THE DETROIT EDISON COMPANY
AND
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
TRUSTEE
TWENTY-NINTH SUPPLEMENTAL
INDENTURE
DATED AS OF MARCH 15,
2009
SUPPLEMENTING THE COLLATERAL TRUST
INDENTURE
DATED AS OF JUNE 30, 1993
PROVIDING FOR
2009 SERIES BT 6.00% SENIOR NOTES DUE 2036
SUPPLEMENTAL
INDENTURE, dated as of the 15th day of March, 2009, between THE
DETROIT EDISON COMPANY, a corporation organized and existing under
the laws of the State of Michigan (the “Company”), and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking
association organized under the laws of the United States of
America, having a corporate trust office in the City of Detroit,
Michigan, as successor trustee (the
“Trustee”);
WHEREAS, the
Company has heretofore executed and delivered to the Trustee a
Collateral Trust Indenture dated as of June 30, 1993 (the
“Original Indenture”), as supplemented, providing for
the issuance by the Company from time to time of its debt
securities; and
WHEREAS. the
Company now desires to provide for the issuance of an additional
series of its senior debt securities pursuant to the Original
Indenture in connection with its obligations to the Michigan
Strategic Fund (the “MSF”) under the Loan Agreement
dated as of April 1, 2009 (the “Loan Agreement”)
relating to the Michigan Strategic Fund Limited Obligation
Refunding Revenue Bonds (The Detroit Edison Company Exempt
Facilities Project), Collateralized Series 2009BT (the
“2009BT Bonds”); and
WHEREAS, the
Company intends hereby to designate a series of debt securities
which shall have the benefit of the provisions of Article Four
of the Original Indenture and the other related provisions of the
Original Indenture relating to the grant of security, subject to
the release provisions provided for herein, and which shall have
the terms and variations from the provisions of the Original
Indenture as set forth herein; and
WHEREAS, the
Company, in the exercise of the power and authority conferred upon
and reserved to it under the provisions of the Original Indenture,
including Section 1001 thereof, and pursuant to appropriate
resolutions of the Board of Directors, has duly determined to make,
execute and deliver to the Trustee this Twenty-Ninth Supplemental
Indenture to the Original Indenture as permitted by
Sections 201 and 301 of the Original Indenture in order to
establish the form or terms of, and to provide for the creation and
issue of, a series of its debt securities under the Original
Indenture, which shall be known as the 2009 Series BT 6.00%
Senior Notes due 2036; and
WHEREAS, all
things necessary to make such debt securities, when executed by the
Company and authenticated and delivered by the Trustee or any
Authenticating Agent and issued upon the terms and subject to the
conditions hereinafter and in the Original Indenture set forth
against payment therefor, the valid, binding and legal obligations
of the Company and to make this Twenty-Ninth Supplemental Indenture
a valid, binding and legal agreement of the Company, have been
done;
NOW, THEREFORE,
THIS TWENTY-NINTH SUPPLEMENTAL INDENTURE WITNESSETH that, in order
to establish the terms of a series of debt securities, and for and
in consideration of the premises and of the covenants contained in
the Original Indenture and in this Twenty-Ninth Supplemental
Indenture and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, it is
mutually covenanted and agreed as follows:
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DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
SECTION 1.01.
Definitions. Each capitalized term that is used herein and is
defined in the Original Indenture shall have the meaning specified
in the Original Indenture unless such term is otherwise defined
herein. The following terms shall have the respective meanings set
forth below:
“2009BT
Bonds” means the $68,500,000 Michigan Strategic Fund Limited
Obligation Refunding Revenue Bonds (The Detroit Edison Company
Exempt Facilities Project), Collateralized
Series 2009BT.
“Bond
Indenture” means the Trust Indenture, dated as of
April 1, 2009 between the Michigan Strategic Fund and the Bond
Trustee providing for the issuance of the 2009BT Bonds.
“Bond
Trustee” means The Bank of New York Mellon Trust Company,
N.A., as trustee under the Bond Indenture, or any successor
thereto.
“Business
Day” means any day except a Saturday, Sunday or other day on
which banking institutions in the State of New York or the State of
Michigan are authorized or obligated pursuant to law or executive
order to close.
“Capitalization”
means the total of all the following items appearing on, or
included in, the consolidated balance sheet of the Company:
(i) liabilities for indebtedness maturing more than 12 months
from the date of determination; and (ii) common stock, common
stock expense, accumulated other comprehensive income or loss,
preferred stock, preference stock, premium on capital stock and
retained earnings (however the foregoing may be designated), less,
to the extent not otherwise deducted, the cost of shares of capital
stock of the Company held in its treasury, if any. Subject to the
foregoing, Capitalization shall be determined in accordance with
generally accepted accounting principles and practices applicable
to the type of business in which the Company is engaged and may be
determined as of a date not more than 60 days prior to the
happening of the event for which the determination is being made.
In connection with such determination, the Company shall certify to
the Trustee that it has, prior to making its final determination,
consulted with the independent accountants regularly retained by
the Company.
“Debt”
means any outstanding debt for money borrowed evidenced by notes,
debentures, bonds or other securities, or guarantees of any
debt.
“Net
Tangible Assets” means the amount shown as total assets on
the consolidated balance sheet of the Company, less
(i) intangible assets including, but without limitation, such
items as goodwill, trademarks, trade names, patents, unamortized
debt discount and expense and other regulatory assets carried as an
asset on the Company’s consolidated balance sheet, and (ii)
appropriate adjustments, if any, on account of minority interests.
Net Tangible Assets shall be determined in accordance with
generally accepted accounting principles and practices applicable
to the type of business in which the Company is engaged and may be
determined as of a date not more than 60 days prior to the
happening of the event for which such determination is
being
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made. In
connection with such determination, the Company shall certify to
the Trustee that it has, prior to making its final determination,
consulted with the independent accountants regularly retained by
the Company.
“Pledged
Bonds” means the related series of Bonds (as hereafter
defined) and any other Mortgage Bonds issued to secure Securities
subject to the release provisions provided herein or in any other
supplemental indenture to the Original Indenture.
“Release
Date” means the date as of which all Mortgage Bonds,
(i) other than the Pledged Bonds, including the related series
of Bonds, and (ii) other than outstanding Mortgage Bonds
(exclusive of Pledged Bonds) which do not in aggregate principal
amount exceed the greater of 5% of the Net Tangible Assets of the
Company or 5% of the Capitalization of the Company, have been
retired through payment, redemption or otherwise, provided that no
default or Event of Default has occurred and, at such time, is
continuing under the Original Indenture.
“Substitute
Mortgage” means a mortgage indenture of the Company, other
than the Mortgage, designated by the Company to the Trustee as a
Substitute Mortgage pursuant to Section 4.03 hereof. The lien
of the Substitute Mortgage shall have such priority, and be with
respect to such property, as shall be specified by the Company in
its sole discretion.
“Substitute
Mortgage Bonds” means any mortgage bonds issued by the
Company under a Substitute Mortgage and delivered to the Trustee
pursuant to Section 4.03 hereof or pursuant to the comparable
provision of any other supplemental indenture relating to
Securities subject to the release provisions.
SECTION 1.02.
Section References. Each reference to a particular section set
forth in this Twenty-Ninth Supplemental Indenture shall, unless the
context otherwise requires, refer to this Twenty-Ninth Supplemental
Indenture.
TITLE AND TERMS OF THE
SECURITIES
SECTION 2.01.
Title of the Securities; Stated Maturity. This Twenty-Ninth
Supplemental Indenture hereby establishes a series of Securities,
which shall be known as the Company’s “2009
Series BT 6.00% Senior Notes due 2036” (the
“Notes”). For purposes of the Original Indenture, the
Notes shall constitute a single series of Securities. The Stated
Maturity on which the principal of the Notes shall be due and
payable will be December 1, 2036. The Notes are being issued
to secure the Company’s obligations to the MSF under the Loan
Agreement.
SECTION 2.02.
Certain Variations from the Original Indenture.
(a) The Notes
shall have the benefit of the provisions of Article Four of
the Original Indenture and shall have the benefit of, or be subject
to, the other related provisions of the Original Indenture relating
to the grant of security, including (for avoidance of doubt and not
for purposes of limitation) the Granting Clause, the definitions of
“Deliverable Mortgage Bonds,” “Deliverable
Securities,” “Designated Mortgage Bonds,”
“Grant,” “Mortgage,” “Mortgage
Bonds,” “Mortgage Trustee,” “Previously
Delivered Mortgage Bonds,” and “Trust Estate,”
Section 301(20), Sections
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301(a)(v),
(ix), (x) and (xi), Sections 301(b)(ii) and (iii),
Section 301(d), and Sections 601(4) and (8), subject, in each
case, to the release provisions provided for in Section 4.02
herein. In addition, on and after the Release Date, unless
Substitute Mortgage Bonds are issued to secure the Notes, the Notes
shall have the benefit of the additional covenants set forth in
Article Three hereof.
(b) In the
event the Company desires to provide for the payment of the Notes,
in lieu of defeasing the Notes in accordance with Section 503
of the Original Indenture, it shall redeem an equal principal
amount of the 2009BT Bonds. Pursuant to Section 2.03(c)
hereof, such redemption shall result in the discharge of the
Company’s obligation with respect to the Notes and the
cancellation of the Notes.
(c) Any
amount payable by the Company in respect of principal of the Notes,
whether at maturity or prior to maturity by redemption or upon
redemption or acceleration or otherwise, in a circumstance where
there has not been a corresponding payment of principal of 2009BT
Bonds, shall be applied simultaneously to the redemption of an
equal principal amount of 2009BT Bonds in accordance with the Bond
Indenture. In the event the amount so paid is insufficient to
provide for such redemption, the Company shall pay such additional
amounts as shall be necessary to make up the deficiency.
SECTION 2.03.
Amount, Assignability and Redemption.
(a) The
aggregate principal amount of Notes that may be issued under this
Twenty-Ninth Supplemental Indenture is limited to $68,500,000
(except as provided in Section 301(2) of the Original
Indenture). The Notes shall be issuable only as Registered
Securities without coupons and, as permitted by Section 301
and Section 302 of the Original Indenture, in denominations of
$5,000 and integral multiples thereof to the Bond Trustee as
assignee of the MSF, pursuant to the Loan Agreement. The Notes
shall not be further assignable or transferable except as may be
required to effect a transfer to any successor Bond
Trustee.
(b) The Notes
may bear such legends as may be necessary to refer to the Loan
Agreement or to comply with any law or with any rules or
regulations made pursuant thereto or to evidence the limited
assignability.
(c) Upon
payment of the principal, premium, if any, or interest on the
2009BT Bonds, whether at maturity or prior to maturity by
redemption or otherwise, or upon provision for the payment thereof
having been made in accordance with Article II of the Bond
Indenture, Notes in a principal amount equal to the principal
amount of the 2009BT 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 Notes shall be surrendered
for cancellation or presented for appropriate notation to the
Trustee.
(d) The Notes
shall be redeemed on the date and in the principal amount which
corresponds to the redemption date for, and the principal amount to
be redeemed of, the 2009BT Bonds.
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(e) In the
event of an Event of Default under the Bond Indenture and the
acceleration of the 2009BT Bonds, the Notes shall be redeemable in
whole upon receipt by the Trustee of a written demand (Redemption
Demand) from the Bond Trustee indicating that it has accelerated
the 2009BT Bonds.
SECTION 2.04.
Certain Terms of the Notes.
(a) The Notes
shall bear interest at the rate of 6.00% per annum on the principal
amount thereof from the date of original issue, or from the most
recent Interest Payment Date to which interest has been paid or
duly provided for, until the principal of the Notes becomes due and
payable, and on any overdue principal and premium and (to the
extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the same
rate per annum during such overdue period. Interest on the Notes
will be payable on such dates as interest shall be payable on the
2009BT Bonds (each such date, an “Interest Payment
Date”). Payment of interest on the 2009BT Bonds shall be
deemed to constitute payment of interest on the Notes. The amount
of interest payable for any period shall be computed on the same
basis as interest on the 2009BT Bonds pursuant to the Bond
Indenture.
(b) In the
event that any Interest Payment Date, redemption date or other date
of Maturity of the Notes is not a Business Day, then payment of the
amount payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other payment
in respect of any such delay), in each case with the same force and
effect as if made on such date. The interest installment so
payable, and punctually paid or duly provided for, on any Interest
Payment Date with respect to any Note will, as provided in the
Original Indenture, be paid to the person in whose name the Note
(or one or more Predecessor Securities, as defined in the Original
Indenture) is registered at the close of business on the relevant
record date for such interest installment, which shall be the same
as the record date for the 2009BT Bonds with respect to the
relevant Interest Payment Date (the “Regular Record
Date”). Any such interest installment not punctually paid or
duly provided for shall forthwith cease to be payable to the
registered Holders on such Regular Record Date, and may either be
paid to the person in whose name the Note (or one or more
Predecessor Securities) is registered at the close of business on a
Special Record Date to be fixed by the Trustee for the payment of
such defaulted interest, notice whereof shall be given to the
registered Holders of the Notes not less than ten days prior to
such Special Record Date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such
notice as may be required by such exchange, all as more fully
provided in the Original Indenture. The principal of, and premium,
if any, and the interest on the Notes shall be payable at the
office or agency of the Company maintained for that purpose in the
Borough of Manhattan, the City of New York, in any coin or currency
of the United States of America that at the time of payment is
legal tender for payment of public and private debts; provided,
however, that payment of interest may be made at the option of the
Company by check mailed to the registered Holder at the close of
business on the Regular Record Date at such address as shall appear
in the Security Register. Any waiver or rescission of a declaration
of acceleration of principal of the 2009BT Bonds shall constitute a
waiver or rescission with respect to the Notes.
(c) The Notes
are not subject to repayment at the option of the Holders thereof
and are not subject to any sinking fund, except to the extent that
the Bond Trustee, or its successor in interest,
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may have
exercised its rights pursuant to Section 2.03 hereof. As
provided in the form of the Note attached hereto as Exhibit A,
the Notes are subject to Optional Redemption and Extraordinary
Optional Redemption, as a whole or in part, and Special Optional
Redemption, in whole, by the Company prior to Stated Maturity of
the principal thereof upon the same terms as the 2009BT Bonds.
Except as modified in the form of Note, redemptions shall be
effected in accordance with Article Twelve of the Original
Indenture.
(d) The Notes
shall have such other terms and provisions as are set forth in the
form of Note attached hereto as Exhibit A (which is
incorporated by reference in and made a part of this Twenty-Ninth
Supplemental Indenture as if set forth in full at this
place).
SECTION 2.06. Form
of Note. Attached hereto as Exhibit A is the form of the
definitive Note. On and after the Release Date, the terms of the
Notes shall be amended to make appropriate reference to the
Substitute Mortgage and the Substitute Mortgage Bonds; provided,
that the consent of Holders shall not be required in connection
with such amendment.
SECURITY AND RELEASE
PROVISIONS
SECTION 4.01.
Security. Subject to Section 4.02 below, as provided in and
pursuant to Article Four of the Original Indenture, the Notes will
be secured as to payments of principal, interest and premium, if
any, by a series of Mortgage Bonds (the “General and
Refunding Mortgage Bonds, 2009 Series BT,” the
“Bonds,” the “Bonds of the related series”
or the “related series of Bonds”) of the Company to be
issued concurrently with the issuance of the Notes under and
secured by a Mortgage and Deed of Trust, dated as of
October 1, 1924, between the Company and The Bank of New York
Mellon Trust Company, N.A., as successor trustee (the
“Mortgage Trustee”), as amended and supplemented by
various supplemental indentures, including the supplemental
indenture, dated as of March 15, 2009, creating the Bonds
(collectively, the “Mortgage”), pledged by the Company
for the benefit of the Holders of the Notes to the Trustee under
this Twenty-Ninth Supplemental Indenture. The Bonds shall be issued
in an aggregate principal amount equal to the aggregate principal
amount of the Notes.
SECTION 4.02.
Release. Until the Release Date and subject to Article Four of
the Original Indenture, the Bonds of the related series issued and
delivered to the Trustee shall serve as security for any and all
obligations of the Company under all Notes from time to time
Outstanding, including, but not limited to (1) the full and
prompt payment of the principal and premium, if any, on the Notes
when and as the same shall become due and payable in accordance
with the terms and provisions of the Indenture or the Notes, either
at the Stated Maturity thereof, upon acceleration of the maturity
thereof, upon redemption, or otherwise, and (2) the full and
prompt payment of any interest on the Notes when and as the same
shall become due and payable in accordance with the terms and
provisions of this Indenture or the Notes including, if and to the
extent provided for in the Notes, interest on overdue installments
of principal and (to the extent permitted by law) interest on
overdue installments of interest.
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Each supplemental
indenture to the Mortgage pursuant to which any Bonds are issued
shall contain a provision to the effect that any payment by the
Company hereunder of principal of or premium or interest on Notes
which shall have been authenticated and delivered in connection
with the issuance and delivery to the Trustee of such Bonds (other
than by the application of the proceeds of a payment in respect of
such Bonds) shall to the extent thereof, be deemed to satisfy and
discharge the obligation of the Company, if any, to make a payment
of principal, premium or interest, as the case may be, in respect
of such Bonds which is then due.
Notwithstanding
anything in the Original Indenture to the contrary, from and after
the Release Date, the obligation of the Company to make payment
with respect to the principal of and premium, if any, and interest
on the Bonds shall be deemed satisfied and discharged as provided
in the su
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