SECURITIES AND EXCHANGE COMMISSION
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
For the Quarter Ended September 30, 1999
| Registrants; State of | ||||
| Commission | Incorporation; Address; and | I.R.S. Employer | ||
| File Number | Telephone Number | Identification No. | ||
|
|
|
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||
| 1-11607 |
DTE Energy Company
(a Michigan corporation) 2000 2nd Avenue Detroit, Michigan 48226-1279 313-235-4000 |
38-3217752 | ||
| 1-2198 |
The Detroit Edison Company
(a Michigan corporation) 2000 2nd Avenue Detroit, Michigan 48226-1279 313-235-8000 |
38-0478650 | ||
Indicate by check mark whether the registrants (1) have filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrants were required to file such reports), and (2) have been subject to such filing requirements for the past 90 days.
At October 29, 1999, 145,045,159 shares of DTE Energy’s Common Stock, substantially all held by non-affiliates, were outstanding.
DTE ENERGY COMPANY
This document contains the Quarterly Reports on Form 10-Q for the quarter ended September 30, 1999 for each of DTE Energy Company and The Detroit Edison Company. Information contained herein relating to an individual registrant is filed by such registrant on its own behalf. Accordingly, except for its subsidiaries, The Detroit Edison Company makes no representation as to information relating to any other companies affiliated with DTE Energy Company.
TABLE OF CONTENTS
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| Definitions | 3 | |||||
| Quarterly Report on Form 10-Q for DTE Energy Company: | ||||||
| Part I — Financial Information | 4 | |||||
| Item 1 — Financial Statements | 4 | |||||
| Item 2 — Management’s Discussion and Analysis of Financial Condition and Results of Operations | 20 | |||||
| Part II — Other Information | 28 | |||||
| Item 5 — Other Information | 28 | |||||
| Quarterly Report on Form 10-Q for The Detroit Edison Company: | ||||||
| Part I — Financial Information | 29 | |||||
| Item 1 — Financial Statements | 29 | |||||
| Item 2 — Management’s Discussion and Analysis of Financial Condition and Results of Operations | 29 | |||||
| Part II — Other Information | 29 | |||||
| Item 1 — Legal Proceedings | 29 | |||||
| Quarterly Reports on Form 10-Q for DTE Energy Company and The Detroit Edison Company: | ||||||
| Item 6 — Exhibits and Reports on Form 8-K | 30 | |||||
| Signature Page to DTE Energy Company Quarterly Report on Form 10-Q | 38 | |||||
| Signature Page to The Detroit Edison Company Quarterly Report on Form 10-Q | 39 | |||||
| Annual Report | 1998 Annual Report to the Securities and Exchange Commission on Form 10-K for DTE Energy Company or The Detroit Edison Company, as the case may be | |
| Annual Report Notes | Notes to Consolidated Financial Statements appearing on pages 45 through 72 and 76 through 79 of the 1998 Annual Report to the Securities and Exchange Commission on Form 10-K for DTE Energy Company and The Detroit Edison Company, as the case may be | |
| Company | DTE Energy Company and Subsidiary Companies | |
| Detroit Edison | The Detroit Edison Company (a wholly owned subsidiary of DTE Energy Company) and Subsidiary Companies | |
| DTE Capital | DTE Capital Corporation (a wholly owned subsidiary of DTE Energy Company) | |
| Electric Choice | Gives all retail customers equal opportunity to utilize the transmission system which results in access to competitive generation resources | |
| EPA | United States Environmental Protection Agency | |
| FERC | Federal Energy Regulatory Commission | |
| kWh | Kilowatthour | |
| MCN | MCN Energy Group Inc. | |
| MPSC | Michigan Public Service Commission | |
| MW | Megawatt | |
| MWh | Megawatthour | |
| Note(s) | Note(s) to Condensed Consolidated Financial Statements (Unaudited) appearing herein | |
| PSCR | Power Supply Cost Recovery | |
| Quarterly Report | Quarterly Report to the Securities and Exchange Commission on Form 10-Q for DTE Energy Company or The Detroit Edison Company, as the case may be, for the quarters ended March 31, 1999 and June 30, 1999 | |
| Quarterly Report Notes | Notes to Condensed Consolidated Financial Statements (Unaudited) appearing on pages 16 through 18 of the Quarterly Report to the Securities and Exchange Commission on Form 10-Q for the quarters ended March 31, 1999 and June 30, 1999 for DTE Energy Company and The Detroit Edison Company, as the case may be | |
| Registrant | Company or Detroit Edison, as the case may be |
3
The following condensed consolidated financial statements (unaudited) are included herein.
| Page | |||||
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| DTE Energy Company: | |||||
| Condensed Consolidated Statement of Income | 5 | ||||
| Condensed Consolidated Balance Sheet | 6 | ||||
| Condensed Consolidated Statement of Cash Flows | 8 | ||||
| Condensed Consolidated Statement of Changes in Shareholders’ Equity | 9 | ||||
| The Detroit Edison Company: | |||||
| Condensed Consolidated Statement of Income | 11 | ||||
| Condensed Consolidated Balance Sheet | 12 | ||||
| Condensed Consolidated Statement of Cash Flows | 14 | ||||
| Condensed Consolidated Statement of Changes in Shareholder’s Equity | 15 | ||||
| Notes to Condensed Consolidated Financial Statements (Unaudited) | 16 | ||||
| Independent Accountants’ Report | 19 | ||||
| Note: | Detroit Edison’s Condensed Consolidated Financial Statements are presented here for ease of reference and are not considered to be part of Item I of the Company’s report. |
4
DTE Energy Company
Three Months
Nine Months
Ended
Ended
September 30
September 30
1999
1998
1999
1998
Operating Revenues
$
1,440
$
1,199
$
3,614
$
3,208
Operating Expenses
Fuel and purchased power
510
359
1,063
852
Operation and maintenance
397
338
1,086
906
Depreciation and amortization
183
169
547
496
Taxes other than income
69
67
211
207
Total Operating Expenses
1,159
933
2,907
2,461
Operating Income
281
266
707
747
Interest Expense and Other
Interest expense
95
83
260
236
Preferred stock dividends of subsidiary
—
1
—
6
Other — net
4
4
13
9
Total Interest Expense and Other
99
88
273
251
Income Before Income Taxes
182
178
434
496
Income Taxes
21
46
48
159
Net Income
$
161
$
132
$
386
$
337
Average Common Shares Outstanding
145
145
145
145
Earnings per Common Share —
Basic and Diluted
$
1.11
$
0.91
$
2.66
$
2.32
See Notes to Condensed Consolidated Financial Statements (Unaudited).
5
DTE Energy Company
September 30
December 31
1999
1998
ASSETS
Current Assets
Cash and cash equivalents
$
54
$
130
Restricted cash
317
121
Accounts receivable
Customer (less allowance for doubtful accounts of $21 and $20,
respectively)
437
316
Accrued unbilled revenues
154
153
Other
97
135
Inventories (at average cost)
Fuel
148
171
Materials and supplies
160
167
Other
87
39
1,454
1,232
Investments
Nuclear decommissioning trust funds
337
309
Other
229
261
566
570
Property
Property, plant and equipment
11,580
11,121
Property under capital leases
222
242
Nuclear fuel under capital lease
662
659
Construction work in progress
108
156
12,572
12,178
Less accumulated depreciation and amortization
5,507
5,235
7,065
6,943
Regulatory Assets
2,972
3,091
Other Assets
259
252
Total Assets
$
12,316
$
12,088
See Notes to Condensed Consolidated Financial Statements (Unaudited).
6
September 30
December 31
1999
1998
LIABILITIES AND SHAREHOLDERS’ EQUITY
Current Liabilities
Accounts payable
$
215
$
239
Accrued interest
53
57
Dividends payable
75
75
Accrued payroll
86
101
Short-term borrowings
296
231
Income taxes
73
69
Current portion long-term debt
566
294
Current portion capital leases
87
118
Other
240
208
1,691
1,392
Other Liabilities
Deferred income taxes
1,902
1,888
Capital leases
118
126
Regulatory liabilities
230
294
Other
532
493
2,782
2,801
Long-Term Debt
3,985
4,197
Shareholders’ Equity
Common stock, without par value, 400,000,000 shares authorized,
145,045,159 and 145,071,317 issued and outstanding, respectively
1,950
1,951
Retained earnings
1,908
1,747
3,858
3,698
Contingencies (Note 5)
Total Liabilities and Shareholders’ Equity
$
12,316
$
12,088
See Notes to Condensed Consolidated Financial Statements (Unaudited).
7
DTE Energy Company
Nine Months
Ended
September 30
1999
1998
Operating Activities
Net Income
$
386
$
337
Adjustments to reconcile net income to net cash from operating
activities:
Depreciation and amortization
518
474
Other
(43
)
(57
)
Changes in current assets and liabilities:
Restricted cash
(11
)
(70
)
Accounts receivable
(84
)
(89
)
Inventories
30
(36
)
Payables
(43
)
51
Other
(16
)
44
Net cash from operating activities
737
654
Investing Activities
Plant and equipment expenditures
(530
)
(655
)
Investment in coke oven battery businesses
—
(195
)
Net cash used for investing activities
(530
)
(850
)
Financing Activities
Issuance of long-term debt
265
363
Increase in short-term borrowings
65
356
Increase in restricted cash for debt redemptions
(185
)
—
Redemption of long-term debt
(204
)
(187
)
Redemption of preferred stock
—
(100
)
Dividends on common stock
(224
)
(224
)
Other
—
3
Net cash (used for) from financing activities
(283
)
211
Net (Decrease) Increase in Cash and Cash Equivalents
(76
)
15
Cash and Cash Equivalents at Beginning of the Period
130
45
Cash and Cash Equivalents at End of the Period
$
54
$
60
Supplementary Cash Flow Information
Interest paid (excluding interest capitalized)
$
263
$
244
Income taxes paid
102
115
New capital lease obligations
3
52
See Notes to Condensed Consolidated Financial Statements (Unaudited).
8
DTE Energy Company
1999
Shares
Amount
Common Stock
Balance at beginning of year
145,071
$
1,951
Repurchase and retirement of common stock
(26
)
(1
)
Balance at September 30, 1999
145,045
$
1,950
Retained Earnings
Balance at beginning of year
$
1,747
Net income
386
Dividends declared on common stock ($1.545 per share)
(224
)
Repurchase and retirement of common stock
(1
)
Balance at September 30, 1999
$
1,908
Total Shareholders’ Equity
$
3,858
See Notes to Condensed Consolidated Financial Statements (Unaudited).
9
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10
The Detroit Edison Company
Three Months
Nine Months
Ended
Ended
September 30
September 30
1999
1998
1999
1998
Operating Revenues
$
1,211
$
1,105
$
3,128
$
2,998
Operating Expenses
Fuel and purchased power
405
344
888
818
Operation and maintenance
275
249
773
719
Depreciation and amortization
176
162
522
486
Taxes other than income
69
66
210
206
Total Operating Expenses
925
821
2,393
2,229
Operating Income
286
284
735
769
Interest Expense and Other
Interest expense
82
72
219
208
Other — net
1
3
3
13
Total Interest Expense and Other
83
75
222
221
Income Before Income Taxes
203
209
513
548
Income Taxes
65
84
164
230
Net Income
138
125
349
318
Preferred Stock Dividends
—
1
—
6
Net Income Available for Common Stock
$
138
$
124
$
349
$
312
See Notes to Condensed Consolidated Financial Statements (Unaudited).
11
The Detroit Edison Company
September 30
December 31
1999
1998
ASSETS
Current Assets
Cash and cash equivalents
$
26
$
5
Restricted cash
185
—
Accounts receivable
Customer (less allowance for doubtful accounts of $20)
378
307
Accrued unbilled revenues
154
153
Other
64
90
Inventories (at average cost)
Fuel
148
171
Materials and supplies
135
138
Other
64
21
1,154
885
Investments
Nuclear decommissioning trust funds
337
309
Other
39
74
376
383
Property
Property, plant and equipment
11,029
10,610
Property under capital leases
222
242
Nuclear fuel under capital lease
662
659
Construction work in progress
9
118
11,922
11,629
Less accumulated depreciation and amortization
5,446
5,201
6,476
6,428
Regulatory Assets
2,972
3,091
Other Assets
213
200
Total Assets
$
11,191
$
10,987
See Notes to Condensed Consolidated Financial Statements (Unaudited).
12
September 30
December 31
1999
1998
LIABILITIES AND SHAREHOLDER’S EQUITY
Current Liabilities
Accounts payable
$
167
$
211
Accrued interest
43
54
Dividends payable
80
80
Accrued payroll
80
86
Short-term borrowings
296
231
Income taxes
104
60
Current portion long-term debt
479
219
Current portion capital leases
87
118
Other
192
203
1,528
1,262
Other Liabilities
Deferred income taxes
1,867
1,846
Capital leases
118
126
Regulatory liabilities
230
294
Other
517
484
2,732
2,750
Long-Term Debt
3,308
3,462
Shareholder’s Equity
Common stock, $10 par value, 400,000,000 shares authorized,
145,119,875 issued and outstanding
1,451
1,451
Premium on common stock
548
548
Common stock expense
(48
)
(48
)
Retained earnings
1,672
1,562
3,623
3,513
Contingencies (Note 5)
Total Liabilities and Shareholder’s Equity
$
11,191
$
10,987
See Notes to Condensed Consolidated Financial Statements (Unaudited).
13
The Detroit Edison Company
Nine Months
Ended
September 30
1999
1998
Operating Activities
Net Income
$
349
$
318
Adjustments to reconcile net income to net cash from operating
activities:
Depreciation and amortization
493
463
Other
(5
)
(168
)
Changes in current assets and liabilities:
Accounts receivable
(46
)
(64
)
Inventories
26
(32
)
Payables
(61
)
103
Other
(53
)
(48
)
Net cash from operating activities
703
572
Investing Activities
Plant and equipment expenditures
(429
)
(365
)
Net cash used for investing activities
(429
)
(365
)
Financing Activities
Issuance of long-term debt
265
100
Increase in short-term borrowings
65
205
Increase in restricted cash for debt redemptions
(185
)
—
Redemption of long-term debt
(159
)
(169
)
Redemption of preferred stock
—
(100
)
Dividends on common and preferred stock
(239
)
(245
)
Other
—
3
Net cash used for financing activities
(253
)
(206
)
Net Increase in Cash and Cash Equivalents
21
1
Cash and Cash Equivalents at Beginning of the Period
5
15
Cash and Cash Equivalents at End of the Period
$
26
$
16
Supplementary Cash Flow Information
Interest paid (excluding interest capitalized)
$
229
$
219
Income taxes paid
186
195
New capital lease obligations
3
52
See Notes to Condensed Consolidated Financial Statements (Unaudited).
14
The Detroit Edison Company
1999
Shares
Amount
Common Stock
Balance at beginning of year
145,120
$
1,451
Balance at September 30, 1999
145,120
$
1,451
Premium on Common Stock
Balance at beginning of year
$
548
Balance at September 30, 1999
$
548
Common Stock Expense
Balance at beginning of year
$
(48
)
Balance at September 30, 1999
$
(48
)
Retained Earnings
Balance at beginning of year
$
1,562
Net income
349
Dividends declared on common stock ($1.65 per share)
(239
)
Balance at September 30, 1999
$
1,672
Total Shareholder’s Equity
$
3,623
See Notes to Condensed Consolidated Financial Statements (Unaudited).
15
DTE Energy Company and The Detroit Edison Company
NOTE 1 — ANNUAL REPORT NOTES
These condensed consolidated financial statements
(unaudited) should be read in conjunction with the Annual
Report Notes and the Quarterly Report Notes. The Notes contained
herein update and supplement matters discussed in the Annual
Report Notes and the Quarterly Report Notes.
The preparation of the financial statements in conformity with
generally accepted accounting principles requires management to
make estimates and assumptions that affect the reported amounts
of assets and liabilities and disclosure of contingent assets and
liabilities at the date of the financial statements and the
reported amounts of revenues and expenses during the reporting
period. Actual results could differ from those estimates.
The condensed consolidated financial statements are unaudited,
but in the opinion of the Company and Detroit Edison, with
respect to its own financial statements, include all adjustments
necessary for a fair statement of the results for the interim
periods. Financial results for this interim period are not
necessarily indicative of results that may be expected for any
other interim period or for the fiscal year.
Certain prior year balances have been reclassified to conform to
the current year’s presentation.
NOTE 2 — MERGER AGREEMENT
On October 4, 1999 the Company entered into a definitive
merger agreement with MCN. MCN, a Michigan corporation, is
primarily involved in natural gas production, gathering,
processing, transmission, storage and distribution, electric
power generation and energy marketing. MCN’s largest
subsidiary is Michigan Consolidated Gas Company, a natural gas
utility serving 1.2 million customers in more than
500 communities throughout Michigan. The merger, which is
subject to a number of regulatory approvals, is expected to be
completed in six to nine months. The merger agreement provides
that the Company will acquire all outstanding shares of MCN for
$28.50 per share in cash or 0.775 shares of Company
common stock for each share of MCN common stock, subject to
certain allocation procedures requiring that the aggregate number
of shares of MCN common stock that will be converted into cash
and the Company’s common stock will be equal to 55% and 45%,
respectively, of the total number of shares of MCN common stock
outstanding immediately prior to the merger. The transaction was
preliminarily valued at $4.6 billion, which includes the
assumption of approximately $2 billion of MCN’s debt.
The merger agreement provides for termination under certain
circumstances; in such event, (1) the Company may be
required to pay MCN a termination fee of $85 million plus expense
reimbursement of up to $15 million or (2) MCN may be
required to pay the Company a termination fee of $55 million
plus expense reimbursement of up to $15 million.
16
NOTE 3 — REGULATORY MATTERS
As discussed in Note 2 of the Annual Report, proceedings
were pending regarding Detroit Edison’s recovery of certain
extraordinary storm costs over a 24-month period commencing
January 1998. On June 11, 1999, in an unpublished
opinion, the Michigan Court of Appeals remanded back to the MPSC
for hearing a November 1997 order that permitted Detroit
Edison to amortize extraordinary storm damage expenses incurred
in 1997 over the following two years. The MPSC had approved
Detroit Edison’s request to offset the storm damage expense
against a $53 million revenue requirement reduction from the
1988 Fermi settlement on an ex-parte basis. The Attorney General
appealed the MPSC ruling. Detroit Edison filed a motion for
rehearing with the Michigan Court of Appeals on July 1,
1999. Detroit Edison is unable to determine the timing or the
outcome of these proceedings.
NOTE 4 — SHORT-TERM CREDIT ARRANGEMENTS AND BORROWINGS
At September 30, 1999, Detroit Edison had total short-term
credit arrangements of approximately $505 million under
which $96 million of commercial paper was outstanding.
Additionally, Detroit Edison had a $200 million trade
receivables sales agreement under which $200 million was
outstanding at September 30, 1999.
At September 30, 1999, DTE Capital had short-term credit
arrangements of $400 million, backed by a Support Agreement from
the Company, under which no amounts were outstanding.
In addition, the Company has entered into a total of
$550 million of Support Agreements with DTE Capital for the
purpose of DTE Capital’s credit enhancing activities on
behalf of DTE Energy affiliates.
NOTE 5 — CONTINGENCIES
Legal Proceedings
Detroit Edison and plaintiffs in a class action pending in the
Circuit Court for Wayne County, Michigan (
Gilford, et al
v.
Detroit Edison
), as well as plaintiffs in two
other pending actions which make class claims (
Sanchez,
et al
v.
Detroit Edison
, Circuit Court for Wayne
County, Michigan; and
Frazier
v.
Detroit Edison
,
United States District Court, Eastern District of Michigan),
agreed to binding arbitration to settle these matters. The
settlement agreement provides that Detroit Edison’s monetary
liability would be no less than $17.5 million and no
greater than $65 million after the conclusion of all related
proceedings. In July 1998, the Consent Judgement received
preliminary Court approval. The Fairness Hearing with respect to
the terms of the settlement was held in August 1998, and no
objections to the settlement were raised. On October 28,
1999, a panel of arbitrators awarded the plaintiffs
$45.15 million. As a result of the arbitration award,
Detroit Edison must deposit $40.15 million in an escrow fund
for the plaintiffs by November 27, 1999. Due to sufficient
prior accruals and insurance coverage, Detroit Edison does not
anticipate a material 1999 earnings impact due to this award.
17
NOTE 6 — SEGMENT AND RELATED INFORMATION
Effective December 31, 1998, the Company adopted Statement
of Financial Accounting Standards No. 131, “Disclosure
about Segments of an Enterprise and Related Information.”
The Company’s reportable business segment is its electric
utility, Detroit Edison, which is engaged in the generation,
purchase, transmission, distribution and sale of electric energy
in a 7,600 square mile area in Southeastern Michigan. All
other includes non-regulated energy-related businesses and
services, which develop and manage electricity and other
energy-related projects, and engage in domestic energy trading
and marketing. Inter-segment revenues are not material. Financial
data for business segments are as follows:
This Quarterly Report on Form 10-Q, including the report of
Deloitte & Touche LLP (on page 19) will
automatically be incorporated by reference in the Prospectuses
constituting part of the Registration Statements on Form S-3
(Registration Nos. 33-53207, 33-64296 and 333-65765) of The
Detroit Edison Company and Form S-8 (Registration
No. 333-00023), Form S-4 (Registration No. 333-89175)
and Form S-3 (Registration No. 33-57545) of DTE Energy
Company, filed under the Securities Act of 1933. Such report of
Deloitte & Touche LLP, however, is not a
“report” or “part of the Registration
Statement” within the meaning of Sections 7 and 11 of
the Securities Act of 1933 and the liability provisions of
Section 11(a) of such Act do not apply.
18
Independent Accountants’ Report
To the Board of Directors and Shareholders of DTE Energy Company
and
We have reviewed the accompanying condensed consolidated balance
sheets of DTE Energy Company and subsidiaries and of The Detroit
Edison Company and subsidiaries as of September 30, 1999,
and the related condensed consolidated statements of income for
the three-month and nine-month periods ended September 30,
1999 and 1998, the condensed consolidated statements of cash
flows for the nine-month periods ended September 30, 1999
and 1998, and the condensed consolidated statement of changes in
shareholders’ equity for the nine-month period ended
September 30, 1999. These financial statements are the
responsibility of DTE Energy Company’s management and of The
Detroit Edison Company’s management.
We conducted our reviews in accordance with standards established
by the American Institute of Certified Public Accountants. A
review of interim financial information consists principally of
applying analytical procedures to financial data and of making
inquiries of persons responsible for financial and accounting
matters. It is substantially less in scope than an audit
conducted in accordance with generally accepted auditing
standards, the objective of which is the expression of an opinion
regarding the financial statements taken as a whole.
Accordingly, we do not express such an opinion.
Based on our reviews, we are not aware of any material
modifications that should be made to such condensed consolidated
financial statements for them to be in conformity with generally
accepted accounting principles.
We have previously audited, in accordance with generally accepted
auditing standards, the consolidated balance sheets of DTE
Energy Company and subsidiaries and of The Detroit Edison Company
and subsidiaries as of December 31, 1998, and the related
consolidated statements of income, changes in shareholders’
equity, and cash flows for the year then ended (not presented
herein); and in our report dated January 27, 1999, we
expressed an unqualified opinion on those consolidated financial
statements. In our opinion, the information set forth in the
accompanying condensed consolidated balance sheets as of
December 31, 1998 is fairly stated, in all material
respects, in relation to the consolidated balance sheets from
which it has been derived.
DELOITTE & TOUCHE LLP
Detroit, Michigan
19
Table of Contents
Table of Contents
Electric
All
Reconciliations
Utility
Other
and Eliminations
Consolidated
(Millions)
Three Months Ended September 30, 1999
Operating revenues
$
1,211
$
229
$
—
$
1,440
Net income
138
23
—
161
Nine Months Ended September 30, 1999
Operating revenues
$
3,128
$
486
$
—
$
3,614
Net income
349
47
(10
)
386
Three Months Ended September 30, 1998
Operating revenues
$
1,105
$
94
$
—
$
1,199
Net income
124
10
(2
)
132
Nine Months Ended September 30, 1998
Operating revenues
$
2,998
$
210
$
—
$
3,208
Net income
312
29
(4
)
337
Table of Contents
Table of Contents
Item 2 — Management’s Discussion and Analysis of
Financial Condition and Results of Operations.
This analysis for the three and nine months ended
September 30, 1999, as compared to the same periods in 1998,
should be read in conjunction with the condensed consolidated
financial statements (unaudited), the accompanying Notes, the
Quarterly Report Notes and the Annual Report Notes.
Detroit Edison is the principal operating subsidiary of the
Company and, as such, unless otherwise identified, this
discussion explains material changes in results of operations of
both the Company and Detroit Edison and identifies recent trends
and events affecting both the Company and Detroit Edison.
GROWTH
As discussed in the Annual Report, in order to sustain earnings
growth with an objective of 6% growth annually, the Company and
Detroit Edison have developed a business strategy focused on core
competencies, consisting of expertise in developing, managing
and operating energy assets, including coal sourcing, blending
and transportation skills. As part of this strategy it was
expected that one new line of business would be developed in 1999
through acquisition or start-up.
As discussed in Note 2, the Company and MCN have entered
into a merger agreement. Subject to the receipt of all regulatory
approvals, as well as the approval of the shareholders of each
company, scheduled for December 20, 1999, the merger is
expected to be completed in six to nine months. The Company
expects that completion of the merger will result in the issuance
of approximately 30 million additional shares of its common
stock and approximately $1.4 billion in additional external
financing.
The merger of the Company and MCN is expected to create a fully
integrated electric and natural gas company that would be able to
achieve an average of $60 million in (after-tax) cost savings
per year over the first ten years of the merger. This business
combination is also expected to be accretive to the
Company’s earnings per share by 2001 and is expected to
strongly support the Company’s commitment to a long-term
earnings growth rate of 6%.
The merger agreement also provides for a Company affiliate to
purchase all of MCN’s membership interest in several limited
liability companies that own and operate synthetic fuel
manufacturing facilities (coal fines plants).
The successful completion and implementation of the merger is
subject to a number of risks, including the satisfactory receipt
of all necessary regulatory approvals, as well as the approval of
the shareholders of each company. While the Company expects that
the combined entity will provide for operating cost reductions,
there can be no assurances that such reductions will occur. The
merger is expected to create fully integrated electric and gas
operations which will permit the Company to continue to
successfully compete in the energy markets as competition is
fully introduced and implemented; however, there can be no
assurances that the new company will be successfully responsive
to competitive pressures. The external financing needs of the
20
merger may create a sensitivity to interest rate changes; and the
Company will need to successfully integrate the two operations
in order to be able to service the expected debt requirements and
achieve aggregate operating cost reductions. The merger is
anticipated to strategically place the Company in the energy
markets, but there can be no assurances that the combination will
be successful.
ELECTRIC INDUSTRY RESTRUCTURING
Various bills have been introduced and proposed for introduction
at the Federal level and in the Michigan Legislature addressing
competition in the electric markets. The Company and Detroit
Edison are reviewing these bills; and the impact, which may
include generation divestiture, of the adoption and
implementation of one or more of these legislative proposals is
unknown. Detroit Edison is voluntarily proceeding with the
implementation of Electric Choice as provided for in MPSC Orders.
Michigan Public Service Commission
In March 1999, the MPSC approved an interim code of conduct
filed by Detroit Edison. The interim code allows DTE Energy
affiliated companies to participate in the Electric Choice
program. The MPSC also opened a proceeding to develop a permanent
code of conduct. A final order from the MPSC is not expected
until the third quarter of 2000.
In March 1999, Detroit Edison filed an application with the
MPSC for true-up of its stranded costs, including Electric Choice
implementation costs, and on September 17, 1999, filed its
direct testimony. The testimony recommended Detroit Edison
continue to provide exclusive metering and billing service, as
set forth in its approved Electric Choice Implementation Plan, at
least through the transition period ending in 2007; supported
its proposed true-up methodology including estimated initial
transition charge levels for the year 2002 by customer class; and
supported Detroit Edison’s proposed calculation of stranded
costs during the bidding period. The testimony also supported
revised stranded cost balances; presented Detroit Edison’s
position concerning the true-up of stranded costs for actual
market clearing price, and proposed a method for identifying
resale mitigation resources. In addition, the testimony supported
adjustment to calculations in the PSCR proceeding to account for
the resale of load lost due to the Electric Choice program; and
presented its proposed method for recovery of Electric Choice
implementation costs. MPSC Staff and intervenors have filed
testimony in opposition to Detroit Edison’s position. A
final order is not expected until the first quarter of 2000.
On July 22, 1999, the Association of Businesses Advocating
Tariff Equity (ABATE) made a filing with the MPSC indicating that
Detroit Edison’s retail rates produce approximately
$333 million of excess revenues. Of this amount,
approximately $202 million is related to ABATE’s
proposed reversal of the December 28, 1998 MPSC order
authorizing the accelerated amortization of Fermi 2. On
September 22, 1999, Detroit Edison, the MPSC Staff (Staff),
the Michigan Environmental Council and Public Research Group in
Michigan, and the Attorney General (AG) filed their direct
cases in
21
the ABATE Complaint Case. Of particular significance is the
proposal by the Staff that the MPSC establish three profitability
bands for return on equity which would produce predefined
benefits or penalties. Detroit Edison’s testimony supports a
revenue deficiency of $33 million. The Staff concluded that
no revenue sufficiency exists when Detroit Edison’s pending
required review of its depreciation rates is taken into account.
The Staff also assumed that the Fermi 2 Amortization Order
will not be reversed. The AG proposes the reversal of the Fermi 2
Amortization Order. Detroit Edison will file rebuttal testimony
in mid-November 1999. A final MPSC order is not expected
until spring 2000. Detroit Edison is unable to predict the
outcome of this proceeding.
On September 30, 1999, Detroit Edison filed its 2000 PSCR
plan case. Fuel and purchased power costs for 2000 are projected
to increase by up to 6 percent, on average, over the
corresponding forecast for 1999. Detroit Edison is seeking a
corresponding increase in its PSCR Factor for 2000. An order is
expected in the third quarter of 2000.
Electric Choice
On June 29, 1999, the Michigan Supreme Court, on a 4-3 vote,
issued an opinion determining that the MPSC lacked authority to
order retail wheeling in the context of an Electric Choice
program. The Court reversed an earlier Michigan Court of Appeals
opinion finding such authority and vacated two MPSC orders
directing implementation of the experimental program. The Court
held that the MPSC possesses no common law powers and may only
exercise authority clearly conferred upon it by the Legislature.
It stated that retail wheeling issues involve many policy
concerns and stated that the Legislature, not the Court, is the
body that must consider and weigh the economic and social costs
and benefits of electric restructuring.
On August 17, 1999, the MPSC issued an order setting a
deadline of September 1, 1999 for Detroit Edison and
Consumers Energy to notify the MPSC if they choose to voluntarily
implement the Electric Choice program previously ordered by the
MPSC. On September 1, 1999, Detroit Edison filed a letter
with the MPSC reaffirming the decision to expeditiously move
ahead with the voluntary implementation of Electric Choice.
Consumers Energy has likewise agreed to proceed with the Electric
Choice program. On September 20, 1999, the bidding on the
225 MW allotted for Detroit Edison and 150 MW allotted
for Consumers Energy for the first phase of Electric Choice was
fully subscribed. Four additional bidding phases are
contemplated, 225 MW closing on November 19, 1999 and
225 MW each closing in January, March and
November 2000.
LIQUIDITY AND CAPITAL RESOURCES
Cash From Operating Activities
Net cash from operating activities for the Company and Detroit
Edison was higher due to increased net income and changes in
current assets and liabilities.
22
Cash Used For Investing Activities
Net cash used for investing activities for the Company was lower
due to an investment in coke oven battery businesses in the prior
period and lower plant and equipment expenditures.
Net cash used for investing activities was higher for Detroit
Edison due to higher plant and equipment expenditures.
Cash (Used for) From Financing Activities
Net cash used for financing activities for the Company for the
nine month period ended September 30, 1999 was
$283 million compared to net cash from financing activities
of $211 million for the same period in 1998. This
fluctuation was mainly due to a decreased usage of short-term
borrowings.
Net cash used for financing activities for Detroit Edison
increased due primarily to an increase in restricted cash for
debt redemptions and a decreased usage of short-term borrowings.
Detroit Edison has an effective shelf registration statement on
file with the Securities and Exchange Commission pursuant to
which it may issue up to $225 million in debt securities.
In August 1999, Detroit Edison issued $40 million of General
and Refunding Mortgage Bonds.
In August and September 1999, Detroit Edison issued three series
of 30-year collateralized tax-exempt bonds totaling
$225 million. The proceeds were used to redeem
$40 million of debt in September 1999 and the remainder will
be used for December 1999 redemptions.
In November 1999, Detroit Edison purchased $24 million of
Mortgage Bonds in the open market. These bonds have been
canceled.
Year 2000
The Company and Detroit Edison have been involved in an
enterprise-wide program to address Year 2000 issues. A
program office was established in mid-1997 to implement a
rigorous plan to address the impact of Year 2000 on hardware
and software systems, embedded systems (which include
microprocessors used in the production and control of electric
power), and critical service providers. The emphasis has been on
mission critical systems that support core business activities or
processes. Core business activities/processes include safety,
environmental and regulatory compliance, product production and
delivery, revenue collection, employee and supplier payment and
financial asset management.
The plan for addressing Year 2000 is divided into several
phases including raising general awareness of Year 2000
throughout the Company and Detroit Edison; maintaining an
inventory of systems and devices; performing an assessment of
inventoried systems and devices; performing compliance testing of
suspect systems and devices; remediation of non-compliant
systems and devices through replacement,
23
repair, retirement, or identifying an acceptable work around;
testing and remediation of systems and devices in an integrated
environment and preparing business continuity plans.
Inventory, assessment and compliance testing phases have been
completed for known systems and devices. Remediation of mission
critical assets is complete. Integration planning, including the
mapping of critical business processes, is complete for Detroit
Edison. Integration testing for Detroit Edison is also complete.
To support the program, the Year 2000 office has been
working with major utility industry associations and
organizations, customers and vendors to gather and share
information on Year 2000 issues. Letters were sent to the
North American Electric Reliability Council (NERC) and the
U.S. Nuclear Regulatory Commission (NRC) concerning
Year 2000 readiness on June 29, 1999 and June 30,
1999, respectively. These letters confirmed that Detroit Edison
systems critical to the generation, transmission and distribution
of power are ready for operation into the new millennium. The
NRC responded on October 1, 1999, confirming that all
requested information has been provided. The program office has
contacted vendors critical to Company operations to determine
their progress on Year 2000.
To further assist in identifying potential problems, tests of
generating facilities have been conducted by advancing control
systems dates to the Year 2000. Results of these tests have
shown that the generating facilities operated successfully in
this induced “millennium mode.” Exercises were
conducted on December 31, 1998 and January 1, 1999 to
assess the ability to reach employees and the regional security
centers of the East Central Area Reliability Group through
various communication channels. The exercised communication
channels operated properly. Detroit Edison back-up
telecommunication systems worked as designed in a North
America-wide drill conducted on April 9, 1999. Detroit
Edison participated in the NERC nationwide Year 2000 drill
for all utility systems on September 8 and 9, 1999. As a
result of the drill, Detroit Edison was able to demonstrate its
ability to deploy resources, perform operation and administrative
procedures, use backup telecommunication systems and implement
some contingency plans.
In the event that an unknown Year 2000 condition adversely
affects service to customers or an internal business process,
contingency and business continuity plans and procedures have
been developed to provide rapid restoration to normal conditions.
The Company and Detroit Edison have always maintained a
comprehensive operational emergency response plan. The business
continuity function of the Year 2000 program supplements the
existing emergency plan to include Year 2000 specific
events. To manage and coordinate operations, including
mobilization of all employees as necessary during the transition
to the new millennium, a Year 2000 emergency coordination
center was fully operational as of September 30, 1999.
During the rollover event, the emergency management staffing plan
calls for 1,300 working and on-call employees to manage
Year 2000 issues. This is in addition to the normal
holiday-weekend staff. Most of the employees work in the Fossil
Generation, Nuclear Generation, Energy Delivery and Information
Systems organizations. Key facilities, including substations,
will be staffed during the rollover. The emergency coordination
center will continuously monitor the impact of Year 2000 as
it is experienced in other parts of the world and moves to the
Eastern Standard Time zone.
24
The Company and Detroit Edison believe that with all
Year 2000 modifications, business continuity and emergency
management plans in place, the Year 2000 will not have a
material effect on their financial position, liquidity and
results of operations. Despite all efforts, there can be no
assurances that Year 2000 issues can be totally eliminated.
Results of modifications and testing done through
September 30, 1999 have demonstrated that Detroit Edison
should be able to maintain normal operating conditions into the
Year 2000, although there may be isolated electric service
interruptions. Detroit Edison’s internal business systems
may be affected by a Year 2000 related failure that could
temporarily interrupt the ability to communicate with customers,
collect revenue, or complete cash transactions. In addition, no
assurances can be given that the systems of vendors,
interconnected utilities and customers will not result in
Year 2000 problems.
The Company estimates that Year 2000 costs will approximate
$87 million with $81 million expended through
September 30, 1999. Operating cash flow is expected to be
sufficient to pay Year 2000 modification costs with no
material impact on operating results or cash flows.
RESULTS OF OPERATIONS
For the three months ended September 30, 1999, the
Company’s net income was $161 million or $1.11 per
common share as compared to $132 million or $0.91 per
common share during the same period in 1998. For the nine months
ended September 30, 1999, net income was $386 million or
$2.66 per common share compared to $337 million or
$2.32 per common share during the same period in 1998.
The 1999 three and nine month earnings were higher than 1998 due
to higher electric system sales and increased utilization of tax
credits generated by non-regulated businesses, partially offset
by higher operating expenses, primarily Year 2000, fuel and
purchased power, and depreciation and amortization expenses.
Operating Revenues
Increases in operating revenues were due primarily to higher
non-regulated subsidiary revenues, principally energy trading and
coke oven battery operations, higher system sales due to
increased customer base and electric usage and increased heating
load for the nine month period, partially offset by decreased
sales between utilities and regulated rate decreases.
25
Detroit Edison kWh sales increased (decreased) as compared
to the prior year as follows:
The increase in residential sales resulted from growth in the
customer base and electric usage, and more heating related demand
for the nine month period. Industrial sales increased,
reflecting more heating related demand along with replacement
energy sales for the Ford Rouge Power Plant for the nine month
period and a continuation of favorable economic conditions.
Commercial sales decreased for the three month period due to
cooler weather. Sales to other customers increased reflecting
increased demand from sales for resale customers. Sales between
utilities decreased due to less power available for sale.
Operating Expenses
Fuel and Purchased Power
For the three and nine month periods ended, fuel and purchased
power expense increased for the Company due primarily to new
non-regulated subsidiary expenses, principally energy trading
operations. Detroit Edison fuel and purchased power expense
increased due to increased purchases of higher cost power and
higher system output, partially offset by increased usage of
lower cost system generation as a result of increased system
availability and lower fuel unit costs due to decreased nuclear
fuel cost and increased usage of low cost Fermi 2 generation.
Net system output and average fuel and purchased power unit costs
for Detroit Edison were as follows:
26
Operation and Maintenance
Operation and maintenance expense increased for the three and
nine month periods due to new non-regulated subsidiary operation
expense ($33 million) and ($126 million), respectively,
higher transmission and distribution related expenses for the
three month period ($26 million) and higher expenses for
Year 2000 testing and remediation for the nine month period
($27 million). The increase in non-regulated subsidiary
operation expense was due to the increased level of operation and
the addition of new businesses.
Income Taxes
Income tax expense for the Company decreased in 1999 due
primarily to increased utilization of alternate fuels credits
generated from non-regulated businesses and the end of the
Fermi 2 phase-in plan.
FORWARD-LOOKING STATEMENTS
Certain information presented herein is based on the expectations
of the Company and Detroit Edison, and, as such, is
forward-looking. The Private Securities Litigation Reform Act of
1995 encourages reporting companies to provide analyses and
estimates of future prospects and also permits reporting
companies to point out that actual results may differ from those
anticipated.
Actual results for the Company and Detroit Edison may differ from
those expected due to a number of variables including, but not
limited to, weather, actual sales, the effects of competition and
the phased-in implementation of Electric Choice, the
implementation of utility restructuring in Michigan (which
involves pending and proposed regulatory and legislative
proceedings, and the recovery of stranded costs), environmental
(including proposed regulations to limit nitrogen oxide
emissions) and nuclear requirements, the impact of FERC
proceedings and regulations, the success of non-regulated lines
of business and the timely completion and functioning of Year
2000 modifications. In addition, expected results will be
dependent upon the successful completion and implementation of
the Company’s pending merger with MCN. While the Company and
Detroit Edison believe that estimates given accurately measure
the expected outcome, actual results could vary materially due to
the variables mentioned as well as others. This discussion
contains a Year 2000 readiness disclosure.
27
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Three
Nine
Months
Months
Residential
2.0
%
3.2
%
Commercial
(0.6
)
2.8
Industrial
11.1
4.7
Other (includes primarily sales for resale)
12.6
10.3
Total System
3.9
3.8
Sales between utilities
(26.0
)
(29.6
)
Total
2.2
0.9
Three Months
Nine Months
1999
1998
1999
1998
(Thousands of MWh)
Power plant generation
Fossil
11,847
11,387
32,021
32,784
Nuclear
2,377
1,445
7,028
5,734
Purchased power
1,988
2,924
5,761
5,706
Net system output
16,212
15,756
44,510
44,224
Average unit cost ($/MWh)
Generation
$
12.80
$
13.18
$
12.54
$
12.88
Purchased power
101.62
53.81
60.38
48.33
Table of Contents
Table of Contents
A special meeting of the Company’s common shareholders will be held on December 20, 1999. At this meeting, Shareholders will be asked to approve the issuance of common stock in connection with the MCN merger. The affirmative vote of a majority of shares voting is required for passage.
28
See pages 11 through 15.
| Item 2 — | Management’s Discussion and Analysis of Financial Condition and Results of Operations. |
See the Company’s and Detroit Edison’s “Item 2 — Management’s Discussion and Analysis of Financial Condition and Results of Operations,” which is incorporated herein by this reference.
In a lawsuit filed in January 1999 in the Circuit Court for Wayne County Michigan ( Cook, et al v. Detroit Edison ), a number of individual plaintiffs have claimed employment-related sex, gender and race discrimination, as well as harassment. A hearing on plaintiffs’ request for class action certification is scheduled to be held in December 1999. Detroit Edison believes the claims are without merit and class action certification is not appropriate.
29
(a) Exhibits
(i) Exhibits filed herewith.
Exhibit
Number
3-14
—
Bylaws of Detroit Edison, as amended through September 22,
1999.
4-204
—
Supplemental Indenture, dated as of August 1, 1999, creating
the General and Refunding Mortgage Bonds, 1999 Series AP,
Due September 1, 2029; 1999 Series BP, Due
September 1, 2029; and 1999 Series LP, Due
September 1, 2029.
4-205
—
Supplemental Indenture, dated as of August 15, 1999,
creating the General and Refunding Mortgage Bonds, Floating Rate
1999 Series D Due September 17, 2001.
11-17
—
DTE Energy Company Basic and Diluted Earnings Per Share of Common
Stock.
12-20
—
DTE Energy Company Computation of Ratio of Earnings to Fixed
Charges.
12-21
—
The Detroit Edison Company Computation of Ratio of Earnings to
Fixed Charges.
15-12
—
Awareness Letter of Deloitte & Touche LLP regarding their
report dated November, 1999.
27-29
—
Financial Data Schedule for the period ended September 30,
1999 for DTE Energy Company.
27-30
—
Financial Data Schedule for the period ended September 30,
1999 for The Detroit Edison Company.
99-29
—
U.S. $160,000,000 Standby Note Purchase Credit Facility, dated as
of October 26, 1999, among Detroit Edison, the Bank’s
signatory thereto, Barclays Bank PLC, as Administrative Agent and
Barclays Capital Inc., Lehman Brothers Inc. and Banc One Capital
Markets, Inc., as Remarketing Agents.
30
99-30
—
Seventh Amendment, dated as of August 26, 1999, to
$200,000,000 364-Day Credit Agreement, dated as of
September 1, 1993, as amended among The Detroit Edison
Company, Renaissance Energy Company, the Banks parties thereto
and Barclays Bank PLC, New York branch as Agent.
99-31
—
Eighth Amendment, dated as of August 26, 1999 to 1988
Amended and Restated Nuclear Fuel Heat Purchase Contract between
Detroit Edison and Renaissance Energy Company.
(ii) Exhibits incorporated herein by reference.
2
(a)
—
Agreement and Plan of Merger, among DTE Energy Company, MCN
Energy Group Inc. and DTE Enterprises, Inc., dated as of
October 4, 1999 (Exhibit 2(a) to Form 8-K dated
October 5, 1999).
3
(a)
—
Amended and Restated Articles of Incorporation of DTE Energy
Company, dated December 13, 1995. (Exhibit 3-5 to
Form 10-Q for quarter ended September 30, 1997).
3
(b)
—
Certificate of Designation of Series A Junior Participating
Preferred Stock of DTE Energy Company. Exhibit 3-6 to
Form 10-Q for quarter ended September 30, 1997.)
3
(c)
—
Bylaws of DTE Energy Company, as amended through September
22, 1999 (Exhibit 3-3 to Registration No. 333-89175).
3
(d)
—
Articles of Incorporation of DTE Enterprises, Inc. (Exhibit
3.5 to Registration No. 333-89175).
3
(e)
—
Bylaws of DTE Enterprises, Inc. (Exhibit 3.6 to Registration
No. 333-89175).
3
(f)
—
Rights Agreement, dated as of September 23, 1997, by and
between DTE Energy Company and The Detroit Edison Company, as
Rights Agent (Exhibit 4-1 to DTE Energy Company Current
Report on Form 8-K, dated September 23, 1997).
3
(g)
—
Agreement and Plan of Exchange (Exhibit 1(2) to DTE Energy
Form 8-B filed January 2, 1996, File No. 1-11607).
4
(a)
—
Mortgage and Deed of Trust, dated as of October 1, 1924,
between Detroit Edison (File No. 1-2198) and Bankers Trust
Company as Trustee (Exhibit B-1 to Registration No.
2-1630) and indentures supplemental thereto, dated as of dates
indicated below, and filed as exhibits to the filings as set
forth below:
September 1, 1947
Exhibit B-20 to Registration No. 2-7136
October 1, 1968
Exhibit 2-B-33 to Registration No. 2-30096
November 15, 1971
Exhibit 2-B-38 to Registration No. 2-42160
31
January 15, 1973
Exhibit 2-B-39 to Registration No. 2-46595
June 1, 1978
Exhibit 2-B-51 to Registration No. 2-61643
June 30, 1982
Exhibit 4-30 to Registration No. 2-78941
August 15, 1982
Exhibit 4-32 to Registration No. 2-79674
October 15, 1985
Exhibit 4-170 to Form 10-K for year ended
December 31, 1994
November 30, 1987
Exhibit 4-139 to Form 10-K for year ended
December 31, 1992
July 15, 1989
Exhibit 4-171 to Form 10-K for year ended
December 31, 1994
December 1, 1989
Exhibit 4-172 to Form 10-K for year ended
December 31, 1994
February 15, 1990
Exhibit 4-173 to Form 10-K for year ended
December 31, 1994
April 1, 1991
Exhibit 4-15 to Form 10-K for year ended
December 31, 1996
May 1, 1991
Exhibit 4-178 to Form 10-K for year ended
December 31, 1996
May 15, 1991
Exhibit 4-179 to Form 10-K for year ended
December 31, 1996
September 1, 1991
Exhibit 4-180 to Form 10-K for year ended
December 31, 1996
November 1, 1991
Exhibit 4-181 to Form 10-K for year ended
December 31, 1996
January 15, 1992
Exhibit 4-182 to Form 10-K for year ended
December 31, 1996
February 29, 1992
Exhibit 4-187 to Form 10-Q for quarter ended
March 31, 1998
April 15, 1992
Exhibit 4-188 to Form 10-Q for quarter ended
March 31, 1998
July 15, 1992
Exhibit 4-189 to Form 10-Q for quarter ended
March 31, 1998
July 31, 1992
Exhibit 4-190 to Form 10-Q for quarter ended
March 31, 1998
November 30, 1992
Exhibit 4-130 to Registration No. 33-56496
January 1, 1993
Exhibit 4-131 to Registration No. 33-56496
March 1, 1993
Exhibit 4-191 to Form 10-Q for quarter ended
March 31, 1998
March 15, 1993
Exhibit 4-192 to Form 10-Q for quarter ended
March 31, 1998
April 1, 1993
Exhibit 4-143 to Form 10-Q for quarter ended
March 31, 1993
April 26, 1993
Exhibit 4-144 to Form 10-Q for quarter ended
March 31, 1993
May 31, 1993
Exhibit 4-148 to Registration No. 33-64296
June 30, 1993
Exhibit 4-149 to Form 10-Q for quarter ended
June 30, 1993 (1993 Series AP)
June 30, 1993
Exhibit 4-150 to Form 10-Q for quarter ended
June 30, 1993 (1993 Series H)
32
September 15, 1993
Exhibit 4-158 to Form 10-Q for quarter ended
September 30, 1993
March 1, 1994
Exhibit 4-163 to Registration No. 33-53207
June 15, 1994
Exhibit 4-166 to Form 10-Q for quarter ended
June 30, 1994
August 15, 1994
Exhibit 4-168 to Form 10-Q for quarter ended
September 30, 1994
December 1, 1994
Exhibit 4-169 to Form 10-K for year ended
December 31, 1994
August 1, 1995
Exhibit 4-174 to Form 10-Q for quarter ended
September 30, 1995
4
(b)
—
Collateral Trust Indenture (notes), dated as of June 30,
1993 (Exhibit 4-152 to Registration No. 33-50325).
4
(c)
—
First Supplemental Note Indenture, dated as of June 30, 1993
(Exhibit 4-153 to Registration No. 33-50325).
4
(d)
—
Second Supplemental Note Indenture, dated as of September
15, 1993 (Exhibit 4-159 to Form 10-Q for quarter ended
September 30, 1993).
4
(e)
—
First Amendment, dated as of August 15, 1996, to Second
Supplemental Note Indenture (Exhibit 4-17 to Form 10-Q
for quarter ended September 30, 1996).
4
(f)
—
Third Supplemental Note Indenture, dated as of August 15,
1994 (Exhibit 4-169 to Form 10-Q for quarter ended
September 30, 1994).
4
(g)
—
First Amendment, dated as of December 12, 1995, to Third
Supplemental Note Indenture, dated as of August 15, 1994
(Exhibit 4-12 to Registration No. 333-00023).
4
(h)
—
Fourth Supplemental Note Indenture, dated as of August 15,
1995 (Exhibit 4-175 to Detroit Edison Form 10-Q for
quarter ended September 30, 1995).
4
(i)
—
Fifth Supplemental Note Indenture, dated as of February 1,
1996 (Exhibit 4-14 to Form 10-K for year ended
December 31, 1996).
4
(j)
—
Sixth Supplemental Note Indenture, dated as of May 1, 1998,
between Detroit Edison and Bankers Trust Company, as Trustee,
creating the 7.54% Quarterly Income Debt Securities
(“QUIDS”), including form of QUIDS. (Exhibit 4-193
to Form 10-Q for quarter ended June 30, 1998.)
4
(k)
—
Seventh Supplemental Note Indenture, dated as of October
15, 1998, between Detroit Edison and Bankers Trust Company, as
Trustee, creating the 7.375% QUIDS, including form of QUIDS.
(Exhibit 4-198 to Form 10-K for year ended
December 31, 1998.)
33
4
(l)
—
Standby Note Purchase Credit Facility, dated as of August
17, 1994, among The Detroit Edison Company, Barclays Bank PLC, as
Bank and Administrative Agent, Bank of America, The Bank of New
York, The Fuji Bank Limited, The Long-Term Credit Bank of Japan,
LTD, Union Bank and Citicorp Securities, Inc. and First Chicago
Capital Markets, Inc. as Remarketing Agents (Exhibit 99-18
to Form 10-Q for quarter ended September 30, 1994).
4
(m)
—
$60,000,000 Support Agreement dated as of January 21, 1998
between DTE Energy Company and DTE Capital Corporation.
(Exhibit 4-183 to Form 10-K for year ended
December 31, 1997.)
4
(n)
—
$100,000,000 Support Agreement, dated as of June 16, 1998,
between DTE Energy Company and DTE Capital Corporation.
(Exhibit 4-194 to Form 10-Q for quarter ended
June 30, 1998.)
4
(o)
—
$300,000,000 Support Agreement, dated as of November 18,
1998, between DTE Energy and DTE Capital Corporation.
(Exhibit 4-199 to Form 10-K for year ended
December 31, 1998.)
4
(p)
—
$400,000,000 Support Agreement, dated as of January 19,
1999, between DTE Energy Company and DTE Capital Corporation.
(Exhibit 4-201 to Form 10-K for year ended
December 31, 1998.)
4
(q)
—
$50,000,000 Support Agreement dated as of June 10, 1999
between DTE Energy Company and DTE Capital Corporation
(Exhibit 4-203 to Form 10-Q for quarter ended
June 30, 1999).
4
(r)
—
Indenture, dated as of June 15, 1998, between DTE Capital
Corporation and The Bank of New York, as Trustee. (Exhibit
4-196 to Form 10-Q for quarter ended June 30, 1998.)
4
(s)
—
First Supplemental Indenture, dated as of June 15, 1998,
between DTE Capital Corporation and The Bank of New York, as
Trustee, creating the $100,000,000 Remarketed Notes, Series
A due 2038, including form of Note. Exhibit 4-197 to
Form 10-Q for quarter ended June 30, 1998.)
4
(t)
—
Second Supplemental Indenture, dated as of November 1, 1998,
between DTE Capital Corporation and The Bank of New York, as
Trustee, creating the $300,000,000 Remarketed Notes, 1998
Series B, including form of Note. (Exhibit 4-200 to
Form 10-K for year ended December 31, 1998.)
4
(u)
—
Second Amended and Restated Credit Agreement, Dated as of J
January 19, 1999 among DTE Capital Corporation, the Initial
Lenders, Citibank, N.A., as Agent, and ABN AMRO Bank N.V.,
Barclays Bank PLC, Bayerische Landesbank Giruzertrale, Cayman
Islands Branch, Comerica Bank, Den Daske Bank Aktieselskab and
The First National Bank of Chicago, as Co-Agents, and Salomon
Smith Barney Inc., as
34
Arranger. (Exhibit 99-28 to Form 10-K for year ended
December 31, 1998).
4
(v)
—
$40,000,000 Support Agreement dated as of February 24, 1999
between DTE Energy Company and DTE Capital Corporation
(Exhibit 4-202 to Form 10-Q for quarter ended
March 31, 1999).
99
(a)
—
Belle River Participation Agreement between Detroit Edison and
Michigan Public Power Agency, dated as of December 1, 1982
(Exhibit 28-5 to Registration No. 2-81501).
99
(b)
—
Belle River Transmission Ownership and Operating Agreement
between Detroit Edison and Michigan Public Power Agency, dated as
of December 1, 1982 (Exhibit 28-6 to Registration
No. 2-81501).
99
(c)
—
1988 Amended and Restated Loan Agreement, dated as of
October 4, 1988, between Renaissance Energy Company (an
unaffiliated company) (“Renaissance”) and Detroit
Edison (Exhibit 99-6 to Registration No. 33-50325).
99
(d)
—
First Amendment to 1988 Amended and Restated Loan Agreement,
dated as of February 1, 1990, between Detroit Edison and
Renaissance (Exhibit 99-7 to Registration
No. 33-50325).
99
(e)
—
Second Amendment to 1988 Amended and Restated Loan Agreement,
dated as of September 1, 1993, between Detroit Edison and
Renaissance (Exhibit 99-8 to Registration No.
33-50325).
99
(f)
—
Third Amendment, dated as of August 28, 1997, to 1988
Amended and Restated Loan Agreement between Detroit Edison and
Renaissance (Exhibit 99-22 to Form 10-Q for quarter
ended September 30, 1997.)
99
(g)
—
$200,000,000 364-Day Credit Agreement, dated as of
September 1, 1993, among Detroit Edison, Renaissance and
Barclays Bank PLC, New York Branch, as Agent (Exhibit 99-12
to Registration No. 33-50325).
99
(h)
—
First Amendment, dated as of August 31, 1994, to
$200,000,000 364-Day Credit Agreement, dated September 1,
1993, among The Detroit Edison Company, Renaissance Energy
Company, the Banks party thereto and Barclays Bank, PLC, New York
Branch, as Agent (Exhibit 99-19 to Form 10-Q for
quarter ended September 30, 1994).
99
(i)
—
Third Amendment, dated as of March 8, 1996, to $200,000,000
364-Day Credit Agreement, dated September 1, 1993, as
amended, among Detroit Edison, Renaissance, the Banks party
thereto and Barclays Bank, PLC, New York Branch, as Agent
(Exhibit 99-11 to Form 10-Q for quarter ended
March 31, 1996).
35
99
(j)
—
Fourth Amendment, dated as of August 29, 1996, to
$200,000,000 364-Day Credit Agreement as of September 1,
1990, as amended, among Detroit Edison, Renaissance, the Banks
party thereto and Barclays Bank, PLC, New York Branch, as Agent
(Exhibit 99-13 to Form 10-Q for quarter ended
September 30, 1996).
99
(k)
—
Fifth Amendment, dated as of September 1, 1997, to
$200,000,000 Multi-Year Credit Agreement, dated as of
September 1, 1993, as amended, among Detroit Edison,
Renaissance, the Banks Party thereto and Barclays Bank PLC, New
York Branch, as Agent. (Exhibit 99-24 to Form 10-Q for
quarter ended September 30, 1997.)
99
(l)
—
$200,000,000 Three-Year Credit Agreement, dated September
1, 1993, among Detroit Edison, Renaissance and Barclays Bank,
PLC, New York Branch, as Agent (Exhibit 99-13 to
Registration No. 33-50325).
99
(m)
—
First Amendment, dated as of September 1, 1994, to
$200,000,000 Three-Year Credit Agreement, dated as of
September 1, 1993, among The Detroit Edison Company,
Renaissance Energy Company, the Banks party thereto and Barclays
Banks party thereto and Barclays Bank, PLC, New York Branch, as
Agent (Exhibit 99-14 to Form 10-Q for quarter ended
September 30, 1996).
99
(p)
—
Fifth Amendment, dated as of August 28, 1997, to
$200,000,000 364-Day Credit Agreement, dated as of
September 1, 1990, as amended, among Detroit Edison,
Renaissance, the Banks Party thereto and Barclays Bank PLC, New
York Branch, as Agent (Exhibit 99-25 to Form 10-Q for
quarter ended September 30, 1997.)
99
(q)
—
Sixth Amendment, dated as of August 27, 1998, to
$200,000,000 364-Day Credit Agreement dated as of September
1, 1990, as amended, among Detroit Edison, Renaissance, the
Banks party thereto and Barclays Bank PLC, New York Branch, as
agent. (Exhibit 99-32 to Registration No. 333-65765.)
36
99
(r)
—
1988 Amended and Restated Nuclear Fuel Heat Purchase Contract,
dated October 4, 1988, between Detroit Edison and
Renaissance (Exhibit 99-9 to Registration
No. 33-50325).
99
(s)
—
First Amendment to 1988 Amended and Restated Nuclear Fuel Heat
Purchase Contract, dated as of February 1, 1990, between
Detroit Edison and Renaissance (Exhibit 99-10 to
Registration No. 33-50325).
99
(t)
—
Second Amendment, dated as of September 1, 1993, to 1988
Amended and Restated Nuclear Fuel Heat Purchase Contract between
Detroit Edison and Renaissance (Exhibit 99-11 to
Registration No. 33-50325).
99
(u)
—
Third Amendment, dated as of August 31, 1994, to 1988
Amended and Restated Nuclear Fuel Heat Purchase Contract, dated
October 4, 1988, between The Detroit Edison Company and
Renaissance Energy Company (Exhibit 99-21 to Form 10-Q
for quarter ended September 30, 1994).
99
(v)
—
Fourth Amendment, dated as of March 8, 1996, to 1988 Amended
and Restated Nuclear Fuel Heat Purchase Contract Agreement,
dated as of October 4, 1988, between Detroit Edison and
Renaissance (Exhibit 99-10 to Form 10-Q for quarter
ended March 31, 1996).
99
(w)
—
Sixth Amendment, dated as of August 28, 1997, to 1988
Amended and Restated Nuclear Fuel Heat Purchase Contract between
Detroit Edison and Renaissance. (Exhibit 99-23 to
Form 10-Q for quarter ended September 30, 1997.)
99
(x)
—
Standby Note Purchase Credit Facility, dated as of
September 12, 1997, among The Detroit Edison Company and the
Bank’s Signatory thereto and The Chase Manhattan Bank, as
Administrative Agent, and Citicorp Securities, Inc., Lehman
Brokers, Inc., as Remarketing Agents and Chase Securities, Inc.
as Arranger. (Exhibit 999-26 to Form 10-Q for quarter
ended September 30, 1997.)
(b) On October 5, 1999 the Company filed a Current Report on Form 8-K discussing the proposed merger with MCN.
37
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
|
DTE ENERGY COMPANY
(Registrant) |
||||
| Date | November 8, 1999 |
/s/ SUSAN M. BEALE
Susan M. Beale Vice President and Corporate Secretary |
||
| Date | November 8, 1999 |
/s/ DAVID E. MEADOR
David E. Meador Vice President |
||
38
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
|
THE DETROIT EDISON COMPANY
(Registrant) |
||||
| Date | November 8, 1999 |
/s/ SUSAN M. BEALE
Susan M. Beale Vice President and Corporate Secretary |
||
| Date | November 8, 1999 |
/s/ DANIEL G. BRUDZYNSKI
Daniel G. Brudzynski Controller |
||
39
| Exhibit | ||||||||||
| Number | ||||||||||
|
|
||||||||||
| 3-14 | — | Bylaws of Detroit Edison, as amended through September 22, 1999. | ||||||||
| 4-204 | — | Supplemental Indenture, dated as of August 1, 1999, creating the General and Refunding Mortgage Bonds, 1999 Series AP, Due September 1, 2029; 1999 Series BP, Due September 1, 2029; and 1999 Series LP, Due September 1, 2029. | ||||||||
| 4-205 | — | Supplemental Indenture, dated as of August 15, 1999, creating the General and Refunding Mortgage Bonds, Floating Rate 1999 Series D Due September 17, 2001. | ||||||||
| 11-17 | — | DTE Energy Company Basic and Diluted Earnings Per Share of Common Stock. | ||||||||
| 12-20 | — | DTE Energy Company Computation of Ratio of Earnings to Fixed Charges. | ||||||||
| 12-21 | — | The Detroit Edison Company Computation of Ratio of Earnings to Fixed Charges. | ||||||||
| 15-12 | — | Awareness Letter of Deloitte & Touche LLP regarding their report dated November, 1999. | ||||||||
| 27-29 | — | Financial Data Schedule for the period ended September 30, 1999 for DTE Energy Company. | ||||||||
| 27-30 | — | Financial Data Schedule for the period ended September 30, 1999 for The Detroit Edison Company. | ||||||||
| 99-29 | — | U.S. $160,000,000 Standby Note Purchase Credit Facility, dated as of October 26, 1999, among Detroit Edison, the Bank’s signatory thereto, Barclays Bank PLC, as Administrative Agent and Barclays Capital Inc., Lehman Brothers Inc. and Banc One Capital Markets, Inc., as Remarketing Agents. | ||||||||
40
99-30
—
Seventh Amendment, dated as of August 26, 1999, to
$200,000,000 364-Day Credit Agreement, dated as of
September 1, 1993, as amended among The Detroit Edison
Company, Renaissance Energy Company, the Banks parties thereto
and Barclays Bank PLC, New York branch as Agent.
99-31
—
Eighth Amendment, dated as of August 26, 1999 to 1988
Amended and Restated Nuclear Fuel Heat Purchase Contract between
Detroit Edison and Renaissance Energy Company.
(ii) Exhibits incorporated herein by reference.
2
(a)
—
Agreement and Plan of Merger, among DTE Energy Company, MCN
Energy Group Inc. and DTE Enterprises, Inc., dated as of
October 4, 1999 (Exhibit 2(a) to Form 8-K dated
October 5, 1999).
3
(a)
—
Amended and Restated Articles of Incorporation of DTE Energy
Company, dated December 13, 1995. (Exhibit 3-5 to
Form 10-Q for quarter ended September 30, 1997).
3
(b)
—
Certificate of Designation of Series A Junior Participating
Preferred Stock of DTE Energy Company. Exhibit 3-6 to
Form 10-Q for quarter ended September 30, 1997.)
3
(c)
—
Bylaws of DTE Energy Company, as amended through September
22, 1999 (Exhibit 3-3 to Registration No. 333-89175).
3
(d)
—
Articles of Incorporation of DTE Enterprises, Inc. (Exhibit
3.5 to Registration No. 333-89175).
3
(e)
—
Bylaws of DTE Enterprises, Inc. (Exhibit 3.6 to Registration
No. 333-89175).
3
(f)
—
Rights Agreement, dated as of September 23, 1997, by and
between DTE Energy Company and The Detroit Edison Company, as
Rights Agent (Exhibit 4-1 to DTE Energy Company Current
Report on Form 8-K, dated September 23, 1997).
3
(g)
—
Agreement and Plan of Exchange (Exhibit 1(2) to DTE Energy
Form 8-B filed January 2, 1996, File No. 1-11607).
4
(a)
—
Mortgage and Deed of Trust, dated as of October 1, 1924,
between Detroit Edison (File No. 1-2198) and Bankers Trust
Company as Trustee (Exhibit B-1 to Registration No.
2-1630) and indentures supplemental thereto, dated as of dates
indicated below, and filed as exhibits to the filings as set
forth below:
September 1, 1947
Exhibit B-20 to Registration No. 2-7136
October 1, 1968
Exhibit 2-B-33 to Registration No. 2-30096
November 15, 1971
Exhibit 2-B-38 to Registration No. 2-42160
41
January 15, 1973
Exhibit 2-B-39 to Registration No. 2-46595
June 1, 1978
Exhibit 2-B-51 to Registration No. 2-61643
June 30, 1982
Exhibit 4-30 to Registration No. 2-78941
August 15, 1982
Exhibit 4-32 to Registration No. 2-79674
October 15, 1985
Exhibit 4-170 to Form 10-K for year ended
December 31, 1994
November 30, 1987
Exhibit 4-139 to Form 10-K for year ended
December 31, 1992
July 15, 1989
Exhibit 4-171 to Form 10-K for year ended
December 31, 1994
December 1, 1989
Exhibit 4-172 to Form 10-K for year ended
December 31, 1994
February 15, 1990
Exhibit 4-173 to Form 10-K for year ended
December 31, 1994
April 1, 1991
Exhibit 4-15 to Form 10-K for year ended
December 31, 1996
May 1, 1991
Exhibit 4-178 to Form 10-K for year ended
December 31, 1996
May 15, 1991
Exhibit 4-179 to Form 10-K for year ended
December 31, 1996
September 1, 1991
Exhibit 4-180 to Form 10-K for year ended
December 31, 1996
November 1, 1991
Exhibit 4-181 to Form 10-K for year ended
December 31, 1996
January 15, 1992
Exhibit 4-182 to Form 10-K for year ended
December 31, 1996
February 29, 1992
Exhibit 4-187 to Form 10-Q for quarter ended
March 31, 1998
April 15, 1992
Exhibit 4-188 to Form 10-Q for quarter ended
March 31, 1998
July 15, 1992
Exhibit 4-189 to Form 10-Q for quarter ended
March 31, 1998
July 31, 1992
Exhibit 4-190 to Form 10-Q for quarter ended
March 31, 1998
November 30, 1992
Exhibit 4-130 to Registration No. 33-56496
January 1, 1993
Exhibit 4-131 to Registration No. 33-56496
March 1, 1993
Exhibit 4-191 to Form 10-Q for quarter ended
March 31, 1998
March 15, 1993
Exhibit 4-192 to Form 10-Q for quarter ended
March 31, 1998
April 1, 1993
Exhibit 4-143 to Form 10-Q for quarter ended
March 31, 1993
April 26, 1993
Exhibit 4-144 to Form 10-Q for quarter ended
March 31, 1993
May 31, 1993
Exhibit 4-148 to Registration No. 33-64296
June 30, 1993
Exhibit 4-149 to Form 10-Q for quarter ended
June 30, 1993 (1993 Series AP)
June 30, 1993
Exhibit 4-150 to Form 10-Q for quarter ended
June 30, 1993 (1993 Series H)
42
September 15, 1993
Exhibit 4-158 to Form 10-Q for quarter ended
September 30, 1993
March 1, 1994
Exhibit 4-163 to Registration No. 33-53207
June 15, 1994
Exhibit 4-166 to Form 10-Q for quarter ended
June 30, 1994
August 15, 1994
Exhibit 4-168 to Form 10-Q for quarter ended
September 30, 1994
December 1, 1994
Exhibit 4-169 to Form 10-K for year ended
December 31, 1994
August 1, 1995
Exhibit 4-174 to Form 10-Q for quarter ended
September 30, 1995
4
(b)
—
Collateral Trust Indenture (notes), dated as of June 30,
1993 (Exhibit 4-152 to Registration No. 33-50325).
4
(c)
—
First Supplemental Note Indenture, dated as of June 30, 1993
(Exhibit 4-153 to Registration No. 33-50325).
4
(d)
—
Second Supplemental Note Indenture, dated as of September
15, 1993 (Exhibit 4-159 to Form 10-Q for quarter ended
September 30, 1993).
4
(e)
—
First Amendment, dated as of August 15, 1996, to Second
Supplemental Note Indenture (Exhibit 4-17 to Form 10-Q
for quarter ended September 30, 1996).
4
(f)
—
Third Supplemental Note Indenture, dated as of August 15,
1994 (Exhibit 4-169 to Form 10-Q for quarter ended
September 30, 1994).
4
(g)
—
First Amendment, dated as of December 12, 1995, to Third
Supplemental Note Indenture, dated as of August 15, 1994
(Exhibit 4-12 to Registration No. 333-00023).
4
(h)
—
Fourth Supplemental Note Indenture, dated as of August 15,
1995 (Exhibit 4-175 to Detroit Edison Form 10-Q for
quarter ended September 30, 1995).
4
(i)
—
Fifth Supplemental Note Indenture, dated as of February 1,
1996 (Exhibit 4-14 to Form 10-K for year ended
December 31, 1996).
4
(j)
—
Sixth Supplemental Note Indenture, dated as of May 1, 1998,
between Detroit Edison and Bankers Trust Company, as Trustee,
creating the 7.54% Quarterly Income Debt Securities
(“QUIDS”), including form of QUIDS. (Exhibit 4-193
to Form 10-Q for quarter ended June 30, 1998.)
4
(k)
—
Seventh Supplemental Note Indenture, dated as of October
15, 1998, between Detroit Edison and Bankers Trust Company, as
Trustee, creating the 7.375% QUIDS, including form of QUIDS.
(Exhibit 4-198 to Form 10-K for year ended
December 31, 1998.)
43
4
(l)
—
Standby Note Purchase Credit Facility, dated as of August
17, 1994, among The Detroit Edison Company, Barclays Bank PLC, as
Bank and Administrative Agent, Bank of America, The Bank of New
York, The Fuji Bank Limited, The Long-Term Credit Bank of Japan,
LTD, Union Bank and Citicorp Securities, Inc. and First Chicago
Capital Markets, Inc. as Remarketing Agents (Exhibit 99-18
to Form 10-Q for quarter ended September 30, 1994).
4
(m)
—
$60,000,000 Support Agreement dated as of January 21, 1998
between DTE Energy Company and DTE Capital Corporation.
(Exhibit 4-183 to Form 10-K for year ended
December 31, 1997.)
4
(n)
—
$100,000,000 Support Agreement, dated as of June 16, 1998,
between DTE Energy Company and DTE Capital Corporation.
(Exhibit 4-194 to Form 10-Q for quarter ended
June 30, 1998.)
4
(o)
—
$300,000,000 Support Agreement, dated as of November 18,
1998, between DTE Energy and DTE Capital Corporation.
(Exhibit 4-199 to Form 10-K for year ended
December 31, 1998.)
4
(p)
—
$400,000,000 Support Agreement, dated as of January 19,
1999, between DTE Energy Company and DTE Capital Corporation.
(Exhibit 4-201 to Form 10-K for year ended
December 31, 1998.)
4
(q)
—
$50,000,000 Support Agreement dated as of June 10, 1999
between DTE Energy Company and DTE Capital Corporation
(Exhibit 4-203 to Form 10-Q for quarter ended
June 30, 1999).
4
(r)
—
Indenture, dated as of June 15, 1998, between DTE Capital
Corporation and The Bank of New York, as Trustee. (Exhibit
4-196 to Form 10-Q for quarter ended June 30, 1998.)
4
(s)
—
First Supplemental Indenture, dated as of June 15, 1998,
between DTE Capital Corporation and The Bank of New York, as
Trustee, creating the $100,000,000 Remarketed Notes, Series
A due 2038, including form of Note. Exhibit 4-197 to
Form 10-Q for quarter ended June 30, 1998.)
4
(t)
—
Second Supplemental Indenture, dated as of November 1, 1998,
between DTE Capital Corporation and The Bank of New York, as
Trustee, creating the $300,000,000 Remarketed Notes, 1998
Series B, including form of Note. (Exhibit 4-200 to
Form 10-K for year ended December 31, 1998.)
4
(u)
—
Second Amended and Restated Credit Agreement, Dated as of J
January 19, 1999 among DTE Capital Corporation, the Initial
Lenders, Citibank, N.A., as Agent, and ABN AMRO Bank N.V.,
Barclays Bank PLC, Bayerische Landesbank Giruzertrale, Cayman
Islands Branch, Comerica Bank, Den Daske Bank Aktieselskab and
The First National Bank of Chicago, as Co-Agents, and Salomon
Smith Barney Inc., as
44
Arranger. (Exhibit 99-28 to Form 10-K for year ended
December 31, 1998).
4
(v)
—
$40,000,000 Support Agreement dated as of February 24, 1999
between DTE Energy Company and DTE Capital Corporation
(Exhibit 4-202 to Form 10-Q for quarter ended
March 31, 1999).
99
(a)
—
Belle River Participation Agreement between Detroit Edison and
Michigan Public Power Agency, dated as of December 1, 1982
(Exhibit 28-5 to Registration No. 2-81501).
99
(b)
—
Belle River Transmission Ownership and Operating Agreement
between Detroit Edison and Michigan Public Power Agency, dated as
of December 1, 1982 (Exhibit 28-6 to Registration
No. 2-81501).
99
(c)
—
1988 Amended and Restated Loan Agreement, dated as of
October 4, 1988, between Renaissance Energy Company (an
unaffiliated company) (“Renaissance”) and Detroit
Edison (Exhibit 99-6 to Registration No. 33-50325).
99
(d)
—
First Amendment to 1988 Amended and Restated Loan Agreement,
dated as of February 1, 1990, between Detroit Edison and
Renaissance (Exhibit 99-7 to Registration
No. 33-50325).
99
(e)
—
Second Amendment to 1988 Amended and Restated Loan Agreement,
dated as of September 1, 1993, between Detroit Edison and
Renaissance (Exhibit 99-8 to Registration No.
33-50325).
99
(f)
—
Third Amendment, dated as of August 28, 1997, to 1988
Amended and Restated Loan Agreement between Detroit Edison and
Renaissance (Exhibit 99-22 to Form 10-Q for quarter
ended September 30, 1997.)
99
(g)
—
$200,000,000 364-Day Credit Agreement, dated as of
September 1, 1993, among Detroit Edison, Renaissance and
Barclays Bank PLC, New York Branch, as Agent (Exhibit 99-12
to Registration No. 33-50325).
99
(h)
—
First Amendment, dated as of August 31, 1994, to
$200,000,000 364-Day Credit Agreement, dated September 1,
1993, among The Detroit Edison Company, Renaissance Energy
Company, the Banks party thereto and Barclays Bank, PLC, New York
Branch, as Agent (Exhibit 99-19 to Form 10-Q for
quarter ended September 30, 1994).
99
(i)
—
Third Amendment, dated as of March 8, 1996, to $200,000,000
364-Day Credit Agreement, dated September 1, 1993, as
amended, among Detroit Edison, Renaissance, the Banks party
thereto and Barclays Bank, PLC, New York Branch, as Agent
(Exhibit 99-11 to Form 10-Q for quarter ended
March 31, 1996).
45
99
(j)
—
Fourth Amendment, dated as of August 29, 1996, to
$200,000,000 364-Day Credit Agreement as of September 1,
1990, as amended, among Detroit Edison, Renaissance, the Banks
party thereto and Barclays Bank, PLC, New York Branch, as Agent
(Exhibit 99-13 to Form 10-Q for quarter ended
September 30, 1996).
99
(k)
—
Fifth Amendment, dated as of September 1, 1997, to
$200,000,000 Multi-Year Credit Agreement, dated as of
September 1, 1993, as amended, among Detroit Edison,
Renaissance, the Banks Party thereto and Barclays Bank PLC, New
York Branch, as Agent. (Exhibit 99-24 to Form 10-Q for
quarter ended September 30, 1997.)
99
(l)
—
$200,000,000 Three-Year Credit Agreement, dated September
1, 1993, among Detroit Edison, Renaissance and Barclays Bank,
PLC, New York Branch, as Agent (Exhibit 99-13 to
Registration No. 33-50325).
99
(m)
—
First Amendment, dated as of September 1, 1994, to
$200,000,000 Three-Year Credit Agreement, dated as of
September 1, 1993, among The Detroit Edison Company,
Renaissance Energy Company, the Banks party thereto and Barclays
Banks party thereto and Barclays Bank, PLC, New York Branch, as
Agent (Exhibit 99-14 to Form 10-Q for quarter ended
September 30, 1996).
99
(p)
—
Fifth Amendment, dated as of August 28, 1997, to
$200,000,000 364-Day Credit Agreement, dated as of
September 1, 1990, as amended, among Detroit Edison,
Renaissance, the Banks Party thereto and Barclays Bank PLC, New
York Branch, as Agent (Exhibit 99-25 to Form 10-Q for
quarter ended September 30, 1997.)
99
(q)
—
Sixth Amendment, dated as of August 27, 1998, to
$200,000,000 364-Day Credit Agreement dated as of September
1, 1990, as amended, among Detroit Edison, Renaissance, the
Banks party thereto and Barclays Bank PLC, New York Branch, as
agent. (Exhibit 99-32 to Registration No. 333-65765.)
46
99
(r)
—
1988 Amended and Restated Nuclear Fuel Heat Purchase Contract,
dated October 4, 1988, between Detroit Edison and
Renaissance (Exhibit 99-9 to Registration
No. 33-50325).
99
(s)
—
First Amendment to 1988 Amended and Restated Nuclear Fuel Heat
Purchase Contract, dated as of February 1, 1990, between
Detroit Edison and Renaissance (Exhibit 99-10 to
Registration No. 33-50325).
99
(t)
—
Second Amendment, dated as of September 1, 1993, to 1988
Amended and Restated Nuclear Fuel Heat Purchase Contract between
Detroit Edison and Renaissance (Exhibit 99-11 to
Registration No. 33-50325).
99
(u)
—
Third Amendment, dated as of August 31, 1994, to 1988
Amended and Restated Nuclear Fuel Heat Purchase Contract, dated
October 4, 1988, between The Detroit Edison Company and
Renaissance Energy Company (Exhibit 99-21 to Form 10-Q
for quarter ended September 30, 1994).
99
(v)
—
Fourth Amendment, dated as of March 8, 1996, to 1988 Amended
and Restated Nuclear Fuel Heat Purchase Contract Agreement,
dated as of October 4, 1988, between Detroit Edison and
Renaissance (Exhibit 99-10 to Form 10-Q for quarter
ended March 31, 1996).
99
(w)
—
Sixth Amendment, dated as of August 28, 1997, to 1988
Amended and Restated Nuclear Fuel Heat Purchase Contract between
Detroit Edison and Renaissance. (Exhibit 99-23 to
Form 10-Q for quarter ended September 30, 1997.)
99
(x)
—
Standby Note Purchase Credit Facility, dated as of
September 12, 1997, among The Detroit Edison Company and the
Bank’s Signatory thereto and The Chase Manhattan Bank, as
Administrative Agent, and Citicorp Securities, Inc., Lehman
Brokers, Inc., as Remarketing Agents and Chase Securities, Inc.
as Arranger. (Exhibit 999-26 to Form 10-Q for quarter
ended September 30, 1997.)
47
EXHIBIT 3-14
BYLAWS
of
THE DETROIT EDISON COMPANY
As amended through September 22, 1999
BYLAWS
of
THE DETROIT EDISON COMPANY
INDEX
ARTICLE I
Page
Shareholders............................................................................................1
SECTION 1. Annual Meeting..............................................................1
SECTION 2. Special Meetings............................................................1
SECTION 3. Notice of Meetings..........................................................1
SECTION 4. Quorum......................................................................1
SECTION 5. Voting and Inspectors.......................................................2
SECTION 6. Record of Shareholders......................................................2
SECTION 7. List of Shareholders........................................................2
SECTION 8. Order of Business...........................................................2
ARTICLE II
Board of Directors and Committees.......................................................................4
SECTION 1 . Number, Time of Holding Office, and Limitation on
Age..........................................................................4
SECTION 2. Vacancies....................................................................5
SECTION 3. Nominations of Directors; Election...........................................5
SECTION 4. Meetings of the Board........................................................6
SECTION 5. Quorum.......................................................................6
SECTION 6. Annual Meeting of Directors..................................................6
SECTION 7. Executive Committee..........................................................6
SECTION 8. Committees...................................................................7
SECTION 9. Participation in Meetings....................................................7
SECTION 10. Compensation.................................................................7
ARTICLE III
Officers................................................................................................7
SECTION 1. Officers and Agents..........................................................7
SECTION 2. Term of Office...............................................................7
SECTION 3. Chairman of the Board........................................................8
SECTION 4. President....................................................................8
SECTION 5. Other Officers...............................................................8
SECTION 6. Compensation.................................................................8
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ARTICLE IV
Capital Stock...........................................................................................8
SECTION 1. Certificates of Shares.......................................................8
SECTION 2. Transfer of Shares...........................................................9
SECTION 3. Lost or Destroyed Stock Certificates........................................ 9
ARTICLE V
Checks, Notes, Bonds, Debentures, etc...................................................................9
ARTICLE VI
Corporate Seal..........................................................................................9
ARTICLE VII
Control Share Acquisitions.............................................................................10
ARTICLE VIII
Amendment of Bylaws....................................................................................10
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II
BYLAWS
OF
THE DETROIT EDISON COMPANY
AS AMENDED THROUGH SEPTEMBER 22, 1999
ARTICLE I
SHAREHOLDERS
Section 1. ANNUAL MEETING. The annual meeting of the shareholders of the Company shall be held on the fourth Wednesday of April in each year (or if said day be a legal holiday, then on the next succeeding day not a legal holiday) or at such other date, and at such time and at such place as may be fixed by the Board of Directors and stated in the notice of meeting, for the purpose of electing directors and transacting such other business as may properly be brought before the meeting as determined by Article I, Section 8 hereof.
Section 2. SPECIAL MEETINGS. Special meetings of the shareholders may be held upon call of the Board of Directors or the Chairman of the Board or the President or the holders of record of three-quarters of the outstanding shares of stock of the Company, at such time as may be fixed by the Board of Directors or the Chairman of the Board or the President or such shareholders and stated in the notice of meeting. All such meetings shall be held at the office of the Company in the City of Detroit unless some other place is specified in the notice.
Section 3. NOTICE OF MEETINGS. Written notice of the date, time, place and purpose or purposes of every meeting of the shareholders, signed by the Corporate Secretary or an Assistant Corporate Secretary, shall be given either personally or by mail, within the time prescribed by law, to each shareholder of record entitled to vote at such meeting and to any shareholder who, by reason of any action proposed at such meeting, might be entitled to receive payment for such stock if such action were taken. If mailed, such notice is given when deposited in the United States mail, with postage thereon prepaid, directed to the shareholder at the address as it appears on the record of shareholders, or, if the shareholders shall have filed with the Corporate Secretary of the Company a written request that notices intended for such shareholder be mailed to some other address, then directed to the address designated in such request. Further notice shall be given by mail, publication, or otherwise, if and as required by law.
Notice of meeting need not be given to any shareholder who submits a signed waiver of notice, in person or by proxy, whether before or after the meeting. The attendance of any shareholder at the meeting, in person or by proxy, without protesting at the beginning of the meeting the lack of notice of such meeting, shall constitute a waiver of notice by such
shareholder.
Notice of a special meeting shall also indicate that it is being issued by or at the direction of the person or persons calling the meeting.
Section 4. QUORUM. At every meeting of the shareholders, the holders of record of a majority of the outstanding shares of stock of the Company entitled to vote at such meeting, whether present in person or represented by proxy, shall constitute a quorum. If at any meeting there shall be no quorum, the holders of a majority of the outstanding shares of stock so present or represented may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall have been obtained, when any business may be transacted which might have been transacted at the meeting as first convened had there been a quorum. When a quorum is once present to organize a meeting, it is not broken by the subsequent withdrawal of any shareholder.
Section 5. VOTING AND INSPECTORS. Each holder of record of outstanding shares of stock of the Company entitled to vote at a meeting of shareholders shall be entitled to one vote for each share of stock standing in the shareholder's name on the record of shareholders, and may so vote either in person or by proxy appointed by instrument in writing executed by such holder or by the shareholder's duly authorized attorney-in-fact. No proxy shall be valid after the expiration of three years from the date of its execution unless the shareholder executing it shall have specified the length of time it is to continue in force which shall be for some limited period. The authority of the holder of a proxy to act shall not be revoked by the incompetence or death of the shareholder who executed the proxy unless, before the authority is exercised, written notice of an adjudication of such incompetence or of such death is received by the Corporate Secretary or an Assistant Corporate Secretary.
In advance of any meeting of shareholders, the Board of Directors may
appoint one or more inspectors for the meeting. If inspectors are not so
appointed, the chairman of the meeting shall appoint such inspectors. Before
entering upon the discharge of their duties, the inspectors shall take and
subscribe an oath faithfully to execute the duties of inspector at such meeting
with strict impartiality and according to the best of their ability, and shall
take charge of the polls and after balloting shall make a certificate of the
result of the vote taken. No officer or director of the Company or candidate for
office of director shall be appointed as an inspector. At all elections of
directors, the voting shall be by ballot and a plurality of the votes cast shall
elect.
Section 6. RECORD OF SHAREHOLDERS. For the purpose of determining the
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or to express consent to or dissent from any proposal
without a meeting, or for the purpose of determining shareholders entitled to
receive payment of any dividend or the allotment of any rights, or for the
purpose of any other action, the Board of Directors may fix, in advance, a date
as the record date for any such determination of shareholders, which record date
shall not less than 10 days nor more than the maximum number of days permitted
by law before the date of the meeting, or taking of any other action.
Section 7. LIST OF SHAREHOLDERS. A list of shareholders as of the record date,
certified by the Corporate Secretary or any Assistant Corporate Secretary or by a transfer agent, shall be produced at any meeting of shareholders upon the request thereat or prior thereto of any shareholder. If the right to vote at any meeting is challenged, the inspectors, or the person presiding at the meeting, shall require such list of shareholders to be produced as evidence of the right of the persons challenged to vote at such meeting, and all persons who appear on such list to be shareholders entitled to vote thereat may vote at such meeting.
Section 8. ORDER OF BUSINESS. (a) The Chairman, or such other officer of the Company designated by a majority of the total number of directors that the Company would have if there were no vacancies on the Board of Directors (such number being referred to as the "Whole Board"), will call meetings of shareholders to order and will act as presiding officer thereof. Unless otherwise determined by the Board of Directors prior to the meeting, the presiding officer of the meeting of shareholders will also determine the order of business and have the authority in his or her sole discretion to regulate the conduct of any such meeting including, without limitation, by imposing restrictions on the persons (other than shareholders of the Company or their duly appointed proxies) who may attend any such shareholders' meeting, by ascertaining whether any shareholder or his proxy may be excluded from any meeting of shareholders based upon any determination by the presiding officer, in his or her sole discretion, that any such person has unduly disrupted or is likely to disrupt the proceedings of the meeting, and by determining the circumstances in which any person may make a statement or ask questions at any meeting of shareholders.
(b) At an annual meeting of the shareholders, only such business will
be conducted or considered as is properly brought before the meeting. To be
properly brought before an annual meeting, business must be (i) specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the Chairman, the President, a Vice President, the Corporate Secretary or an
Assistant Corporate Secretary in accordance with Section 3 of this Article I;
(ii) otherwise properly brought before the meeting by the presiding officer or
by or at the direction of a majority of the Whole Board; or (iii) otherwise
properly requested to be brought before the meeting by a shareholder of the
Company in accordance with Section 8(c) below.
(c) For business to be properly requested by a shareholder to be brought before an annual meeting, the shareholder must (i) be a shareholder of the Company of record at the time of the giving of the notice for such annual meeting provided for in these Bylaws; (ii) be entitled to vote at such meeting; and (iii) have given timely notice thereof in writing to the Corporate Secretary. To be timely, a shareholder's notice must be delivered to or mailed and received at the principal executive offices of the Company not less than 60 nor more than 90 calendar days prior to the annual meeting; provided, however, that in the event public announcement of the date of the annual meeting is not made at least 100 calendar days prior to the date of the annual meeting, notice by the shareholder to be timely must be so received not later than the close of business on the 10th calendar day following the day on which public announcement is first made of the date of the annual meeting. A shareholder's notice to the Corporate Secretary must set forth as to each matter the shareholder proposes to bring before the annual meeting: (A) a description in reasonable detail of the business desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting; (B) the name and address, as they appear on the Company's
books, of the shareholder proposing such business and of the beneficial owner,
if any, on whose behalf the proposal is made; (C) the class and number of shares
of the Company that are owned beneficially and of record by the shareholder
proposing such business and by the beneficial owner, if any, on whose behalf the
proposal is made; and (D) any material interest in such business of such
shareholder proposing such business and the beneficial owner, if any, on whose
behalf the proposal is made. Notwithstanding the foregoing provisions of this
Section 8(c), a shareholder must also comply with all applicable requirements of
the Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder with respect to the matters set forth in this Section 8(c). For
purposes of this Section 8(c) and Section 3 of Article II, "public announcement"
means disclosure in a press release reported by the Dow Jones News Service,
Associated Press, or comparable national news service or in a document publicly
filed by the Company with the Securities and Exchange Commission pursuant to
Sections 13, 14, or 15(d) of the Securities Exchange Act of 1934, as amended, or
publicly filed by the Company with any national securities exchange or quotation
service through which the Company's stock is listed or traded, or furnished by
the Company to its shareholders. Nothing in this Section 8(c) will be deemed to
affect any rights of shareholders to request inclusion of proposals in the
Company's proxy statement pursuant to Rule 14a-8 under the Securities Exchange
Act of 1934, as amended.
(d) At a special meeting of shareholders, only such business may be conducted or considered as is properly brought before the meeting. To be properly brought before a special meeting, business must be (i) specified in the notice of the meeting (or any supplement thereto) given by or at the direction of the Chairman, the President, a Vice President, the Corporate Secretary or an Assistant Corporate Secretary (or in case of their failure to give any required notice, the other persons entitled to give notice) in accordance with Section 3 of Article I or (ii) otherwise brought before the meeting by the presiding officer or by or at the direction of a majority of the Whole Board.
(e) The determination of whether any business sought to be brought before any annual or special meeting of the shareholders is properly brought before such meeting in accordance with this Section 8 will be made by the presiding officer of such meeting. If the presiding officer determines that any business is not properly brought before such meeting, he or she will so declare to the meeting and any such business will not be conducted or considered.
ARTICLE II
BOARD OF DIRECTORS AND COMMITTEES
Section 1. NUMBER, TIME OF HOLDING OFFICE AND LIMITATION ON AGE. The business and affairs of the Company shall be managed and controlled by a Board of Directors.
The number of directors constituting the Whole Board shall be determined from time to time by resolution of the Board so long as the total number of directors is not less than ten nor more than eighteen; provided, however, that the minimum and maximum number of directors may be increased or decreased from time to time by vote of a majority of the Whole Board; and, further provided that no change in the number of directors shall serve to shorten the term of office of any incumbent director. Commencing with the annual election of directors by the shareholders in 1991, the directors shall be divided into three classes, as nearly equal in number as possible, and the term of office of the first class shall expire at the 1992 annual meeting of shareholders, the term of office of the second class shall expire at the 1993 annual meeting of shareholders and the term of office of the third class shall expire at the 1994 annual meeting of shareholders, or, in each case, until their successors shall be duly elected and qualified. At each annual meeting commencing in 1992, a number of directors equal to the number of the class whose term expires at the time of the meeting shall be elected to hold office until the third succeeding annual meeting of shareholders. In the event the holders of the Preferred Stock or the Preference Stock are entitled to elect directors as provided in Article V, Division I, subdivision (9) or Article V, Division II, subdivision (9) of the Restated Articles of Incorporation of the Company, then the provisions of such class of stock with respect to their rights shall apply and such directors shall be elected for terms expiring at the next annual meeting of shareholders and without regard to the classification of the remaining members of the Board of Directors.
Except as hereinafter provided, each director shall be a holder of Common Stock of DTE Energy Company at the time of initial election to the Board or shall become a holder within thirty days after such election (to the extent of at least one share, owned beneficially) and any director who thereafter ceases to be such a holder, shall thereupon cease to be a director. The Board shall have the authority to waive the requirement to hold shares in individual situations upon presentation of evidence that a nominee or director is unable to hold shares for legal or religious reasons.
No person who shall have served as an employee of the Company or an affiliate shall be elected a director after retiring from employment with the Company or an affiliate; provided, however, that if such person was the Chief Executive Officer of the Company at the time of such retirement, such person shall be eligible for election as a director until attaining age 70. No other person shall be elected a director after attaining age 70; provided, however, the Board shall have the authority to waive this provision for no more than one three-year term upon a determination that circumstances exist which make it prudent to continue the service of a director who possesses special and unique expertise clearly beneficial to the Company.
Section 2. VACANCIES. Whenever any vacancy shall occur in the Board of Directors by death, resignation, or any other cause, it shall be filled without undue delay by a majority vote of the remaining members of the Board of Directors and the person who is to fill any such vacancy shall hold office for the unexpired term of the director to whom such person succeeds, or for the term fixed by the Board of Directors acting in compliance with Section I of this Article II in case of a vacancy created by an increase in the number of directors, and until a successor shall be elected and shall have qualified; provided, however, that no vacancy need be filled if, after such vacancy shall occur, the number of directors remaining on the Board shall be not less than a majority of the whole Board. During the existence of any vacancy or vacancies,
the surviving or remaining directors shall possess and may exercise all the powers of the full Board of Directors, when action by a larger number is not required by law.
Section 3. NOMINATIONS OF DIRECTORS; ELECTION. (a) Except as may be otherwise provided in any resolution establishing any Preferred or Preference Stock, only persons who are nominated in accordance with this Section 3 will be eligible for election at a meeting of shareholders to be members of the Board of Directors of the Company.
(b) Nominations of persons for election as directors of the Company may
be made only at an annual meeting of shareholders (i) by or at the direction of
the Board of Directors or a committee thereof or (ii) by any shareholder who is
a shareholder of record at the time of giving of notice provided for in this
Section 3, who is entitled to vote for the election of directors at such
meeting, and who complies with the procedures set forth in this Section 3. All
nominations by shareholders must be made pursuant to timely notice in proper
written form to the Corporate Secretary.
(c) To be timely, a shareholder's notice must be delivered to or mailed and received at the principal executive offices of the Company not less than 60 nor more than 90 calendar days prior to the annual meeting of shareholders; provided, however, that in the event that public announcement of the date of the annual meeting is not made at least 100 calendar days prior to the date of the annual meeting, notice by the shareholder to be timely must be so received not later than the close of business on the 10th calendar day following the day on which public announcement (as defined in Section 8(c) of Article I) is first made of the date of the annual meeting. To be in proper written form, such shareholder's notice must set forth or include: (i) the name and address, as they appear on the Company's books, of the shareholder giving the notice and of the beneficial owner, if any, on whose behalf the nomination is made; (ii) a representation that the shareholder giving the notice is a holder of record of stock of the Company entitled to vote at such annual meeting and intends to appear in person or by proxy at the annual meeting to nominate the person or persons specified in the notice; (iii) the class and number of shares of stock of the Company owned beneficially and of record by the shareholder giving the notice and by the beneficial owner, if any, on whose behalf the nomination is made; (iv) a description of all arrangements or understandings between or among any of (A) the shareholder giving the notice, (B) the beneficial owner on whose behalf the notice is given, (C) each nominee, and (D) any other person or persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by the shareholder giving the notice; (v) such other information regarding each nominee proposed by the shareholder giving the notice as would be required to be included in a proxy statement filed pursuant to the proxy rules of the Securities and Exchange Commission had the nominee been nominated, or intended to be nominated, by the Board of Directors; and (vi) the signed consent of each nominee to serve as a director of the Company if so elected. The presiding officer of any annual meeting may, if the facts warrant, determine that a nomination was not made in accordance with this Section 3, and if he or she should so determine, he or she will so declare to the meeting, and the defective nomination will be disregarded. Notwithstanding the foregoing provisions of this Section 3, a shareholder must also comply with all applicable requirements of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder with respect to the matters set forth in this Section 3.
Section 4. MEETINGS OF THE BOARD. Regular meetings of the Board of Directors shall be held at such times and at such places as may from time to time be fixed by the Board of Directors.
Special meetings of the Board of Directors may be called by the Chairman of the Board or the President or, in the event of the incapacity of the Chairman of the Board and the President, the Executive Committee by giving reasonable notice of the time and place of such meetings or by obtaining written waivers of notice, before or after the meeting, from each absent director. All such meetings shall be held at the office of the Company in the City of Detroit unless some other place is specified in the notice.
A notice, or waiver of notice, need not specify the purpose of the meeting.
Section 5. QUORUM A majority of the directors in office at the time of a meeting of the Board shall constitute a quorum for the transaction of business, but if at any meeting of the Board of Directors there shall be less than a quorum present, a majority of the directors present may adjourn the meeting from time to time without notice other than announcement at the meeting, until a quorum shall have been obtained, when any business may be transacted which might have been transacted at the meeting as first convened had there been a quorum. The acts of a majority of the directors present at any meeting at which there is a quorum shall be the acts of the Board, unless otherwise provided by law, by the Restated Articles of Incorporation or by the Bylaws.
Section 6. ANNUAL MEETING OF DIRECTORS. A meeting of the Board of Directors, known as the directors' annual meeting, shall be held without notice each year after the adjournment of the annual shareholders' meeting and on the same day, and at such meeting the officers of the Company for the ensuing year shall be elected. If a quorum of the directors is not present on the day appointed for the directors' annual meeting, the meeting shall be adjourned to some convenient day.
Section 7. EXECUTIVE COMMITTEE. The Board of Directors may, by resolution or resolutions passed by a majority of the Whole Board, designate an Executive Committee to consist of the Chief Executive Officer and two or more of the other directors, and alternates, and shall designate the Chairman thereof. The Executive Committee shall have and may exercise, when the Board is not in session, all of the powers of the Board in the management of the business and affairs of the Company, and shall have power to authorize the seal of the Company to be affixed to all papers which may require it; but the Executive Committee shall not have power to declare dividends, to change the number of directors constituting the Whole Board, to fill vacancies in the Board, or to establish or change the membership of, or to fill vacancies in, any committee, or to fix the compensation of the directors or committee members, or to make or amend Bylaws of the Company, or to submit matters for action by shareholders, or to amend or repeal a resolution of the Board which by its terms may not be changed by the Executive Committee. The Board shall have the power at any time to fill vacancies in, to change the membership of, or to dissolve, the Executive Committee. The Executive Committee may make rules for the conduct of its business and may appoint such subcommittees and assistants as it shall from time to time deem necessary. A majority of the members of the Executive Committee shall constitute a quorum. All action taken by the
Executive Committee shall be reported to the Board at its next meeting succeeding such action. The Corporate Secretary or an Assistant Corporate Secretary shall attend and act as the secretary of all meetings of the Executive Committee and keep the minutes thereof.
Meetings of the Executive Committee may be called by the Chairman of the Board or the President, or, in the event of the incapacity of the Chairman of the Board and the President, by two or more members of the Executive Committee by giving reasonable notice of the time and place of such meetings. All such meetings shall be held at the office of the Company in the City of Detroit unless some other place is specified in the notice.
Section 8. COMMITTEES. The Board of Directors may, by resolution, create a committee or committees of one or more directors, and alternates, to consider and report upon or to carry out such matters (not excepted by the foregoing section) as may be entrusted to them by the Board of Directors, and shall designate the Chairman of each such committee.
Section 9. PARTICIPATION IN MEETINGS. One or more members of the Board of Directors or any committee thereof may participate in any meeting of such Board or such committee by means of a conference telephone or similar communications equipment which enables all persons participating in such a meeting to hear each other at the same time and the participation in the manner so described shall constitute presence in person at such meetings.
Section 10. COMPENSATION. Each director of the Company who is not a salaried officer or employee of the Company may receive reasonable compensation for services as a director, including a reasonable fee for attendance at meetings of the Board and committees thereof, and attendance at the Company's request at other meetings or similar activities related to the Company.
ARTICLE III
OFFICERS
Section 1. OFFICERS AND AGENTS. The officers of the Company to be elected by the Board of Directors, as soon as practicable after the election of directors each year, shall be Chairman of the Board, the President, a Corporate Secretary and a Treasurer. The Board of Directors may also from time to time elect one or more Vice Presidents, a Controller, a General Auditor, a General Counsel, and such other officers and agents as it may deem proper. The Chairman of the Board and the President shall be chosen from among the directors. The persons holding the offices of Chairman of the Board or President may not also hold the office of General Auditor. The Board of Directors may, in its discretion, leave vacant any office other than that of Chairman of the Board, President, Corporate Secretary or Treasurer.
Section 2. TERM OF OFFICE. The term of office of all officers shall be until the next directors' annual meeting of or until their respective successors are chosen and qualified; but any officer or agent elected by the Board of Directors may be removed by the Board at any time, with or without cause.
Section 3. CHAIRMAN OF THE BOARD. The Chairman of the Board shall be the chief executive officer of the Company, shall preside at all meetings of the Board of Directors and, subject to Section 8(a) of Article I, meetings of shareholders, at which the Chairman is present, and shall make the annual report to the shareholders The Chairman shall have general charge of the business and affairs of the Company subject to the control of the Board of Directors, may execute in the name of the Company any authorized corporate obligation or other instrument and shall perform such other functions as may be prescribed by the Board from time to time.
The Chairman of the Board shall manage or supervise the conduct of the corporate finances and relations of the Company with its shareholders, with the public and with regulatory authorities and in addition to the President, may exercise all powers elsewhere in the Bylaws conferred upon the President. The Chairman may delegate from time to time to the President or to other officers, employees or positions of the Company, such powers as the Chairman may specify in writing, with such terms and conditions, if any, as the Chairman may set forth. A copy of each such delegation and of any revocation or change shall be filed with the Corporate Secretary.
Section 4. PRESIDENT. The President shall be the chief operating officer of the Company, subject to the control of the Board of Directors and the Chairman of the Board, shall have power to authorize the employment of such subordinate employees as may, in the President's judgment, be advisable for the operations of the Company, may execute in the name of the Company any authorized corporate obligation or other instrument and shall perform all other acts incident to the President's office or prescribed by the Board of Directors or the Chairman of the Board, or authorized or required by law. During the absence or disability of the Chairman of the Board, the President shall assume the duties and authority of the Chairman of the Board and shall be the chief executive officer of the Company.
Section 5. OTHER OFFICERS. The other officers, agents and employees of the Company shall each have such powers and perform such duties in the management of the property and affairs of the Company, subject to the control of the Board of Directors, as generally pertain to their respective offices, as well as such powers and duties as from time to time may be prescribed by the Board of Directors, by the Chairman of the Board or by the President.
Section 6. COMPENSATION. The Board of Directors shall determine the compensation to be paid to the Chairman of the Board, the President and each Vice President above the level of Assistant Vice President.
ARTICLE IV
CAPITAL STOCK
Section 1. CERTIFICATES OF SHARES. The interest of each shareholder shall be evidenced by a certificate or certificates for shares of stock of the Company in such form as the Board of Directors may from time to time prescribe. The certificates of stock shall be signed by the Chairman of the Board, the President or a Vice President and by the Treasurer,
an Assistant Treasurer, the Corporate Secretary, or an Assistant Corporate Secretary of the Company, shall be sealed with the seal of the Company or a facsimile thereof, and shall be countersigned by a transfer agent for the stock and registered by a registrar for such stock. The signatures of the officers and the transfer agent and the registrar upon such certificates may be facsimiles, engraved or printed, subject to the provisions of applicable law. In case any officer, transfer agent or registrar shall cease to serve in that capacity after their facsimile signature has been placed on a certificate, the certificates may be issued with the same effect as if the officer, transfer agent or registrar were still in office.
Section 2. TRANSFER OF SHARES. Shares in the capital stock of the Company shall be transferred on the books of the Company upon surrender and cancellation of certificates for a like number of shares, with duly executed power to transfer endorsed thereon or attached to the certificate.
Section 3. LOST OR DESTROYED STOCK CERTIFICATES. No certificate for shares of stock of the Company shall be issued in place of any certificate alleged to have been lost, stolen or destroyed, except upon production of such evidence of the loss, theft or destruction, and upon indemnification of the Company and its agents to such extent and in such manner as the Board of Directors may from time to time prescribe.
ARTICLE V
CHECKS, NOTES, BONDS, DEBENTURES, ETC.
All checks and drafts on the Company's bank accounts and all bills of exchange and promissory notes, and all acceptances, obligations and other instruments for the payment of money, shall be signed by such officer or officers or agent or agents, either manually or by facsimile signature or signatures, as shall be thereunto authorized from time to time by the Board of Directors either generally or in specific instances; provided that bonds, debentures and other evidences of indebtedness of the Company bearing facsimile signatures of officers of the Company shall be issued only when authenticated by a manual signature on behalf of a trustee or an authenticating agent appointed by the Board of Directors and in case any such officer of the Company shall cease to be such after such officer's facsimile signature has been placed thereon, such bonds, debentures or other evidences of indebtedness may be issued with the same effect as if such person were still in office.
ARTICLE VI
CORPORATE SEAL
The Board of Directors shall provide a suitable seal containing the name of the Company.
ARTICLE VII
CONTROL SHARE ACQUISITIONS
The Stacey, Bennett, and Randall Shareholder Equity Act (Chapter 7B of the Michigan Business Corporation Act) shall not apply to any control share acquisitions (as defined in such Act) of shares of the Company.
This Article VII of the Bylaws may not be amended, altered or repealed with respect to any control share acquisition of shares of the Company effected pursuant to a tender offer or other transaction commenced prior to the date of such amendment, alteration or repeal.
ARTICLE VIII
AMENDMENT OF BYLAWS
Those provisions of these Bylaws providing for a classified Board of Directors (currently the third, fourth and fifth sentences of the first paragraph of Section 1 of Article II) and the provisions of this sentence may be amended or repealed only by the vote of the holders of a majority of shares of Common Stock of the Company. Except as provided in the immediately preceding sentence, Bylaws of the Company may be amended, repealed or adopted by vote of the holders of a majority of shares at the time entitled to vote in the election of any directors or by vote of a majority of the directors in office.
EXHIBIT 4-204
THE DETROIT EDISON COMPANY
(2000 Second Avenue,
Detroit, Michigan 48226)
TO
BANKERS TRUST COMPANY
(Four Albany Street,
New York, New York 10015)
AS TRUSTEE
INDENTURE
Dated as of August 1, 1999
SUPPLEMENTAL TO MORTGAGE AND DEED OF TRUST
DATED AS OF OCTOBER 1, 1924
PROVIDING FOR
(A) GENERAL AND REFUNDING MORTGAGE BONDS,
1999 SERIES AP, DUE SEPTEMBER 1, 2029,
(B) GENERAL AND REFUNDING MORTGAGE BONDS,
1999 SERIES BP, DUE SEPTEMBER 1, 2029,
(C) GENERAL AND REFUNDING MORTGAGE BONDS, 1999 SERIES CP, DUE SEPTEMBER 1, 2029,
AND
(D) RECORDING AND FILING DATA
TABLE OF CONTENTS*
PAGE
----
PARTIES..................................................... 1
RECITALS
Original Indenture and Supplementals...................... 1
Issue of Bonds under Indenture............................ 1
Bonds heretofore issued................................... 1
Reason for creation of new series......................... 5
Bonds to be 1999 Series AP, 1999 Series BP and 1999 Series
CP..................................................... 5
Further Assurance......................................... 5
Authorization of Supplemental Indenture................... 5
Consideration for Supplemental Indenture.................. 6
PART I.
CREATION OF THREE HUNDRED TWENTIETH
SERIES OF BONDS
GENERAL AND REFUNDING MORTGAGE BONDS,
1999 SERIES AP
Sec. 1. Certain terms of Bonds of 1999 Series AP............ 6
Sec. 2. Redemption of Bonds of 1999 Series AP............... 7
Sec. 3.Redemption of Bonds of 1999 Series AP in event of
acceleration of Strategic Fund Revenue Bonds......... 8
Sec. 4. Form of Bonds of 1999 Series AP..................... 8
Form of Trustee's Certificate....................... 13
PART II.
CREATION OF THREE HUNDRED TWENTY-FIRST
SERIES OF BONDS
GENERAL AND REFUNDING MORTGAGE BONDS,
1999 SERIES BP
Sec. 1. Certain terms of Bonds of 1999 Series BP............ 13
Sec. 2. Redemption of Bonds of 1999 Series BP............... 15
Sec. 3.Redemption and/or Revocation of Bonds of 1999 Series
BP in event of acceleration of Strategic Fund Revenue
Bonds................................................ 15
Sec. 4. Form of Bonds of 1999 Series BP..................... 16
Form of Trustee's Certificate....................... 21
PART III.
CREATION OF THREE HUNDRED TWENTY-SECOND
SERIES OF BONDS
GENERAL AND REFUNDING MORTGAGE BONDS,
1999 SERIES CP
Sec. 1. Certain terms of Bonds of 1999 Series CP............ 21
Sec. 2. Redemption of Bonds of 1999 Series CP............... 23
Sec. 3.Redemption and/or Revocation of Bonds of 1999 Series
CP in event of acceleration of Strategic Fund Revenue
Bonds................................................ 23
Sec. 4. Form of Bonds of 1999 Series CP..................... 24
Form of Trustee's Certificate....................... 28
PART IV.
RECORDING AND FILING DATA
Recording and filing of Original Indenture.................. 29
Recording and filing of Supplemental Indentures............. 29
Recording of Certificates of Provision for Payment.......... 35
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PAGE
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PART V.
THE TRUSTEE
Terms and conditions of acceptance of trust by Trustee...... 35
PART VI.
MISCELLANEOUS
Confirmation of Section 318(c) of Trust Indenture Act....... 35
Execution in Counterparts................................... 35
Testimonium................................................. 36
Execution................................................... 36
Acknowledgement of execution by Company..................... 36
Acknowledgement of execution by Trustee..................... 37
Affidavit as to consideration and good faith................ 38
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PARTIES. SUPPLEMENTAL INDENTURE, dated as of the first day of August, in the year one thousand nine hundred and ninety-nine, between THE DETROIT EDISON COMPANY, a corporation organized and existing under the laws of the State of Michigan and a transmitting utility (hereinafter called the "Company"), party of the first part, and BANKERS TRUST COMPANY, a corporation organized and existing under the laws of the State of New York, having its corporate trust office at Four Albany Street, in the Borough of Manhattan, The City and State of New York, as Trustee under the Mortgage and Deed of Trust hereinafter mentioned (hereinafter called the "Trustee"), party of the second part.
ORIGINAL
INDENTURE AND
SUPPLEMENTALS. WHEREAS, the Company has heretofore executed and delivered
its Mortgage and Deed of Trust (hereinafter referred to 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 and
August 1, 1995 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
UNDER INDENTURE. WHEREAS, the Indenture provides that said bonds shall be
issuable in one or more series, and makes provision that the
rates of interest and dates for the payment thereof, the date
of maturity or dates of maturity, if of serial maturity, the
terms and rates of optional redemption (if redeemable), the
forms of registered bonds without coupons of any series and any
other provisions and agreements in respect thereof, in the
Indenture provided and permitted, as the Board of Directors may
determine, may be expressed in a supplemental indenture to be
made by the Company to the Trustee thereunder; and
BONDS HERETOFORE
ISSUED. WHEREAS, bonds in the principal amount of Eight billion, four
hundred forty-seven million seven hundred fifty-two thousand
dollars ($8,447,752,000) have heretofore been issued under the
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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 Nos.
1-11 -- Principal Amount $10,750,000,
(233-248) Bonds of 1981 Series AP Nos.
1-16 -- Principal Amount $124,000,000,
(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 MMP No.
2 -- Principal Amount $5,430,000,
(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,
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(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, |
all of which have either been retired and cancelled, or no longer represent obligations of the Company, having been called for redemption and funds necessary to effect the payment, redemption and retirement thereof having been deposited with the Trustee as a special trust fund to be applied for such purpose;
(279-284) Bonds of Series KKP Nos. 10-15 in the principal amount of One hundred seventy-nine million five hundred ninety thousand dollars ($179,590,000), all of which are outstanding at the date hereof;
(285) Bonds of 1989 Series BP in the principal amount of Sixty-six million five hundred sixty-five thousand dollars ($66,565,000), all of which are outstanding at the date hereof;
(286) Bonds of 1990 Series A in the principal amount of One hundred ninety-four million six hundred forty-nine thousand dollars ($194,649,000) of which Sixty-two million seven hundred ninety thousand dollars ($62,790,000) principal amount have heretofore been retired and One hundred thirty-one million eight hundred fifty-nine thousand dollars ($131,859,000) principal amount are outstanding at the date hereof;
(287) 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 Ninety-five million one hundred sixty thousand dollars ($95,160,000) principal amount have heretofore been retired and One hundred sixty-one million seven hundred seventy-two thousand dollars ($161,772,000) principal amount are outstanding at the date hereof;
(288) Bonds of 1990 Series C in the principal amount of Eighty-five million four hundred seventy-five thousand dollars ($85,475,000) of which Thirty-four million one hundred ninety thousand dollars ($34,190,000) principal amount have heretofore been retired and Fifty-one million two hundred eighty-five thousand dollars ($51,285,000) principal amount are outstanding at the date hereof;
(289) 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;
(290) 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;
(291) 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;
(292) 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;
(293) Bonds of 1991 Series EP in the principal amount of Forty-one million four hundred eighty thousand dollars ($41,480,000), all of which are outstanding at the date hereof;
(294) Bonds of 1991 Series FP in the principal amount of Ninety-eight million three hundred seventy-five thousand dollars ($98,375,000), all of which are outstanding at the date hereof;
(295) Bonds of 1992 Series BP in the principal amount of Twenty million nine hundred seventy-five thousand dollars ($20,975,000), all of which are outstanding at the date hereof;
(296) 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;
(297) Bonds of 1992 Series D in the principal amount of Three hundred million dollars ($300,000,000), of which Ten million dollars ($10,000,000) principal amount have heretofore been retired and Two hundred ninety million ($290,000,000) principal amount are outstanding at the date hereof;
(298) Bonds of 1992 Series CP in the principal amount of Thirty-five million dollars ($35,000,000), all of which are outstanding at the date hereof;
(299) Bonds of 1992 Series E in the principal amount of Fifty million dollars ($50,000,000), all of which are outstanding at the date hereof;
(300) Bonds of 1989 Series BP No. 2 in the principal amount of Thirty-six million dollars ($36,000,000), all of which are outstanding at the date hereof;
(301) Bonds of 1993 Series C in the principal amount of Two hundred twenty-five million dollars ($225,000,000), of which Twenty-seven million dollars ($27,000,000) principal amount have heretofore been retired and One hundred ninety-eight million dollars ($198,000,000) principal amount are outstanding at the date hereof;
(302) Bonds of 1993 Series B in the principal amount of Fifty million dollars ($50,000,000), all of which are outstanding at the date hereof;
(303) Bonds of 1993 Series E in the principal amount of Four hundred million dollars ($400,000,000), of which Thirty-one million five hundred thousand dollars ($31,500,000) principal amount have heretofore been retired and Three hundred sixty-eight million five hundred thousand dollars ($368,500,000) principal amount are outstanding at the date hereof;
(304) Bonds of 1993 Series FP in the principal amount of Five million six hundred eighty-five thousand dollars ($5,685,000), all of which are outstanding at the date hereof;
(305) Bonds of 1993 Series G in the principal amount of Two hundred twenty-five million dollars ($225,000,000), of which One hundred twenty-five million dollars ($125,000,000) principal amount have been retired and One hundred million dollars ($100,000,000) principal amount are outstanding at the date hereof;
(306) Bonds of 1993 Series J in the principal amount of Three hundred million dollars ($300,000,000), of which Seventy eight million five hundred thousand dollars ($78,500,000) principal amount have heretofore been retired and Two hundred twenty-one million five hundred thousand dollars ($221,500,000) principal amount are outstanding at the date hereof;
(307) Bonds of 1993 Series IP in the principal amount of Five million eight hundred twenty-five thousand dollars ($5,825,000), all of which are outstanding at the date hereof;
(308) Bonds of 1993 Series AP in the principal amount of Sixty-five million dollars ($65,000,000), all of which are outstanding at the date hereof;
(309) Bonds of 1993 Series H in the principal amount of Fifty million dollars ($50,000,000), all of which are outstanding at the date hereof;
(310) Bonds of 1993 Series K in the principal amount of One hundred sixty million dollars ($160,000,000), all of which are outstanding at the date hereof;
(311) Bonds of 1994 Series AP in the principal amount of Seven million five hundred thirty-five thousand dollars ($7,535,000), all of which are outstanding at the date hereof;
(312) Bonds of 1994 Series BP in the principal amount of Twelve million nine hundred thirty-five thousand dollars ($12,935,000), all of which are outstanding at the date hereof;
(313) Bonds of 1994 Series C in the principal amount of Two hundred million dollars ($200,000,000), all of which are outstanding at the date hereof;
(314) Bonds of 1994 Series DP in the principal amount of Twenty-three million seven hundred thousand dollars ($23,700,000), all of which are outstanding at the date hereof;
(315) 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;
(316) 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;
and, accordingly, of the bonds so issued, Two billion nine hundred forty-five million four hundred forty-one thousand dollars ($2,945,441,000) principal amount are outstanding at the date hereof; and
REASON FOR
CREATION OF NEW
SERIES. WHEREAS, the Company will enter into Loan Agreements, dated
as of September 1, 1999, August 1, 1999 and September 1, 1999
with the Michigan Strategic Fund in connection with the
issuance of the Collateralized Series 1999A, Collateralized
Series 1999B and Collateralized Series 1999C, respectively,
Bonds in order to refund certain pollution control related
bonds, and pursuant to such Loan Agreements the Company has
agreed to issue its General and Refunding Mortgage Bonds under
the Indenture in order further to secure its obligations under
such Loan Agreements; and
WHEREAS, for such purposes the Company desires to issue three
new series of bonds to be issued under the Indenture and to be
authenticated and delivered pursuant to Section 8 of Article
III of the Indenture; and
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BONDS TO BE 1999
SERIES AP, 1999
SERIES BP AND
1999 SERIES CP. WHEREAS, the Company desires by this Supplemental Indenture
to create three new series of bonds, to be designated "General
and Refunding Mortgage Bonds, 1999 Series AP," "General and
Refunding Mortgage Bonds, 1999 Series BP" and "General and
Refunding Mortgage Bonds, 1999 Series CP;" 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
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AUTHORIZATION OF
SUPPLEMENTAL
INDENTURE. WHEREAS, the Company in the exercise of the powers and
authority conferred upon and reserved to it under and by 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
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6
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;
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CONSIDERATION FOR
SUPPLEMENTAL
INDENTURE. NOW, THEREFORE, THIS INDENTURE WITNESSETH: That The Detroit
Edison Company, in consideration of the premises and of the
covenants contained in the Indenture and of the sum of One
Dollar ($1.00) and other good and valuable consideration to it
duly paid by the Trustee at or before the ensealing and
delivery of these presents, the receipt whereof is hereby
acknowledged, hereby covenants and agrees to and with the
Trustee and its successors in the trusts under the Original
Indenture and in said indentures supplemental thereto as
follows:
PART I.
CREATION OF THREE HUNDRED TWENTIETH
SERIES OF BONDS.
GENERAL AND REFUNDING MORTGAGE BONDS,
1999 SERIES AP
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CERTAIN TERMS OF
BONDS OF 1999
SERIES AP. SECTION 1. The Company hereby creates the Three hundred
twentieth series of bonds to be issued under and secured by the
Original Indenture as amended to date and as further amended by
this Supplemental Indenture, to be designated, and to be
distinguished from the bonds of all other series, by the title
"General and Refunding Mortgage Bonds, 1999 Series AP"
(elsewhere herein referred to as the "bonds of 1999 Series
AP"). The aggregate principal amount of bonds of 1999 Series AP
shall be limited to One hundred eighteen million three hundred
sixty thousand dollars ($118,360,000), except as provided in
Sections 7 and 13 of Article II of the Original Indenture with
respect to exchanges and replacements of bonds.
Each bond of 1999 Series AP is to be irrevocably assigned to,
and registered in the name of, Chase Manhattan Trust Company,
National Association, as trustee, or a successor trustee (said
trustee or any successor trustee being hereinafter referred to
as the "Strategic Fund Trust Indenture Trustee"), under the
Trust Indenture, dated as of September 1, 1999 (hereinafter
called the "Strategic Fund Trust Indenture"), between the
Michigan Strategic Fund (hereinafter called "Strategic Fund"),
and the Strategic Fund Trust Indenture Trustee, to secure
payment of the Michigan Strategic Fund Limited Obligation
Refunding Revenue Bonds (The Detroit Edison Company Pollution
Control Bonds Project), Collateralized Series 1999A
(hereinafter called the "Strategic Fund Revenue Bonds"), issued
by the Strategic Fund under the Strategic Fund Trust Indenture,
the proceeds of which have been provided for the refunding of
certain pollution control related bonds which the Company has
agreed to refund pursuant to the provisions of the Loan
Agreement, dated as of September 1, 1999 (hereinafter called
the "Strategic Fund Agreement"), between the Company and the
Strategic Fund.
The bonds of 1999 Series AP shall be issued as registered
bonds without coupons in denominations of a multiple of $5,000.
The bonds of 1999 Series AP shall be issued in the aggregate
principal amount of $118,360,000, shall mature on September 1,
2029 and shall bear interest, payable semi-annually on March 1
and September 1 of each year (commencing March 1, 2000), at the
rate of 5.55%, 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 1999 Series AP shall be payable as to principal,
premium, if any, and interest as provided in the Indenture, but
only to the extent and in the manner herein provided. The bonds
of 1999 Series AP shall be payable, both as to principal and
interest, at the office or agency of the Company in the Borough
of Manhattan,
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7
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 1999 Series AP shall
be dated the date of its authentication and interest shall be
payable on the principal represented thereby from the March 1
or September 1 next preceding the date thereof to which
interest has been paid on bonds of 1999 Series AP, unless the
bond is authenticated on a date to which interest has been
paid, in which case interest shall be payable from the date of
authentication, or unless the date of authentication is prior
to March 1, 2000, in which case interest shall be payable from
September 3, 1999.
The bonds of 1999 Series AP in definitive form shall be, at
the election of the Company, fully engraved or shall be
lithographed or printed in authorized denominations as
aforesaid and numbered 1 and upwards (with such further
designation as may be appropriate and desirable to indicate by
such designation the form, series and denominations of bonds of
1999 Series AP). Until bonds of 1999 Series AP in definitive
form are ready for delivery, the Company may execute, and upon
its request in writing the Trustee shall authenticate and
deliver in lieu thereof, bonds of 1999 Series AP in temporary
form, as provided in Section 10 of Article II of the Indenture.
Temporary bonds of 1999 Series AP, if any, may be printed and
may be issued in authorized denominations in substantially the
form of definitive bonds of 1999 Series AP, but with such
omissions, insertions and variations as may be appropriate for
temporary bonds, all as may be determined by the Company.
Bonds of 1999 Series AP shall not be assignable or
transferable except as may be required to effect a transfer to
any successor trustee under the Strategic Fund Trust Indenture,
or, subject to compliance with applicable law, as may be
involved in the course of the exercise of rights and remedies
consequent upon an Event of Default under the Strategic Fund
Trust Indenture. Any such transfer shall be made upon surrender
thereof for cancellation at the office or agency of the Company
in the Borough of Manhattan, The City and State of New York,
together with a written instrument of transfer (if so required
by the Company or by the Trustee) in form approved by the
Company duly executed by the holder or by its duly authorized
attorney. Bonds of 1999 Series AP shall in the same manner be
exchangeable for a like aggregate principal amount of bonds of
1999 Series AP upon the terms and conditions specified herein
and in Section 7 of Article II of the Indenture. The Company
waives its rights under Section 7 of Article II of the
Indenture not to make exchanges or transfers of bonds of 1999
Series AP, during any period of ten days next preceding any
redemption date for such bonds.
Bonds of 1999 Series AP, in definitive and temporary form,
may bear such legends as may be necessary to comply with any
law or with any rules or regulations made pursuant thereto or
as may be specified in the Strategic Fund Agreement.
Upon payment of the principal or premium, if any, or interest
on the Strategic Fund Revenue Bonds, whether at maturity or
prior to maturity by redemption or otherwise, or upon provision
for the payment thereof having been made in accordance with
Articles I or IV of the Strategic Fund Trust Indenture, bonds
of 1999 Series AP in a principal amount equal to the principal
amount of the Strategic Fund Revenue Bonds, shall, to the
extent of such payment of principal, premium or interest, be
deemed fully paid and the obligation of the Company thereunder
to make such payment shall forthwith cease and be discharged,
and, in the case of the payment of principal and premium, if
any, such bonds shall be surrendered for cancellation or
presented for appropriate notation to the Trustee.
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REDEMPTION
OF BONDS OF
1999 SERIES AP SECTION 2. Bonds of the 1999 Series AP shall be redeemed on
the date and in the respective principal amount which
correspond to the redemption date for, and the principal amount
to be redeemed of, the Strategic Fund Revenue Bonds.
In the event the Company elects to redeem any Strategic Fund
Revenue Bonds prior to maturity in accordance with the
provisions of the Strategic Fund Trust
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8
Indenture, the Company shall on the same date redeem bonds of
1999 Series AP in the principal amount and at the redemption
price corresponding to the Strategic Fund Revenue Bonds so
redeemed. The Company agrees to give the Trustee notice of any
such redemption of bonds of 1999 Series AP on the same date as
it gives notice of redemption of Strategic Fund Revenue Bonds
to the Strategic Fund Trust Indenture Trustee.
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REDEMPTION
OF BONDS OF
1999 SERIES AP
IN EVENT OF
ACCELERATION
OF STRATEGIC FUND
REVENUE BONDS. SECTION 3. In the event of an Event of Default under the
Strategic Fund Trust Indenture and the acceleration of all
Strategic Fund Revenue Bonds, the bonds of 1999 Series AP shall
be redeemable in whole upon receipt by the Trustee of a written
demand (hereinafter called a "Redemption Demand") from the
Strategic Fund Trust Indenture Trustee stating that there has
occurred under the Strategic Fund Trust Indenture both an Event
of Default and a declaration of acceleration of payment of
principal, accrued interest and premium, if any, on the
Strategic Fund Revenue Bonds, specifying the last date to which
interest on the Strategic Fund Revenue Bonds has been paid
(such date being hereinafter referred to as the "Initial
Interest Accrual Date") and demanding redemption of the bonds
of said series. The Trustee shall, within five days after
receiving such Redemption Demand, mail a copy thereof to the
Company marked to indicate the date of its receipt by the
Trustee. Promptly upon receipt by the Company of such copy of a
Redemption Demand, the Company shall fix a date on which it
will redeem the bonds of said series so demanded to be redeemed
(hereinafter called the "Demand Redemption Date"). Notice of
the date fixed as the Demand Redemption Date shall be mailed by
the Company to the Trustee at least ten days prior to such
Demand Redemption Date. The date to be fixed by the Company as
and for the Demand Redemption Date may be any date up to and
including the earlier of (x) the 60th day after receipt by the
Trustee of the Redemption Demand or (y) the maturity date of
such bonds first occurring following the 20th day after the
receipt by the Trustee of the Redemption Demand; provided,
however, that if the Trustee shall not have received such
notice fixing the Demand Redemption Date on or before the 10th
day preceding the earlier of such dates, the Demand Redemption
Date shall be deemed to be the earlier of such dates. The
Trustee shall mail notice of the Demand Redemption Date (such
notice being hereinafter called the "Demand Redemption Notice")
to the Strategic Fund Trust Indenture Trustee not more than ten
nor less than five days prior to the Demand Redemption Date.
Each bond of 1999 Series AP shall be redeemed by the Company
on the Demand Redemption Date therefore upon surrender thereof
by the Strategic Fund Trust Indenture Trustee to the Trustee at
a redemption price equal to the principal amount thereof plus
accrued interest thereon at the rate specified for such bond
from the Initial Interest Accrual Date to the Demand Redemption
Date plus an amount equal to the aggregate premium, if any, due
and payable on such Demand Redemption Date on all Strategic
Fund Revenue Bonds; provided, however, that in the event of a
receipt by the Trustee of a notice that, pursuant to Section
604 of the Strategic Fund Trust Indenture, the Strategic Fund
Trust Indenture Trustee has terminated proceedings to enforce
any right under the Strategic Fund Trust Indenture, then any
Redemption Demand shall thereby be rescinded by the Strategic
Fund Trust Indenture Trustee, and no Demand Redemption Notice
shall be given, or, if already given, shall be automatically
annulled; but no such rescission or annulment shall extend to
or affect any subsequent default or impair any right consequent
thereon.
Anything herein contained to the contrary notwithstanding,
the Trustee is not authorized to take any action pursuant to a
Redemption Demand and such Redemption Demand shall be of no
force or effect, unless it is executed in the name of the
Strategic Fund Trust Indenture Trustee by its President or one
of its Vice Presidents.
FORM OF BONDS OF
1999 SERIES AP. SECTION 4. The bonds of 1999 Series AP and the form of
Trustee's Certificate to be endorsed on such bonds shall be
substantially in the following forms, respectively:
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9
[FORM OF FACE OF BOND]
THE DETROIT EDISON COMPANY
GENERAL AND REFUNDING MORTGAGE BOND
1999 SERIES AP, 5.55%, DUE SEPTEMBER 1, 2029
Notwithstanding any provisions hereof or in the Indenture,
this bond is not assignable or transferable except as may be
required to effect a transfer to any successor trustee under
the Trust Indenture, dated as of September 1, 1999 between the
Michigan Strategic Fund and Chase Manhattan Trust Company,
National Association, as trustee, or, subject to compliance
with applicable law, as may be involved in the course of the
exercise of rights and remedies consequent upon an Event of
Default under said Trust Indenture.
$......... No..........
THE DETROIT EDISON COMPANY (hereinafter called the
"Company"), a corporation of the State of Michigan, for value
received, hereby promises to pay to the Michigan Strategic
Fund, or registered assigns, at the Company's office or agency
in the Borough of Manhattan, The City and State of New York,
the principal sum of dollars ($ ) in lawful
money of the United States of America on the date specified in
the title hereof and interest thereon at the rate specified in
the title hereof, in like lawful money, from September 3, 1999,
and after the first payment of interest on bonds of this Series
has been made or otherwise provided for, from the most recent
date to which interest has been paid or otherwise provided for,
semi-annually on March 1 and September 1 of each year
(commencing March 1, 2000), until the Company's obligation with
respect to payment of said principal shall have been
discharged, all as provided, to the extent and in the manner
specified in the Indenture hereinafter mentioned on the reverse
hereof and in the supplemental indenture pursuant to which this
bond has been issued.
Under a Trust Indenture, dated as of September 1, 1999
(hereinafter called the "Strategic Fund Trust Indenture"),
between the Michigan Strategic Fund (hereinafter called
"Strategic Fund"), and Chase Manhattan Trust Company, National
Association, as trustee (hereinafter called the "Strategic Fund
Trust Indenture Trustee"), the Strategic Fund has issued
Limited Obligation Refunding Revenue Bonds (The Detroit Edison
Company Pollution Control Bonds Project), Collateralized Series
1999A (hereinafter called the "Strategic Fund Revenue Bonds").
This bond was originally issued to the Strategic Fund and
simultaneously irrevocably assigned to the Strategic Fund Trust
Indenture Trustee so as to secure the payment of the Strategic
Fund Revenue Bonds. Payments of principal of, or premium, if
any, or interest on, Strategic Fund Revenue Bonds shall
constitute like payments on this bond as further provided
herein and in the supplemental indenture pursuant to which this
bond has been issued.
Reference is hereby made to such further provisions of this
bond set forth on the reverse hereof and such further
provisions shall for all purposes have the same effect as
though set forth at this place.
This bond shall not be valid or become obligatory for any
purpose until Bankers Trust Company, the Trustee under the
Indenture hereinafter mentioned on the reverse hereof, or its
successor thereunder, shall have signed the form of certificate
endorsed hereon.
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10
IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY has caused
this instrument to be executed by its Vice President and
Treasurer, with his manual or facsimile signature, and its
corporate seal, or a facsimile thereof, to be impressed or
imprinted hereon and the same to be attested by its Assistant
Corporate Secretary by manual or facsimile signature.
|
Dated: THE DETROIT EDISON COMPANY
By -------------------------
Vice President
and Treasurer
[SEAL]
Attest:
-----------------------------
Assistant Corporate Secretary
|
[FORM OF REVERSE OF BOND]
This bond is one of an authorized issue of bonds of the Company, unlimited as to amount except as provided in the Indenture hereinafter mentioned or any indentures supplemental thereto, and is one of a series of General and Refunding Mortgage Bonds known as 1999 Series AP, limited to an aggregate principal amount of $118,360,000, except as otherwise provided in the Indenture hereinafter mentioned. This bond and all other bonds of said series are issued and to be issued under, and are all equally and ratably secured (except insofar as any sinking, amortization, improvement or analogous fund, established in accordance with the provisions of the Indenture hereinafter mentioned, may afford additional security for the bonds of any particular series and except as provided in Section 3 of Article VI of said Indenture) by an Indenture, dated as of October 1, 1924, duly executed by the Company to Bankers Trust Company, a corporation of the State of New York, as Trustee, to which Indenture and all indentures supplemental thereto (including the Supplemental Indenture dated as of August 1, 1999) reference is hereby made for a description of the properties and franchises mortgaged and conveyed, the nature and extent of the security, the terms and conditions upon which the bonds are issued and under which additional bonds may be issued, and the rights of the holders of the bonds and of the Trustee in respect of such security (which Indenture and all indentures supplemental thereto, including the Supplemental Indenture dated as of August 1, 1999, are hereinafter collectively called the "Indenture"). As provided in the Indenture, said bonds may be for various principal sums and are issuable in series, which may mature at different times, may bear interest at different rates and may otherwise vary as in said Indenture provided. With the consent of the Company and to the extent permitted by and as provided in the Indenture, the rights and obligations of the Company and of the holders of the bonds and the terms and provisions of the Indenture, or of any indenture supplemental thereto, may be modified or altered in certain respects by affirmative vote of at least eighty-five percent (85%) in amount of the bonds then outstanding, and, if the rights of one or more, but less than all, series of bonds then outstanding are to be affected by the action proposed to be taken, then also by affirmative vote of at least eighty-five percent (85%) in amount of the series of bonds so to be affected (excluding in every instance bonds disqualified from voting by reason of the Company's interest therein as specified in the Indenture); provided, however, that, without the consent of the holder hereof, no such modification or alteration shall, among other things, affect the terms of payment of the principal of or the interest on this bond, which in those respects is unconditional.
This bond is redeemable upon the terms and conditions set forth in the Indenture, including provision for redemption upon demand of the Strategic Fund Trust Indenture Trustee following the occurrence of an Event of Default under the Strategic Fund Trust Indenture and the acceleration of the principal of the Strategic Fund Revenue Bonds.
Under the Indenture, funds may be deposited with the Trustee (which shall have become available for payment), in advance of the redemption date of any of the bonds of 1999 Series AP (or portions thereof), in trust for the redemption of such bonds (or portions thereof) and the interest due or to become due thereon, and thereupon all obligations of the Company in respect of such bonds (or portions thereof) so to be redeemed and such interest shall cease and be discharged, and the holders thereof shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or with respect to such bonds (or portions thereof) and interest.
In case an event of default, as defined in the Indenture, shall occur, the principal of all the bonds issued thereunder may become or be declared due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Upon payment of the principal of, or premium, if any, or interest on, the Strategic Fund Revenue Bonds, whether at maturity or prior to maturity by redemption or otherwise or upon provision for the payment thereof having been made in accordance with Articles I or IV of the Strategic Fund Trust Indenture, bonds of 1999 Series AP in a principal amount equal to the principal amount of such Strategic Fund Revenue Bonds and having both a corresponding maturity date and interest rate shall, to the extent of such payment of principal, premium or interest, be deemed fully paid and the obligation of the Company thereunder to make such payment shall forthwith cease and be discharged, and, in the case of the payment of principal and premium, if any, such bonds of said series shall be surrendered for cancellation or presented for appropriate notation to the Trustee.
This bond is not assignable or transferable except as may be required to effect a transfer to any successor trustee under the Strategic Fund Trust Indenture, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under the Strategic Fund Trust Indenture. Any such transfer shall be made by the registered holder hereof, in person or by his attorney duly authorized in writing, on the books of the Company kept at its office or agency in the Borough of Manhattan, The City and State of New York, upon surrender and cancellation of this bond, and thereupon, a new registered bond of the same series of authorized denominations for a like aggregate principal amount will be issued to the transferee in exchange therefor, and this bond with others in like form may in like manner be exchanged for one or more new bonds of the same series of other authorized denominations, but of the same aggregate principal amount, all as provided and upon the terms and conditions set forth in the Indenture, and upon payment, in any event, of the charges prescribed in the Indenture.
No recourse shall be had for the payment of the principal of or the interest on this bond, or for any claim based hereon or otherwise in respect hereof or of the Indenture, or of any indenture supplemental thereto, against any incorporator, or against any past, present or future stockholder, director or officer, as such, of the Company, or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether for amounts unpaid on stock subscriptions or by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise howsoever; all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released by every holder or owner hereof, as more fully provided in the Indenture.
[FORM OF TRUSTEE'S CERTIFICATE]
FORM OF
TRUSTEE'S
CERTIFICATE. This bond is one of the bonds, of the series designated
therein, described in the within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By
----------------------
Authorized Officer
PART II.
CREATION OF THREE HUNDRED TWENTY-FIRST
SERIES OF BONDS.
GENERAL AND REFUNDING MORTGAGE BONDS,
1999 SERIES BP
|
CERTAIN TERMS OF
BONDS OF 1999
SERIES BP. SECTION 1. The Company hereby creates the Three hundred
twenty-first series of bonds to be issued under and secured by
the Original Indenture as amended to date and as further
amended by this Supplemental Indenture, to be designated, and
to be distinguished from the bonds of all other series, by the
title "General and Refunding Mortgage Bonds, 1999 Series BP"
(elsewhere herein referred to as the "bonds of 1999 Series
BP"). The aggregate principal amount of bonds of 1999 Series BP
shall be limited to Thirty-nine million seven hundred
forty-five thousand dollars ($39,745,000), except as provided
in Sections 7 and 13 of Article II of the Original Indenture
with respect to exchanges and replacements of bonds.
Each bond of 1999 Series BP is to be assigned to, and
registered in the name of, Bank One Trust Company, NA, as
trustee, or a successor trustee (said trustee or any successor
trustee being hereinafter referred to as the "Strategic Fund
Trust Indenture Trustee"), under the Trust Indenture, dated as
of August 1, 1999 (hereinafter called the "Strategic Fund Trust
Indenture"), between the Michigan Strategic Fund (hereinafter
called "Strategic Fund"), and the Strategic Fund Trust
Indenture Trustee, to secure payment of the Michigan Strategic
Fund Variable Rate Demand Limited Obligation Refunding Revenue
Bonds (The Detroit Edison Company Pollution Control Bonds
Project), Collateralized Series 1999B (hereinafter called the
"Strategic Fund Revenue Bonds"), issued by the Strategic Fund
under the Strategic Fund Trust Indenture, the proceeds of which
have been provided for the refunding of certain pollution
control related bonds which the Company has agreed to refund
pursuant to the provisions of the Loan Agreement, dated as of
August 1, 1999 (hereinafter called the "Strategic Fund
Agreement"), between the Company and the Strategic Fund. Such
assignment is revocable only upon revocation of the bonds, as
provided herein and in the Strategic Fund Trust Indenture.
The bonds of 1999 Series BP shall be issued as registered
bonds without coupons in denominations of a multiple of $5,000.
The bonds of 1999 Series BP shall be issued in the aggregate
principal amount of $39,745,000, shall mature on September 1,
2029 (unless redeemed or revoked on an earlier date pursuant to
the terms of the Strategic Fund Trust Indenture) and shall
initially bear interest, payable semi-annually on March 1 and
September 1 (commencing March 1, 2000), and thereafter shall
bear interest, payable on such dates as interest shall be
payable on the Strategic Fund Revenue Bonds pursuant to the
Strategic Fund Trust Indenture, at such rate or rates not in
excess of a maximum rate of 15% per annum (unless such maximum
rate shall be increased by resolution of the Company's Board of
Directors and set forth in an additional Supplemental Indenture
between the Company and the Trustee), until the principal
thereof shall have become due and payable pursuant to the
Strategic Fund Trust Indenture and thereafter until the
Company's obligation with respect to the payment of said
principal shall have been discharged as provided
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14
in the Indenture or until such time as the bonds of 1999 Series
BP shall be revoked pursuant to the terms of the Strategic Fund
Trust Indenture, in which event all principal shall be deemed
to be discharged within the meaning of the Indenture.
The bonds of 1999 Series BP shall be payable as to principal,
premium, if any, and interest as provided in the Indenture, but
only to the extent and in the manner herein provided. The bonds
of 1999 Series BP shall be payable, both as to principal and
interest, at the office or agency of the Company in the Borough
of Manhattan, The City and State of New York, in any coin or
currency of the United States of America which at the time of
payment is legal tender for public and private debts.
Except as provided herein, each bond of 1999 Series BP shall
be dated the date of its authentication and interest shall be
payable on the principal represented thereby as provided in the
Strategic Fund Trust Indenture.
The bonds of 1999 Series BP in definitive form shall be, at
the election of the Company, fully engraved or shall be
lithographed or printed in authorized denominations as
aforesaid and numbered 1 and upwards (with such further
designation as may be appropriate and desirable to indicate by
such designation the form, series and denominations of bonds of
1999 Series BP). Until bonds of 1999 Series BP in definitive
form are ready for delivery, the Company may execute, and upon
its request in writing the Trustee shall authenticate and
deliver in lieu thereof, bonds of 1999 Series BP in temporary
form, as provided in Section 10 of Article II of the Indenture.
Temporary bonds of 1999 Series BP, if any, may be printed and
may be issued in authorized denominations in substantially the
form of definitive bonds of 1999 Series BP, but with such
omissions, insertions and variations as may be appropriate for
temporary bonds, all as may be determined by the Company.
Bonds of 1999 Series BP shall not be assignable or
transferable except as may be required to effect a transfer to
any successor trustee under the Strategic Fund Trust Indenture,
or, subject to compliance with applicable law, as may be
involved in the course of the exercise of rights and remedies
consequent upon an Event of Default under the Strategic Fund
Trust Indenture. Any such transfer shall be made upon surrender
thereof for cancellation at the office or agency of the Company
in the Borough of Manhattan, The City and State of New York,
together with a written instrument of transfer (if so required
by the Company or by the Trustee) in form approved by the
Company duly executed by the holder or by its duly authorized
attorney. Bonds of 1999 Series BP shall in the same manner be
exchangeable for a like aggregate principal amount of bonds of
1999 Series BP upon the terms and conditions specified herein
and in Section 7 of Article II of the Indenture. The Company
waives its rights under Section 7 of Article II of the
Indenture not to make exchanges or transfers of bonds of 1999
Series BP, during any period of ten days next preceding any
redemption date for such bonds.
Bonds of 1999 Series BP, in definitive and temporary form,
may bear such legends as may be necessary to comply with any
law or with any rules or regulations made pursuant thereto or
as may be specified in the Strategic Fund Agreement.
Upon payment of the principal or premium, if any, or interest
on the Strategic Fund Revenue Bonds, whether at maturity or
prior to maturity by redemption or otherwise, or upon provision
for the payment thereof having been made in accordance with the
terms of the Strategic Fund Trust Indenture, bonds of 1999
Series BP in a principal amount equal to the principal amount
of the Strategic Fund Revenue Bonds, shall, to the extent of
such payment of principal, premium or interest, be deemed fully
paid and the obligation of the Company thereunder to make such
payment shall forthwith cease and be discharged, and upon
revocation of such bonds as provided herein the obligation of
the Company hereunder to make any payment shall forthwith cease
and be discharged, and, in the case of the payment of principal
and premium, if any, or revocation of such bonds pursuant to
the terms of The Strategic Fund Trust Indenture such bonds
shall be surrendered for cancellation or presented for
appropriate notation to the Trustee.
|
REDEMPTION AND/OR
REVOCATION OF
BONDS OF 1999
SERIES BP SECTION 2. Bonds of the 1999 Series BP shall be redeemed on
the date and in the respective principal amount which
correspond to the redemption date for, and the principal amount
to be redeemed of, the Strategic Fund Revenue Bonds.
In the event the Company elects to redeem any Strategic Fund
Revenue Bonds prior to maturity in accordance with the
provisions of the Strategic Fund Trust Indenture, the Company
shall on the same date redeem bonds of 1999 Series BP in the
principal amount and at the redemption price corresponding to
the Strategic Fund Revenue Bonds so redeemed. The Company
agrees to give the Trustee notice of any such redemption of
bonds of 1999 Series BP on the same date as it gives notice of
redemption of Strategic Fund Revenue Bonds to the Strategic
Fund Trust Indenture Trustee.
The Company may elect to revoke the bonds of 1999 Series BP
on such date as it shall select in accordance with the terms of
the Strategic Fund Trust Indenture. For purposes of this
Supplemental Indenture, the term "revocation" of bonds of 1999
Series BP shall mean the revocation by the Company of the
pledge of such bonds and of the assignment thereof to the
Strategic Trust Fund Indenture Trustee pursuant to the terms of
the Strategic Fund Trust Indenture, the surrender by the
Strategic Fund Trust Indenture Trustee of such bonds to the
Trustee for cancellation, the receipt by the Trustee of
certificates and opinions set forth in the next succeeding
paragraph of this Section 2 and the cancellation of such bonds
by the Trustee pursuant to an order of an authorized officer of
the Company. In the event the Company elects to revoke the
bonds of 1999 Series BP, the Company agrees to give the Trustee
notice of such revocation on the same date as it gives notice
of revocation to the Strategic Fund Trust Indenture Trustee.
The bonds of 1999 Series BP shall be cancelled upon surrender
of such bonds to the Trustee by the Strategic Fund Trust
Indenture Trustee and satisfaction of the conditions set forth
in the next succeeding paragraph of this Section 2.
The cancellation of bonds of 1999 Series BP being revoked
shall be subject to receipt by the Trustee from the Company of
(i) the notice specified above; (ii) the certificate and
opinion set forth in Article XA, Section 1(a) and (b) of the
Indenture; (iii) a certificate of the Company, under its
corporate seal, signed by its President or a Vice-President and
by its Treasurer or an Assistant Treasurer, and an opinion of
counsel stating that in the opinion of the same signers or, as
the case may be, such counsel, all conditions precedent for
revocation of the pledge and cancellation of the bonds under
the Strategic Fund Trust Indenture have been complied with, and
(iv) such other certificates and opinions as the Trustee may
reasonably require. In addition, cancellation shall be subject
to receipt by the Trustee of a release, executed by the
Strategic Fund Trust Indenture Trustee, of the pledge of such
bonds. The Trustee shall be entitled to rely upon the foregoing
to the full extent provided in the Indenture, including without
limitation Article XII, Section 1 thereof, in canceling the
bonds as provided herein.
|
REDEMPTION
OF BONDS OF
1999 SERIES BP
IN EVENT OF
ACCELERATION
OF STRATEGIC FUND
REVENUE BONDS. SECTION 3. In the event of an Event of Default under the
Strategic Fund Trust Indenture and the acceleration of all
Strategic Fund Revenue Bonds, the bonds of 1999 Series BP shall
be redeemable in whole upon receipt by the Trustee of a written
demand (hereinafter called a "Redemption Demand") from the
Strategic Fund Trust Indenture Trustee stating that there has
occurred under the Strategic Fund Trust Indenture both an Event
of Default and a declaration of acceleration of payment of
principal, accrued interest and premium, if any, on the
Strategic Fund Revenue Bonds, specifying the last date to which
interest on the Strategic Fund Revenue Bonds has been paid
(such date being hereinafter referred to as the "Initial
Interest Accrual Date") and demanding redemption of the bonds
of said series. The Trustee shall, within five days after
receiving such Redemption Demand, mail a copy thereof to the
Company marked to indicate the date of its receipt by the
Trustee. Promptly upon receipt by the Company of such copy of a
Redemption Demand, the Company shall fix a date on which it
will redeem the bonds of said series so demanded to be redeemed
(hereinafter called the "Demand Redemption Date").
|
16
Notice of the date fixed as the Demand Redemption Date shall be
mailed by the Company to the Trustee at least ten days prior to
such Demand Redemption Date. The date to be fixed by the
Company as and for the Demand Redemption Date may be any date
up to and including the earlier of (x) the 60th day after
receipt by the Trustee of the Redemption Demand or (y) the
maturity date of such bonds first occurring following the 20th
day after the receipt by the Trustee of the Redemption Demand;
provided, however, that if the Trustee shall not have received
such notice fixing the Demand Redemption Date on or before the
10th day preceding the earlier of such dates, the Demand
Redemption Date shall be deemed to be the earlier of such
dates. The Trustee shall mail notice of the Demand Redemption
Date (such notice being hereinafter called the "Demand
Redemption Notice") to the Strategic Fund Trust Indenture
Trustee not more than ten nor less than five days prior to the
Demand Redemption Date.
Each bond of 1999 Series BP shall be redeemed by the Company
on the Demand Redemption Date therefore upon surrender thereof
by the Strategic Fund Trust Indenture Trustee to the Trustee at
a redemption price equal to the principal amount thereof plus
accrued interest thereon at the rate specified for such bond
from the Initial Interest Accrual Date to the Demand Redemption
Date plus an amount equal to the aggregate premium, if any, due
and payable on such Demand Redemption Date on all Strategic
Fund Revenue Bonds; provided, however, that in the event of a
receipt by the Trustee of a notice that, pursuant to the
Strategic Fund Trust Indenture, the Strategic Fund Trust
Indenture Trustee has terminated proceedings to enforce any
right under the Strategic Fund Trust Indenture, then any
Redemption Demand shall thereby be rescinded by the Strategic
Fund Trust Indenture Trustee, and no Demand Redemption Notice
shall be given, or, if already given, shall be automatically
annulled; but no such rescission or annulment shall extend to
or affect any subsequent default or impair any right consequent
thereon.
Anything herein contained to the contrary notwithstanding,
the Trustee is not authorized to take any action pursuant to a
Redemption Demand and such Redemption Demand shall be of no
force or effect, unless it is executed in the name of the
Strategic Fund Trust Indenture Trustee by its President or one
of its Vice Presidents.
FORM OF BONDS OF
1999 SERIES BP. SECTION 4. The bonds of 1999 Series BP and the form of
Trustee's Certificate to be endorsed on such bonds shall be
substantially in the following forms, respectively:
|
17
[FORM OF FACE OF BOND]
THE DETROIT EDISON COMPANY
GENERAL AND REFUNDING MORTGAGE BOND
1999 SERIES BP, DUE SEPTEMBER 1, 2029
Notwithstanding any provisions hereof or in the Indenture,
this bond is not assignable or transferable except as may be
required to effect a transfer to any successor trustee under
the Trust Indenture, dated as of August 1, 1999 between the
Michigan Strategic Fund and Bank One Trust Company, NA,
National Association, as trustee, or, subject to compliance
with applicable law, as may be involved in the course of the
exercise of rights and remedies consequent upon an Event of
Default under said Trust Indenture.
$......... No..........
THE DETROIT EDISON COMPANY (hereinafter called the
"Company"), a corporation of the State of Michigan, for value
received, hereby promises to pay to the Michigan Strategic
Fund, or registered assigns, at the Company's office or agency
in the Borough of Manhattan, The City and State of New York,
the principal sum of dollars ($ ) in lawful
money of the United States of America on the date specified in
the title hereof and interest thereon in like lawful money, on
such date or dates in each case as provided for in the Trust
Indenture, dated as of August 1, 1999 (hereinafter called the
"Strategic Fund Trust Indenture"), between the Michigan
Strategic Fund (hereinafter called the "Strategic Fund") and
Bank One Trust Company, NA, as trustee (hereinafter "Strategic
Fund Trust Indenture Trustee"). This bond of 1999 Series BP
shall bear interest at a maximum rate of 15% per annum (unless
such maximum rate shall be increased by resolution of the
Company's Board of Directors as set forth in an additional
Supplemental Indenture between the Company and the Trustee),
until the Company's obligation with respect to payment of said
principal shall have been discharged, all as provided, to the
extent and in the manner specified in the Indenture hereinafter
mentioned on the reverse hereof and in the supplemental
indenture pursuant to which this bond has been issued or until
such time as the bonds of 1999 Series BP shall be revoked
pursuant to the terms of the Strategic Fund Trust Indenture, in
which event all principal shall be deemed to be discharged
within the meaning of the Indenture.
Under the Strategic Fund Trust Indenture, the Strategic Fund
has issued Variable Rate Demand Limited Obligation Refunding
Revenue Bonds (The Detroit Edison Company Pollution Control
Bonds Project), Collateralized Series 1999B (hereinafter called
the "Strategic Fund Revenue Bonds"). This bond was originally
issued to the Strategic Fund and simultaneously assigned to the
Strategic Fund Trust Indenture Trustee so as to secure the
payment of the Strategic Fund Revenue Bonds. Such assignment
shall be irrevocable except as provided in the Indenture.
Payments of principal of, or premium, if any, or interest on,
Strategic Fund Revenue Bonds shall constitute like payments on
this bond as further provided herein and in the supplemental
indenture pursuant to which this bond has been issued. The
Company may elect to revoke the bonds of 1999 Series BP
pursuant to the terms of the Strategic Fund Trust Indenture.
Reference is hereby made to such further provisions of this
bond set forth on the reverse hereof and such further
provisions shall for all purposes have the same effect as
though set forth at this place.
This bond shall not be valid or become obligatory for any
purpose until Bankers Trust Company, the Trustee under the
Indenture hereinafter mentioned on the reverse hereof, or its
successor thereunder, shall have signed the form of certificate
endorsed hereon.
|
18
IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY has caused
this instrument to be executed by its Vice President and
Treasurer, with his manual or facsimile signature, 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 with her manual or facsimile
signature.
|
Dated: THE DETROIT EDISON COMPANY
By
------------------------
Vice President
and Treasurer
Attest:
-------------------------------
Assistant Corporate Secretary
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[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 1999 Series BP, limited to an aggregate principal amount of $39,745,000, except as otherwise provided in the Indenture hereinafter mentioned. This bond and all other bonds of said series are issued and to be issued under, and are all equally and ratably secured (except insofar as any sinking, amortization, improvement or analogous fund, established in accordance with the provisions of the Indenture hereinafter mentioned, may afford additional security for the bonds of any particular series and except as provided in Section 3 of Article VI of said Indenture) by an Indenture, dated as of October 1, 1924, duly executed by the Company to Bankers Trust Company, a corporation of the State of New York, as Trustee, to which Indenture and all indentures supplemental thereto (including the Supplemental Indenture dated as of August 1, 1999) reference is hereby made for a description of the properties and franchises mortgaged and conveyed, the nature and extent of the security, the terms and conditions upon which the bonds are issued and under which additional bonds may be issued, and the rights of the holders of the bonds and of the Trustee in respect of such security (which Indenture and all indentures supplemental thereto, including the Supplemental Indenture dated as of August 1, 1999, are hereinafter collectively called the "Indenture"). As provided in the Indenture, said bonds may be for various principal sums and are issuable in series, which may mature at different times, may bear interest at different rates and may otherwise vary as in said Indenture provided. With the consent of the Company and to the extent permitted by and as provided in the Indenture, the rights and obligations of the Company and of the holders of the bonds and the terms and provisions of the Indenture, or of any indenture supplemental thereto, may be modified or altered in certain respects by affirmative vote of at least eighty-five percent (85%) in amount of the bonds then outstanding, and, if the rights of one or more, but less than all, series of bonds then outstanding are to be affected by the action proposed to be taken, then also by affirmative vote of at least eighty-five percent (85%) in amount of the series of bonds so to be affected (excluding in every instance bonds disqualified from voting by reason of the Company's interest therein as specified in the Indenture); provided, however, that, without the consent of the holder hereof, no such modification or alteration shall, among other things, affect the terms of payment of the principal of or the interest on this bond, which in those respects is unconditional.
This bond is redeemable upon the terms and conditions set forth in the Indenture, including provision for redemption upon demand of the Strategic Fund Trust Indenture Trustee following the occurrence of an Event of Default under the Strategic Fund Trust Indenture and the acceleration of the principal of the Strategic Fund Revenue Bonds.
This bond is revocable, at the option of the Company, pursuant to the provisions of the Strategic Fund Trust Indenture and cancellation thereupon as provided in the Indenture.
Under the Indenture, funds may be deposited with the Trustee (which shall have become available for payment), in advance of the redemption date of any of the bonds of 1999 Series BP (or portions thereof), in trust for the redemption of such bonds (or portions thereof) and the interest due or to become due thereon, and thereupon all obligations of the Company in respect of such bonds (or portions thereof) so to be redeemed and such interest shall cease and be discharged, and the holders thereof shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or with respect to such bonds (or portions thereof) and interest.
In case an event of default, as defined in the Indenture, shall occur, the principal of all the bonds issued thereunder may become or be declared due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Upon payment of the principal of, or premium, if any, or interest on, the Strategic Fund Revenue Bonds, whether at maturity or prior to maturity by redemption or otherwise or upon provision for the payment thereof having been made in accordance with the Strategic Fund Trust Indenture, bonds of 1999 Series BP in a principal amount equal to the principal amount of such Strategic Fund Revenue Bonds and having both a corresponding maturity date and interest rate shall, to the extent of such payment of principal, premium or interest, be deemed fully paid and the obligation of the Company thereunder to make such payment shall forthwith cease and be discharged, and, in the case of the payment of principal and premium, if any, such bonds of said series shall be surrendered for cancellation or presented for appropriate notation to the Trustee.
This bond of 1999 Series BP shall be revoked upon surrender to the Trustee by the Strategic Fund Trust Indenture Trustee, and upon such revocation as provided in the Indenture, the obligation of the Company thereunder to make any payments on this bond shall forthwith cease and be discharged.
This bond is not assignable or transferable except as may be required to effect a transfer to any successor trustee under the Strategic Fund Trust Indenture, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under the Strategic Fund Trust Indenture. Any such transfer shall be made by the registered holder hereof, in person or by his attorney duly authorized in writing, on the books of the Company kept at its office or agency in the Borough of Manhattan, The City and State of New York, upon surrender and cancellation of this bond, and thereupon, a new registered bond of the same series of authorized denominations for a like aggregate principal amount will be issued to the transferee in exchange therefor, and this bond with others in like form may in like manner be exchanged for one or more new bonds of the same series of other authorized denominations, but of the same aggregate principal amount, all as provided and upon the terms and conditions set forth in the Indenture, and upon payment, in any event, of the charges prescribed in the Indenture.
No recourse shall be had for the payment of the principal of or the interest on this bond, or for any claim based hereon or otherwise in respect hereof or of the Indenture, or of any indenture supplemental thereto, against any incorporator, or against any past, present or future stockholder, director or officer, as such, of the Company, or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether for amounts unpaid on stock subscriptions or by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise howsoever; all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released by every holder or owner hereof, as more fully provided in the Indenture.
[FORM OF TRUSTEE'S CERTIFICATE]
FORM OF
TRUSTEE'S
CERTIFICATE. This bond is one of the bonds, of the series designated
therein, described in the within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By
---------------------------
Authorized Officer
PART III.
CREATION OF THREE HUNDRED TWENTY-SECOND
SERIES OF BONDS.
GENERAL AND REFUNDING MORTGAGE BONDS,
1999 SERIES CP
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CERTAIN TERMS OF
BONDS OF 1999
SERIES CP. SECTION 1. The Company hereby creates the Three hundred
twenty-second series of bonds to be issued under and secured by
the Original Indenture as amended to date and as further
amended by this Supplemental Indenture, to be designated, and
to be distinguished from the bonds of all other series, by the
title "General and Refunding Mortgage Bonds, 1999 Series CP"
(elsewhere herein referred to as the "bonds of 1999 Series
CP"). The aggregate principal amount of bonds of 1999 Series CP
shall be limited to Sixty-six million five hundred sixty-five
thousand dollars ($66,565,000), except as provided in Sections
7 and 13 of Article II of the Original Indenture with respect
to exchanges and replacements of bonds.
Each bond of 1999 Series CP is to be assigned to, and
registered in the name of, Bank One Trust Company, NA, as
trustee, or a successor trustee (said trustee or any successor
trustee being hereinafter referred to as the "Strategic Fund
Trust Indenture Trustee"), under the Trust Indenture, dated as
of September 1, 1999 (hereinafter called the "Strategic Fund
Trust Indenture"), between the Michigan Strategic Fund
(hereinafter called "Strategic Fund"), and the Strategic Fund
Trust Indenture Trustee, to secure payment of the Michigan
Strategic Fund Variable Rate Demand Limited Obligation
Refunding Revenue Bonds (The Detroit Edison Company Pollution
Control Bonds Project), Collateralized Series 1999C
(hereinafter called the "Strategic Fund Revenue Bonds"), issued
by the Strategic Fund under the Strategic Fund Trust Indenture,
the proceeds of which have been provided for the refunding of
certain pollution control related bonds which the Company has
agreed to refund pursuant to the provisions of the Loan
Agreement, dated as of September 1, 1999 (hereinafter called
the "Strategic Fund Agreement"), between the Company and the
Strategic Fund. Such assignment is revocable only upon
revocation of the bonds, as provided herein and the Strategic
Fund Trust Indenture.
The bonds of 1999 Series CP shall be issued as registered
bonds without coupons in denominations of a multiple of $5,000.
The bonds of 1999 Series CP shall be issued in the aggregate
principal amount of $66,565,000, shall mature on September 1,
2029 (unless redeemed or revoked on an earlier date pursuant to
the terms of the Strategic Fund Trust Indenture) and shall
initially bear interest, payable semi-annually on March 1 and
September 1 (commencing March 1, 2000), and thereafter shall
bear interest, payable on such dates as interest shall be
payable on the Strategic Fund Revenue Bonds pursuant to the
Strategic Fund Trust Indenture, at such rate or rates not in
excess of a maximum rate of 15% per annum (unless such maximum
rate shall be increased by resolution of the Company's Board of
Directors and set forth in an additional Supplemental Indenture
between the Company and the Trustee), until the principal
thereof shall have become due and payable pursuant to the
Strategic Fund Trust Indenture and thereafter until the
Company's obligation with respect to the payment of said
principal shall have been discharged as provided
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in the Indenture or until such time as the bonds of 1999 Series
CP shall be revoked pursuant to the terms of the Strategic Fund
Trust Indenture, in which event all principal shall be deemed
to be discharged within the meaning of the Indenture.
The bonds of 1999 Series CP 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 1999 Series CP 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 1999 Series CP shall
be dated the date of its authentication and interest shall be
payable on the principal represented thereby as provided in the
Strategic Fund Trust Indenture.
The bonds of 1999 Series CP in definitive form shall be, at
the election of the Company, fully engraved or shall be
lithographed or printed in authorized denominations as
aforesaid and numbered 1 and upwards (with such further
designation as may be appropriate and desirable to indicate by
such designation the form, series and denominations of bonds of
1999 Series CP). Until bonds of 1999 Series CP 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 1999 Series CP in temporary
form, as provided in Section 10 of Article II of the Indenture.
Temporary bonds of 1999 Series CP, if any, may be printed and
may be issued in authorized denominations in substantially the
form of definitive bonds of 1999 Series CP, but with such
omissions, insertions and variations as may be appropriate for
temporary bonds, all as may be determined by the Company.
Bonds of 1999 Series CP shall not be assignable or
transferable except as may be required to effect a transfer to
any successor trustee under the Strategic Fund Trust Indenture,
or, subject to compliance with applicable law, as may be
involved in the course of the exercise of rights and remedies
consequent upon an Event of Default under the Strategic Fund
Trust Indenture. Any such transfer shall be made upon surrender
thereof for cancellation at the office or agency of the Company
in the Borough of Manhattan, The City and State of New York,
together with a written instrument of transfer (if so required
by the Company or by the Trustee) in form approved by the
Company duly executed by the holder or by its duly authorized
attorney. Bonds of 1999 Series CP shall in the same manner be
exchangeable for a like aggregate principal amount of bonds of
1999 Series CP 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 1999
Series CP, during any period of ten days next preceding any
redemption date for such bonds.
Bonds of 1999 Series CP, in definitive and temporary form,
may bear such legends as may be necessary to comply with any
law or with any rules or regulations made pursuant thereto or
as may be specified in the Strategic Fund Agreement.
Upon payment of the principal or premium, if any, or interest
on the Strategic Fund Revenue Bonds, whether at maturity or
prior to maturity by redemption or otherwise, or upon provision
for the payment thereof having been made in accordance with the
terms of the Strategic Fund Trust Indenture, bonds of 1999
Series CP in a principal amount equal to the principal amount
of the Strategic Fund Revenue Bonds, shall, to the extent of
such payment of principal, premium or interest, be deemed fully
paid and the obligation of the Company thereunder to make such
payment shall forthwith cease and be discharged, and upon
revocation of such bonds as provided herein the obligation of
the Company thereunder to make any payment shall forthwith
cease and be discharged, and, in the case of the payment of
principal and premium, if any, or revocation of such bonds
pursuant to the terms of The Strategic Fund Trust Indenture
such bonds shall be surrendered for cancellation or presented
for appropriate notation to the Trustee.
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REDEMPTION AND/OR
REVOCATION
OF BONDS OF
1999 SERIES CP SECTION 2. Bonds of the 1999 Series BP shall be redeemed on
the date and in the respective principal amount which
correspond to the redemption date for, and the principal amount
to be redeemed of, the Strategic Fund Revenue Bonds.
In the event the Company elects to redeem any Strategic Fund
Revenue Bonds prior to maturity in accordance with the
provisions of the Strategic Fund Trust Indenture, the Company
shall on the same date redeem bonds of 1999 Series CP in the
principal amount and at the redemption price corresponding to
the Strategic Fund Revenue Bonds so redeemed. The Company
agrees to give the Trustee notice of any such redemption of
bonds of 1999 Series CP on the same date as it gives notice of
redemption of Strategic Fund Revenue Bonds to the Strategic
Fund Trust Indenture Trustee.
The Company may elect to revoke the bonds of 1999 Series CP
on such date as it shall select in accordance with the terms of
the Strategic Fund Trust Indenture. For purposes of this
Supplemental Indenture, the term "revocation" of bonds of 1999
Series CP shall mean the revocation by the Company of the
pledge of such bonds and of the assignment thereof to the
Strategic Fund Trust Indenture Trustee pursuant to the terms of
the Strategic Trust Fund Indenture, the surrender by the
Strategic Fund Trust Indenture Trustee of such bonds to the
Trustee for cancellation, the receipt by the Trustee of
certificates and opinions set forth in the next succeeding
paragraph of this Section 2 and the cancellation of such bonds
by the Trustee pursuant to an order of an authorized officer of
the Company. In the event the Company elects to revoke the
bonds of 1999 Series CP, the Company agrees to give the Trustee
notice of such revocation on the same date as it gives notice
of revocation to the Strategic Fund Trust Indenture Trustee.
The bonds of 1999 Series CP shall be cancelled upon surrender
of such bonds to the Trustee by the Strategic Fund Trust
Indenture Trustee and satisfaction of the conditions set forth
in the next succeeding paragraph of this Section 2.
The cancellation of bonds of 1999 Series CP being revoked
shall be subject to receipt by the Trustee from the Company of
(i) the notice specified above; (ii) the certificate and
opinion set forth in Article XA, Section 1(a) and (b) of the
Indenture; (iii) a certificate of the Company, under its
corporate seal, signed by its President or a Vice-President and
by its Treasurer or an Assistant Treasurer, and an opinion of
counsel stating that in the opinion of the same signers or, as
the case may be, such counsel, all conditions precedent for
revocation of the pledge and cancellation of the bonds under
the Strategic Trust Fund Indenture have been complied with, and
(iv) such other certificates and opinions as the Trustee may
reasonably require. In addition, cancellation shall be subject
to receipt by the Trustee of a release, executed by the
Strategic Trust Fund Trustee, of the pledge of such bonds. The
Trustee shall be entitled to rely upon the foregoing to the
full extent provided in the Indenture, including without
limitation Article XII, Section 1 thereof, in canceling the
bonds as provided herein.
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REDEMPTION
OF BONDS OF
1999 SERIES CP
IN EVENT OF
ACCELERATION
OF STRATEGIC FUND
REVENUE BONDS. SECTION 3. In the event of an Event of Default under the
Strategic Fund Trust Indenture and the acceleration of all
Strategic Fund Revenue Bonds, the bonds of 1999 Series BP shall
be redeemable in whole upon receipt by the Trustee of a written
demand (hereinafter called a "Redemption Demand") from the
Strategic Fund Trust Indenture Trustee stating that there has
occurred under the Strategic Fund Trust Indenture both an Event
of Default and a declaration of acceleration of payment of
principal, accrued interest and premium, if any, on the
Strategic Fund Revenue Bonds, specifying the last date to which
interest on the Strategic Fund Revenue Bonds has been paid
(such date being hereinafter referred to as the "Initial
Interest Accrual Date") and demanding redemption of the bonds
of said series. The Trustee shall, within five days after
receiving such Redemption Demand, mail a copy thereof to the
Company marked to indicate the date of its receipt by the
Trustee. Promptly upon receipt by the Company of such copy of a
Redemption Demand, the Company shall fix a date on which it
will redeem the bonds of said series so demanded to be redeemed
(hereinafter called the "Demand Redemption Date").
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Notice of the date fixed as the Demand Redemption Date shall be
mailed by the Company to the Trustee at least ten days prior to
such Demand Redemption Date. The date to be fixed by the
Company as and for the Demand Redemption Date may be any date
up to and including the earlier of (x) the 60th day after
receipt by the Trustee of the Redemption Demand or (y) the
maturity date of such bonds first occurring following the 20th
day after the receipt by the Trustee of the Redemption Demand;
provided, however, that if the Trustee shall not have received
such notice fixing the Demand Redemption Date on or before the
10th day preceding the earlier of such dates, the Demand
Redemption Date shall be deemed to be the earlier of such
dates. The Trustee shall mail notice of the Demand Redemption
Date (such notice being hereinafter called the "Demand
Redemption Notice") to the Strategic Fund Trust Indenture
Trustee not more than ten nor less than five days prior to the
Demand Redemption Date.
Each bond of 1999 Series CP shall be redeemed by the Company
on the Demand Redemption Date therefore upon surrender thereof
by the Strategic Fund Trust Indenture Trustee to the Trustee at
a redemption price equal to the principal amount thereof plus
accrued interest thereon at the rate specified for such bond
from the Initial Interest Accrual Date to the Demand Redemption
Date plus an amount equal to the aggregate premium, if any, due
and payable on such Demand Redemption Date on all Strategic
Fund Revenue Bonds; provided, however, that in the event of a
receipt by the Trustee of a notice that, pursuant to the
Strategic Fund Trust Indenture, the Strategic Fund Trust
Indenture Trustee has terminated proceedings to enforce any
right under the Strategic Fund Trust Indenture, then any
Redemption Demand shall thereby be rescinded by the Strategic
Fund Trust Indenture Trustee, and no Demand Redemption Notice
shall be given, or, if already given, shall be automatically
annulled; but no such rescission or annulment shall extend to
or affect any subsequent default or impair any right consequent
thereon.
Anything herein contained to the contrary notwithstanding,
the Trustee is not authorized to take any action pursuant to a
Redemption Demand and such Redemption Demand shall be of no
force or effect, unless it is executed in the name of the
Strategic Fund Trust Indenture Trustee by its President or one
of its Vice Presidents.
FORM OF BONDS OF
1999 SERIES CP. SECTION 4. The bonds of 1999 Series CP and the form of
Trustee's Certificate to be endorsed on such bonds shall be
substantially in the following forms, respectively:
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[FORM OF FACE OF BOND]
THE DETROIT EDISON COMPANY
GENERAL AND REFUNDING MORTGAGE BOND
1999 SERIES CP, DUE SEPTEMBER 1, 2029
Notwithstanding any provisions hereof or in the Indenture,
this bond is not assignable or transferable except as may be
required to effect a transfer to any successor trustee under
the Trust Indenture, dated as of September 1, 1999 between the
Michigan Strategic Fund and Bank One Trust Company, NA,
National Association, as trustee, or, subject to compliance
with applicable law, as may be involved in the course of the
exercise of rights and remedies consequent upon an Event of
Default under said Trust Indenture.
$......... No..........
THE DETROIT EDISON COMPANY (hereinafter called the
"Company"), a corporation of the State of Michigan, for value
received, hereby promises to pay to the Michigan Strategic
Fund, or registered assigns, at the Company's office or agency
in the Borough of Manhattan, The City and State of New York,
the principal sum of dollars ($ ) in lawful
money of the United States of America on the date specified in
the title hereof and interest thereon in like lawful money, on
such date or dates in each case as provided for in the Trust
Indenture, dated as of September 1, 1999 (hereinafter called
the "Strategic Fund Trust Indenture"), between the Michigan
Strategic Fund (hereinafter called the "Strategic Fund") and
Bank One Trust Company, NA, as trustee (hereinafter "Strategic
Fund Trust Indenture Trustee"). This bond of 1999 Series CP
shall bear interest at a maximum rate of 15% per annum (unless
such maximum rate shall be increased by resolution of the
Company's Board of Directors as set forth in an additional
Supplemental Indenture between the Company and the Trustee),
until the Company's obligation with respect to payment of said
principal shall have been discharged, all as provided, to the
extent and in the manner specified in the Indenture hereinafter
mentioned on the reverse hereof and in the supplemental
indenture pursuant to which this bond has been issued or until
such time as the bonds of 1999 Series CP shall be revoked
pursuant to the terms of the Strategic Fund Trust Indenture, in
which event all principal shall be deemed to be discharged
within the meaning of the Indenture.
Under the Strategic Fund Trust Indenture, the Strategic Fund
has issued Variable Rate Demand Limited Obligation Refunding
Revenue Bonds (The Detroit Edison Company Pollution Control
Bonds Project), Collateralized Series 1999C (hereinafter called
the "Strategic Fund Revenue Bonds"). This bond was originally
issued to the Strategic Fund and simultaneously assigned to the
Strategic Fund Trust Indenture Trustee so as to secure the
payment of the Strategic Fund Revenue Bonds. Such assignment
shall be irrevocable except as provided in the Indenture.
Payments of principal of, or premium, if any, or interest on,
Strategic Fund Revenue Bonds shall constitute like payments on
this bond as further provided herein and in the supplemental
indenture pursuant to which this bond has been issued. The
Company may elect to revoke the bonds of 1999 Series CP
pursuant to the terms of the Strategic Fund Trust Indenture.
Reference is hereby made to such further provisions of this
bond set forth on the reverse hereof and such further
provisions shall for all purposes have the same effect as
though set forth at this place.
This bond shall not be valid or become obligatory for any
purpose until Bankers Trust Company, the Trustee under the
Indenture hereinafter mentioned on the reverse hereof, or its
successor thereunder, shall have signed the form of certificate
endorsed hereon.
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IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY has caused
this instrument to be executed by its Vice President and
Treasurer, with his manual or facsimile signature, 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 with her manual or facsimile
signature.
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Dated: THE DETROIT EDISON COMPANY
By
---------------------------
Vice President
and Treasurer
Attest:
------------------------------
Assistant Corporate Secretary
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[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 1999 Series CP, limited to an aggregate principal amount of $66,565,000, except as otherwise provided in the Indenture hereinafter mentioned. This bond and all other bonds of said series are issued and to be issued under, and are all equally and ratably secured (except insofar as any sinking, amortization, improvement or analogous fund, established in accordance with the provisions of the Indenture hereinafter mentioned, may afford additional security for the bonds of any particular series and except as provided in Section 3 of Article VI of said Indenture) by an Indenture, dated as of October 1, 1924, duly executed by the Company to Bankers Trust Company, a corporation of the State of New York, as Trustee, to which Indenture and all indentures supplemental thereto (including the Supplemental Indenture dated as of August 1, 1999) reference is hereby made for a description of the properties and franchises mortgaged and conveyed, the nature and extent of the security, the terms and conditions upon which the bonds are issued and under which additional bonds may be issued, and the rights of the holders of the bonds and of the Trustee in respect of such security (which Indenture and all indentures supplemental thereto, including the Supplemental Indenture dated as of August 1, 1999, are hereinafter collectively called the "Indenture"). As provided in the Indenture, said bonds may be for various principal sums and are issuable in series, which may mature at different times, may bear interest at different rates and may otherwise vary as in said Indenture provided. With the consent of the Company and to the extent permitted by and as provided in the Indenture, the rights and obligations of the Company and of the holders of the bonds and the terms and provisions of the Indenture, or of any indenture supplemental thereto, may be modified or altered in certain respects by affirmative vote of at least eighty-five percent (85%) in amount of the bonds then outstanding, and, if the rights of one or more, but less than all, series of bonds then outstanding are to be affected by the action proposed to be taken, then also by affirmative vote of at least eighty-five percent (85%) in amount of the series of bonds so to be affected (excluding in every instance bonds disqualified from voting by reason of the Company's interest therein as specified in the Indenture); provided, however, that, without the consent of the holder hereof, no such modification or alteration shall, among other things, affect the terms of payment of the principal of or the interest on this bond, which in those respects is unconditional.
This bond is redeemable upon the terms and conditions set forth in the Indenture, including provision for redemption upon demand of the Strategic Fund Trust Indenture Trustee following the occurrence of an Event of Default under the Strategic Fund Trust Indenture and the acceleration of the principal of the Strategic Fund Revenue Bonds.
This bond is revocable, at the option of the Company, pursuant to the provisions of the Strategic Fund Trust Indenture and cancellation thereupon as provided in the Indenture.
Under the Indenture, funds may be deposited with the Trustee (which shall have become available for payment), in advance of the redemption date of any of the bonds of 1999 Series CP (or portions thereof), in trust for the redemption of such bonds (or portions thereof) and the interest due or to become due thereon, and thereupon all obligations of the Company in respect of such bonds (or portions thereof) so to be redeemed and such interest shall cease and be discharged, and the holders thereof shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or with respect to such bonds (or portions thereof) and interest.
In case an event of default, as defined in the Indenture, shall occur, the principal of all the bonds issued thereunder may become or be declared due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
Upon payment of the principal of, or premium, if any, or interest on, the Strategic Fund Revenue Bonds, whether at maturity or prior to maturity by redemption or otherwise or upon provision for the payment thereof having been made in accordance with the Strategic Fund Trust Indenture, bonds of 1999 Series CP in a principal amount equal to the principal amount of such Strategic Fund Revenue Bonds and having both a corresponding maturity date and interest rate shall, to the extent of such payment of principal, premium or interest, be deemed fully paid and the obligation of the Company thereunder to make such payment shall forthwith cease and be discharged, and, in the case of the payment of principal and premium, if any, such bonds of said series shall be surrendered for cancellation or presented for appropriate notation to the Trustee.
This bond of 1999 Series CP shall be revoked upon surrender to the Trustee by the Strategic Fund Trust Indenture Trustee, and upon such revocation as provided in the Indenture, the obligation of the Company thereunder to make any payments on this bond shall forthwith cease and be discharged.
This bond is not assignable or transferable except as may be required to effect a transfer to any successor trustee under the Strategic Fund Trust Indenture, or, subject to compliance with applicable law, as may be involved in the course of the exercise of rights and remedies consequent upon an Event of Default under the Strategic Fund Trust Indenture. Any such transfer shall be made by the registered holder hereof, in person or by his attorney duly authorized in writing, on the books of the Company kept at its office or agency in the Borough of Manhattan, The City and State of New York, upon surrender and cancellation of this bond, and thereupon, a new registered bond of the same series of authorized denominations for a like aggregate principal amount will be issued to the transferee in exchange therefor, and this bond with others in like form may in like manner be exchanged for one or more new bonds of the same series of other authorized denominations, but of the same aggregate principal amount, all as provided and upon the terms and conditions set forth in the Indenture, and upon payment, in any event, of the charges prescribed in the Indenture.
No recourse shall be had for the payment of the principal of or the interest on this bond, or for any claim based hereon or otherwise in respect hereof or of the Indenture, or of any indenture supplemental thereto, against any incorporator, or against any past, present or future stockholder, director or officer, as such, of the Company, or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether for amounts unpaid on stock subscriptions or by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise howsoever; all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released by every holder or owner hereof, as more fully provided in the Indenture.
[FORM OF TRUSTEE'S CERTIFICATE]
FORM OF
TRUSTEE'S
CERTIFICATE This bond is one of the bonds, of the series designated
therein, described in the within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By
--------------------------
Authorized Officer
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PART IV.
RECORDING AND FILING DATA
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RECORDING AND
FILING OF ORIGINAL
INDENTURE. The Original Indenture and indentures supplemental thereto
have been recorded and/or filed and Certificates of Provision
for Payment have been recorded as hereinafter set forth.
The Original Indenture has been recorded as a real estate
mortgage and filed as a chattel mortgage in the offices of the
respective Registers of Deeds of certain counties in the State
of Michigan as set forth in the Supplemental Indenture dated as
of September 1, 1947, has been recorded as a real estate
mortgage in the office of the Register of Deeds of Genesee
County, Michigan as set forth in the Supplemental Indenture
dated as of May 1, 1974, has been filed in the Office of the
Secretary of State of Michigan on November 16, 1951 and has
been filed and recorded in the office of the Interstate
Commerce Commission on December 8, 1969.
|
RECORDING AND
FILING OF
SUPPLEMENTAL
INDENTURES. Pursuant to the terms and provisions of the Original
Indenture, indentures supplemental thereto heretofore entered
into have been recorded as a real estate mortgage and/or filed
as a chattel mortgage or as a financing statement in the
offices of the respective Registers of Deeds of certain
counties in the State of Michigan, the Office of the Secretary
of State of Michigan and the Office of the Interstate Commerce
|
Commission, as set forth in supplemental indentures as follows:
RECORDED AND/OR
FILED AS SET FORTH IN
SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL
INDENTURE SUPPLEMENTAL INDENTURE
DATED AS OF INDENTURE DATED AS OF:
------------ ------------ ---------------------
June 1, 1925(a)(b).......... Series B Bonds February 1, 1940
August 1, 1927(a)(b)........ Series C Bonds February 1, 1940
February 1, 1931(a)(b)...... Series D Bonds February 1, 1940
June 1, 1931(a)(b).......... Subject Properties February 1, 1940
October 1, 1932(a)(b)....... Series E Bonds February 1, 1940
September 25, 1935(a)(b).... Series F Bonds February 1, 1940
September 1, 1936(a)(b)..... Series G Bonds February 1, 1940
November 1, 1936(a)(b)...... Subject Properties February 1, 1940
February 1, 1940(a)(b)...... Subject Properties September 1, 1947
December 1, 1940(a)(b)...... Series H Bonds and Additional September 1, 1947
Provisions
September 1, Series I Bonds, November 15, 1951
1947(a)(b)(c)............. Subject Properties and
Additional Provisions
March 1, 1950(a)(b)(c)...... Series J Bonds November 15, 1951
and Additional Provisions
November 15, Series K Bonds January 15, 1953
1951(a)(b)(c)............. Additional Provisions and
Subject Properties
January 15, 1953(a)(b)...... Series L Bonds May 1, 1953
May 1, 1953(a).............. Series M Bonds and Subject March 15, 1954
Properties
March 15, 1954(a)(c)........ Series N Bonds and Subject May 15, 1955
Properties
May 15, 1955(a)(c).......... Series O Bonds and Subject August 15, 1957
Properties
August 15, 1957(a)(c)....... Series P Bonds Additional June 1, 1959
Provisions and Subject
Properties
June 1, 1959(a)(c).......... Series Q Bonds and Subject December 1, 1966
Properties
|
RECORDED AND/OR
FILED AS SET FORTH IN
SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL
INDENTURE SUPPLEMENTAL INDENTURE
DATED AS OF INDENTURE DATED AS OF:
------------ ------------ ---------------------
December 1, 1966(a)(c)...... Series R Bonds Additional October 1, 1968
Provisions and Subject
Properties
October 1, 1968(a)(c)....... Series S Bonds and Subject December 1, 1969
Properties
December 1, 1969(a)(c)...... Series T Bonds and Subject July 1, 1970
Properties
July 1, 1970(c)............. Series U Bonds and Subject December 15, 1970
Properties
December 15, 1970(c)........ Series V and Series W Bonds June 15, 1971
June 15, 1971(c)............ Series X Bonds and Subject November 15, 1971
Properties
November 15, 1971(c)........ Series Y Bonds and Subject January 15, 1973
Properties
January 15, 1973(c)......... Series Z Bonds and Subject May 1, 1974
Properties
May 1, 1974................. Series AA Bonds and Subject October 1, 1974
Properties
October 1, 1974............. Series BB Bonds and Subject January 15, 1975
Properties
January 15, 1975............ Series CC Bonds and Subject November 1, 1975
Properties
November 1, 1975............ Series DDP Nos. 1-9 Bonds and December 15, 1975
Subject Properties
December 15, 1975........... Series EE Bonds and Subject February 1, 1976
Properties
February 1, 1976............ Series FFR Nos. 1-13 Bonds June 15, 1976
June 15, 1976............... Series GGP Nos. 1-7 Bonds and July 15, 1976
Subject Properties
July 15, 1976............... Series HH Bonds and Subject February 15, 1977
Properties
February 15, 1977........... Series MMP Bonds and Subject March 1, 1977
Properties
March 1, 1977............... Series IIP Nos. 1-7 Bonds, Series June 15, 1977
JJP Nos. 1-7 Bonds, Series KKP
Nos. 1-7 Bonds and Series LLP
Nos. 1-7 Bonds
June 15, 1977............... Series FFR No. 14 Bonds and July 1, 1977
Subject Properties
July 1, 1977................ Series NNP Nos. 1-7 Bonds and October 1, 1977
Subject Properties
October 1, 1977............. Series GGP Nos. 8-22 Bonds and June 1, 1978
Series OOP Nos. 1-17 Bonds and
Subject Properties
June 1, 1978................ Series PP Bonds, Series QQP Nos. October 15, 1978
1-9 Bonds and Subject Properties
October 15, 1978............ Series RR Bonds and Subject March 15, 1979
Properties
|
RECORDED AND/OR
FILED AS SET FORTH IN
SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL
INDENTURE SUPPLEMENTAL INDENTURE
DATED AS OF INDENTURE DATED AS OF:
------------ ------------ ---------------------
March 15, 1979.............. Series SS Bonds and Subject July 1, 1979
Properties
July 1, 1979................ Series IIP Nos. 8-22 Bonds, Series September 1, 1979
NNP Nos. 8-21 Bonds and Series
TTP Nos. 1-15 Bonds and Subject
Properties
September 1, 1979........... Series JJP No. 8 Bonds, Series KKP September 15, 1979
No. 8 Bonds, Series LLP Nos.
8-15 Bonds, Series MMP No. 2
Bonds and Series OOP No. 18
Bonds and Subject Properties
September 15, 1979.......... Series UU Bonds January 1, 1980
January 1, 1980............. 1980 Series A Bonds and Subject April 1, 1980
Properties
April 1, 1980............... 1980 Series B Bonds August 15, 1980
August 15, 1980............. Series QQP Nos. 10-19 Bonds, 1980 August 1, 1981
Series CP Nos. 1-12 Bonds and
1980 Series DP No. 1-11 Bonds
and Subject Properties
August 1, 1981.............. 1980 Series CP Nos. 13-25 Bonds November 1, 1981
and Subject Properties
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 June 1, 1983
Subject Properties
June 1, 1983................ 1981 Series AP Nos. 15-16 and October 1, 1984
Subject Properties
October 1, 1984............. 1984 Series AP and 1984 Series BP May 1, 1985
Bonds and Subject Properties
May 1, 1985................. 1985 Series A Bonds May 15, 1985
May 15, 1985................ 1985 Series B Bonds and Subject October 15, 1985
Properties
October 15, 1985............ Series KKP No. 9 Bonds and Subject April 1, 1986
Properties
April 1, 1986............... 1986 Series A and Subject August 15, 1986
Properties
August 15, 1986............. 1986 Series B and Subject November 30, 1986
Properties
November 30, 1986........... 1986 Series C January 31, 1987
January 31, 1987............ 1987 Series A April 1, 1987
April 1, 1987............... 1987 Series B and 1987 Series C August 15, 1987
August 15, 1987............. 1987 Series D and 1987 Series E November 30, 1987
and Subject Properties
November 30, 1987........... 1987 Series F June 15, 1989
|
RECORDED AND/OR
FILED AS SET FORTH IN
SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL
INDENTURE SUPPLEMENTAL INDENTURE
DATED AS OF INDENTURE DATED AS OF:
------------ ------------ ---------------------
June 15, 1989............... 1989 Series A July 15, 1989
July 15, 1989............... Series KKP No. 10 December 1, 1989
December 1, 1989............ Series KKP No. 11 and 1989 Series February 15, 1990
BP
February 15, 1990........... 1990 Series A, 1990 Series B, 1990 November 1, 1990
Series C, 1990 Series D, 1990
Series E and 1990 Series F
November 1, 1990............ Series KKP No. 12 April 1, 1991
April 1, 1991............... 1991 Series AP May 1, 1991
May 1, 1991................. 1991 Series BP and 1991 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
April 1, 1986............... 1986 Series A and Subject August 15, 1986
Properties
August 15, 1986............. 1986 Series B and Subject November 30, 1986
Properties
November 30, 1986........... 1986 Series C January 31, 1987
January 31, 1987............ 1987 Series A April 1, 1987
April 1, 1987............... 1987 Series B and 1987 Series C August 15, 1987
August 15, 1987............. 1987 Series D and 1987 Series E November 30, 1987
and Subject Properties
November 30, 1987........... 1987 Series F June 15, 1989
June 15, 1989............... 1989 Series A July 15, 1989
July 15, 1989............... Series KKP No. 10 December 1, 1989
December 1, 1989............ Series KKP No. 11 and 1989 Series February 15, 1990
BP
February 15, 1990........... 1990 Series A, 1990 Series B, 1990 November 1, 1990
Series C, 1990 Series D, 1990
Series E and 1990 Series F
November 1, 1990............ Series KKP No. 12 April 1, 1991
April 1, 1991............... 1991 Series AP May 1, 1991
May 1, 1991................. 1991 Series BP and 1991 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
|
RECORDED AND/OR
FILED AS SET FORTH IN
SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL
INDENTURE SUPPLEMENTAL INDENTURE
DATED AS OF INDENTURE DATED AS OF:
------------ ------------ ---------------------
November 30, 1992........... 1992 Series E and 1993 Series D March 15, 1993
December 15, 1992........... Series KKP No. 14 and 1989 Series March 15, 1992
BP No. 2
January 1, 1993............. 1993 Series C April 1, 1993
March 1, 1993............... 1993 Series E June 30, 1993
March 15, 1993.............. 1993 Series D September 15, 1993
April 1, 1993............... 1993 Series FP and 1993 Series IP September 15, 1993
April 26, 1993.............. 1993 Series G and Amendment of September 15, 1993
Article II, Section 5
May 31, 1993................ 1993 Series J September 15, 1993
September 15, 1993.......... 1993 Series K March 1, 1994
March 1, 1994............... 1994 Series AP June 15, 1994
June 15, 1994............... 1994 Series BP December 1, 1994
August 15, 1994............. 1994 Series C December 1, 1994
December 1, 1994............ Series KKP No. 15 and 1994 Series August 1, 1995
DP
August 1, 1995.............. 1995 Series A Bond August 15, 1999
1995 Series DP
|
(b) See Supplemental Indenture dated as of May 1, 1953 for Secretary of State of Michigan filing information.
(c) See Supplemental Indenture dated as of May 1, 1974 for County of Genesee, Michigan recording and filing information.
Further, pursuant to the terms and provisions of the Original Indenture, a Supplemental Indenture dated as August 1, 1995 providing for the terms of bonds to be issued thereunder of 1995 Series AP and 1995 Series BP has heretofore been entered into between the Company and the Trustee and has been filed in the Office of the Secretary of State of Michigan as a financing statement on August 10, 1995 (Filing No. 59342B), has been filed and recorded in the Office of the Surface Transportation Board (formerly the Interstate Commerce Commission) (Recordation No. 5485-QQQQ) on August 10, 1995, and has been recorded as a real estate mortgage in the offices of the respective Register of Deeds of certain counties in the State of Michigan, as follows:
LIBER OF
MORTGAGES
OR COUNTY
COUNTY RECORDED RECORDS PAGE
------ -------- --------- ----
Genesee..................................... 8/10/95 3180 138-172
Huron....................................... 8/10/95 652 115-149
Ingham...................................... 8/10/95 2280 356-390
Lapeer...................................... 8/10/95 0910 0795-0829
Lenawee..................................... 8/10/95 1370 801-835
Livingston.................................. 8/10/95 1947 0308-0342
Macomb...................................... 8/10/95 06723 591-625
Mason....................................... 8/10/95 455 548-582
Monroe...................................... 8/10/95 1455 0070-0104
Oakland..................................... 8/10/95 15581 855-889
St. Clair................................... 8/10/95 1441 60-94
Sanilac..................................... 8/10/95 473 345-379
Tuscola..................................... 8/10/95 677 434-468
Washtenaw................................... 8/10/95 3140 397-431
Wayne....................................... 8/10/95 28203 815-849
|
RECORDING OF
CERTIFICATES
OF PROVISION
FOR PAYMENT. All the bonds of Series A which were issued under the
Original Indenture dated as of October 1, 1924, and of Series
B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, 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 and 1993 Series D 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 and March 15, 1993 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 V.
THE TRUSTEE.
|
TERMS AND
CONDITIONS OF
ACCEPTANCE OF
TRUST BY TRUSTEE. The Trustee hereby accepts the trust hereby declared and
provided, and agrees to perform the same upon the terms 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 VI.
MISCELLANEOUS.
CONFIRMATION OF
SECTION 318(C) OF
TRUST INDENTURE
ACT. Except to the extent specifically provided therein, no
provision of this supplemental indenture or any future
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 supercede provisions
of the Indenture in effect prior to November 15, 1990.
EXECUTION IN
COUNTERPARTS. THIS SUPPLEMENTAL INDENTURE MAY BE SIMULTANEOUSLY 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.
|
36
TESTIMONIUM. IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY AND BANKERS
TRUST COMPANY HAVE CAUSED THESE PRESENTS TO BE SIGNED IN THEIR
RESPECTIVE CORPORATE NAMES BY THEIR RESPECTIVE CHAIRMEN OF THE
BOARD, PRESIDENTS, VICE PRESIDENTS, ASSISTANT VICE PRESIDENTS,
TREASURERS OR ASSISTANT TREASURERS AND IMPRESSED WITH THEIR
RESPECTIVE CORPORATE SEALS, ATTESTED BY THEIR RESPECTIVE
SECRETARIES, ASSISTANT SECRETARIES, TREASURERS OR ASSISTANT
TREASURERS ALL AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN.
THE DETROIT EDISON COMPANY,
(Corporate Seal) By /s/ N. A. KHOURI
-------------------------------
N. A. Khouri
Assistant Treasurer
EXECUTION. Attest:
/s/ JACK L. SOMERS
-----------------------------
Jack L. Somers
Assistant Corporate Secretary
Signed, sealed and delivered
by THE
DETROIT EDISON COMPANY, in
the
presence of
/s/ K. HIER
-----------------------------
K. Hier
/s/ W. A. HORWATH
-----------------------------
W. A. Horwath
STATE OF MICHIGAN
SS.:
COUNTY OF WAYNE
|
ACKNOWLEDGMENT
OF EXECUTION
BY COMPANY. On this 11th day of August, 1999, before me, the subscriber,
a Notary Public within and for the County of Wayne, in the
State of Michigan, 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 48226-1279
and is the Assistant Treasurer of THE DETROIT EDISON COMPANY,
one of the corporations described in and which executed the
foregoing instrument; that he knows the corporate seal of the
said corporation and that the seal affixed to said instrument
is the corporate seal of said corporation; and that said
instrument was signed and sealed in behalf of said corporation
by authority of its Board of Directors and that he subscribed
his name thereto by like authority; and said N. A. Khouri,
acknowledged said instrument to be the free act and deed of
said corporation.
/s/ GERALDINE GREEN
---------------------------------
Geraldine Green
(Notarial Seal) Notary Public
Oakland County, MI
My Commission Expires
September 22, 2001
(Acting in Wayne County, MI)
|
37
|
BANKERS TRUST COMPANY,
(Corporate Seal) By /s/ MARC J. PARILLA
------------------------------------------------
Marc J. Parilla
Assistant Vice President
Attest:
/s/ EDNORA G. LINARES
------------------------------------------------
Ednora G. Linares
Assistant Vice President
Signed, sealed and delivered by
BANKERS TRUST COMPANY, in the
presence of
/s/ TRACY A. SALZMANN
------------------------------------------------
Tracy A. Salzmann
/s/ TSEWANG NAMGYAL
------------------------------------------------
Tsewang Namgyal
|
STATE OF NEW YORK
SS.:
COUNTY OF NEW YORK
|
ACKNOWLEDGEMENT On this 12th day of August, 1999, before me, the subscriber,
OF EXECUTION a Notary Public within and for the County of New York, in
BY TRUSTEE. the State of New York, personally appeared Marc J. Parilla,
to me personally known, who, being by me duly sworn, did say
that his business office is located at Four Albany Street,
New York, New York 10015, and he is Assistant Vice President
of BANKERS TRUST COMPANY, one of the corporations described
in and which executed the foregoing instrument; that he
knows the corporate seal of the said corporation and that
the seal affixed to said instrument is the corporate seal of
said corporation; and that said instrument was signed and
sealed in behalf of said corporation by authority of its
Board of Directors and that he subscribed his name thereto
by like authority; and said acknowledged said
instrument to be the free act and deed of said corporation.
|
(Notarial Seal)
/s/ BORIS TREYGER
---------------------------------------------------
Notary Public, State of New York
No. 01TR6016003
Qualified in Kings County
Commission Expires Nov. 9, 2000
|
STATE OF MICHIGAN
SS.:
COUNTY OF WAYNE
AFFIDAVIT AS TO N.A. Khouri, being duly sworn, says: that he is the
CONSIDERATION Assistant Treasurer of THE DETROIT EDISON COMPANY, the
AND GOOD FAITH. Mortgagor named in the foregoing instrument, and that he has
knowledge of the facts in regard to the making of said
instrument and of the consideration therefor; that the
consideration for said instrument was and is actual and
adequate, and that the same was given in good faith for the
purposes in such instrument set forth.
|
/s/ N.A. KHOURI
------------------------------------------------
N.A. Khouri
Sworn to before me this 11(th) day of
August, 1999
/s/ GERALDINE GREEN
------------------------------------------------
Geraldine Green, Notary Public
Oakland County, MI
My Commission Expires Sept. 22, 2001
(Acting in Wayne County, MI)
(Notarial Seal)
This instrument was drafted by Frances B. Rohlman, Esq., 2000 Second Avenue, Detroit, Michigan
48226
|
EXHIBIT 4-205
EXECUTED IN _____
COUNTERPARTS OF WHICH
THIS IS COUNTERPART NO. _ .
THE DETROIT EDISON COMPANY
(2000 Second Avenue,
Detroit, Michigan 48226)
TO
BANKERS TRUST COMPANY
(Four Albany Street,
New York, New York 10015)
AS TRUSTEE
INDENTURE
Dated as of August 15, 1999
SUPPLEMENTAL TO MORTGAGE AND DEED OF TRUST
DATED AS OF OCTOBER 1, 1924
PROVIDING FOR
(A) GENERAL AND REFUNDING MORTGAGE BONDS,
FLOATING RATE 1999 SERIES D
DUE SEPTEMBER 17, 2001
AND
(B) RECORDING AND FILING DATA
TABLE OF CONTENTS*
PAGE
----
PARTIES..................................................... 1
RECITALS
Original Indenture and Supplementals...................... 1
Issue of Bonds under Indenture............................ 1
Bonds heretofore issued................................... 1
Reason for creation of new series......................... 5
Bonds to be Floating Rate 1999 Series D................... 5
Further Assurance......................................... 5
Authorization of Supplemental Indenture................... 5
Consideration for Supplemental Indenture.................. 5
PART I.
CREATION OF THREE HUNDRED TWENTY-THIRD
SERIES OF BONDS
GENERAL AND REFUNDING MORTGAGE BONDS,
FLOATING RATE 1999 SERIES D
Sec. 1. Certain terms of Bonds of Floating Rate 1999 Series
D......................................................... 6
Sec. 2. Redemption of Bonds of Floating Rate 1999 Series
D......................................................... 8
Sec. 3. Calculation Agent................................... 9
Sec. 4. Form of Bonds of Floating Rate 1999 Series D........ 11
Form of Trustee's Certificate....................... 14
PART II.
RECORDING AND FILING DATA
Recording and filing of Original Indenture.................. 15
Recording and filing of Supplemental Indentures............. 15
Recording of Certificates of Provision for Payment.......... 20
PART III.
THE TRUSTEE
Terms and conditions of acceptance of trust by Trustee...... 20
PART IV.
MISCELLANEOUS
Confirmation of Section 318(c) of Trust Indenture Act....... 20
Execution in Counterparts................................... 20
Testimonium................................................. 21
Execution................................................... 21
Acknowledgement of execution by Company..................... 21
Acknowledgement of execution by Trustee..................... 22
Affidavit as to consideration and good faith................ 23
|
PARTIES. SUPPLEMENTAL INDENTURE, dated as of the fifteenth day of August, in the year one thousand nine hundred and ninety-nine, between THE DETROIT EDISON COMPANY, a corporation organized and existing under the laws of the State of Michigan and a transmitting utility (hereinafter called the "Company"), party of the first part, and BANKERS TRUST COMPANY, a corporation organized and existing under the laws of the State of New York, having its corporate trust office at Four Albany Street, in the Borough of Manhattan, The City and State of New York, as Trustee under the Mortgage and Deed of Trust hereinafter mentioned (hereinafter called the "Trustee"), party of the second part.
ORIGINAL
INDENTURE AND
SUPPLEMENTALS. WHEREAS, the Company has heretofore executed and delivered
its Mortgage and Deed of Trust (hereinafter referred to 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 and August 1, 1999 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
UNDER INDENTURE. WHEREAS, the Indenture provides that said bonds shall be
issuable in one or more series, and makes provision that the
rates of interest and dates for the payment thereof, the date
of maturity or dates of maturity, if of serial maturity, the
terms and rates of optional redemption (if redeemable), the
forms of registered bonds without coupons of any series and any
other provisions and agreements in respect thereof, in the
Indenture provided and permitted, as the Board of Directors may
determine, may be expressed in a supplemental indenture to be
made by the Company to the Trustee thereunder; and
BONDS HERETOFORE
ISSUED. WHEREAS, bonds in the principal amount of Eight billion, four
hundred forty-seven million seven hundred fifty-two thousand
dollars ($8,447,752,000) 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 Nos.
1-11 -- Principal Amount $10,750,000,
(233-248) Bonds of 1981 Series AP Nos.
1-16 -- Principal Amount $124,000,000,
(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 MMP No.
2 -- Principal Amount $5,430,000,
(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,
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(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, |
all of which have either been retired and cancelled, or no longer represent obligations of the Company, having been called for redemption and funds necessary to effect the payment, redemption and retirement thereof having been deposited with the Trustee as a special trust fund to be applied for such purpose;
(279-284) Bonds of Series KKP Nos. 10-15 in the principal amount of One hundred seventy-nine million five hundred ninety thousand dollars ($179,590,000), all of which are outstanding at the date hereof;
(285) Bonds of 1989 Series BP in the principal amount of Sixty-six million five hundred sixty-five thousand dollars ($66,565,000), all of which are outstanding at the date hereof;
(286) Bonds of 1990 Series A in the principal amount of One hundred ninety-four million six hundred forty-nine thousand dollars ($194,649,000) of which Sixty-two million seven hundred ninety thousand dollars ($62,790,000) principal amount have heretofore been retired and One hundred thirty-one million eight hundred fifty-nine thousand dollars ($131,859,000) principal amount are outstanding at the date hereof;
(287) 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 Ninety-five million one hundred sixty thousand dollars ($95,160,000) principal amount have heretofore been retired and One hundred sixty-one million seven hundred seventy-two thousand dollars ($161,772,000) principal amount are outstanding at the date hereof;
(288) Bonds of 1990 Series C in the principal amount of Eighty-five million four hundred seventy-five thousand dollars ($85,475,000) of which Thirty-four million one hundred ninety thousand dollars ($34,190,000) principal amount have heretofore been retired and Fifty-one million two hundred eighty-five thousand dollars ($51,285,000) principal amount are outstanding at the date hereof;
(289) 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;
(290) 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;
(291) 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;
(292) 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;
(293) Bonds of 1991 Series EP in the principal amount of Forty-one million four hundred eighty thousand dollars ($41,480,000), all of which are outstanding at the date hereof;
(294) Bonds of 1991 Series FP in the principal amount of Ninety-eight million three hundred seventy-five thousand dollars ($98,375,000), all of which are outstanding at the date hereof;
(295) Bonds of 1992 Series BP in the principal amount of Twenty million nine hundred seventy-five thousand dollars ($20,975,000), all of which are outstanding at the date hereof;
(296) 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;
(297) Bonds of 1992 Series D in the principal amount of Three hundred million dollars ($300,000,000), of which Ten million dollars ($10,000,000) principal amount have heretofore been retired and Two hundred ninety million ($290,000,000) principal amount are outstanding at the date hereof;
(298) Bonds of 1992 Series CP in the principal amount of Thirty-five million dollars ($35,000,000), all of which are outstanding at the date hereof;
(299) Bonds of 1992 Series E in the principal amount of Fifty million dollars ($50,000,000), all of which are outstanding at the date hereof;
(300) Bonds of 1989 Series BP No. 2 in the principal amount of Thirty-six million dollars ($36,000,000), all of which are outstanding at the date hereof;
(301) Bonds of 1993 Series C in the principal amount of Two hundred twenty-five million dollars ($225,000,000), of which Twenty-seven million dollars ($27,000,000) principal amount have heretofore been retired and One hundred ninety-eight million dollars ($198,000,000) principal amount are outstanding at the date hereof;
(302) Bonds of 1993 Series B in the principal amount of Fifty million dollars ($50,000,000), all of which are outstanding at the date hereof;
(303) Bonds of 1993 Series E in the principal amount of Four hundred million dollars ($400,000,000), of which Thirty-one million five hundred thousand dollars ($31,500,000) principal amount have heretofore been retired and Three hundred sixty-eight million five hundred thousand dollars ($368,500,000) principal amount are outstanding at the date hereof;
(304) Bonds of 1993 Series FP in the principal amount of Five million six hundred eighty-five thousand dollars ($5,685,000), all of which are outstanding at the date hereof;
(305) Bonds of 1993 Series G in the principal amount of Two hundred twenty-five million dollars ($225,000,000), of which One hundred twenty-five million dollars ($125,000,000) principal amount have been retired and One hundred million dollars ($100,000,000) principal amount are outstanding at the date hereof;
(306) Bonds of 1993 Series J in the principal amount of Three hundred million dollars ($300,000,000), of which Seventy eight million five hundred thousand dollars ($78,500,000) principal amount have heretofore been retired and Two hundred twenty-one million five hundred thousand dollars ($221,500,000) principal amount are outstanding at the date hereof;
(307) Bonds of 1993 Series IP in the principal amount of Five million eight hundred twenty-five thousand dollars ($5,825,000), all of which are outstanding at the date hereof;
(308) Bonds of 1993 Series AP in the principal amount of Sixty-five million dollars ($65,000,000), all of which are outstanding at the date hereof;
(309) Bonds of 1993 Series H in the principal amount of Fifty million dollars ($50,000,000), all of which are outstanding at the date hereof;
(310) Bonds of 1993 Series K in the principal amount of One hundred sixty million dollars ($160,000,000), all of which are outstanding at the date hereof;
(311) Bonds of 1994 Series AP in the principal amount of Seven million five hundred thirty-five thousand dollars ($7,535,000), all of which are outstanding at the date hereof;
(312) Bonds of 1994 Series BP in the principal amount of Twelve million nine hundred thirty-five thousand dollars ($12,935,000), all of which are outstanding at the date hereof;
(313) Bonds of 1994 Series C in the principal amount of Two hundred million dollars ($200,000,000), all of which are outstanding at the date hereof;
(314) Bonds of 1994 Series DP in the principal amount of Twenty-three million seven hundred thousand dollars ($23,700,000), all of which are outstanding at the date hereof;
(315) 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;
(316) 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;
and, accordingly, of the bonds so issued, Two billion nine hundred forty-five million four hundred forty-one thousand dollars ($2,945,441,000) principal amount are outstanding at the date hereof; and
REASON FOR
CREATION OF NEW
SERIES. WHEREAS, the Company desires to issue a new series of bonds
to be issued under the Indenture and to be authenticated and
delivered pursuant to Section 8 of Article III of the
Indenture; and
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BONDS TO BE
FLOATING RATE
1999 SERIES D. WHEREAS, the Company desires by this Supplemental Indenture
to create a new series of bonds, to be designated "General and
Refunding Mortgage Bonds, Floating Rate 1999 Series D," 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
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AUTHORIZATION OF
SUPPLEMENTAL
INDENTURE. WHEREAS, the Company in the exercise of the powers and
authority conferred upon and reserved to it under and by 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;
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CONSIDERATION FOR
SUPPLEMENTAL
INDENTURE. NOW, THEREFORE, THIS INDENTURE WITNESSETH: That The Detroit
Edison Company, in consideration of the premises and of the
covenants contained in the Indenture and of the sum of One
Dollar ($1.00) and other good and valuable consideration to it
duly paid by the Trustee at or before the ensealing and
delivery of these presents, the receipt whereof is hereby
acknowledged, hereby covenants and
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6
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 TWENTY-THIRD
SERIES OF BONDS.
GENERAL AND REFUNDING MORTGAGE BONDS,
FLOATING RATE 1999 SERIES D
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TERMS OF BONDS OF
FLOATING RATE 1999
SERIES D. SECTION 1. The Company hereby creates the Three hundred
twenty-third series of bonds to be issued under and secured by
the Original Indenture as amended to date and as further
amended by this Supplemental Indenture, to be designated, and
to be distinguished from the bonds of all other series, by the
title "General and Refunding Mortgage Bonds, Floating Rate 1999
Series D" (elsewhere herein referred to as the "bonds of 1999
Series D"). The aggregate principal amount of bonds of 1999
Series D shall be limited to Forty million dollars
($40,000,000), except as provided in Sections 7 and 13 of
Article II of the Original Indenture with respect to exchanges
and replacements of bonds.
The bonds of 1999 Series D shall mature on September 17, 2001
and shall be issued as registered bonds without coupons in
denominations of $1,000 and any multiple thereof. The bonds of
1999 Series D will be issued in book-entry form through the
facilities of The Depository Trust Company ("DTC"). Transfers
or exchanges of beneficial interests in the bonds of 1999
Series D may be effected only through records maintained by DTC
or its nominee. Payments of principal and interest on the Bonds
will be made to DTC in immediately available funds as the
principal of and interest on the bonds of 1999 Series D shall
be payable at the office or agency of the Company in the
Borough of Manhattan, The City of New York, The State of New
York in any coin or currency of the United States of America
which at the time of payment is legal tender for public and
private debts. The interest on bonds of 1999 Series D, whether
in temporary or definitive form, shall be payable without
presentation of such bonds and (subject to the provisions of
this Section 1) only to or upon the written order of the
registered holders thereof.
The bonds of 1999 Series D shall bear interest at a rate per
annum, reset quarterly, equal to three-month LIBOR (as defined
below) plus seventeen basis points (.17%), as determined by the
Calculation Agent (as defined below). Interest will be computed
on the basis of a 360-day year and the actual number of days in
the applicable Interest Period (as defined below). Interest is
payable quarterly in arrears on March 15, June 15, September
15, and December 15 of each year, commencing September 15,
1999, except that the final payment of interest will be due on
September 17, 2001, instead of September 15, 2001 (each an
"Interest Payment Date"), for the period commencing on and
including the immediately preceding Interest Payment Date and
ending on and including the day preceding the next Interest
Payment Date (each an "Interest Period"), with the exception
that the first Interest Period shall commence on and include
August 27, 1999. Interest is payable to the persons in whose
names the bonds of 1999 Series D are registered at the close of
business on the fifteenth calendar day, whether or not a
Business Day (as defined below), prior to the Interest Payment
Date.
The interest rate on the bonds of 1999 Series D may not
exceed the "Maximum Rate", which is defined to mean the rate of
interest equal to 15% per annum or such higher rate as may be
established from time to time by the Board of Directors of the
Company.
If any Interest Payment Date, other than at stated maturity,
for the bonds of 1999 Series D would otherwise be a day that is
not a Business Day, such Interest Payment Date will be
postponed to the next day that is a Business Day, except that
if such Business Day is in the next succeeding calendar month,
such Interest
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7
Payment Date shall be the immediately preceding Business Day.
If the stated maturity for the bonds of 1999 Series D falls on
a day which is not a Business Day, payment of principal and
interest with respect to the bonds of 1999 Series D will be
paid on the next succeeding Business Day with the same force
and effect as if made on such date and no interest on such
payment will accrue from and after such date.
The interest rate for each Interest Period shall be
determined by the Calculation Agent in accordance with the
following provisions:
The per annum rate of interest for each Interest Period will
be three-month LIBOR on the second Business Day preceding the
relevant Interest Reset Date (as defined below) for such
Interest Period (the "Interest Determination Date") plus the
applicable spread described above. The Interest Determination
Date for the first Interest Period shall be August 25, 1999.
"LIBOR" for each subsequent Interest Period shall be determined
by the Calculation Agent in accordance with the following
provisions:
(i) On each Interest Determination Date, the Calculation
Agent shall ascertain the offered rate for three-month deposits
in U.S. dollars in the London interbank market, which appears on
the Telerate Page 3750, as of 11:00 a.m. (London time) on such
Interest Determination Date.
(ii) If such rate does not appear on the Telerate Page
3750, or the Telerate Page 3750 is unavailable, the Calculation
Agent shall request each of four major banks in the London
interbank market (the "Reference Banks") to provide the
Calculation Agent with its offered quotation (expressed as a
rate per annum) for three-month deposits in U.S. dollars to
leading banks in the London interbank market at approximately
11:00 a.m. (London time) on the Interest Determination Date. If
at least two such quotations are provided, LIBOR in respect of
the Interest Determination Date, will be the arithmetic mean of
such quotations.
(iii) If less than two of the Reference Banks provide the
Calculation Agent with such offered quotations, LIBOR in respect
of that Interest Determination Date shall be the arithmetic mean
of the rates quoted by three major banks in The City of New York
(selected by the Calculation Agent) at approximately 11:00 a.m.,
New York City time, on that Interest Determination Date for
three-month loans in U.S. dollars to leading European banks, in
a principal amount equal to an amount of not less than
$1,000,000 that is representative for a single transaction in
such market at such time; provided, however, that if the banks
selected as aforesaid by the Calculation Agent are not quoting
as mentioned in this sentence, LIBOR shall be LIBOR in effect on
such Interest Determination Date.
"Interest Reset Date" means, with respect to any Interest
Period, the first day of such Interest Period.
"Business Day" means any day (other than a Saturday or
Sunday) on which banking institutions in The City of New York
are open for business and which is also a London Banking Day.
"London Banking Day" means any day (other than a Saturday or
Sunday) on which dealings in deposits are transacted in the
London interbank market.
"Telerate Page 3750" means the display designated as page
"3750" on the Bridge Telerate, Inc. (or such other page as may
replace that page on that service for the purpose of displaying
the LIBOR Index on a daily basis).
All percentages resulting from any calculation on the bonds
of 1999 Series D shall be rounded, if necessary, to the nearest
one hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upward (e.g.,
9.876545% (or .09876545) being rounded to 9.87655% (or
.0987655)), and U.S. dollar amounts used in or resulting from
such calculations shall be rounded to the nearest cent (with
one-half cent being rounded upward).
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8
The Company agrees that, so long as any of the bonds of 1999
Series D remain outstanding, it shall maintain under
appointment an agent (the "Calculation Agent"), initially
Bankers Trust Company, to calculate the rate of interest
payable on the Bonds in respect of each Interest Period as
provided in Section 3 below. If the Calculation Agent is unable
or unwilling to continue to act as such, or if the Calculation
Agent fails to establish the applicable rate of interest for
any Interest Period, or if the Company removes the Calculation
Agent, the Company shall appoint the office of another bank to
act as the Calculation Agent; provided, however, that the
Calculation Agent shall not resign or be removed until
acceptance of an appointment by a successor as evidenced by an
appropriate agreement entered into by the Company and such
successor Calculation Agent.
Each bond of 1999 Series D shall be dated the date of its
authentication and interest shall be payable on the principal
represented thereby from the March 15, June 15, September 15 or
December 15 next preceding the date thereof to which interest
has been paid on bonds of 1999 Series D, unless the bond is
authenticated on a date to which interest has been paid, in
which case interest shall be payable from the date of
authentication, or unless the date of authentication is prior
to September 15, 1999, in which case interest shall be payable
from August 27, 1999 on the bond of 1999 Series D originally
evidencing the debt represented thereby.
The bonds of 1999 Series D in definitive form shall be, at
the election of the Company, fully engraved or shall be
lithographed or printed in authorized denominations as
aforesaid and numbered 1 and upwards (with such further
designation as may be appropriate and desirable to indicate by
such designation the form, series and denomination of bonds of
1999 Series D). Until bonds of 1999 Series D in definitive form
are ready for delivery, the Company may execute, and upon its
request in writing the Trustee shall authenticate and deliver
in lieu thereof, bonds of 1999 Series D in temporary form, as
provided in Section 10 of Article II of the Indenture.
Temporary bonds of 1999 Series D, if any, may be printed and
may be issued in authorized denominations in substantially the
form of definitive bonds of 1999 Series D, but 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 1999 Series D which is payable on any
Interest Payment Date and is punctually paid or duly provided
for shall be paid to the person in whose name that bond, or any
previous bond to the extent evidencing the same debt as that
evidenced by that bond, is registered at the close of business
on the regular record date for such interest, which regular
record date shall be the fifteenth 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 1999 Series D, such defaulted interest shall forthwith
cease to be payable to the registered holder of that bond on
the relevant regular record date by virtue of his having been
such holder, and such defaulted interest may be paid to the
registered holder of that bond (or any bond or bonds of 1999
Series D issued upon transfer or exchange thereof) on the date
of payment of such defaulted interest or, at the election of
the Company, to the person in whose name that bond (or any bond
or bonds of 1999 Series D issued upon transfer or exchange
thereof) is registered on a subsequent record date established
by notice given by mail by or on behalf of the Company to the
holders of bonds of 1999 Series D not less than ten (10) days
preceding such subsequent record date, which subsequent record
date shall be at least five (5) days prior to the payment date
of such defaulted interest.
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REDEMPTION OF
BONDS OF 1999
SERIES D. SECTION 2. The bonds of 1999 Series D shall not be redeemable
prior to stated maturity.
The bonds of 1999 Series D shall not be entitled to or
subject to any sinking fund.
EXCHANGE AND
TRANSFER. At the option of the registered holder, any bonds of 1999
Series D, upon surrender thereof for cancellation at the office
or agency of the Company in the Borough of
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9
Manhattan, The City of New York, The State of New York,
together with a written instrument of transfer (if so required
by the Company or by the Trustee) in form approved by the
Company duly executed by the holder or by its duly authorized
attorney, shall be exchangeable for a like aggregate principal
amount of bonds of 1999 Series D of other authorized
denominations, upon the terms and conditions specified herein
and in Section 7 of Article II of the Indenture. Bonds of 1999
Series D shall be transferable at the office or agency of the
Company in the Borough of Manhattan, The City of New York, The
State of New York. The Company waives its rights under Section
7 of Article II of the Indenture not to make exchanges or
transfers of bonds of 1999 Series D during any period of ten
(10) days next preceding any interest payment date for such
bonds.
Bonds of 1999 Series D, in definitive and temporary form, may
bear such legends as may be necessary to comply with any law or
with any rules or regulations made pursuant thereto or with the
rules or regulations of any stock exchange or to conform to
usage with respect thereto.
CALCULATION AGENT SECTION 3. (a) The Company hereby appoints Bankers Trust
Company as Calculation Agent (in such capacity, the
"Calculation Agent") of the Company with respect to the bonds
of 1999 Series D, and the Calculation Agent hereby accepts its
obligations as set forth in this Supplemental Indenture upon
the terms and conditions set forth herein.
(b) As soon as reasonably practical on or after each Interest
Determination Date, the Calculation Agent shall determine LIBOR
and notify the Company thereof and the resulting interest rate.
Upon the request of the beneficial owner of any bond of 1999
Series D, the Calculation Agent will provide the interest rate
then in effect and, if determined, the applicable interest rate
that will become effective as of the next Interest Reset Date.
All interest rate determinations made by the Calculation Agent
with respect to the bonds of 1999 Series D shall, in the
absence of manifest error, be conclusive for all purposes and
binding upon the Company.
(c) The Calculation Agent shall be entitled to such
compensation for its services as the Calculation Agent and the
Company may agree, and the Company shall pay such compensation
and shall reimburse the Calculation Agent for all reasonable
expenses, disbursements and advances incurred or made by the
Calculation Agent in connection with the services rendered by
it as Calculation Agent.
(d) The Calculation Agent shall incur no liability for, or in
respect of, any action taken, omitted to be taken or suffered
by it in reliance upon any bond of 1999 Series D, certificate,
affidavit, instruction, notice, request, direction, order,
statement or other paper, document or communication reasonably
believed by it to be genuine. Any order, certificate,
affidavit, instruction, notice, request, direction, statement
or other communication from the Company made or given by it and
sent, delivered or directed to the Calculation Agent under,
pursuant to or as permitted by any provision of this
Supplemental Indenture shall be sufficient for purposes of this
Supplemental Indenture if such communication is in writing and
signed by any officer of the Company. The Calculation Agent may
consult with counsel satisfactory to it (which counsel may be
counsel for the Company) and the opinion of such counsel shall
constitute full and complete protection of the Calculation
Agent with respect to any action taken, omitted to be taken or
suffered by it hereunder in good faith and in accordance with
and in reliance upon the opinion of such counsel. In acting
under this Supplemental Indenture, the Calculation Agent (in
its capacity as such) does not assume any obligation to, or any
relationship of agency or trust for or with, the holders of the
bonds of 1999 Series D.
(e) The Calculation Agent shall be obligated only to perform
such duties as are specifically set forth herein and no other
duties or obligations on the part of the Calculation Agent, in
its capacity as such, shall be implied hereby.
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10
(f) The Calculation Agent may at any time terminate its
appointment as Calculation Agent by giving no less than ninety
(90) days' written notice to the Company, unless the Company
consents in writing to a shorter time. Upon receipt of notice
of termination by the Calculation Agent, the Company agrees
promptly to appoint a successor Calculation Agent. The Company
may terminate the appointment of the Calculation Agent at any
time by giving written notice to the Calculation Agent of such
termination and specifying the date when such termination shall
become effective; provided, however, that no termination by the
Calculation Agent or by the Company shall become effective
prior to the date of the appointment by the Company, as
provided below, of a successor Calculation Agent and the
acceptance of such appointment by such successor Calculation
Agent. Upon termination by either party pursuant to the
provisions of this paragraph, the Calculation Agent shall be
entitled to the payment of any compensation owed to it by the
Company hereunder, as provided by paragraph (c) above, and the
provisions of paragraph (h) below shall remain in effect
following such termination.
(g) Any successor Calculation Agent appointed by the Company
following termination of the appointment of the Calculation
Agent pursuant to the provisions of paragraph (f) hereof shall
execute and deliver to the Calculation Agent and to the Company
an instrument accepting such appointment, and thereupon such
successor Calculation Agent shall, without any further act or
instrument, become vested with all the rights, immunities,
duties and obligations of the Calculation Agent, with like
effect as if originally named as Calculation Agent hereunder,
and the Calculation Agent shall thereupon be obligated to
transfer and deliver, and such successor Calculation Agent
shall be entitled to receive and accept, copies of any
available records maintained by the Calculation Agent in
connection with the performance of its obligations hereunder.
(h) The Company shall indemnify and hold free and harmless
the Calculation Agent, its officers and employees from and
against all actions, claims, damages, liabilities, losses and
expenses (including reasonable legal fees and expenses)
relating to or arising out of actions, or omissions in any
capacity hereunder, except actions, claims, damages,
liabilities, losses and expenses caused by the gross negligence
or wilful misconduct of the Calculation Agent, its officers or
employees.
(i) Any corporation into which the Calculation Agent may be
merged, converted or consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the
Calculation Agent may be a party, or any corporation to which
the Calculation Agent may sell or otherwise transfer all or
substantially all of its corporate trust business, shall, to
the extent permitted by applicable law, become the Calculation
Agent under this Supplemental Indenture without the execution
of any paper or any further act by the parties hereto. The
Calculation Agent will give prompt written notice to the
Company and the Trustee (if other than Bankers Trust Company)
of any such merger, conversion or consolidation.
(j) Any notice or other communication given hereunder shall
be delivered in person, sent by letter, telecopy or telex or
communicated by telephone (subject, in the case of
communication by telephone, to written confirmation dispatched
within 24 hours) to such address as the party to receive such
notice may have previously specified.
(k) The terms and conditions of the appointment of the
Calculation Agent may be amended only by means of a written
instrument duly executed and delivered by or on behalf of the
Company and the Calculation Agent; provided, that, except as
required by law, or as agreed by the Company and the
Calculation Agent, such amendment need not be in the form of an
amended or further Supplemental Indenture.
(l) Except as provided herein, the provisions of this Section
3 are solely for the benefit of the Company and the Calculation
Agent hereto and their successors and assigns and no other
person shall acquire or have any rights under or by virtue
hereof.
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11
THE DETROIT EDISON COMPANY
GENERAL AND REFUNDING MORTGAGE BOND
FLOATING RATE 1999 SERIES D, DUE SEPTEMBER 17, 2001
$40,000,000 No. 1
THE DETROIT EDISON COMPANY (hereinafter called the
"Company"), a corporation of the State of Michigan, for value
received, hereby promises to pay to CEDE & Co. or registered
assigns, at its office or agency in the Borough of Manhattan,
The City and State of New York, the principal sum of
$40,000,000 in lawful money of the United States of America on
the seventeenth day of September 17, 2001, and to pay interest
thereon as provided below, at such office or agency, in like
lawful money, from August 27, 1999, to the person in whose name
this bond is registered at the close of business on the related
regular record date as provided below, or (subject to certain
exceptions provided in the Indenture hereinafter mentioned),
until the Company's obligation with respect to payment of said
principal shall have been discharged, all as provided, to the
extent and in the manner specified in such Indenture
hereinafter mentioned on the reverse hereof and in the
supplemental indenture pursuant to which this bond has been
issued.
The bonds of 1999 Series D will bear interest at a rate per
annum, reset quarterly, equal to three-month LIBOR (as defined
below) plus seventeen basis points (.17%), as determined by the
Calculation Agent (as defined below). Interest will be computed
on the basis of a 360-day year and the actual number of days in
the applicable Interest Period (as defined below). Interest is
payable quarterly in arrears on March 15, June 15, September
15, and December 15 of each year, commencing September 15,
1999, except that the final payment of interest will be due on
September 17, 2001, instead of September 15, 2001 (each an
"Interest Payment Date"), for the period commencing on and
including the immediately preceding Interest Payment Date and
ending on and including the day preceding the next Interest
Payment Date (each an "Interest Period"), with the exception
that the first Interest Period shall commence on and include
August 27, 1999. Interest is payable to the persons in whose
names the bonds of 1999 Series D are registered at the close of
business on the related regular record date, which shall be the
fifteenth calendar day, whether or not a Business Day (as
defined below), prior to the Interest Payment Date.
The interest rate on the bonds of 1999 Series D may not
exceed the "Maximum Rate", which is defined to mean the rate of
interest equal to 15% per annum or such higher rate as may be
established from time to time by the Board of Directors of the
Company.
If any Interest Payment Date, other than at stated maturity,
for the bonds of 1999 Series D would otherwise be a day that is
not a Business Day, such Interest Payment Date will be
postponed to the next day that is a Business Day, except that
if such Business Day is in the next succeeding calendar month,
such Interest Payment Date shall be the immediately preceding
Business Day. If the stated maturity for the bonds of 1999
Series D falls on a day which is not a Business Day, payment of
principal and interest with respect to the bonds of 1999 Series
D will be paid on the next succeeding Business Day with the
same force and effect as if made on such date and no interest
on such payment will accrue from and after such date.
The interest rate for each Interest Period will be determined
by the Calculation Agent in accordance with the following
provisions:
The per annum rate of interest for each Interest Period will
be three-month LIBOR on the second Business Day preceding the
relevant Interest Reset Date (as defined below) for such
Interest Period (the "Interest Determination Date") plus the
applicable spread described above. The Interest Determination
Date for the first Interest Period will be August 25, 1999.
"LIBOR" for each subsequent Interest
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Period will be determined by the Calculation Agent in accordance with the following provisions:
(i) On each Interest Determination Date, the Calculation Agent will ascertain the offered rate for three-month deposits in U.S. dollars in the London interbank market, which appears on the Telerate Page 3750, as of 11:00 a.m. (London time) on such Interest Determination Date.
(ii) If such rate does not appear on the Telerate Page 3750, or the Telerate Page 3750 is unavailable, the Calculation Agent will request each of four major banks in the London interbank market (the "Reference Banks") to provide the Calculation Agent with its offered quotation (expressed as a rate per annum) for three-month deposits in U.S. dollars to leading banks in the London interbank market at approximately 11:00 a.m. (London time) on the Interest Determination Date. If at least two such quotations are provided, LIBOR in respect of the Interest Determination Date, will be the arithmetic mean of such quotations.
(iii) If less than two of the Reference Banks provide the Calculation Agent with such offered quotations, LIBOR in respect of that Interest Determination Date will be the arithmetic mean of the rates quoted by three major banks in The City of New York (selected by the Calculation Agent) at approximately 11:00 a.m., New York City time, on that Interest Determination Date for three-month loans in U.S. dollars to leading European banks, in a principal amount equal to an amount of not less than $1,000,000 that is representative for a single transaction in such market at such time; provided, however, that if the banks selected as aforesaid by the Calculation Agent are not quoting as mentioned in this sentence, LIBOR will be LIBOR in effect on such Interest Determination Date.
"Interest Reset Date" means, with respect to any Interest Period, the first day of such Interest Period.
"Business Day" means any day (other than a Saturday or Sunday) on which banking institutions in The City of New York are open for business and which is also a London Banking Day.
"London Banking Day" means any day (other than a Saturday or Sunday) on which dealings in deposits are transacted in the London interbank market.
"Telerate Page 3750" means the display designated as page "3750" on the Bridge Telerate, Inc. (or such other page as may replace that page on that service for the purpose of displaying the LIBOR Index on a daily basis).
All percentages resulting from any calculation on the bonds of 1999 Series D will be rounded, if necessary, to the nearest one hundred-thousandth of a percentage point, with five one-millionths of a percentage point rounded upward (e.g., 9.876545% (or .09876545) being rounded to 9.87655% (or .0987655)), and U.S. dollar amounts used in or resulting from such calculations will be rounded to the nearest cent (with one-half cent being rounded upward).
The Company has agreed that, so long as any of the bonds of 1999 Series D remain outstanding, it will maintain under appointment an agent (the "Calculation Agent"), initially Bankers Trust Company, to calculate the rate of interest payable on the Bonds in respect of each Interest Period. If the Calculation Agent is unable or unwilling to continue to act as such, or if the Calculation Agent fails to establish the applicable rate of interest for any Interest Period, or if the Company removes the Calculation Agent, the Company will appoint the office of another bank to act as the Calculation Agent; provided, however, that the Calculation Agent shall not resign or be removed until acceptance of an appointment by a successor as evidenced by an appropriate agreement entered into by the Company and such successor Calculation Agent.
Reference is hereby made to the further provisions of this bond set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though set forth at this place.
This bond shall not be valid or become obligatory for any purpose until Bankers Trust Company, the Trustee under the Indenture hereinafter mentioned on the reverse hereof, or its successor thereunder, shall have signed the form of certificate endorsed hereon.
IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY has caused this instrument to be executed on its behalf by its Vice President and Treasurer, with his manual or facsimile signature, and its corporate seal, or a facsimile thereof, to be impressed or imprinted hereon and the same to be attested by its Secretary or its Assistant Corporate Secretary by manual or facsimile signature.
Dated:
DTE SEAL
Attest:
SOMERS
Assistant Corporate Secretary
THE DETROIT EDISON COMPANY
By LOOMANS
Vice President and Treasurer
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This bond is one of an authorized issue of bonds of the Company, unlimited as to amount except as provided in the Indenture hereinafter mentioned or any indentures supplemental thereto, and is one of a series of said bonds known as General and Refunding Mortgage Bonds, Floating Rate 1999 Series D (elsewhere herein referred to as the "bonds of 1999 Series D"), limited to an aggregate principal amount of $40,000,000, except as otherwise provided in the Indenture hereinafter mentioned. This bond and all other bonds of said series are issued and to be issued under, and are all equally and ratably secured (except insofar as any sinking, amortization, improvement or analogous fund, established in accordance with the provisions of the Indenture hereinafter mentioned, may afford additional security for the bonds of any particular series and except as provided in Section 3 of Article VI of said Indenture) by an Indenture, dated as of October 1, 1924, duly executed by the Company to Bankers Trust Company, a corporation of the State of New York, as Trustee, to which Indenture and all indentures supplemental thereto (including the Supplemental Indenture dated as of August 15, 1999) reference is hereby made for a description of the properties and franchises mortgaged and conveyed, the nature and extent of the security, the terms and conditions upon which the bonds are issued and under which additional bonds may be issued, and the rights of the holders of the bonds and of the Trustee in respect of such security (which Indenture and all indentures supplemental thereto, including the Supplemental Indenture dated as of August 15, 1999, 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 Company and of the holders of the bonds and the terms and
provisions of the Indenture, or of any indenture supplemental thereto, may be modified or altered in certain respects by affirmative vote of at least eighty-five percent (85%) in principal amount of the bonds then outstanding, and, if the rights of one or more, but less than all, series of bonds then outstanding are to be affected by the action proposed to be taken, then also by affirmative vote of at least eighty-five percent (85%) in principal amount of the series of bonds so to be affected (excluding in every instance bonds disqualified from voting by reason of the Company's interest therein as specified in the Indenture); provided, however, that, without the consent of the holder hereof, no such modification or alteration shall, among other things, affect the terms of payment of the principal of, or the interest on, this bond, which in those respects is unconditional.
The bonds of 1999 Series D, including this bond, shall not be redeemable prior to stated maturity.
The bonds of 1999 Series D, including this bond, shall not be entitled or subject to a sinking fund.
In case an event of default, as defined in the Indenture, shall occur, the principal of all the bonds issued thereunder may become or be declared due and payable, in the manner, with the effect and subject to the conditions, provided in the Indenture.
This bond is transferable by the registered holder hereof, in person or by his attorney duly authorized in writing, on the books of the Company kept at its office or agency in the Borough of Manhattan, The City and State of New York, upon surrender and cancellation of this bond, and, thereupon, a new registered bond or bonds of the same series of authorized denominations for a like aggregate principal amount will be issued to the transferee or transferees in exchange herefor, and this bond with others of like form may in like manner be exchanged for one or more new registered bonds of the same series of other authorized denominations, but of the same aggregate principal amount, all as provided and upon the terms and conditions set forth in the Indenture, and upon payment, in any event, of the charges prescribed in the Indenture.
No recourse shall be had for the payment of the principal of, or the interest on, this bond, or for any claim based hereon or otherwise in respect hereof or of the Indenture, or of any indenture supplemental thereto, against any incorporator, or against any past, present or future stockholder, director or officer, as such, of the Company, or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether for amounts unpaid on stock subscriptions or by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise howsoever, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released by every holder or owner hereof, as more fully provided in the Indenture.
TRUSTEE'S CERTIFICATE
This bond is one of the bonds, of the series designated therein, described in the within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By ...........................
Authorized Officer
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
the within bond of THE DETROIT EDISON COMPANY and does hereby irrevocably constitute and appoint
Attorney, to transfer said bond on the books of the within-mentioned Company, with full power of substitution in the premises.
Dated:
Notice: The signature to this assignment must correspond with the name as written upon the face of the bond in every particular without alteration or enlargement or any change whatsoever.
PART II.
RECORDING AND FILING DATA
RECORDING AND
FILING OF ORIGINAL
INDENTURE. The Original Indenture and indentures supplemental thereto
have been recorded and/or filed and Certificates of Provision
for Payment have been recorded as hereinafter set forth.
The Original Indenture has been recorded as a real estate
mortgage and filed as a chattel mortgage in the offices of the
respective Registers of Deeds of certain counties in the State
of Michigan as set forth in the Supplemental Indenture dated as
of September 1, 1947, has been recorded as a real estate
mortgage in the office of the Register of Deeds of Genesee
County, Michigan as set forth in the Supplemental Indenture
dated as of May 1, 1974, has been filed in the Office of the
Secretary of State of Michigan on November 16, 1951 and has
been filed and recorded in the office of the Interstate
Commerce Commission on December 8, 1969.
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RECORDING AND
FILING OF
SUPPLEMENTAL
INDENTURES. Pursuant to the terms and provisions of the Original
Indenture, indentures supplemental thereto heretofore entered
into have been recorded as a real estate mortgage and/or filed
as a chattel mortgage or as a financing statement in the
offices of the respective Registers of Deeds of certain
counties in the State of Michigan, the Office of the Secretary
of State of Michigan and the Office of the Interstate Commerce
|
Commission, as set forth in supplemental indentures as follows:
RECORDED AND/OR
FILED AS SET FORTH IN
SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL
INDENTURE SUPPLEMENTAL INDENTURE
DATED AS OF INDENTURE DATED AS OF:
------------ ------------ ---------------------
June 1, 1925(a)(b).......... Series B Bonds February 1, 1940
August 1, 1927(a)(b)........ Series C Bonds February 1, 1940
February 1, 1931(a)(b)...... Series D Bonds February 1, 1940
June 1, 1931(a)(b).......... Subject Properties February 1, 1940
October 1, 1932(a)(b)....... Series E Bonds February 1, 1940
September 25, 1935(a)(b).... Series F Bonds February 1, 1940
September 1, 1936(a)(b)..... Series G Bonds February 1, 1940
November 1, 1936(a)(b)...... Subject Properties February 1, 1940
February 1, 1940(a)(b)...... Subject Properties September 1, 1947
December 1, 1940(a)(b)...... Series H Bonds and Additional September 1, 1947
Provisions
|
RECORDED AND/OR
FILED AS SET FORTH IN
SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL
INDENTURE SUPPLEMENTAL INDENTURE
DATED AS OF INDENTURE DATED AS OF:
------------ ------------ ---------------------
September 1, Series I Bonds, November 15, 1951
1947(a)(b)(c)............. Subject Properties and
Additional Provisions
March 1, 1950(a)(b)(c)...... Series J Bonds November 15, 1951
and Additional Provisions
November 15, Series K Bonds January 15, 1953
1951(a)(b)(c)............. Additional Provisions and
Subject Properties
January 15, 1953(a)(b)...... Series L Bonds May 1, 1953
May 1, 1953(a).............. Series M Bonds and Subject March 15, 1954
Properties
March 15, 1954(a)(c)........ Series N Bonds and Subject May 15, 1955
Properties
May 15, 1955(a)(c).......... Series O Bonds and Subject August 15, 1957
Properties
August 15, 1957(a)(c)....... Series P Bonds Additional June 1, 1959
Provisions and Subject
Properties
June 1, 1959(a)(c).......... Series Q Bonds and Subject December 1, 1966
Properties
December 1, 1966(a)(c)...... Series R Bonds Additional October 1, 1968
Provisions and Subject
Properties
October 1, 1968(a)(c)....... Series S Bonds and Subject December 1, 1969
Properties
December 1, 1969(a)(c)...... Series T Bonds and Subject July 1, 1970
Properties
July 1, 1970(c)............. Series U Bonds and Subject December 15, 1970
Properties
December 15, 1970(c)........ Series V and Series W Bonds June 15, 1971
June 15, 1971(c)............ Series X Bonds and Subject November 15, 1971
Properties
November 15, 1971(c)........ Series Y Bonds and Subject January 15, 1973
Properties
January 15, 1973(c)......... Series Z Bonds and Subject May 1, 1974
Properties
May 1, 1974................. Series AA Bonds and Subject October 1, 1974
Properties
October 1, 1974............. Series BB Bonds and Subject January 15, 1975
Properties
January 15, 1975............ Series CC Bonds and Subject November 1, 1975
Properties
November 1, 1975............ Series DDP Nos. 1-9 Bonds and December 15, 1975
Subject Properties
December 15, 1975........... Series EE Bonds and Subject February 1, 1976
Properties
February 1, 1976............ Series FFR Nos. 1-13 Bonds June 15, 1976
June 15, 1976............... Series GGP Nos. 1-7 Bonds and July 15, 1976
Subject Properties
July 15, 1976............... Series HH Bonds and Subject February 15, 1977
Properties
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RECORDED AND/OR
FILED AS SET FORTH IN
SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL
INDENTURE SUPPLEMENTAL INDENTURE
DATED AS OF INDENTURE DATED AS OF:
------------ ------------ ---------------------
February 15, 1977........... Series MMP Bonds and Subject March 1, 1977
Properties
March 1, 1977............... Series IIP Nos. 1-7 Bonds, Series June 15, 1977
JJP Nos. 1-7 Bonds, Series KKP
Nos. 1-7 Bonds and Series LLP
Nos. 1-7 Bonds
June 15, 1977............... Series FFR No. 14 Bonds and July 1, 1977
Subject Properties
July 1, 1977................ Series NNP Nos. 1-7 Bonds and October 1, 1977
Subject Properties
October 1, 1977............. Series GGP Nos. 8-22 Bonds and June 1, 1978
Series OOP Nos. 1-17 Bonds and
Subject Properties
June 1, 1978................ Series PP Bonds, Series QQP Nos. October 15, 1978
1-9 Bonds and Subject Properties
October 15, 1978............ Series RR Bonds and Subject March 15, 1979
Properties
March 15, 1979.............. Series SS Bonds and Subject July 1, 1979
Properties
July 1, 1979................ Series IIP Nos. 8-22 Bonds, Series September 1, 1979
NNP Nos. 8-21 Bonds and Series
TTP Nos. 1-15 Bonds and Subject
Properties
September 1, 1979........... Series JJP No. 8 Bonds, Series KKP September 15, 1979
No. 8 Bonds, Series LLP Nos.
8-15 Bonds, Series MMP No. 2
Bonds and Series OOP No. 18
Bonds and Subject Properties
September 15, 1979.......... Series UU Bonds January 1, 1980
January 1, 1980............. 1980 Series A Bonds and Subject April 1, 1980
Properties
April 1, 1980............... 1980 Series B Bonds August 15, 1980
August 15, 1980............. Series QQP Nos. 10-19 Bonds, 1980 August 1, 1981
Series CP Nos. 1-12 Bonds and
1980 Series DP No. 1-11 Bonds
and Subject Properties
August 1, 1981.............. 1980 Series CP Nos. 13-25 Bonds November 1, 1981
and Subject Properties
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 June 1, 1983
Subject Properties
|
RECORDED AND/OR
FILED AS SET FORTH IN
SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL
INDENTURE SUPPLEMENTAL INDENTURE
DATED AS OF INDENTURE DATED AS OF:
------------ ------------ ---------------------
June 1, 1983................ 1981 Series AP Nos. 15-16 and October 1, 1984
Subject Properties
October 1, 1984............. 1984 Series AP and 1984 Series BP May 1, 1985
Bonds and Subject Properties
May 1, 1985................. 1985 Series A Bonds May 15, 1985
May 15, 1985................ 1985 Series B Bonds and Subject October 15, 1985
Properties
October 15, 1985............ Series KKP No. 9 Bonds and Subject April 1, 1986
Properties
April 1, 1986............... 1986 Series A and Subject August 15, 1986
Properties
August 15, 1986............. 1986 Series B and Subject November 30, 1986
Properties
November 30, 1986........... 1986 Series C January 31, 1987
January 31, 1987............ 1987 Series A April 1, 1987
April 1, 1987............... 1987 Series B and 1987 Series C August 15, 1987
August 15, 1987............. 1987 Series D and 1987 Series E November 30, 1987
and Subject Properties
November 30, 1987........... 1987 Series F June 15, 1989
June 15, 1989............... 1989 Series A July 15, 1989
July 15, 1989............... Series KKP No. 10 December 1, 1989
December 1, 1989............ Series KKP No. 11 and 1989 Series February 15, 1990
BP
February 15, 1990........... 1990 Series A, 1990 Series B, 1990 November 1, 1990
Series C, 1990 Series D, 1990
Series E and 1990 Series F
November 1, 1990............ Series KKP No. 12 April 1, 1991
April 1, 1991............... 1991 Series AP May 1, 1991
May 1, 1991................. 1991 Series BP and 1991 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
April 1, 1986............... 1986 Series A and Subject August 15, 1986
Properties
August 15, 1986............. 1986 Series B and Subject November 30, 1986
Properties
November 30, 1986........... 1986 Series C January 31, 1987
January 31, 1987............ 1987 Series A April 1, 1987
April 1, 1987............... 1987 Series B and 1987 Series C August 15, 1987
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RECORDED AND/OR
FILED AS SET FORTH IN
SUPPLEMENTAL PURPOSE OF SUPPLEMENTAL
INDENTURE SUPPLEMENTAL INDENTURE
DATED AS OF INDENTURE DATED AS OF:
------------ ------------ ---------------------
August 15, 1987............. 1987 Series D and 1987 Series E November 30, 1987
and Subject Properties
November 30, 1987........... 1987 Series F June 15, 1989
June 15, 1989............... 1989 Series A July 15, 1989
July 15, 1989............... Series KKP No. 10 December 1, 1989
December 1, 1989............ Series KKP No. 11 and 1989 Series February 15, 1990
BP
February 15, 1990........... 1990 Series A, 1990 Series B, 1990 November 1, 1990
Series C, 1990 Series D, 1990
Series E and 1990 Series F
November 1, 1990............ Series KKP No. 12 April 1, 1991
April 1, 1991............... 1991 Series AP May 1, 1991
May 1, 1991................. 1991 Series BP and 1991 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
November 30, 1992........... 1992 Series E and 1993 Series D March 15, 1993
December 15, 1992........... Series KKP No. 14 and 1989 Series March 15, 1992
BP No. 2
January 1, 1993............. 1993 Series C April 1, 1993
March 1, 1993............... 1993 Series E June 30, 1993
March 15, 1993.............. 1993 Series D September 15, 1993
April 1, 1993............... 1993 Series FP and 1993 Series IP September 15, 1993
April 26, 1993.............. 1993 Series G and Amendment of September 15, 1993
Article II, Section 5
May 31, 1993................ 1993 Series J September 15, 1993
September 15, 1993.......... 1993 Series K March 1, 1994
March 1, 1994............... 1994 Series AP June 15, 1994
June 15, 1994............... 1994 Series BP December 1, 1994
August 15, 1994............. 1994 Series C December 1, 1994
December 1, 1994............ Series KKP No. 15 and 1994 Series August 1, 1995
DP
August 1, 1995.............. 1995 Series A Bond August 15, 1999
1995 Series DP
|
(b) See Supplemental Indenture dated as of May 1, 1953 for Secretary of State of Michigan filing information.
(c) See Supplemental Indenture dated as of May 1, 1974 for County of Genesee, Michigan recording and filing information.
RECORDING OF
CERTIFICATES
OF PROVISION
FOR PAYMENT. All the bonds of Series A which were issued under the
Original Indenture dated as of October 1, 1924, and of Series
B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, 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 and 1993 Series D 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 and March 15, 1993 have
matured or have been called for redemption and funds sufficient
for such payment or redemption have been irrevocably deposited
with the Trustee for that purpose; and Certificates of
Provision for Payment have been recorded in the offices of the
respective Registers of Deeds of certain counties in the State
of Michigan, with respect to all bonds of Series A, B, C, D, E,
F, G, H, K, L, M, O, W, BB, CC, DDP Nos. 1 and 2, FFR Nos. 1-3,
GGP Nos. 1 and 2, IIP No. 1, JJP No. 1, KKP No. 1, LLP No. 1
and GGP No. 8.
PART III.
THE TRUSTEE.
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TERMS AND
CONDITIONS OF
ACCEPTANCE OF
TRUST BY TRUSTEE. The Trustee hereby accepts the trust hereby declared and
provided, and agrees to perform the same upon the terms 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 IV.
MISCELLANEOUS.
CONFIRMATION OF
SECTION 318(C) OF
TRUST INDENTURE
ACT. Except to the extent specifically provided therein, no
provision of this supplemental indenture or any future
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 supercede provisions
of the Indenture in effect prior to November 15, 1990.
EXECUTION IN
COUNTERPARTS. THIS SUPPLEMENTAL INDENTURE MAY BE SIMULTANEOUSLY 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.
|
21
TESTIMONIUM. IN WITNESS WHEREOF, THE DETROIT EDISON COMPANY AND BANKERS
TRUST COMPANY HAVE CAUSED THESE PRESENTS TO BE SIGNED IN THEIR
RESPECTIVE CORPORATE NAMES BY THEIR RESPECTIVE CHAIRMEN OF THE
BOARD, PRESIDENTS, VICE PRESIDENTS, ASSISTANT VICE PRESIDENTS,
TREASURERS OR ASSISTANT TREASURERS AND IMPRESSED WITH THEIR
RESPECTIVE CORPORATE SEALS, ATTESTED BY THEIR RESPECTIVE
SECRETARIES, ASSISTANT SECRETARIES, TREASURERS OR ASSISTANT
TREASURERS ALL AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN.
THE DETROIT EDISON COMPANY,
(Corporate Seal) By
--------------------------------
N. A. Khouri
Assistant Treasurer
EXECUTION. Attest:
-----------------------------------------------------------------
Jack L. Somers
Assistant Corporate Secretary
Signed, sealed and delivered by THE
DETROIT EDISON COMPANY, in the
presence of
-----------------------------------------------------------------
K. Hier
-----------------------------------------------------------------
W. A. Horwath
STATE OF MICHIGAN
SS.:
COUNTY OF WAYNE
|
ACKNOWLEDGMENT
OF EXECUTION
BY COMPANY. On this day of August, 1999, before me, the subscriber, a
Notary Public within and for the County of , in the
State of Michigan, 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 48226-1279
and is the Assistant Treasurer of THE DETROIT EDISON COMPANY,
one of the corporations described in and which executed the
foregoing instrument; that he knows the corporate seal of the
said corporation and that the seal affixed to said instrument
is the corporate seal of said corporation; and that said
instrument was signed and sealed in behalf of said corporation
by authority of its Board of Directors and that he subscribed
his name thereto by like authority; and said N. A. Khouri,
acknowledged said instrument to be the free act and deed of
said corporation.
----------------------------------
(Notarial Seal) , Notary Public
County, MI
My Commission Expires
|
22
|
BANKERS TRUST COMPANY,
(Corporate Seal) By
--------------------------------------------
Marc J. Parilla
Assistant Vice President
Attest:
------------------------------------------------
Signed, sealed and delivered by
BANKERS TRUST COMPANY, in the
presence of
------------------------------------------------
------------------------------------------------
|
STATE OF NEW YORK
SS.:
COUNTY OF NEW YORK
|
ACKNOWLEDGEMENT On this day of August, 1999, before me, the subscriber, a
OF EXECUTION Notary Public within and for the County of New York, in the
BY TRUSTEE. State of New York, personally appeared Marc J. Parilla, to
me personally known, who, being by me duly sworn, did say
that his business office is located at Four Albany Street,
New York, New York 10015, and he is Assistant Vice President
of BANKERS TRUST COMPANY, one of the corporations described
in and which executed the foregoing instrument; that he
knows the corporate seal of the said corporation and that
the seal affixed to said instrument is the corporate seal of
said corporation; and that said instrument was signed and
sealed in behalf of said corporation by authority of its
Board of Directors and that he subscribed his name thereto
by like authority; and said acknowledged said
instrument to be the free act and deed of said corporation.
|
(Notarial Seal)
---------------------------------------------------
Notary Public, State of New York
No.
Qualified in Kings County
Commission Expires
|
STATE OF MICHIGAN
SS.:
COUNTY OF WAYNE
AFFIDAVIT AS TO N.A. Khouri, being duly sworn, says: that he is the
CONSIDERATION Assistant Treasurer of THE DETROIT EDISON COMPANY, the
AND GOOD FAITH. Mortgagor named in the foregoing instrument, and that he has
knowledge of the facts in regard to the making of said
instrument and of the consideration therefor; that the
consideration for said instrument was and is actual and
adequate, and that the same was given in good faith for the
purposes in such instrument set forth.
|
------------------------------------------------
N.A. Khouri
Sworn to before me this day of
August, 1999
------------------------------------------------
, Notary Public
Wayne County, MI
My Commission Expires
(Notarial Seal)
This instrument was drafted by Frances B. Rohlman, Esq., 2000 Second Avenue, Detroit, Michigan
48226
|
EXHIBIT 11-17
DTE ENERGY COMPANY
BASIC AND DILUTED EARNINGS PER SHARE
OF COMMON STOCK
Three Months Nine Months
Ended Ended
September 30, 1999 September 30, 1999
------------------ ------------------
(Thousands, except per share amounts)
BASIC:
Net income........................................................$ 160,560 $ 386,124
Weighted average number of common
shares outstanding (a).......................................... 145,045 145,049
Earnings per share of common stock
based on weighted average number
of shares outstanding...........................................$ 1.11 $ 2.66
DILUTED:
Net income........................................................$ 160,560 $ 386,124
Weighted average number of common
shares outstanding (a).......................................... 145,045 145,049
Incremental shares from assumed exercise
of options...................................................... 86 107
------------ -----------
145,131 145,156
============ ===========
Earnings per share of common stock
assuming exercise of options....................................$ 1.11 $ 2.66
|
EXHIBIT 12-20
DTE ENERGY COMPANY
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
Nine
Months Year Ended December 31
Ended ------------------------------------
9/30/99 1998 1997 1996
------- ---- ---- ----
(Millions, except for ratio and percent)
Net income............................................. $ 386 $ 443 $ 417 $ 309
----------- ----------- ----------- ----------
Taxes based on income:
Income taxes........................................ 48 154 257 221
Municipal and state................................. 2 3 4 3
----------- ----------- ----------- ----------
Total taxes based on income....................... 50 157 261 224
----------- ----------- ----------- ----------
Fixed charges:
Interest expense.................................... 260 319 297 291
Allowance for funds used during
construction...................................... 4 - - -
Interest factor of rents............................ 26 34 34 34
Preferred stock dividend factor..................... - 7 18 26
----------- ----------- ----------- ----------
Total fixed charges............................... 290 360 349 351
----------- ----------- ----------- ----------
Earnings before taxes based on income
and fixed charges................................... $ 726 $ 960 $ 1,027 $ 884
=========== =========== =========== ==========
Ratio of earnings to fixed charges 2.50 2.67 2.94 2.52
Preferred stock dividends.............................. $ - $ 6 $ 12 $ 16
Dividends meeting requirement of
IRC Section 247..................................... $ - $ 4 $ 4 $ 4
Percent deductible for income tax purposes............. - 40.00% 40.00% 40.00%
Amount deductible...................................... - 2 2 2
Amount not deductible.................................. - 4 10 14
Ratio of pretax income to net income................... - 1.35 1.61 1.69
Dividend factor for amount not deductible.............. - 5 16 24
Amount deductible...................................... - 2 2 2
----------- ----------- ----------- ----------
Total preferred stock dividend factor............. $ - $ 7 $ 18 $ 26
=========== =========== =========== ==========
|
EXHIBIT 12-21
THE DETROIT EDISON COMPANY
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
Nine
Months Year Ended December 31
Ended -------------------------------------
9/30/99 1998 1997 1996
------- ---- ---- ----
(Millions, except for ratio)
Net income............................................. $ 349 $ 418 $ 417 $ 328
----------- ----------- ---------- --------
Taxes based on income:
Income taxes........................................ 164 260 288 225
Municipal and state................................. 2 3 4 3
----------- ----------- ---------- --------
Total taxes based on income....................... 166 263 292 228
----------- ----------- ---------- --------
Fixed charges:
Interest expense.................................... 219 278 282 291
Allowance for funds used during
construction...................................... 4 - - -
Interest factor of rents............................ 26 34 34 34
----------- ----------- ---------- --------
Total fixed charges............................... 249 312 316 325
=========== =========== ========== ========
Earnings before taxes based on income
and fixed charges................................... $ 764 $ 933 $ 1,025 $ 881
=========== =========== ========== ========
Ratio of earnings to fixed charges 3.07 3.18 3.24 2.71
|
EXHIBIT 15-12
DTE Energy Company and
The Detroit Edison Company
Detroit, Michigan
We have made a review, in accordance with standards established by the American Institute of Certified Public Accountants, of the unaudited interim financial information of DTE Energy Company and subsidiaries and of The Detroit Edison Company and subsidiaries for the periods ended September 30, 1999 and 1998, as indicated in our report dated November 8, 1999. Because we did not perform an audit, we expressed no opinion on that information.
We are aware that our report referred to above, which is included in your Quarterly Report on Form 10-Q for the quarter ended September 30, 1999, is incorporated by reference in the following Registration Statements:
FORM REGISTRATION NUMBER DTE Energy Company Form S-3 33-57545 Form S-4 333-89175 Form S-8 333-00023 The Detroit Edison Company Form S-3 33-53207 Form S-3 33-64296 Form S-3 333-65765 |
We also are aware that the aforementioned report, pursuant to Rule 436(c) under the Securities Act of 1933, is not considered a part of the Registration Statement prepared or certified by an accountant or a report prepared or certified by an accountant within the meaning of Sections 7 and 11 of that Act.
DELOITTE & TOUCHE LLP
Detroit, Michigan
November 8, 1999
| ARTICLE 5 |
| THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE CONDENSED CONSOLIDATED STATEMENT OF INCOME, BALANCE SHEET, STATEMENT OF CASH FLOWS, STATEMENT OF CHANGES IN SHAREHOLDERS' EQUITY AND BASIC AND DILUTED EARNINGS PER SHARE OF COMMON STOCK AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS. |
| CIK: 0000936340 |
| NAME: DTE ENERGY COMPANY |
| PERIOD TYPE | 9 MOS |
| FISCAL YEAR END | DEC 31 1999 |
| PERIOD START | JAN 01 1999 |
| PERIOD END | SEP 30 1999 |
| CASH | 371 |
| SECURITIES | 0 |
| RECEIVABLES | 709 |
| ALLOWANCES | 21 |
| INVENTORY | 308 |
| CURRENT ASSETS | 1,454 |
| PP&E | 12,572 |
| DEPRECIATION | 5,507 |
| TOTAL ASSETS | 12,316 |
| CURRENT LIABILITIES | 1,691 |
| BONDS | 3,985 |
| PREFERRED MANDATORY | 0 |
| PREFERRED | 0 |
| COMMON | 1,950 |
| OTHER SE | 1,908 |
| TOTAL LIABILITY AND EQUITY | 12,316 |
| SALES | 0 |
| TOTAL REVENUES | 3,614 |
| CGS | 0 |
| TOTAL COSTS | 2,907 |
| OTHER EXPENSES | 13 |
| LOSS PROVISION | 0 |
| INTEREST EXPENSE | 260 |
| INCOME PRETAX | 434 |
| INCOME TAX | 48 |
| INCOME CONTINUING | 386 |
| DISCONTINUED | 0 |
| EXTRAORDINARY | 0 |
| CHANGES | 0 |
| NET INCOME | 386 |
| EPS BASIC | 2.66 |
| EPS DILUTED | 2.66 |
| ARTICLE 5 |
| THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE CONDENSED CONSOLIDATED STATEMENT OF INCOME, BALANCE SHEET, STATEMENT OF CASH FLOWS AND STATEMENT OF CHANGES IN SHAREHOLDER'S EQUITY AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS. |
| CIK: 0000028385 |
| NAME: THE DETROIT EDISON COMPANY |
| PERIOD TYPE | 9 MOS |
| FISCAL YEAR END | DEC 31 1999 |
| PERIOD START | JAN 01 1999 |
| PERIOD END | SEP 30 1999 |
| CASH | 211 |
| SECURITIES | 0 |
| RECEIVABLES | 616 |
| ALLOWANCES | 20 |
| INVENTORY | 283 |
| CURRENT ASSETS | 1,154 |
| PP&E | 11,922 |
| DEPRECIATION | 5,446 |
| TOTAL ASSETS | 11,191 |
| CURRENT LIABILITIES | 1,528 |
| BONDS | 3,308 |
| PREFERRED MANDATORY | 0 |
| PREFERRED | 0 |
| COMMON | 1,951 |
| OTHER SE | 1,672 |
| TOTAL LIABILITY AND EQUITY | 11,191 |
| SALES | 0 |
| TOTAL REVENUES | 3,128 |
| CGS | 0 |
| TOTAL COSTS | 2,393 |
| OTHER EXPENSES | 3 |
| LOSS PROVISION | 0 |
| INTEREST EXPENSE | 219 |
| INCOME PRETAX | 513 |
| INCOME TAX | 164 |
| INCOME CONTINUING | 349 |
| DISCONTINUED | 0 |
| EXTRAORDINARY | 0 |
| CHANGES | 0 |
| NET INCOME | 349 |
| EPS BASIC | 0 |
| EPS DILUTED | 0 |
EXHIBIT 99-29
STANDBY NOTE
PURCHASE CREDIT FACILITY
Dated as of October 26, 1999
THE DETROIT EDISON COMPANY, a Michigan corporation (the "COMPANY"), the banks (the "BANKS") listed on the signature pages hereof, BARCLAYS BANK PLC, as administrative agent (the "ADMINISTRATIVE AGENT") for the Banks hereunder, and LEHMAN BROTHERS INC., BANC ONE CAPITAL MARKETS, INC. and BARCLAYS CAPITAL INC., each as a Remarketing Agent (as hereinafter defined), agree as follows:
PRELIMINARY STATEMENT
The Company expects to remarket $160,000,000 aggregate principal amount of its Multi-Mode Remarketed Secured Notes (the "NOTES") issued pursuant to a Collateral Trust Indenture, dated as of June 30, 1993, as amended and supplemented by various supplemental indentures, including that certain Second Supplemental Indenture, dated as of September 15, 1993, as amended by the First Amendment to the Second Supplemental Indenture, dated as of August 15, 1996 (together, and as further amended and supplemented, the "NOTE INDENTURE"), between the Company and Bankers Trust Company, as trustee. Pursuant to the Note Indenture, the Notes are and continue to be secured by general and refunding mortgage bonds of the Company (the "PLEDGED BOND"), which were issued pursuant to the Mortgage and Deed of Trust, dated as of October 1, 1924, between the Company and Bankers Trust Company, as amended and supplemented by various supplemental indentures, including that certain Supplemental Indenture creating the Pledged Bond, dated as of September 15, 1993 (as so amended and supplemented, and as further amended and supplemented from time to time, the "MORTGAGE").
Pursuant to the terms and conditions of the Note Indenture, the Notes may from time to time be tendered for purchase by the beneficial owners thereof (each a "BENEFICIAL OWNER"), and, if so tendered, will be remarketed in accordance with the terms and conditions of the Remarketing Agreement (as hereinafter defined). In order to assure that adequate liquidity is available in connection with the purchase upon tender and remarketing of the Notes, the Company has requested that the Banks establish the credit facility provided for hereunder for the making of Advances (as hereinafter defined) to the Remarketing Agents under the circumstances hereinafter described. All Advances will be utilized for the purchase of Notes which the applicable Remarketing Agent has been unable to successfully remarket, coincident with their tender by the holders thereof, in accordance with the terms of the Remarketing Agreement. Any Notes the purchase of which is funded with the proceeds of Advances will be purchased for the account of the Administrative Agent for the ratable benefit of the Banks, and will be registered with DTC (as hereinafter defined) in the name of the Administrative Agent or its nominee on behalf of the Banks. Such Notes shall constitute Purchased Notes (as hereinafter defined) for all purposes of the Note Indenture, until such Notes are successfully remarketed or repurchased by the Company and the proceeds thereof are paid to the Administrative Agent for distribution to the Banks hereunder (all as provided herein and in the Note Indenture). The Company will be required to repurchase any Notes registered in the name of the Administrative Agent upon any termination of
the credit facility established hereunder.
The Banks are willing to make the Advances, and the Administrative Agent has agreed to act as agent for the Banks, on the terms and conditions set forth herein. Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. CERTAIN DEFINED TERMS. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
"ADVANCE" means an advance made by a Bank to any Remarketing Agent pursuant to Article III, and refers to a Base Rate Advance or a Eurodollar Rate Advance, each of which shall be a "TYPE" of Advance.
"AGREEMENT" means this Standby Note Purchase Credit Facility, as amended, modified, supplemented and in effect from time to time.
"APPLICABLE LENDING OFFICE" means, with respect to each Bank, such Bank's Domestic Lending Office in the case of a Base Rate Advance and such Bank's Eurodollar Lending Office in the case of a Eurodollar Rate Advance.
"APPLICABLE RATE" means 0.00% with respect to any Base Rate Advance and means with respect to any Eurodollar Rate Advance or Facility Fee, at all times during which any "Applicable Rating Level" set forth below is in effect for the Company's Senior Secured Indebtedness, the rate per annum set forth below under the appropriate caption next to such Applicable Rating Level:
=================================================================================================
Applicable Applicable Rate for Applicable Rate
Rating S&P Rating/Moody's Eurodollar Rate for
Level Rating Advances Facility Fee
=================================================================================================
I A+ and A1, or higher 0.375% 0.125%
-------------------------------------------------------------------------------------------------
II BBB+ and Baa1, or higher 0.475% 0.150%
-------------------------------------------------------------------------------------------------
III BBB- and Baa3, or higher 0.500% 0.250%
-------------------------------------------------------------------------------------------------
IV BB+ or Ba1, or lower, or 0.825% 0.425%
not rated by either S&P's
or Moody's or both
-------------------------------------------------------------------------------------------------
|
provided, that the Applicable Rate for Eurodollar Rate Advances and Base Rate Advances shall be increased by (x) 0.125% per annum at all times that the aggregate principal amount of Advances outstanding is equal to or greater than 33.33% of the aggregate Commitments but less than 66.66% of the aggregate Commitments and (y) 0.250% per annum at all times that the aggregate principal amount of Advances outstanding is equal to or greater than 66.66% of the aggregate Commitments, provided, further, that the Applicable Rate for Eurodollar Rate Advances and Base Rate Advances shall be increased by 2.00% per annum upon the occurrence and during the continuance of any Event of Default.
For purposes of the foregoing, the Applicable Rating Level shall be determined in accordance with the then applicable S&P Rating and the then applicable Moody's Rating. In the event that the S&P Rating and the Moody's Rating do not correspond to the same Applicable Rating Level, then the lower of the two ratings shall determine the Applicable Rating Level. The Applicable Rating Level shall be redetermined on the date of announcement of a change in the S&P Rating or the Moody's Rating. A change in the Applicable Rate resulting from a change in the Applicable Rating Level shall become effective on such date. If the rating system of S&P or Moody's shall change, or if either such Person shall cease to be in the business of rating corporate debt obligations, the Company and the Banks shall negotiate in good faith to amend this definition to reflect such changed rating system or the unavailability of ratings from such Person and, pending the effectiveness of any such amendment, the Applicable Rate shall be determined by reference to the rating most recently in effect prior to such change or cessation.
"BASE RATE" means, for any period, a fluctuating interest rate PER ANNUM as shall be in effect from time to time which rate per annum shall at all times be equal to the highest of:
(a) the rate of interest announced by Barclays Bank PLC at its principal office in New York City from time to time as its prime commercial lending rate;
(b) 1/2 of 1% per annum above the latest three-week moving average of secondary market morning offering rates in the United States for three-month certificates of deposit of major U.S. money market banks, adjusted to the nearest 1/16 of 1%; and
(c) 1/2 of one percent per annum above the Federal Funds Effective Rate in effect from time to time.
Each change in the Base Rate shall take effect simultaneously with the
corresponding change or changes in the rates described in clause (a), (b) or
(c), above.
"BASE RATE ADVANCE" means any Advance which bears interest as provided in Section 3.04(a).
"BENEFICIAL OWNER" has the meaning specified in the Preliminary Statement.
"BORROWING" means a borrowing under this Agreement, initially consisting of Base Rate Advances, but which subsequently may be Converted to Eurodollar Rate Advances. Each Borrowing shall consist of Advances made or Converted on the same day by the Banks.
"BUSINESS DAY" means a day of the year other than a Saturday or Sunday on which banks are not required or authorized to close in New York City and, if the applicable Business Day relates to any Eurodollar Rate Advances, on which dealings are carried on in the London interbank market.
"CODE" means the Internal Revenue Code of 1986 and the regulations promulgated and rulings issued thereunder, each as amended, modified or supplemented from time to time; or any successor legislation.
"COMMITMENT" has the meaning specified in Section 2.01.
"CONSOLIDATED NET WORTH" means the sum of the capital stock (excluding treasury stock and capital stock subscribed for and unissued) and surplus (including earned surplus, capital surplus and the balance of the current profit and loss account not transferred to surplus) accounts of the Company and its subsidiaries appearing on a consolidated balance sheet of the Company and its subsidiaries prepared as of the date of determination in accordance with generally accepted accounting principles consistent with those applied in the preparation of the financial statements referred to in Section 5.01(h), after eliminating all intercompany transactions and all amounts properly attributable to minority interests, if any, in the stock and surplus of subsidiaries.
"CONVERSION", "CONVERT" and "CONVERTED" each refers to a conversion of Advances of one Type into another Type of Advances, or the selection of a new, or the renewal of the same, Interest Period for Eurodollar Rate Advances.
"DEBT" means (i) indebtedness for borrowed money or for the deferred purchase price of property or services, (ii) obligations as lessee under leases that have been or should be, in accordance with generally accepted accounting principles, recorded as capital leases, (iii) obligations under direct or indirect guaranties in respect of, and obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise to assure a creditor against loss in respect of, indebtedness or obligations of others of the kinds referred to in clauses (i) or (ii) above, and (iv) liabilities in respect of unfunded vested benefits under plans covered by Title IV of ERISA.
"DOMESTIC LENDING OFFICE" means, with respect to any Bank, the office of such Bank specified as its "Domestic Lending Office" opposite its name on Schedule I hereto or in the Assignment and Acceptance (substantially in the form of Exhibit B) pursuant to which it became a Bank, or such other office of such Bank as such Bank may from time to time specify to the Company and the Administrative Agent.
"DTC" means The Depository Trust Company, as depositary of the Notes, or any successor entity acting as depositary of the Notes hereunder.
"ELIGIBLE BANK" means a commercial bank or other financial institution engaged generally in the business of extending credit or purchasing debt instruments; provided, however, that
(i) obligations such as those hereunder of such Person are exempt from registration under the Securities Act of 1933, as amended, (ii) such Person shall have senior long term debt ratings by S&P and Moody's at least equal to those of the Company as of the date of this Agreement, and (iii) such Person shall have combined capital and surplus (as established in its most recent report of condition to its primary regulator) of not less than $250,000,000 (or its equivalent in foreign currency).
"ENVIRONMENTAL EVENT" means (i) the generation, storage, disposal, removal, transportation or treatment of any "Hazardous Substances" (as defined in any applicable Environmental Laws, and including asbestos and materials containing asbestos) on any real property owned, occupied or operated by the Company or on real property adjoining or in the vicinity of such real property, which through soil or ground water migration could have come to be located at or on such Property owned, occupied or operated by the Company or any Person for whose conduct the Company is responsible (any or all of such other property being "other affected property"); (ii) the receipt by the Company of any notice or claim of any violation of any Environmental Law or of any action based upon nuisance, negligence or other tort theory alleging liability on the basis of improper generation, storage, disposal, removal, transportation or treatment of Hazardous Substances on any Property owned, occupied or operated by the Company or on any other affected property; or (iii) the presence or release of Hazardous Substances at or from any Property owned, occupied or operated by the Company or any other affected property that has resulted in contamination or deterioration of any portion of such Property to a level of contamination greater than the levels permitted or established by any governmental agency having jurisdiction over the Company or any of such Property or other affected property.
"ENVIRONMENTAL LAW" means any and all statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or other governmental restrictions relating to the environment or the release of any materials into the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder, in each case as in effect from time to time. References to sections of ERISA also refer to any applicable successor provisions.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) which is a member of a group of which the Company is a member and
which is under common control within the meaning of Section 414 of the Code or
Section 4001 of ERISA.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that term in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.
"EURODOLLAR LENDING OFFICE" means, with respect to any Bank, the office of such Bank specified as its "Eurodollar Lending Office" opposite its name on Schedule I hereto (or, if no such office is specified, its Domestic Lending Office) or in the Assignment and Acceptance
(substantially in the form of Exhibit B) pursuant to which it became a Bank, or such other office of such Bank as such Bank may from time to time specify to the Company and the Administrative Agent.
"EURODOLLAR RATE" means, for any Interest Period for a Eurodollar Rate Advance resulting from the same Borrowing, an interest rate per annum calculated as of the first day of such Interest Period in the following manner:
(i) the Eurodollar Rate shall be the rate for deposits in U.S. dollars for a period equal to such Interest Period that appears on Telerate Page 3750 at approximately 11:00 A.M., London time, on the second Business Day prior to the first day of such Interest Period, or
(ii) if no rate appears on Telerate Page 3750 on such day, or if Telerate Page 3750 shall no longer exist, the Administrative Agent will determine the applicable Eurodollar Rate for such Interest Period by reference to the rate quoted by Barclays Bank PLC in the London interbank market for deposits in U.S. dollars in the London Interbank Market on the second Business Day prior to the first day of such Interest Period for a period equal to such Interest Period; provided, that if the Administrative Agent, in its sole discretion, determines that it is not reasonably practicable to determine a Eurodollar Rate for such Interest Period, then the Administrative Agent shall not determine such a Eurodollar Rate, and the provisions of Section 3.08 shall apply.
"EURODOLLAR RATE ADVANCE" means an Advance which bears interest as provided in Section 3.04(b).
"EVENT OF DEFAULT" has the meaning specified in Section 7.01.
"Facility Fee" has the meaning assigned to that term in Section 3.02(a).
A "FAILED REMARKETING" shall be deemed to have occurred on any Interest Rate Adjustment Date (as defined in the Note Indenture) on which a Remarketing Agent (and Standby Remarketing Agent, if any), by 12:00 noon (New York City time), shall have failed to remarket, at a price equal to 100% of the principal amount thereof, plus accrued interest, if any, any portion of the Notes tendered for purchase to such Remarketing Agent by the Beneficial Owners thereof on such date.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for the day of such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it.
"FISCAL YEAR" means the annual accounting period adopted by the Company.
"GOVERNING BODY" of any specified Person means the board of directors or board of trustees of such Person or any duly authorized committee of that board, or if there shall be no board of trustees or board of directors, then the Person or body that pursuant to law or the organizational documents of such Person is vested with powers similar to those vested in a board of trustees or a board of directors, and, with respect to the Company, its Board of Directors.
"GOVERNMENTAL AUTHORITY" means any foreign governmental authority, the United States of America, any state of the United States and any political subdivision of any of the foregoing, and any agency, department, commission, board, bureau or court or other judicial or administrative tribunal having jurisdiction over the Administrative Agent, any Bank, any Remarketing Agent or the Company, or over any Property of the Company.
"INTEREST PERIOD" means, for each Eurodollar Rate Advance resulting from the same Borrowing, the period commencing on the date of Conversion of a Base Rate Advance or Eurodollar Rate Advance into such Eurodollar Rate Advance and ending on the last day of the period selected by the Company pursuant to the provisions below. The duration of each such Interest Period shall be one, two, three or six months, as the Company may select; provided, however, that:
(i) the duration of any Interest Period which commences before the Termination Date and would otherwise end after the Termination Date shall end on the Termination Date;
(ii) the duration of any Interest Period which would otherwise end on a day later than the third Business Day following the last day of the sixth month following the date of the Borrowing resulting in such Eurodollar Rate Advance shall end on such day (such date the "REQUIRED CONVERSION DATE" for such Advance);
(iii) Interest Periods commencing on the same date for Eurodollar Advances resulting from the same Borrowing shall be of the same duration; and
(iv) whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next succeeding Business Day, unless such extension would cause the last day of such Interest Period to occur in the next following calendar month, in which event the last day of such Interest Period shall occur on the next preceding Business Day.
"INTEREST RATE ADJUSTMENT DATE" has the meaning specified in the Note Indenture.
"LEGAL REQUIREMENT" means any law, statute, ordinance, decree, requirement, order, judgment, rule or regulation (or interpretation of any of the foregoing) of, and the terms of any license or permit issued by, any Governmental Authority.
"LIBOR RESERVE PERCENTAGE" of any Bank for the Interest Period for any Eurodollar Rate Advance means the reserve percentage applicable during such Interest Period (or if more than one such percentage shall be so applicable, the daily average of such percentages for those days in such Interest Period during which any such percentage shall be so applicable) under regulations
issued from time to time by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, without limitation, any emergency, supplemental or other marginal reserve requirement) for such Bank with respect to liabilities or assets consisting of or including Eurocurrency Liabilities having a term equal to such Interest Period.
"LIEN" means any mortgage, pledge, charge, encumbrance, security interest, collateral assignment or other lien or restriction of any kind, whether based on common law, constitutional provision, statute or contract, and shall include reservations, exceptions, encroachments, easements, rights-of-way, covenants, conditions, restrictions, leases and other title exception (including any conditional sale or other title retention agreement, any financing lease involving substantially the same economic effect as any of the foregoing and filing of any financing statement under the Uniform Commercial Code or comparable law of any jurisdiction).
"LIQUIDITY PROVIDER NOTES" means Purchased Notes issued in the form provided therefor in the Note Indenture.
"MAJORITY BANKS" means at any time Banks holding at least 66-2/3% of the Commitments.
"MAXIMUM RATE" means that rate of interest equal to fifteen percent (15%) per annum or such higher rate as may be established from time to time by the Board of Directors of the Company as the maximum rate of interest payable by the Company hereunder.
"MOODY'S" shall mean Moody's Investors Service, Inc., or any successor thereto.
"MOODY'S RATING" shall mean, on any date of determination, the debt rating most recently announced by Moody's with respect to the Senior Secured Indebtedness of the Company.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in Section 4001(a)(3) of ERISA.
"MULTIPLE EMPLOYER PLAN" means an employee benefit plan, other than a Multiemployer Plan, subject to Title IV of ERISA to which the Company or any ERISA Affiliate, and one or more employers other than the Company or an ERISA Affiliate, is making or accruing an obligation to make contributions or, in the event that any such plan has terminated, to which the Company or any ERISA Affiliate made or accrued an obligation to make contributions during any of the five plan years preceding the date of termination of such plan.
"NOTE" means any 1993 Series B Note Due 2033, issued by the Company pursuant to the Note Indenture, and initially sold by, to or through Morgan Stanley & Co. Incorporated, Citicorp Securities, Inc. and Lehman Brothers Inc.
"NOTE INDENTURE" has the meaning specified in the Preliminary Statement.
"NOTICE OF FAILED REMARKETING AND BORROWING REQUEST" has the meaning
specified in
Section 3.01.
"OFFICER'S CERTIFICATE" means a certificate signed by the Chairman of the Board, the President, any Vice President, the Treasurer, Assistant Treasurer, the Secretary or an Assistant Secretary of the Company and delivered to the Administrative Agent for the benefit of the Banks.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor thereto.
"PERCENTAGE" means, for any Bank on any date of determination, the percentage obtained by dividing such Bank's Commitment on such date by the total of the Commitments on such date, and multiplying the quotient so obtained by 100%.
"PERSON" means an individual or a corporation, partnership, limited liability company, trust, incorporated or unincorporated association, joint venture, government (or an agency or political subdivision thereof) or any entity of any kind.
"PLAN" means an employee benefit plan (other than a Multiemployer Plan) maintained for employees of the Company or any ERISA Affiliate and covered by Title IV of ERISA.
"PLAN TERMINATION EVENT" means (i) a "Reportable Event" described in
Section 4043 of ERISA and the regulations issued thereunder (other than a
Reportable Event not subject to the provision for 30-day notice to the PBGC
under such regulations), or (ii) the withdrawal of the Company or any ERISA
Affiliate from a Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA, or (iii) the filing of a
notice of intent to terminate a Plan or the treatment of a Plan amendment as a
termination under Section 4041 of ERISA, or (iv) the institution of proceedings
to terminate a Plan by the PBGC, or (v) any other event or condition which might
constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan.
"PLEDGED BOND" has the meaning specified in the Preliminary Statement.
"PROPERTY" means any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible.
"PROSPECTUS" means the Prospectus relating to the Notes, dated October 6, 1993, as supplemented by the Prospectus Supplement, dated October 6, 1993, and the Prospectus Supplement, dated August 15, 1996, and as further amended, supplemented or otherwise modified from time to time, together with the documents incorporated therein by reference.
"PURCHASED NOTE" means any Note purchased by any Remarketing Agent with the proceeds of an Advance.
"RELATED DOCUMENTS" means this Agreement, the Note Indenture, the Notes, the Remarketing Agreement, the Mortgage, and any other agreement or instrument relating hereto or thereto.
"REMARKETING AGENT" means each Person serving in the capacity of Remarketing Agent pursuant to the Remarketing Agreement (including, without limitation, any Standby Remarketing Agent), which initially shall be Lehman Brothers Inc., Banc One Capital Markets, Inc. and Barclays Capital Inc., and each such Person's successors and assigns.
"REMARKETING AGREEMENT" means the Remarketing Agreement, dated as of October 29, 1999, as amended, supplemented or otherwise modified from time to time, among the Company, Lehman Brothers Inc., Banc One Capital Markets, Inc. and Barclays Capital Inc., and any similar such agreement by the Company with any successor Remarketing Agent.
"REQUIRED CONVERSION DATE" has the meaning specified in the definition of "Interest Period" set forth in this Section 1.01.
"S&P" shall mean Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc., or any successor thereto.
"S&P RATING" shall mean, on any date of determination, the debt rating most recently announced by S&P with respect to the Senior Secured Indebtedness of the Company.
"SECURITIES LAWS" means all Federal and state laws applicable to the sale of Notes or other securities, including, without limitation, the Securities Act of 1933, as amended, and all rules, regulations and administrative interpretations thereof; provided, however, that the term "Securities Laws" does not include the Glass-Steagall Act of 1933, as amended, or any rules, regulations or administrative interpretations thereof.
"SENIOR SECURED INDEBTEDNESS" of the Company means mortgage bonds of the Company issued under the Mortgage or, if at any relevant time no such mortgage bonds shall be outstanding, long-term senior secured, non-credit enhanced debt of the Company outstanding at such time carrying the highest applicable ratings assigned by any nationally recognized rating organizations in the United States to any such senior debt of the Company at such time.
"STANDBY REMARKETING AGENT" means any Person designated as a Standby Remarketing Agent by the Company or otherwise serving in such capacity pursuant to the Remarketing Agreement.
"TERMINATION DATE" means the earlier to occur of October 24, 2000, as such date may be extended pursuant to Section 2.04, and the date of termination in whole of the Commitments pursuant to Section 2.02(b) or 7.02.
"TRUSTEE" means Bankers Trust Company, as trustee under the Note Indenture, and any successor thereto.
"UNREMARKETED NOTES" means any Notes tendered for remarketing, but not successfully remarketed, in connection with the occurrence of a Failed Remarketing.
SECTION 1.02. COMPUTATION OF TIME PERIODS. In this Agreement in the computation of periods of time from a specified date to a later specified date, the word "from" means "from and including" and the words "to" and "until" each means "to but excluding".
SECTION 1.03. ACCOUNTING TERMS. All accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles consistently applied, except as otherwise stated or defined herein. All accounting terms shall be construed taking into account changes in generally accepted accounting principles mandated by the Financial Accounting Standards Board or any similar accounting authority of comparable standing.
ARTICLE II
COMMITMENTS; FAILED REMARKETINGS; PURCHASED NOTES
SECTION 2.01. THE COMMITMENTS. Each Bank severally agrees, on the terms
and conditions hereinafter set forth, to make Advances for the account of the
Company to one or more applicable Remarketing Agents for the purchase of
Unremarketed Notes, as provided herein, from time to time on any Interest Rate
Adjustment Date (as defined in the Note Indenture) during the period from the
date hereof until the Termination Date in an aggregate amount that, when added
to the aggregate outstanding principal amount of all Advances theretofore made
by such Bank and the principal amount of all Purchased Notes then outstanding to
such Bank, shall not exceed at any time outstanding the amount set opposite such
Bank's name on Schedule I hereto, as such amount may be reduced pursuant to
Section 2.02 (such Bank's "COMMITMENT"). Each Borrowing shall consist of
Advances made or Converted on the same day by the Banks ratably according to
their respective Commitments.
SECTION 2.02. REDUCTION OF THE COMMITMENTS.
(a) The Company may, upon at least five Business Days' notice to the Administrative Agent, terminate in whole or reduce ratably in part the unused portions of the respective Commitments of the Banks; provided, however, that any such partial reduction shall be in the aggregate amount of $5,000,000, or an integral multiple of $1,000,000 in excess thereof. Commitments terminated or reduced by the Company hereunder may not be reinstated.
(b) The Administrative Agent shall promptly notify the Banks upon receipt of any notification from the Company of one or more amendments to or modifications of any Related Documents. Within ten Business Days following receipt by the Banks of any such notification from the Administrative Agent, the Majority Banks may elect, upon 30 days' prior notice to the Company, to terminate in whole or reduce ratably in part their Commitments; provided, however, that any such partial reduction shall be in the aggregate amount of $5,000,000, or an integral multiple of $1,000,000 in excess thereof.
SECTION 2.03. FAILED REMARKETINGS; PURCHASES OF PURCHASED NOTES; GRANT OF AUTHORITY.
(a) The Company hereby irrevocably authorizes and directs each Remarketing Agent to (i) notify the Administrative Agent and the Company by 12:00 noon (New York City time) upon the occurrence of any Failed Remarketing involving Unremarketed Notes tendered to that Remarketing Agent, and (ii) request and receive the proceeds of Advances made by the Banks hereunder, and apply such proceeds for the purpose of purchasing such Unremarketed Notes at a price equal to 100% of the outstanding principal amount thereof. The authorization of each Remarketing Agent by the Company pursuant to this subsection is coupled with an interest and is irrevocable.
(b) Upon (and only upon) receipt by the Trustee of (i) the proceeds of Advances and (ii) all accrued and unpaid interest, if any, due from the Company with respect to Unremarketed Notes subject to a Failed Remarketing, the applicable Remarketing Agent, in accordance with the terms and conditions of the Remarketing Agreement, will (A) make or cause the Trustee to make payment to the DTC Participant (as defined in the Note Indenture) of each tendering Beneficial Owner of such Unremarketed Notes, by book entry through DTC against delivery of such Beneficial Owner's tendered Notes, of the purchase price of such tendered Notes, and (B) arrange or cause the Trustee to arrange for the crediting through DTC for the account of the Administrative Agent (or such other account or accounts at DTC as the Administrative Agent may direct) of such Unremarketed Notes, which shall be registered in the name of the Administrative Agent or its nominee for the ratable benefit of the Banks, and which shall be Purchased Notes issued in the form of one or more Liquidity Provider Notes in accordance with the terms of this Agreement and the Note Indenture.
SECTION 2.04. EXTENSION OF TERMINATION DATE. Unless the Commitments shall have been terminated in whole or an Event of Default or an event which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and then be continuing, at least 30 days but not more than 60 days prior to the then-effective Termination Date, the Company, by written notice to the Administrative Agent, may request the Banks to consent to an extension of the Termination Date to the last Business Day occurring not more than 364 days after the Termination Date then in effect. Each Bank may, in its sole and absolute discretion, determine whether to consent to such request and shall notify the Administrative Agent of its determination not earlier than 30 days prior to the then-effective Termination Date. Failure by any Bank to respond by the tenth day prior to the then-effective Termination Date shall be deemed to be a denial of the Company's request by such Bank. If such request shall have been consented to by all of the Banks, the Administrative Agent shall notify the Company in writing of such Banks' unanimous consent, and such extension shall become effective upon the then-effective Termination Date if the Company shall have delivered (on or prior to the then-effective Termination Date) to the Administrative Agent and each Bank, a certificate, dated on or as of the then-effective Termination Date, of a duly authorized officer of the Company as to the accuracy, both before and after giving effect to such proposed extension, of the representations and warranties set forth in Section 5.01, and as to the absence, both before and after giving effect to such proposed extension, of any Event of Default or event which with the giving of notice of or the passage of time, or both, would constitute an Event of Default.
SECTION 2.05. COMPANY MANDATORY AND OPTIONAL REPURCHASE OF PURCHASED NOTES.
(a) On the Termination Date, whether scheduled or resulting from the termination in whole of the Commitments pursuant to Section 2.02(b) or 7.02, and on any date on which the interest rate applicable to any Advance would exceed the Maximum Rate pursuant to Section 3.04, the Company shall be required to purchase all outstanding Purchased Notes from the Banks; provided, however, if and for so long as (i) no Event of Default shall have occurred and be continuing and (ii) the interest rate applicable to any Advance shall not have exceeded the Maximum Rate, the Company may, by written notice delivered to the Administrative Agent no less than 5 Business Days prior to the Termination Date (which notice shall be promptly provided to each Bank by the Administrative Agent), extend, for a period of up to one year following the date of any Borrowing resulting in the purchase of Purchased Notes, the date for the performance of its obligation to purchase such Purchased Notes from the Banks under this subsection (a); provided, further, that in the event of such extension, the Facility Fee and interest shall continue to be payable on the outstanding principal amount of such Purchased Notes in accordance with the Purchased Notes and this Agreement..
(b) The Company may, at its option, purchase all outstanding Purchased Notes from the Banks at any time prior to being required to do so pursuant to clause (a) of this Section 2.05 upon written notice to the Administrative Agent not less than three (3) Business Days prior to the date of such purchase; provided, however, that no Bank shall be required to tender any Purchased Note to the Company for any such purchase unless (i) in the opinion of such Bank in its sole and absolute discretion, (A) such tender and purchase would not violate any material law, rule or regulation applicable to such Bank at the time of such tender and purchase and (B) such tender and purchase of such Purchased Notes will not violate any Securities Laws in effect at such time, and (ii) such Bank shall have received, in form and substance satisfactory to such Bank in its sole and absolute discretion, an opinion of counsel to the Company that all necessary actions shall have been taken in order that such tender and purchase will be in compliance with all applicable Securities Laws in effect at such time, and as to such other matters as such Bank may reasonably request.
(c) Any purchase by the Company of Purchased Notes from the Banks pursuant to this Section 2.05 shall be made without recourse to or warranty from the Banks, for a price equal to 100% of the outstanding principal amount thereof plus (i) all accrued and unpaid interest, if any, thereon and (ii) any payment required to be made pursuant to Section 3.11. The payment of the purchase price for the Purchased Notes by the Company shall not be contingent on any receipt by the Company of the proceeds of any subsequent remarketing of such Purchased Notes. Such price shall be paid by crediting the account of the Administrative Agent at DTC (or such other account or accounts at DTC as the Administrative Agent may direct) with immediately available funds, in return for which the Administrative Agent or its nominee will instruct DTC to credit the account of the Company at DTC (or such other account or accounts at DTC as the Company may direct) with the Purchased Notes.
SECTION 2.06. REMARKETING OF PURCHASED NOTES. Notwithstanding any provision of
this Agreement, any Related Document, or any other agreement or instrument
whatsoever to the contrary, no Bank shall be required to tender any Purchased
Note to any Remarketing Agent for remarketing (and no Purchased Note shall be
deemed to have been tendered to a Remarketing Agent for remarketing pursuant to
the provisions of such Purchased Note or otherwise) unless, (i) in the opinion
of such Bank in its sole and absolute discretion, (A) such tender and
remarketing would not violate any material law, rule or regulation applicable to
such Bank at the time of such tender and remarketing and (B) such tender and
remarketing will not violate any Securities Laws in effect at such time, and
(ii) such Bank shall have received, in form and substance satisfactory to such
Bank in its sole and absolute discretion, an opinion of counsel to the Company
that all necessary actions shall have been taken in order that such tender and
remarketing will be in compliance with all applicable Securities Laws as in
effect at such time and as to such other matters as such Bank may reasonably
request. Each Bank shall promptly notify the Company and each Remarketing Agent
upon its receipt in accordance with the preceding sentence of the required legal
opinion. The Company hereby agrees (1) to indemnify each Bank, its shareholders,
affiliates, officers, directors, employees and agents from and against any and
all claims, damages, losses, liabilities and expenses that may be incurred by or
asserted against any of such parties with respect to any untrue statement or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in any offering document filed with the
Securities and Exchange Commission or otherwise used in connection with the
remarketing of Purchased Notes tendered by such Bank to the applicable
Remarketing Agents and (2) in the event that the foregoing indemnification shall
be unavailable under applicable Securities Laws, that the Company and such Bank
shall each contribute to the satisfaction of any such claims, damages, losses,
liabilities and expenses in proportion to their relative benefits received from
the offering of the Notes (provided, that the relative benefits from any
remarketing shall be deemed to be such that such Bank shall be responsible for
that portion of the aggregate claims, damages, losses, liabilities and expenses
represented by the ratio of the interest earned by such Bank on Purchased Notes
included in such remarketing to the aggregate principal amount of all Notes
outstanding at the time of such remarketing, and the Company shall be
responsible for the balance). Nothing in this Section 2.06 shall in any way
impair the Company's obligations to repurchase Purchased Notes pursuant to
Section 2.05(a), above. The Company's indemnification obligations under this
Section 2.06 shall survive the repayment of all amounts owing to the
Administrative Agent and the Banks under the Related Documents and the
termination of the Commitments.
ARTICLE III
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 3.01. MAKING THE ADVANCES.
(a) Each Borrowing shall consist solely of Base Rate Advances and shall be made on notice, given not later than 12:00 noon (New York City time) on the Interest Rate Adjustment Date of the proposed Borrowing, by the applicable Remarketing Agent to the Administrative Agent (with a copy to the Company), which shall give to each Bank prompt notice thereof by telephone or telecopier, telex or cable. Each such notice (a "NOTICE OF FAILED REMARKETING AND
BORROWING REQUEST") shall be by telephone or telecopier, confirmed in writing, in substantially the form of Exhibit A hereto, and shall (i) specify the principal amount of Unremarketed Notes tendered to the applicable Remarketing Agent in the Failed Remarketing, (ii) confirm that the applicable Remarketing Agent has received, or has informed the Company of its need to receive, from the Company all accrued and unpaid interest on such Unremarketed Notes, and (iii) identify the requested date and aggregate amount of the requested Borrowing. Each Bank shall, before 2:00 P.M. (New York City time) on the date of such Borrowing, make available for the account of its Domestic Lending Office to the Administrative Agent at its address referred to in Section 9.02, in same day funds, such Bank's ratable portion of such Borrowing. Subject to the fulfillment of the applicable conditions set forth in Article IV, promptly following receipt of such funds by the Administrative Agent, but no later than 3:00 p.m. (New York City time) on the date of such Borrowing, the Administrative Agent will transfer, in same-day funds, such funds to such account as may from time to time be identified in a notice delivered by the Trustee to the Administrative Agent (with copies of such notice to the Borrower and the Remarketing Agents).
(b) Unless the Administrative Agent shall have received notice from a Bank prior to the date of any Borrowing that such Bank will not make available to the Administrative Agent such Bank's ratable portion of such Borrowing, the Administrative Agent may assume that such Bank has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with subsection (a) of this Section 3.01 and the Administrative Agent may, in reliance upon such assumption, make available to the applicable Remarketing Agent on such date a corresponding amount. If and to the extent that such Bank shall not have so made such ratable portion available to the Administrative Agent, such Bank and the Company severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the applicable Remarketing Agent until the date such amount is repaid to the Administrative Agent, at (i) in the case of the Company, the interest rate applicable at the time to the Purchased Notes purchased with the proceeds of the Advances comprising such Borrowing (or, if no Purchased Notes were purchased with such proceeds, the interest rate applicable at the time to Advances comprising such Borrowing), and (ii) in the case of such Bank, the Federal Funds Effective Rate. If such Bank shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Bank's Advance as part of such Borrowing for purposes of this Agreement.
(c) The failure of any Bank to make the Advance to be made by it as part of any Borrowing shall not relieve any other Bank of its obligation, if any, hereunder to make its Advance on the date of such Borrowing, but no Bank shall be responsible for the failure of any other Bank to make the Advance to be made by such other Bank on the date of any Borrowing.
SECTION 3.02. FEES.
(a) The Company agrees to pay to the Administrative Agent for the account of each Bank a facility fee (the "FACILITY FEE") at a rate per annum equal to the Applicable Rate in effect from time to time on the average daily amount of such Bank's Commitment (regardless of usage) from the date hereof, in the case of each Bank listed on the signature pages hereto, and from the effective date specified in the Assignment and Acceptance substantially in the form of Exhibit B hereto pursuant to which it became a Bank pursuant to Section 9.06 hereof, in the case of any
other Bank, until the Termination Date, payable on the last day of each March, June, September and December during the term of such Bank's Commitment, commencing December 31, 1999, and on the Termination Date.
(b) The Company agrees to pay the Administrative Agent, for its own account, such fees at such times and in such amounts as agreed upon in a letter agreement between the Company and the Administrative Agent (or as otherwise agreed in writing by the Company and the Administrative Agent from time to time). The fees described in this Section 3.02(b) shall not be refundable under any circumstances.
SECTION 3.03. REPAYMENT; PREPAYMENTS.
(a) The Company shall repay the unpaid principal amount of each Advance made by each Bank in accordance with the terms of the Purchased Notes acquired with the proceeds of such Advance. The purchase of a Purchased Note with the proceeds of any Advance, coupled with the crediting through DTC for the account of the Administrative Agent or its nominee of such Purchased Note, shall, for all purposes, be deemed to constitute repayment of the principal amount of such Advance.
(b) In the event that Purchased Notes are not, for any reason, purchased with the proceeds of any Advance and credited through DTC for the account of the Administrative Agent or its nominee, such Advance shall become immediately due and payable by the Company hereunder, together with interest thereon, as hereinafter provided.
(c) If and to the extent that the aggregate principal amount of Advances owed to the Banks on any date shall exceed the aggregate amount of the Commitments on such date, the Company shall prepay on such date, either directly or by effecting purchases of Purchased Notes, an amount at least equal to such excess.
SECTION 3.04. INTEREST. The Company shall pay interest on the unpaid principal amount of each Advance made by each Bank from the date of such Advance until such principal amount shall be paid in full, at the following interest rates per annum:
(a) BASE RATE ADVANCES. If such Advance is a Base Rate Advance (including, without limitation, a Base Rate Advance Converted from a Eurodollar Rate Advance), a rate per annum equal at all times to the sum of the Base Rate in effect from time to time plus the Applicable Rate. Such interest shall be payable by the Company on the last day of each March, June, September and December (or on such other dates as the Company and the Banks may agree from time to time), commencing on the first such date to occur following the date hereof as the case may be, and shall be payable on the Termination Date, any date of Conversion of such Base Rate Advance into a Eurodollar Rate Advance and, as provided in subsection (d), below, on any other date on which the Purchased Notes purchased with such Advance shall be remarketed by a Remarketing Agent.
(b) EURODOLLAR RATE ADVANCES. If such Advance is a Eurodollar Rate Advance, a rate per annum equal at all times during the Interest Period for such Eurodollar Rate Advance to the
sum of the Eurodollar Rate for such Interest Period plus the Applicable Rate, payable on the last day of such Interest Period (and, in the case of any Interest Period of six months, on the last day of the third month of such Interest Period).
(c) OVERDUE PRINCIPAL PAYMENTS. Notwithstanding the foregoing, any amount of principal of any Advance which is not paid when due (whether at stated maturity, by acceleration or otherwise) shall bear interest, from the date on which such amount is due until such amount is paid in full, payable on demand, at a rate per annum equal at all times to the greater of (i) 2.0% per annum above the Base Rate in effect from time to time and (ii) 2.0% per annum above the rate per annum required to be paid on such Advance immediately prior to the date on which such amount became due; provided, however, that at no time shall the interest rate per annum applicable to the Advances exceed the Maximum Rate. The Company promptly shall repurchase Purchased Notes purchased with any Advance pursuant to Section 2.05(a) if the interest rate applicable to such Advance would exceed the Maximum Rate but for the prohibition contained in the preceding sentence.
(d) INTEREST PAYMENTS ON PURCHASED NOTES. This Agreement constitutes the entire agreement of the Company and the Banks with respect to the interest rates and interest payment terms applicable to any Purchased Notes. All payments of interest by the Company with respect to and in accordance with the terms of any Purchased Note and this Agreement shall, for all purposes, satisfy the obligations of the Company to pay such interest on the unpaid principal amount of the Advance which was utilized by the applicable Remarketing Agent to purchase such Purchased Note. The Company shall pay all accrued and unpaid interest on the unpaid principal amount of each Purchased Note prior to any remarketing thereof by a Remarketing Agent.
SECTION 3.05. CONVERSION OF ADVANCES.
(a) Subject to subsections (c) and (d) below, the Company may on any
Business Day, upon notice given to the Administrative Agent not later than 11:00
A.M. (New York City time) on the third Business Day prior to the date of the
proposed Conversion and subject to the provisions of Sections 3.08, 3.12 and
4.02, Convert all Advances of one Type resulting from the same Borrowing into
Advances of another Type or, in the case of Eurodollar Rate Advances, select a
new or renew the same Interest Period for such Eurodollar Rate Advances;
provided, however, that any Conversion of Eurodollar Rate Advances into Base
Rate Advances shall be made on, and only on, the last day of an Interest Period
for such Eurodollar Rate Advances. Each such notice of a Conversion shall
specify (i) the date of such Conversion, (ii) the Advances to be Converted, and
(iii) if such Conversion is into, or with respect to, Eurodollar Rate Advances,
the duration of the Interest Period for such Eurodollar Rate Advances.
(b) If the Company shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "INTEREST PERIOD" in Section 1.01 and subsection
(a) above, or upon the occurrence and during the continuation of an Event of
Default, the Administrative Agent will forthwith so notify the Company and the
Banks and such Advances will automatically, on the last day of the then existing
Interest Period therefor, Convert into Base Rate Advances.
(c) Any Eurodollar Rate Advance outstanding on the Required Conversion Date for such Eurodollar Rate Advance shall be Converted to a Base Rate Advance on such day; provided, however, that if such Conversion would result in a reduction of the interest rate per annum payable by the Company with respect to such Advance, the Company and the Banks shall negotiate a substitute interest rate to apply to such Eurodollar Rate Advance following such Conversion to a Base Rate Advance to their mutual satisfaction (which substitute interest rate shall be an all-in rate not lower than the rate applicable to such Eurodollar Rate Advance immediately prior to such substitution).
(d) No Base Rate Advance shall be Converted to a Eurodollar Rate Advance following the Required Conversion Date with respect thereto.
SECTION 3.06. INCREASED COSTS; CAPITAL ADEQUACY.
(a) In the event that after the date hereof the implementation of or any change in any law or regulation, or any guideline or directive (whether or not having the force of law) or the interpretation or administration thereof, in each case by any court, central bank or administrative or governmental authority charged with the administration thereof shall:
(i) subject any Bank to any tax of any kind with respect to this Agreement or its Advances or the transactions contemplated hereby or shall change the basis of taxation of such Bank (other than a change in the rate of tax on the overall net income of such Bank); or
(ii) impose, modify or deem applicable any reserve, special deposit, capital adequacy or similar requirement (other than, in the case of Eurodollar Rate Advances, any change by way of imposition or increase of reserve requirements, included in the LIBOR Reserve Percentage); or
(iii) impose on such Bank any other condition;
and as a result of any of the foregoing, in the sole opinion of such Bank, there shall be any increase in the cost to any Bank of agreeing to make or making, funding or maintaining Eurodollar Rate Advances, then the Company shall from time to time, upon demand by such Bank (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Bank additional amounts sufficient to compensate such Bank for such increased cost. A certificate as to the amount of such increased cost, submitted to the Company and the Administrative Agent by such Bank, shall be conclusive and binding for all purposes, absent manifest error.
(b) In the event that the application of any existing law, rule, regulation or the interpretation thereof by any court, central bank or governmental authority or any adoption of or change in any applicable law, rule or regulation or the interpretation thereof by any court or governmental authority or the compliance by any Bank with any request, guideline, order or directive of any court, central bank or governmental authority, in each case whether or not having the force of law, or the introduction of any such new laws, rules or regulations (including, without
limitation, the issuance of any final rule, regulation or guideline) shall impose, modify or deem applicable capital adequacy or similar requirements respecting assets (funded or contingent), of, or credit extended by or commitments to extend credit by, any Bank, or otherwise deem applicable to the obligations of any Bank under this Agreement, capital adequacy or similar requirements, and the net result of any of the foregoing is to reduce the rate of return on such Bank's capital as a consequence of its obligations hereunder to a level below that which such Bank would have received but for the imposition of such requirement (taking into consideration such Bank's capital adequacy policies), then the Company shall from time to time upon the demand by such Bank (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Bank additional amounts to compensate such Bank for such reduced rate of return. A certificate as to the calculation of such additional amounts submitted by such Bank to the Company and the Administrative Agent shall be conclusive and binding for all purposes absent manifest error.
SECTION 3.07. ADDITIONAL INTEREST ON EURODOLLAR RATE ADVANCES. The Company shall pay to each Bank, so long as such Bank shall be required under regulations of the Board of Governors of the Federal Reserve System to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency Liabilities, additional interest on the unpaid principal amount of each Eurodollar Rate Advance of such Bank, from the date of such Advance until such principal amount is paid in full, at an interest rate per annum equal at all times to the difference obtained by subtracting (i) the Eurodollar Rate for the Interest Period for such Eurodollar Rate Advance, from (ii) the rate obtained by dividing such Eurodollar Rate by a percentage equal to 100% minus the LIBOR Reserve Percentage of such Bank for such Interest Period or such term, as the case may be, payable on each date on which interest is payable on such Advance. Such additional interest shall be determined by such Bank and notified to the Company through the Administrative Agent.
SECTION 3.08. INTEREST RATE DETERMINATION. The Administrative Agent shall determine the Eurodollar Rate from time to time in accordance with the provisions of this Agreement. If, for any reason, the Administrative Agent in its sole discretion determines that it is unable to so determine the Eurodollar Rate, the right of the Company to select Eurodollar Rate Advances shall be suspended until the Administrative Agent shall notify the Company and the Banks that the circumstances causing such suspension no longer exist, and such Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period therefor, Convert into a Base Rate Advance.
SECTION 3.09. PAYMENTS AND COMPUTATIONS.
(a) The Company shall make each payment hereunder not later than 11:00
A.M. (New York City time) on the day when due in U.S. dollars to the
Administrative Agent at its address referred to in Section 9.02 in same day
funds. Upon receipt of any payments of principal, interest, facility fees or
other amounts payable hereunder or under the Purchased Notes, the Administrative
Agent will promptly cause to be distributed like funds relating to such payments
ratably (other than amounts payable pursuant to Section 3.06) to the Banks for
the account of their respective Applicable Lending Offices, and like funds
relating to the payment of any other amount payable to any Bank to such Bank,
for the account of its Applicable Lending Office, in each case to be
applied in accordance with the terms of this Agreement.
(b) All computations of interest based on the Base Rate shall be made by the Administrative Agent on the basis of a year of 365 or 366 days, as the case may be, and all computations of interest based on the Eurodollar Rate and all computations of facility fees shall be made by the Administrative Agent on the basis of a year of 360 days, in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or facility fees are payable. Each determination by the Administrative Agent of an interest rate hereunder shall be conclusive and binding for all purposes, absent manifest error.
(c) Whenever any payment hereunder shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest or facility fee, as the case may be; provided, however, if such extension would cause payment of interest on or principal of Eurodollar Rate Advances to be made in the next following calendar month, such payment shall be made on the next preceding Business Day.
(d) Unless the Administrative Agent shall have received notice from the Company prior to the date on which any payment is due to the Banks hereunder or under the Purchased Notes that the Company will not make such payment in full, the Administrative Agent may assume that the Company has made such payment in full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon such assumption, cause to be distributed to each Bank on such due date an amount equal to the amount then due such Bank. If and to the extent the Company shall not have so made such payment in full to the Administrative Agent, each Bank shall repay to the Administrative Agent forthwith on demand such amount distributed to such Bank together with interest thereon, for each day from the date such amount is distributed to such Bank until the date such Bank repays such amount to the Administrative Agent, at the Federal Funds Effective Rate.
SECTION 3.10. SHARING OF PAYMENTS, ETC. If any Bank shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of the Advances made by it or the Purchased Notes held for its benefit (other than pursuant to Section 3.06 or 3.07) in excess of its ratable share of payments on account of the Advances or the Purchased Notes obtained by all the Banks, such Bank shall forthwith purchase from the other Banks such participations in the Advances made by them and the Purchased Notes held for their benefit as shall be necessary to cause such purchasing Bank to share the excess payment ratably with each of them; provided, however, that if all or any portion of such excess payment is thereafter recovered from such purchasing Bank, such purchase from each Bank shall be rescinded and such Bank shall repay to the purchasing Bank the purchase price to the extent of such recovery together with an amount equal to such Bank's ratable share (according to the proportion of (i) the amount of such Bank's required repayment to (ii) the total amount so recovered from the purchasing Bank) of any interest or other amount paid or payable by the purchasing Bank in respect of the total amount so recovered. The Company agrees that any Bank so purchasing a participation from another Bank pursuant to this Section 3.10 may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Bank were the direct creditor of the Company in the amount of such participation.
SECTION 3.11. FUNDING INDEMNITY. The Company agrees to indemnify and hold harmless the Administrative Agent and the Banks from any loss or expense which they or any of them may sustain or incur as a result of:
(a) the repayment or prepayment of any Eurodollar Rate Advance in whole or in part other than on the last day of the Interest Period applicable thereto; or
(b) the failure of the Company to pay the principal of or interest on any Advance when due (whether at stated maturity, upon acceleration or otherwise); or
(c) the failure of the Company to Convert any Base Rate Advance on the date specified for such Conversion in a notice delivered to the Administrative Agent by the Company pursuant to Section 3.05(a);
including but not limited to any such loss or expense arising from interest, fees or other amounts payable by the Administrative Agent or any of the Banks to lenders of funds obtained by them in order to make and maintain the Advances hereunder.
SECTION 3.12. ILLEGALITY. Notwithstanding any other provision of this Agreement, if any Bank shall notify the Administrative Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or any central bank or other governmental authority asserts that it is unlawful, for any Bank or its Eurodollar Lending Office to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances hereunder, (i) all Eurodollar Rate Advances shall be Converted into Base Rate Advances and (ii) the obligation of the Banks to make, or to Convert Base Rate Advances into, Eurodollar Rate Advances shall be suspended until the Administrative Agent shall notify the Company and the Banks that the circumstances causing such suspension no longer exist.
ARTICLE IV
CONDITIONS OF LENDING
SECTION 4.01. CONDITION PRECEDENT TO INITIAL ADVANCES. The obligation of each Bank to make its initial Advance is subject to the condition precedent that the Administrative Agent shall have received, on or before the date hereof, the following, each dated such date (except as otherwise provided herein), in form and substance satisfactory to the Administrative Agent and in sufficient copies for each Bank:
(a) Counterparts of this Agreement, duly executed and delivered by the Company, the Administrative Agent, the Banks listed on the signature pages hereto and each Remarketing Agent.
(b) Certified copies of the resolutions of the Board of Directors of the Company approving the Related Documents, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to the Related Documents and the transactions contemplated thereby.
(c) A certificate of the Secretary or an Assistant Secretary of the Company certifying the names and true signatures of the officers of the Company authorized to sign each Related Document and the other documents to be delivered hereunder.
(d) Copies of the Articles of Incorporation and by-laws of the Company, together with all amendments thereto, certified by the Secretary or an Assistant Secretary of the Company.
(e) An executed copy (or a duplicate copy thereof certified by the Company in a manner satisfactory to the Administrative Agent to be a true and correct copy) of the Remarketing Agreement, duly executed by the Company and each Remarketing Agent.
(f) An executed copy (or a duplicate copy thereof certified by the Company in a manner satisfactory to the Administrative Agent to be a true and correct copy) of the Note Indenture (including the Second Supplemental Indenture, dated as of September 15, 1993, as amended by the First Amendment to the Second Supplemental Indenture, dated as of August 15, 1996), duly executed by the Company and the trustee thereunder.
(g) An executed copy (or a duplicate copy thereof certified by the Company in a manner satisfactory to the Administrative Agent to be a true and correct copy) of the Mortgage (including the Supplemental Indenture dated as of September 15, 1993 thereto), duly executed by the Company and the trustee thereunder.
(h) A certified copy of the order of the Michigan Public Service Commission (the "MPSC ORDER") authorizing the issuance and sale of the Notes and the issuance and sale of the general and refunding mortgage bond under the Mortgage as security for the obligations of the Company under the Indenture.
(i) A favorable opinion of the Company's General Counsel, substantially in the form of Exhibit C hereto and as to such other matters as any Bank through the Administrative Agent may reasonably request.
(j) Copies of the Prospectus used in connection with the offering and remarketing of the Notes as in effect on such date, including any amendments or supplements thereto.
(k) Such other approvals, opinions and documents as the Majority Banks, through the Administrative Agent, may reasonably request as to the legality, validity, binding effect or enforceability of this Agreement or any Related Document or the financial condition, properties, operations or prospects of the Company.
SECTION 4.02. CONDITIONS PRECEDENT TO EACH BORROWING AND CONVERSION. The obligation of each Bank to make an Advance on the occasion of each Borrowing (including the initial Borrowing), and the obligation of each Bank to make each Conversion on the occasion
thereof, shall be subject to the further conditions precedent that on the date of such Borrowing or Conversion:
(a) the following statements shall be true (and each of the giving of the applicable Notice of Failed Remarketing and Borrowing Request and the making of such Advance, or the making of such Conversion, without prior correction by the Company, shall constitute a representation and warranty by the Company that, on the date of such Borrowing or Conversion, such statements are true):
(i) The representations and warranties contained in Section 5.01 of this Agreement (excluding subsections (f) and (h) thereof) are correct on and as of the date of such Borrowing or Conversion, as the case may be, before and after giving effect to such Borrowing and the application of the proceeds therefrom, or to such Conversion, as the case may be, as though made on and as of such date, and
(ii) No event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, or from such Conversion, as the case may be, which constitutes an Event of Default or would constitute an Event of Default but for the requirement that notice be given or time elapse or both;
(b) the Administrative Agent shall have received a Notice of Failed Remarketing and Borrowing Request, signed by a duly authorized officer of the applicable Remarketing Agent, dated the date of such Borrowing, or the appropriate notice of Conversion delivered by the Company pursuant to Section 3.05(a), with respect to such Conversion; and
(c) the Administrative Agent shall have received such other approvals, opinions or documents relating to the satisfaction of foregoing conditions as any Bank through the Administrative Agent may reasonably request.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.01. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and warrants as follows:
(a) The Company is a corporation duly formed, validly existing and in good standing under the laws of the State of Michigan. There is no other jurisdiction where the conduct of its business or the ownership of its Property requires the Company to qualify to do business. The Company has all requisite power and authority to conduct its business, to own its Properties, and to execute and deliver and perform all of its obligations under this Agreement and each of the other Related Documents to which it is a party.
(b) The execution, delivery and performance by the Company of this Agreement and the other Related Documents to which it is a party have been duly authorized by all necessary corporate action, and do not, and will not, contravene (i) any provision of the charter or by-laws
of the Company, (ii) law, or (iii) any contractual restriction binding on or affecting the Company, and do not result in or require the creation of any Lien (except pursuant to, or as contemplated by, this Agreement, the Note Indenture or the Mortgage) upon or with respect to any of its Properties.
(c) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Company of this Agreement or any other Related Document to which the Company is a party, except the MPSC Order, which has been duly obtained and is in full force and effect, and such other authorizations, approvals, actions and notices as have been duly obtained or made and are in full force and effect.
(d) This Agreement is, and each of the other Related Documents to which the Company is a party when delivered hereunder will be, legal, valid and binding obligations of the Company enforceable against the Company in accordance with their respective terms.
(e) Except and to the extent specifically described in written reports, copies of which have been furnished to the Banks, there is no pending or threatened action, investigation or proceeding before any court, governmental agency or arbitrator against or affecting the Company that would, if adversely determined, have a material adverse effect on the financial condition or operations of the Company or the ability of the Company to perform its obligations hereunder or under any of the other Related Documents to which it is, or is to be, a party, or that purports to affect the legality, validity or enforceability of this Agreement or any other Related Document.
(f) The information provided by the Company about itself and under the heading "The Company" in the Prospectus (the "COMPANY INFORMATION") was accurate on and as of the date of the Prospectus in all material respects for the purposes for which its use was authorized. The Company Information in the Prospectus does not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements made therein, in the light of the circumstances under which they are or were made and as of the date of the Prospectus, not misleading.
(g) The Company has filed all income tax returns and all other material tax returns that are required to be filed by it and has paid all taxes due pursuant to such returns or pursuant to any assessments received by it. The charges, accruals and reserves on the books of the Company in respect of taxes or other governmental charges are adequate in accordance with generally accepted accounting principles.
(h) The balance sheet of the Company as of December 31, 1998, and the related statements of income and cash flows of the Company for the Fiscal Year then ended, and the balance sheet of the Company as of June 30, 1999, and the related statements of income and cash flows of the Company for the three months then ended, copies of which have been furnished to the Administrative Agent for each Bank, fairly represent, subject, in the case of said balance sheet as at June 30, 1999, and of said statements of income and cash flows for the three months then ended, to year-end audit adjustments, the financial condition of the Company as of such dates and the periods ended on such dates, all in accordance with generally accepted accounting principles
consistently applied, and there has been no material adverse change in such condition or operations since June 30, 1999, except such as may have occurred in the ordinary course of business. The Company has no material liability, contingent or otherwise, including material liabilities for taxes, for which it has not provided adequate reserves in accordance with generally accepted accounting principles.
(i) The Company has good and marketable title to all of its Property reflected on the balance sheet of the Company as of June 30, 1999, as being owned by the Company, except for (A) such Property as has been disposed of in the ordinary course of business, (B) pollution control facilities being purchased by the Company under installment sales contracts and the undivided ownership interest of the Michigan Public Power Agency in a portion of the Belle River Power Plant, and (C) minor exceptions and minor defects, irregularities and deficiencies that do not materially impair the use of such Property for the purpose for which it is held by the Company.
(j) The Company is not in default under (and no event has occurred that with the lapse of time or notice or action by a third party could result in a default under) any instrument evidencing any Debt or under any agreement relating thereto, or any indenture, mortgage, deed of trust, security agreement, lease, franchise or other agreement or other instrument to which the Company is a party or by which the Company or any of its Property is subject to or bound.
(k) The Company is not in violation of any Legal Requirements to which the Company is subject, nor has the Company failed to obtain any licenses, permits, franchises, or other governmental authorizations necessary to the ownership of its Property or to the conduct of its business, which violation or failure to obtain materially adversely affects the business, prospects, profits, Property or condition (financial or otherwise) of the Company.
(l) The material Property used or to be used in the continuing operations of the Company is in good repair, working order and condition as is customary for a public utility.
(m) The Company is not an "investment company", or a company "controlled" by an "investment company" (within the meaning of the Investment Company Act of 1940, as amended). The Company is not a "holding company" but is an "affiliate" of a "holding company" (within the meaning of the Public Utility Holding Company Act of 1935, as amended ("PUHCA")), which holding company is exempt from the provisions of PUHCA, other than Section 9(a)(2) thereof, pursuant to Section 3(a)(1) thereof.
(n) No Plan Termination Event has occurred with respect to any Plan or Multiple Employer Plan. Each Plan established or maintained by the Company and its ERISA Affiliates is in compliance with all applicable provisions of ERISA, and the Company and all of its ERISA Affiliates have filed all reports required by ERISA and the Code to be filed with respect to each Plan. The Company has no knowledge of any event that could result in a liability of the Company or its ERISA Affiliates to the PBGC, whether under a Plan, a Multiemployer Plan, or otherwise. The Company and all of its ERISA Affiliates have met all requirements with respect to funding the Plans imposed by ERISA or the Code. There have not been any nor are there now existing any events or conditions that would permit any Plan to be terminated under circumstances that would cause the lien provided under Section 4068 of ERISA to attach to the Property of the
Company or its ERISA Affiliates. The value of the Plans' benefits guaranteed under Title IV of ERISA on the date hereof does not exceed the value of such Plans' assets allocable to such benefits as of the date of this Agreement. No "Prohibited Transaction" within the meaning of Section 406 of the Pension Reform Act, as amended, exists or will exist upon the execution and delivery of this Agreement or any Related Document.
(o) The Company carries insurance with reputable insurers or self insurance, as is customary, in respect of its Property.
(p) In addition to the representations and warranties contained in this Article V, all statements contained in any other Related Document or in any agreement, document, instrument or certificate delivered by or on behalf of the Company in connection with the transactions contemplated hereby and thereby shall constitute representations and warranties made by the Company hereunder. All representations and warranties made by or on behalf of the Company herein shall survive the delivery of this Agreement, and any investigation at any time made by or on behalf of the Administrative Agent or any Bank shall not diminish its rights to rely thereon.
(q) No part of the proceeds of the Advances or the Notes will be used directly or indirectly for the purpose of purchasing or carrying, or for payment in full or in part of Debt that was incurred for the purposes of purchasing or carrying, any margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(r) The Company is in substantial compliance with all Environmental Laws and no material Environmental Event has occurred.
ARTICLE VI
COVENANTS OF THE COMPANY
SECTION 6.01. AFFIRMATIVE COVENANTS. So long as the Banks shall have any Commitment under this Agreement, or the Company shall have an obligation to pay any amount to any Bank hereunder or under any Purchased Note, the Company will, unless the Majority Banks shall otherwise consent in writing:
(a) PRESERVATION OF CORPORATE EXISTENCE, ETC. Preserve and maintain its corporate existence and all rights, privileges and franchises necessary and desirable in the normal conduct of its business and in the performance of its obligations under the Related Documents and not dissolve or otherwise discontinue its existence or operations.
(b) COMPLIANCE WITH LAWS, ETC. Comply with all Legal Requirements applicable to the Company and its Property.
(c) PAYMENT OF TAXES, ETC. Pay and discharge before the same shall become delinquent (i) all taxes, assessments and governmental charges or levies imposed upon it or upon its Property and (ii) all lawful claims that, if unpaid, might by law become a lien upon the
Company's Property; provided, however, that the Company shall not be required to pay and discharge or cause to be paid and discharged any such tax, assessment, governmental charge, or claim to the extent that the amount, applicability, or validity thereof shall currently be contested in good faith by appropriate proceedings, so long as no tax sale can occur during such proceedings and the Company shall have established and shall maintain adequate reserves on its books for the payment of such amounts.
(d) VISITATION RIGHTS. At any reasonable time and from time to time, upon reasonable notice, permit the Administrative Agent or any agents or representatives thereof to examine and make copies of and abstracts from the records and books of account of, and visit the Properties of, the Company and to discuss the affairs, finances and accounts of the Company with any of its officers.
(e) KEEPING OF BOOKS. Keep proper books of record and account, in which full and correct entries shall be made of all financial transactions and the assets and business of the Company in accordance with generally accepted accounting principles consistently applied.
(f) MAINTENANCE OF PROPERTIES, ETC. Maintain and preserve all of its Properties that are used or useful in the conduct of its business in good working order and condition, ordinary wear and tear excepted.
(g) MAINTENANCE OF INSURANCE. Maintain insurance with responsible and reputable insurance carriers, or self-insurance as is customary, in such amounts and covering such risks as is usually carried by companies engaged in similar businesses and owning similar Properties in the same general areas in which the Company operates.
(h) PERFORMANCE AND COMPLIANCE WITH OTHER COVENANTS. Perform and comply in all material respects with each of the covenants binding on the Company set forth in the Note Indenture and the other Related Documents, as in effect on the date hereof, or as such covenants may hereafter be amended or supplemented in accordance with the terms of this Agreement or such Related Document.
(i) REPORTING REQUIREMENTS. Furnish to the Administrative Agent, with sufficient copies for each of the Banks, the following:
(i) as soon as possible and in any event within five days after the Company knows or has reason to know of the occurrence of an Event of Default or an event that, with the giving of notice or time lapse, or both, would constitute an Event of Default continuing on the date of such statement, an Officer's Certificate of the Company setting forth details of such Event of Default or event and the action that the Company proposes to take with respect thereto;
(ii) as soon as possible and in any event within five days after the Company knows or has reason to know of the occurrence of any material adverse change in the financial condition or operations of the Company, an Officer's Certificate of the Company setting forth details of such material adverse change and the action that the Company
proposes to take with respect thereto;
(iii) to the extent not otherwise to be disclosed by the Company in a report on Form 10-K, Form 10-Q or Form 8-K to be filed with the Securities and Exchange Commission, promptly after the commencement thereof, notice of all actions, suits and proceedings against the Company before any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, affecting the Company that may materially adversely affect the financial condition or operations or prospects of the Company;
(iv) as soon as available and in any event within 45 days after the end of each of the first three quarters of each Fiscal Year of the Company, financial statements of the Company as of the end of such quarter consisting of a balance sheet and the related statements of income and changes in cash flow of the Company (or consisting of such other financial information as is customary at the time of preparation of such financial statements) for the portion of the Fiscal Year ended at the end of such quarter, setting forth in the case of statements of income and cash flows in comparative form the figures for the corresponding quarter of the previous Fiscal Year, and, in the event such financial statements have not been prepared in accordance with generally accepted accounting principles consistently applied, such financial statements shall be accompanied by a statement of a responsible officer of the Company as to the reasons therefor; and if an Event of Default or event that with notice or lapse of time, or both, would constitute an Event of Default has occurred during such quarter and is continuing, such financial statements shall be accompanied by an Officer's Certificate of the Company containing a statement as to the nature thereof and the action that the Company proposes to take with respect thereto;
(v) as soon as available, and in any event within 90 days after the end of each Fiscal Year, a copy of the annual report for such year, including therein balance sheets of the Company as at the end of such Fiscal Year, an income statement, and a cash flow statement (or consisting of such other financial information as is customary at the time of preparation of such financial statements) for such Fiscal Year, setting forth in each case in comparative form the figures for the previous year, in each case certified by independent accountants of recognized standing, and if an Event of Default or an event that, with notice or lapse of time or both, would constitute an Event of Default, has occurred and is continuing, such annual report shall be accompanied by an Officer's Certificate of the Company as to the nature thereof and detailing the actions the Company proposes to take with respect thereto;
(vi) to the extent not otherwise to be disclosed by the Company in a report on Form 10-K, Form 10-Q or Form 8-K to be filed with the Securities and Exchange Commission, as soon as possible and in any event within five days after occurrence of any material Environmental Event, an Officer's Certificate of the Company setting forth the details of such material Environmental Event and the action that the Company proposes to take with respect thereto;
(vii) to the extent not otherwise to be disclosed by the Company in a report on Form 10-K, Form 10-Q or Form 8-K to be filed with the Securities and Exchange Commission, promptly upon becoming aware thereof, notice of any Plan Termination Event or any event or action that could result in the Company's or an ERISA Affiliate's complete withdrawal, partial withdrawal or secondary liability for withdrawal liability payments with respect to a Multiemployer Plan or a Multiple Employer Plan, together with an Officer's Certificate of the Company describing the event or the action taken and the reasons therefor;
(viii) promptly after the sending or filing thereof, copies of all material reports that the Company sends to its securityholders, and copies of all reports on Form 10-K, Form 10-Q or Form 8-K that the Company files with the Securities and Exchange Commission; and
(ix) such other information regarding the business, Property or the condition or operations, financial or otherwise, of the Company as the Administrative Agent may from time to time reasonably request.
(j) MAINTENANCE OF STATUS. Maintain its status as a public utility regulated by the Michigan Public Service Commission and the Federal Energy Regulatory Commission.
(k) ERISA. Maintain, and cause each of its ERISA Affiliates to maintain, Plan assets that are at least equal in value to Plan benefits guaranteed under Title IV of ERISA, and not permit any "Prohibited Transaction" within the meaning of Section 406 of ERISA to exist.
(l) FURTHER ASSURANCES. Execute and deliver, or cause to be executed and delivered, to the Administrative Agent from time to time, promptly upon request therefor, any and all other and further instruments, and take all further action, that may be necessary or that any Bank through the Administrative Agent may reasonably request, in order to cure any deficiency in the execution and delivery of, and to give full effect to, this Agreement or any Related Document to which it is a party, or to describe more fully particular aspects of any of the Company's agreements and undertakings provided in this Agreement or so intended to be. In addition, the Company will use all reasonable efforts to duly fulfill all Legal Requirements from time to time on or prior to such date as the same may become legally required.
(m) USE OF PROCEEDS. Use the proceeds of all Advances solely for the purchase of Unremarketed Notes pursuant to the terms and conditions of this Agreement and the other Related Documents.
(n) NOTIFICATION OF AMENDMENTS. Notify the Administrative Agent of any proposed amendment to or modification of any Related Document prior to the effective date of such amendment or modification.
(o) REMARKETING IN ACCORDANCE WITH APPLICABLE SECURITIES LAWS. In the event that the Company at any time shall remarket Purchased Notes purchased from the Banks pursuant to Section 2.06 of this Agreement, such remarketing shall be in full compliance with all applicable
Securities Laws.
SECTION 6.02. NEGATIVE COVENANTS. So long as the Banks shall have any Commitment under this Agreement, or the Company shall have any obligation to pay any amount to any Bank hereunder or under any Purchased Note, the Company will not, without the prior written consent of the Majority Banks:
(a) AMENDMENT OF NOTE INDENTURE OR LIQUIDITY PROVIDER NOTE. Enter into or consent to any amendment to or modification of the Note Indenture, as in effect on the date hereof, which amendment to or modification of the Note Indenture affects the form of Liquidity Provider Note attached as an exhibit to the Note Indenture or requires the consent of all Beneficial Owners.
(b) MERGER, CONSOLIDATION OR SALE OF ASSETS. Dissolve, sell or otherwise dispose of all or substantially all of its assets or consolidate with, or merge into, another corporation or permit one or more other corporations to consolidate with or merge into it; provided, however, that the Company may merge into, or consolidate with or transfer or otherwise dispose of substantially all of its assets to any other Person and any Person may merge into, or consolidate with, the Company provided in each case that (i) the Company has given the Administrative Agent prior written notice of its intention to consummate such a transaction setting forth the details thereof, (ii) immediately after giving effect thereto (A) no event shall occur and be continuing which constitutes an Event of Default or would, with the passage of time or giving of notice, or both, constitute an Event of Default and (B) the entity formed by or resulting from such consolidation shall have a Consolidated Net Worth at least equal to that of the Company prior to any such merger or consolidation and there otherwise shall have been no material adverse change in the consolidated financial position of the Company, (iii) the entity formed by any such consolidation or into which the Company shall be merged, or to which the Company's assets shall be transferred shall assume in a writing satisfactory to the Majority Banks the Company's obligations under this Agreement and the Related Documents to which the Company is a party, and (iv) in all cases the surviving entity or entity formed by such consolidation, or the entity to which assets shall be transferred, shall be a public utility regulated by a state Public Service Commission or the Federal Energy Regulatory Commission.
(c) ALTERNATE CREDIT FACILITY. Cause a substitute credit facility to be established for the Company without payment in full to the Banks of all obligations hereunder through and including the Termination Date.
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01. EVENTS OF DEFAULT. The occurrence of any of the following events shall be an "EVENT OF DEFAULT" hereunder:
(a) The Company shall fail to pay any amount payable hereunder or under any of the
other Related Documents on the date when due or shall fail to perform or observe any of the covenants and agreements contained in Section 6.01(i)(i) or Section 6.02; or
(b) Any representation or warranty made or deemed made by the Company (or any of its officers) herein or by the Company (or any of its officers) in connection with this Agreement or any of the other Related Documents shall prove to have been incorrect in any material respect when made or deemed made; or
(c) The Company shall fail to perform or observe any other term, covenant or agreement (other than a term, covenant, or agreement whose performance or observance is dealt with specifically elsewhere in this Section 7.01) contained in this Agreement on its part to be performed or observed and any such failure shall remain unremedied for 30 days after written notice thereof by the Administrative Agent to the Company; or
(d) (i) The Company shall fail to pay any Debt in excess of an aggregate amount of $10,000,000 (excluding Debt under this Agreement), or any interest or premium thereon, when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt, (ii) the Company shall fail to perform any term, covenant, agreement or condition on its part to be performed or observed under any agreement or instrument relating to any such Debt when required to be performed or observed, and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt, or (iii) any such Debt shall be accelerated or declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), prior to the stated maturity thereof; or
(e) The Company shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, or other similar official for it or any substantial part of its Property and, if instituted against the Company shall remain undismissed for a period of 30 days or an "order for relief" as defined in the United States Bankruptcy Reform Act of 1978, as amended (the "FEDERAL BANKRUPTCY CODE"), shall be rendered prior to the expiration of that 30-day period; or any judgment, writ, warrant of attachment or execution or similar process shall be issued or levied against any substantial part of the Property of the Company and shall not be released, vacated or fully bonded within ten Business Days after its issue or levy, or the Company shall take any action to authorize any of the actions set forth above in this subsection (e); or
(f) One or more judgments, decrees or orders for the payment of money the enforcement of which, in the aggregate, would have a material adverse effect on the financial condition, results of operations, operations, Property or prospects of the Company, shall be rendered against the Company, and either (i) enforcement proceedings shall have been commenced by any creditor upon any such judgment, decree or order, or (ii) there shall be any
period of 30 consecutive days during which a stay of enforcement of any such judgment, decree or order, by reason of a pending appeal or otherwise, shall not be in effect; or
(g) Any Plan Termination Event with respect to a Plan that the Administrative Agent determines in good faith might constitute grounds for the termination of any Plan or for the appointment of a trustee to administer any Plan shall have occurred, and, 10 days after notice thereof shall have been given by the Administrative Agent to the Company, (i) such Plan Termination Event (if correctable) shall not have been corrected, and (ii) the then present value of such Plan's vested benefits exceeds the then current value of assets accumulated in such Plan by an amount which the Administrative Agent determines in good faith could have a material adverse effect on the financial condition or operations of the Company; or
(h) The Company or any ERISA Affiliate shall receive a notice of liability or demand for payment with respect to a Multiemployer Plan or a Multiple Employer Plan that the Administrative Agent determines in good faith could have a material adverse effect on the financial condition or operations of such Person; or
(i) An Environmental Event shall have occurred that materially adversely affects the financial condition, business or operations of the Company; or
(j) Any provision of this Agreement shall at any time for any reason cease to be valid and binding on the Company, or shall be declared to be null and void, or the validity or enforceability thereof shall be contested by the Company, or a proceeding shall be commenced by any Governmental Authority seeking to establish the invalidity or unenforceability thereof, or the Company shall deny that it has any or further liability or obligation under this Agreement; or
(k) Any "Event of Default", however defined, under the Note Indenture or any other Related Document shall have occurred and be continuing; or
(l) Any other Related Document shall for any reason cease to be in full force and effect; or
(m) The security interest in and lien created under the Note Indenture on the general and refunding mortgage bond issued as security for the Notes under the Mortgage shall cease to be a valid and perfected first priority security interest and lien and such cessation shall be deemed to be material by the Administrative Agent.
SECTION 7.02. UPON AN EVENT OF DEFAULT. If any Event of Default shall
have occurred and be continuing beyond any applicable grace period, the
Administrative Agent (i) shall at the request, or may with the consent, of the
Majority Banks, by notice to the Company, declare the obligation of each Bank to
make Advances to be terminated, whereupon the same shall forthwith terminate, or
(ii) if any Purchased Notes are at the time outstanding, shall at the request,
or may with the consent, of the Majority Banks, give notice to the Company that
all outstanding Purchased Notes are subject to immediate repurchase by the
Company pursuant to this Agreement, at a price equal to the sum of the unpaid
principal amount thereof plus all interest accrued and unpaid thereon, whereupon
the Company shall have an obligation, which obligation
shall be immediately due and owing, absolutely and unconditionally, to effect such repurchase by paying such price to the Administrative Agent, along with all other amounts due and payable under this Agreement, in immediately available funds, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Company, and (iii) shall at the request, or may with the consent, of the Majority Banks, by notice to the Company, declare the outstanding principal amount of all other amounts owing or to become owing under this Agreement to be forthwith due and payable, whereupon all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Company; provided, however, that in the event of an actual or deemed entry of an order for relief with respect to the Company or any of its subsidiaries under the Federal Bankruptcy Code, (A) the obligation of each Bank to make Advances shall automatically be terminated, (B) the Company shall have an immediate obligation to purchase all outstanding Purchased Notes at a price equal to the unpaid principal amount thereof plus all interest accrued and unpaid thereon and (C) all amounts owing or to become owing hereunder shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the Company.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
SECTION 8.01. AUTHORIZATION AND ACTION. Each Bank hereby appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers as are reasonably incidental thereto. As to any matters not expressly provided for by this Agreement, the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Majority Banks and such instructions shall be binding upon all Banks and all holders of Purchased Notes; provided, however, that the Administrative Agent shall not be required to take any action which exposes the Administrative Agent to personal liability or which is contrary to this Agreement or applicable law. The Administrative Agent agrees to give to each Bank prompt notice of each notice given to it by the Company pursuant to the terms of this Agreement. In performing its functions and duties under this Agreement, the Administrative Agent shall act solely as agent of the Banks and does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with or for the Company.
SECTION 8.02. ADMINISTRATIVE AGENT'S RELIANCE, ETC. Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them under or in connection with this Agreement, except for its or their own gross negligence or willful misconduct. Without limitation of the generality of the foregoing, the Administrative Agent: (i) may consult with legal counsel (including counsel for the Company), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (ii) makes no warranty or representation to any Bank and
shall not be responsible to any Bank for any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement; (iii) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement on the part of the Company or to inspect the property (including the books and records) of the Company; (iv) shall not be responsible to any Bank for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; and (v) shall incur no liability under or in respect of this Agreement by acting upon any notice, consent, certificate or other instrument or writing (which may be by telecopier, telegram, cable or telex) believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 8.03. BARCLAYS BANK PLC AND AFFILIATES. With respect to its Commitment, the Advances made by it and the Purchased Notes held for its benefit, Barclays Bank PLC shall have the same rights and powers under this Agreement as any other Bank and may exercise the same as though it were not the Administrative Agent; and the terms Bank and Banks shall, unless otherwise expressly indicated, include Barclays Bank PLC in its individual capacity. Barclays Bank PLC and its affiliates may accept deposits from, lend money to, act as trustee under indentures of, and generally engage in any kind of business with, the Company, any of its subsidiaries and any Person who may do business with or own securities of the Company, or any such subsidiary, all as if Barclays Bank PLC were not the Administrative Agent and without any duty to account therefor to the Banks.
SECTION 8.04. BANK CREDIT DECISION. Each Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Bank and based on the financial statements referred to in Section 5.01 and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Bank and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement.
SECTION 8.05. INDEMNIFICATION. The Banks agree to indemnify the Administrative Agent (to the extent not reimbursed by the Company), ratably according to the respective amounts of their Commitments, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against the Administrative Agent in any way relating to or arising out of this Agreement or any action taken or omitted by the Administrative Agent under this Agreement; provided, that no Bank shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative Agent's gross negligence or willful misconduct. Without limitation of the foregoing, each Bank agrees to reimburse the Administrative Agent promptly upon demand for its ratable share of any out-of-pocket expenses (including counsel fees) incurred by the Administrative Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, to the extent that the Administrative Agent is not
reimbursed for such expenses by the Company.
SECTION 8.06. Successor Agent.
(a) The Administrative Agent may resign at any time by giving written notice thereof to the Banks and the Company and may be removed at any time with cause by the Majority Banks. Upon any such resignation or removal, the Majority Banks shall have the right to appoint a successor Administrative Agent. If no successor Administrative Agent shall have been so appointed by the Majority Banks, and shall have accepted such appointment, within 30 days after the retiring Administrative Agent's giving of notice of resignation or the Majority Banks' removal of the retiring Administrative Agent, then the retiring Administrative Agent may, on behalf of the Banks, appoint a successor Administrative Agent, which shall be a commercial bank organized under the laws of the United States of America or of any State thereof and having a combined capital and surplus of at least $250,000,000.
(b) So long as no Event of Default, or event which, with the giving of notice or the passage of time, or both, would constitute an Event of Default, shall have occurred and be continuing, the Company may at any time remove the Administrative Agent with or without cause; provided that prior to such removal a Bank acceptable to the Majority Banks shall have agreed to accept the Company's appointment as successor Administrative Agent hereunder.
(c) Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under this Agreement. After any retiring Administrative Agent's resignation or removal hereunder as Administrative Agent, the provisions of this Article VIII shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc.
(a) No amendment or waiver of any provision of this Agreement, nor consent to any departure by the Company therefrom, shall in any event be effective unless the same shall be in writing and signed by the Majority Banks, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no amendment, waiver or consent shall, unless in writing and signed by all the Banks, do any of the following: (i) waive or modify any of the conditions specified in Article IV, (ii) increase the Commitments of the Banks or subject the Banks to any additional obligations, (iii) reduce the principal of, or interest on, the Advances, the Purchased Notes or any fees or other amounts payable hereunder, (iv) postpone any date fixed for any payment of principal of, or interest on, the
Advances, the Purchased Notes or any fees or other amounts payable hereunder,
(v) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Advances, the Purchased Notes, or the number of Banks,
which shall be required for the Banks or any of them to take any action
hereunder, (vi) amend this Section 9.01 or (vii) release any collateral securing
the Purchased Notes or change any provision of the Note Indenture providing for
the release of any collateral securing the obligations of the Company
thereunder; and provided, further, that no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the
Banks required above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement or with respect to any Purchased Note.
(b) No amendment or waiver of any provision of this Agreement affecting the rights or duties of any Remarketing Agent, nor consent to any departure by any party therefrom, shall in any event be effective unless the same shall be in writing and signed by such Remarketing Agent. Except as provided in the preceding sentence, the consent of any Remarketing Agent shall not be required for the amendment or waiver of, or consent to departure from, any provision of this Agreement.
SECTION 9.02. NOTICES, ETC. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic,
telex or cable communication) and mailed, telecopied, telegraphed, telexed,
cabled or delivered, if to the Company, at its address at 2000 2nd Avenue, 833
W.C.B., Detroit, Michigan 48226-1279, Attention: Assistant Treasurer-Banking; if
to any Bank, at its Domestic Lending Office specified opposite its name on
Schedule I hereto; and if to the Administrative Agent, at its address at 222
Broadway, New York, New York 10038, Attention: Sydney Dennis (Telecopy No.:
212-412-6709) (Telephone No.: 212-412-2470), or, as to each party, at such other
address as shall be designated by such party in a written notice to the other
parties. All such notices and communications shall, when mailed, telecopied,
telegraphed, telexed or cabled, be effective when deposited in the mails,
telecopied, delivered to the telegraph company, confirmed by telex answerback or
delivered to the cable company, respectively, except that notices and
communications to the Administrative Agent pursuant to Article II, III or VIII
shall not be effective until received by the Administrative Agent.
SECTION 9.03. NO WAIVER; REMEDIES. No failure on the part of any Bank or the Administrative Agent to exercise, and no delay in exercising, any right under any Related Document shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. COSTS, EXPENSES, TAXES AND INDEMNIFICATION.
(a) The Company agrees to pay on demand all costs and expenses in connection with the preparation, execution, delivery, administration, modification and amendment of the Related Documents and the other documents to be delivered under the Related Documents, including, without limitation, the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent with respect thereto and with respect to advising the Administrative Agent as to its rights and responsibilities under the Related Documents. The Company further agrees to pay on demand all costs and expenses, if any (including, without limitation, reasonable counsel
fees and expenses of each Bank, including the allocated costs of staff counsel), in connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of the Related Documents and the other documents to be delivered under the Related Documents, including, without limitation, reasonable counsel fees and expenses in connection with the enforcement of rights under this Section 9.04. In addition, the Company shall pay any and all stamp and other taxes payable or determined to be payable in connection with the execution, delivery, filing and recording of the Related Documents and the other documents to be delivered under the Related Documents, and agrees to save the Administrative Agent and each Bank harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such taxes.
(b) The Company hereby agrees to indemnify and hold the Administrative Agent and the Banks and their respective officers, directors, employees, professional advisors and affiliates (each, an "INDEMNIFIED PERSON") harmless from and against any and all claims, damages, losses, liabilities, costs or expenses (including reasonable attorney's fees and expenses, whether or not such Indemnified Person is named as a party to any proceeding or investigation or is otherwise subjected to judicial or legal process arising from any such proceeding or investigation) which any of them may incur or which may be claimed against any of them by any person or entity (except to the extent such claims, damages, losses, liabilities, costs or expenses arise from the gross negligence or willful misconduct of the Indemnified Person):
(i) by reason of or in connection with the execution, delivery or performance of any of the Related Documents or any transaction contemplated thereby, or the use by the Company or any Remarketing Agent of the proceeds of any Advance; or
(ii) by reason of any inaccuracy or alleged inaccuracy in any material respect, or any untrue statement or alleged untrue statement of any material fact, contained in any registration statement relating to the Notes or in the Prospectus relating to the Notes or any amendment or supplement thereto, except to the extent contained in or arising from information in the Prospectus relating to the Notes supplied in writing by and describing the Administrative Agent or the Banks.
(c) The Company's obligations under this Section 9.04 shall survive the repayment of all amounts owing to the Administrative Agent and the Banks under the Related Documents and the termination of the Commitments. If and to the extent that the obligations of the Company under this Section 9.04 are unenforceable for any reason, the Company agrees to make the maximum contribution to the payment and satisfaction thereof which is permissible under applicable law.
SECTION 9.05. RIGHT OF SET-OFF. Upon (i) the occurrence and during the continuance of any Event of Default and (ii) the making of any request or the granting of any consent specified by Section 7.02 to authorize the Administrative Agent to demand a repurchase of Purchased Notes or to declare Advances due and payable pursuant to the provisions of Section 7.02, each Bank is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Bank to or for the credit or the
account of the Company against any and all of the obligations of the Company now or hereafter existing under any Related Document, whether or not such Bank shall have made any demand under this Agreement and although such obligations may be unmatured. Each Bank agrees promptly to notify the Company after any such set-off and application made by such Bank, provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of each Bank under this Section 9.05 are in addition to other rights and remedies (including, without limitation, other rights of set-off) which such Bank may have.
SECTION 9.06. BINDING EFFECT; ASSIGNMENTS; PARTICIPATIONS.
(a) This Agreement shall become effective when it shall have been executed by the Company, the Administrative Agent, the Banks and the Remarketing Agents, and thereafter shall be binding upon and inure to the benefit of the Company, the Administrative Agent, each Remarketing Agent and each Bank and their respective successors and assigns, except that: (i) the Company shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of the Banks, and (ii) the Banks shall not have the right to assign or transfer any portion of their respective Commitments (except for assignments or pledges to a Federal Reserve Bank) (A) without the prior written consent of the Company (unless an Event of Default shall have occurred and be continuing, in which event no such consent shall be required) and the Administrative Agent, which consents shall not be unreasonably withheld, (B) to any assignee Bank that is not an Eligible Bank and (C) unless the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording, an Assignment and Acceptance substantially in the form of Exhibit B, and a processing and recordation fee of $3,500 payable by the assigning Bank and/or the assignee Bank (such processing and recordation fee not to be payable by the Company under any circumstances).
(b) Each Bank may sell participations to one or more banks or other
entities in or to all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment,
the Advances owing to it and its beneficial interest in any Purchased Notes);
provided, however, that (i) such Bank's obligations under this Agreement
(including, without limitation, its Commitment) shall remain unchanged, (ii)
such Bank shall remain solely responsible to the other parties hereto for the
performance of such obligations, and (iii) the Company, the Administrative
Agent, the Remarketing Agents and the other Banks shall continue to deal solely
and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement.
SECTION 9.07. ELIGIBLE BANK STATUS. Each Bank confirms that it satisfies the requirements of an Eligible Bank on the date of this Agreement. If at any time any Bank shall cease to satisfy the requirements of an Eligible Bank, such Bank shall assign its Commitments to an Eligible Bank as promptly as is practicable in compliance with terms and provisions of Section 9.06; provided, however, that so long as any Bank satisfies the requirements set forth in clause (i) of the definition of Eligible Bank and is in the process of promptly (and in no event later than 10 Business Days following the date on which such Bank ceased to satisfy the requirements of an Eligible Bank) restoring its compliance with the other requirements for Eligible Bank status, such Bank shall not be required to effect the assignment of its Commitments otherwise required by this sentence.
SECTION 9.08. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
SECTION 9.09. Execution in Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
THE DETROIT EDISON COMPANY
Title:
SCHEDULE I
THE DETROIT EDISON COMPANY
STANDBY NOTE PURCHASE
CREDIT FACILITY
Domestic Eurodollar
Name of Bank Lending Office Lending Office Commitment
------------ -------------- -------------- ----------
|
EXHIBIT A
NOTICE OF FAILED REMARKETING
AND BORROWING REQUEST
Barclays Bank PLC
as Administrative Agent
for the Banks parties
to the Standby Note Purchase
Credit Facility referred to below
222 Broadway
__th Floor
New York, New York 10038
Attention: _____________
[Date]
Gentlemen:
The undersigned, [LEHMAN BROTHERS INC.] [BANC ONE CAPITAL MARKETS,
INC.] [BARCLAYS CAPITAL INC.] (the "REMARKETING AGENT"), refers to the Standby
Note Purchase Credit Facility, dated as of October 26, 1999 (the "AGREEMENT",
the terms defined therein being used herein as therein defined), among The
Detroit Edison Company (the "Company"), certain Banks parties thereto, Barclays
Bank PLC, as Administrative Agent for said Banks, the Remarketing Agent, [LEHMAN
BROTHERS INC.] [BANC ONE CAPITAL MARKETS, INC.] and [BARCLAYS CAPITAL INC.].
Pursuant to Section 2.03 of the Agreement, the Company has authorized the
Remarketing Agent to notify you in the event of any Failed Remarketing and to
request a Borrowing in connection therewith. The Remarketing Agent hereby
represents and warrants that (i) it is a Remarketing Agent under the Remarketing
Agreement on and as of the date hereof, (ii) the Remarketing Agreement is in
full force and effect on the date hereof, (iii) a Failed Remarketing has
occurred on the date hereof with respect to $________ in outstanding principal
amount of Unremarketed Notes tendered to the Remarketing Agent and (iv) the
Remarketing Agent has received adequate funds to pay all accrued and unpaid
interest, if any, with respect to such Unremarketed Notes, or has informed the
Company of the Company's obligation to pay such accrued and unpaid interest on
the date hereof. The Remarketing Agent hereby gives you notice, irrevocably,
pursuant to Section 3.01 of the Agreement, that it requests a Borrowing under
the Agreement in connection with the Failed Remarketing described herein, and in
that connection sets forth below the information relating to such Borrowing as
required by Section 3.01(a) of the Agreement.
(A) The Business Day of the requested Borrowing is ____________, 19__; and
(B) The aggregate amount of the requested Borrowing is $________.
Very truly yours,
[LEHMAN BROTHERS INC.]
[BANC ONE CAPITAL MARKETS, INC.]
[BARCLAYS CAPITAL INC.]
By ___________________________________
Name:
Title:
EXHIBIT B
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Standby Note Purchase Credit Facility dated as of October 26, 1999 (the "AGREEMENT") among The Detroit Edison Company, a Michigan corporation (the "COMPANY"), the Banks (as defined in the Agreement), Barclays Bank PLC, as Administrative Agent for the Banks (the "ADMINISTRATIVE AGENT") and the Remarketing Agents named therein as parties thereto. Terms defined in the Agreement are used herein with the same meaning.
_______________________ (the "ASSIGNOR") and _____________________ (the "Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee without recourse to the Assignor, and the Assignee hereby irrevocably purchases and assumes from the Assignor without recourse to the Assignor, as of the Effective Date as set forth in Schedule 1 hereto (the "EFFECTIVE DATE"), an interest (the "ASSIGNED INTEREST") in and to the Assignor's rights and obligations under the Agreement with respect to those credit facilities contained in the Agreement as are set forth on Schedule 1 (individually, an "ASSIGNED FACILITY"; collectively, the "ASSIGNED FACILITIES"), in a principal amount and percentage for each Assigned Facility as set forth on Schedule 1.
2. The Assignor (i) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Agreement, any other Related Document or any other instrument or document furnished pursuant thereto, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Agreement, any other Related Document or any other instrument or document furnished pursuant thereto, other than that it has not created any adverse claim upon the interest being assigned by it hereunder and that such interest is free and clear of any such adverse claim; and (ii) makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Company, any of its subsidiaries or any other obligation or the performance or observance by the Company, any of its subsidiaries or any other obligor of any of their respective obligations under the Agreement or any other Related Document or any other instrument or document furnished pursuant hereto or thereto.
3. The Assignee (i) represents and warrants that it is legally authorized to enter into this Assignment and Acceptance; (ii) confirms that it has received a copy of the Agreement, together with copies of the financial statements referred to in Section 5.01(h) thereof, the financial statements delivered pursuant to Section 6.01(i) thereof, if any, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance; (iii) agrees that it will, independently and without reliance upon the Assignor, the Administrative Agent or any other Bank and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Agreement, the other Related Documents or any other instrument or document furnished pursuant hereto or thereto; (iv) confirms that it is an Eligible Bank; (v) appoints and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers under the Agreement as are delegated to the Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto; (vi) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Agreement are required to be performed by it as a Bank; and (vii) specifies as its Domestic Lending Office and its Eurodollar Lending Office the respective offices set forth beneath its name on the signature pages hereof.
4. Following the execution of this Assignment and Acceptance, it will be delivered to the Administrative Agent for acceptance and recording by the Administrative Agent pursuant to Section 9.06 of the Agreement, effective as of the Effective Date (which date shall not, unless otherwise agreed to by the Administrative Agent, be earlier than five Business Days after the date of such acceptance and recording by the Administrative Agent).
5. Upon such acceptance and recording, from and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignee which accrue subsequent to the Effective Date. The Assignor and Assignee shall make all appropriate adjustments in payments under the Agreement for periods prior to the Effective Date directly between themselves.
6. From and after the Effective Date, (i) the Assignee shall be a party to the Agreement and, to the extent provided in this Assignment and Acceptance, have the rights and obligations of a Bank thereunder and shall be bound by the provisions thereof and (ii) the Assignor shall, to the extent provided in this Assignment and Acceptance, relinquish its rights and be released from its obligations under the Agreement.
7. This Assignment and Acceptance shall be governed by and construed in accordance with the law of the State of New York.
8. This Assignment and Acceptance may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Assignment and Acceptance by signing any such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Acceptance to be executed as of the date first above written by their respective duly authorized officers on Schedule 1 hereto.
[NAME OF ASSIGNOR]
By: ________________________________________
Name:
Title:
[NAME OF ASSIGNEE]
By: ________________________________________
Name:
Title:
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
Accepted this ____ day
of _____________, ____
BARCLAYS BANK PLC, as
Administrative Agent
By______________________________
Name:
Title:
[Consented to this ____ day
of ___________, ____
THE DETROIT EDISON COMPANY
By______________________________](1)
Name:
Title:
(1) To be included if required under Section 9.06(a) of the Facility Agreement.
Schedule 1 to Assignment and Acceptance relating to the Standby Note Purchase Facility, dated as of October 26, 1999, among The Detroit Edison Company, the banks party thereto, Barclays Bank PLC, as Administrative Agent for the Banks
(in such capacity, the "ADMINISTRATIVE AGENT")
and the Remarketing Agents party thereto
Name of Assignor: __________________________________
Name of Assignee: __________________________________
Effective Date of Assignment: _____________________
Principal Percentage
Facility Amount Assigned Assigned
-------- --------------- ----------
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EXHIBIT C
FORM OF OPINION OF
COUNSEL TO THE COMPANY
Each Bank shall receive a favorable opinion, dated the date of the Agreement, of the General Counsel for the Company, to the following effect and otherwise in form and substance satisfactory to such Bank:
(a) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Michigan, and is duly qualified to do business as a foreign corporation in each jurisdiction in which the nature of the business conducted or the property owned, operated or leased by it requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its consolidated subsidiaries, taken as a whole.
(b) The execution, delivery and performance by the Company of the Agreement are within the Company's corporate powers, have been duly authorized by all necessary corporate action and do not contravene (i) the articles of incorporation or by-laws of the Company, or (ii) any law, rule or regulation applicable to the Company or (iii) any contractual or legal restriction binding on or affecting the Company or any of its subsidiaries. The Agreement has been duly executed and delivered by the Company.
(c) No authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Company of the Agreement, except such as have been duly obtained or made and are in full force and effect.
(d) The Agreement constitutes the legal, valid and binding
obligation of the Company enforceable against the Company in accordance
with its terms, except as the enforceability thereof may be limited by
(i) applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or similar laws affecting creditors' rights
generally and (ii) the effect of general principles of equity,
including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing (regardless of whether considered in a
proceeding in equity or at law).
(e) Such counsel is not aware, after due inquiry, of any pending or overtly threatened actions or proceedings against the Company or its consolidated subsidiaries, or any of their respective properties, before any court, governmental agency or arbitrator which purport to affect the legality, validity, binding effect or enforceability of the Agreement or which are likely to have a material adverse effect upon the financial condition or operations of the Company and its consolidated subsidiaries, taken as a whole, or the ability of the Company to perform its obligations under the Agreement.
(f) Purchased Notes at any time purchased for the account of the Banks in accordance with the terms of the Agreement will constitute legal, valid and binding obligations of the Company, enforceable in accordance with their respective terms, in the amount of, and evidencing the obligation of the Company to repay, the Advances made by the Banks to the Remarketing Agents for the purpose of purchasing such Purchased Notes.
(g) Assuming that the trustee under the Note Indenture holds the general and refunding mortgage bond issued pursuant to the Mortgage (such bond being the "PLEDGED BOND"), the Note Indenture creates a valid and perfected first priority security interest in the Pledged Bond. All holders of Purchased Notes will be entitled to the full benefits of such valid and perfected first priority security interest in the Pledged Bond, as so created by the Note Indenture.
Capitalized terms used but not defined herein shall have the meanings assigned
to such terms in the Agreement.
EXHIBIT 9-30
SEVENTH AMENDMENT
364-DAY CREDIT AGREEMENT
SEVENTH AMENDMENT (this "AMENDMENT"), dated as of August 26, 1999, to the 364-DAY CREDIT AGREEMENT dated as of September 1, 1993, as amended by the First Amendment, dated as of August 31, 1994, certain extension letters, each dated June 30, 1995, the Third Amendment, dated as of March 8, 1996, the Fourth Amendment dated as of August 29, 1996, the Fifth Amendment dated as of August 28, 1997 and the Sixth Amendment dated as of August 27, 1998, by and among RENAISSANCE ENERGY COMPANY, a Delaware corporation (the "BORROWER"), THE DETROIT EDISON COMPANY, a Michigan corporation (the "GUARANTOR"), the banks referred to therein (the "BANKS"), and BARCLAYS BANK PLC, New York Branch, as agent (the "AGENT") for the Banks (such Credit Agreement, as heretofore amended, being hereinafter referred to as the "EXISTING CREDIT AGREEMENT", and, as amended by this Amendment, as the "AMENDED CREDIT AGREEMENT" or the "CREDIT AGREEMENT").
W I T N E S S E T H
WHEREAS, the Borrower, the Guarantor, the Banks and the Agent have previously entered into the Existing Credit Agreement; and
WHEREAS, the Borrower, the Guarantor, the Banks and the Agent now wish to amend the Existing Credit Agreement to extend the Termination Date described therein and to effect certain other amendments to the Existing Credit Agreement;
NOW THEREFORE, the Borrower, the Guarantor, the Banks and the Agent agree as follows (capitalized terms used but not defined in this Amendment having the meanings assigned them in the Existing Credit Agreement):
SECTION 1. AMENDMENTS TO EXISTING CREDIT AGREEMENT
(a) EXTENSION OF TERMINATION DATE. Effective as of the date hereof, and subject to the satisfaction of the conditions precedent set forth in Section 2 hereof, the Termination Date is hereby extended to August 24, 2000.
(b) AMENDMENTS OF SECTION 1.01.
2
(i) The definitions of "Adjusted CD Rate," "Adjusted CD Rate Advance,"
"Adjusted CD Rate Reserve Percentage" and "CD Lending Office" in Section 1.01 of
the Existing Agreement, and all references to those definitions appearing in the
Existing Agreement, are hereby deleted in their entirety. Notwithstanding
anything in the Existing Agreement to the contrary, upon the effectiveness of
this Amendment no Advance shall bear interest at the Adjusted CD Rate.
(ii) The definition of "Applicable Margin" in Section 1.01 of the Existing Agreement is hereby amended to read in its entirety as follows:
"APPLICABLE MARGIN" means for the Interest Period of a Eurodollar Rate Advance the percentage per annum set forth in the appropriate column below:
------------------------ -------------------- ------------------- -------------------- --------------------
RATING LEVEL I II III IV
------------------------ -------------------- ------------------- -------------------- --------------------
EURODOLLAR 0.375% 0.475% 0.50% 0.825%
RATE ADVANCE
------------------------ -------------------- ------------------- -------------------- --------------------
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provided, that the Applicable Margin will increase by (i) 0.125% at any time the aggregate Advances outstanding are equal to or greater than 33.33% but less than 66.66% of the aggregate Commitments, or (ii) 0.25% at any time the aggregate Advances outstanding are equal to or greater than 66.66% of the aggregate Commitments.
(iii) The definition of "Rating Levels" in Section 1.01 of the Existing Agreement is hereby amended to read in its entirety as follows:
"RATING LEVELS" shall be determined with reference to the Guarantor's Senior Secured Indebtedness unsupported by letters of credit or similar credit enhancement facilities in accordance with the following:
"RATING LEVEL I" shall be deemed to be applicable if the Guarantor's Senior Secured Indebtedness is rated A+ or higher by S&P and A1 or higher by Moody's.
"RATING LEVEL II" shall be deemed to be applicable if the Guarantor's Senior Secured Indebtedness is rated BBB+ or higher by S&P and Baa1 or higher by Moody's and Rating Level I is not then applicable.
3
"RATING LEVEL III" shall be deemed to be applicable
if (i) the Guarantor's Senior Secured Indebtedness is rated
BBB- or higher by S&P and Baa3 or higher by Moody's and Rating
Levels I and II are not then applicable.
"RATING LEVEL IV" shall be deemed to be applicable if
(i) the Guarantor's Senior Secured Indebtedness is rated BB+
or lower by S&P or Ba-1 or lower by Moody's or (ii) if the
Guarantor's Senior Secured Indebtedness shall cease to be
rated by either S&P or Moody's
provided, however, that notwithstanding the foregoing, during any period in which the Guarantor's commercial paper unsupported by letters of credit or similar credit enhancement facilities is rated below A-2 by S&P or below P-2 by Moody's, or shall cease to be rated by either or both, Rating Level IV shall be deemed to be applicable. Any change in Rating Levels (and in any fees or interest payable hereunder based on Rating Levels) shall be effective as of the date on which S&P or Moody's, as the case may be, announces the applicable change in its rating of the Guarantor's Senior Secured Indebtedness or commercial paper. In the event of a split rating, the lower rating shall control.
(c) AMENDMENT OF SECTION 2.03(B). The second sentence of Section 2.03(b) of the Existing Credit Agreement is hereby amended and restated to read in its entirety as follows:
Each Bid Request may solicit bids for Bid Advances in an aggregate principal amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof and for not more than three alternative maturity dates for such Bid Advances.
(d) AMENDMENT OF SECTION 2.04(A). Section 2.04(a) of the Existing Agreement is hereby amended and restated to read in its entirety as follows:
(a) The Borrower agrees to pay to the Agent for the account of each Bank a facility fee on the full amount of such Bank's Commitment (whether used or unused) from the date hereof in the case of each Bank listed on the signature pages hereto, and from the effective date specified in the Assignment and Acceptance pursuant to which it became a Bank pursuant to Section 9.07 hereof in the case of any other Bank, until the Termination Date or earlier termination of such Bank's Commitment pursuant to Section 2.05, payable on the basis of the actual number of days elapsed in a year of 365 or 366 days, on the last
4
Business Day of March, June, September and December in each year and on the Termination Date, at the rate per annum set forth below as determined in accordance with the then applicable Rating Level:
----------------------------- ------------------ ------------------ ----------------- -------------------
RATING LEVEL I II III IV
----------------------------- ------------------ ------------------ ----------------- -------------------
FACILITY FEE 0.125% 0.15% 0.25% 0.425%
----------------------------- ------------------ ------------------ ----------------- -------------------
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(e) AMENDMENT TO SCHEDULE I - Schedule I of the Existing Agreement is hereby amended and restated to read in its entirety as set forth in Exhibit A hereto.
SECTION 2. CONDITIONS OF EFFECTIVENESS. This Amendment shall become effective as of the date set forth above when, and only when, the Agent shall have received (in sufficient copies for each Bank) the following:
(a) Counterparts of this Amendment executed by the Borrower, the Guarantor and all of the Banks.
(b) Certified copies of the resolutions of the Board of Directors of the Borrower authorizing this Amendment and of all documents evidencing other necessary corporate action and governmental and regulatory approvals required to be obtained by it in connection therewith, certified by the Secretary or Assistant Secretary of the Borrower.
(c) Certified copies of the resolutions of the Board of Directors of the Guarantor authorizing this Amendment and of all documents evidencing other necessary corporate action and governmental and regulatory approvals required to be obtained by it in connection therewith, certified by the Secretary or Assistant Secretary of the Guarantor.
(d) A favorable opinion of counsel to the Borrower, to the effect set forth in Annex I to this Amendment and as to such other matters relating to the transactions contemplated hereby as any Bank through the Agent may reasonably request.
(e) A favorable opinion of the General Counsel of the Guarantor, to the effect set forth in Annex II to this Amendment and as to such other matters relating to the transactions contemplated hereby as any Bank through the Agent may reasonably request.
(f) Evidence satisfactory to the Agent and its counsel that the Guarantor has extended, through the Termination Date as extended hereby, the Guarantee set forth in Section 6.02 of the Existing Agreement.
5 (g) Evidence satisfactory to the Agent and its counsel that the Guarantor has extended, through the Termination Date as extended hereby, the Guarantee set forth in Section 6.02 of the Multi-Year Credit Agreement, dated as of September 1, 1993, as amended, among the Borrower, the Guarantor, the banks party thereto and the Agent.
(h) Evidence that the "Expiration Date" of the Heat Purchase Contract has been extended to August 24, 2000.
(i) Such other instruments, opinions or documents as any Bank through the Agent may reasonably request.
SECTION 3. REPRESENTATIONS AND WARRANTIES. Each of the Borrower and the Guarantor represents and warrants, as to itself only, as follows:
(a) The execution and delivery by it of this Amendment, and the performance by it of the Amended Credit Agreement and the other Financing Documents to which it is a party are within its corporate powers, have been duly authorized by all necessary corporate or other similar action, and do not and will not contravene (i) its charter or by-laws, as the case may be, or any law or legal restriction or (ii) any contractual restriction binding on or affecting it or its properties;
(b) This Amendment has been duly executed and delivered by it, and, assuming the due execution and delivery by the Banks pursuant to due authority of this Amendment, this Amendment, the Amended Credit Agreement and the other Financing Documents to which it is a party are its legal, valid and binding obligations, enforceable against it in accordance with their respective terms; subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally;
(c) No consent, license, order, authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution and delivery by it of this Amendment;
(d) Its representations and warranties contained in Section 4.01 (in the case of the Borrower) or Section 4.02 (in the case of the Guarantor) of the Existing Credit Agreement are true and correct in all material respects on and as of the date of this Amendment, as though made on and as of such date;
(e) No event in respect of it has occurred and is continuing, which constitutes an Event of Default or a Default; and
6 (f) In the case of the Guarantor: (i) the FERC Authorization is in full force and effect and (ii) without regard to any further extension thereof, the FERC Authorization as presently in effect is sufficient to authorize: (A) the creation, validity and performance of the Guarantee described in Section 6.01 of the Amended Credit Agreement in respect of each Advance made on or prior to the Termination Date, as extended by this Amendment, (B) the Guarantor to perform its obligations under the Credit Agreement and the other Financing Documents in respect of each such Advance and the corresponding Guarantee, and (C) the Guarantor to extend through the Termination Date as extended hereby the Guarantee set forth in Section 6.02 of the Credit Agreement and to perform its obligations thereunder.
SECTION 4. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS. (a) Upon the effectiveness of this Amendment in accordance with Section 2 hereof, on and after the date hereof each reference in the Credit Agreement to "this Agreement", "hereunder", "hereof" or words of like import referring to the Existing Credit Agreement, and each reference in the Notes and the other Financing Documents to "the Credit Agreement", "thereunder", "thereof" or words of like import referring to the Existing Credit Agreement, shall mean and be a reference to the Amended Credit Agreement.
(b) Except as specifically amended above, the Credit Agreement and all other Financing Documents are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Bank or the Agent under any of the Financing Documents, nor constitute a waiver of any provision of any of the Financing Documents.
SECTION 5. COSTS AND EXPENSES. The Borrower agrees to pay on demand all reasonable costs and expenses of the Agent in connection with the preparation, execution, delivery, administration, modification and amendment of this Amendment and the other instruments and documents to be delivered hereunder, including, without limitation, the reasonable fees and out-of-pocket expenses of counsel for the Agent with respect thereto and with respect to advising the Agent and the Banks as to their respective rights and responsibilities hereunder and thereunder.
SECTION 6. EXECUTION IN COUNTERPARTS. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement.
SECTION 7. GOVERNING LAW. This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written,
RENAISSANCE ENERGY COMPANY
By__________________________________
Title:
THE DETROIT EDISON COMPANY,
as Guarantor
By__________________________________
Title:
BARCLAYS BANK PLC,
NEW YORK BRANCH,
as Agent and as Bank
By__________________________________
Title:
BANK HAPOALIM, B.M.
By__________________________________
Title:
By__________________________________
Title:
By__________________________________
Title:
THE BANK OF NOVA SCOTIA
By__________________________________
Title:
THE CHASE MANHATTAN BANK
By__________________________________
Title:
By__________________________________
Title:
COMERICA BANK
By__________________________________
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By__________________________________
Title:
THE FUJI BANK, LIMITED
By__________________________________
Title:
THE INDUSTRIAL BANK OF JAPAN
By__________________________________
Title:
KEYBANK NATIONAL ASSOCIATION
By__________________________________
Title:
THE NORTHERN TRUST COMPANY
By__________________________________
Title:
SOCIETE GENERALE
By__________________________________
Title:
By__________________________________
Title:
UNION BANK OF CALIFORNIA, N.A.
By__________________________________
Title:
ANNEX I
[SCOPE OF OPINION OF COUNSEL TO THE BORROWER]
The Opinion of Counsel to the Borrower referred to in Section 2(d) of this
Amendment shall re-affirm, as of the date of this Amendment, the opinions
expressed in the opinion of such counsel previously delivered pursuant to
Section 3.01(m) of the Existing Credit Agreement, except that, for purposes of
such re-affirmation, (i) the "Transaction Documents" shall be stated to include
this Amendment and (ii) references in such opinions to the "Credit Agreement"
shall be stated to refer to the Amended Credit Agreement.
ANNEX II
[SCOPE OF OPINION OF COUNSEL TO THE GUARANTOR]
The Opinion of Counsel to the Guarantor referred to in Section 2(e) of this Amendment shall be to the effect that:
(a) The execution and delivery by the Guarantor of this Amendment, and the performance by the Guarantor of the Amended Credit Agreement and the other Financing Documents to which it is a party are within its corporate powers, have been duly authorized by all necessary corporate or other similar action, and do not and will not contravene (i) its charter or by-laws, as the case may be, or any law or legal restriction or (ii) any contractual restriction binding on or affecting it or its properties;
(b) This Amendment has been duly executed and delivered by it, and, assuming the due execution and delivery by the Banks pursuant to due authority of this Amendment, this Amendment, the Amended Credit Agreement and the other Financing Documents to which the Guarantor is a party are the Guarantor's legal, valid and binding obligations, enforceable against the Guarantor in accordance with their respective terms; subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally;
(c) No consent, license, order, authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution and delivery by the Guarantor of this Amendment;
(ii)(i) the FERC Authorization is in full force and effect, and without
regard to any further extension thereof, the FERC Authorization as presently in
effect is sufficient to authorize: (A) the creation, validity and performance of
the Guarantee described in Section 6.01 of the Amended Credit Agreement in
respect of each Advance made on or prior to the Termination Date, as extended by
this Amendment, (B) the Guarantor to perform its obligations under the Credit
Agreement and the other Financing Documents in respect of each such Advance and
the corresponding Guarantee, and (C) the Guarantor to extend through the
Termination Date as extended by this Amendment the Guarantee set forth in
Section 6.02 of the Credit Agreement and to perform its obligations thereunder;
AND such opinion of counsel to the Guarantor shall re-affirm, as of the date of this Amendment, the opinions expressed in paragraphs 1, 4, 5 and 6 of the opinion of such counsel previously delivered pursuant to Section 3.01(n) of the Existing Credit Agreement.
EXHIBIT 99.31
EIGHTH AMENDMENT TO
1988 AMENDED AND RESTATED
NUCLEAR FUEL HEAT PURCHASE CONTRACT
Eighth Amendment, dated as of August 26, 1999 (this "Eighth Amendment"), to the 1988 Amended and Restated Nuclear Fuel Heat Purchase Contract dated as of October 4, 1988, as amended by First, Second, Third, Fourth, Fifth and Sixth Amendments thereto dated as of February 1, 1990, September 1, 1993, August 31, 1994, March 8, 1996, August 29, 1996, August 28, 1997 and August 27, 1998, respectively (as so amended, the "Contract"), between RENAISSANCE ENERGY COMPANY, a Delaware corporation ("Fuel Company") and THE DETROIT EDISON COMPANY, a Michigan corporation ("Utility").
W I T N E S S E T H:
Whereas, the Fuel Company is a party to (i) a $200,000,000 364 Day Credit Agreement dated as of September 1, 1993, as amended by a First Amendment thereto dated as of September 1, 1994, extension letters from the Banks to the Fuel Company dated June 30, 1995, a Third Amendment thereto dated March 8, 1996, a Fourth Amendment thereto dated August 29, 1996, a Fifth Amendment thereto dated August 28, 1997, and a Sixth Amendment thereto dated August 27, 1998 among the Fuel Company, the Utility, Barclays Bank PLC, New York Branch, as agent (the "Agent") and the banks signatory thereto (the "Banks") (as so amended, the "364 Day Credit Agreement"); and (ii) a $200,000,000 Multi-Year Credit Agreement dated as of September 1, 1993, as amended by a First Amendment thereto dated as of September 1, 1994, extension letters from the Banks to the Fuel Company dated June 30, 1995, a Third Amendment thereto, dated March 8, 1996, a Fourth Amendment thereto, dated September 1, 1996, and a Fifth Amendment thereto dated September 1, 1997 among the Fuel Company, the Utility, the Agent and the Banks;
Whereas, the 364 Day Credit Agreement is being amended by a Seventh Amendment thereto (collectively, the "Credit Agreement Amendment");
Whereas, it is a condition precedent to the effectiveness of the Credit Agreement Amendment that the Utility and Fuel Company enter into this Eighth Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the Fuel Company and the Utility agree as follows:
Section 1. Defined Terms. All capitalized terms used herein and not
defined shall have the meanings ascribed to such terms in the Contract.
Section 2. Amendments to Contract. Section 2(b) of the Contract is hereby amended to read in its entirety as follows:
"(b) The term of this Contract shall, unless sooner terminated pursuant to the provisions hereof, end at 12:00 midnight, New York time, on the Expiration Date. The Expiration Date in effect on the date hereof is August 25, 2000 Subject to the proviso below, the Utility shall have the right to renew this Contract for subsequent terms by designating in writing to the Fuel Company, within 90 days prior to the then current Expiration Date, a new Expiration Date; provided, however, that the Expiration Date for such renewal term shall be, (i) in the event the Michigan Public Service Commission (the "MPSC") has authorized this Contract, not later than September 1, 2003 (an "Outside Expiration Date") or (ii) if the MPSC has not authorized this Contract, not later than the earlier to occur of the Outside Expiration Date and twelve months from the then current Expiration Date; and provided, further, that (i) no material adverse change shall have occurred (except such as may have occurred in the ordinary course of the Utility's business) in the financial condition or results of operations of Utility since the most recent financial statements of the Utility delivered to the Borrower, and (ii) no Event of Default (as defined herein or as defined in any Credit Agreement) or other event which with the giving of notice or lapse of time, or both, would constitute such an Event of Default shall have occurred and be continuing."
Section 3. Miscellaneous.
(a) Each of Utility and Fuel Company hereby represents and warrants as to itself that this Eighth Amendment has been duly authorized by all necessary corporate action on its part and this Eighth Amendment has been duly and validly executed and delivered by itself and constitutes its respective legal, valid and binding obligation, enforceable in accordance with the terms of this Eighth Amendment.
(b) Except as amended hereby, the terms of the Contract shall continue in full force and effect and is hereby ratified and confirmed in all respects as so amended.
(c) This Eighth Amendment shall be governed by and construed in accordance with the laws of the State of New York without reference to principles of conflicts of laws.
(d) This Eighth Amendment may be signed in any number of counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, Utility and Fuel Company have caused this Eighth Amendment to be duly executed by their duly authorized officers, all as of the day and year first above written.
RENAISSANCE ENERGY COMPANY
THE DETROIT EDISON COMPANY
Title: