EXHIBIT 4-234
[EXECUTION COPY]
[2003A BONDS]
INSURANCE AGREEMENT
THIS INSURANCE AGREEMENT, dated August 28, 2003, is entered into by and
between XL CAPITAL ASSURANCE INC., an insurance company incorporated under the
laws of the State of New York ("XLCA"), THE DETROIT EDISON COMPANY, a
corporation duly organized under the laws of the State of Michigan (the
"COMPANY"), and BANK ONE TRUST COMPANY, National Association, a national banking
association (the "TRUSTEE").
WHEREAS, pursuant to a Trust Indenture, dated as of August 1, 2003 (the
"2003A BOND INDENTURE"), between the Michigan Strategic Fund (the "ISSUER") and
the Trustee, the Issuer has issued $49,000,000 in aggregate principal amount of
its Limited Obligation Refunding Revenue Bonds (The Detroit Edison Company
Exempt Facilities Project), Series 0000X (xxx "XXXXX"); and
WHEREAS, pursuant to a Loan Agreement, dated as of August 1, 2003 (the
"LOAN AGREEMENT"), between the Issuer and the Company, the Issuer loaned the
proceeds of the issuance of the Bonds to the Company and the Company agreed to
make Loan Repayments (as defined in the Loan Agreement) when due under the Bond
Indenture in accordance with the terms thereof; and
WHEREAS, pursuant to the terms of the Bond Indenture, XLCA has issued a
financial guaranty insurance policy with respect to the Bonds (the "POLICY")
which insures the payment of principal of and interest on the Bonds from the
date hereof on the terms specified therein; and
WHEREAS, as a condition to the issuance of the Policy, XLCA requires
that certain notices and other information be delivered from time to time by the
Trustee and the Company and that certain rights be available to it in addition
to those available as a Municipal Bond Insurer (as defined in the Bond
Indenture) under the Bond Indenture; and
WHEREAS, the Company has agreed to provide funds to the Trustee for any
payments of principal of and interest on the Bonds when due; and
WHEREAS, the Company and the Trustee understand that XLCA expressly
requires the delivery of this Agreement and the XLCA Debt Securities and the
Related First Mortgage Bonds (as hereinafter defined) as part of the
consideration for the delivery by XLCA of the Policy;
NOW, THEREFORE, in consideration of the premises and of the agreements
herein contained and of the execution and delivery of the Policy, the Company,
the Trustee and XLCA agree as follows:
ARTICLE I
DEFINITIONS; PREMIUM AND EXPENSES
SECTION 1.01. DEFINITIONS. Except as otherwise expressly provided
herein or unless the context otherwise requires, the terms which are capitalized
herein shall have the meanings specified in the applicable Bond Document or in
Annex A hereto. In case of any inconsistency between a Bond Document and Annex
A, Annex A shall govern.
SECTION 1.02. PREMIUM. In consideration of XLCA agreeing to issue the
Policy, the Company hereby agrees to pay to XLCA the Premium on the date of
issuance of the Policy.
SECTION 1.03. CERTAIN OTHER EXPENSES. The Company will pay all
reasonable fees and disbursements of XLCA's counsel related to any modification
of this Agreement requested by the Company.
ARTICLE II
REIMBURSEMENT OBLIGATION; COVENANTS OF THE COMPANY
SECTION 2.01. REIMBURSEMENT OBLIGATION.
(a) The Company agrees to reimburse XLCA, from any available funds,
immediately and unconditionally upon demand for all amounts advanced by XLCA
under the Policy. To the extent that any such payment due hereunder is not paid
when due, interest shall accrue on such unpaid amounts at a rate equal to the
Effective Interest Rate.
(b) The Company also agrees to reimburse XLCA immediately and
unconditionally upon demand for all expenses hereafter incurred by XLCA in
connection with the enforcement by XLCA of the Company's obligations under this
Agreement, together with interest accruing at the Effective Interest Rate on any
unpaid expenses from and including the date which is 30 days from the date a
statement for such expenses is received by the Company to the date of payment.
SECTION 2.02. UNCONDITIONAL OBLIGATION. The obligations of the Company
hereunder are absolute and unconditional and will be paid or performed strictly
in accordance with this Agreement, irrespective of:
(a) any lack of validity or enforceability of, or any amendment or
other modification of, or waiver with respect to the Bonds or any of the Bond
Documents;
(b) any exchange, release or nonperfection of any security interest in
property securing the Bonds or this Agreement or any obligations hereunder;
(c) any circumstances which might otherwise constitute a defense
available to, or discharge of, the Company or the Issuer under the Bond
Documents or otherwise with respect to the Bonds; and
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(d) whether or not the Company's obligations under the Bond Documents,
or the obligations represented by the Bonds, are contingent or matured, disputed
or undisputed, liquidated or unliquidated.
SECTION 2.03. COVENANTS. The Company hereby agrees that, in the event
of any Reorganization, unless otherwise consented to by XLCA, the obligations of
the Company under, and in respect of, this Agreement, the Bonds, the Loan
Agreement, the note issued under the Company Indenture and the Related First
Mortgage Bonds shall be assumed by, and shall become direct and primary
obligations of, a Regulated Utility Company.
ARTICLE III
XLCA DEBT SECURITIES AND RELATED FIRST MORTGAGE BONDS
SECTION 3.01. XLCA DEBT SECURITIES AND RELATED FIRST MORTGAGE BONDS.
(a) In consideration of XLCA issuing the Policy, the Company shall, on
the date that the Policy is issued, deliver to XLCA a series of notes issued
under the Company Indenture and secured by first mortgage bonds issued under the
Mortgage Indenture as security for the payment of amounts payable by the Company
to XLCA under Section 2.01(a) of this Agreement (the notes so delivered are
herein referred to as the "XLCA DEBT SECURITIES" and the first mortgage bonds so
delivered are herein after referred to as (the "RELATED FIRST MORTGAGE BONDS").
The XLCA Debt Securities and the corresponding Related First Mortgage Bonds
shall be issued in an amount equal to 100% of the principal amount of Bonds
outstanding and shall bear interest at a rate per annum equal to the interest
rate on the Bonds. The XLCA Debt Securities shall mature on June 1, 2030. To the
extent that the principal amount of Related First Mortgage Bonds exceeds the
principal amount of Bonds outstanding, the excess Related First Mortgage Bonds
shall be surrendered to the Company. The XLCA Debt Securities will be issued
under, subject to and entitled to the benefits of the Company Indenture. Without
limiting the generality of the foregoing, upon payment of the principal of or
premium, if any, on the 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 Bond Indenture, or upon payment of interest on the
Bonds, XLCA Debt Securities in a principal amount equal to the principal amount
of such Bonds so paid or interest on the XLCA Debt Securities equal to the
interest so paid, as the case may be, shall, to the extent of such payment, be
deemed fully paid and the obligation of the Company thereunder to make such
payment shall be discharged. The Related First Mortgage Bonds will be issued
under, subject to and entitled to the benefit of the Mortgage Indenture. Without
limiting the generality of the foregoing, upon payment of the principal of or
premium, if any, on the XLCA Debt Securities, 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 Note Indenture, or upon payment of
interest on the XLCA Debt Securities, Related First Mortgage Bonds in a
principal amount equal to the principal amount of such XLCA Debt Securities so
paid or interest on the Related First Mortgage Bonds equal to the interest so
paid, as the case may be, shall, to the extent of such payment, be deemed fully
paid and the obligation of the Company thereunder to make such payment shall be
discharged.
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(b) The Trustee shall notify XLCA promptly of the occurrence of the
Release Date. From and after the Release Date, the obligation of the Company to
make payment with respect to the principal and premium, if any, and interest on
the Related First Mortgage Bonds shall be deemed satisfied and discharged as
provided in the supplemental trust indenture or indentures to the Mortgage
Indenture creating such First Mortgage Bonds, and the Related First Mortgage
Bonds shall cease to secure in any manner the XLCA Debt Securities issued by the
Company. From and after the Release Date, any conditions or agreements relating
or referring to the Related First Mortgage Bonds or the Mortgage Indenture
contained herein (other than as provided in subsection (c) below) shall be
inapplicable and such XLCA Debt Securities shall at the Company's option either
become unsecured general obligations of the Company or be secured by substitute
mortgage bonds issued under a mortgage indenture other than the Mortgage
Indenture. Promptly following receipt from the Trustee of notice of the
occurrence of the Release Date, XLCA shall surrender the Related First Mortgage
Bonds to the Company for cancellation.
ARTICLE IV
EVENTS OF DEFAULT; REMEDIES
SECTION 4.01. EVENTS OF DEFAULT. The following events shall constitute
Events of Default hereunder:
(a) The Company shall fail to pay to XLCA any amount payable under
Sections 1.02, 1.03 and 2.01 hereof and such failure shall have continued for a
period in excess of ten days (in the case of amounts payable under Sections 1.02
or 2.01 hereof) or 30 days (in the case of amounts payable under Section 1.03
hereof) after receipt by the Company of written notice thereof;
(b) Any material representation or warranty made by the Company
hereunder or any material statement in the application for the Policy or any
material report, certificate, financial statement or other instrument provided
in connection with the Policy or herewith shall have been materially false at
the time when made;
(c) The Company shall fail to perform its obligations under Section
3.01 hereof at the time required for performance of such obligations;
(d) Except as otherwise provided in this Section 4.01, the Company
shall fail to perform any of its other obligations hereunder, provided that such
failure continues for more than thirty (30) days after receipt by the Company of
written notice of such failure to perform;
(e) The dissolution or liquidation of the Company except as permitted
under the Loan Agreements; or failure by the Company promptly to lift any
execution, garnishment or attachment of such consequence as will impair its
ability to carry out its obligations under the Loan Agreements; or if the
Company becomes insolvent or bankrupt, or makes an assignment for the benefit of
creditors or consents to the appointment of a trustee or receiver for the
Company or for the greater part of its properties; or a trustee or receiver is
appointed for the Company or for the greater part of its properties without its
consent and is not discharged within 60 days; or
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bankruptcy, reorganization or liquidation proceedings are commenced by or
against the Company, and if commenced against the Company are consented to by it
or remain undismissed for 60 days; or if an order for relief is entered against
the Company in a bankruptcy or similar proceeding and remains undismissed for 60
days.
SECTION 4.02. REMEDIES. If an Event of Default shall occur and be
continuing, then XLCA may take whatever action at law or in equity may appear
necessary or desirable, including, without limitation, legal action for the
specific performance of any covenant made by the Company herein and the pursuit
of remedies available under the XLCA Debt Securities or the Related First
Mortgage Bonds or under any collateral delivered pursuant to Section 3.01(b)
hereof, to collect the amounts then due and thereafter to become due under this
Agreement, or to enforce performance and observance of any obligation, agreement
or covenant of the Company under this Agreement, the XLCA Debt Securities, the
Company Indenture, the Related First Mortgage Bonds or the Mortgage Indenture.
All rights and remedies of XLCA under this Section 5.02 are cumulative and the
exercise of any one remedy does not preclude the exercise of one or more other
remedies available under this Agreement, the XLCA Debt Securities, the Note
Indenture, the Related First Mortgage Bonds or the Mortgage or any collateral
delivered pursuant to Section 3.01(b), or now or hereafter existing at law or in
equity.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. CERTAIN RIGHTS OF XLCA. While the Policy is in effect and
until such time as all amounts payable by the Company hereunder have been paid:
(a) the Company and Trustee agree that any provision of Bond Documents
expressly recognizing or granting rights in or to Municipal Bond Insurer may not
be amended in any manner which affects the rights of the Municipal Bond Insurer
without the prior written consent of XLCA;
(b) the Company or the Trustee shall furnish to XLCA (to the attention
of the Surveillance Department) as soon as practicable after the filing thereof,
a copy of each Annual Report on Form 10-K and Quarterly Report on Form 10-Q
filed by the Company, a copy of any audited financial statements of the Company,
a copy of the annual report to shareholders of the Company's parent, DTE Energy
Company, and any other information reasonably requested;
(c) the Company will permit XLCA to discuss the affairs, finances and
accounts of the Company with appropriate officers of the Company;
(d) the Trustee or the Company, as appropriate, shall furnish to XLCA
(to the attention of the Surveillance Department) a copy of any notice to be
given to the registered owners of the Bonds, including, without limitation,
notice of any redemption of or defeasance of Bonds, and any certificate rendered
pursuant to the Bond Documents relating to the security for the Bonds;
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(e) the Trustee or the Company, as appropriate, shall notify XLCA (to
the attention of the General Counsel Office) of any failure of the Company to
provide relevant notices, certificates or other documents or information as
required under the Bond Documents;
(f) at the written request of XLCA due to any material breach by the
Trustee of the trust and responsibilities set forth in the Bond Indenture, which
breach is not cured by the Trustee within ten business days of written notice of
such breach from XLCA to the Trustee, the Trustee (subject to subsection (g)
below) shall resign from its responsibilities under the Bond Indenture; and
(g) XLCA shall receive prior written notice of any Trustee resignation
and, notwithstanding any provision of the Bond Indenture, no removal,
resignation or termination of the Trustee, or any part of its responsibilities
under the Bond Indenture, shall take effect until a successor, acceptable to
XLCA, shall be appointed and such successor shall have executed a document
satisfactory to XLCA assenting to the obligations of the Trustee set forth
herein. In the event that a successor Trustee cannot be identified within 60
days from the date the Trustee notifies the XLCA and the Company of its
resignation, the Trustee will have the right to petition a court of competent
jurisdiction for the appointment of a successor Trustee.
SECTION 5.02. INDEMNIFICATION. The Company shall indemnify and hold
XLCA, its officers and directors and any person controlling or under common
control with XLCA within the meaning of the Securities Exchange Act of 1934 (the
"INDEMNIFIED PARTIES") harmless against any loss, fees, costs, liability or
reasonable expense incurred without gross negligence or willful misconduct on
the part of XLCA or other Indemnified Parties arising out of or in connection
with the delivery of the Policy and its performance thereunder, including the
costs and expenses of defense against any such claim of liability. If any action
or proceeding (including any governmental investigation) shall be brought or
asserted against any Indemnified Party in respect of which indemnity may be
sought from the Company hereunder, XLCA shall promptly notify the Company in
writing, and the Company shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to XLCA and the payment of all
expenses. An Indemnified Party shall have the right to employ separate counsel
in any such action and to participate in the defense thereof at the expense of
the Indemnified Party; provided, however, that the fees and expenses of such
separate counsel shall be at the expense of the Company if (i) the Company has
agreed to pay such fees and expenses, (ii) the Company shall have failed
promptly to assume the defense of such action or proceeding and employ counsel
reasonably satisfactory to XLCA or other Indemnified Party, as the case may be,
in any such action or proceeding or (iii) the named parties to any such action
or proceeding (including any impleaded parties) include both the Indemnified
Party and the Company, and the Indemnified Party shall have been advised by
counsel that (A) there may be one or more legal defenses available to it which
are different from or additional to those available to the Company and (B) the
representation of the Company and the Indemnified Party by the same counsel
would be inappropriate or contrary to prudent practice (in which case, if the
Indemnified Party notifies the Company in writing that it elects to employ
separate counsel at the expense of the Company, the Company shall not have the
right to assume the defense of such action or proceeding on behalf of such
Indemnified Party, it being understood, however, that the Company shall not, in
connection with any one such action or proceeding or separate but substantially
similar or related actions or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances,
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be liable for the reasonable fees and expenses of more then one separate firm of
attorneys at any time (in addition to local counsel, if necessary) for the
Indemnified Parties, which firm (or firms) shall be designated in writing by
XLCA or other Indemnified Party, as the case may be). The Company shall not be
liable for any settlement of any such action or proceeding effected without its
written consent to the extent that any such settlement shall be prejudicial to
the Company, but, if settled with its written consent, or if there be a final
judgment for the plaintiff in any such action or proceeding with respect to
which the Company shall have received notice in accordance with this Section
5.02, the Company agrees to indemnify and hold the Indemnified Parties harmless
from and against any loss or liability by reason of such settlement or judgment.
The indemnification set forth herein shall survive the cancellation or
expiration of the Policy and/or removal of XLCA.
SECTION 5.03. PARTIES INTERESTED HEREIN. Nothing in this Agreement
expressed or implied is intended or shall be construed to confer upon, or to
give or grant to, any person or entity, other than the Company and XLCA, any
right, remedy or claim under or by reason of this Agreement or any covenant,
condition or stipulation hereof, and all covenants, stipulations, promises and
agreements in this Agreement contained by and on behalf of the Company and XLCA
shall be for the sole and exclusive benefit of the Company and XLCA.
SECTION 5.04. AMENDMENT AND WAIVER. Any provision of this Agreement may
be amended, waived, supplemented, discharged or terminated only with the prior
written consent of the Company and XLCA. The Company hereby agrees that upon the
written request of the Trustee, XLCA may make or consent to issue any substitute
for the Policy to cure any ambiguity or formal defect or omission in the Policy
which does not materially change the terms of the Policy nor adversely affect
the rights of the Owners, and this Agreement shall apply to such substituted
Policy. XLCA agrees to deliver to the Company and to the company or companies,
if any, rating the Bonds, a copy of such substituted Policy.
SECTION 5.05. SUCCESSORS AND ASSIGNS; DESCRIPTIVE HEADINGS.
(a) This Agreement shall bind, and the benefits thereof shall inure to,
the Company and XLCA and their respective successors and assigns; provided, that
neither party hereto may transfer or assign any or all of its rights and
obligations hereunder without the prior written consent of the other party
hereto. Notwithstanding the foregoing provisions of this Section 6.04(a), XLCA
shall have the right to reinsure any portion of its exposure under the Policy to
third party reinsurers, it being understood that any such reinsurance shall not
relieve XLCA of its obligations under the Policy.
(b) The descriptive headings of the various provisions of this
Agreement are inserted for convenience of reference only and shall not be deemed
to affect the meaning or construction of any of the provisions hereof.
(c) The merger of the Company with its affiliate Michigan Consolidated
Gas Company shall not require the prior written consent of XLCA provided that
written confirmation has been received from Xxxxx'x Investors Service Inc. and
Standard & Poors Ratings Group that the long-term debt securities of the
surviving company will be rated "A3" and "A-", respectively.
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SECTION 5.06. COUNTERPARTS. This Agreement may be executed in any
number of copies and by the different parties hereto on the same or separate
counterparts, each of which fully-executed counterparts shall be deemed to be an
original instrument, and all of which shall constitute but one and the same
instrument. Complete counterparts of this Agreement shall be lodged with the
Company, the Trustee and XLCA.
SECTION 5.07. TERM. This Agreement shall expire upon the later of (i)
the expiration of the Policy in accordance with the terms thereof, or (ii) the
repayment in full to XLCA of any amounts due and owing to it by the Company
under this Agreement or the Policy.
SECTION 5.08. EXERCISE OF RIGHTS. No failure or delay on the part of
XLCA to exercise any right, power or privilege under this Agreement and no
course of dealing between XLCA and the Company or any other party shall operate
as a waiver of any such right, power or privilege, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein expressly provided are cumulative and not
exclusive of any rights or remedies which XLCA would otherwise have pursuant to
law or equity. No notice to or demand on any party in any case shall entitle
such party to any other or further notice or demand in similar or other
circumstances, or constitute a waiver of the right of the other party to any
other or further action in any circumstances without notice or demand.
SECTION 5.09. WAIVER. The Company waives any defense that this
Agreement was executed subsequent to the date of the Commitment, admitting and
covenanting that such Commitment was delivered pursuant to the Company's request
and in reliance on the Company's promise to execute this Agreement.
SECTION 5.10. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes any and all prior agreements and understandings of the parties
hereto with respect to the subject matter hereof, including but not limited to
the Commitment.
SECTION 5.11. NOTICES. All written notices to or upon the respective
parties hereto shall be deemed to have been given or made when actually
received, or in the case of telecopier machine owned or operated by a party
hereto, when sent and confirmed in writing by such machine as having been
received, addressed as specified below or at such other address as any of the
parties hereto may from time to time specify in writing to the other:
If to the Company:
The Detroit Edison Company
0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxx, Treasurer
Facsimile: 000-000-0000
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If to the Trustee:
Bank One Trust Company, National Association
000 Xxxxxxxx Xxxxxx
Xxxxx XX0-0000, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: J. Xxxxxxx Xxxxx, Vice President
Facsimile: 313-225-3420
If to XLCA:
XL Capital Assurance Inc.
1221 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx, Surveillance Department
Facsimile: 000-000-0000
and
Attention: Xxxxxxxxx X. Xxxx, Esq., General Counsel
Facsimile: 000-000-0000
SECTION 5.12. GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Agreement to be duly executed and delivered as of the date first above
written.
THE DETROIT EDISON COMPANY
By: _______________________________
X. X. Xxxxxxxx
Assistant Treasurer
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
By: _______________________________
Name:
Title:
XL CAPITAL ASSURANCE INC.
By: _______________________________
Name:
Title:
ANNEX A
DEFINITIONS
For all purposes of this Agreement, the terms "XLCA", "COMPANY",
"TRUSTEE", "BOND INDENTURE", "ISSUER", "BONDS", "LOAN AGREEMENT" and "POLICY"
have meanings set forth in the preambles and the recitals hereof and except as
otherwise expressly provided herein or unless the context otherwise requires,
all capitalized terms shall have the meanings as set out below.
"AGREEMENT" means this Insurance Agreement.
"BOND DOCUMENTS" means, collectively, the Bond Indenture, the
Loan Agreement and any other documents and instruments delivered in
connection with the issuance of the Bonds.
"COMPANY INDENTURE" means the Collateral Trust Indenture dated
as of June 30, 1993, as supplemented, between the Company and Bank One
Trust Company, National Association, as successor trustee.
"EFFECTIVE INTEREST RATE" means the "prime rate" announced by
Citibank, N.A., from time to time, plus 2%.
"EVENT OF DEFAULT" means any of the events of default set
forth in Section 4.01 of this Agreement.
"INTEREST PAYMENT DATE" means the first day of June and
December of each year commencing December 1, 2003.
"MORTGAGE INDENTURE" means the Mortgage and Deed of Trust
dated as of October 1, 1924, by and between the Company and Bank One,
National Association, as trustee, as amended, modified or supplemented
from time to time, including without limitation the Supplemental
Indenture, dated as of August 1, 2003, providing for General and
Refunding Mortgage Bonds, 2003 Series A, due June 1, 2030.
"PREMIUM" means the premium amount determined in accordance
with the commitment letter, dated August 21, 2003, from XLCA to the
Company, committing to issue the Policy in respect of the Bonds,
subject to the terms and conditions thereof.
"REGULATED UTILITY COMPANY" means an entity engaged in the
retail sale and distribution of electricity, which sale and
distribution is subject to rate regulation by a state public utility
commission.
"RELEASE DATE" means the date as of which all mortgage bonds,
other than mortgage bonds subject to the release provisions of the
Mortgage Indenture, including the Related First Mortgage Bonds, and
other than mortgage bonds which do not in the aggregate principal
amount exceed the greater of 5% of the Company's Net Tangible Assets
(as defined in the Company Indenture) or 5% of the Company's
Capitalization (as
defined in the Company Indenture), have been retired through payment,
redemption or otherwise.
"REORGANIZATION" means any reorganization of the Company and
its affiliates or any consolidation, merger or transfer of a
substantial portion of the assets of the Company.
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