borrowing consisting of simultaneous Competitive Bid Advances from each of the Lenders whose offer to make one or more Competitive Bid Advances as part of such borrowing has been accepted under the competitive bidding procedure described in Section 2.03.
"Competitive Bid Note" means a promissory note of the Borrower payable to the order of any Lender, in substantially the form of Exhibit A-2 hereto, evidencing the indebtedness of the Borrower to such Lender resulting from a Competitive Bid Advance made by such Lender.
"Competitive Bid Reduction" has the meaning specified in
Section 2.01.
"Confidential Information" means information that a Loan Party furnishes to the Agent or any Lender in a writing designated as confidential, but does not include any such information that is or becomes generally available to the public or that is or becomes available to the Agent or such Lender from a source other than a Loan Party.
"Consolidated" refers to the consolidation of accounts in accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to a conversion of Revolving Credit Advances of one Type into Revolving Credit Advances of the other Type pursuant to Section 2.09 or 2.10.
"Debt" of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase price of property or services (other than trade payables not overdue by more than 60 days incurred in the ordinary course of such Person's business), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all obligations of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all obligations of such Person as lessee under leases that have been or should be, in accordance with GAAP, recorded as capital leases, (f) all obligations, contingent or otherwise, of such Person in respect of acceptances, letters of credit or similar extensions of credit, (g) all obligations of such Person in respect of Hedge Agreements, (h) all Debt of others referred to in clauses (a)
through (g) above or clause (i) below guaranteed directly or indirectly in any manner by such Person, or in effect guaranteed directly or indirectly by such Person through an agreement (1) to pay or purchase such Debt or to advance or supply funds for the payment or purchase of such Debt, (2) to purchase, sell or lease (as lessee or lessor) property, or to purchase or sell services, primarily for the purpose of enabling the debtor to make payment of such Debt or to assure the holder of such Debt against loss, (3) to supply funds to or in any other manner invest in the debtor (including any agreement to pay for property or services irrespective of whether such property is received or such services are rendered) or (4) otherwise to assure a creditor against loss, and (i) all Debt referred to in clauses (a) through (h) above secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) any Lien on property (including, without limitation, accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Debt. See the definition of "Nonrecourse Debt" below.
"Declining Lender" has the meaning specified in Section 2.17.
"DECO" means The Detroit Edison Company, a Michigan corporation wholly owned by the Parent.
"Default" means any Event of Default or any event that would constitute an Event of Default but for the requirement that notice be given or time elapse or both.
"Designated Bidder" means (a) an Eligible Assignee or (b) a special purpose corporation that is engaged in making, purchasing or otherwise investing in commercial loans in the ordinary course of its business and that issues (or the parent of which issues) commercial paper rated at least "Prime-1" (or the then equivalent grade) by Moody's or "A-1" (or the then equivalent grade) by S&P that, in the case of either clause (a) or (b), (i) is organized under the laws of the United States or any State thereof, (ii) shall have become a party hereto pursuant to Section 8.07(d), (e) and (f) and (iii) is not otherwise a Lender.
"Designating Lender" has the meaning specified in Section 8.07(k).
"Designation Agreement" means a designation agreement entered into by a Lender (other than a Designated Bidder) and a Designated Bidder, and accepted by the Agent, in substantially the form of Exhibit D hereto.
"Disclosed Litigation" has the meaning specified in Section 3.01(b).
"Domestic Lending Office" means, with respect to any Lender, the office of such Lender specified as its "Domestic Lending Office" opposite its name on Schedule I hereto or in the Assignment and Acceptance or the New Commitment Acceptance pursuant to which it became a Lender, or such other office of such Lender as such Lender may from time to time specify to the Borrower and the Agent.
"EBITDA" means, for any period, net income (or net loss) plus the sum of (a) interest expense, (b) income tax expense, (c) depreciation expense and (d) amortization expense, in each case determined in accordance with GAAP for such period less the aggregate amount, if any, of securitization bond charges (or similar charges imposed on customers for the purpose of servicing Securitization Bonds) collected by or on behalf of the Securitization SPE, to the extent such charges are included in the calculation of net income (or net loss).
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a Lender; (iii) a commercial bank organized under the laws of the United States, or any State thereof, and having a combined capital and surplus of at least $250,000,000; (iv) a savings and loan association or savings bank organized under the laws of the United States, or any State thereof, and having a combined capital and surplus of at least $250,000,000; (v) a commercial bank organized under the laws of any other country that is a member of the Organization for Economic Cooperation and Development or has concluded special lending arrangements with the International Monetary Fund associated with its General Arrangements to Borrow, or a political subdivision of any such country, and having a combined capital and surplus of at least $250,000,000, so long as such bank is acting through a branch or agency located in the United States; (vi) the central bank of any country that is a member of the Organization for Economic Cooperation and Development; (vii) a finance company, insurance company or other financial institution or fund (whether a corporation, partnership, trust or other entity) that is engaged in making, purchasing or otherwise investing in commercial loans in the ordinary course of its business and having a combined capital and surplus of at least $250,000,000; and (viii) any other Person approved by the Agent and the Borrower, such approval not to be unreasonably withheld or delayed by either party; provided, however, that neither the Borrower nor an Affiliate of the Borrower shall qualify as an Eligible Assignee.
"Enterprises" means DTE Enterprises, Inc., a Michigan corporation wholly-owned by the Parent.
"Environmental Action" means any action, suit, demand, demand letter, claim, notice of non-compliance or violation, notice of liability or potential liability, investigation, proceeding, consent order or consent agreement relating in any way to any Environmental Law, Environmental Permit or Hazardous Materials or arising from alleged injury or threat of injury to health, safety or the environment, including, without limitation, (a) by any governmental or regulatory authority for enforcement, cleanup, removal, response, remedial or other actions or damages and (b) by any governmental or regulatory authority or any third party for damages, contribution, indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign statute, law, ordinance, rule, regulation, code, order, judgment, decree or judicial or agency interpretation, policy or guidance relating to pollution or protection of the environment, health, safety or natural resources, including, without limitation, those relating to the use,
handling, transportation, treatment, storage, disposal, release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval, identification number, license or other authorization required under any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of ERISA is a member of the Borrower's controlled group, or under common control with the Borrower, within the meaning of Section 414 of the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event
has been waived by the PBGC, or (ii) the requirements of subsection (1)
of Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in paragraph
(9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably
expected to occur with respect to such Plan within the following 30
days; (b) the application for a minimum funding waiver with respect to
a Plan; (c) the provision by the administrator of any Plan of a notice
of intent to terminate such Plan pursuant to Section 4041(a)(2) of
ERISA (including any such notice with respect to a plan amendment
referred to in Section 4041(e) of ERISA); (d) the cessation of
operations at a facility of the Borrower or any ERISA Affiliate in the
circumstances described in Section 4062(e) of ERISA; (e) the withdrawal
by the Borrower or any ERISA Affiliate from a Multiple Employer Plan
during a plan year for which it was a substantial employer, as defined
in Section 4001(a)(2) of ERISA; (f) the conditions for the imposition
of a lien under Section 302(f) of ERISA shall have been met with
respect to any Plan; (g) the adoption of an amendment to a Plan
requiring the provision of security to such Plan pursuant to Section
307 of ERISA; or (h) the institution by the PBGC of proceedings to
terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence
of any event or condition described in Section 4042 of ERISA that
constitutes grounds for the termination of, or the appointment of a
trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender, the office of such Lender specified as its "Eurodollar Lending Office" opposite its name on Schedule I hereto or in the Assignment and Acceptance or the New Commitment Acceptance pursuant to which it became a Lender (or, if no such office is specified, its Domestic Lending Office), or such other office of such Lender as such Lender may from time to time specify to the Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Revolving Credit
Borrowing, an interest rate per annum equal to the rate per annum
obtained by dividing (a) the average (rounded upward to the nearest
whole multiple of 1/16 of 1% per annum, if such average is not such a
multiple) of the rate per annum at which deposits in U.S. dollars are
offered by the principal office of each of the Reference Banks in
London, England to prime banks in the London interbank market at 11:00
A.M. (London time) two Business Days before the first day of such
Interest Period in an amount approximately equal to such Reference
Bank's Eurodollar Rate Advance comprising part of such Revolving Credit
Borrowing to be outstanding during such Interest Period and for a
period equal to such Interest Period by (b) a percentage equal to 100%
minus the Eurodollar Rate Reserve Percentage for such Interest Period.
The Eurodollar Rate for any Interest Period for each Eurodollar Rate
Advance comprising part of the same Revolving Credit Borrowing shall be
determined by the Agent on the basis of applicable rates furnished to
and received by the Agent from the Reference Banks two Business Days
before the first day of such Interest Period, subject, however, to the
provisions of Section 2.09.
"Eurodollar Rate Advance" means a Revolving Credit Advance that bears interest as provided in Section 2.08(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for all Eurodollar Rate Advances or LIBO Rate Advances comprising part of the same Borrowing means the reserve percentage applicable two Business Days before the first day of such Interest Period under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, without limitation, any emergency, supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve System in New York City with respect to liabilities or assets consisting of or including Eurocurrency Liabilities (or with respect to any other category of liabilities that includes deposits by reference to which the interest rate on Eurodollar Rate Advances or LIBO Rate Advances is determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Existing Commitment" means, for each Existing Lender, all of such Existing Lender's rights in and to, and all of its obligations under, the Commitment (as defined in the Existing Credit Agreement) held by it under the Existing Credit Agreement as of the Effective Date.
"Existing Credit Agreement" has the meaning specified in the Preliminary Statement hereto.
"Existing Lenders" has the meaning specified in the Preliminary Statements hereto.
"Existing Notes" means the Notes as defined in, and issued pursuant to, the Existing Credit Agreement.
"Extending Lenders" has the meaning specified in Section 2.17.
"Facility Fee" has the meaning specified in Section 2.04(a).
"Federal Funds Rate" means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day on such transactions received by the Agent from three federal funds brokers of recognized standing selected by it.
"Financial Officer" of any Person means the chief executive officer, president, chief financial officer, any vice president, controller, treasurer or any assistant treasurer of such Person.
"Fixed Rate Advances" has the meaning specified in Section 2.03(a)(i).
"Guaranty" means the guaranty entered into by the Parent in favor of the Agent and the Lenders in accordance with Sections 2.19 or 5.02(b), in substantially in the form of Exhibit H hereto.
"GAAP" has the meaning specified in Section 1.03.
"Hazardous Materials" means (a) petroleum and petroleum products, by-products or breakdown products, radioactive materials, asbestos-containing materials, polychlorinated biphenyls and radon gas and (b) any other chemicals, materials or substances designated, classified or regulated as hazardous or toxic or as a pollutant or contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar agreements, interest rate future or option contracts, currency swap agreements, currency future or option contracts and other similar agreements, except for those hedge agreements, which agreements shall be pari passu with or subordinate to this Agreement, that may be entered into by the Parent for an aggregate notional amount of up to $1.6 billion in connection with the Acquisition.
"Increase Date" has the meaning specified in Section 2.05(a).
"Increase Remainder" has the meaning specified in Section 2.05(c).
"Information Memorandum" means the information memorandum, dated December 2000, used by the Agent and Salomon Smith Barney Inc., as arranger in connection with the syndication of the Commitments.
"Insufficiency" means, with respect to any Plan, the amount, if any, of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.
"Interest Period" means, for each Eurodollar Rate Advance comprising part of the same Revolving Credit Borrowing and each LIBO Rate Advance comprising part of the same Competitive Bid Borrowing, the period commencing on the date of such Eurodollar Rate Advance or LIBO Rate Advance or the date of the Conversion of any Base Rate Advance into such Eurodollar Rate Advance and ending on the last day of the period selected by the Borrower pursuant to the provisions below and, thereafter, with respect to Eurodollar Rate Advances, each subsequent period commencing on the last day of the immediately preceding Interest Period and ending on the last day of the period selected by the Borrower pursuant to the provisions below. The duration of each such Interest Period shall be one, two, three or six months, as the Borrower may, upon notice received by the Agent not later than 11:00 A.M. (New York City time) on the third Business Day prior to the first day of such Interest Period, select; provided, however, that:
(i) the Borrower may not select any Interest Period that ends after the Revolver Termination Date then in effect or, if the Advances have been converted to a term loan pursuant to Section 2.07 prior to such selection, which ends after the Maturity Date;
(ii) Interest Periods commencing on the same date for Eurodollar Rate Advances comprising part of the same Revolving Credit Borrowing or for LIBO Rate Advances comprising part of the same Competitive Bid Borrowing shall be of the same duration;
(iii) whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next succeeding Business Day, provided, however, that, if such extension would cause the last day of such Interest Period to occur in the next following calendar month, the last day of such Interest Period shall occur on the next preceding Business Day; and
(iv) whenever the first day of any Interest Period occurs on a day of an initial calendar month for which there is no numerically corresponding day in the calendar month that succeeds such initial calendar month by the number of months equal to the number of months in such Interest Period, such Interest Period shall end on the last Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
"Junior Subordinated Debentures" means subordinated junior deferrable interest debentures issued by DECO from time to time in an outstanding aggregate principal amount not to exceed the aggregate principal amount of such debentures outstanding on the date hereof.
"Lenders" means the Initial Lenders and each Person that shall become a party hereto pursuant to Section 8.07(a), (b) and (c) and, except when used in reference to a Revolving Credit Advance, a Revolving Credit Borrowing, a Revolving Credit Note, a Commitment or a related term, each Designated Bidder.
"LIBO Rate" means, for any Interest Period for all LIBO Rate Advances comprising part of the same Competitive Bid Borrowing, an interest rate per annum equal to the rate per annum obtained by dividing (a) the average (rounded upward to the nearest whole multiple of 1/16 of 1% per annum, if such average is not such a multiple) of the rate per annum at which deposits in U.S. dollars are offered by the principal office of each of the Reference Banks in London, England to prime banks in the London interbank market at 11:00 A.M. (London time) two Business Days before the first day of such Interest Period in an amount substantially equal to the amount that would be the Reference Banks' respective ratable shares of such Borrowing if such Borrowing were to be a Revolving Credit Borrowing to be outstanding during such Interest Period and for a period equal to such Interest Period by (b) a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage for such Interest Period. The LIBO Rate for any Interest Period for each LIBO Rate Advance comprising part of the same Competitive Bid Borrowing shall be determined by the Agent on the basis of applicable rates furnished to and received by the Agent from the Reference Banks two Business Days before the first day of such Interest Period, subject, however, to the provisions of Section 2.09.
"LIBO Rate Advances" has the meaning specified in Section 2.03(a)(i).
"Lien" means any lien, security interest or other charge or encumbrance of any kind, or any other type of preferential arrangement, including, without limitation, the lien or retained security title of a conditional vendor and any easement, right of way or other encumbrance on title to real property.
"Loan Documents" means this Agreement, the Notes, the Support Agreement, the Collateral Assignment Agreement and, if executed and delivered in accordance with Section 2.19, the Guaranty or the Assignment and Assumption Agreement.
"Loan Parties" means the Borrower and the Parent.
"Material Adverse Change" means any material adverse change in the business, condition (financial or otherwise), operations, performance, properties or prospects of either Loan Party and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on
(a) the business, condition (financial or otherwise), operations,
performance, properties or prospects of either Loan Party or either
Loan Party and its Subsidiaries taken as a whole, (b) the rights and
remedies of the Agent or any Lender under any Loan Document or (c) the
ability of either Loan Party to perform its obligations under any Loan
Document to which it is a party.
"Maturity Date" means the earlier of (a) the one year anniversary of the Term Loan Conversion Date and (b) the date of the termination in whole of the aggregate Commitments pursuant to Section 2.06, 2.19 or 6.01.
"Maximum Facility Amount" means $400,000,000.
"MCN" means MCN Energy Group Inc., a Michigan corporation which is intended to be merged into Enterprises upon (or shortly following) the consummation of the Acquisition
"Merger Agreement" means the Agreement and Plan of Merger, dated as of October 4, 1999, as amended as of November 12, 1999, among the Parent, Enterprises and MCN.
"MichCon" means Michigan Consolidated Gas Company, a Michigan corporation, wholly owned (indirectly) by MCN.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the Borrower or any ERISA Affiliate and at least one Person other than the Borrower and the ERISA Affiliates or (b) was so maintained and in respect of which the Borrower or any ERISA Affiliate could have liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be terminated.
"Nonrecourse Debt" means Debt of either Loan Party or any of their Subsidiaries in respect of which no recourse may be had by the creditors under such Debt against such Loan Party or such Subsidiary in its individual capacity or against the assets of such Loan Party or such Subsidiary, other than assets which were purchased by such Loan Party or such Subsidiary with the proceeds of such Debt; it being understood that Securitization Bonds shall constitute Nonrecourse Debt for all purposes of the Loan Documents, except to the extent (and only to the extent) of any claims made against DECO in respect of its indemnification obligations relating to such Securitization Bonds.
"Note" means a Revolving Credit Note or a Competitive Bid Note.
"Notice of Competitive Bid Borrowing" has the meaning specified in Section 2.03(a)(i).
"Notice of Revolving Credit Borrowing" has the meaning specified in Section 2.02(a).
"Parent" has the meaning specified in the recital by the parties to this Agreement.
"Parent Assumption Date" means the date upon which the Parent becomes the Borrower hereunder, either by execution and delivery of the Assignment and Assumption Agreement or by operation of law upon a merger or consolidation of the Borrower with or into the Parent.
"PBGC" means the Pension Benefit Guaranty Corporation (or any successor).
"Permitted Liens" means such of the following as to which no enforcement, collection, execution, levy or foreclosure proceeding shall have been commenced: (a) Liens for taxes, assessments and governmental charges or levies to the extent not required to be paid under Section 5.01(b) hereof; (b) Liens imposed by law, such as materialmen's, mechanics', carriers', workmen's and repairmen's Liens and other similar Liens arising in the ordinary course of business securing obligations that are not overdue for a period of more than 30 days; (c) pledges or deposits to secure obligations under workers' compensation laws or similar legislation or to secure public or statutory obligations; and (d) easements, rights of way and other encumbrances on title to real property that do not render title to the property encumbered thereby unmarketable or materially adversely affect the use of such property for its present purposes.
"Person" means an individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, joint venture, limited liability company or other entity, or a government or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Proposed Increase" has the meaning specified in Section 2.05(a).
"Proposed Increased Commitment" has the meaning specified in
Section 2.05(c).
"Public Debt Rating" means, as of any date, the lowest rating that has been most recently announced by either S&P or Moody's, as the case may be, for any class of non-credit enhanced senior unsecured Debt issued by the Borrower. For purposes of the foregoing, (a) if only one of S&P and Moody's shall have in effect a Public Debt Rating, the Applicable Margin and the Applicable Percentage shall be determined by reference to the available rating; (b) if neither S&P nor Moody's shall have in effect a Public Debt
Rating, the Applicable Margin and the Applicable Percentage will be set in accordance with Level 5 under the definition of "Applicable Margin" or "Applicable Percentage", as the case may be; (c) if the ratings established by S&P and Moody's shall fall within different levels, the Applicable Margin and the Applicable Percentage shall be based upon the lower rating; (d) if any rating established by S&P or Moody's shall be changed, such change shall be effective as of the date on which such change is first announced publicly by the rating agency making such change; and (e) if S&P or Moody's shall change the basis on which ratings are established, each reference to the Public Debt Rating announced by S&P or Moody's, as the case may be, shall refer to the then equivalent rating by S&P or Moody's, as the case may be.
"Reference Banks" means Citibank, N.A., Barclays Bank PLC and Bank One N.A.
"Register" has the meaning specified in Section 8.07(g).
"Required Lenders" means at any time Lenders owed at least 66-2/3% of the then aggregate unpaid principal amount of the Revolving Credit Advances owing to Lenders, or, if no such principal amount is then outstanding, Lenders having at least 66-2/3% of the Commitments.
"Revolver Termination Date" means the earlier of January 15, 2002 or, if extended pursuant to Section 2.17, the date that is 364 days after the Revolver Termination Date then in effect, and (b) the date of termination in whole of the Commitments pursuant to Section 2.06, 2.19 or 6.01; provided, however, that the Revolver Termination Date of any Lender that is a Declining Lender to any requested extension pursuant to Section 2.17 shall be the Revolver Termination Date in effect immediately prior to the date on which such extension was granted, for all purposes of this Agreement.
"Revolving Credit Advance" means an advance by a Lender to the Borrower as part of a Revolving Credit Borrowing and, if the Borrower has made the Term Loan Election in accordance with Section 2.07, includes each such advance that remains outstanding after the Term Loan Conversion Date, and refers to a Base Rate Advance or a Eurodollar Rate Advance (each of which shall be a "Type" of Revolving Credit Advance).
"Revolving Credit Borrowing" means a borrowing consisting of simultaneous Revolving Credit Advances of the same Type and (in the case of Eurodollar Rate Advances) having the same Interest Period, made by each of the Lenders pursuant to Section 2.01.
"Revolving Credit Note" means a promissory note of the Borrower payable to the order of any Lender, in substantially the form of Exhibit A-1 hereto, evidencing the aggregate indebtedness of the Borrower to such Lender resulting from the Revolving Credit Advances made by such Lender.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw-Hill, Inc.
"SEC Reports" means the following reports and financial statements of the Parent and DECO and, after the consummation of the Acquisition, MCN and MichCon, as the case may be:
(i) the Parent's and DECO's Annual Reports on Form 10-K for the year ended December 31, 1999, as filed with or sent to the Securities and Exchange Commission, including therein the Audited Statements of the Parent and DECO;
(ii) MCN's and MichCon's Annual Reports on Form 10-K for the year ended December 31, 1999, as filed with or sent to the Securities and Exchange Commission, including therein the Audited Statements of MCN and MichCon;
(iii) the Parent's and DECO's Quarterly Reports on Form 10-Q for the quarter ended September 30, 2000, including therein the Unaudited Statements of the Parent and DECO, and the Parent's and DECO's Current Reports on Form 8-K, if any, provided to the Lenders prior to the date of this Agreement; and
(iv) MCN's and MichCon's Quarterly Reports on Form 10-Q for the quarter ended September 30, 2000, including therein the Unaudited Statements of MCN and MichCon, and MCN's and MichCon's Current Reports on Form 8-K, if any, provided to the Lenders prior to the date of this Agreement.
"SPV" has the meaning specified in Section 8.07(k).
"Securitization Bonds" means Debt of the Securitization SPE, issued pursuant to Enrolled Senate Bill No. 1253, Public Act 142 of 2000 of the State of Michigan.
"Securitization SPE" means The Detroit Edison Securitization Funding LLC, a single-member limited liability company organized under the laws of the State of Michigan, all of the membership interest in which is held directly or indirectly by the Parent.
"Significant Subsidiary" means (i) DECO, (ii) after the consummation of the Acquisition, Enterprises and MichCon, and (iii) any other Subsidiary of the Parent (A) the total assets (after intercompany eliminations) of which exceed 30% of the total assets of the Parent and its Subsidiaries or (B) the net worth of which exceeds 30% of the Consolidated Net Worth of the Parent and its Subsidiaries, in each case as shown on the consolidated balance sheet of the Parent and its Subsidiaries prepared on a pro forma basis after giving effect to the Acquisition.
"Single Employer Plan" means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the Borrower or any ERISA Affiliate and no Person other than the Borrower and the ERISA Affiliates or (b) was so maintained and in respect of which the Borrower or any ERISA Affiliate could have liability under Section 4069 of ERISA in the event such plan has been or were to be terminated.
"Subsidiary" of any Person means any corporation, partnership, joint venture, limited liability company, trust or estate of which (or in which) more than 50% of (a) the issued and outstanding capital stock having ordinary voting power to elect a majority of the Board of Directors of such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency), (b) the interest in the capital or profits of such limited liability company, partnership or joint venture or (c) the beneficial interest in such trust or estate is at the time directly owned or controlled by such Person, by such Person and one or more of its other Subsidiaries or by one or more of such Person's other Subsidiaries.
"Support Agreement" means that certain Support Agreement, dated as of January 19, 1999, between the Parent and the Borrower, as amended, supplemented or modified in accordance with the terms thereof and hereof.
"Term Loan Conversion Date" has the meaning specified in
Section 2.07.
"Term Loan Election" has the meaning specified in Section 2.07.
"Termination Event" has the meaning specified in Section 2.19.
"Third Party" has the meaning specified in Section 2.05(a).
"Third Party Commitment" has the meaning specified in Section 2.05(b).
"Unaudited Statements" means (i) in the case of the Parent, the unaudited Consolidated balance sheets of the Parent and DECO, as at September 30, 2000, and the related Consolidated statements of income and cash flows of the Parent and DECO for the nine-month period then ended, duly certified by a Financial Officer of the Parent and DECO; and (ii) in the case of MCN and MichCon, the unaudited Consolidated balance sheets of MCN and MichCon as at September 30, 2000, and the related Consolidated statements of income and cash flows of MCN and MichCon for the nine-month period then ended, duly certified by a Financial Officer of MCN and MichCon.
"Voting Stock" means capital stock issued by a corporation, or equivalent interests in any other Person, the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even if the right so to vote has been suspended by the happening of such a contingency.
"Withdrawal Liability" has the meaning specified in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement in the computation of periods of time from a specified date to a later specified date, the word "from" means "from and including" and the words "to" and "until" each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles consistent with those applied in the preparation of the financial statements referred to in Section 4.01(e) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. Each Lender severally agrees, on the terms and conditions hereinafter set forth, to make Revolving Credit Advances to the Borrower from time to time on any Business Day during the period from the Effective Date until the earlier of the Revolver Termination Date and the Term Loan Conversion Date in an aggregate amount not to exceed at any time outstanding the amount set forth opposite such Lender's name on Schedule 1 hereto or, if such Lender has entered into any Assignment and Acceptance or any New Commitment Acceptance, set forth for such Lender in the Register maintained by the Agent pursuant to Section 8.07(g), as such amount may be increased pursuant to Section 2.05 or reduced pursuant to Section 2.06 (such Lender's "Commitment"), provided that the aggregate amount of the Commitments of the Lenders shall be deemed used from time to time to the extent of the aggregate amount of the Competitive Bid Advances then outstanding and such deemed use of the aggregate amount of the Commitments shall be allocated among the Lenders ratably according to their respective Commitments (such deemed use of the aggregate amount of the Commitments being a "Competitive Bid Reduction"). Each Revolving Credit Borrowing shall be in an aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof (or, if less, an aggregate amount equal to the amount by which the aggregate amount of a proposed Competitive Bid Borrowing requested by the Borrower exceeds the aggregate amount of Competitive Bid Advances offered to be made by the Lenders and accepted by the Borrower in respect of such Competitive Bid Borrowing, if such Competitive Bid Borrowing is made on the same date as such Revolving Credit Borrowing) and shall consist of Revolving Credit Advances of the same Type made on the same day by the Lenders ratably according to their respective Commitments. Within the limits of each Lender's Commitment, the Borrower may borrow under this Section 2.01, prepay pursuant to Section 2.11 and reborrow under this Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances. (a) Each
Revolving Credit Borrowing shall be made on notice, given not later than 11:00
A.M. (New York City time) on the third Business Day prior to the date of the
proposed Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Eurodollar Rate Advances, or 9:00 A.M.
(New York City time) the Business Day of the proposed Revolving Credit Borrowing in the case of a Revolving Credit Borrowing consisting of Base Rate Advances, by the Borrower to the Agent, which shall give to each Lender prompt notice thereof by telecopier or telex. Each such notice of a Revolving Credit Borrowing (a "Notice of Revolving Credit Borrowing") shall be by telephone, confirmed immediately in writing, or telecopier or telex in substantially the form of Exhibit B-1 hereto, specifying therein the requested (i) date of such Revolving Credit Borrowing, (ii) Type of Advances comprising such Revolving Credit Borrowing, (iii) aggregate amount of such Revolving Credit Borrowing, and (iv) in the case of a Revolving Credit Borrowing consisting of Eurodollar Rate Advances, initial Interest Period for each such Revolving Credit Advance. Each Lender shall, before 11:00 A.M. (New York City time) on the date of such Revolving Credit Borrowing, make available for the account of its Applicable Lending Office to the Agent at the Agent's Account, in same day funds, such Lender's ratable portion of such Revolving Credit Borrowing. After the Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower at the Agent's address referred to in Section 8.02.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) the Borrower may not select Eurodollar Rate Advances for any Revolving
Credit Borrowing if the aggregate amount of such Revolving Credit Borrowing is
less than $5,000,000 or if the obligation of the Lenders to make Eurodollar Rate
Advances shall then be suspended pursuant to Section 2.09 or 2.13 and (ii) the
Eurodollar Rate Advances may not be outstanding as part of more than ten
separate Revolving Credit Borrowings.
(c) Each Notice of Revolving Credit Borrowing shall be irrevocable and binding on the Borrower. In the case of any Revolving Credit Borrowing that the related Notice of Revolving Credit Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of Revolving Credit Borrowing for such Revolving Credit Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Revolving Credit Advance to be made by such Lender as part of such Revolving Credit Borrowing when such Revolving Credit Advance, as a result of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Lender prior to the date of any Revolving Credit Borrowing that such Lender will not make available to the Agent such Lender's ratable portion of such Revolving Credit Borrowing, the Agent may assume that such Lender has made such portion available to the Agent on the date of such Revolving Credit Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent that such Lender shall not have so made such ratable portion available to the Agent, such Lender and the Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid to the Agent, at (i) in the case of the Borrower, the interest rate applicable at the time to Revolving Credit
Advances comprising such Revolving Credit Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's Revolving Credit Advance as part of such Revolving Credit Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Revolving Credit Advance to be made by it as part of any Revolving Credit Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Revolving Credit Advance on the date of such Revolving Credit Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Revolving Credit Advance to be made by such other Lender on the date of any Revolving Credit Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender severally agrees that the Borrower may make Competitive Bid Borrowings under this Section 2.03 from time to time on any Business Day during the period from the date hereof until the date occurring 30 days prior to the earlier of the Revolver Termination Date and the Term Loan Conversion Date in the manner set forth below; provided that, following the making of each Competitive Bid Borrowing, the aggregate amount of the Advances then outstanding shall not exceed the aggregate amount of the Commitments of the Lenders (computed without regard to any Competitive Bid Reduction).
(i) The Borrower may request a Competitive Bid Borrowing under
this Section 2.03 by delivering to the Agent, by telecopier or telex, a
notice of a Competitive Bid Borrowing (a "Notice of Competitive Bid
Borrowing"), in substantially the form of Exhibit B-2 hereto,
specifying therein the requested (v) date of such proposed Competitive
Bid Borrowing, (w) aggregate amount of such proposed Competitive Bid
Borrowing, (x) in the case of a Competitive Bid Borrowing consisting of
LIBO Rate Advances, Interest Period, or in the case of a Competitive
Bid Borrowing consisting of Fixed Rate Advances, maturity date for
repayment of each Fixed Rate Advance to be made as part of such
Competitive Bid Borrowing (which maturity date may not be earlier than
the date occurring 30 days after the date of such Competitive Bid
Borrowing or later than the earlier of (I) 180 days after the date of
such Competitive Bid Borrowing and (II) the earlier of the Revolver
Termination Date and the Term Loan Conversion Date), (y) interest
payment date or dates relating thereto, and (z) other terms (if any) to
be applicable to such Competitive Bid Borrowing, not later than 10:00
A.M. (New York City time) (A) at least one Business Day prior to the
date of the proposed Competitive Bid Borrowing, if the Borrower shall
specify in the Notice of Competitive Bid Borrowing that the rates of
interest to be offered by the Lenders shall be fixed rates per annum
(the Advances comprising any such Competitive Bid Borrowing being
referred to herein as "Fixed Rate Advances") and (B) at least five
Business Days prior to the date of the proposed Competitive Bid
Borrowing, if the Borrower shall instead specify in the Notice of
Competitive Bid Borrowing that the rates of interest be offered by the
Lenders are to be based on the LIBO Rate (the Advances comprising such
Competitive Bid Borrowing being referred to herein as "LIBO Rate
Advances"). Each Notice of Competitive Bid Borrowing shall be
irrevocable and binding on the Borrower. The Agent shall in turn
promptly notify each Lender of each request for a Competitive Bid
Borrowing received
by it from the Borrower by sending such Lender a copy of the related Notice of Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to do so, irrevocably offer to make one or more Competitive Bid Advances to the Borrower as part of such proposed Competitive Bid Borrowing at a rate or rates of interest specified by such Lender in its sole discretion, by notifying the Agent (which shall give prompt notice thereof to the Borrower), before 9:30 A.M. (New York City time) on the date of such proposed Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing consisting of Fixed Rate Advances and before 10:00 A.M. (New York City time) three Business Days before the date of such proposed Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing consisting of LIBO Rate Advances, of the minimum amount and maximum amount of each Competitive Bid Advance which such Lender would be willing to make as part of such proposed Competitive Bid Borrowing (which amounts may, subject to the proviso to the first sentence of this Section 2.03(a), exceed such Lender's Commitment, if any), the rate or rates of interest therefor and such Lender's Applicable Lending Office with respect to such Competitive Bid Advance; provided that if the Agent in its capacity as a Lender shall, in its sole discretion, elect to make any such offer, it shall notify the Borrower of such offer at least 30 minutes before the time and on the date on which notice of such election is to be given to the Agent by the other Lenders. If any Lender shall elect not to make such an offer, such Lender shall so notify the Agent, before 10:00 A.M. (New York City time) on the date on which notice of such election is to be given to the Agent by the other Lenders, and such Lender shall not be obligated to, and shall not, make any Competitive Bid Advance as part of such Competitive Bid Borrowing; provided that the failure by any Lender to give such notice shall not cause such Lender to be obligated to make any Competitive Bid Advance as part of such proposed Competitive Bid Borrowing.
(iii) The Borrower shall, in turn, before 10:30 A.M. (New York City time) on the date of such proposed Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing consisting of Fixed Rate Advances and before 11:00 A.M. (New York City time) three Business Days before the date of such proposed Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing consisting of LIBO Rate Advances, either:
(x) cancel such Competitive Bid Borrowing by giving the Agent notice to that effect, or
(y) accept one or more of the offers made by any Lender or Lenders pursuant to paragraph (ii) above, in its sole discretion, by giving notice to the Agent of the amount of each Competitive Bid Advance (which amount shall be equal to or greater than the minimum amount, and equal to or less than the maximum amount, notified to the Borrower by the Agent on behalf of such Lender for such Competitive Bid Advance pursuant to paragraph (ii) above) to be made by each Lender as part of such Competitive Bid Borrowing, and reject any remaining offers made by Lenders pursuant to paragraph (ii) above by giving the Agent notice to that effect. The Borrower shall accept the offers made by any
Lender or Lenders to make Competitive Bid Advances in order of the lowest to the highest rates of interest offered by such Lenders. If two or more Lenders have offered the same interest rate, the amount to be borrowed at such interest rate will be allocated among such Lenders in proportion to the amount that each such Lender offered at such interest rate.
(iv) If the Borrower notifies the Agent that such Competitive Bid Borrowing is cancelled pursuant to paragraph (iii)(x) above, the Agent shall give prompt notice thereof to the Lenders and such Competitive Bid Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by any Lender or Lenders pursuant to paragraph (iii)(y) above, the Agent shall in turn promptly notify (A) each Lender that has made an offer as described in paragraph (ii) above, of the date and aggregate amount of such Competitive Bid Borrowing and whether or not any offer or offers made by such Lender pursuant to paragraph (ii) above have been accepted by the Borrower, (B) each Lender that is to make a Competitive Bid Advance as part of such Competitive Bid Borrowing, of the amount of each Competitive Bid Advance to be made by such Lender as part of such Competitive Bid Borrowing, and (C) each Lender that is to make a Competitive Bid Advance as part of such Competitive Bid Borrowing, upon receipt, that the Agent has received forms of documents appearing to fulfill the applicable conditions set forth in Article III. Each Lender that is to make a Competitive Bid Advance as part of such Competitive Bid Borrowing shall, before 12:00 noon (New York City time) on the date of such Competitive Bid Borrowing specified in the notice received from the Agent pursuant to clause (A) of the preceding sentence or any later time when such Lender shall have received notice from the Agent pursuant to clause (C) of the preceding sentence, make available for the account of its Applicable Lending Office to the Agent at the Agent's Account, in same day funds, such Lender's portion of such Competitive Bid Borrowing. Upon fulfillment of the applicable conditions set forth in Article III and after receipt by the Agent of such funds, the Agent will make such funds available to the Borrower at the Agent's address referred to in Section 8.02. Promptly after each Competitive Bid Borrowing the Agent will notify each Lender of the amount of the Competitive Bid Borrowing, the consequent Competitive Bid Reduction and the dates upon which such Competitive Bid Reduction commenced and will terminate.
(vi) If the Borrower notifies the Agent that it accepts one or
more of the offers made by any Lender or Lenders pursuant to paragraph
(iii)(y) above, such notice of acceptance shall be irrevocable and
binding on the Borrower. The Borrower shall indemnify each Lender
against any loss, cost or expense incurred by such Lender as a result
of any failure to fulfill on or before the date specified in the
related Notice of Competitive Bid Borrowing for such Competitive Bid
Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (including loss of anticipated
profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund
the Competitive Bid Advance to be made by such Lender as part of such
Competitive Bid Borrowing when such Competitive Bid Advance, as a
result of such failure, is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof and, following the making of each Competitive Bid Borrowing, the Borrower and each Lender shall be in compliance with the limitations set forth in the proviso to the first sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in this Section 2.03, the Borrower may from time to time borrow under this Section 2.03, repay or prepay pursuant to subsection (d) below, and reborrow under this Section 2.03, provided that a Competitive Bid Borrowing shall not be made within three Business Days of the date of any other Competitive Bid Borrowing.
(d) The Borrower shall repay to the Agent for the account of each Lender that has made a Competitive Bid Advance, on the maturity date of each Competitive Bid Advance (such maturity date being that specified by the Borrower for repayment of such Competitive Bid Advance in the related Notice of Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above and provided in the Competitive Bid Note evidencing such Competitive Bid Advance), the then unpaid principal amount of such Competitive Bid Advance. The Borrower shall have no right to prepay any principal amount of any Competitive Bid Advance unless, and then only on the terms, specified by the Borrower for such Competitive Bid Advance in the related Notice of Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above and set forth in the Competitive Bid Note evidencing such Competitive Bid Advance.
(e) The Borrower shall pay interest on the unpaid principal amount of each Competitive Bid Advance from the date of such Competitive Bid Advance to the date the principal amount of such Competitive Bid Advance is repaid in full, at the rate of interest for such Competitive Bid Advance specified by the Lender making such Competitive Bid Advance in its notice with respect thereto delivered pursuant to subsection (a)(ii) above, payable on the interest payment date or dates specified by the Borrower for such Competitive Bid Advance in the related Notice of Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above, as provided in the Competitive Bid Note evidencing such Competitive Bid Advance. Upon the occurrence and during the continuance of an Event of Default, the Borrower shall pay interest on the amount of unpaid principal of and interest on each Competitive Bid Advance owing to a Lender, payable in arrears on the date or dates interest is payable thereon, at a rate per annum equal at all times to 2% per annum above the rate per annum required to be paid on such Competitive Bid Advance under the terms of the Competitive Bid Note evidencing such Competitive Bid Advance unless otherwise agreed in such Competitive Bid Note.
(f) The indebtedness of the Borrower resulting from each Competitive Bid Advance made to the Borrower as part of a Competitive Bid Borrowing shall be evidenced by a separate Competitive Bid Note of the Borrower payable to the order of the Lender making such Competitive Bid Advance.
(g) Upon delivery of each Notice of Competitive Bid Borrowing, the Borrower shall pay a non-refundable fee of $3,000 to the Agent for its own account.
SECTION 2.04. Fees. (a) Facility Fee. The Borrower agrees to pay to the Agent for the account of each Lender (other than the Designated Bidders) a facility fee (the "Facility Fee") on the aggregate amount of such Lender's Commitment from the date hereof in the case of each Initial Lender and from effective date specified in the Assignment and Acceptance or the New Commitment Acceptance pursuant to which it became a Lender in the case of each other Lender until the Maturity Date at a rate per annum equal to the Applicable Percentage in effect from time to time, payable in arrears quarterly on the last day of each March, June, September and December, and on the Maturity Date.
(b) Agent's Fees. The Borrower shall pay to the Agent for its own account such fees as may from time to time be agreed between the Borrower and the Agent.
SECTION 2.05. Increase of the Commitments. (a) The Borrower
may, by delivering a written request to the Agent (each such request being
irrevocable) at least eight, but not more than 60, Business Days before the
Increase Date (as defined below), request that the Lenders increase the
aggregate Commitments by minimum incremental amounts of $1,000,000 up to the
Maximum Facility Amount (the "Proposed Increase"). Such request shall specify
(i) the aggregate amount of the Proposed Increase, (ii) the date of the Proposed
Increase (the "Increase Date") and (iii) any Eligible Assignees that are not
Lenders (each a "Third Party") to which the Borrower desires to offer all or a
portion of the Proposed Increase. The Agent shall, upon its receipt of the
Borrower's request, promptly notify each Lender thereof.
(b) If the Proposed Increase equals or exceeds $5,000,000, the Agent shall notify each Third Party acceptable to it of such Proposed Increase at least six Business Days before the Increase Date. Each such Third Party may irrevocably commit to all or a portion of the Proposed Increase in a minimum principal amount of $5,000,000 (each a "Third Party Commitment") by notifying the Agent thereof at least four Business Days prior to the Increase Date. If the aggregate amount of the Third Party Commitments exceeds the Proposed Increase, the Borrower, in consultation with the Agent, may allocate the Proposed Increase among Third Parties which have offered a Third Party Commitment, provided, that the minimum principal amount of any such allocation must be at least $5,000,000.
(c) If the Proposed Increase exceeds the aggregate Third Party Commitments (as allocated pursuant to (b) above) ("Increase Remainder") by at least $1,000,000, each Lender, in its sole discretion, may irrevocably offer to commit to all or a portion of the Increase Remainder (the "Proposed Increased Commitment") by delivering notice thereof to the Agent at least two Business Days before the Increase Date. If the aggregate amount of the Proposed Increased Commitments exceeds the amount of the Increase Remainder, the amount of the Increase Remainder shall be allocated among the Lenders providing a Proposed Increased Commitment on a pro rata basis based on the ratio of each such Lender's Proposed Increased Commitment to the aggregate of all Proposed Increased Commitments.
(d) Each Lender increasing its Commitment pursuant to this section and each Third Party to which all or a portion of the Proposed Increase is allocated shall execute and deliver to the Agent a New Commitment Acceptance therefor, and each such Third Party shall pay an administrative fee of $3,500 to the Agent. By executing and delivering a New Commitment
Acceptance, each such Lender and Third Party shall be deemed to have agreed with the matters set forth in Section 8.07(b).
(e) The aggregate Commitments shall be increased on the Increase Date by the total of the aggregate Third Party Commitments and the aggregate Proposed Increased Commitments (as allocated, respectively, pursuant to (b) or (c) above), provided, that (i) on the Increase Date and after giving effect to the Proposed Increase the Public Debt Rating shall be at least BBB-/Baa3, (ii) no Event of Default or event that would constitute an Event of Default but for the requirement that notice be given or time elapse or both shall have occurred and be continuing, (iii) the Agent shall have received executed New Commitment Acceptances from each Third Party and Lender participating in the Proposed Increase, (iv) the Agent shall have received all administrative fees payable in accordance with (d) above, and (v) the Agent shall have received certified copies of the resolutions of the Board of Directors of the Borrower approving the Proposed Increase and such other documentation (including legal opinions) as the Agent may reasonably request.
(f) Upon an increase in aggregate Commitments in accordance with (e) above, each Third Party that has executed and delivered a New Commitment Acceptance shall become a Lender hereunder. Upon such increase, the Agent shall record the information contained in each New Commitment Acceptance giving rise to such increase in the Register and give prompt notice thereof to the Borrower. Within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Agent a Revolving Credit Note or Notes to the order of each Lender increasing its Commitment under this Section 2.05 and each Third Party in an amount equal to the Commitment assumed by it pursuant to such New Commitment Acceptance. Each such new Revolving Credit Note shall be dated the effective date of such New Commitment Acceptance and shall otherwise be in substantially the form of Exhibit A-1 hereto. At the commencement of the immediately subsequent Interest Period applicable to each Eurodollar Rate Borrowing, the Lenders (including each Third Party that has become a Lender in accordance with this Section 2.05) shall execute a master assignment, in form acceptable to the Agent, by which portions of the Advances constituting such Borrowing will be assigned to any Lenders increasing their Commitments and/or any Third Party that has become a Lender so that such Advances will be held by the Lenders ratably according to their respective Commitments.
(g) If the aggregate Proposed Increased Commitments and the aggregate Third Party Commitments (as allocated, respectively, pursuant to (b) or (c) above) are less than the Proposed Increase, the Borrower shall have the option of accepting or rejecting as a whole the combined aggregate Proposed Increased Commitments and aggregate Third Party Commitments.
SECTION 2.06. Termination or Reduction of the Commitments. (a) If the Borrower has not made the Term Loan Election at least 15 days prior to the Revolver Termination Date, the Commitments shall be automatically terminated on the Revolver Termination Date. If the Borrower has made the Term Loan Election in accordance with Section 2.07, then on the Term Loan Conversion Date and from time to time thereafter, upon each prepayment of the Revolving Credit Advances, the aggregate Commitments of the Lenders under this Agreement shall be automatically and permanently reduced on a pro rata basis by an amount equal to the amount by which the aggregate Commitments of the Lenders under this Agreement
immediately prior to such reduction exceeds the aggregate unpaid principal amount of the Revolving Credit Advances outstanding at such time.
(b) The Borrower shall have the right, upon at least three Business Days' notice to the Agent, to terminate in whole or reduce ratably in part the unused portions of the respective Commitments of the Lenders, provided that each partial reduction shall be in the aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof and provided further that the aggregate amount of the Commitments of the Lenders shall not be reduced to an amount that is less than the aggregate principal amount of the Competitive Bid Advances then outstanding. Once terminated, a Commitment or portion thereof may not be reinstated.
SECTION 2.07. Repayment of Revolving Credit Advances; Term
Loan Election. (a) The Borrower shall, subject to the provisions of subsection
(b), repay to the Agent for the ratable account of the Lenders on the Revolver
Termination Date the aggregate principal amount of the Revolving Credit Advances
then outstanding.
(b) The Borrower may, at any time prior to the Revolver Termination Date and upon not less than 15 days' notice to the Agent, elect (the "Term Loan Election") to convert all of the Revolving Credit Advances outstanding on the date specified in such notice (the "Term Loan Conversion Date") into a term loan which the Borrower shall repay in full to the Agent for the ratable account of the Lenders on the Maturity Date; provided that no Default has occurred and is continuing on the date of notice of the Term Loan Election or on the Term Loan Conversion Date.
SECTION 2.08. Interest on Revolving Credit Advances. (a) Scheduled Interest. The Borrower shall pay interest on the unpaid principal amount of each Revolving Credit Advance owing to each Lender from the date of such Revolving Credit Advance until such principal amount shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Revolving
Credit Advance is a Base Rate Advance, a rate per annum equal at all
times to the sum of (x) the Base Rate in effect from time to time plus
(y) the Applicable Margin in effect from time to time, payable in
arrears quarterly on the last day of each March, June, September and
December during such periods and on the date such Base Rate Advance
shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such Revolving Credit Advance is a Eurodollar Rate Advance, a rate per annum equal at all times during each Interest Period for such Revolving Credit Advance to the sum of (x) the Eurodollar Rate for such Interest Period for such Revolving Credit Advance plus (y) the Applicable Margin in effect from time to time, payable in arrears on the last day of such Interest Period and, if such Interest Period has a duration of more than three months, on each day that occurs during such Interest Period every three months from the first day of such Interest Period and on the date such Eurodollar Rate Advance shall be Converted or paid in full.
(b) Default Interest. (i) Upon the occurrence and during the continuance of an Event of Default, the Borrower shall pay interest on the unpaid principal amount of each Revolving Credit Advance owing to each Lender, payable in arrears on the dates referred to in clause (a)(i) or (a)(ii) above, at a rate per annum equal at all times to 2% per annum above the rate per annum required to be paid on such Revolving Credit Advance pursuant to clause (a)(i) or (a)(ii) above, and (ii) the Borrower shall pay, to the fullest extent permitted by law, the amount of any interest, fee or other amount payable hereunder that is not paid when due, from the date such amount shall be due until such amount shall be paid in full, payable in arrears on the date such amount shall be paid in full and on demand, at a rate per annum equal at all times to 2% per annum above the rate per annum required to be paid on Base Rate Advances pursuant to clause (a)(i) above.
SECTION 2.09. Interest Rate Determination. (a) Each Reference
Bank agrees to furnish to the Agent timely information for the purpose of
determining each Eurodollar Rate and each LIBO Rate. If any one or more of the
Reference Banks shall not furnish such timely information to the Agent for the
purpose of determining any such interest rate, the Agent shall determine such
interest rate on the basis of timely information furnished by the remaining
Reference Banks. The Agent shall give prompt notice to the Borrower and the
Lenders of the applicable interest rate determined by the Agent for purposes of
Section 2.08(a)(i) or (ii), and the rate, if any, furnished by each Reference
Bank for the purpose of determining the interest rate under Section 2.08(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the Required Lenders notify the Agent that the Eurodollar Rate for any Interest Period for such Advances will not adequately reflect the cost to such Required Lenders of making, funding or maintaining their respective Eurodollar Rate Advances for such Interest Period, the Agent shall forthwith so notify the Borrower and the Lenders, whereupon (i) each Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advance, and (ii) the obligation of the Lenders to make, or to Convert Revolving Credit Advances into, Eurodollar Rate Advances shall be suspended until the Agent shall notify the Borrower and the Lenders that the circumstances causing such suspension no longer exist.
(c) If the Borrower shall fail to select the duration of any Interest Period for any Eurodollar Rate Advances in accordance with the provisions contained in the definition of "Interest Period" in Section 1.01, the Agent will forthwith so notify the Borrower and the Lenders and such Advances will automatically, on the last day of the then existing Interest Period therefor, Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment or prepayment or otherwise, to less than $5,000,000, such Advances shall automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of
Default, (i) each Eurodollar Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate Advance and
(ii) the obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended.
(f) If fewer than two Reference Banks furnish timely information to the Agent for determining the Eurodollar Rate or LIBO Rate for any Eurodollar Rate Advances or LIBO Rate Advances, as the case may be,
(i) the Agent shall forthwith notify the Borrower and the Lenders that the interest rate cannot be determined for such Eurodollar Rate Advances or LIBO Rate Advances, as the case may be,
(ii) with respect to Eurodollar Rate Advances, each such Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advance (or if such Advance is then a Base Rate Advance, will continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurodollar Rate Advances or LIBO Rate Advances or to Convert Revolving Credit Advances into Eurodollar Rate Advances shall be suspended until the Agent shall notify the Borrower and the Lenders that the circumstances causing such suspension no longer exist.
SECTION 2.10. Optional Conversion of Revolving Credit
Advances. The Borrower may on any Business Day, upon notice given to the Agent
not later than 11:00 A.M. (New York City time) on the third Business Day prior
to the date of the proposed Conversion and subject to the provisions of Sections
2.09 and 2.13, Convert all Revolving Credit Advances of one Type comprising the
same Borrowing into Revolving Credit Advances of the other Type (it being
understood that such Conversion of an Advance or of its Interest Period does not
constitute a repayment or prepayment of such Advance); provided, however, that
any Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made
only on the last day of an Interest Period for such Eurodollar Rate Advances,
any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in
an amount not less than the minimum amount specified in Section 2.02(b) and no
Conversion of any Revolving Credit Advances shall result in more separate
Revolving Credit Borrowings than permitted under Section 2.02(b). Each such
notice of a Conversion shall, within the restrictions specified above, specify
(i) the date of such Conversion, (ii) the Revolving Credit Advances to be
Converted, and (iii) if such Conversion is into Eurodollar Rate Advances, the
duration of the initial Interest Period for each such Advance. Each notice of
Conversion shall be irrevocable and binding on the Borrower.
SECTION 2.11. Prepayments of Revolving Credit Advances. (a) Optional Prepayment. The Borrower may on any Business Day, upon notice given to the Agent not later than 11:00 A.M., (i) on the same day for Base Rate Advances and (ii) on the second Business Day prior to the prepayment in the case of Eurodollar Rate Advances stating the proposed date and aggregate principal amount of the prepayment (and if such notice is given the Borrower shall) prepay the outstanding principal amount of the Revolving Credit Advances comprising part of the same Revolving Credit Borrowing in whole or ratably in part, together with accrued interest to the date of such prepayment on the principal amount prepaid; provided, however, that (x) each partial prepayment shall be in an aggregate principal amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof and (y) in the event of any such prepayment of
a Eurodollar Rate Advance, the Borrower shall be obligated to reimburse the Lenders in respect thereof pursuant to Section 8.04(c).
(b) Mandatory Prepayment. The Borrower shall, upon five Business Days notice from the Agent given at the request or with the consent of the Required Lenders, prepay the aggregate principal amount outstanding plus all interest thereon and all other amounts payable hereunder or under the Notes, in the event that: (i) any Person or two or more Persons acting in concert shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934), directly or indirectly, of Voting Stock of the Parent (or other securities convertible into such Voting Stock) representing 20% or more of the combined voting power of all Voting Stock of the Parent; or (ii) any Person or two or more Persons acting in concert shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation, will result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over the management or policies of the Parent.
SECTION 2.12. Increased Costs. (a) If, due to either (i) the introduction of or any change in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any central bank or other governmental authority (whether or not having the force of law), there shall be any increase in the cost to any Lender of agreeing to make or making, funding or maintaining Eurodollar Rate Advances or LIBO Rate Advances (excluding for purposes of this Section 2.12 any such increased costs resulting from (i) Taxes or Other Taxes (as to which Section 2.15 shall govern) and (ii) changes in the basis of taxation of overall net income or overall gross income by the United States or by the foreign jurisdiction or state under the laws of which such Lender is organized or has its Applicable Lending Office or any political subdivision thereof), then the Borrower shall from time to time, upon demand by such Lender (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender additional amounts sufficient to compensate such Lender for such increased cost. A certificate as to the amount of such increased cost, submitted to the Borrower and the Agent by such Lender, shall be conclusive and binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or regulation or any guideline or request from any central bank or other governmental authority (whether or not having the force of law) affects or would affect the amount of capital required or expected to be maintained by such Lender or any corporation controlling such Lender and that the amount of such capital is increased by or based upon the existence of such Lender's commitment to lend hereunder and other commitments of this type, then, upon demand by such Lender (with a copy of such demand to the Agent), the Borrower shall pay to the Agent for the account of such Lender, from time to time as specified by such Lender, additional amounts sufficient to compensate such Lender or such corporation in the light of such circumstances, to the extent that such Lender reasonably determines such increase in capital to be allocable to the existence of such Lender's commitment to lend hereunder. A certificate as to such amounts submitted to the Borrower and the Agent by such Lender shall be conclusive and binding for all purposes, absent manifest error.
(c) In the event that a Lender demands payment from the Borrower for amounts owing pursuant to subsection (a) or (b) of this Section 2.12, the Borrower may, upon payment of such amounts and subject to the requirements of Sections 8.04 and 8.07, substitute for such Lender another financial institution, which financial institution shall be an Eligible Assignee and shall assume the Commitments of such Lender and purchase the Notes held by such Lender in accordance with Section 8.07, provided, however, that (i) no Default shall have occurred and be continuing, (ii) the Borrower shall have satisfied all of its obligations in connection with the Loan Documents with respect to such Lender, and (iii) if such assignee is not a Lender, (A) such assignee is acceptable to the Agent and (B) the Borrower shall have paid the Agent a $3,000 administrative fee.
SECTION 2.13. Illegality. Notwithstanding any other provision
of this Agreement, if any Lender shall notify the Agent that the introduction of
or any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that it is
unlawful, for any Lender or its Eurodollar Lending Office to perform its
obligations hereunder to make Eurodollar Rate Advances or LIBO Rate Advances or
to fund or maintain Eurodollar Rate Advances or LIBO Rate Advances hereunder,
(i) each Eurodollar Rate Advance or LIBO Rate Advance, as the case may be, will
automatically, upon such demand, Convert into a Base Rate Advance or an Advance
that bears interest at the rate set forth in Section 2.08(a)(i), as the case may
be, and (ii) the obligation of the Lenders to make Eurodollar Rate Advances or
LIBO Rate Advances or to Convert Revolving Credit Advances into Eurodollar Rate
Advances shall be suspended until the Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer exist.
SECTION 2.14. Payments and Computations. (a) The Borrower shall make each payment hereunder and under the Notes not later than 11:00 A.M. (New York City time) on the day when due in U.S. dollars to the Agent at the Agent's Account in same day funds. The Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal or interest or facility fees ratably (other than amounts payable pursuant to Section 2.03, 2.12, 2.15 or 8.04(c)) to the Lenders for the account of their respective Applicable Lending Offices, and like funds relating to the payment of any other amount payable to any Lender to such Lender for the account of its Applicable Lending Office, in each case to be applied in accordance with the terms of this Agreement. Upon its acceptance of an Assignment and Acceptance or a New Commitment Acceptance and recording of the information contained therein in the Register pursuant to Section 8.07(c), from and after the effective date specified in such Assignment and Acceptance or such New Commitment Acceptance, the Agent shall make all payments hereunder and under the Notes in respect of the interest assigned thereby to the Lender assignee thereunder, and the parties to such Assignment and Acceptance or such New Commitment Acceptance shall make all appropriate adjustments in such payments for periods prior to such effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the extent payment owed to such Lender is not made when due hereunder or under the Note held by such Lender, to charge from time to time against any or all of the Borrower's accounts with such Lender any amount so due.
(c) All computations of interest based on the Base Rate shall be made by the Agent on the basis of a year of 365 or 366 days, as the case may be, and all computations of interest based on the Eurodollar Rate or the Federal Funds Rate and of facility fees shall be made by the Agent on the basis of a year of 360 days, in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or facility fees are payable. Each determination by the Agent of an interest rate hereunder shall be conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest or facility fee, as the case may be; provided, however, that, if such extension would cause payment of interest on or principal of Eurodollar Rate Advances or LIBO Rate Advances to be made in the next following calendar month, such payment shall be made on the next preceding Business Day.
(e) Unless the Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Lenders hereunder that the Borrower will not make such payment in full, the Agent may assume that the Borrower has made such payment in full to the Agent on such date and the Agent may, in reliance upon such assumption, cause to be distributed to each Lender on such due date an amount equal to the amount then due such Lender. If and to the extent the Borrower shall not have so made such payment in full to the Agent, each Lender shall repay to the Agent forthwith on demand such amount distributed to such Lender together with interest thereon, for each day from the date such amount is distributed to such Lender until the date such Lender repays such amount to the Agent, at the Federal Funds Rate.
SECTION 2.15. Taxes. (a) Any and all payments by the Borrower hereunder or under the Notes shall be made, in accordance with Section 2.14, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding, in the case of each Lender and the Agent, taxes imposed on its overall net income, and franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction under the laws of which such Lender or the Agent (as the case may be) is organized or any political subdivision thereof and, in the case of each Lender, taxes imposed on its overall net income, and franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction of such Lender's Applicable Lending Office or any political subdivision thereof (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities in respect of payments hereunder or under the Notes being hereinafter referred to as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder or under any Note to any Lender or the Agent, (i) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 2.15) such Lender or the Agent (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies that arise from any payment made hereunder or under the Notes or from the execution, delivery or registration of, performing under, or otherwise with respect to, this Agreement or the Notes (hereinafter referred to as "Other Taxes").
(c) The Borrower shall indemnify each Lender and the Agent for the full amount of Taxes or Other Taxes (including, without limitation, any taxes imposed by any jurisdiction on amounts payable under this Section 2.15) imposed on or paid by such Lender or the Agent (as the case may be) and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto. This indemnification shall be made within 30 days from the date such Lender or the Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the Borrower
shall furnish to the Agent, at its address referred to in Section 8.02, the
original or a certified copy of a receipt evidencing payment thereof. In the
case of any payment hereunder or under the Notes by or on behalf of the Borrower
through an account or branch outside the United States or by or on behalf of the
Borrower by a payor that is not a United States person, if the Borrower
determines that no Taxes are payable in respect thereof, the Borrower shall
furnish, or shall cause such payor to furnish, to the Agent, at such address, an
opinion of counsel acceptable to the Agent stating that such payment is exempt
from Taxes. For purposes of this subsection (d) and subsection (e), the terms
"United States" and "United States person" shall have the meanings specified in
Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender and on the date of the Assignment
and Acceptance or the New Commitment Acceptance pursuant to which it becomes a
Lender in the case of each other Lender, and from time to time thereafter as
requested in writing by the Borrower (but only so long as such Lender remains
lawfully able to do so), shall provide each of the Agent and the Borrower with
two original Internal Revenue Service forms 1001 or 4224, as appropriate, or any
successor or other form prescribed by the Internal Revenue Service, certifying
that such Lender is exempt from or entitled to a reduced rate of United States
withholding tax on payments pursuant to this Agreement or the Notes. If the
forms provided by a Lender at the time such Lender first becomes a party to this
Agreement indicates a United States interest withholding tax rate in excess of
zero, withholding tax at such rate shall be considered excluded from Taxes
unless and until such Lender provides the appropriate forms certifying that a
lesser rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such form; provided,
however, that, if at the date of the Assignment and Acceptance or the New
Commitment Acceptance pursuant to which a Lender assignee becomes a party to
this Agreement, the Lender assignor was entitled to payments under subsection
(a) in respect of United States withholding tax with respect to interest paid at
such date, then, to such extent, the term Taxes shall include (in addition to
withholding taxes that may be imposed in the future or other amounts otherwise
includable in Taxes) United States withholding tax, if any, applicable with
respect to the Lender assignee on such date. If any form or document referred to
in this subsection (e) requires the disclosure of information, other than
information necessary to
compute the tax payable and information required on the date hereof by Internal Revenue Service form 1001 or 4224, that the Lender reasonably considers to be confidential, the Lender shall give notice thereof to the Borrower and shall not be obligated to include in such form or document such confidential information.
(f) For any period with respect to which a Lender has failed to provide the Borrower with the appropriate form described in Section 2.15(e) (other than if such failure is due to a change in law occurring subsequent to the date on which a form originally was required to be provided, or if such form otherwise is not required under the first sentence of subsection (e) above), such Lender shall not be entitled to indemnification under Section 2.15(a) or (c) with respect to Taxes imposed by the United States by reason of such failure; provided, however, that should a Lender become subject to Taxes because of its failure to deliver a form required hereunder, the Borrower shall take such steps as the Lender shall reasonably request to assist the Lender to recover such Taxes.
(g) In the event that a Lender demands payment from the Borrower for amounts owing pursuant to subsection (a) or (b) of this Section 2.15, the Borrower may, upon payment of such amounts and subject to the requirements of Sections 8.04 and 8.07, substitute for such Lender another financial institution, which financial institution shall be an Eligible Assignee and shall assume the Commitments of such Lender and purchase the Notes held by such Lender in accordance with Section 8.07, provided, however, that (i) no Default shall have occurred and be continuing, (ii) the Borrower shall have satisfied all of its obligations in connection with the Loan Documents with respect to such Lender, and (iii) if such assignee is not a Lender, (A) such assignee is acceptable to the Agent and (B) the Borrower shall have paid the Agent a $3,000 administrative fee.
SECTION 2.16. Sharing of Payments, Etc. If any Lender shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of the Revolving Credit Advances owing to it (other than pursuant to Section 2.12, 2.15 or 8.04(c)) in excess of its ratable share of payments on account of the Revolving Credit Advances obtained by all the Lenders, such Lender shall forthwith purchase from the other Lenders such participations in the Revolving Credit Advances owing to them as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of them; provided, however, that if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each Lender shall be rescinded and such Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery together with an amount equal to such Lender's ratable share (according to the proportion of (i) the amount of such Lender's required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered. The Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this Section 2.16 may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such participation.
SECTION 2.17. Extensions of Revolver Termination Date. No earlier than 45 days and no later than 30 days prior to the Revolver Termination Date in effect at any time, the Borrower may, by written notice to the Agent, request that such Revolver Termination Date be extended for a period of 364 days. Such request shall be irrevocable and binding upon the Borrower. The Agent shall promptly notify each Lender of such request. If a Lender agrees, in its individual and sole discretion, to so extend its Commitment (an "Extending Lender"), it shall deliver to the Agent a written notice of its agreement to do so no earlier than 30 days and no later than 20 days prior to such Revolver Termination Date and the Agent shall notify the Borrower of such Extending Lender's agreement to extend its Commitment no later than 15 days prior to such Revolver Termination Date. The Commitment of any Lender that fails to accept or respond to the Borrower's request for extension of the Revolver Termination Date (a "Declining Lender") shall be terminated on the Revolver Termination Date originally in effect (without regard to any extension by other Lenders) and on such Revolver Termination Date the Borrower shall pay in full the principal amount of all Advances owing to such Declining Lender, together with accrued interest thereon to the date of such payment of principal and all other amounts payable to such Declining Lender under this Agreement. The Agent shall promptly notify each Extending Lender of the aggregate Commitments of the Declining Lenders. The Extending Lenders, or any of them, may offer to increase their respective Commitments by an aggregate amount up to the aggregate amount of the Declining Lenders' Commitments and any such Extending Lender shall deliver to the Agent a notice of its offer to so increase its Commitment no later than 15 days prior to such Revolver Termination Date. To the extent of any shortfall in the aggregate amount of extended Commitments, the Borrower shall have the right to require any Declining Lender to assign in full its rights and obligations under this Agreement to an Eligible Assignee designated by the Borrower and acceptable to the Agent, that agrees to accept all of such rights and obligations (a "Replacement Lender"), provided that (i) such increase and/or such assignment is otherwise in compliance with Section 8.07, (ii) such Declining Lender receives payment in full of the principal amount of all Advances owing to such Declining Lender, together with accrued interest thereon to the date of such payment of principal and all other amounts payable to such Declining Lender under this Agreement, and (iii) any such increase shall be effective on the Revolver Termination Date in effect at the time the Borrower requests such extension and any such assignment shall be effective on the date specified by the Borrower and agreed to by the Replacement Lender and the Agent. If Extending Lenders and Replacement Lenders provide Commitments in an aggregate amount at least equal to 51% of the aggregate amount of the Commitments outstanding 30 days prior to the Revolver Termination Date in effect at the time the Borrower requests such extension, the Revolver Termination Date shall be extended by 364 days for such Extending Lenders.
SECTION 2.18. Use of Proceeds. The proceeds of the Advances shall be available (and the Borrower agrees that it shall use such proceeds) solely for general corporate purposes of the Borrower and its Subsidiaries.
SECTION 2.19. Termination Events. If the Parent shall incur
any Debt not existing on the Effective Date (excluding the extension of any Debt
existing on the Effective Date) without simultaneously with, or prior to, the
incurrence of such Debt (i) executing and delivering to the Agent, on behalf of
the Lenders, either the Guaranty or the Assignment and Assumption Agreement and
(ii) delivering therewith:
(A) Certified copies of the resolutions of the Board of Directors of each Loan Party executing and delivering such Loan Document approving such Loan Document;
(B) A certificate of the Secretary or Assistant Secretary of each Loan Party executing and delivering such Loan Document certifying the names and true signatures of the officers of each such Loan Party authorized to sign such Loan Document and the other documents to be delivered thereunder;
(C) A certificate of a duly authorized officer of each Loan Party executing and delivering such Loan Document certifying that (x) the representations and warranties contained in such Loan Document are correct on and as of the date of such Loan Document, before and after giving effect to such Loan Document, as though made on and as of such date and (y) no Default has occurred and is continuing or would result from the execution and delivery of such Loan Document; and
(D) A favorable opinion of counsel to the Parent and the Borrower in form and substance satisfactory to the Agent as to such Loan Document and such other matters as any Lender through the Agent may reasonably request;
(any such failure being a "Termination Event"), the Agent shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrower, declare the obligation of each Lender to make Advances to be terminated, whereupon the same shall forthwith terminate.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01 and 2.03. Sections 2.01 and 2.03 of this Agreement shall become effective on and as of the date hereof (the "Effective Date"), provided that the following conditions precedent have been satisfied on such date:
(a) There shall have occurred no Material Adverse Change since December 31, 1999.
(b) There shall exist no action, suit, investigation, litigation or proceeding affecting either Loan Party or any of its Significant Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect other than the matters disclosed or contemplated in the SEC Reports (the "Disclosed Litigation") or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated hereby and there shall have been no adverse change in the status, or financial effect on any Loan Party or any of its Significant Subsidiaries of the Disclosed Litigation from that disclosed or contemplated in the SEC Reports.
(c) Nothing shall have come to the attention of the Lenders during the course of their due diligence investigation to lead them to believe that the Information Memorandum was or has become misleading, incorrect or incomplete in any material respect; without limiting the generality of the foregoing, the Lenders shall have been given such access, as such Lenders have reasonably requested, to the management, records, books of account, contracts and properties of each Loan Party and its Significant Subsidiaries as they shall have requested.
(d) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated by the Loan Documents.
(e) The Borrower shall have notified each Lender and the Agent in writing as to the proposed Effective Date.
(f) The Borrower shall have paid (i) all accrued fees and reasonable expenses of the Agent and the Lenders with respect to this Agreement, including fees contemplated in the Information Memorandum, and (ii) all facility fees accrued under the Existing Credit Agreement as of the Effective Date.
(g) On the Effective Date, the following statements shall be true and the Agent shall have received for the account of each Lender a certificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in
Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a Default.
(iii) The Parent shall have delivered a certificate, substantially in form of Exhibit E hereto, signed on behalf of the Parent by a Financial Officer of the Parent.
(h) The Agent shall have received on or before the Effective Date the following, each dated such day, in form and substance satisfactory to the Agent and (except for the Revolving Credit Notes) in sufficient copies for each Lender:
(i) The Revolving Credit Notes to the order of the Lenders, respectively.
(ii) Certified copies of the resolutions of the Board of Directors of each Loan Party approving each Loan Document to which it is a party, and of all
documents evidencing other necessary corporate action and governmental approvals, if any, with respect to each Loan Document to which it is a party.
(iii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of each Loan Party authorized to sign each Loan Document to which it is a party and the other documents to be delivered hereunder or thereunder.
(iv) Copies of the SEC Reports.
(v) A letter agreement, in form and substance satisfactory to the Agent, executed by each Loan Party acknowledging that all references in the Support Agreement to the Existing Agreement and the "Credit Agreement" will be deemed to be references to this Agreement.
(vi) A letter agreement, in form and substance satisfactory to the Agent, executed by the Borrower acknowledging that all references in the Collateral Assignment Agreement to the Existing Agreement and the "Credit Agreement" will be deemed to be references to this Agreement, together with:
(A) acknowledgment copies or stamped receipt copies of proper financing statements (or amendments to financing statements), duly filed on or before the Effective Date under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Support Agreement and the Collateral Assignment Agreement, covering the Assigned Rights described in the Support Agreement and the Collateral Assignment Agreement, and
(B) completed requests for information, dated on or before the Effective Date, listing the financing statements referred to in clause (A) above and all other effective financing statements filed in the jurisdictions referred to in clause (A) above that name the Borrower as debtor, together with copies of such other financing statements.
(vii) A favorable opinion of T.A. Hughes, Assistant Vice President and Associate General Counsel of the Parent and the Borrower, substantially in the form of Exhibit F hereto and as to such other matters as any Lender through the Agent may reasonably request.
(viii) A favorable opinion of King & Spalding, counsel for the Agent, in form and substance satisfactory to the Agent.
SECTION 3.02. Conditions Precedent to Each Revolving Credit Borrowing. The obligation of each Lender to make a Revolving Credit Advance on the occasion of each Revolving Credit Borrowing shall be subject to the conditions precedent that the Effective Date
shall have occurred and on the date of such Revolving Credit Borrowing (a) the following statements shall be true (and each of the giving of the applicable Notice of Revolving Credit Borrowing and the acceptance by the Borrower of the proceeds of such Revolving Credit Borrowing shall constitute a representation and warranty by the Borrower that on the date of such Borrowing such statements are true):
(i) the representations and warranties contained in Section 4.01 are correct on and as of the date of such Revolving Credit Borrowing, before and after giving effect to such Revolving Credit Borrowing and to the application of the proceeds therefrom, as though made on and as of such date, and
(ii) no event has occurred and is continuing, or would result from such Revolving Credit Borrowing or from the application of the proceeds therefrom, that constitutes a Default;
and (b) the Agent shall have received such other approvals, opinions or documents as any Lender through the Agent may reasonably request.
SECTION 3.03. Conditions Precedent to Each Competitive Bid Borrowing. The obligation of each Lender that is to make a Competitive Bid Advance on the occasion of a Competitive Bid Borrowing to make such Competitive Bid Advance as part of such Competitive Bid Borrowing is subject to the conditions precedent that (i) the Agent shall have received the written confirmatory Notice of Competitive Bid Borrowing with respect thereto, (ii) on or before the date of such Competitive Bid Borrowing, but prior to such Competitive Bid Borrowing, the Agent shall have received a Competitive Bid Note payable to the order of such Lender for each of the one or more Competitive Bid Advances to be made by such Lender as part of such Competitive Bid Borrowing, in a principal amount equal to the principal amount of the Competitive Bid Advance to be evidenced thereby and otherwise on such terms as were agreed to for such Competitive Bid Advance in accordance with Section 2.03, and (iii) on the date of such Competitive Bid Borrowing the following statements shall be true (and each of the giving of the applicable Notice of Competitive Bid Borrowing and the acceptance by the Borrower of the proceeds of such Competitive Bid Borrowing shall constitute a representation and warranty by the Borrower that on the date of such Competitive Bid Borrowing such statements are true):
(a) the representations and warranties contained in Section 4.01 are correct on and as of the date of such Competitive Bid Borrowing, before and after giving effect to such Competitive Bid Borrowing and to the application of the proceeds therefrom, as though made on and as of such date,
(b) no event has occurred and is continuing, or would result from such Competitive Bid Borrowing or from the application of the proceeds therefrom, that constitutes a Default, and
(c) no event has occurred and no circumstance exists as a result of which the information concerning either Loan Party that has been provided to the Agent and each Lender by either Loan Party in connection herewith would include an untrue statement of
a material fact or omit to state any material fact or any fact necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading.
SECTION 3.04. Conditions Precedent to the Term Loan Election. The effectiveness of any Term Loan Election and the occurrence of the Term Loan Conversion Date shall be subject to the conditions precedent that:
(a) the following statements shall be true (and the making of the Term Loan Election shall constitute a representation and warranty by the Borrower that on the Term Loan Conversion Date such statements are true):
(i) the representations and warranties contained in
Section 4.01 are correct on and as of the Term Loan Conversion
Date, as though made on and as of such date; and
(ii) no event has occurred and is continuing, or would result from the Term Loan Election, that constitutes a Default; and
(b) the aggregate principal amount of Advances outstanding on the Term Loan Conversion Date shall not exceed the sum of the Commitments in effect on the Term Loan Conversion Date.
SECTION 3.05. Determinations Under Section 3.01. For purposes of determining compliance with the conditions specified in Section 3.01, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Agent responsible for the transactions contemplated by this Agreement shall have received notice from such Lender prior to the date that the Borrower, by notice to the Lenders, designates as the proposed Effective Date, specifying its objection thereto. The Agent shall promptly notify the Lenders of the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The Borrower represents and warrants as follows; provided, however, that the representation and warranty contained in subsection (e)(ii), below, shall not first be made or deemed made, or first be represented to be true or correct for purposes of Article III of this Agreement, until the consummation of the Merger:
(a) The Borrower is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation.
(b) The execution, delivery and performance by the Borrower of the Loan Documents to which it is a party, and the consummation of the transactions contemplated hereby and thereby, are within such Loan Party's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the Borrower's charter or by-laws or (ii) law or any contractual restriction binding on or affecting the Borrower.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement, the Notes or any other Loan Document to which it is a party.
(d) This Agreement has been, and each of the Notes and each of the other Loan Documents to which it is a party when delivered hereunder will have been, duly executed and delivered by the Borrower. This Agreement is, and each of the Notes and each of the other Loan Documents to which it is a party when delivered hereunder will be, the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with their respective terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors rights generally.
(e) (i) The Audited Statements of the Parent and DECO and the Unaudited Statements of the Parent and DECO, copies of each of which have been furnished to each Lender, fairly present, subject in the case of Unaudited Statements to normal year-end audit adjustments, the Consolidated financial condition, results of operations and cash flows of the relevant Persons and entities, as at the dates and for the periods therein indicated, all in accordance with generally accepted accounting principles consistently applied and (ii) The Audited Statements of MCN and MichCon and the Unaudited Statements of MCN and MichCon, copies of each of which have been furnished to each Lender, fairly present, subject in the case of Unaudited Statements to normal year-end audit adjustments, the Consolidated financial condition, results of operations and cash flows of the relevant Persons and entities, as at the dates and for the periods therein indicated, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 1999, there has been no Material Adverse Change, except as shall have been disclosed or contemplated in the SEC Reports.
(f) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting any Loan Party or any of the Significant Subsidiaries before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect (other than the Disclosed Litigation) or (ii) purports to affect the legality, validity or enforceability of this Agreement, any Note or any other Loan Document or the consummation of the transactions contemplated hereby and there has been no adverse change in the status of any Disclosed Litigation, or its financial effect on any Loan Party or any of the Significant Subsidiaries from that disclosed or contemplated in the SEC Reports.
(g) The operations and properties of the Loan Parties and each of the Significant Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, all past non-compliance with such Environmental Laws and Environmental Permits has been resolved without ongoing obligations or costs, except as disclosed or contemplated in the SEC Reports, and no circumstances exist that could be reasonably likely to (i) form the basis of an Environmental Action against the any Loan Party or any of the Significant Subsidiaries or any of their properties that could have a Material Adverse Effect or (ii) cause any such property to be subject to any restrictions on ownership, occupancy, use or transferability under any Environmental Law that could have a Material Adverse Effect.
(h) No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan.
(i) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) for each Plan, copies of which have been filed with the Internal Revenue Service, is complete and accurate and fairly presents the funding status of such Plan, and since the date of such Schedule B there has been no material adverse change in such funding status.
(j) Neither the Parent nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan.
(k) Neither the Parent nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title IV of ERISA, and no such Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA.
(l) Except as set forth in the financial statements referred to in subsection e(i) above and, from and after the consummation of the Merger, subsection e(ii), above, the Parent and its Subsidiaries have no material liability with respect to "expected post retirement benefit obligations" within the meaning of Statement of Financial Accounting Standards No. 106.
(m) The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(n) Neither the Borrower nor any of its Subsidiaries is, or after the making of any Advance or the application of the proceeds or repayment thereof, or the consummation of any of the other transactions contemplated hereby, will be, an "investment company", or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company" (within the meaning of the Investment Company Act of 1940, as amended).
(o) At all times prior to the Parent Assumption Date, the Borrower is a "subsidiary company" of the Parent, which is a "holding company" (within the meaning of the Public Utility Holding Company Act of 1935, as amended), and, at all times before and after the Parent Assumption Date, the Parent is exempt from being required to seek approval to perform its obligations under the Loan Documents pursuant to Rule 2 of the Rules and Regulations promulgated pursuant to the Public Utility Holding Company Act of 1935, as amended.
(p) At all times prior to the Parent Assumption Date, the Support Agreement (as it may be amended, supplemented, terminated or otherwise modified in accordance with its terms) is in full force and effect and enforceable in accordance with its terms.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance shall remain unpaid or any Lender shall have any Commitment hereunder, the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its Subsidiaries to comply, in all material respects, with all applicable laws, rules, regulations and orders, such compliance to include, without limitation, compliance with ERISA and Environmental Laws.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its Subsidiaries to pay and discharge, before the same shall become delinquent, (i) all taxes, assessments and governmental charges or levies imposed upon it or upon its property and (ii) all lawful claims that, if unpaid, might by law become a Lien upon its property; provided, however, that neither the Borrower nor any of its Subsidiaries shall be required to pay or discharge any such tax, assessment, charge or claim that is being contested in good faith and by proper proceedings and as to which appropriate reserves are being maintained, unless and until any Lien resulting therefrom attaches to its property and becomes enforceable against its other creditors.
(c) Maintenance of Insurance. Maintain, and cause each of its Subsidiaries to maintain, insurance with responsible and reputable insurance companies or associations in such amounts and covering such risks as is usually carried by companies engaged in similar businesses and owning similar properties (including customary self-insurance) in the same general areas in which the Borrower or such Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve and maintain its corporate existence, rights (charter and statutory) and franchises; provided, however, that the Borrower may consummate any merger or consolidation permitted under
Section 5.02(b) and provided further that the Borrower shall not be required to preserve any right or franchise if the Board of Directors of the Borrower or such Subsidiary shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Borrower and that the loss thereof is not disadvantageous in any material respect to the Borrower or the Lenders.
(e) Visitation Rights. At any reasonable time and from time to time, permit the Agent or any of the Lenders or any agents or representatives thereof, to examine and make copies of and abstracts from the records and books of account of, and visit the properties of, the Borrower and any of the Significant Subsidiaries, and to discuss the affairs, finances and accounts of the Borrower and any of the Significant Subsidiaries with any of their officers or directors and with their independent certified public accountants.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries to keep, proper books of record and account, in which full and correct entries shall be made of all financial transactions and the assets and business of the Borrower and each such Subsidiary in accordance with generally accepted accounting principles in effect from time to time.
(g) Maintenance of Properties, Etc. Subject to clause (d) above, maintain and preserve, and cause each of its Significant Subsidiaries to maintain and preserve, all of their respective properties that are used or useful in the conduct of their respective businesses in good working order and condition, ordinary wear and tear excepted.
(h) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 45 days after the end of each of the first three quarters of each fiscal year of the Parent, Consolidated balance sheet of the Parent and its Consolidated Subsidiaries as of the end of such quarter and Consolidated statements of income and cash flows of the Parent and its Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such quarter;
(ii) as soon as available and in any event within 90 days after the end of each fiscal year of the Parent, a copy of the annual report to Shareholders for such year for the Parent and its Consolidated Subsidiaries, containing the Consolidated balance sheet of the Parent and its Consolidated Subsidiaries as of the end of such fiscal year and Consolidated statements of income and cash flows of the Parent and its Subsidiaries for such fiscal year, in each case accompanied by an opinion by Deloitte & Touche LLP or other independent public accountants acceptable to the Required Lenders;
(iii) as soon as available and in any event within 45 days after the end of each of the first three quarters of each fiscal year of the Borrower, unaudited Consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as
of the end of such quarter and unaudited Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, in each case duly certified (subject to year-end audit adjustments) by a Financial Officer of the Borrower as having been prepared in accordance with generally accepted accounting principles consistent with those applied in the preparation of the financial statements referred to in Section 4.01;
(iv) as soon as available and in any event within 90 days after the end of each fiscal year of the Borrower, the Consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of the end of such fiscal year and Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for such fiscal year, in each case accompanied by an opinion by Deloitte & Touche LLP or other independent public accountants acceptable to the Required Lenders;
(v) as soon as possible and in any event within five days after the occurrence of each Default continuing on the date of such statement, a statement of a Financial Officer of the Borrower setting forth details of such Default and the action that the Borrower has taken and proposes to take with respect thereto;
(vi) promptly after the sending or filing thereof copies of all reports and registration statements that the Borrower or any Subsidiary filed with the Securities and Exchange Commission or any national securities exchange;
(vii) promptly after the commencement thereof, notice of all actions and proceedings before any court, governmental agency or arbitrator affecting the Borrower or any of its Subsidiaries of the type described in Section 4.01(f);
(viii) promptly upon becoming aware of any fact or circumstance affecting the Parent or any of its Subsidiaries that would at any time render the Borrower unable to make the representation and warranty contained in Section 4.01(p) on such date, a statement of a duly authorized officer of the Borrower setting forth the details of such fact or circumstance and what action the Parent or such Subsidiary, as the case may be, has taken and proposes to take with respect thereto; and
(ix) such other information respecting the Parent or any of its Subsidiaries as any Lender through the Agent may from time to time reasonably request.
SECTION 5.02. Negative Covenants Prior to the Parent Assumption Date. At all times prior to the Parent Assumption Date, so long as any Advance shall remain unpaid or any Lender shall have any Commitment hereunder, the Borrower will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of its Subsidiaries to create or suffer to exist, any Lien on or with respect to any of its properties, whether now owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, any right to receive income, other than:
(i) Permitted Liens,
(ii) purchase money Liens upon or in any real property or equipment acquired or held by the Borrower or any Subsidiary in the ordinary course of business to secure the purchase price of such property or equipment or to secure Debt incurred solely for the purpose of financing the acquisition of such property or equipment, or Liens existing on such property or equipment at the time of its acquisition (other than any such Liens created in contemplation of such acquisition that were not incurred to finance the acquisition of such property) or extensions, renewals or replacements of any of the foregoing for the same or a lesser amount, provided, however, that no such Lien shall extend to or cover any properties of any character other than the real property or equipment being acquired, and no such extension, renewal or replacement shall extend to or cover any properties not theretofore subject to the Lien being extended, renewed or replaced, provided further that the aggregate principal amount of the indebtedness secured by the Liens referred to in this clause (ii) shall not exceed $20,000,000 at any time outstanding,
(iii) the Liens existing on the Effective Date and described on Schedule 5.02(a) hereto,
(iv) Liens on property of a Person existing at the time such Person is merged into or consolidated with the Borrower or any Subsidiary of the Borrower or becomes a Subsidiary of the Borrower; provided that such Liens were not created in contemplation of such merger, consolidation or acquisition and do not extend to any assets other than those of the Person so merged into or consolidated with the Borrower or such Subsidiary or acquired by the Borrower or such Subsidiary,
(v) other Liens securing Debt in an aggregate principal amount not to exceed $20,000,000 at any time outstanding, and
(vi) Liens on the rights of the Borrower under one or more agreements between the Parent and the Borrower, whereby the Parent agrees to provide to the Borrower financial support (in the form of cash or liquid assets) in an aggregate amount no greater than $1,200,000,000, to the extent that the Borrower is unable to make timely payment of interest, principal or premium (or expenses or other obligations related thereto) on any Debt of the Borrower (other than the Debt hereunder), provided that such Liens are granted in favor of one or more creditors under such Debt in order to secure the obligations of the Borrower thereunder, and
(vii) the replacement, extension or renewal of any Lien permitted by clause (iii), (iv) or (vi) above upon or in the same property theretofore subject thereto or the replacement, extension or renewal (without increase in the amount or change in any direct or contingent obligor) of the Debt secured thereby.
(b) Mergers, Etc. Merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of
its assets (whether now owned or hereafter acquired) to, any Person, or
permit any of its Subsidiaries to do so, except that (i) any Subsidiary
of the Borrower may merge or consolidate with or into any other
Subsidiary of the Borrower, (ii) any Subsidiary of the Borrower may
merge with or dispose of assets to the Borrower, (iii) the Borrower may
merge into the Parent, and (iv) the Borrower may merge or consolidate
with or into another Person if the Borrower is the surviving entity and
(1) the Parent and the Borrower shall have executed and delivered, and
the Agent shall have accepted, the Assignment and Assumption Agreement
accompanied by the documentation set forth in Section 2.19(ii) or (2)
the Parent shall have executed and delivered, and the Agent shall have
accepted, the Guaranty accompanied by the documentation set forth in
Section 2.19(ii), provided, in each case, that no Default shall have
occurred and be continuing at the time of such proposed transaction or
would result therefrom.
(c) Change in Nature of Business. Make any material change in the nature of its business as carried on at the date hereof.
(d) Accounting Changes. Make or permit, or permit any of its Subsidiaries to make or permit, any change in accounting policies or reporting practices, except as required or permitted by generally accepted accounting principles.
SECTION 5.03. Negative Covenants Applicable on or after the
Parent Assumption Date. Notwithstanding anything in the contrary set forth in
Section 5.02, at all times on and after the Parent Assumption Date so long as
any Advance shall remain unpaid or any Lender shall have any Commitment
hereunder, the Borrower will not:
(a) Liens, Etc. Create or suffer to exist, or permit any Significant Subsidiary to create or suffer to exist, any Lien on or with respect to any shares of any class of equity securities (including, without limitation, Voting Stock) of any Significant Subsidiary, whether such shares are now owned or hereafter acquired.
(b) Debt. Create, incur, assume or suffer to exist any Debt except Debt that is expressly or effectively pari passu with or expressly subordinated to the Debt of the Borrower hereunder.
(c) Mergers, Etc. Merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to, any Person, or permit any Significant Subsidiary to do so, except that (i) any Significant Subsidiary
may merge or consolidate with or into any other Significant Subsidiary,
(ii) any Significant Subsidiary may merge into or dispose of assets to
the Borrower, and (iii) the Borrower may merge or consolidate with or
into any other Person if the surviving entity has senior unsecured Debt
outstanding rated at least BBB- by S&P and Baa3 by Moody's; provided,
in each case, that no Default shall have occurred and be continuing at
the time of such proposed transaction or would result therefrom.
(d) Change in Nature of Business. Make, or permit any of its Significant Subsidiaries (including Enterprises and MichCon) to make, any material change in the nature of its business as carried on the date hereof, other than as disclosed or contemplated in the SEC Reports.
(e) Accounting Changes. Make or permit, or permit any of its Subsidiaries to make or permit, any change in accounting policies or reporting practices, except as required or permitted by generally accepted accounting principles.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events ("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Advance when the same becomes due and payable; or the Borrower shall fail to pay any interest on any Advance or make any other payment of fees or other amounts payable under this Agreement or any Note within three Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by the Borrower herein, by the Borrower (or any of its officers) in connection with this Agreement or by the Parent in the Guaranty shall prove to have been incorrect in any material respect when made; or
(c) (i) The Borrower shall fail to perform or observe any term, covenant or agreement contained in Section 2.11(b), 5.01(d), (e) or (h), 5.02 or (if applicable) 5.03 or in the Collateral Assignment Agreement, (ii) the Parent shall fail to perform or observe any term, covenant or agreement contained in the Support Agreement or the Guaranty, as applicable, or (iii) the Borrower shall fail to perform or observe any other term, covenant or agreement contained in any Loan Document on its part to be performed or observed if such failure shall remain unremedied for 10 days after written notice thereof shall have been given to the Borrower by the Agent or any Lender; or
(d) Either Loan Party or any of its Significant Subsidiaries shall fail to pay any principal of or premium or interest on any Debt that is outstanding in a principal or notional amount of at least $10,000,000 in the aggregate (but excluding Debt outstanding
hereunder and Nonrecourse Debt) of such Loan Party or such Significant Subsidiary (as the case may be), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt; or any such Debt shall be declared to be due and payable, or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the stated maturity thereof; or
(e) Either Loan Party or any of its Significant Subsidiaries shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against either Loan Party or any of its Significant Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 30 days, or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or either Loan Party or any of its Significant Subsidiaries shall take any corporate action to authorize any of the actions set forth above in this subsection (e); or
(f) Any judgment or order for the payment of money in excess of $10,000,000 shall be rendered against either Loan Party or any of its Significant Subsidiaries and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (ii) there shall be any period of 10 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or
(g) Any non-monetary judgment or order shall be rendered against either Loan Party or any of its Significant Subsidiaries that could be reasonably expected to have a Material Adverse Effect, and there shall be any period of 10 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or
(h) The Parent shall at any time (i) cease to hold 100% of the Voting Stock of the Borrower unless the Parent and the Borrower shall have executed and delivered, and the Agent shall have accepted, the Assignment and Assumption Agreement accompanied
by the documentation set forth in Section 2.19(ii) or (ii) cease to hold 100% of the Voting Stock of DECO; or
(i) The Parent or any of its ERISA Affiliates shall incur, or, in the reasonable opinion of the Required Lenders, shall be reasonably likely to incur liability in excess of $10,000,000 in the aggregate as a result of one or more of the following: (i) the occurrence of any ERISA Event; (ii) the partial or complete withdrawal of the Borrower or any of its ERISA Affiliates from a Multiemployer Plan; or (iii) the reorganization or termination of a Multiemployer Plan; or
(j) The Parent and its Subsidiaries, on a Consolidated basis, shall at any time cease to:
(i) Maintain a ratio of Consolidated EBITDA to cash interest payable on all Debt (excluding, (A) such Nonrecourse Debt of their own and of their Subsidiaries and Affiliates as would be listed as such in the financial statements of the Parent of the kind delivered pursuant to Section 5.01(h)(ii) and (iii) and (B) the Junior Subordinated Debentures) of not less than 2:1 for each period of four consecutive fiscal quarters ending on the last day of September, December, March and June of each year, or
(ii) Maintain a ratio of Consolidated Debt (excluding, (A) such Nonrecourse Debt of their own and of their Subsidiaries as would be listed in such financial statements of the Parent and (B) the Junior Subordinated Debentures) to Capitalization of not greater than .65:1; or
(k) any provision of any of the Loan Documents after delivery thereof pursuant to Section 3.01 shall for any reason cease to be valid and binding on or enforceable against any Loan Party to it, or any such Loan Party shall so state in writing;
then, and in any such event, the Agent (i) shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrower, declare the obligation of each Lender to make Advances to be terminated, whereupon the same shall forthwith terminate, and (ii) shall at the request, or may with the consent, of the Required Lenders, by notice to the Borrower, declare the Notes, all interest thereon and all other amounts payable under this Agreement to be forthwith due and payable, whereupon the Notes, all such interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower; provided, however, that in the event of an actual or deemed entry of an order for relief with respect to the Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender to make Advances shall automatically be terminated and (B) the Notes, all such interest and all such amounts shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrower.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto. As to any matters not expressly provided for by this Agreement (including, without limitation, enforcement or collection of the Notes), the Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Required Lenders, and such instructions shall be binding upon all Lenders and all holders of Notes; provided, however, that the Agent shall not be required to take any action that exposes the Agent to personal liability or that is contrary to this Agreement or applicable law. The Agent agrees to give to each Lender prompt notice of each notice given to it by the Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor any
of its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may treat
the payee of any Note as the holder thereof until the Agent receives and accepts
an Assignment and Acceptance entered into by the Lender that is the payee of
such Note, as assignor, and an Eligible Assignee, as assignee, as provided in
Section 8.07; (ii) may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (iii)
makes no warranty or representation to any Lender and shall not be responsible
to any Lender for any statements, warranties or representations (whether written
or oral) made in or in connection with this Agreement; (iv) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of this Agreement on the part of the Borrower
or to inspect the property (including the books and records) of the Borrower;
(v) shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, any Loan Document or any other
instrument or document furnished pursuant hereto; and (vi) shall incur no
liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier,
telegram or telex) believed by it to be genuine and signed or sent by the proper
party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its Commitment, the Advances made by it and the Note issued to it, Citibank shall have the same rights and powers under this Agreement as any other Lender and may exercise the same as though it were not the Agent; and the term "Lender" or "Lenders" shall, unless otherwise expressly indicated, include Citibank in its individual capacity. Citibank and its Affiliates may accept deposits from, lend money to, act as trustee under indentures of, accept investment banking engagements from and
generally engage in any kind of business with, the Borrower, any of its Subsidiaries and any Person who may do business with or own securities of the Borrower or any such Subsidiary, all as if Citibank were not the Agent and without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender and based on the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders (other than the Designated Bidders) agree to indemnify the Agent (to the extent not reimbursed by the Borrower), ratably according to the respective principal amounts of the Revolving Credit Notes then held by each of them (or if no Revolving Credit Notes are at the time outstanding or if any Revolving Credit Notes are held by Persons that are not Lenders, ratably according to the respective amounts of their Commitments), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against the Agent in any way relating to or arising out of any Loan Document or any action taken or omitted by the Agent under any Loan Document, provided that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Agent's gross negligence or willful misconduct. Without limitation of the foregoing, each Lender (other than the Designated Bidders) agrees to reimburse the Agent promptly upon demand for its ratable share of any out-of-pocket expenses (including counsel fees) incurred by the Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, any Loan Document, to the extent that the Agent is not reimbursed for such expenses by the Borrower.
SECTION 7.06. Successor Agent. The Agent may resign at any time by giving written notice thereof to the Lenders and the Borrower and may be removed at any time with or without cause by the Required Lenders. Upon any such resignation or removal, the Required Lenders shall have the right to appoint a successor Agent. If no successor Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within 30 days after the retiring Agent's giving of notice of resignation or the Required Lenders' removal of the retiring Agent, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, which shall be a commercial bank organized under the laws of the United States of America or of any State thereof and having a combined capital and surplus of at least $50,000,000. Upon the acceptance of any appointment as Agent hereunder by a successor Agent, such successor Agent shall thereupon succeed to and become vested with all the rights, powers, discretion, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under this Agreement. After any retiring Agent's resignation or removal hereunder as
Agent, the provisions of this Article VII shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision of this Agreement or the Revolving Credit Notes, nor consent to any departure by the Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Required Lenders, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no amendment, waiver or consent shall, unless in writing and signed by all the Lenders (other than the Designated Bidders), do any of the following: (a) waive any of the conditions specified in Section 3.01, (b) increase the Commitments of the Lenders or subject the Lenders to any additional obligations, (c) reduce the principal of, or interest on, the Revolving Credit Notes or any fees or other amounts payable hereunder, (d) postpone any date fixed for any payment of principal of, or interest on, the Revolving Credit Notes or any fees or other amounts payable hereunder, (e) change the percentage of the Commitments or of the aggregate unpaid principal amount of the Revolving Credit Notes, or the number of Lenders, that shall be required for the Lenders or any of them to take any action hereunder or (f) amend this Section 8.01; and provided further that no amendment, waiver or consent shall, unless in writing and signed by the Agent in addition to the Lenders required above to take such action, affect the rights or duties of the Agent under this Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other communications provided for hereunder shall be in writing (including telecopier, telegraphic or telex communication) and mailed, telecopied, telegraphed, telexed or delivered, if to the Borrower, at its address at 200 Second Avenue, Detroit, MI 48226, Attention: Christopher C. Arvani; if to any Initial Lender, at its Domestic Lending Office specified opposite its name on Schedule I hereto; if to any other Lender, at its Domestic Lending Office specified in the Assignment and Acceptance or the New Commitment Acceptance pursuant to which it became a Lender; and if to the Agent, at its address at Two Penns Way, Suite 200, New Castle, Delaware 19720 Attention: Christian Laughton, with a copy to J. Nicholas McKee, 399 Park Avenue, New York, New York 10043; or, as to the Borrower or the Agent, at such other address as shall be designated by such party in a written notice to the other parties and, as to each other party, at such other address as shall be designated by such party in a written notice to the Borrower and the Agent. All such notices and communications shall, when mailed, telecopied, telegraphed or telexed, be effective when deposited in the mails, telecopied, delivered to the telegraph company or confirmed by telex answerback, respectively, except that notices and communications to the Agent pursuant to Article II, III or VII shall not be effective until received by the Agent. Delivery by telecopier of an executed counterpart of any amendment or waiver of any provision of this Agreement or the Notes or of any Exhibit hereto to be executed and delivered hereunder shall be effective as delivery of a manually executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any Lender or the Agent to exercise, and no delay in exercising, any right hereunder or under any Note shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to pay on demand, upon presentation of a statement of account and absent manifest error, all reasonable costs and reasonable expenses of the Agent in connection with the preparation, execution, delivery, administration, modification and amendment of this Agreement, the Notes, each other Loan Document and the other documents to be delivered hereunder and thereunder, including, without limitation, (A) all due diligence, syndication (including printing, distribution and bank meetings), transportation, computer, duplication, appraisal, consultant, and audit expenses and (B) the reasonable fees and reasonable expenses of counsel for the Agent with respect thereto and with respect to advising the Agent as to its rights and responsibilities under the Loan Documents. The Borrower further agrees to pay on demand all reasonable costs and reasonable expenses of the Agent and the Lenders, if any (including, without limitation, reasonable internal and external counsel fees and expenses, provided such fees and expenses are not duplicative), in connection with the "workout", restructuring or enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement, the Notes and the other documents to be delivered hereunder, including, without limitation, reasonable fees and expenses of counsel for the Agent and each Lender in connection with the enforcement of rights under this Section 8.04(a).
(b) The Borrower agrees to indemnify, to the extent legally permissible, and hold harmless the Agent and each Lender and each of their Affiliates and their officers, directors, employees, agents and advisors (each, an "Indemnified Party") from and against any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and expenses of counsel) that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of, or in connection with the preparation for a defense of, any investigation, litigation or proceeding arising out of, related to or in connection with (i) the Notes, this Agreement, the other Loan Documents any of the transactions contemplated herein or therein or the actual or proposed use of the proceeds of the Advances or (ii) the actual or alleged presence of Hazardous Materials on any property of the Borrower or any of its Subsidiaries or any Environmental Action relating in any way to the Borrower or any of its Subsidiaries, in each case whether or not such investigation, litigation or proceeding is brought by the Borrower, its directors, shareholders or creditors or an Indemnified Party or any other Person or any Indemnified Party is otherwise a party thereto and whether or not the transactions contemplated hereby are consummated, except to the extent such claim, damage, loss, liability or expense is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party's gross negligence or willful misconduct. The Borrower also agrees not to assert any claim against the Agent, any Lender, any of their Affiliates, or any of their respective directors, officers, employees, attorneys and agents, on any theory of liability, for special, indirect, consequential or punitive damages arising out of or otherwise relating to the Notes, this Agreement, the other Loan Documents any of the
transactions contemplated herein or therein or the actual or proposed use of the proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance or LIBO Rate Advance is made by the Borrower to or for the account of a Lender other than on the last day of the Interest Period for such Advance, as a result of a payment or Conversion pursuant to Section 2.09(d) or (e), 2.11 or 2.13, acceleration of the maturity of the Notes pursuant to Section 6.01 or for any other reason, the Borrower shall, upon demand by such Lender (with a copy of such demand to the Agent), pay to the Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses that it may reasonably incur as a result of such payment or Conversion, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement of the Borrower hereunder, the agreements and obligations of each Loan Party contained in Sections 2.12, 2.15 and 8.04 shall survive the payment in full of principal, interest and all other amounts payable hereunder and under the Notes.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Agent to declare the Notes due and payable pursuant to the provisions of
Section 6.01, each Lender and each of its Affiliates is hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such
Lender or such Affiliate to or for the credit or the account of either Loan
Party against any and all of the obligations of either Loan Party now or
hereafter existing under the Loan Documents Agreement and the Note held by such
Lender, whether or not such Lender shall have made any demand under this
Agreement or such Note and although such obligations may be unmatured. Each
Lender agrees promptly to notify such Loan Party after any such set-off and
application, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender and its
Affiliates under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that such Lender and
its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become effective (other than Sections 2.01 and 2.03, which shall only become effective upon satisfaction of the conditions precedent set forth in Section 3.01) when it shall have been executed by the Borrower and the Agent and when the Agent shall have been notified by each Initial Lender that such Initial Lender has executed it and thereafter shall be binding upon and inure to the benefit of the Borrower, the Agent and each Lender and their respective successors and assigns, except that the Borrower shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of the Lenders to any Person, except to the Parent pursuant to the Assignment and Assumption Agreement accompanied by the documentation set forth in Section 2.19(ii).
SECTION 8.07. Assignments, Designations and Participations.
(a) Each Lender (other than the Designated Bidders) may, with the prior consent
of the Agent and (for so long as no Default has occurred and is continuing) the
Borrower (which consent shall not be unreasonably withheld) assign to one or
more Persons all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the
Revolving Credit Advances owed to it and the Revolving Credit Note or Notes held
by it); provided, however, that (i) each such assignment shall be of a constant,
and not a varying, percentage of all rights and obligations under this Agreement
(other than any right to make Competitive Bid Advances, Competitive Bid Advances
owing to it and Competitive Bid Notes), (ii) except in the case of an assignment
to a Person that, immediately prior to such assignment, was a Lender or an
assignment of all of a Lender's rights and obligations under this Agreement, the
amount of the Commitment of the assigning Lender being assigned pursuant to each
such assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $10,000,000 or an
integral multiple of $1,000,000 in excess thereof, (iii) each such assignment
shall be to an Eligible Assignee, and (iv) the parties to each such assignment
shall execute and deliver to the Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with any Revolving Credit Note
subject to such assignment and a processing and recordation fee of $3,000. Upon
such execution, delivery, acceptance and recording, from and after the effective
date specified in each Assignment and Acceptance, (x) the assignee thereunder
shall be a party hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder and (y) the Lender assignor
thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under this Agreement (and, in the case of
an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue
to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Revolving Credit Note or Notes subject to such assignment, the
Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower. Within five Business Days
after its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Agent in exchange for the surrendered Revolving
Credit Note a new Note to the order of such Eligible Assignee in an amount equal
to the Commitment assumed by it pursuant to such Assignment and Acceptance and,
if the assigning Lender has retained a Commitment hereunder, a new Revolving
Credit Note to the order of the assigning Lender in an amount equal to the
Commitment retained by it hereunder. Such new Revolving Credit Note or Notes
shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Revolving Credit Note or Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A-1 hereto.
(d) Each Lender (other than the Designated Bidders) may designate one or more banks or other entities to have a right to make Competitive Bid Advances as a Lender pursuant to Section 2.03; provided, however, that (i) no such Lender shall be entitled to make more than two such designations, (ii) each such Lender making one or more of such designations shall retain the right to make Competitive Bid Advances as a Lender pursuant to Section 2.03, (iii) each such designation shall be to a Designated Bidder and (iv) the parties to each such designation shall execute and deliver to the Agent, for its acceptance and recording in the Register, a Designation Agreement. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Designation Agreement, the designee thereunder shall be a party hereto with a right to make Competitive Bid Advances as a Lender pursuant to Section 2.03 and the obligations related thereto.
(e) By executing and delivering a Designation Agreement, the Lender making the designation thereunder and its designee thereunder confirm and agree with each other and the other parties hereto as follows: (i) such Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, this Agreement or any other instrument or document furnished pursuant hereto; (ii) such Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or
any other instrument or document furnished pursuant hereto; (iii) such designee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Designation Agreement; (iv) such designee will, independently and without reliance upon the Agent, such designating Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such designee confirms that it is a Designated Bidder; (vi) such designee appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such designee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(f) Upon its receipt of a Designation Agreement executed by a
designating Lender and a designee representing that it is a Designated Bidder,
the Agent shall, if such Designation Agreement has been completed and is
substantially in the form of Exhibit D hereto, (i) accept such Designation
Agreement, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower.
(g) The Agent shall maintain at its address referred to in Section 8.02 a copy of each Assignment and Acceptance, each New Commitment Agreement and each Designation Agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and, with respect to Lenders other than Designated Bidders, the Commitment of, and principal amount of the Advances owing to, each Lender from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(h) Each Lender may sell participations to one or more banks or other
entities (other than the Borrower or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances owing to it and the
Note or Notes held by it); provided, however, that (i) such Lender's obligations
under this Agreement (including, without limitation, its Commitment to the
Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Note for all purposes of
this Agreement, (iv) the Borrower, the Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and (v) no participant
under any such participation shall have any right to approve any amendment or
waiver of any provision of this Agreement or any Note, or any consent to any
departure by the Borrower therefrom, except to the extent that such amendment,
waiver or consent would (A) reduce the principal of, or interest on, the Notes
or any fees or other amounts payable hereunder, (B) increase the Commitments or
(C) release the Parent under the Guaranty or terminate the Guaranty, in each
case to the extent
subject to such participation, or postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such participation. Each participant shall be entitled to the benefits of Sections 2.12, 2.13 and 2.15 to the same extent as if it were a Lender and had acquired its interest under this Agreement by an assignment made pursuant to this Section 8.07, provided, however, that in no event shall the Borrower be obligated to make any payment with respect to such Sections that is greater than the amount that the Borrower would have otherwise made had no participations been sold under this Section 8.07(h).
(i) Any Lender may, in connection with any assignment, designation or participation or proposed assignment, designation or participation pursuant to this Section 8.07, disclose to the assignee, designee or participant or proposed assignee, designee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure, the assignee, designee or participant or proposed assignee, designee or participant shall agree to preserve the confidentiality of any Confidential Information relating to the Borrower received by it from such Lender.
(j) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time (i) create a security interest in all or a portion of its rights under this Agreement (including, without limitation, the Advances owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System or (ii) with notice to the Agent and the Borrower, assign all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of its Commitment, the Revolving Credit Advances owed to it and the Revolving Credit Note or Notes held by it) to any of its Affiliates.
(k) Notwithstanding anything to the contrary contained herein, any Lender (a "DESIGNATING LENDER") may grant to one or more special purpose funding vehicles (each an "SPV"), identified as such in writing from time to time by the Designating Lender to the Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Designating Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPV to make any Advance, (ii) if an SPV elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Designating Lender shall be obligated to make such Advance pursuant to the terms hereof, (iii) the Designating Lender shall remain liable for any indemnity or other payment obligation with respect to its Commitment hereunder and (iv) no SPV or Designating Lender shall be entitled to receive any greater amount under this Agreement than the Designating Lender would have been entitled to receive had the Designating Lender not otherwise granted such SPV the option to provide any Advance to the Borrower. The making of an Advance by an SPV hereunder shall utilize the Commitment of the Designating Lender to the same extent, and as if, such Advance were made by such Designating Lender.
(l) Each party hereto hereby acknowledges and agrees that no SPV shall have the rights of a Lender hereunder, such rights being retained by the applicable Designating Lender. Accordingly, and without limiting the foregoing, each party hereby further acknowledges and agrees that no SPV shall have any voting rights hereunder and that the voting rights attributable to any Advance made by an SPV shall be exercised only by the relevant Designating Lender and
that each Designating Lender shall serve as the administrative agent and attorney-in-fact for its SPV and shall on behalf of its SPV receive any and all payments made for the benefit of such SPV and take all actions hereunder to the extent, if any, such SPV shall have any rights hereunder. No additional Note shall be required to evidence the Advances or portion thereof made by an SPV; and the related Designating Lender shall be deemed to hold its Note or Notes as administrative agent for such SPV to the extent of the Advances or portion thereof funded by such SPV. In addition, any payments for the account of any SPV shall be paid to its Designating Lender as administrative agent for such SPV.
(m) Each party hereto hereby agrees that no SPV shall be liable for any indemnity or payment under this Agreement for which a Lender would otherwise be liable so long as, and to the extent that, the related Designating Lender provides such indemnity or makes such payment; provided, with respect to such agreement by the Borrower that the related Designating Lender shall not be in breach of its obligation to make Advances to the Borrower hereunder. In furtherance of the foregoing, each party hereto hereby agrees (which agreements shall survive the termination of this Agreement) that prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPV, it will not institute against, or join any other person in instituting against, such SPV any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof; provided, with respect to such agreement by the Borrower that the related Designating Lender shall not be in breach of its obligation to make Advances to the Borrower hereunder. Notwithstanding the foregoing, the Designating Lender unconditionally agrees to indemnify the Borrower, the Agent and each Lender against all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be incurred by or asserted against the Borrower, the Agent or such Lender, as the case may be, in any way relating to or arising as a consequence of any such forbearance or delay in the initiation of any such proceeding against its SPV.
(n) In addition, notwithstanding anything to the contrary contained in
subsection 8.07(k), (l), (m) or (n) or otherwise in this Agreement, any SPV may
(i) at any time and without paying any processing fee therefor, assign or
participate all or a portion of its interest in any Advances to the Designating
Lender or to any financial institutions providing liquidity and/or credit
support to or for the account of such SPV to support the funding or maintenance
of Advances and (ii) disclose on a confidential basis any non-public information
relating to its Advances to any rating agency, commercial paper dealer or
provider of any surety, guarantee or credit or liquidity enhancements to such
SPV. Subsection 8.07(k), (l), (m) or (n) may not be amended without the written
consent of any Designating Lender affected thereby.
SECTION 8.08. Confidentiality. Neither the Agent nor any Lender shall disclose any Confidential Information to any other Person without the consent of the Borrower, other than (a) to the Agent's or such Lender's Affiliates and their officers, directors, employees, agents and advisors and, as contemplated by Section 8.07(i), to actual or prospective assignees and participants, and then only on a confidential basis, (b) as required by any law, rule or regulation or judicial process, (c) to any rating agency when required by it, provided that, prior to any such disclosure, such rating agency shall undertake to preserve the confidentiality of any Confidential Information relating to either Loan Party received by it from such Lender and (d) as requested or required by any state, federal or foreign authority or examiner regulating banks or banking.
SECTION 8.09. Governing Law. This Agreement and the Notes shall be governed by, and construed in accordance with, the laws of the State of New York.
SECTION 8.10. Execution in Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by telecopier shall be effective as delivery of a manually executed counterpart of this Agreement.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court or federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the Notes, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such New York State court or, to the extent permitted by law, in such federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that any party may otherwise have to bring any action or proceeding relating to this Agreement or the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or the Notes in any New York State or federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
SECTION 8.12. Effective Date. As of the Effective Date, (i) the Existing Credit Agreement is amended and restated in full as set forth in this Agreement, (ii) the Commitments (including the Existing Commitments) are restated as set forth in the signature pages hereof, (iii) the Existing Notes are cancelled and replaced by the Notes, and (iv) all obligations which, by the terms of the Existing Credit Agreement, are evidenced by the Existing Notes are evidenced by the Notes.
SECTION 8.13. Waiver of Jury Trial. Each of the Borrower, the Agent and the Lenders hereby irrevocably waives all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Agreement or the Notes or the actions of the Agent or any Lender in the negotiation, administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
DTE CAPITAL CORPORATION
Title:
Lenders
CITIBANK, N.A.
Title:
ABN AMRO BANK N.V.
Title:
Title:
BANK ONE, NA
Title:
BARCLAYS BANK PLC
Title:
BAYERISCHE LANDESBANK
GIROZENTRALE, CAYMAN
ISLANDS BRANCH
Title:
Title:
COMERICA BANK
Title:
THE BANK OF NEW YORK
Title:
THE BANK OF NOVA SCOTIA
Title:
THE CHASE MANHATTAN BANK
Title:
SOCIETE GENERALE, CHICAGO BRANCH
Title:
UBS AG, STAMFORD BRANCH
Title:
Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
Title:
MELLON BANK, N.A.
Title:
UNION BANK OF CALIFORNIA, N.A.
Title:
THE DAI-ICHI KANGYO BANK, LTD.
Title:
THE FUJI BANK, LIMITED
Title:
KEYBANK NATIONAL ASSOCIATION
Title:
Title:
MICHIGAN NATIONAL BANK
Title:
SCHEDULE I
DTE CAPITAL CORPORATION
APPLICABLE LENDING OFFICES
NAME OF INITIAL LENDER DOMESTIC LENDING OFFICE EURODOLLAR LENDING OFFICE COMMITMENT ---------------------- ----------------------- ------------------------- ---------- Citibank, N.A. Two Penns Way, Suite 200 Same as Domestic Lending Office New Castle, DE 19720 Attention: Christian Laughton Telecopier: (302) 894-6120 ABN AMRO Bank N.V. 208 South LaSalle, Suite 1500 Same as Domestic Lending Office Chicago, IL 60604-1003 Attention: Loan Administration Telecopier: (312) 992-5155 Bank One, NA One Bank One Plaza Same as Domestic Lending Office Suite 0634 Chicago, IL 60670 Attention: Kathleen Rovner Telecopier: (312) 732-4840 The Bank of New York One Wall Street Same as Domestic Lending Office New York, NY 10286 Attention: Lisa Williams Telecopier: (212) 635-7923 The Bank of Nova Scotia 600 Peachtree St. N.E., Same as Domestic Lending Office Suite 2700 Atlanta, GA 30308 Attention: Shannon Dancila Telecopier: (404) 888-8998 Barclays Bank PLC 75 Wall Street 222 Broadway New York, NY 10265 New York, NY 10038 Attention: Christine Francese Attention: Dawn Matthews Telecopier: (212) 412-5307 Telecopier: (212) 412-1098 Bayerische Landesbank 560 Lexington Avenue Same as Domestic Lending Office Girozentrale New York, NY 10022 Attention: Sean O'Sullivan Telecopier: (212) 310-9868 The Chase Manhattan Bank One Chase Manhattan Plaza Same as Domestic Lending Office Third Floor New York, NY 10081 Attention: Lynett Lang Telecopier: (212) 552-5777 Comerica Bank 500 Woodward Avenue, MC 3268 Same as Domestic Lending Office Detroit, MI 48226 Attention: Stacie McVeigh Telecopier: (313) 222-9514 |
NAME OF INITIAL LENDER DOMESTIC LENDING OFFICE EURODOLLAR LENDING OFFICE COMMITMENT ---------------------- ----------------------- ------------------------- ---------- The Dai-Ichi Kangyo 10 S. Wacker Drive, Suite 2600 Same as Domestic Lending Office Bank, Ltd. Chicago, IL 60606 Attention: R. Cummings Telecopier: (312) 876-2011 The Industrial Bank of 1251 Avenue of the Americas Same as Domestic Lending Office Japan, Limited New York, NY 10020-1104 New York Branch Attention: Tricia Small Credit Administration Dept. #1 Telecopier: (212) 282-4480 KeyBank National Association 127 Public Square 127 Public Square Cleveland, OH 44114 Cleveland, OH 44114 Attention: Michael Jackson Attention: Laura Binkley Telecopier: (216) 689-4981 Telecopier: (216) 689-4981 Mellon Bank, N.A. Three Mellon Bank Center, Same as Domestic Lending Office Rm 2332 Pittsburgh, PA 15259 Attention: Brenda Leirezapf Telecopier: (412) 209-6146 Michigan National Bank 27777 Inkster Road Same as Domestic Lending Office Dept. 10-64 Farmington Hills, MI 48333-9065 Attention: James Tesen Telecopier: (248) 473-3577 Societe Generale 181 West Madison, Suite 3400 Same as Domestic Lending Office Chicago, IL 60602 Attention: Boyd Harman Telecopier: (312) 578-5099 Union Bank of Energy Capital Services Same as Domestic Lending Office California, N.A. 445 S. Figueroa Street, 15th Floor Los Angeles, CA 90071 Attention: Patricia Gonzalez Telecopier: (213) 236-4096 |
Schedule 5.02(a)
Existing Liens
None.
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a Michigan corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of _________________________ (the "Lender") for the account of its Applicable Lending Office on the Revolver Termination Date (each as defined in the Credit Agreement referred to below) or, if the Borrower makes a Term Loan Election, on the Maturity Date (each as defined in the Credit Agreement referred to below), the principal sum of U.S.$[amount of the Lender's Commitment in figures] or, if less, the aggregate principal amount of the Revolving Credit Advances made by the Lender to the Borrower pursuant to the Fourth Amended and Restated Credit Agreement dated as of January 16, 2001 (as amended or modified from time to time, the "Credit Agreement"; the terms defined therein being used herein as therein defined) among the Borrower, the Lender and certain other lenders parties thereto, and Citibank, N.A., as Agent for the Lender and such other lenders outstanding on the Revolver Termination Date or Maturity Date, as applicable.
The Borrower promises to pay interest on the unpaid principal amount of each Revolving Credit Advance from the date of such Revolving Credit Advance until such principal amount is paid in full, at such interest rates, and payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United States of America to Citibank, N.A., as Agent, at Two Penns Way, Suite 200, New Castle, Delaware 19720, Account No. 36852248, Attention: Christian Laughton, in same day funds. Each Revolving Credit Advance owing to the Lender by the Borrower pursuant to the Credit Agreement, and all payments made on account of principal thereof, shall be recorded by the Lender and, prior to any transfer hereof, endorsed on the grid attached hereto which is part of this Promissory Note.
This Promissory Note is one of the Revolving Credit Notes referred to in, and is entitled to the benefits of, the Credit Agreement. The Credit Agreement, among other things, (i) provides for the making of Revolving Credit Advances by the Lender to the Borrower from time to time in an aggregate amount not to exceed at any time outstanding the U.S. dollar amount first above mentioned, the indebtedness of the Borrower resulting from each such Revolving Credit Advance being evidenced by this Promissory Note, and (ii) contains provisions for acceleration of the maturity hereof upon the happening of certain stated events and also for prepayments on account of principal hereof prior to the maturity hereof upon the terms and conditions therein specified.
[NAME OF BORROWER]
ADVANCES AND PAYMENTS OF PRINCIPAL
UNPAID AMOUNT OF AMOUNT OF PRINCIPAL PRINCIPAL NOTATION DATE ADVANCE PAID OR PREPAID BALANCE MADE BY ---- --------- ------------------- --------- --------- |
EXHIBIT A-2 - FORM OF
COMPETITIVE BID
PROMISSORY NOTE
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a Michigan corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of _________________________ (the "Lender") for the account of its Applicable Lending Office (as defined in the Fourth Amended and Restated Credit Agreement dated as of January 16, 2001 (as amended or modified from time to time, the "Credit Agreement"; the terms defined therein being used herein as therein defined)) among the Borrower, the Lender and certain other lenders parties thereto, and Citibank, N.A., as Agent for the Lender and such other lenders), on _______________, ____ the principal amount of $U.S. ____________.
The Borrower promises to pay interest on the unpaid principal amount hereof from the date hereof until such principal amount is paid in full, at the interest rate and payable on the interest payment date or dates provided below:
Interest Rate: _____% per annum (calculated on the basis of a year of _____ days for the actual number of days elapsed).
Both principal and interest are payable in lawful money of the United States of America to _________________________ for the account of the Lender at the office of _________________________, at _________________________ in same day funds.
This Promissory Note is one of the Competitive Bid Notes referred to in, and is entitled to the benefits of, the Credit Agreement. The Credit Agreement, among other things, contains provisions for acceleration of the maturity hereof upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and notice of any kind. No failure to exercise, and no delay in exercising, any rights hereunder on the part of the holder hereof shall operate as a waiver of such rights.
This Promissory Note shall be governed by, and construed in accordance with, the laws of the State of New York.
[NAME OF BORROWER]
EXHIBIT B-1 - FORM OF NOTICE OF
REVOLVING CREDIT BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
399 Park Avenue
New York, NY 10043 [Date]
Ladies and Gentlemen:
The undersigned, [NAME OF BORROWER], refers to the Fourth Amended and Restated Credit Agreement, dated as of January 16, 2001 (as amended or modified from time to time, the "Credit Agreement"; the terms defined therein being used herein as therein defined), among the undersigned, certain Lenders parties thereto and ____________________, as Agent for said Lenders, and hereby gives you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that the undersigned hereby requests a Revolving Credit Borrowing under the Credit Agreement, and in that connection sets forth below the information relating to such Revolving Credit Borrowing (the "Proposed Revolving Credit Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Revolving Credit Borrowing is _______________, ____.
(ii) The Type of Advances comprising the Proposed Revolving Credit Borrowing is [Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Revolving Credit Borrowing is $ _______________.
[(iv) The initial Interest Period for each Eurodollar Rate Advance made as part of the Proposed Revolving Credit Borrowing is _____ month[s].]
The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed Revolving Credit Borrowing:
(A) the representations and warranties contained in Section 4.01 of the Credit Agreement are correct, before and after giving effect to the Proposed Revolving Credit Borrowing and to the application of the proceeds therefrom, as though made on and as of such date; and
(B) no event has occurred and is continuing, or would result from such Proposed Revolving Credit Borrowing or from the application of the proceeds therefrom, that constitutes a Default.
Very truly yours,
[NAME OF BORROWER]
EXHIBIT B-2 - FORM OF NOTICE OF
COMPETITIVE BID BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
399 Park Avenue
New York, NY 10043 [Date]
Ladies and Gentlemen:
The undersigned, [NAME OF BORROWER], refers to the Fourth Amended and Restated Credit Agreement, dated as of January 16, 2001 (as amended or modified from time to time, the "Credit Agreement"; the terms defined therein being used herein as therein defined), among the undersigned, certain Lenders parties thereto and Citibank, N.A., as Agent for said Lenders, and hereby gives you notice, irrevocably, pursuant to Section 2.03 of the Credit Agreement that the undersigned hereby requests a Competitive Bid Borrowing under the Credit Agreement, and in that connection sets forth the terms on which such Competitive Bid Borrowing (the "Proposed Competitive Bid Borrowing") is requested to be made:
(A) Date of Competitive Bid Borrowing ------------------------ (B) Amount of Competitive Bid Borrowing ------------------------ (C) [Maturity Date] [Interest Period] ------------------------ (D) Interest Rate Basis ------------------------ (E) Interest Payment Date(s) ------------------------ (F) ------------------- ------------------------ (G) ------------------- ------------------------ (H) ------------------- ------------------------ |
The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed Competitive Bid Borrowing:
(a) the representations and warranties contained in Section 4.01 of the Credit Agreement are correct, before and after giving effect to the Proposed Competitive Bid Borrowing and to the application of the proceeds therefrom, as though made on and as of such date;
(b) no event has occurred and is continuing, or would result from the Proposed Competitive Bid Borrowing or from the application of the proceeds therefrom, that constitutes a Default;
(c) no event has occurred and no circumstance exists as a result of which the information concerning the undersigned that has been provided to the Agent and each Lender as of the date hereof by the undersigned in connection with the Credit Agreement would include an untrue statement of a material fact or omit to state any material fact or any fact necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; and
(d) the aggregate amount of the Proposed Competitive Bid Borrowing and all other Borrowings to be made on the same day under the Credit Agreement is within the aggregate amount of the unused Commitments of the Lenders.
The undersigned hereby confirms that the Proposed Competitive Bid Borrowing is to be made available to it in accordance with Section 2.03(a)(v) of the Credit Agreement.
Very truly yours,
[NAME OF BORROWER]
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Fourth Amended and Restated Credit Agreement dated as of January 16, 2001 (as amended or modified from time to time, the "Credit Agreement") among DTE Capital Corporation, a Michigan corporation (the "Borrower"), the Lenders (as defined in the Credit Agreement) and Citibank, N.A., as agent for the Lenders (the "Agent"). Terms defined in the Credit Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I hereto agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases and assumes from the Assignor, an interest in and to the Assignor's rights and obligations under the Credit Agreement as of the date hereof (other than in respect of Competitive Bid Advances and Competitive Bid Notes) equal to the percentage interest specified on Schedule 1 hereto of all outstanding rights and obligations under the Credit Agreement (other than in respect of Competitive Bid Advances and Competitive Bid Notes). After giving effect to such sale and assignment, the Assignee's Commitment and the amount of the Revolving Credit Advances owing to the Assignee will be as set forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal and beneficial owner of the interest being assigned by it hereunder and that such interest is free and clear of any adverse claim; (ii) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Credit Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement or any other instrument or document furnished pursuant thereto; (iii) makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under the Credit Agreement or any other instrument or document furnished pursuant thereto; and (iv) attaches the Revolving Credit Note held by the Assignor and requests that the Agent exchange such Revolving Credit Note for a new Revolving Credit Note payable to the order of the Assignee in an amount equal to the Commitment assumed by the Assignee pursuant hereto or new Revolving Credit Notes payable to the order of the Assignee in an amount equal to the Commitment assumed by the Assignee pursuant hereto and the Assignor in an amount equal to the Commitment retained by the Assignor under the Credit Agreement, respectively, as specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of the Credit Agreement, together with copies of the financial statements referred to in Section 4.01 thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance; (ii) agrees that it will, independently and without reliance upon the Agent, the Assignor or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) confirms
that it is an Eligible Assignee; (iv) appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under the Credit Agreement as are delegated to the Agent by the terms thereof,
together with such powers and discretion as are reasonably incidental thereto;
(v) agrees that it will perform in accordance with their terms all of the
obligations that by the terms of the Credit Agreement are required to be
performed by it as a Lender; and (vi) attaches any U.S. Internal Revenue Service
forms required under Section 2.15 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it will be delivered to the Agent for acceptance and recording by the Agent. The effective date for this Assignment and Acceptance (the "Effective Date") shall be the date of acceptance hereof by the Agent, unless otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the Effective Date, (i) the Assignee shall be a party to the Credit Agreement and, to the extent provided in this Assignment and Acceptance, have the rights and obligations of a Lender thereunder and (ii) the Assignor shall, to the extent provided in this Assignment and Acceptance, relinquish its rights and be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after the Effective Date, the Agent shall make all payments under the Credit Agreement and the Revolving Credit Notes in respect of the interest assigned hereby (including, without limitation, all payments of principal, interest and facility fees with respect thereto) to the Assignee. The Assignor and Assignee shall make all appropriate adjustments in payments under the Credit Agreement and the Revolving Credit Notes for periods prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall be effective as delivery of a manually executed counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule 1 to this Assignment and Acceptance to be executed by their officers thereunto duly authorized as of the date specified thereon.
Schedule 1 to Assignment and Acceptance
Percentage interest assigned: % ----- Assignee's Commitment: $ ---------- Aggregate outstanding principal amount of Revolving Credit Advances assigned: $ ---------- Principal amount of Revolving Credit Note payable to Assignee: $ ---------- Principal amount of Revolving Credit Note payable to Assignor: $ ---------- Effective Date(1): , --------------- ---- |
[NAME OF ASSIGNOR], as Assignor By --------------------------------------- Title: Dated: , --------------- ---- [NAME OF ASSIGNEE], as Assignee By --------------------------------------- Title: Dated: , --------------- ---- |
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
Accepted [and Approved](2) this
__________ day of _______________, ____
_________________________, as Agent
[Approved this __________ day of _______________, ____.]
[NAME OF BORROWER]
By ]** -------------------------------- Title: ---------- |
(1) This date should be no earlier than five Business Days after the delivery of this Assignment and Acceptance to the Agent.
(2) Required if the Assignee is an Eligible Assignee solely by reason of clause
(viii) of the definition of "Eligible Assignee".
EXHIBIT D - FORM OF
DESIGNATION AGREEMENT
Reference is made to the Fourth Amended and Restated Credit Agreement dated as of January 16, 2001 (as amended or modified from time to time, the "Credit Agreement") among DTE Capital Corporation, a Michigan corporation (the "Borrower"), the Lenders (as defined in the Credit Agreement) and Citibank, N.A., as agent for the Lenders (the "Agent"). Terms defined in the Credit Agreement are used herein with the same meaning.
_______________________ (the "Designor") and _______________________ (the "Designee") agree as follows:
1. The Designor hereby designates the Designee, and the Designee hereby accepts such designation, to have a right to make Competitive Bid Advances pursuant to Section 2.03 of the Credit Agreement.
2. The Designor makes no representation or warranty and assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Loan Document or any other instrument or document furnished pursuant thereto and (ii) the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under the Credit Agreement or any other instrument or document furnished pursuant thereto.
3. The Designee (i) confirms that it has received a copy of the Credit Agreement, together with copies of the financial statements referred to in Section 4.01 thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Designation Agreement; (ii) agrees that it will, independently and without reliance upon the Agent, the Designor or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) confirms that it is a Designated Bidder; (iv) appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Credit Agreement as are delegated to the Agent by the terms thereof, together with such powers and discretion as are reasonably incidental thereto; and (v) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender.
4. Following the execution of this Designation Agreement by the Designor and its Designee, it will be delivered to the Agent for acceptance and recording by the Agent. The effective date for this Designation Agreement (the "Effective Date") shall be the date of acceptance hereof by the Agent, unless otherwise specified on the signature page hereto.
5. Upon such acceptance and recording by the Agent, as of the Effective Date, the Designee shall be a party to the Credit Agreement with a right to make Competitive Bid Advances as a Lender pursuant to Section 2.03 of the Credit Agreement and the rights and obligations of a Lender related thereto.
6. This Designation Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
7. This Designation Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Designation Agreement by telecopier shall be effective as delivery of a manually executed counterpart of this Designation Agreement.
IN WITNESS WHEREOF, the Designor and the Designee have caused this Designation Agreement to be executed by their officers thereunto duly authorized as of the date first above written.
Effective Date(3): , --------------- ----- [NAME OF DESIGNOR], as Designor By --------------------------------------- Title: [NAME OF DESIGNEE], as Designee By --------------------------------------- |
Title:
Applicable Lending Office (and address for notices):
[Address]
Accepted this ____ day
of _______________, ____
_________________________, as Agent
EXHIBIT E - FORM OF CERTIFICATE
BY DTE ENERGY COMPANY
DTE ENERGY COMPANY
OFFICER'S CERTIFICATE
I, _________________________, [Insert title of Financial Officer (as defined in the Credit Agreement)] of DTE ENERGY COMPANY, a Michigan corporation (the "Parent"), DO HEREBY CERTIFY, in connection with a Borrowing on this date under the Fourth Amended and Restated Credit Agreement dated as of January 16, 2001 among DTE Capital Corporation, the Banks parties thereto, Citibank, N.A., as agent for said Banks (the "Credit Agreement", the terms defined therein being used herein as therein defined), that:
1. The Parent is a corporation duly organized, validly existing and in good standing under the laws of the State of Michigan.
2. The execution, delivery and performance by the Parent of the Support Agreement, and the consummation of the transactions contemplated hereby and thereby, are within the Parent's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the Parent's charter or by-laws or (ii) law or any contractual restriction binding on or affecting the Parent.
3. All governmental and third party consents and approvals necessary in connection with the transactions contemplated by the Support Agreement and the other Loan Documents to which the Parent is a party shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, and no law or regulation shall be applicable that restrains, prevents or imposes materially adverse conditions upon the Parent with respect to the transactions contemplated by the Loan Documents to which it is a party.
4. The Support Agreement has been, and each of the other Loan Documents to which the Parent is a party when delivered pursuant to the Credit Agreement will have been, duly executed and delivered by the Parent. The Support Agreement is, and each of the other Loan Documents to which it is a party when delivered hereunder will be, the legal, valid and binding obligation of the Parent enforceable against the Parent in accordance with their respective terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors rights generally.
5. The Consolidated balance sheet of the Parent and its Subsidiaries as at December 31, 1999, and the related Consolidated statements of income and cash flows of the Parent and its Subsidiaries for the fiscal year then ended, accompanied by an opinion of Deloitte & Touche LLP, independent public accountants, and the Consolidated balance sheet of the Parent and its Subsidiaries as at September 30, 2000 and the related Consolidated statements of income and cash flows of the Parent and its Subsidiaries for the nine months then ended, copies of which have been furnished to each Lender, attached hereto as Annex A are hereby duly certified by [Insert title of Financial Officer],
as fairly presenting, subject in the case of said balance sheet as at September 30, 2000, and said statements of income and cash flows for the nine months then ended, to year-end audit adjustments, the Consolidated financial condition of the Parent and its Subsidiaries as at such dates and the Consolidated results of the operations of the Parent and its Subsidiaries for the periods ended on such dates, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 1999 there has been no Material Adverse Change with respect to the Parent.
IN WITNESS WHEREOF, I have signed this certificate this 16th day of January, 2001.
SIGNATURE PAGE TO CREDIT AGREEMENT
EXHIBIT F - FORM OF
OPINION OF COUNSEL TO THE LOAN PARTIES
[Date]
To each of the Lenders parties
to the Fourth Amended and
Restated Credit Agreement
dated as of January 16, 2001
among DTE Capital Corporation,
said Lenders and Citibank, N.A.
as Agent, with Salomon Smith Barney
Inc. as Arranger
DTE Capital Corporation
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(h)(vii) of the Fourth Amended and Restated Credit Agreement, dated as of January 16, 2001 (the "CREDIT AGREEMENT"), among DTE Capital Corporation (the "BORROWER"), the Lenders parties thereto and Citibank, N.A., as Agent for said Lenders, with Salomon Smith Barney Inc. as Arranger. Terms defined in the Credit Agreement are used herein as therein defined.
I am Assistant Vice President and Associate General Counsel of the Parent and have acted as counsel for each Loan Party in connection with the preparation, execution and delivery of the Loan Documents.
In that connection, I, in conjunction with the members of my staff, have examined:
(1) Each Loan Document, executed by each of the parties thereto.
(2) The other documents furnished by the Borrower pursuant to Article III of the Credit Agreement.
(3) The Articles of Incorporation of each Loan Party and all amendments thereto (the "CHARTERS").
(4) The By-Laws of each Loan Party and all amendments thereto (the "BY-LAWS").
(5) Certificates from the State of Michigan attesting to the continued corporate existence and good standing of each Loan Party in that State.
To each of the Lenders parties
to the Fourth Amended and
Restated Credit Agreement
dated as of January 16, 2001
among DTE Capital Corporation,
said Lenders and Citibank, N.A.
as Agent, with Salomon Smith Barney
Inc. as Arranger
(6) Acknowledgment copies or stamped receipt copies of the UCC-1 financial statement filed by the Agent in connection with the Existing Credit Agreement and any amendments thereto (the "UCC FILINGS") under the Uniform Commercial Code as in effect the State of Michigan (the "UCC"), naming the Borrower as debtor and the Agent as secured party, which UCC Filings have been filed in the filing offices listed in Schedule 1 hereto.
I have also examined the originals, or copies certified to my satisfaction, of the documents listed in a certificate of a Financial Officer of each Loan Party, dated the date hereof (the "CERTIFICATES"), certifying that the documents listed in such certificate are all of the indentures, loan or credit agreements, leases, guarantees, mortgages, security agreements, bonds, notes and other agreements or instruments, and all of the orders, writs, judgments, awards, injunctions and decrees, that affect or purport to affect the Borrower's right to borrow money or any Loan Party's obligations under the Loan Documents to which it is party. In addition, I have examined the originals, copies certified to my satisfaction, of such other corporate records of each Loan Party, certificates of public officials and of officers of each Loan Party, and agreements, instruments and other documents, as we have deemed necessary as a basis for the opinions expressed below. As to questions of fact material to such opinions, I have, when relevant facts were not independently established by me, relied upon certificates of public officials. I have assumed the due execution and delivery, pursuant to due authorization, of the Credit Agreement by the Initial Lenders and the Agent.
My opinions expressed below are limited to the law of the State of Michigan and the federal law of the United States.
Based upon the foregoing and upon such investigation as I have deemed necessary, I am of the following opinion:
1. Each Loan Party is a corporation duly organized, validly existing and in good standing under the laws of the State of Michigan.
2. The execution, delivery and performance by each Loan Party of the Loan Documents to which it is party, and the consummation of the transactions contemplated thereby, are within such Loan Party's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the Charters or the By-Laws of such Loan Party or (ii) any law, rule or regulation applicable to such Loan Party (including, without limitation, Regulation X of the Board of Governors of the Federal Reserve System) or (iii) any contractual or legal restriction contained in any document listed in the Certificates or, to the best of my knowledge (after due inquiry), contained in any other similar document.
To each of the Lenders parties
to the Fourth Amended and
Restated Credit Agreement
dated as of January 16, 2001
among DTE Capital Corporation,
said Lenders and Citibank, N.A.
as Agent, with Salomon Smith Barney
Inc. as Arranger
3. No authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for (i) the due execution, delivery, recordation, filing or performance by the Loan Parties of the Loan Documents to which each is a party, and (ii) the grant by the Borrower of the security interest granted by it pursuant to the Assignment Agreement.
4. Each Loan Document has been duly executed and delivered on behalf of each Loan Party thereto.
5. Except as may have been disclosed to you in the SEC Reports, to the best of my knowledge (after due inquiry) there are no pending or overtly threatened actions or proceedings affecting any Loan Party or any of their Subsidiaries before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect or (ii) purport to affect the legality, validity, binding effect or enforceability of any Loan Documents or the consummation of the transactions contemplated thereby.
6. If, despite the provisions of Section 8.09 of the Credit Agreement,
Section 17 of the Collateral Assignment Agreement and Section 10 of the Support
Agreement wherein the parties thereto agree that the Loan Documents shall be
governed by, and construed in accordance with, the laws of the State of New
York, a court of the State of Michigan or a federal court sitting in the State
of Michigan were to hold that the Loan Documents are governed by, and to be
construed in accordance with the laws of the State of Michigan, the Loan
Documents would be, under the laws of the State of Michigan, legal, valid and
binding obligations of each Loan Party thereto enforceable against such Loan
Party in accordance with their respective terms.
7. The Collateral Assignment Agreement creates a valid first priority security interest in the Assigned Rights, securing the payment of the Obligations. The UCC Filings are in appropriate form and have been filed pursuant to the UCC, resulting in the perfection of such security interest in the Assigned Rights.
8. Neither the Borrower nor any of its Subsidiaries is an "investment company," or an "affiliated person" of, or "promoter" or "principal underwriter" for, an "investment company," as such terms are defined in the Investment Company Act of 1940, as amended; the Parent is an exempt holding company pursuant to the provisions of Rule 2 of the rules and regulations promulgated pursuant to the Public Utility Holding Company Act of 1935, as amended.
The opinions set forth above are subject to the following qualifications:
To each of the Lenders parties
to the Fourth Amended and
Restated Credit Agreement
dated as of January 16, 2001
among DTE Capital Corporation,
said Lenders and Citibank, N.A.
as Agent, with Salomon Smith Barney
Inc. as Arranger
(b) My opinion in paragraph 6 above as to enforceability is subject to the effect of any applicable bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar law affecting creditors' rights generally.
(c) My opinion in paragraph 6 above as to enforceability is subject to the effect of general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law).
(d) I express no opinion as to participation and the effect of the law of any jurisdiction other than the State of Michigan wherein any Lender may be located or wherein enforcement of the Loan Documents may be sought that limits the rates of interest legally chargeable or collectible.
Very truly yours,
EXHIBIT G
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT (this "AGREEMENT"), dated as of ______________, ____, among (i) DTE CAPITAL CORPORATION, a Michigan corporation (in its capacity as assignor hereunder, the "ASSIGNOR"), (ii) DTE ENERGY COMPANY, a Michigan corporation (in its capacity as the assignee hereunder, the "ASSIGNEE"), (iii) CITIBANK, N.A., as agent (the "AGENT") for the Lenders from time to time party to the Credit Agreement referred to below, and (iv) the Lenders listed on the signature pages hereof.
PRELIMINARY STATEMENTS:
WHEREAS, the Assignor is a party to, and, as of the date hereof, the Borrower under and as defined in, that certain Fourth Amended and Restated Credit Agreement, dated as of January 16, 2001 (said Agreement, as amended hereby and as it may hereafter be amended or otherwise modified from time to time, being the "CREDIT AGREEMENT", the terms defined therein and not otherwise defined herein being used herein as therein defined), among the Borrower, the Lenders named therein and Citibank, N.A., as Agent thereunder.
WHEREAS, in connection with the Credit Agreement, the Assignor has also executed and delivered Notes to the order of each Lender.
[WHEREAS, under the Section 2.19 of the Credit Agreement, the Assignee must execute a Guaranty or an Assignment and Assumption Agreement if it incurs any Debt not outstanding on the Effective Date.]
[WHEREAS, the Assignee desires to incur Debt not outstanding on the Effective Date and has chosen to enter into this Assignment and Assumption Agreement.]
[WHEREAS, under Section 5.02(b) of the Credit Agreement, the Parent must execute the Guaranty or the Assignment and Assumption Agreement if the Borrower merges or consolidates with or into any Person besides the Parent;]
WHEREAS, the Assignee desires to accept all of the Assignor's right, title and interest in and to, and assume all of the Assignor's obligations, covenants, agreements and liabilities under, the Credit Agreement and the Notes.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements contained herein, effective on and as of the Transfer Date, the Assignor and the Assignee hereby agree with and for the benefit of the Agent and the Lenders, and the Agent on its own behalf and on behalf of the Lenders agrees with and for the benefit of the Assignor and Assignee, as follows:
SECTION 1. ASSIGNMENT AND ASSUMPTION.
(a) Effective on and as of __________, ____ (such date and time being the "TRANSFER DATE"), the Assignor hereby sells, assigns and transfers to the Assignee, and the Assignee hereby accepts from the Assignor, all of the Assignor's right, title and interest in and to the Credit Agreement and the Notes.
(b) Effective on and as of the Transfer Date, subject to the terms and provisions hereof, the Assignee hereby unconditionally and irrevocably assumes all obligations, covenants and agreements to be performed by the Assignor under, and all liabilities of the Assignor arising under, out of or in connection with, the Credit Agreement and the Notes, and in furtherance of said assumption, the Assignee agrees that on and after the Transfer Date, it shall be bound in all respects by all of the grants, terms, covenants, representations, warranties and conditions of the Credit Agreement and the Notes, as if the Assignee were the original Borrower under and as defined in the Credit Agreement and the Notes, without further action required on the part of any party hereto or thereto. In addition, on and after the Transfer Date, subject to the terms and provisions hereof, the Assignee assumes, agrees to observe and perform, and promises to pay all obligations, duties and liabilities of the Assignor, now or hereafter existing, arising out of, under or in connection with, the Credit Agreement and the Notes (including, without limitation, the punctual payment when due of the principal, interest and fees owing thereunder from time to time), in each case as though the Assignee were the original Borrower under and as defined therein. Further, subject to the terms and provisions hereof, the Assignor hereby confirms and agrees that each of the Credit Agreement and the Notes is, and the Assignee hereby confirms and agrees that each of the Credit Agreement and the Notes shall on and after the Transfer Date continue to be, in full force and effect in accordance with its terms, and the Assignee hereby ratifies and confirms in all respects, effective on and as of the Transfer Date, each of the Credit Agreement and the Notes.
SECTION 2. REPRESENTATIONS AND WARRANTIES. The Assignor and the Assignee each represents and warrants that it has received copies of and has reviewed the Loan Documents. Effective on and as of the Transfer Date, the Assignee makes each of the representations and warranties of the Borrower set forth in the Credit Agreement all as if Assignee were the original Borrower under and as defined therein and had originally executed and delivered the Credit Agreement and the Notes, and confirms that each such representation and warranty is true and correct on and as of the Transfer Date, and that no Default has occurred and is continuing on and as of the Transfer Date.
SECTION 3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE ASSIGNEE. The Assignee represents and warrants, as of the date hereof, as follows:
(a) The Assignee is a corporation duly incorporated, validly existing and in good standing under the laws of the jurisdiction of it incorporation.
(b) The execution, delivery and performance by the Assignee of this Agreement are within the Assignee's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the Assignee's charter or by-laws or (ii) any applicable law or any contractual restriction binding on or affecting the Assignee.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Assignee of this Agreement.
(d) This Agreement has been duly executed and delivered by the Assignee and is a legal, valid and binding obligation of the Assignee enforceable against the Assignee in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors rights generally.
SECTION 4. REFERENCE TO AND EFFECT ON THE ASSIGNED AGREEMENTS. The Assignee further confirms and agrees that, effective on and as of the Transfer Date, each reference in each of the Credit Agreement and the Notes to the "Borrower" or any like term shall be deemed to refer to the Assignee to the extent the context permits.
SECTION 5. EFFECT OF THE AGREEMENT. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, the Assignor shall remain fully liable to the Agent and the Lenders for any breach of the representations and warranties made by it in the Loan Documents on the date thereof or upon the date of each Borrowing.
SECTION 6. COSTS AND EXPENSES. The Assignee agrees to pay on demand all reasonable costs and expenses in connection with the preparation, execution, delivery, modification and amendment of this Agreement, and all costs and expenses, if any (including, without limitation, counsel fees and expenses), in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement. The Assignee also agrees to indemnify the Agent and each Lender from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against the Agent or any Lender (as the case may be) in any way relating to or arising out of this Agreement or any action taken or omitted by the Agent or any Lender hereunder, except for such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the gross negligence or willful misconduct of the Person seeking such indemnity.
SECTION 7. GOVERNING LAW, ETC. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to any conflicts of law principles, and shall be binding upon the Assignee, the Assignor and their respective successors and assigns; provided, that the parties hereto shall have no right to assign any rights, obligations or liabilities hereunder except in accordance with the terms of the Loan Documents.
SECTION 8. WAIVER OF JURY TRIAL. Each of the Assignor and the Assignee irrevocably waives hereby irrevocably waives all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Agreement or the actions of the Assignor and the Assignee, as the case may be, in the negotiation, administration, performance or enforcement thereof.
SECTION 9. JURISDICTION, ETC.
(a) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court or federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such New York State court or, to the extent permitted by law, in such federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that any party may otherwise have to bring any action or proceeding relating to this Agreement in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any New York State or federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
SECTION 10. THIRD PARTY BENEFICIARIES. This Agreement is for the sole benefit of the Assignor, the Assignee, the Agent, the Lenders and their permitted successors and assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable benefit or remedy under or by reason of this Agreement.
SECTION 11. NOTICES. All notices and other communications provided for hereunder shall be in writing (including telecopy transmission) and (except when particular means are specified) mailed, faxed or delivered, if to the Assignor or the Assignee, at its address at 200 Second Avenue, Detroit, MI 48226, Attention: Christopher C. Arvani, telecopy: 313-235-0170; and if to the Agent, at its address at _____________________, Attention: ____________________, telecopy: ___________________, with a copy to ____________________, ___________________, telecopy: _______________; or, as to each party, at such other address as shall be designated by such party in a written notice to the other parties. All such notices and communications shall, when mailed or telecopied, be effective when deposited in the mails or transmitted, respectively.
[Signatures on next page]
IN WITNESS WHEREOF, the Assignor and the Assignee have each caused this Agreement to be duly executed and delivered by an officer thereunto duly authorized as of the date first above written.
DTE CAPITAL CORPORATION
Title:
DTE ENERGY COMPANY
Title:
ACCEPTED BY:
CITIBANK, N.A., as Agent
EXHIBIT H
GUARANTY
GUARANTY, dated as of __________________, 2001 (this "GUARANTY"), of DTE ENERGY COMPANY, a Michigan corporation (the "PARENT"), in favor of the Agent and the Lenders under the Credit Agreement referred to herein.
WITNESSETH:
WHEREAS, the Parent is the direct owner of 100% of the outstanding common stock of DTE Capital Corporation, a Michigan corporation (the "BORROWER");
WHEREAS, the Borrower may make borrowings from the Lenders pursuant to that certain Fourth Amended and Restated Credit Agreement, dated as of January 16, 2001 (said Agreement, as it may hereafter be amended or otherwise modified from time to time, being the "CREDIT AGREEMENT", the terms defined therein and not otherwise defined herein being used herein as therein defined), among the Borrower, the Lenders named therein and Citibank, N.A., as Agent thereunder;
[WHEREAS, under Section 2.19 of the Credit Agreement, the Parent must execute the Guaranty or the Assignment and Assumption Agreement if it incurs any Debt not outstanding on the Effective Date;]
[WHEREAS, the Parent desires both to incur Debt not outstanding on the Effective Date and to enable the Borrower to incur and maintain Debt under the Credit Agreement on more advantageous and reasonable terms;]
[WHEREAS, under Section 5.02(b) of the Credit Agreement, the Parent must execute the Guaranty or the Assignment and Assumption Agreement if the Borrower merges or consolidates with or into any Person besides the Parent;]
[WHEREAS, the Borrower desires to merge or consolidate with or into a Person besides the Parent, and Parent desires to enable the Borrower to incur and maintain Debt under the Credit Agreement on more advantageous and reasonable terms;]
NOW, THEREFORE, in consideration of the premises, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows for the benefit of the Agent and the Lenders:
SECTION 1. GUARANTY.
The Parent hereby unconditionally guarantees the punctual payment when due, without set off or counterclaim, whether at stated maturity, by acceleration or otherwise, of all obligations (whether payable at scheduled maturity, upon acceleration, as a mandatory prepayment or otherwise) of the Borrower now or hereafter existing under the Credit Agreement
and the Notes, whether for principal, interest, fees, expenses or otherwise (such obligations being the "OBLIGATIONS"), and agrees to pay any and all expenses (including counsel fees and expenses) incurred by the Agent and any Lender in enforcing any rights under this Guaranty. Without limiting the generality of the foregoing, the Parent's liability shall extend to all amounts that constitute part of the Obligations and would be owed by the Borrower to the Agent and the Lenders under the Credit Agreement and the other documents entered into in connection therewith and (collectively, the "LOAN DOCUMENTS") but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Borrower.
SECTION 2. GUARANTY ABSOLUTE.
The Parent guarantees that the Obligations will be paid strictly in accordance with the terms of the Credit Agreement and the other Loan Documents, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Agent or the Lenders, as the case may be, with respect thereto. The obligations of the Parent under this Guaranty are independent of the Obligations, and a separate action or actions may be brought and prosecuted against the Parent to enforce this Guaranty, irrespective of whether any action is brought against the Borrower or whether the Borrower is joined in any such action or actions. The liability of the Parent under this Guaranty shall, to the fullest extent permitted by law, be absolute and unconditional irrespective of, and the Parent waives any defense based upon:
(i) any lack of validity or enforceability against the Borrower of the Credit Agreement, the other Loan Documents or any other agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations, or any other amendment or waiver of or any consent to departure from the Credit Agreement or the other Loan Documents, including, without limitation, any increase in the Obligations resulting from the extension of additional credit to the Borrower or any of its subsidiaries or otherwise;
(iii) any taking, exchange, release or non-perfection of any collateral, or any taking, release or amendment or waiver of or consent to departure from any other guaranty, for all or any of the Obligations;
(iv) any manner of application of collateral, or proceeds thereof, to all or any of the Obligations, or any manner of sale or other disposition of any collateral for all or any of the Obligations or any other assets of the Borrower or any of its subsidiaries;
(v) any change, restructuring or termination of the corporate structure or existence of the Borrower or any of its subsidiaries; or
(vi) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Borrower or a guarantor.
This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Obligations is rescinded or must otherwise be returned by the Agent or any Lender upon the insolvency, bankruptcy or reorganization of the Borrower or otherwise, all as though such payment had not been made.
SECTION 3. WAIVER.
The Parent hereby waives promptness, diligence, notice of acceptance and any other notice with respect to any of the Obligations and this Guaranty and any requirement that the Agent or any Lender protect, secure, perfect or insure any security interest or lien or any property subject thereto or exhaust any right or take any action against the Borrower or any other Person or any collateral.
SECTION 4. SUBROGATION.
The Parent will not exercise any rights which it may acquire by way of subrogation under this Guaranty, by any payment made hereunder or otherwise, until all the Obligations and all other amounts payable under this Guaranty shall have been paid in full and the Commitments shall have expired or terminated. If any amount shall be paid to the Parent on account of such subrogation rights at any time prior to the later of (x) the payment in full of the Obligations and all other amounts payable under this Guaranty and (y) the expiration or termination of the Commitments, such amount shall be held in trust for the benefit of the Agent and the Lenders and shall forthwith be paid to the Agent to be credited and applied upon the Obligations, whether matured or unmatured, in accordance with the terms of the Credit Agreement and the other Loan Documents or to be held by the Agent as collateral security for any Obligations thereafter existing. If (i) the Parent shall make payment to the Agent and the Lenders of all or any part of the Obligations, (ii) all the Obligations and all other amounts payable under this Guaranty shall be paid in full and (iii) the Commitments shall have expired or terminated, the Agent and the Lenders (as appropriate) will, at the Parent's request, execute and deliver to the Parent appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to the Parent of an interest in the Obligations resulting from such payment by the Parent.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE PARENT.
The Parent represents and warrants, as of the date hereof, as follows:
(a) The Parent is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation.
(b) The execution, delivery and performance by the Parent of this Guaranty are within the Parent's corporate powers, have been duly authorized by all necessary corporate action, and do not contravene (i) the Parent's charter or by-laws or (ii) law or any contractual restriction binding on or affecting the Parent.
(c) No authorization or approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Parent of this Guaranty.
(d) This Guaranty has been duly executed and delivered by the Parent and is a legal, valid and binding obligation of the Parent enforceable against the Parent in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors rights generally.
(e) The Audited Statements of the Parent and DECO and of MCN and MichCon and the Unaudited Statements of the Parent and DECO and of MCN and MichCon, copies of each of which have been furnished to each Lender, fairly present, subject in the case of Unaudited Statements to normal year-end audit adjustments, the Consolidated financial condition, results of operations and cash flows of the relevant Persons and entities, as at the dates and for the periods therein indicated, all in accordance with generally accepted accounting principles consistently applied. Since December 31, 1999, there has been no Material Adverse Change, except as shall have been disclosed or contemplated in the SEC Reports.
(f) The Parent owns beneficially and of record, free and clear of all Liens, 100% of the common stock of the Borrower.
(g) No ERISA Event has occurred or is reasonably expected to occur with respect to any Plan.
(h) Schedule B (Actuarial Information) to the most recent annual report (Form 5500 Series) for each Plan, copies of which have been filed with the Internal Revenue Service, is complete and accurate and fairly presents the funding status of such Plan, and since the date of such Schedule B there has been no material adverse change in such funding status.
(i) Neither the Parent nor any ERISA Affiliate has incurred or is reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan.
(j) Neither the Parent nor any ERISA Affiliate has been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization or has been terminated, within the meaning of Title IV or ERISA, and no such Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, within the meaning of Title IV of ERISA.
(k) Except as set forth in the financial statements referred to in this Section 5, the Parent and its Subsidiaries have no material liability with respect to "expected post retirement benefit obligations" within the meaning of Statement of Financial Accounting Standards No. 106.
(l) There is no pending or threatened action, suit, investigation, litigation or proceeding, including, without limitation, any Environmental Action, affecting the Parent or any of its Significant Subsidiaries before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect (other than the Disclosed Litigation) or
(ii) purports to affect the legality, validity or enforceability of this Guaranty, the Credit Agreement, any Note or any other Loan Document or the consummation of the transactions contemplated hereby or thereby and there has been no material adverse change in the status of any Disclosed Litigation, or its financial effect on any Loan Party or any of its Significant Subsidiaries from that disclosed or contemplated in the SEC Reports.
(m) The operations and properties of the Parent and each of its Significant Subsidiaries comply in all material respects with all applicable Environmental Laws and Environmental Permits, all past non-compliance with such Environmental Laws and Environmental Permits has been resolved without ongoing obligations or costs except as disclosed or contemplated in the SEC Reports, and no circumstances exist that could be reasonably likely to (i) form the basis of an Environmental Action against the Borrower or any of its Significant Subsidiaries or any of their properties that could have a Material Adverse Effect or (ii) cause any such property to be subject to any restrictions on ownership, occupancy, use or transferability under any Environmental Law that could have a Material Adverse Effect.
(n) Neither the Parent nor any of its Subsidiaries is, or after the making of any Advance or the application of the proceeds or repayment thereof, or the consummation of any of the other transactions contemplated hereby, will be, an "investment company", or an "affiliated person" of, or "promoter" or "principal underwriter" for, an "investment company" (within the meaning of the Investment Company Act of 1940, as amended).
SECTION 6. AFFIRMATIVE COVENANTS OF THE PARENT.
So long as any amount in respect of any Note shall remain unpaid or any Lender shall have any Commitment, the Parent will or will cause the Borrower to, unless the Required Lenders shall otherwise consent in writing:
(a) CREDIT AGREEMENT. Cause the Borrower to perform and observe for the benefit of the Agent and the Lenders each and every covenant and agreement of the Borrower set forth in Article V of the Credit Agreement, including but not limited to delivering to the Agent and the Lenders all financial statements and financial and other information required to be delivered pursuant to Section 5.01 of the Credit Agreement.
(b) COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its Subsidiaries to comply, in all material respects, with all applicable laws, rules, regulations and orders, such compliance to include, without limitation, compliance with ERISA and Environmental Laws.
(c) PAYMENT OF TAXES, ETC. Pay and discharge, and cause each of its Subsidiaries to pay and discharge, before the same shall become delinquent, (i) all taxes, assessments and governmental charges or levies imposed upon it or upon its property and (ii) all lawful claims that, if unpaid, might by law become a Lien upon its property; provided, however, that neither the Borrower nor any of its Subsidiaries shall be required to pay or discharge any such tax, assessment, charge or claim that is being contested in good faith and by proper proceedings and as to which appropriate reserves are being maintained, unless and until any Lien resulting therefrom attaches to its property and becomes enforceable against its other creditors.
(d) PERFORMANCE AND COMPLIANCE WITH OTHER AGREEMENTS. Perform and comply with, and with respect to the Borrower, cause the performance by and compliance with, each of the material provisions of each material indenture, credit agreement, contract or other agreement by which such Loan Party is bound, non-performance or non-compliance with which would have a material adverse effect upon such Loan Party's business or credit or, in the case of the Parent, materially and adversely affect its ability to perform its obligations hereunder except material contracts or other agreements being contested in good faith.
(e) PRESERVATION OF CORPORATE EXISTENCE. Preserve and maintain, and
cause each of its Subsidiaries to preserve and maintain, its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Borrower may consummate any merger or consolidation permitted under
Section 5.02(b) of the Credit Agreement and the Parent may consummate any merger
or consolidation permitted under Section 7(c) of this Guaranty and provided
further that a Subsidiary shall not be required to preserve its corporate
existence or any right or franchise if the failure to preserve such corporate
existence, right or franchise will not cause or result in a Material Adverse
Change.
(f) MAINTENANCE OF INSURANCE. Maintain, and cause each of its Subsidiaries to maintain, insurance with responsible and reputable insurance companies or associations in such amounts and covering such risks as is usually carried by companies engaged in similar businesses and owning similar properties (including customary self-insurance) in the same general areas in which the Borrower or such Subsidiary operates.
(g) INSPECTION RIGHTS. At any reasonable time and from time to time, permit the Agent or any of the Lenders or any agents or representatives thereof, to examine and make copies of and abstracts from the records and books of account of, and visit the properties of, the Parent and any of its Significant Subsidiaries, and to discuss the affairs, finances and accounts of the Parent and any of its Subsidiaries with any of their officers or directors and with their independent certified public accountants.
(h) KEEPING OF BOOKS. Keep, and cause each of its Subsidiaries to keep, proper books of record and account, in which full and correct entries shall be made of all financial transactions and the assets and business of the Parent and each such Subsidiary in accordance with generally accepted accounting principles in effect from time to time.
(i) OWNERSHIP OF SUBSIDIARIES. Maintain at all times beneficial ownership, free and clear of all Liens, of 100% of the Voting Stock of the Borrower and DECO.
(j) FINANCIAL COVENANTS.
(i) Maintain a ratio of Consolidated EBITDA to cash interest payable on all Debt (excluding, (A) such Nonrecourse Debt of their own and of their Subsidiaries and Affiliates as would be listed as such in the financial statements of the Parent of the kind delivered pursuant to Section 5.01(h)(ii) and (iii) and (B) the Junior Subordinated Debentures) of not less than 2:1
for each period of four consecutive fiscal quarters ending on the last day of September, December, March and June of each year, or
(ii) Maintain a ratio of Consolidated Debt (excluding, (A) such Nonrecourse Debt of their own and of their Subsidiaries as would be listed in the financial statements of the Parent and (B) the Junior Subordinated Debentures) to Capitalization of not greater than 0.65:1
(k) MAINTENANCE OF PROPERTIES, ETC. Subject to clause (e) above, maintain and preserve, and cause each of the Significant Subsidiaries to maintain and preserve, all of their respective properties that are used or useful in the conduct of their respective businesses in good working order and condition, ordinary wear and tear excepted.
(l) REPORTING REQUIREMENTS. Furnish, or cause the Borrower to furnish, to the Lenders:
(i) as soon as available and in any event within 45 days after the end of each of the first three quarters of each fiscal year of the Parent, Consolidated balance sheet of the Parent and its Consolidated Subsidiaries as of the end of such quarter and Consolidated statements of income and cash flows of the Parent and its Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such quarter;
(ii) as soon as available and in any event within 90 days
after the end of each fiscal year of the Parent, a copy of the annual report to
Shareholders for such year for the Parent and its Consolidated Subsidiaries,
containing the Consolidated balance sheet of the Parent and its Consolidated
Subsidiaries as of the end of such fiscal year and Consolidated statements of
income and cash flows of the Parent and its Subsidiaries for such fiscal year,
in each case accompanied by (A) an opinion by Deloitte & Touche LLP or other
independent public accountants acceptable to the Required Lenders and (B) the
report by the Parent filed with the Securities and Exchange Commission on Form
U-3A-2 for such fiscal year, containing the Consolidating balance sheet of the
Parent and its Subsidiaries as of the end of such fiscal year and Consolidating
statements of income and Consolidating statements of retained earnings of the
Parent and its Subsidiaries for such fiscal year, in each case, having been
prepared in accordance with generally accepted accounting principles consistent
with those applied in the preparation of the financial statements referred to in
Section 4.01 of the Credit Agreement;
(iii) as soon as available and in any event within 45 days after the end of each of the first three quarters of each fiscal year of the Parent, unaudited Consolidated balance sheet of the Parent and its Consolidated Subsidiaries as of the end of such quarter and unaudited Consolidated statements of income and cash flows of the Parent and its Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, in each case duly certified (subject to year-end audit adjustments) by a Financial Officer of the Parent as having been prepared in accordance with generally accepted accounting principles consistent with those applied in the preparation of the financial statements referred to in Section 4.01 of the Credit Agreement;
(iv) as soon as available and in any event within 90 days after the end of each
fiscal year of the Parent, the Consolidated balance sheet of the Parent and its Consolidated Subsidiaries as of the end of such fiscal year and Consolidated statements of income and cash flows of the Parent and its Subsidiaries for such fiscal year, in each case accompanied by an opinion by Deloitte & Touche LLP or other independent public accountants acceptable to the Required Lenders;
(v) as soon as possible and in any event within five days after the occurrence of each Default continuing on the date of such statement, a statement of a Financial Officer of the Parent setting forth details of such Default and the action that the Parent has taken and proposes to take with respect thereto;
(vi) promptly after the sending or filing thereof copies of all reports and registration statements that the Parent or any Subsidiary files with the Securities and Exchange Commission or any national securities exchange;
(vii) promptly after the commencement thereof, notice of all actions and proceedings before any court, governmental agency or arbitrator affecting the Parent or any of its Subsidiaries of the type described in Section 4.01(f);
(viii) promptly upon becoming aware of any fact or circumstance affecting the Parent or any of its Subsidiaries that would at any time render the Borrower unable to make the representation and warranty contained in Section 4.01(p) on such date, a statement of a duly authorized officer of the Parent setting forth the details of such fact or circumstance and what action the Parent or such Subsidiary, as the case may be, has taken and proposes to take with respect thereto; and
(ix) such other information respecting the Parent or any of its Subsidiaries as any Lender through the Agent may from time to time reasonably request.
SECTION 7. NEGATIVE COVENANTS OF THE PARENT.
So long as any amount in respect of any Note shall remain unpaid, any Lender shall have any Commitment, the Parent will not and will not cause the Borrower to, unless the Required Lenders shall otherwise consent in writing:
(a) LIENS, ETC. Create or suffer to exist, or permit any Significant Subsidiary to create or suffer to exist, any Lien on or with respect to any shares of any class of equity securities (including, without limitation, Voting Stock) of any Significant Subsidiary, whether such shares are now owned or hereafter acquired.
(b) DEBT. Create, incur, assume or suffer to exist any Debt except Debt that is expressly or effectively pari passu with or expressly subordinated to the Debt of the Parent hereunder.
(c) MERGERS, ETC. Merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to, any Person, or permit any Significant Subsidiary to do so, except that (i) any Significant Subsidiary may merge or consolidate with or into any other Significant Subsidiary, (ii) any Significant Subsidiary may merge into or dispose of assets to the Parent, and (iii) the Parent may merge or consolidate with or into any other Person if the surviving entity has senior unsecured Debt outstanding rated at least BBB- by S&P and Baa3 by Moody's; provided, in each case, that no Default shall have occurred and be continuing at the time of such proposed transaction or would result therefrom.
(d) CHANGE IN NATURE OF BUSINESS. Make, or permit any of its Significant Subsidiaries (including Enterprises and MichCon) to make, any material change in the nature of its business as carried on January 16, 2001 other than as disclosed in the SEC Reports.
(e) ACCOUNTING CHANGES. Make or permit, or permit any of its Subsidiaries to make or permit, any change in accounting policies or reporting practices, except as required or permitted by generally accepted accounting principles.
SECTION 8. WAIVERS.
(a) The Parent hereby waives any failure or delay on the part of the
Borrower in asserting or enforcing any of its rights or in making any claims or
demands hereunder. The Borrower, the Agent or any Lender may at any time,
without the Parent's consent, without notice to the Parent and without affecting
or impairing the Borrower's, the Agent's or such Lender's rights or the Parent's
obligations hereunder, do any of the following with respect to any Loan Document
to which it is a party: (i) make changes, modifications, amendments or
alterations thereto, by operation of law or otherwise, including, without
limitation (in the case of the Credit Agreement and the Notes), any increase in
the Commitments or the rate of interest payable with respect to Advances or any
change in the method of calculating the rate of interest payable with respect
thereto, (ii) grant renewals and extensions of time, for payment or otherwise,
(iii) accept new or additional documents, instruments or agreements relating to
or in substitution thereof, or (iv) otherwise handle the enforcement of their
respective rights and remedies in accordance with their business judgment.
(b) If the Parent shall at any time or from time to time fail to perform or comply with any of its obligations contained herein and if for any reason the Agent or any Lender shall have failed to receive when due and payable (whether at stated maturity, by acceleration, or otherwise) the payment of all or any part of principal of, or interest on, or any other amount payable by the Borrower in respect of any Obligations owing to the Agent or such Lender (as the case may be), then in each case, to the fullest extent permitted by law, (i) it shall be assumed conclusively without necessity of proof that such failure by the Parent was the sole and direct cause of the Agent's or such Lender's (as the case may be) failure to receive such payment when due irrespective of any other contributing or intervening cause whatsoever, and (ii) the Parent further irrevocably waives any right or defense that the Parent may have to cause the Agent or any Lender (as the case may be) to prove the cause or amount of any damages or to mitigate the same.
(c) The Parent irrevocably waives, to the fullest extent permitted by law and for the
benefit of, and as a separate undertaking with, the Agent and each Lender, any defense to the performance of this Guaranty that may be available to the Parent as a consequence of this Guaranty's being rejected or otherwise not assumed by the Borrower or any trustee or similar official for the Borrower or for any substantial part of the property of the Borrower, or as a consequence of this Guaranty's being otherwise terminated or modified, in any bankruptcy or insolvency proceeding, whether such rejection, non-assumption, termination or modification shall have been by reason of this Guaranty's being held to be an executory contract or by reason of any other circumstance. If, notwithstanding the foregoing, this Guaranty shall be rejected or otherwise not assumed, or terminated or modified, the Parent agrees, to the fullest extent permitted by law, for the benefit of, and as a separate undertaking with, the Agent and each Lender, that the Parent will be unconditionally liable to pay to the Agent and each Lender (as the case may be) an amount equal to each payment that would otherwise be payable by the Parent under or in connection with this Guaranty if this Guaranty were not so rejected or otherwise not assumed or terminated or modified.
SECTION 9. AMENDMENTS, ETC.
No amendment or waiver of any provision of this Guaranty, nor consent to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the Parent and consented to by the Required Lenders.
SECTION 10. NOTICES.
All notices and other communications provided for hereunder shall be in writing (including telecopy transmission) and (except when particular means are specified) mailed, faxed or delivered, if to the Parent or the Borrower, at its address at 200 Second Avenue, Detroit, MI 48226, Attention: Christopher C. Arvani, telecopy: 313-235-0170; if to any Lender, at its Domestic Lending Office specified opposite its name on Schedule I to the Credit Agreement; if to any Lender not a Lender on the date hereof, at its Domestic Lending Office specified in the Assignment and Acceptance pursuant to which it became a Lender; and if to the Agent, at its address at ________________________________________, Attention: ______________, telecopy: ________________, with a copy to ________________________________________, telecopy: ___________________; or, as to each party, at such other address as shall be designated by such party in a written notice to the other parties. All such notices and communications shall, when mailed or telecopied, be effective when deposited in the mails or transmitted, respectively.
SECTION 11. COSTS, EXPENSES AND TAXES.
(a) The Parent agrees to pay on demand, upon presentation of a statement of account and absent manifest error, all reasonable costs and reasonable expenses of the Agent in connection with the preparation, execution, delivery, administration, modification and amendment of this Guaranty and the other documents to be delivered hereunder and thereunder, including, without limitation, the reasonable fees and reasonable expenses of counsel for the Agent with respect thereto and with respect to advising the Agent as to its rights and responsibilities under the Guaranty. The Parent further agrees to pay on demand all costs and
expenses of the Agent and the Lenders, if any (including, without limitation, internal and external counsel fees and expenses, provided such fees and expenses are not duplicative), in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of this Guaranty and the other documents to be delivered hereunder, including, without limitation, fees and expenses of counsel for the Agent and each Lender in connection with the enforcement of rights under this Section 11(a).
(b) The Parent agrees to indemnify, to the extent legally permissible, and hold harmless the Agent and each Lender and each of their Affiliates and their officers, directors, employees, agents and advisors (each, an "INDEMNIFIED PARTY") from and against any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and expenses of counsel) that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of, or in connection with the preparation for a defense of, any investigation, litigation or proceeding arising out of, related to or in connection with the Guaranty or any of the transactions contemplated herein or the actual or proposed use of the proceeds of the Advances, except to the extent such claim, damage, loss, liability or expense is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party's gross negligence or willful misconduct. The Parent also agrees not to assert any claim against the Agent, any Lender, any of their Affiliates, or any of their respective directors, officers, employees, attorneys and agents, on any theory of liability, for special, indirect, consequential or punitive damages arising out of or otherwise relating to the Guaranty any of the transactions contemplated herein or the actual or proposed use of the proceeds of the Advances.
(c) Any and all payments made by the Parent hereunder shall be made free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding, in the case of the Agent and each Lender, taxes imposed on its overall net income, and franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction under the laws of which the Agent or such Lender (as the case may be) is organized or any political subdivision thereof and, in the case of each Lender, taxes imposed on its overall net income, and franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction of such Lender's Applicable Lending Office or political subdivision thereof (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities in respect of payment hereunder being hereinafter referred to as "TAXES"). If the Parent shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder or under the Notes to the Agent or any Lender, (A) the sum payable shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this subsection (b)) the Agent or such Lender (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (B) the Parent shall make such deductions and (C) the Parent shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.
(d) In addition, the Parent agrees to pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies which arise from any payment made hereunder or from the execution, delivery or registration of, performing under or otherwise with respect to, this Guaranty (hereinafter referred to as "OTHER TAXES").
(e) The Parent shall indemnify each Lender and the Agent for the full amount of Taxes or Other Taxes (including, without limitation, any taxes imposed by any jurisdiction on amounts payable under this Section 11) imposed on or paid by such Lender or the Agent (as the case may be) and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto. This indemnification shall be made within 30 days from the date such Beneficiary makes written demand therefor.
(f) Within 30 days after the date of any payment of Taxes, the Parent will furnish to the Agent, at its address referred to in Section 10 hereof, the original or a certified copy of a receipt evidencing payment thereof. In the case of any payment hereunder by or on behalf of the Parent through an account or branch outside the United States or by or on behalf of the Parent by a payor that is not a United States person, if the Parent determines that no Taxes are payable in respect thereof, the Parent shall furnish, or shall cause such payor to furnish, to the Agent, at such address, an opinion of counsel acceptable to the Agent stating that such payment is exempt from Taxes. For purposes of this subsection (e), the terms "United States" and "United States person" shall have the meanings specified in Section 7701 of the Internal Revenue Code.
(g) Without prejudice to the survival of any other agreement of the
Parent hereunder, the agreements and obligations of the Parent contained in this
Section 11 shall survive the payment in full of the Obligations.
SECTION 12. CONTINUING GUARANTY; ASSIGNMENT UNDER CREDIT AGREEMENT.
This Guaranty is a continuing guaranty and shall (i) remain in full force and effect, until the later of (x) the payment in full of the Obligations and all other amounts payable under this Guaranty and (y) the expiration or termination of the Commitments, (ii) be binding upon the Parent, its successors and assigns, and (iii) inure to the benefit of, and be enforceable by, the Agent and the Lenders and their respective successors, transferees and assigns. Without limiting the generality of the foregoing clause (iii), any Lender may assign or otherwise transfer all or any portion of its rights and obligations under the Credit Agreement in accordance with Section 8.07 of the Credit Agreement and the transferee shall thereupon become vested with all the benefits in respect thereof granted to such Lender herein or otherwise, subject, however, to the provisions of Article VII (concerning the Agent) of the Credit Agreement.
SECTION 13. GOVERNING LAW.
This Guaranty shall be governed by, and construed in accordance with, the laws of the State of New York.
SECTION 14. REMEDIES.
The remedies herein provided shall be cumulative and non-exclusive and shall be in addition to any other rights and remedies the Agent or the Lenders may have under this Guaranty.
SECTION 15. WAIVER OF JURY TRIAL.
The Parent irrevocably waives hereby irrevocably waives all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Guaranty the actions of the Agent or any Lender in the negotiation, administration, performance or enforcement thereof.
SECTION 16. JURISDICTION, ETC.
(a) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court or federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Guaranty, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such New York State court or, to the extent permitted by law, in such federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Guaranty shall affect any right that any party may otherwise have to bring any action or proceeding relating to this Guaranty in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Guaranty in any New York State or federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
[Signatures on next page]
IN WITNESS WHEREOF, the parties hereto have caused this Guaranty to be duly executed as of the day and year first above written.
DTE ENERGY COMPANY
Title:
ACKNOWLEDGED AND ACCEPTED:
CITIBANK, N.A., as Agent
EXHIBIT I
NEW COMMITMENT ACCEPTANCE
[Date]
Reference is made to the Fourth Amended and Restated Credit Agreement,
dated as of January 16, 2001 (as it may hereafter be amended, modified, extended
or restated from time to time, the "Credit Agreement", the terms therein being
used herein as therein defined), among DTE Capital Corporation (the "Borrower"),
certain Lenders party thereto (the "Lenders"), Citibank, N.A. as Agent (the
"Agent"), and Salomon Smith Barney Inc., as Arranger. Pursuant to Section 2.05
of the Credit Agreement, the Borrower is increasing the aggregate Commitments,
and in connection therewith the Borrower and ____________________ (the
["Increasing Lender"]["Third Party Lender"]) hereby agree as follows:
1. Pursuant to Section 2.05 of the Credit Agreement, [the Increasing Lender is increasing the amount of its Commitment by] [the Third Party Lender is becoming a party to the Credit Agreement as a Lender with a Commitment in] the amount of $_______________ (the "Additional Commitment"). After giving effect to such [increase][joinder], the [Increasing][Third Party] Lender's Commitment will be as set forth in Section 1 of Schedule 1 hereto.
2. From and after the date first above written (the "Effective Date"), the Borrower agrees that the [Increasing][Third Party] Lender shall be entitled to all rights, powers and privileges of a Lender under the Credit Agreement and all other instruments and documents to be delivered thereunder (collectively, the "Loan Documents") to the extent of the Additional Commitment [(in addition to such other rights, powers and privileges to which the Increasing Bank is currently entitled under the Loan Documents)], including without limitation (i) the right to receive all payments in respect of the Additional Commitment for the period from and after the Effective Date, whether on account of principal, interest, fees, indemnities in respect of claims arising after the Effective Date, increased costs, additional amounts or otherwise; (ii) the right to vote and to instruct the Agent under the Credit Agreement based on the Additional Commitment; (iii) the right to set-off and to appropriate and apply deposits of the Borrower as set forth in the Credit Agreement; and (iv) the right to receive notices, requests, demands and other communications pursuant to the Credit Agreement.
3. The Borrower hereby represents and warrants that (i) the representations and warranties contained in Section 4.01 of the Credit Agreement are true on and as of the Effective Date as though made on and as of such date, other than those contained in subsections 4.01(e) and (f), which were true on and as of the date when made, and (ii) no event has occurred and is continuing, or would result from the execution and deliver of this New Commitment Acceptance, which constitutes an Event of Default but for the requirement that notice be given or time elapse or both.
4. The [Increasing][Third Party] Lender (i) confirms that it has
received a copy of the Credit Agreement and the other Loan Documents, together
with copies of the financial statements referred to in Sections 4.01 and 5.01 of
the Credit Agreement and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this New
Commitment Acceptance; (ii) agrees that it will, independently and without
reliance upon the Agent, the Borrower or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement and the other Loan Documents; (iii) appoints and authorizes the Agent
to take such action as agent on its behalf and to exercise such powers under the
Credit Agreement and the other Loan Documents as are delegated to the Agent by
the terms thereof, together with such powers as are reasonably incidental
thereto; (iv) agrees that it will perform in accordance with their terms all of
the obligations which by the terms of the Credit Agreement and the other Loan
Documents are required to be performed by it as a Lender; (v)
[confirms][specifies] as its Domestic Lending Office (and address for notices)
and Eurodollar Lending Office the offices set forth [opposite its name on
Schedule I of the Credit Agreement][on in Section 2 of Schedule 1 hereto]; and
(vi) in the event that the [Increasing][Third Party] Lender is organized under
the laws of any jurisdiction outside the United States, attaches the forms
prescribed by the Internal Revenue Service of the United States certifying as to
the [Increasing][Third Party] Lender's status for purposes of determining
exemption from United States withholding taxes with respects to all payments to
be made to the [Increasing][Third Party] Lender under the Credit Agreement or
such other documents as are necessary to indicate that all such payments are
subject to such rates at a rate reduced by an applicable tax treaty.
5. Following the execution of this New Commitment Acceptance, it will be delivered to the Agent for acceptance and recording by the Agent. Upon such acceptance and recording and receipt of any consent of the Borrower and the Agent required pursuant to subsection 8.07(a) of the Credit Agreement, as of the Effective Date, the [Increasing][Third Party] Lender shall be a party to the Credit Agreement and, to the extent provided in this New Commitment Acceptance, have the rights and obligations of a Lender thereunder and under the other Loan Documents.
6. Upon such acceptance, recording and consent, from and after the Effective Date, the Agent shall make all payments under the Credit Agreement and the other Loan Documents in respect of the Additional Commitment (including, without limitation, all payments of principal, interest and fees with respect thereto) to the [Increasing][Third Party] Lender.
7. This New Commitment Acceptance shall be governed by, and construed in accordance with, the laws of the State of New York.
8. This New Commitment Acceptance may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of Schedule 1 hereto by telecopier shall be effective as delivery of a manually executed counterpart of this New Commitment Acceptance.
IN WITNESS WHEREOF, the parties hereto have caused this New Commitment Acceptance to be executed by their respective officers thereunto duly authorized, as of the Effective Date, such execution being made on Schedule 1 hereto.
Schedule 1
to
New Commitment Acceptance
Dated _______________
Section 1.
(c) Percentage Interest: % (following New Commitment) -----
[Section 2.
Third Party Lender's Domestic Lending Office:
Third Party Lender's Eurodollar Lending Office:](4)
DTE CAPITAL CORPORATION
Title:
[THIRD PARTY][INCREASING] BANK
Title:
Accepted this __th day
of ____________, ____
CITIBANK, N.A.
as Agent
SCHEDULE I
OUTSTANDING DEBT DOCUMENTS
EXHIBIT ___
CONSENT
Dated as of January 16, 2001
The undersigned, DTE Energy Company (the "COMPANY"), as Parent under the Support Agreement, dated as of January 19, 1999 (the "SUPPORT AGREEMENT"), between the Company and DTE Capital Corporation (the "SUBSIDIARY") in support of the Second Amended and Restated Credit Agreement, dated as of January 19, 1999 (as amended and restated by the Third Amended and Restated Credit Agreement, dated as of January 18, 2000, among the Company, the lenders party thereto and the Agent and as in effect as of the date hereof, the "EXISTING AGREEMENT"), among the Subsidiary, the lenders party thereto and Citibank, N.A., as agent (the "AGENT"), and the Subsidiary each hereby consents to the amendment and restatement of the Existing Agreement by the Fourth Amended and Restated Credit Agreement, dated as of January 16, 2001 (the "CREDIT AGREEMENT"), among the Subsidiary, the lenders party thereto and the Agent, and hereby confirms and agrees that (i) the Support Agreement is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects except that, upon the effectiveness of, and on and after the date of, the Credit Agreement, each reference in the Support Agreement to the Existing Agreement, the "Credit Agreement", "thereunder", "thereof" or words of like import referring to the Existing Agreement shall mean and be a reference to the Credit Agreement, and (ii) the Support Agreement does, and shall continue to, support the payment of all of the Debt (as defined in the Support Agreement).
DTE ENERGY COMPANY
DTE CAPITAL CORPORATION
EXHIBIT ___
CONSENT
Dated as of January 16, 2001
The undersigned, DTE Capital Corporation (the "COMPANY"), as Grantor under the Collateral Assignment Agreement, dated as of January 19, 1999 (the "COLLATERAL AGREEMENT"), made by the Company to Citibank, N.A., as agent (the "AGENT") for the lenders (the "LENDERS") party to the Second Amended and Restated Credit Agreement, dated as of January 19, 1999 (as amended and restated by the Third Amended and Restated Credit Agreement, dated as of January 18, 2000, among the Company, the lenders party thereto and the Agent and as in effect as of the date hereof, the "EXISTING AGREEMENT"), among the Company, the Lenders and the Agent, hereby consents to the amendment and restatement of the Existing Agreement by the Fourth Amended and Restated Credit Agreement, dated as of January 16, 2001, among the Company, the lenders party thereto and the Agent, and hereby confirms and agrees that (i) the Collateral Agreement is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects except that, upon the effectiveness of, and on and after the date of, the Credit Agreement, each reference in the Collateral Agreement to the Existing Agreement, the "Credit Agreement", "thereunder", "thereof" or words of like import referring to the Existing Agreement shall mean and be a reference to the Credit Agreement, and (ii) the Collateral Agreement does, and shall continue to, secure the payment of all of the Obligations (as defined in the Collateral Agreement).
DTE CAPITAL CORPORATION
Assistant Treasurer
EXHIBIT 99-39
S T A T E O F M I C H I G A N
BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION
* * * * * In the matter of the application of ) THE DETROIT EDISON COMPANY ) Case No. U-12478 for a financing order. ) ) ----------------------------------------------- |
At the January 4, 2001 meeting of the Michigan Public Service Commission in Lansing, Michigan.
PRESENT: Hon. John G. Strand, Chairman Hon. David A. Svanda, Commissioner Hon. Robert B. Nelson, Commissioner
OPINION AND ORDER
On November 2, 2000, the Commission issued its order in this case (referred to as the financing order) authorizing The Detroit Edison Company (Detroit Edison) to securitize up to $1,774,202,000 of its after-tax qualified costs, pursuant to certain terms and conditions. Among other things, that order, issued pursuant to the Customer Choice and Electricity Reliability Act, 2000 PA 141 (Act 141) and 2000 PA 142 (Act 142), allowed the utility to (1) create one or more special purpose entities for use in issuing its securitization bonds, (2) apply appropriate accounting and amortization methodologies, (3) implement and collect securitization and tax charges, and (4) use the cost savings from securitization to reduce the rates charged to its bundled sales and retail open access (ROA) customers, among other purposes. Furthermore, it required Detroit
Edison to file its "express written acceptance of all conditions and limitations that the order places on the utility." Financing order, p. 56.
On November 22, 2000, Detroit Edison filed a petition for rehearing seeking clarification of certain issues. It says that a clarification is needed to prevent serious unintended consequences resulting from compliance with the order. On December 12, 2000, Attorney General Jennifer M. Granholm (Attorney General) filed a response. On December 13, 2000, the Association of Businesses Advocating Tariff Equity (ABATE), Energy Michigan, the Michigan Chamber of Commerce, and Unicom Energy, Inc., filed responses to the petition.(1)
Rule 403 of the Commission's Rules of Practice and Procedure, 1992 AACS, R 460.17403, provides that a petition for rehearing may be based on claims of error, newly discovered evidence, facts or circumstances arising after the hearing, or unintended consequences resulting from compliance with the order. A petition for rehearing is not merely another opportunity for a party to argue a position or to express disagreement with the Commission's decision. Unless a party can show the decision to be incorrect or improper because of errors, newly discovered evidence, or unintended consequences of the decision, the Commission will not grant a rehearing.
(1) In addition to addressing the requests set forth in Detroit Edison's petition, some of these responses effectively seek rehearing of other issues discussed in the financing order. However, MCL 460.10i(7); MSA 22.13(10i)(7), which was adopted as part of Act 142, specifically precludes any party other than "the applicant for securitization"-Detroit Edison, in this case-from requesting rehearing of a financing order. The Commission is therefore prohibited from addressing any issues beyond those raised in Detroit Edison's petition, and has thus disregarded all discussions set forth in the responses that concern other issues. The Commission is further prohibited from addressing the issue of the constitutionality of Section 10i(7) of Act 142, an issue raised by the Attorney General and ABATE. See, Universal Am-Can Limited v Attorney General, 197 Mich App 34, 37-38; 494 NW2d 787 (1992).
U-12478
"Proceeds" and Savings
Detroit Edison says that it believes that the references in the order to "proceeds" in the context of the use of securitization savings is intended to refer to the savings that result from securitization and not to the proceeds from the issuance of the bonds. Detroit Edison is correct.
Detroit Edison asks the Commission to clarify that all reductions in rates mandated by the order must come from and be limited to the amount of the savings produced by securitization of approved qualified costs. Detroit Edison is correct.
The Mandatory 5% Residential Rate Cut
Section 10d of Act 141 required Detroit Edison and Consumers Energy Company to reduce by 5% the rates in effect for their residential rate classes as of May 1, 2000. It also provided those utilities an opportunity to use at least a portion of any savings arising from securitization to offset that 5% residential rate reduction. However, noting that a significant amount of time would likely elapse between the implementation of that rate cut (during the summer of 2000) and the issuance of its securitization bonds (which the utility estimated would not occur before the start of 2001), Detroit Edison requested authority to treat the cost of the 5% residential rate cut as a qualified cost that could be securitized or as a regulatory asset that could be recovered at another time.
Detroit Edison says that it believes that ordering paragraph R of the order correctly states the intent of the Legislature that securitization savings be applied first to the recovery of the residential rate reduction beginning with the date of the order and that any remaining savings be used as the order specifies. It says that it therefore accepts the limitation on the effective date for creation of the regulatory asset to the period beginning with the date of the order until the securitization bonds are issued, provided (1) the cost of the rate reduction will be recovered from the annual savings
U-12478
generated by securitization and (2) if the issuance of securitization bonds is delayed beyond March 31, 2001, the cost of the rate reduction from November 2, 2000 through the date of securitization will be deemed a qualified cost that may be securitized.
The Commission finds that Detroit Edison has correctly interpreted the intent of the financing order. It is the Commission's intention that Detroit Edison have an opportunity to recover from its securitization savings the full cost of the residential rate reduction beginning with the date that the financing order was issued (namely, November 2, 2000). To rule otherwise, and thus forever preclude recovery for rate reductions provided prior to the actual issuance of the utility's securitization bonds, would merely give the other parties to this case an incentive to delay-through unwarranted appeals and other means-the initiation of Detroit Edison's securitization program. Any such delays would conflict with the Legislature's intent that securitization be implemented in whatever reasonable manner provides the maximum cost savings. Furthermore, delay in the initiation of Detroit Edison's securitization program will result in a reduction in the amount to be securitized, primarily because Detroit Edison will continue to amortize the Fermi 2 plant in the meantime. The reduction in the amount to be securitized will, in turn reduce the amount of the savings to be achieved. Delay-whether through unwarranted appeals or other means-could reduce or fully eliminate funding for the low-income and energy efficiency fund and even reduce or eliminate potential rate reductions for commercial and industrial customers, contrary to the Legislature's intent.
The Commission therefore confirms Detroit Edison's understanding that the utility is authorized to recover, through its securitization program, all reductions in its revenues beginning November 2, 2000. Nevertheless, the Commission finds no compelling reason at this time to formally declare those lost revenues a regulatory asset. Moreover, the Commission rejects Detroit
U-12478
Edison's request to treat the cost of the reduction after March 31, 2001 as a qualified cost that may be securitized. It is sufficient to provide recovery through the securitization savings.
Equalization Adjustment
The Commission's order noted that retail open access would be less competitive if ROA customers did not receive the same reduction in dollars per kilowatt-hour (kWh) as bundled sales customers. The order therefore required an equalization adjustment. Detroit Edison says that it understands the intent to be that ROA customers are to receive the same benefit from securitization that they would have received if they had remained bundled sales customers. It says that this intent can be implemented before the securitization bonds are issued by reducing residential ROA customers' bid transition charge by 0.46(cent) per kWh, the average reduction for residential bundled sales customers. After the bonds are issued and before January 1, 2002, it proposes to split the bid transition charge for all customer classes into two components, one equal to the securitization and tax charge and the second equal to the difference between the bid transition charge and the securitization and tax charge. It would reduce the second charge by the same 0.46(cent) per kWh for residential ROA customers, by the average reduction in bundled commercial rates for commercial ROA customers (which it expects to be 0.48(cent) per kWh), and by the average reduction in bundled industrial rates for industrial ROA customers (which it expects to be 0.28(cent) per kWh).(2) As of January 1, 2002, Detroit Edison says that ROA customers will pay a uniform transition charge set by the Commission, that the amount will be set in Case No. U-12639 or a related case and will
(2)The Commission understands that these average reductions are estimates and that actual average reductions will be computed and reflected in customers' bills after the securitization bonds are issued.
U-12478
presumably provide the equal benefit envisioned by the order, and that the equalization charge will therefore be eliminated or set at zero.
The Commission agrees with Detroit Edison's understanding of the purpose and implementation of the equalization adjustment. The Commission therefore approves the implementation of that adjustment as described in Detroit Edison's petition for rehearing.(3)
Offsets for All Securitization and Tax Charges
Detroit Edison notes that on page 29 of the financing order, the Commission required the utility to reflect an offset-equal to the sum of each customer's securitization and tax charges for the billing period in question-on the bills of its bundled sales and ROA customers alike. It interprets this as acceptance of its proposal that bundled rates not be increased but as rejection of its proposed treatment of ROA customers. It nevertheless accepts the Commission's order, implemented as follows: For bundled customers, the securitization and tax charge will appear as a separate charge, the base energy charge will be reduced by an equal amount, and any change in the securitization and tax charge will result in an additional surcharge or credit factor as necessary to maintain the rate freeze required by Act 141. For ROA customers, the bid transition charge will be split into two components, one equal to the securitization and tax charge and the second equal to the difference between the bid transition charge and the securitization and tax charge (with customers thus paying, on a net basis, the bid transition charge) and the Commission-approved transition charge will be set to achieve the same effect.
(3)In the event that a uniform transition charge is not established by January 1, 2002, the reductions then in effect will be continued until such a charge is approved.
U-12478
The Commission agrees that Detroit Edison correctly understands the purpose and implementation of the securitization and tax charge offset. In issuing the financing order, the Commission assumed (as it still does) that the offset for ROA customers would become unnecessary beginning January 1, 2002. This assumption is based on the Commission's belief that, before that date, an order will be issued in Case No. U-12639 from which a transition charge can be derived that recognizes the effect of securitization on Detroit Edison's total stranded costs. However, in the event that no such transition charge is in place for Detroit Edison by January 1, 2002, the Commission will impose a temporary transition charge equal to the sum of the then-effective securitization and tax charges. The offset would continue to be applied to this charge to ensure equality between bundled sales and ROA customers until such time as a revised transition charge is adopted. This will ensure the collection of all revenue necessary to pay the securitization bond holders and should, in turn, enhance the marketability of the bonds.
Corrections
Paragraph K of the financing order, at page 53, should have stated that the annual servicing fee will be based on "the initial principal balance of the securitization bonds" rather than "the principal amount of all outstanding securitization bonds."
The order should have also stated that:
Consistent with Section 10m(1) of Act 142, the Commission affirms that a valid and enforceable lien and security interest in securitization property may be created only by a financing order and the execution and delivery of a security agreement with a financing party in connection with the issuance of securitization bonds. Thus, following Detroit Edison's submission of an unconditional acceptance letter, the utility will be deemed to have satisfied all state-imposed prerequisites to the execution of a security agreement, and, pursuant to Act 142, a valid and enforceable lien and security interest in the securitization property will be created following the execution and delivery of the applicable security agreement.
U-12478
The Commission FINDS that:
a. Jurisdiction is pursuant to 1909 PA 106, as amended, MCL 460.551 et seq.; MSA 22.151 et seq.; 1919 PA 419, as amended, MCL 460.51 et seq.; MSA 22.1 et seq.; 1939 PA 3, as amended, MCL 460.1 et seq.; MSA 22.13(1) et seq.; 1969 PA 306, as amended, MCL 24.201 et seq.; MSA 3.560(101) et seq.; and the Commission's Rules of Practice and Procedure, as amended, 1992 AACS, R 460.17101 et seq.
b. Detroit Edison's petition for rehearing should be granted in part and denied in part, as discussed in this order.
c. The order should be corrected as discussed in this order.
THEREFORE, IT IS ORDERED that:
A. The Detroit Edison Company's November 22, 2000 petition for rehearing is granted in part and denied in part, and the order is corrected, as discussed in this order.
B. If The Detroit Edison Company desires to undertake securitization, it shall file, within 7 days following issuance of this order, a document expressing its unconditional acceptance of all conditions and limitations imposed on the utility by this order and the November 2, 2000 financing order.
C. All amortization, accounting, and ratemaking approvals, as well as all other authorizations, provided for in the Commission's November 2, 2000 financing order and clarified in this order shall be tolled pending The Detroit Edison Company's unconditional acceptance of all conditions and limitations that those orders place on the utility.
D. Following The Detroit Edison Company's unconditional acceptance of all conditions and limitations established by the Commission's November 2, 2000 financing order and clarified in
U-12478
this order, these orders-and each of their terms-shall be irrevocable. The Detroit Edison Company's acceptance likewise shall be irrevocable and, therefore, shall survive bankruptcy or any other changes in the utility's legal structure.
E. This order and its anticipated unconditional acceptance by The Detroit Edison Company shall be incorporated by reference into the Commission's November 2, 2000 financing order, shall be deemed to relate back to the date of issuance of that financing order, and shall be treated as being in full force and effect as of that date.
Any party desiring to appeal this order must do so in the appropriate court within 30 days after issuance and notice of this order, pursuant to MCL 462.26; MSA 22.45.
MICHIGAN PUBLIC SERVICE COMMISSION
/s/ John G. Strand ----------------------------------------------- Chairman ( S E A L ) /s/ David A. Svanda ----------------------------------------------- Commissioner /s/ Robert B. Nelson ----------------------------------------------- Commissioner, concurring in a separate opinion. |
By its action of January 4, 2001.
/s/ Dorothy Wideman ------------------------------ Its Executive Secretary |
U-12478
this order, these orders-and each of their terms-shall be irrevocable. The Detroit Edison Company's acceptance likewise shall be irrevocable and, therefore, shall survive bankruptcy or any other changes in the utility's legal structure.
E. This order and its anticipated unconditional acceptance by The Detroit Edison Company shall be incorporated by reference into the Commission's November 2, 2000 financing order, shall be deemed to relate back to the date of issuance of that financing order, and shall be treated as being in full force and effect as of that date.
Any party desiring to appeal this order must do so in the appropriate court within 30 days after issuance and notice of this order, pursuant to MCL 462.26; MSA 22.45.
MICHIGAN PUBLIC SERVICE COMMISSION
By its action of January 4, 2001.
Its Executive Secretary
U-12478
In the matter of the application of ) THE DETROIT EDISON COMPANY ) Case No. U-12478 for a financing order. ) ) ----------------------------------------------- |
Suggested Minute:
"Adopt and issue order dated January 4, 2001 granting in part and denying in part the petition for rehearing filed by The Detroit Edison Company and clarifying the November 2, 2000 order, as set forth in the order."
S T A T E O F M I C H I G A N
BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION
* * * * * In the matter of the application of ) THE DETROIT EDISON COMPANY ) Case No. U-12478 for a financing order. ) ) ----------------------------------------------- |
CONCURRING OPINION OF COMMISSIONER ROBERT B. NELSON
(Submitted on January 4, 2001 concerning order issued on same date.)
I issued a separate opinion when the Commission approved Detroit Edison's financing order on November 2. The rehearing petition does not address the differences between me and my colleagues outlined in the separate opinion, so I am able to concur in the Commission's order on rehearing. I believe it is imperative that the adjustments adopted on November 2 to equalize the rate reductions between bundled and retail access customers and to offset the securitization and tax charges on all customer bills continue until a transition charge is established which maintains the Commission's desire not to "unfairly disadvantage" retail access customers.
I also concur in the decisions not to approve a regulatory asset for the residential rate reduction at this time or to treat the rate reduction as a qualified cost on March 31, 2001. Although I believe it is Detroit Edison's intent to move expeditiously toward the issuance of securitization bonds, the granting of these requests would substantially reduce any incentive to do so.
MICHIGAN PUBLIC SERVICE COMMISSION