Michigan
4911
38-0478650
(Primary Standard Industrial
(I.R.S. Employer Identification No.)
Classification Code Number)
Teresa M. Sebastian | Richard L. Harden | |
The Detroit Edison Company | Hunton & Williams LLP | |
2000 2nd Avenue
|
200 Park Avenue | |
Detroit, Michigan 48226
|
New York, New York 10166 | |
(313) 235-4000
|
(212) 309-1000 | |
(313) 235-8500 (Telecopy) | (212) 309-1100 (Telecopy) |
Title of Each Class of | Amount to be | Maximum Offering | Maximum Aggregate | Amount of | ||||||||
Securities to be Registered | Registered | Price per Note(1) | Offering Price | Registration Fee | ||||||||
4.80% 2005 Series AR Senior Notes due 2015
|
$200,000,000 | 100% | $200,000,000 | $23,540 | ||||||||
5.45% 2005 Series BR Senior Notes due 2035
|
$200,000,000 | 100% | $200,000,000 | $23,540 | ||||||||
Total
|
$400,000,000 | 100% | $400,000,000 | $47,080 | ||||||||
(1) | Calculated in accordance with Rule 457(f) under the Securities Act of 1933, as amended. |
The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted. |
| the effects of weather and other natural phenomena on operations and sales to customers, and purchases from suppliers; | |
| economic climate and growth or decline in the geographic areas where we do business; | |
| environmental issues, laws and regulations, and the cost of remediation and compliance associated therewith; | |
| nuclear regulations and operations associated with nuclear facilities; | |
| implementation of the electric Customer Choice program; | |
| impact of electric utility restructuring in Michigan, including legislative amendments; | |
| employee relations and the impact of collective bargaining agreements; | |
| unplanned outages; | |
| access to capital markets and capital market conditions and the results of other financing efforts that can be affected by credit agency ratings; | |
| the timing and extent of changes in interest rates; | |
| the level of borrowings; | |
| changes in the cost and availability of coal and other raw materials, and purchased power; | |
| effects of competition; | |
| impact of regulation by the Federal Energy Regulatory Commission (FERC), the Michigan Public Service Commission (MPSC), the Nuclear Regulatory Commission (NRC) and other applicable governmental proceedings and regulations; | |
| changes in federal, state and local tax laws and their interpretations, including the Internal Revenue Code, regulations, rulings, court proceedings and audits; | |
| the ability to recover costs through rate increases; | |
| the availability, cost, coverage and terms of insurance; | |
| the cost of protecting assets against or damage due to terrorism; | |
| changes in accounting standards and financial reporting regulations; | |
| changes in federal or state laws and their interpretation with respect to regulation, energy policy and other business issues; |
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| uncollectible accounts receivable; and | |
| changes in the economic and financial viability of our suppliers, customers and trading counterparties, and the continued ability of such parties to perform their obligations to Detroit Edison. |
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Table of Contents
The Initial Private Placement of Outstanding Notes
We sold the outstanding notes on February 7, 2005, to
Barclays Capital Inc., Citigroup Global Markets Inc.,
J.P. Morgan Securities Inc., KeyBanc Capital Markets, a
division of McDonald Investments Inc., BNP Paribas Securities
Corp., Deutsche Bank Securities Inc. and Scotia Capital
(USA) Inc. We collectively refer to those parties in this
prospectus as the initial purchasers. The initial
purchasers subsequently resold the outstanding notes to
qualified institutional buyers pursuant to Rule 144A and
outside the United States in compliance with Regulation S
under the Securities Act.
Registration Rights Agreement
Simultaneously with the initial private placement of the
outstanding notes, we entered into a registration rights
agreement (the Registration Rights Agreement) for
the exchange offer. In the Registration Rights Agreement, we
agreed, among other things, to file with the SEC an exchange
offer registration statement and to use our reasonable best
efforts to cause the exchange offer registration statement to
become effective under the Securities Act within 180 days
of issuing the outstanding notes. The exchange offer is intended
to satisfy your rights under the Registration Rights Agreement.
After the exchange offer is complete, you will no longer be
entitled to any exchange or registration rights with respect to
your outstanding notes, except as otherwise provided in the
Registration Rights Agreement.
If we do not comply with, among other things, our obligation to
cause the exchange offer registration statement to become
effective under the Securities Act within 180 days of
issuing the outstanding notes, we will pay additional interest
at a rate of 0.25% per year during the first 90-day period
immediately following the occurrence of the registration
default, increasing by an additional 0.25% per year with
respect to each subsequent 90-day period, up to a maximum of
0.50% per year, until all registration defaults have been
cured. For more details, see The Exchange
Offer Additional Interest.
The Exchange Offer
We are offering to exchange the exchange notes, which have been
registered under the Securities Act, for your outstanding notes,
which were issued on February 7, 2005, in the initial
offering. In order to be exchanged, an outstanding note must be
properly tendered and accepted. All outstanding notes that are
properly tendered and not validly withdrawn will be exchanged.
We will issue exchange notes promptly after the expiration of
the exchange offer.
Resales of Exchange Notes
We believe that the exchange notes issued in the exchange offer
may be offered for resale, resold and otherwise transferred by
you
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without compliance with the registration and prospectus delivery
provisions of the Securities Act provided that:
the exchange notes are being acquired in the
ordinary course of your business;
you have no arrangement or understanding with any
person to participate in the distribution of the exchange
notes; and
you are not an affiliate of ours.
If any of these conditions are not satisfied and you transfer
any exchange notes issued to you in the exchange offer without
delivering a prospectus meeting the requirements of the
Securities Act or without an exemption from registration of your
exchange note from these requirements, you may incur liability
under the Securities Act. We will not assume, nor will we
indemnify you against, any such liability.
Each broker-dealer that receives new securities for its own
account in exchange for securities, where such securities were
acquired by such broker-dealer as a result of market-making
activities or other trading activities, must acknowledge that it
will deliver a prospectus in connection with any resale of such
new securities. See Plan of Distribution.
Record Date
We mailed this prospectus and the related exchange offer
documents to registered holders of outstanding notes
on ,
2005.
Expiration Date
The exchange offer will expire at 5:00 p.m., New York City
time, ,
2005, unless we decide to extend the expiration date.
Conditions to the Exchange Offer
The exchange offer is subject to certain customary conditions
which we may waive. See Exchange Offer
Conditions. Other than United States federal and state
securities laws, we do not need to satisfy any regulatory
requirements or obtain any regulatory approval to conduct the
exchange offer.
Procedures for Tendering Outstanding Notes
We issued the outstanding notes as global securities. When the
outstanding notes were issued, we deposited the global notes
representing the outstanding notes with J.P. Morgan Trust
Company, National Association, as book-entry depositary.
J.P. Morgan Trust Company, National Association issued a
certificateless depositary interest in each global note we
deposited with it, which represents a 100% interest in the
notes, to The Depository Trust Company, known as DTC. Beneficial
interests in the outstanding notes, which are held by direct or
indirect participants in DTC through the certificateless
depositary interest, are shown on records maintained in
book-entry form by DTC.
You may tender your outstanding notes through book-entry
transfer in accordance with DTCs Automated Tender Offer
Program, known as ATOP. To tender your outstanding notes by a
means other than book-entry transfer, a letter of transmittal
must be completed and signed according to the instructions
contained in the letter. The letter of transmittal and any other
documents
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required by the letter of transmittal must be delivered to the
exchange agent by mail, facsimile, hand delivery or overnight
carrier. In addition, you must deliver the outstanding notes to
the exchange agent or comply with the procedures for guaranteed
delivery. See The Exchange Offer Procedures
for Tendering Outstanding Notes for more information.
Do not send letters of transmittal and certificates representing
outstanding notes to us. Send these documents only to the
exchange agent. See The Exchange Offer
Exchange Agent for more information.
Special Procedures for Beneficial Owners
If you are the beneficial owner of book-entry interests and your
name does not appear on a security position listing of DTC as
the holder of the book-entry interests or if you are a
beneficial owner of outstanding notes that are registered in the
name of a broker, dealer, commercial bank, trust company or
other nominee and you wish to tender the book-entry interest or
outstanding notes in the exchange offer, you should contact the
person in whose name your book-entry interests or outstanding
notes are registered promptly and instruct that person to tender
on your behalf.
Withdrawal Rights
You may withdraw the tender of your outstanding notes at any
time prior to 5:00 p.m., New York City time
on ,
2005.
Certain United States Federal Income Tax Considerations
The exchange of outstanding notes for exchange notes should not
constitute a taxable event for United States federal income tax
purposes. See Certain United States Federal Income Tax
Considerations. You should consult your own tax advisor as
to the tax consequences of the exchange to you.
Consequences of Failure to Exchange
Outstanding notes that are eligible for the exchange offer and
not tendered will be subject to the existing transfer
restrictions on such notes after the exchange offer. We will
have no further obligation to register the outstanding notes
except as otherwise provided in the Registration Rights
Agreement. If you do not participate in the exchange offer, the
liquidity of your outstanding notes could be adversely affected.
Use of Proceeds
We will not receive any proceeds from the issuance of exchange
notes pursuant to the exchange offer. We will pay all of our
expenses incident to the exchange offer.
Exchange Agent
J.P. Morgan Trust Company, National Association is serving
as the exchange agent in connection with the exchange offer.
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secured by mortgage bonds subject to the release provisions, as
well as other debt securities or mortgage bonds. As of
December 31, 2004, we had outstanding mortgage bonds not
subject to these release provisions in an aggregate principal
amount equal to approximately $1.23 billion, or 13.3% of
our Net Tangible Assets and 20.8% of our Capitalization, of
which approximately $523 million aggregate principal amount
will not mature or be subject to redemption at our option prior
to September 2011. Therefore, the release date is not expected
to occur before September 2011, unless we repurchase, prior to
their stated maturity, all of our outstanding mortgage bonds
except for (a) mortgage bonds subject to the release
provisions (including the related series of mortgage bonds) and
(b) outstanding mortgage bonds which do not in aggregate
principal amount exceed the greater of 5% of our Net Tangible
Assets or 5% of our Capitalization.
Ratings
The exchange notes have been assigned a rating of A- by Fitch
Ratings. For a description of factors affecting our credit
ratings, see Risk Factors. Ratings reflect only the
rating agencys views and are not recommendations to buy,
sell or hold the exchange notes. Fitch Ratings may revise or
withdraw its rating on the exchange notes, and, accordingly,
there can be no assurance that the ratings assigned to the
exchange notes upon initial issuance or at any other time will
not be lowered or withdrawn by a rating agency at any time
thereafter.
Risk Factors
Your investment in the exchange notes will involve risks as does
your current investment in the outstanding notes. See Risk
Factors in this prospectus and the other information in
this prospectus, including Cautionary Statements Regarding
Forward-Looking Statements, on page ii of this
prospectus.
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Year Ended December 31,
2004
2003
2002
2001
2000
(In millions)
$
3,568
$
3,695
$
4,054
$
4,044
$
4,129
3,051
3,021
3,195
3,408
3,256
150
246
356
233
411
12,842
12,549
11,488
11,255
10,986
2,560
2,766
2,965
2,740
3,104
1,400
1,496
1,585
1,673
385
385
385
385
385
2,979
2,963
2,122
2,458
3,723
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If you do not exchange your outstanding notes for exchange notes, your ability to sell the outstanding notes will be restricted. |
If you do not comply with the exchange offer procedures, you will be unable to obtain the exchange notes. |
The exchange notes may not be freely tradeable by you. |
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The release of the related series of mortgage bonds on the release date could have an adverse effect on the market value of the exchange notes. |
We cannot assure you that an active trading market will develop for the exchange notes. |
Michigans electric Customer Choice Program is negatively impacting our financial performance. |
Weather significantly affects our operations. |
Our operations continue to be negatively affected by competition. |
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We are subject to rate regulation. |
Adverse changes in our credit ratings may negatively affect us. |
Regional and national economic conditions may unfavorably impact us. |
Environmental laws and liability may be costly. |
Operation of a nuclear facility subjects us to risk. |
The supply and price of fuel and other commodities may impact our financial results. |
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A work interruption may adversely affect us. |
Unplanned power plant outages may be costly. |
Our ability to access capital markets at attractive interest rates is important. |
Property tax reform may be costly. |
We may not be fully covered by insurance. |
Terrorism could affect our business. |
Failure to successfully implement new information systems could interrupt our operations. |
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Year Ended December 31, | ||||||||||||||||||||
2004 | 2003 | 2002 | 2001 | 2000 | ||||||||||||||||
Ratios of Earnings to Fixed Charges
|
1.73 | 2.35 | 2.66 | 2.02 | 2.88 |
| earnings, which consist of net income before deducting income taxes and fixed charges; and | |
| fixed charges, which consist of total interest charges, interest factor of rents and amortization of debt discount, premium and expense. |
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At December 31, 2004 | ||||
(In millions) | ||||
Cash and cash equivalents
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$ | 6 | ||
Short-term debt
|
| |||
Current portion of long-term debt and capital lease obligations
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$ | 499 | ||
Capitalization
|
||||
Long-term debt (including capital leases and excluding current
maturities, quarterly income debt securities and non-recourse
debt)
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$ | 2,560 | ||
Securitization bonds
|
1,400 | |||
Quarterly income debt securities
|
385 | |||
Shareholders equity
|
2,979 | |||
Total capitalization
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$ | 7,324 | ||
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| within 90 days following the original issue date of the outstanding notes, prepare and file with the SEC an exchange offer registration statement with respect to the exchange offer and the issuance and delivery to the holders, in exchange for the outstanding notes of each series, of a series of exchange notes, which will have terms identical in all material respects to the outstanding notes of such series, except that the exchange notes will not contain terms with respect to transfer restrictions and will not provide for the payment of additional interest under the circumstances described below; | |
| use our reasonable best efforts to cause the exchange offer registration statement to be declared effective under the Securities Act within 180 days of the original issue date of the outstanding notes; | |
| use our reasonable best efforts to keep the exchange offer registration statement effective until the closing of the exchange offer; and | |
| use our reasonable best efforts to cause the exchange offer to be consummated not later than 60 days following the effectiveness of the exchange offer registration statement. |
| will not be able to rely on the interpretations by the staff of the SEC; |
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| will not be able to tender its outstanding notes in the exchange offer; and | |
| must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any sale or transfer of the exchange notes, unless the sale or transfer is made under an exemption from those requirements. |
| any exchange notes to be received by it have been or will be acquired in the ordinary course of its business; | |
| it has no arrangement or understanding with any person to participate in the distribution, within the meaning of the Securities Act, of the exchange notes; and | |
| it is not our affiliate. |
(1) due to any change in law or the SECs policy, we are not permitted to effect the exchange offer or for any other reason the exchange offer is not consummated within 60 days following the effectiveness of the exchange offer registration statement; or | |
(2) any initial purchaser so requests with respect to outstanding notes that are not eligible to be exchanged for exchange notes in the exchange offer and that are held by it following consummation of the exchange offer or any holder (other than an initial purchaser) is not eligible to participate in the exchange offer; or | |
(3) any initial purchaser who participates in the exchange offer does not receive freely tradeable exchange notes in the exchange offer; |
(1) on or prior to 60 days after the earlier of any event in (1), (2) or (3) above, file with the SEC a shelf registration statement covering resales of the outstanding or exchange notes; | |
(2) use our reasonable best efforts to cause the shelf registration statement to be declared effective under the Securities Act not later than 150 days after the date of any event in (1), (2) or (3) above; | |
(3) use our reasonable best efforts to keep the shelf registration statement effective until the earlier of (a) the date when all of the securities covered by the shelf registration statement have been sold pursuant to such shelf registration statement and (b) two years from the original issue date of the outstanding notes; and |
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(4) use our reasonable best efforts to ensure that the shelf registration statement and any amendment to the shelf registration statement and any prospectus included in the shelf registration statement comply with the requirements of the Securities Act. |
| the exchange offer is not consummated on or prior to the 60th calendar day following effectiveness of the exchange offer registration statement; | |
| if required, a shelf registration statement with respect to the outstanding notes is not filed with the SEC on or prior to the date specified above; | |
| if required, a shelf registration statement with respect to the outstanding notes is not declared effective on or prior to the date specified above; or | |
| either the exchange offer registration statement or a shelf registration statement has been filed and declared effective but after its effective date ceases to be effective or is unusable for its intended purpose without being succeeded within 45 business days by a post-effective amendment to such registration statement that cures such failure and that is itself declared effective by the SEC within 15 business days; |
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(1) the exchange notes of each series bear a different CUSIP number from the related outstanding notes; | |
(2) the exchange notes have been registered under the Securities Act and hence will not bear legends restricting the transfer thereof; and | |
(3) the holders of the exchange notes will not be entitled to certain rights under the Registration Rights Agreement, including the provisions providing for additional interest on the outstanding notes in certain circumstances relating to the timing of the exchange offer, all of which rights will terminate when the exchange offer is terminated. |
(1) to delay accepting any outstanding notes, to extend the exchange offer or to terminate the exchange offer if any of the conditions set forth below under Conditions have not been satisfied, by giving oral or written notice of any delay, extension or termination to the exchange agent, or | |
(2) to amend the terms of the exchange offer in any manner. Such decision will also be communicated in a press release or other public announcement prior to 9:00 a.m., New York City time on the next business day following such decision. |
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(A) the tender is made through a member firm of the Medallion System; | |
(B) prior to the expiration date, the exchange agent receives from a member firm of the Medallion System a properly completed and duly executed notice of guaranteed delivery by facsimile transmission, mail or hand delivery setting forth the name and address of the holder, the certificate number(s) of the outstanding notes and the principal amount of outstanding notes tendered, stating that the tender is being made thereby and guaranteeing that, within five New York Stock Exchange trading days after the expiration date, the letter of transmittal or facsimile thereof together with the certificate(s) representing the outstanding notes or a confirmation of book-entry transfer of the outstanding notes into the exchange agents account at DTC, and any other documents required by the letter of transmittal will be deposited by the member firm of the Medallion System with the exchange agent; and | |
(C) the properly completed and executed letter of transmittal or facsimile thereof, as well as the certificate(s) representing all tendered outstanding notes in proper form for transfer or a confirmation of book-entry transfer of the outstanding notes into the exchange agents account at DTC, and all other documents required by the letter of transmittal are received by the exchange agent within five New York Stock Exchange trading days after the expiration date. |
(1) specify the name of the person having deposited the outstanding notes to be withdrawn; | |
(2) identify the outstanding notes to be withdrawn, including the certificate number(s) and principal amount of the outstanding notes, or, in the case of outstanding notes transferred by book-entry transfer, the name and number of the account at DTC to be credited; | |
(3) be signed by the holder in the same manner as the original signature on the letter of transmittal by which the outstanding notes were tendered, including any required signature guarantees, or be accompanied by documents of transfer sufficient to have the trustee with respect to the outstanding notes register the transfer of the outstanding notes into the name of the person withdrawing the tender; and | |
(4) specify the name in which any outstanding notes are to be registered, if different from that of the person depositing the outstanding notes to be withdrawn. |
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J.P. Morgan Chase Bank, N.A. | |
Institutional Trust Services | |
Service Window | |
New York Plaza, First Floor | |
New York, New York 10004 | |
By Mail or Overnight Courier: | |
J.P. Morgan Institutional Trust Services | |
2001 Bryan Street, 9th Floor | |
Dallas, Texas 75201 | |
Facsimile Transmission: | |
(214) 468-6494 | |
To Confirm Receipt of Facsimile by Telephone: | |
(214) 468-6464 |
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(1) to a person who the seller reasonably believes is a qualified institutional buyer within the meaning of Rule 144A under the Securities Act purchasing for its own account or for the account of a qualified institutional buyer in a transaction meeting the requirements of Rule 144A under the Securities Act; | |
(2) in an offshore transaction complying with Rule 903 or Rule 904 of Regulation S under the Securities Act; | |
(3) pursuant to an exemption from registration under the Securities Act provided by Rule 144 thereunder (if available); | |
(4) in accordance with another exemption from the registration requirements of the Securities Act; | |
(5) to us; or | |
(6) pursuant to an effective registration statement under the Securities Act; |
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(i) We will first propose to the indenture trustee a payment date for such defaulted interest and we will deposit with the paying agent an amount of money equal to the aggregate amount proposed to be paid in respect of such defaulted interest. Next, the indenture trustee will choose a special record date for determining which holders are entitled to the payment. The special record date will be 10 days before the payment date we propose. Finally, the paying agent will pay such defaulted interest on the payment date to the holder of the debt security as of the close of business on the special record date. | |
(ii) Alternatively, we can propose to the indenture trustee any other lawful manner of payment that is consistent with the requirements to any securities exchange on which such debt securities are listed for trading. If the indenture trustee thinks the proposal is practicable, payment will be made as proposed. |
Optional Redemption |
| 100% of the principal amount of the exchange notes of such series being redeemed on the redemption date; and | |
| the sum of the present values of the remaining scheduled payments of principal and interest on the exchange notes of such series being redeemed on that redemption date (not including any portion of any payments of interest accrued to the redemption date) until stated maturity discounted to the |
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redemption date on a semiannual basis at the Adjusted Treasury Rate (as defined below) plus 15 basis points in the case of 4.80% senior exchange notes and 20 basis points in the case of 5.45% senior exchange notes, in each case, as determined by the Reference Treasury Dealer (as defined below); |
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Other Redemption |
Satisfaction and Discharge |
| Detroit Edison has deposited or caused to be deposited with the indenture trustee an amount sufficient to pay and discharge the entire indebtedness on all outstanding notes of such series for principal (and premium, if any) and interest to the stated maturity or any redemption date, as the case may be; or Detroit Edison has deposited or caused to be deposited with the indenture trustee such amount of direct noncallable obligations of, or noncallable obligations the payment of principal of and interest on which is fully guaranteed by, the United States of America maturing as to principal and interest in such amounts and at such times as will, without consideration of any reinvestment thereof, be sufficient to pay and discharge the entire indebtedness on all outstanding notes of such series for principal (and premium, if any) and interest to the stated maturity or any redemption date, as the case may be; | |
| after giving effect to the satisfaction and discharge of the notes and to the release from the lien of the indenture of the mortgage bonds related to such notes and designated by us for such release, the aggregate principal amount of the mortgage bonds relating to all outstanding debt securities shall not be less than the aggregate principal amount of (and premium, if any) all outstanding debt securities of all such other series; | |
| Detroit Edison has paid or caused to be paid all other sums payable with respect to the notes of such series; and |
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| All other conditions specified with respect to the discharge of the notes of such series have been satisfied. |
Events of Default |
| failure to pay any interest on any note of that series when due, continued for 30 days; | |
| failure to pay principal of (or premium, if any) on the notes of that series when due; | |
| failure to comply with the provisions of the pledged mortgage bonds as set forth in the indenture; | |
| failure to perform or breach of any other covenant or warranty of Detroit Edison in the indenture (other than a covenant or warranty included in the indenture solely for the benefit of a series of securities other than such notes), continued for 60 days after written notice as provided in the indenture; | |
| certain events of bankruptcy, insolvency or reorganization involving Detroit Edison; and | |
| the occurrence of an event of default as such term is defined in the mortgage. |
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| that holder has previously given the indenture trustee written notice of a continuing event of default; | |
| the holders of at least 25% in aggregate principal amount of the outstanding notes of that series have made written request to the indenture trustee to institute proceedings in respect of that event of default and have offered the indenture trustee reasonable indemnity against costs and liabilities incurred in complying with such request; and | |
| for 60 days after receipt of notice, the indenture trustee has failed to institute any such proceeding and no direction inconsistent with such request has been given to the indenture trustee during such 60-day period by the holders of a majority in aggregate principal amount of outstanding notes of that series. |
Modification and Waiver |
| evidencing the succession of another entity to the company; | |
| adding one or more covenants of the company for the benefit of the holders of all or any series of securities, or surrendering any right or power conferred upon the company with respect to all or any series of securities; | |
| adding any additional events of default for all or any series of the securities; | |
| providing for the issuance of bearer securities; | |
| establishing the form or terms of securities of any series or any related coupons; | |
| evidencing and providing for the acceptance of appointment of a separate or successor indenture trustee; | |
| curing any ambiguity, correcting or supplementing any provision which may be inconsistent with any other provision of the indenture so long as such provisions do not adversely affect the interests of the holders in any material respect; | |
| modifying, eliminating or adding to the provisions of the indenture to such extent to qualify the indenture under the Trust Indenture Act; | |
| adding, deleting from or revising the conditions, limitations and restrictions on the authorized amount, terms or purposes of the issue, authentication and delivery of the securities; | |
| modifying, eliminating or adding to the provisions of any security to allow for such security to be held in certificated form; or | |
| otherwise modifying, deleting or adding any provisions of the indenture that will become effective only with respect to securities issued thereafter. |
| change the stated maturity of the principal of, or any installment of principal of or interest on, any notes; |
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| reduce the principal amount of, or premium or interest on, any notes; | |
| change the place of payment, coin or currency in which any notes or any premium or any interest thereon is payable; | |
| impair the right to institute suit for the enforcement of any payment on or after the stated maturity of any notes (or, in the case of redemption, on or after the redemption date); | |
| reduce the percentage in principal amount of the outstanding notes, the consent of whose holders is required in order to take certain actions; | |
| change any obligation of Detroit Edison to maintain an office or agency for payment on the notes; | |
| modify or change any of the provisions in the indenture with respect to the mortgage or any of the provisions of the mortgage or the mortgage bonds in a manner adverse to the holders of the notes affected thereby; or | |
| modify any of the above provisions. |
Consolidation, Merger and Sale of Assets |
Satisfaction of Payment Obligations on the Mortgage Bonds |
Redemption of Mortgage Bonds |
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Voting of Mortgage Bonds |
Release Date |
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Covenants |
Capitalization means the total of all the following items appearing on, or included in, our consolidated balance sheet: (i) liabilities for indebtedness maturing more than 12 months from the date of determination and (ii) common stock, common stock expense, accumulated other comprehensive income or loss, preferred stock, preference stock, premium on capital stock and retained earnings (however the foregoing may be designated), less, to the extent not otherwise deducted, the cost of shares of our capital stock held in our treasury, if any. Capitalization shall be determined in accordance with generally accepted accounting principles and practices applicable to the type of business in which we are engaged and may be determined as of a date not more than 60 days prior to the happening of the event for which the determination is being made. | |
Debt means any outstanding debt for money borrowed evidenced by notes, debentures, bonds or other securities, or guarantees of any debt. | |
Net Tangible Assets means the amount shown as total assets on our consolidated balance sheet, less (i) intangible assets including, but without limitation, such items as goodwill, trademarks, trade names, patents, unamortized debt discount and expense and other regulatory assets carried as an asset on our consolidated balance sheet and (ii) appropriate adjustments, if any, on account of minority interests. Net Tangible Assets shall be determined in accordance with generally accepted accounting principles and |
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practices applicable to the type of business in which we are engaged and may be determined as of a date not more than 60 days prior to the happening of the event for which such determination is being made. | |
Operating Property means (i) any interest in real property we own and (ii) any asset we own that is depreciable in accordance with generally accepted accounting principles, excluding, in either case, any interest of ours as lessee under any lease (except for a lease that results from a Sale and Lease-Back Transaction) which has been or would be capitalized on the books of the lessee in accordance with generally accepted accounting principles. | |
Sale and Lease-Back Transaction means any arrangement with any person providing for the leasing to us of any Operating Property (except for leases for a term, including any renewal or potential renewal, of not more than 48 months), which Operating Property has been or is to be sold or transferred by us to the person; provided, however, Sale and Lease-Back Transaction shall not include any arrangement first entered into prior to the date of the supplemental indenture relating to the notes and shall not include any transaction pursuant to which we sell Operating Property to, and thereafter purchase energy or services from, any entity, which transaction is ordered or authorized by any regulatory authority having jurisdiction over us or our operations or is entered into pursuant to any plan or program of industry restructuring ordered or authorized by any such regulatory authority. | |
Value means, with respect to a Sale and Lease-Back Transaction, as of any particular time, the amount equal to the greater of (i) our net proceeds from the sale or transfer of the property leased pursuant to the Sale and Lease-Back Transaction or (ii) the net book value of the property, as determined by us in accordance with generally accepted accounting principles at the time of entering into the Sale and Lease-Back Transaction, in either case multiplied by a fraction, the numerator of which shall be equal to the number of full years of the term of the lease that is part of the Sale and Lease-Back Transaction remaining at the time of determination and the denominator of which shall be equal to the number of full years of the term, without regard, in any case, to any renewal or extension options contained in the lease. |
Limitations on Liens |
| Liens on any Operating Property existing at the time of its acquisition and not created in contemplation of the acquisition; | |
| Liens on Operating Property of a corporation existing at the time the corporation is merged into or consolidated with us, or at the time the corporation disposes of substantially all of its properties (or those of a division) to us, provided that the Lien is not extended to property owned by us immediately prior to the merger, consolidation or other disposition and is not created in contemplation of the merger, consolidation or other disposition; | |
| Liens on Operating Property to secure the cost of acquisition, construction, development or substantial repair, alteration or improvement of such property or to secure indebtedness incurred to provide funds for any of these purposes or for reimbursement of funds previously expended for any of these purposes, provided the Liens are created or assumed contemporaneously with, or within 18 months after, the acquisition or the completion of substantial repair or alteration, construction, development or substantial improvement or within 6 months thereafter pursuant to a commitment for financing arranged with a lender or investor within such 18-month period; |
32
| Liens in favor of the United States or any state or any department, agency or instrumentality or political subdivision of the United States or any state, or for the benefit of holders of securities issued by any of these entities, to secure any Debt incurred for the purpose of financing all or any part of the purchase price or the cost of substantially repairing or altering, constructing, developing or substantially improving our Operating Property; or | |
| Any extension, renewal or replacement (or successive extensions, renewals, or replacements), in whole or in part, of any Lien referred to in the exceptions listed above, provided, however , that the principal amount of Debt secured thereby and not otherwise authorized by those exceptions listed above shall not exceed the principal amount of Debt, plus any premium or fee payable in connection with any such extension, renewal or replacement, so secured at the time of such extension, renewal or replacement. |
Limitations on Sale and Lease-Back Transactions |
Surrender and Exchange of Mortgage Bonds |
33
Security and Priority |
Issuance of Additional Mortgage Bonds |
| 60% of the cost or fair value to Detroit Edison (whichever is less) of property additions (as detailed below) that have not previously been taken into account for other purposes under the mortgage; | |
| retired bonds in the same principal amount that have not previously been taken into account for other purposes under the mortgage; and | |
| cash deposited with the mortgage trustee in the same amount. |
34
Release of Property |
Consolidation, Merger and Sale of Assets |
Modification |
35
| adding to the conditions, limitations and restrictions on the authentication and delivery of bonds under the mortgage; | |
| adding to the covenants and agreements of Detroit Edison; | |
| evidencing new series of bonds; | |
| evidencing the succession of another corporation to Detroit Edison; | |
| conveying, transferring, and assigning additional properties, securities, and franchises to the mortgage trustee; | |
| providing a sinking, amortization, improvement or other analogous fund for the purchase, redemption or other retirement of any bonds; or | |
| curing any ambiguities, or curing, correcting or supplementing any defect or inconsistent provision contained in the mortgage as supplemented. |
Events of Default and Remedies |
| failure to pay interest when due on the mortgage bonds, continued for 90 days; | |
| failure to pay principal of the mortgage bonds when due; | |
| failure to pay interest on outstanding underlying or prior lien bonds when due, continued for 90 days; | |
| failure to pay principal of outstanding underlying or prior lien bonds when due; | |
| failure to perform or observe covenants, agreements or conditions contained in the mortgage, continued for 90 days after notice of default; and | |
| insolvency or adjudication of bankruptcy or appointment of a receiver not removed or discharged within 90 days. |
| take possession of the trust estate and hold, use, operate, manage and control the same; | |
| sell the trust estate; and | |
| enforce its rights and the rights of the mortgage bondholders by appropriate judicial proceeding at law or in equity. |
36
| such holder has previously given the mortgage trustee notice of default; | |
| the holders of 25% in aggregate principal amount of outstanding mortgage bonds have requested the mortgage trustee, and afforded it a reasonable opportunity, to institute such proceeding in its own name; | |
| such holder or holders have offered the mortgage trustee adequate security and indemnity against costs, expenses and liabilities; and | |
| the mortgage trustee has refused or neglected to comply with such request within a reasonable time. |
Evidence of Compliance |
37
Depositary Procedures |
38
39
| dealers in securities or foreign currency; | |
| traders in securities who elect to use a mark-to-market method of accounting; | |
| tax-exempt entities; | |
| banks and other financial institutions; | |
| thrifts; | |
| insurance companies; | |
| persons that hold the notes as part of a straddle, a hedge against currency risk or a conversion transaction; | |
| expatriates; | |
| U.S. holders (as defined below) that have a functional currency other than the U.S. dollar; and | |
| pass-through entities (e.g., partnerships) or investors who hold the notes through pass-through entities. |
| you should not recognize taxable gain or loss when you receive exchange notes in exchange for outstanding notes; | |
| your holding period for the exchange notes should include your holding period for the outstanding notes; and | |
| your basis in the exchange notes should equal your basis in the outstanding notes. |
40
| a citizen or resident of the United States; | |
| a corporation or other entity taxable as a corporation created or organized under the laws of the United States, any of its states, or the District of Columbia; | |
| an estate the income of which is subject to U.S. federal income taxation regardless of its sources; or | |
| a trust if a U.S. court is able to exercise primary supervision over administration of the trust and one or more U.S. persons have authority to control all substantial decisions of the trust, or if the trust existed on April 20, 1996 and has validly elected to continue to be treated as a domestic trust. |
Taxation of Interest |
| when it accrues, if you use the accrual method of accounting for U.S. federal income tax purposes; or | |
| when you receive it, if you use the cash method of accounting for U.S. federal income tax purposes. |
Sale or Other Disposition of Exchange Notes |
Withholding Tax on Payments on the Exchange Notes |
| the holder is not: |
| an actual or constructive owner of 10% or more of the total voting power of all our voting stock; or | |
| a controlled foreign corporation related (directly or indirectly) to us through stock ownership. |
| such interest payments are not effectively connected with the conduct by the non-U.S. holder of a trade or business within the United States; and |
41
| we or our paying agent receives: |
| from the non-U.S. holder, a properly completed Form W-8BEN (or substitute Form W-8BEN or the appropriate successor form) under penalties of perjury, which provides the non-U.S. holders name and address and certifies that the non-U.S. holder of the note is a non-U.S. holder; or | |
| from a security clearing organization, bank or other financial institution that holds the notes in the ordinary course of its trade or business (a financial institution) on behalf of the non-U.S. holder, certification under penalties of perjury that such a Form W-8BEN (or substitute Form W-8BEN or the appropriate successor form) has been received by it, or by another such financial institution, from the non-U.S. holder, and a copy of the Form W-8BEN (or substitute Form W-8BEN or the appropriate successor form) is furnished to the payor. |
Sale or Other Disposition of Exchange Notes |
| such gain is income or gain that is effectively connected with the non-U.S. holders conduct of a trade or business in the United States and, if the non-U.S. holder is entitled to the benefits under an applicable tax treaty, is attributable to a permanent establishment or a fixed base in the United States; or | |
| the non-U.S. holder is an individual who is present in the U.S. for 183 days or more in the taxable year of the disposition and certain other conditions are satisfied. |
U.S. Federal Estate Tax |
42
43
44
| Annual Report on Form 10-K for the year ended December 31, 2004; and | |
| Current Report on Form 8-K dated February 7, 2005. |
45
II-1
II-2
II-3
Item 20.
Indemnification of Directors and Officers.
Table of Contents
Item 21.
Exhibits and Financial Statement Schedules.
Exhibit
Number
Description of Exhibit
3
.1
Restated Articles of The Detroit Edison Company, as filed
December 10, 1991 (Exhibit 13-3 to Form 10-Q for
quarter ended June 30, 1999)
3
.2
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)
4
.1*
Sixteenth Supplemental Indenture, dated as of April 1,
2005, to Collateral Trust Indenture, dated as of June 30,
1993, between The Detroit Edison Company and J.P. Morgan
Trust Company, National Association, as successor Trustee
4
.2
Form of Notes (included in Exhibit 4.1)
4
.3*
Supplemental Indenture, dated as of April 1, 2005, to
Mortgage and Deed of Trust, dated as of October 1, 1924,
between Detroit Edison and J.P. Morgan Trust Company,
National Association, as successor Trustee
4
.4
Form of Mortgage Bonds (included in Exhibit 4.3)
4
.5
Registration Rights Agreement, dated as of February 7,
2005, between The Detroit Edison Company and the Initial
Purchasers named therein (Exhibit 4-3 to Form 8-K dated
February 7, 2005)
5
.1*
Opinion of Thomas A. Hughes, Esq., Vice President and
General Counsel of The Detroit Edison Company
5
.2*
Opinion of Hunton & Williams LLP
12
.1*
Computation of Ratio of Earnings to Fixed Charges
23
.1*
Consent of Deloitte & Touche LLP
23
.2
Consent of Thomas A. Hughes, Esq., Vice President and
General Counsel of The Detroit Edison Company (included in
Exhibit 5.1)
23
.3
Consent of Hunton & Williams LLP (included in
Exhibit 5.2)
24
.1
Power of Attorney (included on signature pages of this
Registration Statement)
25
.1*
Form of T-1 Statement of Eligibility of the Trustee under the
Indenture
99
.1*
Form of Letter of Transmittal
99
.2*
Form of Notice of Guaranteed Delivery
*
Filed herewith
Item 22.
Undertakings
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the
effective registration statement; and
Table of Contents
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to the information
in the registration statement;
provided, however
, that the undertakings set forth in
subparagraphs (a)(i) and (a)(ii) above do not apply if the
information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the Registrant
pursuant to Sections 13 or 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in this
registration statement.
(b) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(c) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(d) To respond to requests for information that is
incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11 of 13 of this Form, within one business
day of receipt of such request, and to send the incorporated
documents by first class mail or other equally prompt means.
This includes information contained in documents filed
subsequent to the effective date of the registration statement
through the date of responding to the request.
(e) To supply by means of a post-effective amendment all
information concerning a transaction, and the company being
acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
(f) That, for purposes of determining any liability under
the Securities Act of 1933, each filing of the registrants
annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plans
annual report pursuant to section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the
registration statement, shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial
bona fide
offering thereof.
Table of Contents
THE DETROIT EDISON COMPANY | |
(Registrant) |
By: | /s/ Anthony F. Earley, Jr. |
|
|
Anthony F. Earley, Jr., | |
Chairman of the Board | |
President, Chief Executive Officer and | |
Chief Operating Officer |
Signature | Title | Date | ||||
/s/
Anthony F. Earley,
Jr.
|
Chairman of the Board, President,
Chief Executive Officer and Chief Operating Officer (Principal Executive Officer) |
April 7, 2005 | ||||
/s/
David E. Meador
|
Executive Vice President and
Chief Financial Officer and Director (Principal Financial Officer) |
April 7, 2005 | ||||
/s/
Daniel G.
Brudzynski
|
Vice President and Controller
(Principal Accounting Officer) |
April 7, 2005 | ||||
/s/
Susan M. Beale
|
Director | April 7, 2005 |
II-4
Exhibit | ||||
Number | Description of Exhibit | |||
3 | .1 | Restated Articles of The Detroit Edison Company, as filed December 10, 1991 (Exhibit 13-3 to Form 10-Q for quarter ended June 30, 1999) | ||
3 | .2 | 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) | ||
4 | .1* | Sixteenth Supplemental Indenture, dated as of April 1, 2005, to Collateral Trust Indenture, dated as of June 30, 1993, between The Detroit Edison Company and J.P. Morgan Trust Company, National Association, as successor Trustee | ||
4 | .2 | Form of Notes (included in Exhibit 4.1) | ||
4 | .3* | Supplemental Indenture, dated as of April 1, 2005, to Mortgage and Deed of Trust, dated as of October 1, 1924, between Detroit Edison and J.P. Morgan Trust Company, National Association, as successor Trustee | ||
4 | .4 | Form of Mortgage Bonds (included in Exhibit 4.3) | ||
4 | .5 | Registration Rights Agreement, dated as of February 7, 2005, between The Detroit Edison Company and the Initial Purchasers named therein (Exhibit 4-3 to Form 8-K dated February 7, 2005) | ||
5 | .1* | Opinion of Thomas A. Hughes, Esq., Vice President and General Counsel of The Detroit Edison Company | ||
5 | .2* | Opinion of Hunton & Williams LLP | ||
12 | .1* | Computation of Ratio of Earnings to Fixed Charges | ||
23 | .1* | Consent of Deloitte & Touche LLP | ||
23 | .2 | Consent of Thomas A. Hughes, Esq., Vice President and General Counsel of The Detroit Edison Company (included in Exhibit 5.1) | ||
23 | .3 | Consent of Hunton & Williams LLP (included in Exhibit 5.2) | ||
24 | .1 | Power of Attorney (included on signature pages of this Registration Statement) | ||
25 | .1* | Form of T-1 Statement of Eligibility of the Trustee under the Indenture | ||
99 | .1* | Form of Letter of Transmittal | ||
99 | .2* | Form of Notice of Guaranteed Delivery |
* | Filed herewith |
EXHIBIT 4.1
THE DETROIT EDISON COMPANY
AND
J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION
(SUCCESSOR TO BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION)
TRUSTEE
SIXTEENTH SUPPLEMENTAL INDENTURE
DATED AS OF APRIL 1, 2005
SUPPLEMENTING THE COLLATERAL TRUST INDENTURE
DATED AS OF JUNE 30, 1993
PROVIDING FOR
2005 SERIES AR 4.80% SENIOR NOTES DUE 2015
AND
2005 SERIES BR 5.45% SENIOR NOTES DUE 2035
SUPPLEMENTAL INDENTURE, dated as of the 1st day of April, 2005, between THE DETROIT EDISON COMPANY, a corporation organized and existing under the laws of the State of Michigan (the "Company"), and J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION (successor to Bank One Trust Company, National Association), a national banking association organized under the laws of the United States of America, having a corporate trust office in the City of Detroit, Michigan, as trustee (the "Trustee");
WHEREAS, the Company has heretofore executed and delivered to the Trustee a Collateral Trust Indenture dated as of June 30, 1993 (the "Original Indenture"), as supplemented, providing for the issuance by the Company from time to time of its debt securities; and
WHEREAS, the Company now desires to provide for the issuance of additional series of its senior debt securities pursuant to the Original Indenture; and
WHEREAS, the Company intends hereby to designate series of debt securities which shall have the benefit of the provisions of Article Four of the Original Indenture and the other related provisions of the Original Indenture relating to the grant of security, subject to the release provisions provided for herein, and which shall have the terms and variations from the provisions of the Original Indenture as set forth herein; and
WHEREAS, the Company, in the exercise of the power and authority conferred upon and reserved to it under the provisions of the Original Indenture, including Section 1001 thereof, and pursuant to appropriate resolutions of the Board of Directors, has duly determined to make, execute and deliver to the Trustee this Sixteenth Supplemental Indenture to the Original Indenture as permitted by Sections 201 and 301 of the Original Indenture in order to establish the form or terms of, and to provide for the creation and issue of, series of its debt securities under the Original Indenture, which shall be known as the 2005 Series AR 4.80% Senior Notes due 2015 and 2005 Series BR 5.45% Senior Notes due 2035; and
WHEREAS, all things necessary to make such debt securities, when executed by the Company and authenticated and delivered by the Trustee or any Authenticating Agent and issued upon the terms and subject to the conditions hereinafter and in the Original Indenture set forth against payment therefor, the valid, binding and legal obligations of the Company and to make this Sixteenth Supplemental Indenture a valid, binding and legal agreement of the Company, have been done;
NOW, THEREFORE, THIS SIXTEENTH SUPPLEMENTAL INDENTURE WITNESSETH that, in order to establish the terms of series of debt securities, and for and in consideration of the premises and of the covenants contained in the Original Indenture and in this Sixteenth Supplemental Indenture and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, it is mutually covenanted and agreed as follows:
ARTICLE ONE
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions. Each capitalized term that is used herein and is defined in the Original Indenture shall have the meaning specified in the Original Indenture unless such term is otherwise defined herein. The following terms shall have the respective meanings set forth below:
"Business Day" means any day other than a day on which banking institutions in the State of New York or the State of Michigan are authorized or obligated pursuant to law or executive order to close.
"Capitalization" means the total of all the following items appearing on, or included in, the consolidated balance sheet of the Company: (i) liabilities for indebtedness maturing more than 12 months from the date of determination; and (ii) common stock, common stock expense, accumulated other comprehensive income or loss, preferred stock, preference stock, premium on capital stock and retained earnings (however the foregoing may be designated), less, to the extent not otherwise deducted, the cost of shares of capital stock of the Company held in its treasury, if any. Subject to the foregoing, Capitalization shall be determined in accordance with generally accepted accounting principles and practices applicable to the type of business in which the Company is engaged and may be determined as of a date not more than 60 days prior to the happening of the event for which the determination is being made. In connection with such determination, the Company shall certify to the Trustee that it has, prior to making its final determination, consulted with the independent accountants regularly retained by the Company.
"Debt" means any outstanding debt for money borrowed evidenced by notes, debentures, bonds or other securities, or guarantees of any debt.
"Net Tangible Assets" means the amount shown as total assets on the consolidated balance sheet of the Company, less (i) intangible assets including, but without limitation, such items as goodwill, trademarks, trade names, patents, unamortized debt discount and expense and other regulatory assets carried as an asset on the Company's consolidated balance sheet, and (ii) appropriate adjustments, if any, on account of minority interests. Net Tangible Assets shall be determined in accordance with generally accepted accounting principles and practices applicable to the type of business in which the Company is engaged and may be determined as of a date not more than 60 days prior to the happening of the event for which such determination is being made. In connection with such determination, the Company shall certify to the Trustee that it has, prior to making its final determination, consulted with the independent accountants regularly retained by the Company.
"Operating Property" means (i) any interest in real property owned by the Company and (ii) any asset owned by the Company that is depreciable in accordance with generally accepted accounting principles, excluding, in either case, any interest of the Company as lessee under any lease (except for a lease that results from a Sale and Lease-Back Transaction) that has been or would be capitalized on the books of the lessee in accordance with generally accepted accounting principles.
"Pledged Bonds" means the related series of Bonds and any other Mortgage Bonds issued to secure Securities subject to the release provisions provided herein or in any other supplemental indenture to the Original Indenture.
"Registration Agreement" means the Registration Rights Agreement dated February 7, 2005, among the Company, Citigroup Global Markets Inc. and Barclays Capital Inc., as Representatives of the several initial purchasers referred to therein.
"Release Date" means the date as of which all Mortgage Bonds, (i) other than the Pledged Bonds, including the related series of Bonds, and (ii) other than outstanding Mortgage Bonds (exclusive of Pledged Bonds), which do not in aggregate principal amount exceed the greater of 5% of the Net Tangible Assets of the Company or 5% of the Capitalization of the Company, have been retired through payment, redemption or otherwise, provided that no default or Event of Default has occurred and, at such time, is continuing under the Original Indenture.
"Sale and Lease-Back Transaction" means any arrangement with any person providing for the leasing to the Company of any Operating Property (except for leases for a term, including any renewal or potential renewal, of not more than 48 months), which Operating Property has been or is to be sold or transferred by the Company to the person; provided, however, Sale and Lease-Back Transaction shall not include any arrangement first entered into prior to the date hereof and shall not include any transaction pursuant to which the Company sells Operating Property to, and thereafter purchases energy or services from, any entity, which transaction is ordered or authorized by any regulatory authority having jurisdiction over the Company or its operations or is entered into pursuant to any plan or program of industry restructuring ordered or authorized by any such regulatory authority.
"Securities Act" means the Securities Act of 1933, as amended.
"Substitute Mortgage" means a mortgage indenture of the Company, other than the Mortgage, designated by the Company to the Trustee as a Substitute Mortgage pursuant to Section 4.03 hereof. The lien of the Substitute Mortgage shall have such priority, and be with respect to such property, as shall be specified by the Company in its sole discretion.
"Substitute Mortgage Bonds" means any mortgage bonds issued by the Company under a Substitute Mortgage and delivered to the Trustee pursuant to Section 4.03 hereof
or pursuant to the comparable provision of any other supplemental indenture relating to Securities subject to the release provisions.
"Value" means, with respect to a Sale and Lease-Back Transaction, as of any particular time, the amount equal to the greater of (i) the net proceeds to the Company from the sale or transfer of the property leased pursuant to the Sale and Lease-Back Transaction or (ii) the net book value of the property, as determined by the Company in accordance with generally accepted accounting principles at the time of entering into the Sale and Lease-Back Transaction, in either case multiplied by a fraction, the numerator of which shall be equal to the number of full years of the term of the lease that is part of the Sale and Lease-Back Transaction remaining at the time of determination and the denominator of which shall be equal to the number of full years of the term, without regard, in any case, to any renewal or extension options contained in the lease.
SECTION 1.02. Section References. Each reference to a particular section set forth in this Sixteenth Supplemental Indenture shall, unless the context otherwise requires, refer to this Sixteenth Supplemental Indenture.
ARTICLE TWO
TITLE AND TERMS OF THE SECURITIES
SECTION 2.01. Title of the Securities; Stated Maturity. This Sixteenth Supplemental Indenture hereby establishes two separate series of Securities, which shall be known as the Company's "2005 Series AR 4.80% Senior Notes due 2015" (the "4.80% Notes") and the "2005 Series BR 5.45% Senior Notes due 2035" (the "5.45% Notes," and together with the 4.80% Notes, the "Notes"). For purposes of the Original Indenture, each series of the Notes shall separately constitute a single series of Securities. The Stated Maturity on which the principal of the 4.80% Notes shall be due and payable will be February 15, 2015. The Stated Maturity on which the principal of the 5.80% Notes shall be due and payable will be February 15, 2035.
SECTION 2.02. Certain Variations from the Original Indenture. (a) The
Notes shall have the benefit of the provisions of Article Four of the Original
Indenture and shall have the benefit of, or be subject to, the other related
provisions of the Original Indenture relating to the grant of security,
including (for avoidance of doubt and not for purposes of limitation) the
Granting Clause, the definitions of "Deliverable Mortgage Bonds," "Deliverable
Securities," "Designated Mortgage Bonds," "Grant," "Mortgage," "Mortgage Bonds,"
"Mortgage Trustee," "Previously Delivered Mortgage Bonds," and "Trust Estate,"
Section 301 (20), Sections 301 (a) (v), (ix), (x) and (xi), Sections 301 (b)
(ii) and (iii), Section 301 (d), and Sections 601(4) and (8), subject, in each
case, to the release provisions provided for in Section 4.02 herein. In
addition, on and after the Release Date, unless Substitute Mortgage Bonds are
issued to secure the Notes, the Notes shall have the benefit of the additional
covenants set forth in Article Three hereof.
(b) Section 503 of the Original Indenture shall apply to the Notes. The
following shall be an additional condition to defeasance of the Notes under
Section 503: the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (i) the Company has received from the Internal Revenue
Service a letter ruling, or there has been published by the Internal Revenue
Service a Revenue Ruling, or (ii) since the date of execution of this Sixteenth
Supplemental Indenture, there has been a change in the applicable U.S. Federal
income tax law, in either case to the effect that, the Holders of such
Outstanding Notes appertaining thereto will not recognize income, gain or loss
for U.S. Federal income tax purposes as a result of such defeasance and will be
subject to U.S. Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred, and, also, to the effect that, after the 123rd day after the date of
deposit, all money and other property as provided pursuant to Section 503 of the
Original Indenture (including the proceeds thereof) deposited or caused to be
deposited with the Trustee (or other qualifying trustee) pursuant to Section 503
of the Original Indenture to be held in trust will not be subject to any case or
proceeding (whether voluntary or involuntary) in respect of the Company under
any Federal or State bankruptcy, insolvency, reorganization or other similar
law, or any decree or order for relief in respect of the Company issued in
connection therewith.
SECTION 2.03. Amount and Denominations; DTC.
(a) The aggregate principal amount of Notes that may be issued under this Sixteenth Supplemental Indenture is limited initially to $200,000,000 (in the case of the 4.80% Notes), and $200,000,000 (in the case of the 5.45% Notes) (except, in each case, as provided in Section 301(2) of the Original Indenture); provided that the Company may, without the consent of the Holders of the Outstanding Notes of any series, "reopen" each series of the Notes so as to increase the aggregate principal amount of such Notes Outstanding in compliance with the procedures set forth in the Original Indenture, including Section 301 and Section 303 thereof, so long as any such additional Notes have the same terms, conditions and CUSIP number (including, without limitation, rights to security and to receive accrued and unpaid interest) as the Notes of such series then Outstanding. No additional Notes of a series may be issued if an Event of Default has occurred with respect to that series. The Notes shall be issuable only in fully registered form and, as permitted by Section 301 and Section 302 of the Original Indenture, in denominations of $1,000 and integral multiples thereof. The Notes will initially be issued in global form (the "Global Securities") under a book-entry system, registered in the name of The Depository Trust Company, as depository ("DTC"), or its nominee, which is hereby designated as "Depository" under the Indenture.
(b) If (i) the Depository notifies the Company that it is unwilling or unable to continue as Depository for such Global Securities or if at any time such Depository ceases to be a clearing agency registered under the Securities Exchange Act of 1934, and, in either such case, the Company does not appoint a successor Depository within 90 days thereafter, or (ii) there shall have occurred and be continuing an Event of Default or an event which, with the giving of notice or lapse of time, or both, would constitute an Event
of Default, certificates for the Notes will be registered and delivered to the Holders of record. Upon receipt of a withdrawal request from the Company, the Depository will notify its participants of the receipt of a withdrawal request from the Company, notifying participants that they may utilize the Depository's withdrawal procedures if they wish to withdraw their securities from the Depository. To the extent that the book-entry system is discontinued or, if the Company fails to appoint a successor Depository, certificates for the Notes will be registered and delivered to the Holders of record.
SECTION 2.04. Certain Terms of the Notes.
(a) The 4.80% Notes shall bear interest at the rate of 4.80% per annum and the 5.45% Notes shall bear interest at the rate of 5.45% per annum on the respective principal amount thereof from February 7, 2005, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, until the principal of such series of Notes becomes due and payable, and on any overdue principal and premium and (to the extent that payment of such interest is enforceable under applicable law) on any overdue installment of interest at the same rate per annum during such overdue period. The Notes shall bear additional interest ("Additional Interest") pursuant to the Registration Agreement upon the occurrence of any Registration Default (as defined therein). Additional Interest shall be payable on the applicable Interest Payment Date to the same persons and in the same manner as provided for herein for payment of ordinary interest. Interest on the Notes will be payable semi-annually in arrears on February 15 and August 15 of each year (each such date, an "Interest Payment Date"), commencing August 15, 2005. The amount of interest payable for any period shall be computed on the basis of a 360-day year and twelve 30-day months.
(b) In the event that any Interest Payment Date, redemption date or other date of Maturity of the Notes is not a Business Day, then payment of the amount payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of any such delay), in each case with the same force and effect as if made on such date. The interest installment so payable, and punctually paid or duly provided for, on any Interest Payment Date with respect to any Note will, as provided in the Original Indenture, be paid to the person in whose name the Note (or one or more Predecessor Securities, as defined in the Original Indenture) is registered at the close of business on the relevant record date for such interest installment, which shall be the fifteenth calendar day (whether or not a Business Day) prior to the relevant Interest Payment Date (the "Regular Record Date"). Any such interest installment not punctually paid or duly provided for shall forthwith cease to be payable to the registered Holders on such Regular Record Date, and may either be paid to the person in whose name the Note (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date to be fixed by the Trustee for the payment of such defaulted interest, notice whereof shall be given to the registered Holders of the applicable Notes not less than ten days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Notes may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Original Indenture. The principal of, and premium, if any, and the interest on the Notes shall be payable at the office or agency of the Company maintained for that purpose in the Borough of Manhattan, the City of New York, in any coin or currency of the United States of America that at the time of payment is legal tender for payment of public and private debts; provided, however, that payment of interest may be made at the option of the Company by check mailed to the registered Holder at the close of business on the Regular Record Date at such address as shall appear in the Security Register. Notwithstanding the foregoing, so long as the Notes are Global Securities and are held in book-entry form through the facilities of the Depository, payments on the Notes will be made to the Depository or its nominee in accordance with arrangements then in effect between the Trustee and the Depository.
(c) The Notes are not subject to repayment at the option of the Holders thereof and are not subject to any sinking fund. As provided in the forms of Notes attached hereto as Exhibit A and Exhibit B, respectively, the Notes are subject to optional redemption, as a whole or in part, by the Company prior to Stated Maturity of the principal thereof on the terms set forth therein. Except as modified in the forms of Notes, redemptions shall be effected in accordance with Article Twelve of the Original Indenture.
(d) The Notes shall have such other terms and provisions as are set forth in the forms of Notes attached hereto as Exhibit A and Exhibit B, as applicable (each of which are incorporated by reference in and made a part of this Sixteenth Supplemental Indenture as if set forth in full at this place).
SECTION 2.05. Forms of Notes. Attached hereto as Exhibit A is the form of the definitive 4.80% Note. Attached hereto as Exhibit B is the form of the definitive 5.45% Note. If the Company elects to have the Notes secured by Substitute Mortgage Bonds on and after the Release Date, the terms of such Notes shall be amended to make appropriate reference to the Substitute Mortgage and the Substitute Mortgage Bonds; provided, that the consent of Holders shall not be required in connection with such amendment.
ARTICLE THREE
ADDITIONAL COVENANTS
SECTION 3.01. Limitations on Liens. (a) From and after the Release Date, unless Substitute Mortgage Bonds are issued to secure the Notes, so long as any Notes are outstanding, the Company may not issue, assume, guarantee (including any contingent obligation to purchase) or permit to exist any Debt that is secured by any mortgage, security interest, pledge or lien ("Lien") of or upon any Operating Property owned by the Company, whether owned at the Release Date or subsequently acquired, without effectively securing the Notes (together with, if the Company shall so determine,
any other indebtedness of the Company ranking equally with the Notes) equally and ratably with the Debt (but only so long as the Debt is so secured).
The foregoing restriction will not apply to:
(i) Liens on any Operating Property existing at the time of its acquisition and not created in contemplation of the acquisition;
(ii) Liens on Operating Property of a corporation existing at the time the corporation is merged into or consolidated with the Company, or at the time the corporation disposes of substantially all of its properties (or those of a division) to the Company, provided that the Lien is not extended to property owned by the Company immediately prior to the merger, consolidation or other disposition and is not created in contemplation of the merger, consolidation or other disposition;
(iii) Liens on Operating Property to secure the cost of acquisition, construction, development or substantial repair, alteration or improvement of such property or to secure indebtedness incurred to provide funds for any of these purposes or for reimbursement of funds previously expended for any of these purposes, provided the Liens are created or assumed contemporaneously with, or within 18 months after, the acquisition or the completion of substantial repair or alteration, construction, development or substantial improvement or within 6 months thereafter pursuant to a commitment for financing arranged with a lender or investor within such 18-month period;
(iv) Liens in favor of the United States or any state or any department, agency or instrumentality or political subdivision of the United States or any state, or for the benefit of holders of securities issued by any of these entities, to secure any Debt incurred for the purpose of financing all or any part of the purchase price or the cost of substantially repairing or altering, constructing, developing or substantially improving the Operating Property; or
(v) Any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in the exceptions listed above, provided, however, that the principal amount of Debt secured thereby and not otherwise authorized by those exceptions listed above shall not exceed the principal amount of Debt, plus any premium or fee payable in connection with any such extension, renewal or replacement, so secured at the time of such extension, renewal or replacement.
(b) Notwithstanding the foregoing restrictions, the Company may issue, assume or guarantee Debt secured by a Lien which would otherwise be subject to the foregoing restrictions up to an aggregate amount which, together with all other of the Company's secured Debt (not including secured Debt permitted under any of the foregoing exceptions) and the Value of Sale and Lease-Back Transactions existing at such time (other than Sale and Lease-Back Transactions the proceeds of which have been applied to the retirement of certain indebtedness, Sale and Lease-Back Transactions in which the property involved would have been permitted to be subjected to a Lien under any of the foregoing exceptions, and Sale and Lease-Back Transactions that are permitted by the first sentence of Section 3.02 below), does not exceed the greater of 10% of the Company's Net Tangible Assets or 10% of the Company's Capitalization. The foregoing restrictions do not limit the Company's ability to place Liens on (i) the capital stock of any of the Company's subsidiaries or (ii) the assets of any of the Company's subsidiaries.
SECTION 3.02. Limitations on Sale and Lease-Back Transactions. So long as
the Notes are outstanding from and after the Release Date, unless Substitute
Mortgage Bonds are issued to secure the Notes, the Company may not enter into or
permit to exist any Sale and Lease-Back Transaction with respect to any
Operating Property (except for leases for a term, including any renewal or
potential renewal, of not more than 48 months), if the purchaser's commitment is
obtained more than 18 months after the later of the completion of the
acquisition, construction or development of the Operating Property or the
placing in operation of the Operating Property or of the Operating Property as
constructed or developed or substantially repaired, altered or improved. This
restriction will not apply if (a) the Company would be entitled pursuant to
Section 3.01(a) above to issue, assume, guarantee or permit to exist Debt
secured by a Lien on the Operating Property without equally and ratably securing
the Notes, (b) after giving effect to the Sale and Lease-Back Transaction,
pursuant to Section 3.01(b) above, the Company could incur, at least $1.00 of
additional Debt secured by Liens (other than Liens permitted by clause (a)), or
(c) the Company applies within 180 days an amount equal to, in the case of a
sale or transfer for cash, the net proceeds (not less than the fair value of the
Operating Property so leased), and, otherwise, an amount equal to the fair value
(as determined by the Board of Directors of the Company) of the Operating
Property so leased to the retirement of Notes or other Debt of the Company
ranking equally with the Notes; provided, however, that any such retirement of
Notes shall be in accordance with the terms and provisions of the Indenture and
the Notes; provided, further, that the amount to be applied to such retirement
of Notes or other Debt shall be reduced by an amount equal to the sum of (a) an
amount equal to the redemption price with respect to Notes delivered within such
one hundred eighty (180)-day period to the Trustee for retirement and
cancellation and (b) the principal amount, plus any premium or fee paid in
connection with any redemption in accordance with the terms of other Debt
voluntarily retired by the Company within such one hundred eighty (180)-day
period, excluding in each case retirements pursuant to mandatory sinking fund or
prepayment provisions and payments at Stated Maturity.
SECTION 3.03. Waiver. Section 1109 of the Original Indenture shall apply to the covenants set forth in Sections 3.01 and 3.02 above at any time such covenants are in effect.
ARTICLE FOUR
SECURITY AND RELEASE PROVISIONS
SECTION 4.01. Security. Subject to Section 4.02 below, as provided in and pursuant to Article Four of the Original Indenture, each series of the Notes will be secured as to payments of principal, interest and premium, if any, by a series of Mortgage Bonds (the "General and Refunding Mortgage Bonds, 2005 Series AR", in the case of the 4.80% Notes, and the "General and Refunding Mortgage Bonds, 2005 Series BR ", in the case of the 5.45% Notes, or singly or collectively, the "Bonds", the "Bonds of the related series" or the "related series of Bonds") of the Company to be issued concurrently with the issuance of the Notes under and secured by a Mortgage and Deed of Trust, dated as of October 1, 1924, between the Company and J.P. Morgan Trust Company, National Association, as successor trustee (the "Mortgage Trustee"), as amended and supplemented by various supplemental indentures, including the supplemental indenture, dated as of April 1, 2005, creating the Bonds (collectively, the "Mortgage"), pledged by the Company for the benefit of the Holders of the respective series of Notes to the Trustee under this Sixteenth Supplemental Indenture. The Bonds of each series shall be issued in an aggregate principal amount equal to the aggregate principal amount of the related series of the Notes.
SECTION 4.02. Release. Until the Release Date and subject to Article Four of the Original Indenture, the Bonds of the related series issued and delivered to the Trustee shall serve as security for any and all obligations of the Company under all Notes of the applicable series from time to time Outstanding, including, but not limited to (1) the full and prompt payment of the principal and premium, if any, on such Notes when and as the same shall become due and payable in accordance with the terms and provisions of the Indenture or such Notes, either at the Stated Maturity thereof, upon acceleration of the maturity thereof, upon redemption, or otherwise, and (2) the full and prompt payment of any interest on such Notes when and as the same shall become due and payable in accordance with the terms and provisions of this Indenture or such Notes including, if and to the extent provided for in such Notes, interest on overdue installments of principal and (to the extent permitted by law) interest on overdue installments of interest.
Each supplemental indenture to the Mortgage pursuant to which any Bonds are issued shall contain a provision to the effect that any payment by the Company hereunder of principal of or premium or interest on Notes which shall have been authenticated and delivered in connection with the issuance and delivery to the Trustee of such Bonds (other than by the application of the proceeds of a payment in respect of such Bonds) shall to the extent thereof, be deemed to satisfy and discharge the obligation of the
Company, if any, to make a payment of principal, premium or interest, as the case may be, in respect of such Bonds which is then due.
Notwithstanding anything in the Original Indenture to the contrary, from and after the Release Date, the obligation of the Company to make payment with respect to the principal of and premium, if any, and interest on the Bonds shall be deemed satisfied and discharged as provided in the supplemental indenture or indentures to the Mortgage creating such Bonds and the Bonds shall cease to secure in any manner Notes theretofore or subsequently issued; the Trustee shall thereupon surrender the Bonds to the Mortgage Trustee for cancellation and execute and deliver such proper instruments of release as may be required. From and after the Release Date, all Notes, whether theretofore or subsequently issued, shall, at the Company's option, either (i) become unsecured or (ii) be secured by Substitute Mortgage Bonds pursuant to Section 4.03 below, and any conditions to the issuance of Notes that refer or relate to Bonds or the Mortgage shall be inapplicable (except as such conditions shall be deemed to refer to Substitute Mortgage Bonds or a Substitute Mortgage pursuant to Section 4.03 below). From and after the Release Date, the Company shall not issue any additional Mortgage Bonds, including Pledged Bonds, under the Mortgage. Notice of the occurrence of the Release Date shall be given by the Trustee to the Holders of the Notes in the manner provided for in the Original Indenture not later than 30 days after the Company notifies the Trustee of the occurrence of the Release Date.
In connection with the establishment of the occurrence of the Release Date, the Trustee shall be entitled to receive, may presume the correctness of, and shall be fully protected in relying upon, an Officers' Certificate designating the Release Date and stating that the conditions to the occurrence of the Release Date have been satisfied.
When the obligation of the Company to make payments with respect to the principal of, and premium, if any, and interest on all or any part of the Bonds shall be satisfied or deemed satisfied pursuant to the Original Indenture or pursuant to this Sixteenth Supplemental Indenture, the Trustee shall, upon written request of the Company, deliver to the Company without charge therefor all of the Bonds so satisfied or deemed satisfied, together with such appropriate instruments of transfer or release as may be reasonably requested by the Company. All Bonds delivered to the Company in accordance with this Section shall be delivered by the Company to the Mortgage Trustee for cancellation.
SECTION 4.03. Substitute Mortgage Bonds.
(a) The Company shall notify the Trustee not less than 90 days prior to the Release Date (or such shorter period as the Company and the Trustee may agree) that the Company has determined to deliver to the Trustee on the Release Date Substitute Mortgage Bonds in an aggregate principal amount equal to the aggregate principal amount of Notes and any other Securities subject to the release provisions Outstanding on the Release Date, in trust for the benefit of the Holders from time to time of the Notes
and any other Securities subject to the release provisions issued under the Original Indenture, as supplemented, as security for any and all obligations of the Company under the Notes and any other Securities subject to the release provisions, including but not limited to, (1) the full and prompt payment of the principal of and premium, if any, on the Notes and any other Securities subject to the release provisions when and as the same shall become due and payable in accordance with the terms and provisions of the Original Indenture, as supplemented, or the Notes or such other Securities subject to the release provisions, either at the stated maturity thereof, upon acceleration of the maturity thereof or upon redemption, and (2) the full and prompt payment of any interest on the Notes and any other Securities subject to the release provisions when and as the same shall become due and payable in accordance with the terms and provisions of the Original Indenture, as supplemented, or the Notes or such other Securities subject to the release provisions.
(b) The Substitute Mortgage Bonds to be delivered pursuant to the notice described in Section 4.03(a) shall be delivered in separate series and issues corresponding to the series and issues of Notes and other Securities subject to the release provisions Outstanding on the Release Date, each series or issue of Substitute Mortgage Bonds having the same stated rate or rates of interest (or interest calculated in the same manner), Interest Payment Dates, stated maturity date and redemption provisions, and in the same aggregate principal amount, as the related series or issue of Notes or other Securities subject to the release provisions outstanding on the Release Date. The Company shall enter into a Substitute Mortgage for the issuance of Substitute Mortgage Bonds, and designate it as such in the notice.
(c) The notice described in Section 4.03(a) shall also state that on the Release Date the Company shall deliver to the Trustee a supplemental indenture to the Original Indenture that will provide, among other things, that upon the issuance of Notes and other Securities subject to the release provisions on or after the Release Date, the Company shall deliver to the Trustee in trust for the benefit of the Holders as described in Section 4.03(a) hereof, and the Trustee shall accept therefor, related series of Substitute Mortgage Bonds registered in the name of the Trustee and conforming to the requirements therein specified.
(d) The determination whether to deliver Substitute Mortgage Bonds shall be made in the Company's sole discretion and without any obligation to do so.
(e) In the event that the Company does not deliver the notice described in
Section 4.03(a), the Notes and other Securities subject to the release
provisions Outstanding on the Release Date shall, as of the Release Date, no
longer be entitled to the benefit of the pledge of the Pledged Bonds and shall
thereafter be general unsecured obligations of the Company.
(f) Article Four and related provisions of the Original Indenture shall apply to Substitute Mortgage Bonds pledged to the Trustee hereunder and the provisions thereof shall be deemed to refer to the Substitute Mortgage and the Substitute Mortgage
Bonds. If the Company elects to have the Notes secured by Substitute Mortgage Bonds on and after the Release Date, Article Four and related provisions may be amended to make appropriate reference to the Substitute Mortgage and the Substitute Mortgage Bonds; provided, that the consent of Holders shall not be required in connection with such amendment.
SECTION 4.04. Events of Default.
(a) On and after the Release Date, Section 601(8) of the Original Indenture shall no longer apply to the Notes.
For purposes of the Notes, Section 601(8) of the Original Indenture shall read "the occurrence of an "event of default" as such term is defined in the Mortgage; or"
(b) On and after the Release Date, if the Notes become secured by Substitute Mortgage Bonds pursuant to Section 4.03 above, the occurrence of a "default" (as defined in the Substitute Mortgage) shall constitute an Event of Default under Section 601 of the Original Indenture with respect to the Notes and the references in Section 601(4) of the Original Indenture and related provisions to "Mortgage Bonds" shall be deemed to refer to "Substitute Mortgage Bonds."
ARTICLE FIVE
MISCELLANEOUS PROVISIONS
The Trustee makes no undertaking or representations in respect of, and shall not be responsible in any manner whatsoever for and in respect of, the validity or sufficiency of this Sixteenth Supplemental Indenture or the proper authorization or the due execution hereof by the Company or for or in respect of the recitals and statements contained herein, all of which recitals and statements are made solely by the Company.
Except as expressly amended hereby and by the supplemental indenture appointing the Trustee as successor trustee, the Original Indenture shall continue in full force and effect in accordance with the provisions thereof and the Original Indenture is in all respects hereby ratified and confirmed. This Sixteenth Supplemental Indenture and all its provisions shall be deemed a part of the Original Indenture in the manner and to the extent herein and therein provided.
This Sixteenth Supplemental Indenture and the Notes shall be governed by, and construed in accordance with, the laws of the State of New York.
This Sixteenth Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Sixteenth Supplemental Indenture to be duly executed and attested, all as of the day and year first above written.
THE DETROIT EDISON COMPANY
By:__________________________________
Name:
Title:
ATTEST:
By:__________________________________
Name:
Title:
J.P. MORGAN TRUST COMPANY,
NATIONAL ASSOCIATION, as Trustee
By: _______________________________
Name:
Title:
ATTEST:
By: ___________________________
Name:
Title:
EXHIBIT A
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST COMPANY ("DTC"), TO A NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL, INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NO. R-__ $
THE DETROIT EDISON COMPANY
2005 Series AR 4.80% SENIOR NOTES DUE 2015
Principal Amount: $200,000,000
Authorized Denomination: $1,000
Regular Record Date: close of business on the 15th calendar day (whether or not a Business Day) prior to the relevant Interest Payment Date
Original Issue Date: February 7, 2005
Stated Maturity: February 15, 2015
Interest Payment Dates: February 15 and August 15 of each year, commencing August 15, 2005
Interest Rate: 4.80% per annum
THE DETROIT EDISON COMPANY, a corporation duly organized and existing under the laws of the State of Michigan (the "Company", which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, at the office or agency of the Company in The City of New York, New York, the principal sum of _____________________ ($____________) on February 15, 2015 (the "Stated Maturity"), in the coin or currency of the United States, and to pay interest thereon from February 7, 2005, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, in arrears on each Interest Payment Date as specified above, commencing on August 15, 2005, and on the Stated Maturity at the rate per annum shown above (the "Interest Rate") until the principal hereof is due and payable, and on any overdue
principal and premium and on any overdue installment of interest. The interest installment so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered on the Regular Record Date as specified above next preceding such Interest Payment Date. Except as otherwise provided in the Indenture, any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date to be fixed by the Trustee for the payment of such defaulted Interest, notice whereof shall be given to Holders of Notes of this series not less than ten days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange, if any, on which the Notes of this series shall be listed, and upon such notice as may be required by any such exchange, all as more fully provided in the Indenture.
Payments of interest on this Note will include interest accrued to but excluding the respective Interest Payment Dates. Interest payments for this Note shall be computed and paid on the basis of a 360-day year of twelve 30-day months. The Company shall pay interest on overdue principal and premium, if any, and, to the extent lawful, on overdue installments of interest at the rate per annum borne by this Note. In the event that any Interest Payment Date, Redemption Date or Maturity Date is not a Business Day, then the required payment of principal, premium, if any, and interest will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay), in each case with the same force and effect as if made on such date. "Business Day" means any day other than a day on which banking institutions in the State of New York or the State of Michigan are authorized or obligated pursuant to law or executive order to close.
Payment of principal of, premium, if any, and interest on the Notes shall be made in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. Payments of principal of, premium, if any, and interest on Notes represented by a Global Security shall be made by wire transfer of immediately available funds to the Holder of such Global Security, provided that, in the case of payments of principal and premium, if any, such Global Security is first surrendered to the Paying Agent (as defined in the Indenture). If any of the Notes of this series are no longer represented by a Global Security, (i) payments of principal, premium, if any, and interest due at the Stated Maturity or earlier redemption of such Securities shall be made at the office of the Paying Agent upon surrender of such Securities to the Paying Agent, and (ii) payments of interest shall be made, at the option of the Company, subject to such surrender where applicable, by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register.
UNTIL THE RELEASE DATE (AS DEFINED BELOW), THIS NOTE SHALL BE SECURED BY GENERAL AND REFUNDING MORTGAGE BONDS, 2005 Series AR (THE "MORTGAGE BONDS") ISSUED AND DELIVERED BY THE COMPANY TO THE TRUSTEE (AS DEFINED BELOW) UNDER THE COMPANY'S SUPPLEMENTAL INDENTURE DATED AS OF April 1, 2005, SUPPLEMENTING THE MORTGAGE AND DEED OF TRUST DATED AS OF OCTOBER 1, 1924 BETWEEN THE COMPANY AND J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION (THE "MORTGAGE TRUSTEE"), PLEDGED BY THE COMPANY FOR THE BENEFIT OF THE HOLDERS OF THE NOTES TO THE TRUSTEE UNDER THE INDENTURE (THE "MORTGAGE"). ON THE RELEASE DATE, THE NOTES SHALL CEASE TO BE SECURED BY SUCH MORTGAGE BONDS AND, AT THE COMPANY'S OPTION, SHALL EITHER (1) BECOME
UNSECURED GENERAL OBLIGATIONS OF THE COMPANY OR (2) BE SECURED BY SUBSTITUTE MORTGAGE BONDS UNDER A SUBSTITUTE MORTGAGE.
This Note shall not be entitled to any benefit under the Indenture hereinafter referred to, be valid or become obligatory for any purpose until the Certificate of Authentication hereon shall have been signed by or on behalf of the Trustee.
Unless the Certificate of Authentication hereon has been executed by the Trustee or a duly appointed Authentication Agent referred to herein, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
This Note is one of a duly authorized series of Securities of the Company (herein sometimes referred to as the "Notes"), specified in the Indenture, all issued or to be issued in one or more series under and pursuant to a Collateral Trust Indenture dated as of June 30, 1993 (the "Original Indenture") duly executed and delivered between the Company and J.P. Morgan Trust Company, National Association, as Trustee (herein referred to as the "Trustee"), as supplemented through and including a Sixteenth Supplemental Indenture dated as of April 1, 2005 (together with the Original Indenture, the "Indenture") between the Company and the Trustee, to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the registered Holders of the Notes and of the terms upon which the Notes are, and are to be, authenticated and delivered.
This Note is not subject to repayment at the option of the Holder hereof. Except as provided below, this Note is not redeemable by the Company prior to maturity and is not subject to any sinking fund.
This Note will be redeemable at the option of the Company, in whole at any time or in part from time to time (any such date of optional redemption, an "Optional Redemption Date," which shall be a "Redemption Date" for purposes of the Indenture), at an optional redemption price (which shall be a "Redemption Price" for purposes of the Indenture) equal to the greater of (i) 100% of the principal amount of this Note to be redeemed and (ii) the sum of the present values of the remaining scheduled payments of principal and interest of this Note to be redeemed (not including any portion of any payments of interest accrued to the Optional Redemption Date) until Stated Maturity, in each case discounted from their respective scheduled payment dates to such Optional Redemption Date on a semiannual basis (assuming a 360-day year consisting of 30-day months) at the Adjusted Treasury Rate (as defined below) plus 15 basis points, as determined by the Reference Treasury Dealer (as defined below), plus, in each case, accrued and unpaid interest thereon to the date of redemption.
Notwithstanding the foregoing, installments of interest on this Note that are due and payable on Interest Payment Dates falling on or prior to a Redemption Date will be payable on the Interest Payment Date to the registered Holders as of the close of business on the relevant Record Date.
"Adjusted Treasury Rate" means, with respect to any Optional Redemption Date, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, calculated on the third Business Day preceding such Optional Redemption Date assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Optional Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security selected by the Reference Treasury Dealer as having a maturity comparable to the remaining term of this Note that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of this Note.
"Comparable Treasury Price" means, with respect to any Optional Redemption
Date, (i) the average of the Reference Treasury Dealer Quotations for such
Optional Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than two such
Reference Treasury Dealer Quotations, the average of all such quotations, or
(iii) if only one Reference Treasury Dealer Quotation is received, such
quotation.
"Reference Treasury Dealer" means each of: (i) Barclays Capital Inc. and Citigroup Global Markets Inc. (or their respective affiliates which are Primary Treasury Dealers), and their respective successors; provided, however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer in the United States (a "Primary Treasury Dealer"), the Company will substitute therefor another Primary Treasury Dealer; and (ii) any other Primary Treasury Dealer(s) selected by the Trustee after consultation with the Company.
"Reference Treasury Dealer Quotation" means, with respect to each Reference Treasury Dealer and any Optional Redemption Date, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding such Optional Redemption Date.
Notice of any optional redemption will be mailed at least 30 days but not more than 60 days before the Optional Redemption Date to the Holder hereof at its registered address.
If notice has been provided in accordance with the Indenture and funds for the redemption of this Note called for redemption have been made available on the Redemption Date, this Note will cease to bear interest on the date fixed for redemption. Thereafter, the only right of the Holder hereof will be to receive payment of the Redemption Price.
The Company will notify the Trustee at least 60 days prior to giving notice of redemption (or such shorter period as is satisfactory to the Trustee) of the aggregate principal amount of Notes to be redeemed and the Redemption Date. If the Company elects to redeem all or a portion of the Notes, the redemption will be conditional upon receipt by the Paying Agent or the Trustee of monies sufficient to pay the Redemption Price. If the Notes are only partially redeemed by the Company, the Trustee shall select which Notes are to be redeemed in a manner it deems fair and appropriate in accordance with the terms of the Indenture.
In the event of redemption of this Note in part only, a new Note or Notes of this series for the unredeemed portion hereof will be issued in the name of the registered Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have occurred and be continuing, the principal of all of the Notes may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Note upon compliance by the Company with certain conditions set forth therein.
The Indenture contains provisions permitting the Company and the Trustee, with the consent of the registered Holders of not less than a majority in aggregate principal amount of the outstanding Securities of each series affected at the time, as defined in the Indenture, to execute supplemental indentures for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or of modifying in any manner the rights of the registered Holders of the Securities; provided, however, that no such supplemental indenture shall (i) extend the fixed maturity of any Securities of any series, or reduce the principal amount thereof, or reduce the rate of or extend the time of payment of interest thereon, or reduce any premium payable upon the redemption thereof, without the consent of the registered Holder of each Security so affected or (ii) reduce the aforesaid percentage of Securities, the registered Holders of which are required to consent to any such supplemental indenture, without the consent of the registered Holders of each Security then outstanding and affected thereby. The Indenture also contains provisions permitting (i) the registered Holders of at least 66 2/3% in aggregate principal amount of the Securities of all series at the time outstanding affected thereby, on behalf of the registered Holders of the Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and (ii) the registered Holders of a majority in aggregate principal amount of the Securities of all series at the time outstanding affected thereby, on behalf of the registered Holders of the Securities of such series, to waive certain past defaults under the Indenture and their consequences. Any such consent or waiver by the registered Holder of this Note (unless revoked as provided in the Indenture) shall be conclusive and binding upon such registered Holder and upon all future registered Holders and owners of this Note and of any Note issued in exchange hereof or in place hereof (whether by registration of transfer or otherwise), irrespective of whether or not any notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Note at the time and place and at the rate and in the coin or currency herein prescribed.
Prior to the Release Date, the Notes of this series shall be secured by a series of Mortgage Bonds (the "Related Series of Bonds"), delivered by the Company to the Trustee for the benefit of the Holders of the Notes. Reference is made to the Mortgage and the Indenture for a description of the rights of the Trustee as Holder of the Related Series of Bonds, the property mortgaged and pledged under the Mortgage and the rights of the Company and of the Mortgage Trustee in respect thereof, the duties and immunities of the Mortgage Trustee and the terms and conditions upon which the Related Series of Bonds are secured and the circumstances under which additional Mortgage Bonds may be issued.
FROM AND AFTER SUCH TIME AS ALL BONDS, OTHER THAN (1) PLEDGED BONDS, INCLUDING THE RELATED SERIES OF BONDS, AND (2) MORTGAGE BONDS (EXCLUSIVE OF PLEDGED BONDS), WHICH DO NOT IN AGGREGATE PRINCIPAL AMOUNT EXCEED THE GREATER OF FIVE PERCENT (5%) OF NET TANGIBLE ASSETS OR FIVE PERCENT (5%) OF CAPITALIZATION, HAVE BEEN RETIRED THROUGH PAYMENT, REDEMPTION OR OTHERWISE (INCLUDING THOSE MORTGAGE BONDS THE PAYMENT FOR WHICH HAS BEEN PROVIDED FOR IN ACCORDANCE WITH THE MORTGAGE) AT, BEFORE OR AFTER THE MATURITY THEREOF, PROVIDED THAT NO DEFAULT OR EVENT OF DEFAULT HAS OCCURRED
AND IS CONTINUING (THE "RELEASE DATE"), THE RELATED SERIES OF BONDS SHALL CEASE TO SECURE THE NOTES IN ANY MANNER.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note is registrable in the Security Register of the Company, upon surrender of this Note for registration of transfer at the office or agency of the Company in any place where the principal of and any interest on this Note are payable or at such other offices or agencies as the Company may designate, duly endorsed by or accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and the Security Registrar or any transfer agent duly executed by the registered Holder hereof or his or her attorney duly authorized in writing, and thereupon one or more new Notes of this series and of like tenor, of authorized denominations and for the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge will be made for any such transfer, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Note, the Company, the Trustee, any Paying Agent and any Security Registrar may deem and treat the registered Holder hereof as the absolute owner hereof (whether or not this Note shall be overdue and notwithstanding any notice of ownership or writing hereon made by anyone other than the Security Registrar) for the purpose of receiving payment of or on account of the principal hereof and interest due hereon and for all other purposes, and neither the Company nor the Trustee nor any Paying Agent nor any Security Registrar shall be affected by any notice to the contrary.
The Notes of this series are issuable only in fully registered form without coupons in denominations of $1,000 and any integral multiple thereof. This Global Security is exchangeable for Notes in definitive form only under certain limited circumstances set forth in the Indenture. As provided in the Indenture and subject to certain limitations therein set forth, Notes of this series are exchangeable for a like aggregate principal amount of Notes of this series of a different authorized denomination, as requested by the registered Holder surrendering the same.
As set forth in, and subject to the provisions of, the Indenture, no Holder of any Note will have any right to institute any proceeding with respect to the Indenture or for any remedy thereunder, unless (i) such Holder shall have previously given to the Trustee written notice of a continuing Event of Default with respect to the Notes of this series, (ii) the Holders of not less than 25% in principal amount of the outstanding Notes of this series shall have made written request, and offered reasonable indemnity, to the Trustee to institute such proceeding as trustee, (iii) the Trustee shall have failed to institute such proceeding within 60 days and (iv) the Trustee shall not have received from the Holders of a majority in principal amount of the outstanding Notes of this series a direction inconsistent with such request within such 60-day period; provided, however, that such limitations do not apply to a suit instituted by the Holder hereof for the enforcement of payment of the principal of or any interest on this Note on or after the respective due dates expressed herein.
All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Note to be duly executed and attested, all as of the day and year first above written.
THE DETROIT EDISON COMPANY
By: _______________________________
Name:
Title:
ATTEST:
By: ___________________________
Name:
Title:
[Corporate Seal]
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes described in the within mentioned Indenture.
J.P. MORGAN TRUST COMPANY,
NATIONAL ASSOCIATION
as Trustee
By ____________________________
Authorized Signatory
Date: ______________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please insert Social Security or Other Identifying Number of Assignee)
(Please print or type name and address, including zip code of assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and appointing such person attorneys to transfer the within Note on the books of the Issuer, with full power of substitution in the premises.
Dated: __________________
NOTICE: The signature of this assignment must correspond with the name as written upon the face of the within Note in every particular, without alteration or enlargement or any change whatever and NOTICE: Signature(s) must be guaranteed by a financial institution that is a member of the Securities Transfer Agents Medallion Program ("STAMP"), the Stock Exchange, Inc. Medallion Signature Program ("MSP"). When assignment is made by a guardian, trustee, executor or administrator, an officer of a corporation, or anyone in a representative capacity, proof of his or her authority to act must accompany this Note.
EXHIBIT B
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST COMPANY ("DTC"), TO A NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL, INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
NO. R- __ $____
THE DETROIT EDISON COMPANY
2005 SERIES BR 5.45% SENIOR NOTES DUE 2035
Principal Amount: $200,000,000
Authorized Denomination: $1,000
Regular Record Date: close of business on the 15th calendar day (whether or not a Business Day) prior to the relevant Interest Payment Date
Original Issue Date: February 7, 2005
Stated Maturity: February 15, 2035
Interest Payment Dates: February 15 and August 15 of each year, commencing August 15, 2005
Interest Rate: 5.45% per annum
THE DETROIT EDISON COMPANY, a corporation duly organized and existing under the laws of the State of Michigan (the "Company", which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, at the office or agency of the Company in The City of New York, New York, the principal sum of __________________ ($_____________) on February 15, 2035 (the "Stated Maturity"), in the coin or currency of the United States, and to pay interest thereon from February 7, 2005, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, in arrears on each Interest Payment Date as specified above, commencing on August 15, 2005, and on the Stated Maturity at the rate per annum shown above (the "Interest Rate") until the principal hereof is due and payable and on any overdue
principal and premium and on any overdue installment of interest. The interest installment so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered on the Regular Record Date as specified above next preceding such Interest Payment Date. Except as otherwise provided in the Indenture, any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date to be fixed by the Trustee, for the payment of such defaulted Interest notice whereof shall be given to Holders of Notes of this series not less than ten days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange, if any, on which the Notes of this series shall be listed, and upon such notice as may be required by any such exchange, all as more fully provided in the Indenture.
Payments of interest on this Note will include interest accrued to but excluding the respective Interest Payment Dates. Interest payments for this Note shall be computed and paid on the basis of a 360-day year of twelve 30-day months. The Company shall pay interest on overdue principal and premium, if any, and, to the extent lawful, on overdue installments of interest at the rate per annum borne by this Note. In the event that any Interest Payment Date, Redemption Date or Maturity Date is not a Business Day, then the required payment of principal, premium, if any, and interest will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay), in each case with the same force and effect as if made on such date. "Business Day" means any day other than a day on which banking institutions in the State of New York or the State of Michigan are authorized or obligated pursuant to law or executive order to close.
Payment of principal of, premium, if any, and interest on the Notes shall be made in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. Payments of principal of, premium, if any, and interest on Notes represented by a Global Security shall be made by wire transfer of immediately available funds to the Holder of such Global Security, provided that, in the case of payments of principal and premium, if any, such Global Security is first surrendered to the Paying Agent (as defined in the Indenture). If any of the Notes of this series are no longer represented by a Global Security, (i) payments of principal, premium, if any, and interest due at the Stated Maturity or earlier redemption of such Securities shall be made at the office of the Paying Agent upon surrender of such Securities to the Paying Agent, and (ii) payments of interest shall be made, at the option of the Company, subject to such surrender where applicable, by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register.
UNTIL THE RELEASE DATE (AS DEFINED BELOW), THIS NOTE SHALL BE SECURED BY GENERAL AND REFUNDING MORTGAGE BONDS, 2005 Series BR (THE "MORTGAGE BONDS") ISSUED AND DELIVERED BY THE COMPANY TO THE TRUSTEE (AS DEFINED BELOW) UNDER THE COMPANY'S SUPPLEMENTAL INDENTURE DATED AS OF April 1, 2005, SUPPLEMENTING THE MORTGAGE AND DEED OF TRUST DATED AS OF OCTOBER 1, 1924 BETWEEN THE COMPANY AND J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION (THE "MORTGAGE TRUSTEE"), PLEDGED BY THE COMPANY FOR THE BENEFIT OF THE HOLDERS OF THE NOTES TO THE TRUSTEE UNDER THE INDENTURE (THE "MORTGAGE"). ON THE RELEASE DATE, THE NOTES SHALL CEASE TO BE SECURED BY SUCH MORTGAGE BONDS AND, AT THE COMPANY'S OPTION, SHALL EITHER (1) BECOME
UNSECURED GENERAL OBLIGATIONS OF THE COMPANY OR (2) BE SECURED BY SUBSTITUTE MORTGAGE BONDS UNDER A SUBSTITUTE MORTGAGE.
This Note shall not be entitled to any benefit under the Indenture hereinafter referred to, be valid or become obligatory for any purpose until the Certificate of Authentication hereon shall have been signed by or on behalf of the Trustee.
Unless the Certificate of Authentication hereon has been executed by the Trustee or a duly appointed Authentication Agent referred to herein, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
This Note is one of a duly authorized series of Securities of the Company (herein sometimes referred to as the "Notes"), specified in the Indenture, all issued or to be issued in one or more series under and pursuant to a Collateral Trust Indenture dated as of June 30, 1993 (the "Original Indenture") duly executed and delivered between the Company and J.P. Morgan Trust Company, National Association, as Trustee (herein referred to as the "Trustee"), as supplemented through and including a Sixteenth Supplemental Indenture dated as of April 1, 2005 (together with the Original Indenture, the "Indenture") between the Company and the Trustee, to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the registered Holders of the Notes and of the terms upon which the Notes are, and are to be, authenticated and delivered.
This Note is not subject to repayment at the option of the Holder hereof. Except as provided below, this Note is not redeemable by the Company prior to maturity and is not subject to any sinking fund.
This Note will be redeemable at the option of the Company, in whole at any time or in part from time to time (any such date of optional redemption, an "Optional Redemption Date," which shall be a "Redemption Date" for purposes of the Indenture), at an optional redemption price (which shall be a "Redemption Price" for purposes of the Indenture) equal to the greater of (i) 100% of the principal amount of this Note to be redeemed and (ii) the sum of the present values of the remaining scheduled payments of principal and interest of this Note to be redeemed (not including any portion of any payments of interest accrued to the Optional Redemption Date) until Stated Maturity, in each case discounted from their respective scheduled payment dates to such Optional Redemption Date on a semiannual basis (assuming a 360-day year consisting of 30-day months) at the Adjusted Treasury Rate (as defined below) plus 20 basis points, as determined by the Reference Treasury Dealer (as defined below), plus, in each case, accrued and unpaid interest thereon to the date of redemption.
Notwithstanding the foregoing, installments of interest on this Note that are due and payable on Interest Payment Dates falling on or prior to a Redemption Date will be payable on the Interest Payment Date to the registered Holders as of the close of business on the relevant Record Date.
"Adjusted Treasury Rate" means, with respect to any Optional Redemption Date, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, calculated on the third Business Day preceding such Optional Redemption Date assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Optional Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security selected by the Reference Treasury Dealer as having a maturity comparable to the remaining term of this Note that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of this Note.
"Comparable Treasury Price" means, with respect to any Optional Redemption
Date, (i) the average of the Reference Treasury Dealer Quotations for such
Optional Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than two such
Reference Treasury Dealer Quotations, the average of all such quotations, or
(iii) if only one Reference Treasury Dealer Quotation is received, such
quotation.
"Reference Treasury Dealer" means each of: (i) Barclays Capital Inc. and Citigroup Global Markets Inc. (or their respective affiliates which are Primary Treasury Dealers), and their respective successors; provided, however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer in the United States (a "Primary Treasury Dealer"), the Company will substitute therefor another Primary Treasury Dealer; and (ii) any other Primary Treasury Dealer(s) selected by the Trustee after consultation with the Company.
"Reference Treasury Dealer Quotation" means, with respect to each Reference Treasury Dealer and any Optional Redemption Date, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding such Optional Redemption Date.
Notice of any optional redemption will be mailed at least 30 days but not more than 60 days before the Optional Redemption Date to the Holder hereof at its registered address.
If notice has been provided in accordance with the Indenture and funds for the redemption of this Note called for redemption have been made available on the Redemption Date, this Note will cease to bear interest on the date fixed for redemption. Thereafter, the only right of the Holder hereof will be to receive payment of the Redemption Price.
The Company will notify the Trustee at least 60 days prior to giving notice of redemption (or such shorter period as is satisfactory to the Trustee) of the aggregate principal amount of Notes to be redeemed and the Redemption Date. If the Company elects to redeem all or a portion of the Notes, the redemption will be conditional upon receipt by the Paying Agent or the Trustee of monies sufficient to pay the Redemption Price. If the Notes are only partially redeemed by the Company, the Trustee shall select which Notes are to be redeemed in a manner it deems fair and appropriate in accordance with the terms of the Indenture.
In the event of redemption of this Note in part only, a new Note or Notes of this series for the unredeemed portion hereof will be issued in the name of the registered Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have occurred and be continuing, the principal of all of the Notes may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Note upon compliance by the Company with certain conditions set forth therein.
The Indenture contains provisions permitting the Company and the Trustee, with the consent of the registered Holders of not less than a majority in aggregate principal amount of the outstanding Securities of each series affected at the time, as defined in the Indenture, to execute supplemental indentures for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or of modifying in any manner the rights of the registered Holders of the Securities; provided, however, that no such supplemental indenture shall (i) extend the fixed maturity of any Securities of any series, or reduce the principal amount thereof, or reduce the rate of or extend the time of payment of interest thereon, or reduce any premium payable upon the redemption thereof, without the consent of the registered Holder of each Security so affected or (ii) reduce the aforesaid percentage of Securities, the registered Holders of which are required to consent to any such supplemental indenture, without the consent of the registered Holders of each Security then outstanding and affected thereby. The Indenture also contains provisions permitting (i) the registered Holders of at least 66 2/3% in aggregate principal amount of the Securities of all series at the time outstanding affected thereby, on behalf of the registered Holders of the Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and (ii) the registered Holders of a majority in aggregate principal amount of the Securities of all series at the time outstanding affected thereby, on behalf of the registered Holders of the Securities of such series, to waive certain past defaults under the Indenture and their consequences. Any such consent or waiver by the registered Holder of this Note (unless revoked as provided in the Indenture) shall be conclusive and binding upon such registered Holder and upon all future registered Holders and owners of this Note and of any Note issued in exchange hereof or in place hereof (whether by registration of transfer or otherwise), irrespective of whether or not any notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Note at the time and place and at the rate and in the coin or currency herein prescribed.
Prior to the Release Date, the Notes of this series shall be secured by a series of Mortgage Bonds (the "Related Series of Bonds"), delivered by the Company to the Trustee for the benefit of the Holders of the Notes. Reference is made to the Mortgage and the Indenture for a description of the rights of the Trustee as Holder of the Related Series of Bonds, the property mortgaged and pledged under the Mortgage and the rights of the Company and of the Mortgage Trustee in respect thereof, the duties and immunities of the Mortgage Trustee and the terms and conditions upon which the Related Series of Bonds are secured and the circumstances under which additional Mortgage Bonds may be issued.
FROM AND AFTER SUCH TIME AS ALL BONDS, OTHER THAN (1) PLEDGED BONDS, INCLUDING THE RELATED SERIES OF BONDS, AND (2) MORTGAGE BONDS (EXCLUSIVE OF PLEDGED BONDS), WHICH DO NOT IN AGGREGATE PRINCIPAL AMOUNT EXCEED THE GREATER OF FIVE PERCENT (5%) OF NET TANGIBLE ASSETS OR FIVE PERCENT (5%) OF CAPITALIZATION, HAVE BEEN RETIRED THROUGH PAYMENT, REDEMPTION OR OTHERWISE (INCLUDING THOSE MORTGAGE BONDS THE PAYMENT FOR WHICH HAS BEEN PROVIDED FOR IN ACCORDANCE WITH THE MORTGAGE) AT, BEFORE OR AFTER THE MATURITY THEREOF, PROVIDED THAT NO DEFAULT OR EVENT OF DEFAULT HAS OCCURRED
AND IS CONTINUING (THE "RELEASE DATE"), THE RELATED SERIES OF BONDS SHALL CEASE TO SECURE THE NOTES IN ANY MANNER.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note is registrable in the Security Register of the Company, upon surrender of this Note for registration of transfer at the office or agency of the Company in any place where the principal of and any interest on this Note are payable or at such other offices or agencies as the Company may designate, duly endorsed by or accompanied by a written instrument or instruments of transfer in form satisfactory to the Company and the Security Registrar or any transfer agent duly executed by the registered Holder hereof or his or her attorney duly authorized in writing, and thereupon one or more new Notes of this series and of like tenor, of authorized denominations and for the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge will be made for any such transfer, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Note, the Company, the Trustee, any Paying Agent and any Security Registrar may deem and treat the registered Holder hereof as the absolute owner hereof (whether or not this Note shall be overdue and notwithstanding any notice of ownership or writing hereon made by anyone other than the Security Registrar) for the purpose of receiving payment of or on account of the principal hereof and interest due hereon and for all other purposes, and neither the Company nor the Trustee nor any Paying Agent nor any Security Registrar shall be affected by any notice to the contrary.
The Notes of this series are issuable only in fully registered form without coupons in denominations of $1,000 and any integral multiple thereof. This Global Security is exchangeable for Notes in definitive form only under certain limited circumstances set forth in the Indenture. As provided in the Indenture and subject to certain limitations therein set forth, Notes of this series are exchangeable for a like aggregate principal amount of Notes of this series of a different authorized denomination, as requested by the registered Holder surrendering the same.
As set forth in, and subject to the provisions of, the Indenture, no Holder of any Note will have any right to institute any proceeding with respect to the Indenture or for any remedy thereunder, unless (i) such Holder shall have previously given to the Trustee written notice of a continuing Event of Default with respect to the Notes of this series, (ii) the Holders of not less than 25% in principal amount of the outstanding Notes of this series shall have made written request, and offered reasonable indemnity, to the Trustee to institute such proceeding as trustee, (iii) the Trustee shall have failed to institute such proceeding within 60 days and (iv) the Trustee shall not have received from the Holders of a majority in principal amount of the outstanding Notes of this series a direction inconsistent with such request within such 60-day period; provided, however, that such limitations do not apply to a suit instituted by the Holder hereof for the enforcement of payment of the principal of or any interest on this Note on or after the respective due dates expressed herein.
All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Note to be duly executed and attested, all as of the day and year first above written.
THE DETROIT EDISON COMPANY
By: _______________________________
Name:
Title:
ATTEST:
By: ___________________________
Name:
Title:
[Corporate Seal]
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes described in the within mentioned Indenture.
J.P. MORGAN TRUST COMPANY,
NATIONAL ASSOCIATION
as Trustee
By _________________________
Authorized Signatory
Date: ______________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please insert Social Security or Other Identifying Number of Assignee)
(Please print or type name and address, including zip code of assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and appointing such person attorneys to transfer the within Note on the books of the Issuer, with full power of substitution in the premises.
Dated: __________________
NOTICE: The signature of this assignment must correspond with the name as written upon the face of the within Note in every particular, without alteration or enlargement or any change whatever and NOTICE: Signature(s) must be guaranteed by a financial institution that is a member of the Securities Transfer Agents Medallion Program ("STAMP"), the Stock Exchange, Inc. Medallion Signature Program ("MSP"). When assignment is made by a guardian, trustee, executor or administrator, an officer of a corporation, or anyone in a representative capacity, proof of his or her authority to act must accompany this Note.
EXHIBIT 4.3
INDENTURE
DATED AS OF APRIL 1, 2005
THE DETROIT EDISON COMPANY
(2000 2nd Avenue,
Detroit, Michigan 48226)
TO
J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION
(SUCCESSOR TO BANK ONE, NATIONAL ASSOCIATION)
611 Woodward Avenue, Detroit, Michigan 48226
AS TRUSTEE
SUPPLEMENTAL TO MORTGAGE AND DEED OF TRUST
DATED AS OF OCTOBER 1, 1924
PROVIDING FOR
(A) GENERAL AND REFUNDING MORTGAGE BONDS,
2005 SERIES AR,
(B) GENERAL AND REFUNDING MORTGAGE BONDS,
2005 SERIES BR,
AND
(C) RECORDING AND FILING DATA
TABLE OF CONTENTS*
PAGE ---- PARTIES 1 Original Indenture and Supplementals..................................................... 1 Issue of Bonds Under Indenture........................................................... 2 Bonds Heretofore Issued.................................................................. 2 Reason for Creation of New Series........................................................ 9 Bonds to be 2005 Series AR and 2005 Series BR............................................ 10 Further Assurance........................................................................ 10 Authorization of Supplemental Indenture.................................................. 10 Consideration for Supplemental Indenture................................................. 11 PART I. CREATION OF THREE HUNDRED FORTY-FIRST SERIES OF BONDS. GENERAL AND REFUNDING MORTGAGE BONDS, 2005 SERIES AR 11 Sec. 1. Terms of Bonds of 2005 Series AR................................................ 11 Release......................................................................... 14 Sec. 2. Redemption of Bonds of 2005 Series AR........................................... 14 Sec. 3. Redemption of Bonds of 2005 Series AR in event of acceleration of Notes......... 15 Sec. 4. Form of Bonds of 2005 Series AR................................................. 16 Form of Trustee's Certificate 18 PART II. CREATION OF THREE HUNDRED FORTY-SECOND SERIES OF BONDS. GENERAL AND REFUNDING MORTGAGE BONDS, 2005 SERIES BR 21 Sec. 1. Terms of Bonds of 2005 Series BR................................................ 21 Release......................................................................... 24 Sec. 2. Redemption of Bonds of 2005 Series BR........................................... 25 Sec. 3. Redemption of Bonds of 2005 Series BR in event of acceleration of Notes......... 25 Sec. 4. Form of Bonds of 2005 Series BR................................................. 26 Form of Trustee's Certificate................................................... 28 PART III. RECORDING AND FILING DATA 31 Recording and Filing of Original Indenture............................................... 31 Recording and Filing of Supplemental Indentures.......................................... 31 Recording of Certificates of Provision for Payment....................................... 36 PART IV. THE TRUSTEE 37 Terms and Conditions of Acceptance of Trust by Trustee................................... 37 PART V. MISCELLANEOUS 37 Confirmation of Section 318(c) of Trust Indenture Act.................................... 37 Execution in Counterparts................................................................ 37 Testimonium.............................................................................. 37 Execution by The Detroit Edison Company.................................................. 38 Acknowledgment of Execution by Company................................................... 39 Execution by Trustee..................................................................... 40 Acknowledgment of Execution by Trustee................................................... 41 Affidavit as to Consideration and Good Faith............................................. 42 |
PARTIES. SUPPLEMENTAL INDENTURE, dated as of the 1st day of April, in the year 2005, between THE DETROIT EDISON COMPANY, a corporation organized and existing under the laws of the State of Michigan and a public utility (hereinafter called the "Company"), party of the first part, and J.P. Morgan Trust Company, National Association (successor to Bank One, National Association), a trust company organized and existing under the laws of the United States, having a corporate trust office at 611 Woodward Avenue, Detroit, Michigan 48226, as successor 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 SUPPLEMENTALS. as 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, December 1, 1994, August 1, 1995, August 1, 1999, August 15, 1999 and January 1, 2000, April 1 |
15, 2000, August 1, 2000, March 15, 2001, May 1, 2001, August 15, 2001, September 15, 2001, September 17, 2002, October 15, 2002, December 1, 2002, August 1, 2003, March 15, 2004, July 1, 2004 and February 1, 2005 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 BONDS WHEREAS, the Indenture provides that said bonds shall be 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 WHEREAS, bonds in the principal amount of Eleven billion two HERETOFORE hundred twenty-three million six hundred twenty-seven thousand ISSUED. ($11,223,627,000) 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,
(99-107) Bonds of Series KKP Nos. 1-9 -- Principal Amount $34,890,000,
(108-122) Bonds of Series LLP Nos. 1-15 -- Principal Amount $8,850,000,
(123-143) Bonds of Series NNP Nos. 1-21 -- Principal Amount $47,950,000,
(144-161) Bonds of Series OOP Nos. 1-18 -- Principal Amount $18,880,000,
(162-180) Bonds of Series QQP Nos. 1-19 -- Principal Amount $13,650,000,
(181-195) Bonds of Series TTP Nos. 1-15 -- Principal Amount $3,800,000,
(196) Bonds of 1980 Series A -- Principal Amount $50,000,000,
(197-221) Bonds of 1980 Series CP Nos. 1-25 -- Principal Amount $35,000,000,
(222-232) Bonds of 1980 Series DP -- Principal Amount $10,750,000, Nos. 1-11
(233-248) Bonds of 1981 Series AP -- Principal Amount $124,000,000, Nos. 1-16
(249) Bonds of 1985 Series A -- Principal Amount $35,000,000,
(250) Bonds of 1985 Series B -- Principal Amount $50,000,000,
(251) Bonds of Series PP -- Principal Amount $70,000,000,
(252) Bonds of Series RR -- Principal Amount $70,000,000,
(253) Bonds of Series EE -- Principal Amount $50,000,000,
(254-255) Bonds of Series MMP and -- Principal Amount $5,430,000, MMP No. 2
(256) Bonds of Series T -- Principal Amount $75,000,000,
(257) Bonds of Series U -- Principal Amount $75,000,000,
(258) Bonds of 1986 Series B -- Principal Amount $100,000,000,
(259) Bonds of 1987 Series D -- Principal Amount $250,000,000,
(260) Bonds of 1987 Series E -- Principal Amount $150,000,000,
(261) Bonds of 1987 Series C -- Principal Amount $225,000,000,
(262) Bonds of Series V -- Principal Amount $100,000,000,
(263) Bonds of Series SS -- Principal Amount $150,000,000,
(264) Bonds of 1980 Series B -- Principal Amount $100,000,000,
(265) Bonds of 1986 Series C -- Principal Amount $200,000,000,
(266) Bonds of 1986 Series A -- Principal Amount $200,000,000,
(267) Bonds of 1987 Series B -- Principal Amount $175,000,000,
(268) Bonds of Series X -- Principal Amount $100,000,000,
(269) Bonds of 1987 Series F -- Principal Amount $200,000,000,
(270) Bonds of 1987 Series A -- Principal Amount $300,000,000,
(271) Bonds of Series Y -- Principal Amount $60,000,000,
(272) Bonds of Series Z -- Principal Amount $100,000,000,
(273) Bonds of 1989 Series A -- Principal Amount $300,000,000,
(274) Bonds of 1984 Series AP -- Principal Amount $2,400,000,
(275) Bonds of 1984 Series BP -- Principal Amount $7,750,000,
(276) Bonds of Series R -- Principal Amount $100,000,000,
(277) Bonds of Series S -- Principal Amount $150,000,000,
(278) Bonds of 1993 Series D -- Principal Amount $100,000,000,
(279) Bonds of 1992 Series E -- Principal Amount $50,000,000,
(280) Bonds of 1993 Series B -- Principal Amount $50,000,000,
(281) Bonds of 1989 Series BP -- Principal Amount $66,565,000,
(282) Bonds of 1990 Series A -- Principal Amount $194,649,000,
(283) Bonds of 1993 Series G -- Principal Amount $225,000,000,
(284) Bonds of 1993 Series K -- Principal Amount $160,000,000,
(285) Bonds of 1991 Series EP -- Principal Amount $41,480,000,
(286) Bonds of 1993 Series H -- Principal Amount $50,000,000,
(287) Bonds of 1999 Series D -- Principal Amount $40,000,000,
(288) Bonds of 1991 Series FP -- Principal Amount $98,375,000,
(289) Bonds of 1992 Series BP -- Principal Amount $20,975,000,
(290) Bonds of 1992 Series D -- Principal Amount $300,000,000,
(291) Bonds of 1992 Series CP -- Principal Amount $35,000,000,
(292) Bonds of 1993 Series C -- Principal Amount $225,000,000,
(293) Bonds of 1993 Series E -- Principal Amount $400,000,000,
(294) Bonds of 1993 Series J -- Principal Amount $300,000,000,
(295-300) Bonds of Series KKP Nos. 10-15 -- Principal Amount $179,590,000,
(301) Bonds of 1989 Series BP No. 2 -- Principal Amount $36,000,000,
(302) Bonds of 1993 Series FP -- Principal Amount $5,685,000,
(303) Bonds of 1993 Series IP -- Principal Amount $5,825,000,
(304) Bonds of 1994 Series AP -- Principal Amount $7,535,000,
(305) Bonds of 1994 Series BP -- Principal Amount $12,935,000,
(306) Bonds of 1994 Series DP -- Principal Amount $23,700,000,
(307) Bonds of 1994 Series C -- Principal Amount $200,000,000, and
(308) Bonds of 2000 Series A -- Principal Amount $220,000,000,
all of which have either been retired and cancelled, or no longer represent obligations of the Company, having matured or 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;
(309) 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 One hundred fifty-two million two hundred fifty-six thousand dollars ($152,256,000) principal amount havetofore been retired and One hundred four million six hundred seventy-six thousand dollars ($104,676,000) principal amount are outstanding at the date hereof;
(310) Bonds of 1990 Series C in the principal amount of Eighty-five million four hundred seventy-five thousand dollars ($85,475,000) of which Fifty-four million seven hundred four thousand dollars ($54,704,000) principal amount have heretofore been retired and Thirty million seven hundred seventy-one thousand dollars ($30,771,000) principal amount are outstanding at the date hereof;
(311) 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;
(312) 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;
(313) 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;
(314) 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;
(315) 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;
(316) 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;
(317) Bonds of 1995 Series AP in the principal amount of Ninety-seven million dollars ($97,000,000), all of which are outstanding at the date hereof;
(318) Bonds of 1995 Series BP in the principal amount of Twenty-two million, one hundred seventy-five thousand dollars ($22,175,000), all of which are outstanding at the date hereof;
(319) Bonds of 1999 Series AP in the principal amount of One hundred eighteen million three hundred sixty thousand dollars ($118,360,000), all of which are outstanding at the date hereof;
(320) Bonds of 1999 Series BP in the principal amount of Thirty-nine million seven hundred forty-five thousand dollars ($39,745,000), all of which are outstanding of the date hereof;
(321) Bonds of 1999 Series CP 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;
(322) Bonds of 2000 Series B in the principal amount of Fifty million seven hundred forty-five thousand dollars ($50,745,000), all of which are outstanding at the date hereof;
(323) Bonds of 2001 Series AP in the principal amount of Thirty-one million ($31,000,000), all of which are outstanding at the date hereof;
(324) Bonds of 2001 Series BP in the principal amount of Eighty-two million three hundred fifty thousand ($82,350,000), all of which are outstanding at the date hereof;
(325) Bonds of 2001 Series CP in the principal amount of One hundred thirty-nine million eight hundred fifty-five thousand dollars ($139,855,000), all of which are outstanding at the date hereof;
(326) Bonds of 2001 Series D in the principal amount of Two hundred million dollars ($200,000,000), all of which are outstanding at the date hereof;
(327) Bonds of 2001 Series E in the principal amount of Five hundred million dollars ($500,000,000), all of which are outstanding at the date hereof;
(328) Bonds of 2002 Series A in the principal amount of Two hundred twenty-five million dollars ($225,000,000), all of which are outstanding at the date hereof;
(329) Bonds of 2002 Series B in the principal amount of Two hundred twenty-five million dollars ($225,000,000), all of which are outstanding at the date hereof;
(330) Bonds of 2002 Series C in the principal amount of Sixty-four million three hundred thousand dollars ($64,300,000), all of which are outstanding at the date hereof;
(331) Bonds of 2002 Series D in the principal amount of Fifty-five million nine hundred seventy-five thousand dollars ($55,975,000), all of which are outstanding at the date hereof;
(332) Bonds of 2003 Series A in the principal amount of Forty-nine million dollars ($49,000,000), all of which are outstanding at the date hereof;
(333) INTENTIONALLY RESERVED FOR 1990 SERIES D;
(334) INTENTIONALLY RESERVED FOR 1990 SERIES E;
(335) INTENTIONALLY RESERVED FOR 1990 SERIES F;
(336) Bonds of 2004 Series A in the principal amount of Thirty-six million dollars ($36,000,000), all of which are outstanding at the date hereof;
(337) Bonds of 2004 Series B in the principal amount of Thirty-one million nine hundred eighty thousand dollars ($31,980,000), all of which are outstanding at the date hereof; and
(338) Bonds of 2004 Series D in the principal amount of Two hundred million dollars ($200,000,000), all of which are outstanding at the date hereof;
(339) Bonds of 2005 Series A in the principal amount of Two hundred million dollars ($200,000,000), all of which are outstanding at the date hereof;
(340) Bonds of 2005 Series B in the principal amount of Two hundred million dollars ($200,000,000), all of which are outstanding at the date hereof; and
accordingly, the Company has issued and has presently outstanding Three billion thirty million one hundred eighty-two thousand dollars ($3,030,182,000) aggregate principal amount of its General and Refunding Mortgage Bonds (the "Bonds") at the date hereof.
REASON FOR WHEREAS, the Company intends to issue series of Notes under CREATION OF the Note Indenture herein referred to, and, pursuant to the NEW SERIES. Note Indenture, the Company has agreed to issue its General and Refunding Mortgage Bonds under the Indenture in 9 |
order further to secure its obligations with respect to such Notes; and BONDS TO BE 2005 WHEREAS, for such purpose the Company desires by this SERIES AR AND 2005 Supplemental Indenture to create two new series of bonds, to SERIES BR. be designated "General and Refunding Mortgage Bonds, 2005 Series AR" in the aggregate principal amount of two hundred million dollars ($200,000,000) and "General and Refunding Mortgage Bonds, 2005 Series BR" in the aggregate principal amount of two hundred million dollars ($200,000,000), to be authenticated and delivered pursuant to Section 8 of Article III of the Indenture; and FURTHER ASSURANCE. WHEREAS, the Original Indenture, by its terms, includes 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; 10 |
CONSIDERATION FOR NOW, THEREFORE, THIS INDENTURE WITNESSETH: That The Detroit SUPPLEMENTAL Edison Company, in consideration of the premises and of the INDENTURE. 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 FORTY-FIRST SERIES OF BONDS, GENERAL AND REFUNDING MORTGAGE BONDS, 2005 SERIES AR BONDS TERMS OF SECTION 1. The Company hereby creates the three hundred BONDS OF forty-first series of bonds to be issued under and secured 2005 SERIES AR. 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, 2005 Series AR" (elsewhere herein referred to as the "bonds of 2005 Series AR"). The aggregate principal amount of bonds of 2005 Series AR 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, and except further that the Company may, without the consent of any holder of the bonds of 2005 Series AR, "reopen" the bonds of 2005 Series AR so as to increase the aggregate principal amount outstanding to equal the aggregate principal amount of Notes (as defined below) outstanding upon a "reopening" of the series, so long as any additional bonds of 2005 Series AR have the same tenor and terms as the bonds of 2005 Series AR established hereby. Subject to the release provisions set forth below, each bond of 2005 Series AR is to be irrevocably assigned to, and registered in the name of, J.P. Morgan Trust Company, National Association, as trustee, or a successor trustee (said trustee or any successor trustee being hereinafter referred to as the "Note Indenture Trustee"), under the collateral trust indenture, dated as of June 30, 1993 (the "Note Indenture"), as supplemented, between the Note Indenture Trustee and the Company, 11 |
to secure payment of the Company's 2005 Series AR 4.80% Senior Notes due 2015 (for purposes of this Part I, the "4.80% Notes"). The bonds of 2005 Series AR shall be issued as registered bonds without coupons in denominations of a multiple of $1,000. The bonds of 2005 Series AR shall be issued in the aggregate principal amount of $200,000,000, shall mature on February 15, 2015 (subject to earlier redemption or release) and shall bear interest at the rate of 4.80% per annum, payable semi-annually in arrears on February 15 and August 15 of each year (commencing August 15, 2005), 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 2005 Series AR shall bear additional interest ("Additional Interest") pursuant to that certain Registration Rights Agreement, dated as of February 7, 2005, among the Company and the other parties named therein upon the occurrence of any Registration Default (as defined therein). Additional Interest shall be payable on the applicable interest payment dates to the same persons and in the same manner as provided herein for payments of ordinary interest. The bonds of 2005 Series AR 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 2005 Series AR 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 2005 Series AR 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 2005 Series AR, 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 August 15, 2005, in which case interest shall be payable from February 7, 2005. The bonds of 2005 Series AR 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 12 |
(with such further designation as may be appropriate and desirable to indicate by such designation the form, series and denomination of bonds of 2005 Series AR). Until bonds of 2005 Series AR 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 2005 Series AR in temporary form, as provided in Section 10 of Article II of the Indenture. Temporary bonds of 2005 Series AR, if any, may be printed and may be issued in authorized denominations in substantially the form of definitive bonds of 2005 Series AR, 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 2005 Series AR that 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 calendar day (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 2005 Series AR, 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 2005 Series AR 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 2005 Series AR 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 2005 Series AR 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. Bonds of 2005 Series AR shall not be assignable or transferable except as may be set forth under Section 405 of the Note Indenture or in the supplemental note indenture relating to the 4.80% Notes, 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 13 |
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 2005 Series AR shall in the same manner be exchangeable for a like aggregate principal amount of bonds of 2005 Series AR 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 2005 Series AR during any period of ten (10) days next preceding any redemption date for such bonds. Bonds of 2005 Series AR, 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 4.80% Notes, 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 2005 Series AR in a principal amount equal to the principal amount of such 4.80% Notes, 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. RELEASE. From and after the Release Date (as defined in the Note Indenture), the bonds of 2005 Series AR shall be deemed fully paid, satisfied and discharged and the obligation of the Company thereunder shall be terminated. On the Release Date, the bonds of 2005 Series AR shall be surrendered to and canceled by the Trustee. The Company covenants and agrees that, prior to the Release Date, it will not take any action that would cause the outstanding principal amount of the bonds of 2005 Series AR to be less than the then outstanding principal amount of the 4.80% Notes. REDEMPTION SECTION 2. Bonds of 2005 shall be redeemed on the OF respective Series dates and in the respective principal BONDS OF 2005 amounts which correspond to the AR. redemption dates for, SERIES AR and the principal amounts to be redeemed of, the 4.80% Notes. 14 |
In the event the Company elects to redeem any 4.80% Notes prior to maturity in accordance with the provisions of the Note Indenture, the Company shall give the Trustee notice of redemption of bonds of 2005 Series AR on the same date as it gives notice of redemption of 4.80% Notes to the Note Indenture Trustee. REDEMPTION SECTION 3. In the event of an Event of Default under the OF Note Indenture and the acceleration of all 4.80% Notes, the BONDS OF 2005 bonds of 2005 Series AR shall be redeemable in whole upon SERIES AR IN receipt by the Trustee of a written demand (hereinafter EVENT OF called a "Redemption Demand") from the Note Indenture ACCELERATION Trustee stating that there has occurred under the Note OF Indenture both an Event of Default and a declaration of NOTES. acceleration of payment of principal, accrued interest and premium, if any, on the 4.80% Notes, specifying the last date to which interest on the 4.80% Notes 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 (5) 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 (10) 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 (10) nor less than five (5) days prior to the Demand Redemption Date. Each bond of 2005 Series AR shall be redeemed by the Company on the Demand Redemption Date therefor upon surrender thereof by the Note Indenture Trustee to the Trustee at a redemption price equal to the 15 |
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 4.80% Notes; provided, however, that in the event of a receipt by the Trustee of a notice that, pursuant to Section 602 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 SECTION 4. The bonds of 2005 Series AR and the form of OF BONDS OF Trustee's Certificate to be endorsed on such bonds shall be 2005 SERIES AR. substantially in the following forms, respectively: THE DETROIT EDISON COMPANY GENERAL AND REFUNDING MORTGAGE BOND 2005 SERIES AR 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 supplemented as of April 1, 2005, between The Detroit Edison Company and J.P. Morgan Trust Company, National Association, as Note Indenture 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 Indenture. $ No. R- THE DETROIT EDISON COMPANY (hereinafter called the "Company"), a corporation of the State of Michigan, for value received, hereby promises to pay to J.P. Morgan Trust Company, 16 |
National Association, as Note Indenture 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 February 15, 2015 (subject to earlier redemption or release) and interest thereon at the rate of 4.80% per annum, in like lawful money, from February 7, 2005, 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 August 15, 2005), 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 and in the supplemental indenture pursuant to which this bond has been issued. Under a Collateral Trust Indenture, dated as of June 30, 1993, as amended and as further supplemented as of April 1, 2005 (hereinafter called the "Note Indenture"), between the Company and J.P. Morgan Trust Company, National Association, as trustee (hereinafter called the "Note Indenture Trustee"), the Company has issued its 2005 Series AR 4.80% Senior Notes due 2015 (the "Notes"). This bond was originally issued to the Note Indenture Trustee so as to secure the payment of the Notes. Payments of principal of, or premium, if any, or interest on, the Notes 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 provisions shall for all purposes have the same effect as though set forth in this place. This bond shall not be valid or become obligatory for any purpose until J.P. Morgan Trust Company, National Association, the Trustee under the 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 by an authorized officer, with his 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 Vice President and Corporate Secretary or Assistant Corporate Secretary by manual or facsimile signature. 17 |
Dated: _____________ |
THE DETROIT EDISON COMPANY
By: AUTHORIZED OFFICER [SEAL] Attest: AUTHORIZED OFFICER [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. J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee By _______________________ Authorized Officers [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 2005 Series AR, 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 J.P. Morgan Trust Company, National Association, as successor in interest to Bank One, National Association, as Trustee, to which Indenture and all indentures supplemental thereto (including the Supplemental Indenture dated as of April 1, 2005) reference is hereby made for a description of the properties and franchises mortgaged and 18 |
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, 2005, 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 prior to the Release Date 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 Indenture and the acceleration of the principal of the Notes. 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 2005 Series AR (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. 19 |
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 Notes, 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 2005 Series AR in a principal amount equal to the principal amount of such Notes, 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 Indenture or in the supplemental indenture relating to the Notes, 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 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. From and after the Release Date (as defined in the Note Indenture), the bonds of 2005 Series AR shall be deemed fully paid, satisfied and discharged and the obligation of the Company thereunder shall be terminated. On the Release Date, the bonds of 2005 Series AR shall be surrendered to and cancelled by the Trustee. The Company covenants and agrees that, prior to the Release Date, it will not take any action 20 |
that would cause the outstanding principal amount of the bond of 2005 Series AR to be less than the then outstanding principal amount of the Notes. 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. PART II. CREATION OF THREE HUNDRED FORTY-SECOND SERIES OF BONDS, GENERAL AND REFUNDING MORTGAGE BONDS, 2005 SERIES BR BONDS TERMS OF SECTION 1. The Company hereby creates the three hundred BONDS OF series of bonds to be issued under and secured by the 2005 SERIES BR. Original forty-second 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, sby the title "General and Refunding Mortgage Bonds, 2005 Series BR" (elsewhere herein referred to as the "bonds of 2005 Series BR"). The aggregate principal amount of bonds of 2005 Series BR 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, and except further that the Company may, without the consent of any holder of the bonds of 2005 Series BR, "reopen" the bonds of 2005 Series BR so as to increase the aggregate principal amount outstanding to equal the aggregate principal amount of Notes (as defined below) outstanding upon a "reopening" of the series, so long as any additional bonds of 2005 Series BR have the same tenor and terms as the bonds of 2005 Series BR established hereby. Subject to the release provisions set forth below, each bond of 2005 Series BR is to be irrevocably assigned to, and registered in the name of, 21 |
J.P. Morgan Trust Company, National Association, as trustee, or a successor trustee (said trustee or any successor trustee being hereinafter referred to as the "Note Indenture Trustee"), under the collateral trust indenture, dated as of June 30, 1993 (the "Note Indenture"), as supplemented, between the Note Indenture Trustee and the Company, to secure payment of the Company's 2005 Series BR 5.45% Senior Notes due 2035 (for purposes of this Part II, the "5.45% Notes"). The bonds of 2005 Series BR shall be issued as registered bonds without coupons in denominations of a multiple of $1,000. The bonds of 2005 Series BR shall be issued in the aggregate principal amount of $200,000,000, shall mature on February 15, 2035 (subject to earlier redemption or release) and shall bear interest at the rate of 5.45% per annum, payable semi-annually in arrears on February 15 and August 15 of each year (commencing August 15, 2005), 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 2005 Series BR shall bear additional interest ("Additional Interest") pursuant to that certain Registration Rights Agreement, dated as of February 7, 2005, among the Company and the other parties named therein upon the occurrence of any Registration Default (as defined therein). Additional Interest shall be payable on the applicable interest payment dates to the same persons and in the same manner as provided herein for payments of ordinary interest. The bonds of 2005 Series BR 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 2005 Series BR 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 2005 Series BR 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 2005 Series BR, 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 August 15, 2005, in which case interest shall be payable from February 7, 2005. 22 |
The bonds of 2005 Series BR 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 2005 Series BR). Until bonds of 2005 Series BR 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 2005 Series BR in temporary form, as provided in Section 10 of Article II of the Indenture. Temporary bonds of 2005 Series BR, if any, may be printed and may be issued in authorized denominations in substantially the form of definitive bonds of 2005 Series BR, 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 2005 Series BR that 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 calendar day (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 2005 Series BR, 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 2005 Series BR 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 2005 Series BR 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 2005 Series BR 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. Bonds of 2005 Series BR shall not be assignable or transferable except as may be set forth under Section 405 of the Note Indenture or in the supplemental note indenture relating to the 5.45% Notes, or, subject to 23 |
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 2005 Series BR shall in the same manner be exchangeable for a like aggregate principal amount of bonds of 2005 Series BR 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 2005 Series BR during any period of ten (10) days next preceding any redemption date for such bonds. Bonds of 2005 Series BR, 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 5.45% Notes, 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 2005 Series BR in a principal amount equal to the principal amount of such 5.45% Notes, 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. RELEASE. From and after the Release Date (as defined in the Note Indenture), the bonds of 2005 Series BR shall be deemed fully paid, satisfied and discharged and the obligation of the Company thereunder shall be terminated. On the Release Date, the bonds of 2005 Series BR shall be surrendered to and canceled by the Trustee. The Company covenants and agrees that, prior to the Release Date, it will not take any action that would cause the outstanding principal amount of the bonds of 2005 Series BR to be less than the then outstanding principal amount of the 5.45% Notes. 24 |
REDEMPTION SECTION 2. Bonds of 2005 Series BR shall be redeemed on the OF respective dates and in the respective principal amounts BONDS OF 2005 which correspond to the redemption dates for, and the SERIES BR principal amounts to be redeemed of, the 5.45% Notes. In the event the Company elects to redeem any 5.45% Notes prior to maturity in accordance with the provisions of the Note Indenture, the Company shall give the Trustee notice of redemption of bonds of 2005 Series BR on the same date as it gives notice of redemption of 5.45% Notes to the Note Indenture Trustee. REDEMPTION OF SECTION 3. In the event of an Event of Default under the BONDS OF 2005 Note Indenture Series and the acceleration of all 5.45% SERIES BR IN Notes, the bonds of 2005 Series BR shall be redeemable in EVENT OF whole upon receipt by the Trustee of a written demand ACCELERATION (hereinafter called a "Redemption Demand") from the Note OF Indenture Trustee stating that there has occurred under the NOTES. Note Indenture both an Event of Default and a declaration of acceleration of payment of principal, accrued interest and premium, if any, on the 5.45% Notes, specifying the last date to which interest on the 5.45% Notes 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 (5) 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 (10) 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 (10) nor less than five (5) days prior to the Demand Redemption Date. 25 |
Each bond of 2005 Series BR shall be redeemed by the Company on the Demand Redemption Date therefor 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 5.45% Notes; provided, however, that in the event of a receipt by the Trustee of a notice that, pursuant to Section 602 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 SECTION 4. The bonds of 2005 Series BR and the form of OF BONDS OF Trustee's Certificate to be endorsed on such bonds shall be 2005 SERIES BR. substantially in the following forms, respectively: THE DETROIT EDISON COMPANY GENERAL AND REFUNDING MORTGAGE BOND 2005 SERIES BR 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 supplemented as of April 1, 2005, between The Detroit Edison Company and J.P. Morgan Trust Company, National Association, as Note Indenture 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 Indenture. $ No. R- 26 |
THE DETROIT EDISON COMPANY (hereinafter called the "Company"), a corporation of the State of Michigan, for value received, hereby promises to pay to J.P. Morgan Trust Company, National Association, as Note Indenture 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 February 15, 2035 (subject to earlier redemption or release) and interest thereon at the rate of 5.45% per annum, in like lawful money, from February 7, 2005, 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 August 15, 2005), 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 and in the supplemental indenture pursuant to which this bond has been issued. Under a Collateral Trust Indenture, dated as of June 30, 1993, as amended and as further supplemented as of April 1, 2005 (hereinafter called the "Note Indenture"), between the Company and J.P. Morgan Trust Company, National Association, as trustee (hereinafter called the "Note Indenture Trustee"), the Company has issued its 2005 Series BR 5.45% Senior Notes due 2035 (the "Notes"). This bond was originally issued to the Note Indenture Trustee so as to secure the payment of the Notes. Payments of principal of, or premium, if any, or interest on, the Notes 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 provisions shall for all purposes have the same effect as though set forth in this place. This bond shall not be valid or become obligatory for any purpose until J.P. Morgan Trust Company, National Association, the Trustee under the 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 by an authorized officer, with his manual or facsimile signatures, and its corporate seal, or a facsimile thereof, to be impressed or imprinted hereon and the same to be attested 27 |
by its Vice President and Corporate Secretary or Assistant Corporate Secretary by manual or facsimile signature. Dated: _____________ |
THE DETROIT EDISON COMPANY
By: AUTHORIZED OFFICER [SEAL] Attest: AUTHORIZED OFFICER [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. J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee By _______________________ Authorized Officer [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 2005 Series BR, 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 J.P. Morgan Trust Company, National Association, as successor in interest to Bank One, National Association, as Trustee, to which Indenture and all indentures supplemental thereto (including the Supplemental Indenture dated as of April 1, 2005) reference is hereby made for a description of the properties and franchises mortgaged and conveyed, 28 |
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, 2005, 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 prior to the Release Date 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 Indenture and the acceleration of the principal of the Notes. 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 2005 Series BR (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. 29 |
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 Notes, 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 2005 Series BR in a principal amount equal to the principal amount of such Notes, 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 Indenture or in the supplemental indenture relating to the Notes, 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 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. From and after the Release Date (as defined in the Note Indenture), the bonds of 2005 Series BR shall be deemed fully paid, satisfied and discharged and the obligation of the Company thereunder shall be terminated. On the Release Date, the bonds of 2005 Series BR shall be surrendered to and cancelled by the Trustee. The Company covenants and agrees that, prior to the Release Date, it will not take any action that would cause the outstanding principal amount of the bond of 2005 30 |
Series BR to be less than the then outstanding principal amount of the Notes. 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. |
PART III.
RECORDING AND FILING DATA
RECORDING The Original Indenture and indentures supplemental thereto AND FILING OF have been recorded and/or filed and Certificates of ORIGINAL Provision for Payment have been recorded as hereinafter set INDENTURE. 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 Pursuant to the terms and provisions of the Original AND 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 SUPPLEMENTAL PURPOSE OF IN 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 Additional Provisions September 1, 1947 September 1, 1947(a)(b)(c) Series I Bonds, Subject Properties and Additional November 15, 1951 Provisions March 1, 1950(a)(b)(c) Series J Bonds and Additional Provisions November 15, 1951 November 15, 1951(a)(b)(c) Series K Bonds Additional Provisions and Subject January 15, 1953 Properties January 15, 1953(a)(b) Series L Bonds May 1, 1953 May 1, 1953(a) Series M Bonds and Subject Properties March 15, 1954 March 15, 1954(a)(c) Series N Bonds and Subject Properties May 15, 1955 May 15, 1955(a)(c) Series O Bonds and Subject Properties August 15, 1957 August 15, 1957(a)(c) Series P Bonds Additional Provisions and Subject June 1, 1959 Properties June 1, 1959(a)(c) Series Q Bonds and Subject Properties December 1, 1966 December 1, 1966(a)(c) Series R Bonds Additional Provisions and Subject October 1, 1968 Properties October 1, 1968(a)(c) Series S Bonds and Subject Properties December 1, 1969 December 1, 1969(a)(c) Series T Bonds and Subject Properties July 1, 1970 July 1, 1970(c) Series U Bonds and Subject Properties December 15, 1970 December 15, 1970(c) Series V and Series W Bonds June 15, 1971 June 15, 1971(c) Series X Bonds and Subject Properties November 15, 1971 November 15, 1971(c) Series Y Bonds and Subject Properties January 15, 1973 |
RECORDED AND/OR FILED AS SET FORTH SUPPLEMENTAL PURPOSE OF IN SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ ------------------ January 15, 1973(c) Series Z Bonds and Subject Properties May 1, 1974 May 1, 1974 Series AA Bonds and Subject Properties October 1, 1974 October 1, 1974 Series BB Bonds and Subject Properties January 15, 1975 January 15, 1975 Series CC Bonds and Subject Properties November 1, 1975 November 1, 1975 Series DDP Nos. 1-9 Bonds and Subject Properties December 15, 1975 December 15, 1975 Series EE Bonds and Subject Properties February 1, 1976 February 1, 1976 Series FFR Nos. 1-13 Bonds June 15, 1976 June 15, 1976 Series GGP Nos. 1-7 Bonds and Subject Properties July 15, 1976 July 15, 1976 Series HH Bonds and Subject Properties February 15, 1977 February 15, 1977 Series MMP Bonds and Subject Properties March 1, 1977 March 1, 1977 Series IIP Nos. 1-7 Bonds, Series JJP Nos. 1-7 Bonds, June 15, 1977 Series KKP Nos. 1-7 Bonds and Series LLP Nos. 1-7 Bonds June 15, 1977 Series FFR No. 14 Bonds and Subject Properties July 1, 1977 July 1, 1977 Series NNP Nos. 1-7 Bonds and Subject Properties October 1, 1977 October 1, 1977 Series GGP Nos. 8-22 Bonds and Series OOP Nos. 1-17 June 1, 1978 Bonds and Subject Properties June 1, 1978 Series PP Bonds, Series QQP Nos. 1-9 Bonds and Subject October 15, 1978 Properties October 15, 1978 Series RR Bonds and Subject Properties March 15, 1979 March 15, 1979 Series SS Bonds and Subject Properties July 1, 1979 July 1, 1979 Series IIP Nos. 8-22 Bonds, Series NNP Nos. 8-21 Bonds September 1, 1979 and Series TTP Nos. 1-15 Bonds and Subject Properties |
RECORDED AND/OR FILED AS SET FORTH SUPPLEMENTAL PURPOSE OF IN SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ ------------------ September 1, 1979 Series JJP No. 8 Bonds, Series KKP No. 8 Bonds, Series September 15, 1979 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 Subject Properties April 1, 1980 April 1, 1980 1980 Series B Bonds August 15, 1980 August 15, 1980 Series QQP Nos. 10-19 Bonds, 1980 Series CP Nos. 1-12 August 1, 1981 Bonds and 1980 Series DP No. 1-11 Bonds and Subject Properties August 1, 1981 1980 Series CP Nos. 13-25 Bonds and Subject Properties November 1, 1981 November 1, 1981 1981 Series AP Nos. 1-12 Bonds June 30, 1982 June 30, 1982 Article XIV Reconfirmation August 15, 1982 August 15, 1982 1981 Series AP Nos. 13-14 and Subject Properties June 1, 1983 June 1, 1983 1981 Series AP Nos. 15-16 and Subject Properties October 1, 1984 October 1, 1984 1984 Series AP and 1984 Series BP Bonds and Subject May 1, 1985 Properties May 1, 1985 1985 Series A Bonds May 15, 1985 May 15, 1985 1985 Series B Bonds and Subject Properties October 15, 1985 October 15, 1985 Series KKP No. 9 Bonds and Subject Properties April 1, 1986 April 1, 1986 1986 Series A and Subject Properties August 15, 1986 August 15, 1986 1986 Series B and Subject Properties November 30, 1986 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 Series C August 15, 1987 August 15, 1987 1987 Series D and 1987 Series E and Subject Properties November 30, 1987 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 |
RECORDED AND/OR FILED AS SET FORTH SUPPLEMENTAL PURPOSE OF IN SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE DATED AS OF INDENTURE DATED AS OF: ------------ ------------ ------------------ December 1, 1989 Series KKP No. 11 and 1989 Series BP February 15, 1990 February 15, 1990 1990 Series A, 1990 Series B, 1990 Series C, 1990 November 1, 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 Series CP May 15, 1991 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 Series D March 15, 1993 December 15, 1992 Series KKP No. 14 and 1989 Series BP No. 2 March 15, 1992 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 Series IP September 15, 1993 April 26, 1993 1993 Series G and Amendment of Article II, Section 5 September 15, 1993 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 Series DP August 1, 1995 August 1, 1995 1995 Series AP and 1995 Series DP August 1, 1999 |
(a) See Supplemental Indenture dated as of July 1, 1970 for Interstate Commerce Commission filing and recordation information.
(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 OF Original Indenture dated as of October 1, 1924, and of PROVISION FOR Series B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, PAYMENT. R, S, W, Y, 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. 1-9, 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, 1989 Series A, 1990 Series A, 1993 Series D, 1993 Series G and 1993 Series H 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, June 15, 1989, February 15, 1990, March 15, 1993, April 26, 1992 and September 15, 1992 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 CONDITIONS The Trustee hereby accepts the trust hereby declared and OF ACCEPTANCE OF provided, and agrees to perform the same upon the terms TRUST BY TRUSTEE. and conditions in the Original Indenture, as amended to date and 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 ACT. supplemental indenture is intended to modify, and the parties do hereby adopt and confirm, the provisions of Section 318(c) of the Trust Indenture Act which amend and supersede 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 J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION 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: ____________________________________ Name: Title: EXECUTION |
Attest:
By: __________________________________
Name:
Title:
Signed, sealed and delivered by
THE DETROIT EDISON COMPANY,
in the presence of
STATE OF MICHIGAN
SS.:
COUNTY OF WAYNE
Acknowledgement of On this ____ day of _______ 2005, before me, the Execution by Company. subscriber, a Notary Public within and for the County of Wayne, in the State of Michigan, acting in the County of Wayne, personally appeared N.A. Khouri, to me personally known, who, being by me duly sworn, did say that he does business at 2000 2nd 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 N.A. Khouri acknowledged said instrument to be the free act and deed of said corporation. (Notarial Seal) _______________________________ Notary Public, State of Michigan County of Wayne My Commission Expires ________________ Acting in the County of Wayne |
J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION,
(Corporate Seal) By:________________________________ Name: Title: |
Attest:
Name: ________________________
Title: _______________________
Signed, sealed and delivered by
J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION,
in the presence of
STATE OF MICHIGAN
SS:
COUNTY OF WAYNE
Acknowledgment of On this _____ day of __________ 2005, before me, the Execution by Trustee. subscriber, a Notary Public within and for the County of Wayne, in the State of Michigan, personally appeared ________________, to me personally known, who, being by me duly sworn, did say that his business office is located at 611 Woodward Avenue, Detroit, Michigan 48226, and he is ___________________ of J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, 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 ________________ acknowledged said instrument to be the free act and deed of said corporation. (Notarial Seal) ____________________________________ Notary Public, State of Michigan No. County of Wayne Commission Expires _________________ Acting in the County of ____________ |
STATE OF MICHIGAN
SS:
COUNTY OF WAYNE.
Affidavit as N.A. Khouri being duly sworn, says that he is the Vice to Consideration President and Treasurer of THE DETROIT EDISON COMPANY, and Good Faith. the 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. _______________________________________ N.A. Khouri Vice President and Treasurer The Detroit Edison Company |
Sworn to before me this ____ day of __________, 2005
(Notarial Seal) _______________________________________ Notary Public, State of Michigan County of Wayne My Commission Expires _______________ Acting in the County of Wayne 42 |
This instrument was drafted by Teresa M. Sebastian, Esq., When recorded return to Teresa M. Sebastian, Esq. 2000 2nd Avenue 688 WCB Detroit, Michigan 48226 |
EXHIBIT 5.1
April 7, 2005
The Detroit Edison Company
2000 2nd Avenue
Detroit, Michigan 48226
Ladies and Gentlemen:
I am Vice President and General Counsel of The Detroit Edison Company, a Michigan corporation (the "Company"). I refer to the filing by the Company of a Registration Statement on Form S-4 (the "Registration Statement") with the Securities and Exchange Commission (the "Commission") pursuant to the Securities Act of 1933, as amended (the "Securities Act"), to register $200,000,000 aggregate principal amount of 4.80% 2005 Series AR Senior Notes due 2015 (the "4.80% Exchange Notes") and $200,000,000 aggregate principal amount of 5.45% 2005 Series BR Senior Notes due 2035 (the "5.45% Exchange Notes" and, together with the 4.80% Exchange Notes, the "Exchange Notes"). The 4.80% Exchange Notes are to be issued in exchange for an equal aggregate principal amount of 4.80% 2005 Series A Senior Notes due 2015 (the "4.80% Outstanding Notes"), and the 5.45% Exchange Notes are to be issued in exchange for an equal aggregate principal amount of 5.45% 2005 Series B Senior Notes due 2035 (the "5.45% Outstanding Notes" and, together with the 4.80% Outstanding Notes, the "Outstanding Notes")(the "Exchange Offer"). Each series of Outstanding Notes was issued on February 7, 2005 consistent with the provisions of Rule 144A.
The Exchange Notes will be issued pursuant to the terms of a Collateral Trust Indenture, dated as of June 30, 1993, as amended and supplemented (the "Indenture"), between the Company and J.P. Morgan Trust Company, National Association, as successor trustee (the "Trustee"). The terms of the Exchange Offer are described in the Registration Statement filed by the Company with the Commission.
In rendering this opinion, I , in conjunction with the members of the
Legal Department of the Company, have examined such certificates, instruments
and documents (collectively, "Documents") and reviewed such questions of law as
I have considered necessary or appropriate for the purposes of this opinion. In
rendering this opinion, I have assumed without independent verification, that
(i) all signatures are genuine, except those of officers of the Company, (ii)
all Documents submitted to me as originals are authentic, and (iii) all
Documents submitted to me as copies conform to the originals of such Documents.
My review has been limited to examining the Documents and applicable law.
Based on the foregoing examination and review, it is my opinion that:
1. The Company is duly incorporated, validly existing and in good standing as a corporation under the laws of the State of Michigan.
2. When issued in accordance with the terms and provisions of the Exchange Offer and that certain Registration Rights Agreement dated February 7, 2005, the Exchange Notes will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and the terms of the Indenture, except as enforceability thereof may be limited or affected by bankruptcy, insolvency, fraudulent transfer, reorganization or other laws of general applicability relating to or affecting creditors' rights and general equity principles, regardless of whether enforceability is considered in a proceeding at law or equity.
I am qualified to practice law in the State of Michigan, and in rendering this opinion, my examination of matters of law has been limited to, and I express no opinion as to the application of the blue sky laws or laws of any jurisdictions other than, the laws of the State of Michigan and the federal laws of the United States. In giving this opinion, I have relied, with your consent, as to matters of New York law upon the opinion of Hunton & Williams LLP. Hunton & Williams LLP may rely on this opinion as to matters of Michigan law in rendering its opinion of even date herewith.
I hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement and reference to me under the caption
"Legal Matters" in the Registration Statement. In giving this consent, I do not
admit that I am within the category of persons whose consent is required by
Section 7 of the Securities Act or the rules and regulations promulgated
thereunder by the Commission. I do not undertake to advise you of any changes in
the opinions expressed herein from matters that might hereafter arise or be
brought to my attention.
Very truly yours,
/s/ Thomas A. Hughes Vice President and General Counsel |
EXHIBIT 5.2
April 7, 2005
Board of Directors
The Detroit Edison Company
2000 2nd Avenue
Detroit, Michigan 48226
REGISTRATION STATEMENT ON FORM S-4 FOR EXCHANGE OF OUTSTANDING
4.80% 2005 SERIES A SENIOR NOTES DUE 2015 AND
5.45% 2005 SERIES B SENIOR NOTES DUE 2035
FOR SENIOR NOTES TO BE REGISTERED UNDER THE SECURITIES ACT OF 1933
Ladies and Gentlemen:
We have acted as counsel to The Detroit Edison Company, a Michigan corporation (the "Company"), in connection with the filing by the Company of a Registration Statement on Form S-4 (the "Registration Statement") with the Securities and Exchange Commission (the "Commission") pursuant to the Securities Act of 1933, as amended (the "Securities Act"), to register $200,000,000 aggregate principal amount of 4.80% 2005 Series AR Senior Notes due 2015 (the "4.80% Exchange Notes") and $200,000,000 aggregate principal amount of 5.45% 2005 Series BR Senior Notes due 2035 (the "5.45% Exchange Notes" and, together with the 4.80% Exchange Notes, the "Exchange Notes"). The 4.80% Exchange Notes are to be issued in exchange (the "Exchange Offer") for an equal aggregate principal amount of 4.80% 2005 Series A Senior Notes due 2015 (the "4.80% Outstanding Notes"), and the 5.45% Exchange Notes are to be issued in exchange for an equal aggregate principal amount of 5.45% 2005 Series B Senior Notes due 2035 (the "5.45% Outstanding Notes" and, together with the 4.80% Outstanding Notes, the "Outstanding Notes")(the "Exchange Offer"). Each series of Outstanding Notes was issued on February 7, 2005 in reliance on an exemption from registration under the Securities Act for offers and sales of securities not involving public offerings.
The Exchange Notes will be issued pursuant to the terms of a Collateral Trust Indenture, dated as of June 30, 1993, as amended and supplemented (the "Indenture"), between the Company and J.P. Morgan Trust Company, National Association, as successor trustee (the "Trustee"). The terms of the Exchange Offer are described in the Registration Statement filed by the Company with the Commission.
In connection with the foregoing, we have examined and relied upon originals or copies, certified to our satisfaction, of certificates of officers of the Company and of public officials and such other documents as we have deemed relevant or necessary for the purpose of rendering this opinion.
For purposes of the opinion expressed below, we have assumed (i) the authenticity of all documents submitted to us as originals, (ii) the conformity to the originals of all documents submitted as certified or photostatic copies and the authenticity of the originals thereof, (iii) the
genuineness of signatures not witnessed by us and (iv) the due authorization, execution and delivery of all documents by all parties and the validity, binding effect and enforceability thereof.
Based upon the foregoing, we are of the opinion that:
The Exchange Notes will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and the terms of the Indenture, except as enforceability thereof may be limited or affected by bankruptcy, insolvency, fraudulent transfer, reorganization or other laws of general applicability relating to or affecting creditors' rights and general equity principles, regardless of whether enforceability is considered in a proceeding at law or equity, when:
(i) the issuance of the Exchange Notes has been authorized by order of the Federal Energy Regulatory Commission;
(ii) the Exchange Notes have been duly executed by the Company and authenticated by the Trustee in accordance with the provisions of the Indenture; and
(iii) the Exchange Notes shall have been delivered to those holders of Outstanding Notes in exchange for such Outstanding Notes pursuant to the Exchange Offer.
In giving this opinion, we have relied, with your consent, as to matters of Michigan law upon the opinion of Thomas A. Hughes, Vice President and General Counsel of the Company. As to all matters of New York law, Thomas A. Hughes, Vice President and General Counsel of the Company, is authorized to rely upon this opinion as if it were addressed to him.
We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement and reference to this firm under the caption "Legal Matters" in the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the Securities Act or the rules and regulations promulgated thereunder by the Commission. We do not undertake to advise you of any changes in the opinion expressed herein from matters that might hereafter arise or be brought to our attention.
Very truly yours,
/s/ Hunton & Williams LLP |
.
.
.
EXHIBIT 12.1
THE DETROIT EDISON COMPANY
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
Twelve Months Ended December 31 -------------------------------------------------------------- (Millions of Dollars) 2004 2003 2002 2001 2000 ------ ------ ------ ------ ------ EARNINGS: Pretax earnings................... $ 214 $ 397 $ 534 $ 320 $ 586 Fixed charges..................... 294 294 322 314 311 ------ ------ ------ ------ ------ NET EARNINGS $ 508 $ 691 $ 856 $ 634 $ 897 ------ ------ ------ ------ ------ FIXED CHARGES: Interest expense.................. $ 280 $ 284 $ 319 $ 306 $ 277 Adjustments....................... 14 10 3 8 34 ------ ------ ------ ------ ------ FIXED CHARGES $ 294 $ 294 $ 322 $ 314 $ 311 ------ ------ ------ ------ ------ Ratio of earnings to fixed charges 1.73 2.35 2.66 2.02 2.88 ====== ====== ====== ====== ====== |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-4 of our report dated March 15, 2005 (which report expresses an unqualified opinion and includes an explanatory paragraph relating to the change in method of accounting for asset retirement obligations in 2003), relating to the financial statements and financial statement schedule of The Detroit Edison Company, appearing in the Annual Report on Form 10-K of The Detroit Edison Company for the year ended December 31, 2004 and to the reference to us under the heading "Experts" in the Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche LLP April 7, 2005 Detroit, Michigan |
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
J. P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
95-4655078 (State of incorporation (I.R.S. employer if not a national bank) identification No.) 1999 AVENUE OF THE STARS - FLOOR 26 LOS ANGELES, CA 90067 (Address of principal executive offices) (Zip Code) William H. McDavid General Counsel 270 Park Avenue New York, New York 10017 Tel: (212) 270-2611 (Name, address and telephone number of agent for service) --------------------------------------------------------- |
THE DETROIT EDISON COMPANY
(Exact name of obligor as specified in its charter)
MICHIGAN 38-0478650 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification No.) 2000 SECOND AVENUE DETROIT, MICHIGAN 48226 (Address of principal executive offices) (Zip Code) |
DEBT SECURITIES
(Title of the indenture securities)
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the Obligor is an affiliate of the trustee, describe each such affiliation.
None.
NO RESPONSES ARE INCLUDED FOR ITEMS 3-15 OF THIS FORM T-1 BECAUSE THE OBLIGOR IS NOT IN DEFAULT AS PROVIDED UNDER ITEM 13.
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as part of this statement of eligibility.
Exhibit 1. Articles of Association of the Trustee as Now in Effect (see Exhibit 1 to Form T-1 filed in connection with Form 8-K of the Southern California Water Company filing, dated December 7, 2001, which is incorporated by reference).
Exhibit 2. Certificate of Authority of the Trustee to Commence Business (see Exhibit 2 to Form T-1 filed in connection with Registration Statement No. 333-41329, which is incorporated by reference).
Exhibit 3. Authorization of the Trustee to Exercise Corporate Trust Powers (contained in Exhibit 2).
Exhibit 4. Existing By-Laws of the Trustee (see Exhibit 4 to Form T-1 filed in connection with Form 8-K of the Southern California Water Company filing, dated December 7, 2001, which is incorporated by reference).
Exhibit 5. Not Applicable
Exhibit 6. The consent of the Trustee required by Section 321 (b) of the Act (see Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 333-41329, which is incorporated by reference).
Exhibit 7. A copy of the latest report of condition of the Trustee, published pursuant to law or the requirements of its supervising or examining authority.
Exhibit 8. Not Applicable
Exhibit 9. Not Applicable
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee, J. P. Morgan Trust Company, National Association, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of San Francisco, and State of California, on the 7th day of April, 2005.
J. P. Morgan Trust Company, National Association
By: /s/ J. Michael Banas ------------------------------------- J. Michael Banas Authorized Officer |
Exhibit 7
J. P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION
STATEMENT OF CONDITION
SEPTEMBER 30, 2004
($000) ---------- ASSETS Cash and Due From Banks $ 28,672 Securities 145,134 Loans and Leases 110,847 Premises and Fixed Assets 11,202 Intangible Assets 384,284 Goodwill 201,011 Other Assets 45,941 ---------- Total Assets $ 927,091 ========== LIABILITIES Deposits $ 94,426 Other Liabilities 55,575 ---------- Total Liabilities 150,001 EQUITY CAPITAL Common Stock 600 Surplus 701,587 Retained Earnings 74,903 ---------- Total Equity Capital 777,090 ---------- Total Liabilities and Equity Capital $ 927,091 ========== |
4.80% 2005 Series AR Senior Notes due 2015
That Have Been Registered under the Securities Act of 1933
for Any and All Outstanding
4.80% 2005 Series A Senior Notes due 2015
($200,000,000 aggregate principal amount outstanding)
5.45% 2005 Series BR Senior Notes due 2035
That Have Been Registered under the Securities Act of 1933
for Any and All Outstanding
5.45% 2005 Series B Senior Notes due 2035
($200,000,000 aggregate principal amount outstanding)
By Mail or Overnight Delivery:
J.P. Morgan Institutional Trust Services
2001 Bryan Street, 9th Floor
Dallas, Texas 75201
By Facsimile Transmission:
(214) 468-6494
Confirm Facsimile Transmission by
Telephone:
(214) 468-6464
By Hand or Overnight Delivery:
J.P. Morgan Chase Bank, N.A.
Institutional Trust Services
Service Window
New York Plaza, First Floor
New York, New York 10004
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* | Certificate or Registration Number need not be completed by book-entry Holders. |
** | Unless otherwise indicated, the Holder will be deemed to have tendered the full aggregate principal amount represented by such Outstanding Notes. All tenders must be in integral multiples of $1,000. |
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o | CHECK HERE IF TENDERED OUTSTANDING NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO AN ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH A BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING: |
o | CHECK HERE IF TENDERED OUTSTANDING NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY AND COMPLETE THE FOLLOWING: |
Account Number:
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Transaction Code Number:
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o | PLEASE CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO. |
Name:
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Address:
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6
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1. | Delivery of this Letter of Transmittal and Certificates for Tendered Outstanding Notes. |
2. | Guaranteed Delivery Procedures. |
(1) (a) the tender is made through a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc., through a commercial bank or trust company having an office or correspondent in the United States or through an eligible guarantor institution within the meaning of Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended (an Eligible Institution); | |
(b) prior to the Expiration Date, the Exchange Agent receives from such Eligible Institution a properly completed and duly executed Notice of Guaranteed Delivery (by facsimile transmission, mail or hand delivery) (i) setting forth the name and address of the Holder, the registration or certificate number(s) of such Outstanding Notes and the principal amount of Outstanding Notes tendered, (ii) stating that the tender is being made thereby and (iii) guaranteeing that, within five New York Stock Exchange trading days after the Expiration Date, the Letter of Transmittal (or facsimile thereof), together with the certificates representing Outstanding Notes (or a book-entry confirmation) and any other documents required by the Letter of Transmittal, will be deposited by the Eligible Institution with the Exchange Agent; and | |
(c) the properly completed and executed Letter of Transmittal (or facsimile thereof), as well as duly executed certificates representing all tendered Outstanding Notes in proper form for transfer (or a book-entry confirmation) and all other documents required by the Letter of Transmittal, are received by the Exchange Agent within five New York Stock Exchange trading days after the Expiration Date. | |
or | |
(2) (a) Prior to the Expiration Date, the Exchange Agent receives an agents message from DTC stating that DTC has received an express acknowledgment from the participant in DTC tendering the Outstanding Notes that they have received and agree to be bound by the Notice of Guaranteed Delivery; and | |
(b) the Exchange Agent receives, within five New York Stock Exchange trading days after the Expiration Date, either (i) a book-entry confirmation, including an agents message, transmitted via DTCs Automated Tender Offer Program, or (ii) a properly completed and executed Letter of |
Transmittal (or facsimile thereof), together with the certificate(s) representing all tendered Outstanding Notes in proper form for transfer (or a book-entry confirmation) and all other required documents. |
3. | Partial Tenders; Withdrawals. |
4. | Signature on this Letter of Transmittal; Written Instruments and Endorsements; Guarantee of Signatures. |
5. | Special Registration and Delivery Instructions. |
6. | Transfer Taxes. |
7. | Waiver of Conditions. |
8. | Mutilated, Lost, Stolen or Destroyed Outstanding Notes. |
9. | Requests for Assistance or Additional Copies. |
10. | Validity and Form. |
By Mail or Overnight Delivery: | By Facsimile Transmission: | By Hand or Overnight Delivery: | ||
J.P. Morgan Institutional Trust | (214) 468-6494 | J.P. Morgan Chase Bank, N.A. | ||
Services | Institutional Trust Services | |||
2001 Bryan Street, 9th Floor | Confirm Facsimile Transmission | Service Window | ||
Dallas, Texas 75201 | by Telephone: | New York Plaza, First Floor | ||
(214) 468-6464 | New York, New York 10004 |
Aggregate Principal | Principal Amount | |||||
Series of | Amount Represented | Tendered (Must Be in Integral | ||||
Outstanding Notes | Certificate Nos. | by Certificate(s) | Multiples of $1,000) | |||