1
EXHIBIT 4-13
============================================================
THE DETROIT EDISON COMPANY
AND
BANKERS TRUST COMPANY
Trustee
_______________
FIRST AMENDMENT TO THIRD SUPPLEMENTAL INDENTURE
Dated as of December 12, 1995
_____________________
Amending the Collateral Trust Indenture
Dated as of June 30, 1993
and the Third Supplemental Indenture
Dated as of August 15, 1994
============================================================
2
FIRST AMENDMENT, dated as of the 12th day of December, 1995 to
the THIRD SUPPLEMENTAL INDENTURE, dated as of the 15th day of August, 1994,
between THE DETROIT EDISON COMPANY, a corporation organized and existing under
the laws of the State of Michigan (the "Company"), and BANKERS TRUST COMPANY, a
New York banking corporation, having its principal office in The City of New
York, New York, as trustee (the "Trustee");
WHEREAS, the Company has heretofore executed and delivered to
the Trustee a Collateral Trust Indenture dated as of June 30, 1993 (the
"Original Indenture" and, together with the First Supplemental Indenture dated
as of June 30, 1993, the Second Supplemental Indenture dated as of September
15, 1993, the Third Supplemental Indenture dated as of August 15, 1994 (the
"Third Supplemental Indenture" and, as amended hereby, the "Amended Third
Supplemental Indenture) and the Fourth Supplemental Indenture dated as of
August 15, 1995 the "Indenture") providing for the issuance by the Company from
time to time of its secured notes to be issued in one or more series (in the
Original Indenture and herein called the "Securities"); 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 and pursuant to appropriate resolutions of the Board of
Directors, has duly determined to make, execute and deliver to the Trustee this
First Amendment to the Third Supplemental Indenture to the Original Indenture
in order to amend the form and terms of the series of Securities designated as
the "Remarketed Secured Notes 1994 Series C Due 2034" with the consent of the
Holders of not less than a majority in principal amount of the Outstanding
Securities of such series as permitted by Section 1002 of the Original
Indenture; and
WHEREAS, the Holders of not less than a majority in principal
amount of the Notes (as defined herein) outstanding as of 12:00 noon, New York
City time, on December 12, 1995, the record date for such purpose, have
consented to the amendments set forth herein; and
WHEREAS, all things necessary to make this First Amendment to
the Third Supplemental Indenture a valid, binding and legal agreement of the
Company, have been done;
NOW, THEREFORE, THIS FIRST AMENDMENT TO THE THIRD SUPPLEMENTAL
INDENTURE WITNESSETH that, in order to amend the terms of the series of
Securities designated as the "Remarketed Secured Notes 1994 Series C Due 2034",
and for and in consideration of the premises and of the covenants contained in
the Original Indenture and in this Amended Third 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:
1
3
ARTICLE ONE
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions. Each capitalized term that is used
herein and is defined in the Original Indenture or the Third Supplemental
Indenture shall have the meaning specified in the Original Indenture or the
Third Supplemental Indenture, as the case may be, unless such term is otherwise
defined herein.
"Beneficial Owner" shall mean, for Notes in book-entry form,
the person who acquires an interest in the Notes which is reflected on the
records of DTC through its participants.
"Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions located in
the State of Michigan or in the state in which the principal corporate trust
office of the Trustee is located, are authorized or obligated by or pursuant to
law or executive order to close.
"Commercial Paper Term Mode" means, with respect to any Note,
the Interest Rate Mode in which the interest rate on such Note is reset on a
periodic basis which shall not be less than one calendar day nor more than 364
consecutive calendar days and interest is paid as provided for such Interest
Rate Mode in Section 203 hereof.
"Daily Interest Rate Mode" means, with respect to any Note,
the Interest Rate Mode in which the interest rate on such Note is reset on a
daily basis and interest is paid as provided for such Interest Rate Mode in
Section 203 hereof.
"Fixed Interest Rate Mode" means, with respect to any Note,
the Interest Rate Mode in which the interest rate on such Note is determined
and in effect until the Stated Maturity of such Note and interest is paid as
provided for such Interest Rate Mode in Section 203 hereof.
"Floating Interest Rate Mode or Modes" means any of the
following: the Daily Interest Rate Mode or the Weekly Interest Rate Mode.
"Interest Rate Adjustment Date" means for a particular
Interest Rate Period in any Interest Rate Mode, each date, which shall be a
Business Day, on which interest on the Notes subject thereto commences to
accrue at the rate determined and announced by the applicable Remarketing Agent
for such Interest Rate Period and for Notes bearing interest at the Initial
Interest Rate (as hereinafter defined), the Business Day following the
expiration of the Initial Interest Rate Period (as hereinafter defined).
2
4
"Interest Rate Mode" means the mode in which the Interest Rate
on a Note is being determined, i.e., a Commercial Paper Term Mode, a Daily
Interest Rate Mode, a Weekly Interest Rate Mode, the Long Term Rate Mode or the
Fixed Interest Rate Mode.
"Interest Rate Period" means, with respect to any Note, the
period of time commencing on the Interest Rate Adjustment Date to, but not
including the immediately succeeding Interest Rate Adjustment Date during which
such Note bears interest at a particular interest rate.
"Liquidity Provider" means, any bank or other credit provider
whose obligations such as those under the Standby Note Purchase Agreement with
respect to any Notes are exempt from registration under the Securities Act of
1933, as amended, with long term senior debt ratings from Standard & Poor's
Corporation and Xxxxx'x Investors Service, Inc. at least equal to those of the
Company as of the date of the Standby Note Purchase Agreement, and a minimum
combined capital and surplus of at least $50,000,000, that has entered into a
Standby Note Purchase Agreement with the Company for the purpose of purchasing
unremarketed Notes on any Interest Rate Adjustment Date; provided, that for
purposes of any notices to be given hereunder, "Liquidity Provider" means the
Administrative Agent (as defined in such Standby Note Purchase Agreement).
"Long Term Rate Mode" means, with respect to any Note, the
Interest Rate Mode in which the interest rate on such Note is reset in a Long
Term Rate Period and interest is paid as provided for such Interest Rate Mode
in Section 203 hereof.
"Long Term Rate Period" means, with respect to any Note, any
period of more than 364 days and less than the Stated Maturity of such Note.
"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.
"Notes" or "Note" have the meaning specified in Section 201.
"Optional Redemption" means the redemption of any Note prior
to its maturity at the option of the Company as described herein.
"Remarketing Agent" means such agent or agents, including any
standby remarketing agent (each a "Standby Remarketing Agent"), as the Company
may appoint from time to time for the purpose of remarketing of the Notes, as
set forth in the remarketing agreement which the Company shall enter into prior
to the remarketing of such Notes.
3
5
"Standby Note Purchase Agreement" means the agreement which
the Company may, at its option, enter into from time to time with a Liquidity
Provider for the purpose of purchasing unremarketed Notes.
"Weekly Interest Rate Mode" means, with respect to any Note,
the Interest Rate Mode in which the interest rate on such Note is reset on a
periodic basis approximating one week and interest is paid as provided for such
Interest Rate Mode in Section 203 hereof.
The foregoing Section 101 supersedes Section 101 of the Third
Supplemental Indenture in its entirety.
Section 102. Section References. Each reference to a
particular section set forth in this First Amendment to the Third Supplemental
Indenture shall, unless the context otherwise requires, refer to this First
Amendment to the Third Supplemental Indenture.
ARTICLE TWO
TITLE AND TERMS OF THE NOTES
Section 201. Title of the Notes; Amendments. This First
Amendment to the Third Supplemental Indenture hereby amends the series of
Securities designated as the "Remarketed Secured Notes 1994 Series C Due 2034"
of the Company (each referred to herein as a "Note" and collectively as the
"Notes"). For purposes of the Original Indenture, the Notes shall constitute a
single series of Securities.
Section 202. Variations in Terms of Notes. Subject to the
terms and conditions set forth in the Original Indenture and in the Amended
Third Supplemental Indenture, the terms of any particular Note may vary from
the terms of any other Note as contemplated by Section 301 of the Original
Indenture, and such terms for a particular Note will be set forth in such Note
as delivered to the Trustee or an Authenticating Agent for authentication
pursuant to Section 303 of the Original Indenture.
Section 203. Interest, Interest Rates and Interest Rate
Modes. Each Note will initially bear interest at the rate per annum set forth
in such Note (the "Initial Interest Rate") through the date set forth in such
Note (the "Initial Interest Rate Period"). Thereafter, each Note at the option
of the Company will bear interest in the Commercial Paper Term Mode, the Daily
Interest Rate Mode, the Weekly Interest Rate Mode, the Long Term Rate Mode or
may be permanently converted to the Fixed Interest Rate Mode. Each Note may
bear interest in the same or a different Interest Rate Mode from other Notes.
The interest rate for the Notes will be established periodically as described
herein by the applicable Remarketing Agent.
4
6
Interest will be payable on any Note at Maturity and (i)
bearing interest at the Initial Interest Rate, on the date or dates set forth
on the face thereof; (ii) for any Interest Rate Period in the Commercial Paper
Term Mode, on the Interest Rate Adjustment Date commencing the next succeeding
Interest Rate Period for such Note and on such other dates (if any) as will be
established upon conversion of such Note to the Commercial Paper Term Mode or
upon remarketing of the Note in a new Interest Rate Period in the Commercial
Paper Term Mode and set forth in the applicable Note; (iii) in the Daily or
Weekly Interest Rate Mode, on the first Business Day of each month (unless such
day is less than 11 days after conversion to such Interest Rate Mode, in which
case interest will be payable on the first Business Day of the next succeeding
month); and (iv) in the Long Term Rate Mode or Fixed Interest Rate Mode, at
least semiannually on such dates as will be established upon conversion of such
Note to the Long Term Rate Mode (or upon remarketing of the Note in a new
Interest Rate Period in the Long Term Rate Mode, as the case may be) or Fixed
Interest Rate Mode and set forth in the applicable Note, and on the Interest
Rate Adjustment Date commencing the next succeeding Interest Rate Period, in
the case of Notes in the Long Term Rate Mode. Such interest will be payable to
the holder thereof as of the related Record Date, which, for any Note (x) in
the Daily or Weekly Interest Rate Mode, is the last calendar day of the month
preceding an Interest Payment Date; (y) in the Commercial Paper Term Mode, or
bearing interest at the Initial Interest Rate (unless otherwise specified in
the Note), is the Business Day prior to the related Interest Payment Date; and
(z) in the Long Term Rate Mode or Fixed Interest Rate Mode, is 15 days prior to
the related Interest Payment Date. If any Interest Payment Date would
otherwise be a day that is not a Business Day, such Interest Payment Date will
be postponed to the next succeeding Business Day, and no interest will accrue
on such payment for the period from and after such Interest Payment Date to the
date of such payment on the next succeeding Business Day. Interest on Notes
bearing interest in a Floating Interest Rate Mode or the Commercial Paper Term
Mode will be computed on the basis of actual days elapsed over 360. Interest
on Notes in the Long Term Rate Mode or Fixed Interest Rate Mode will be
computed on the basis of a year of 360 days consisting of twelve 30-day months.
Interest on Notes at the Initial Interest Rate will be computed on the basis of
(a) actual days elapsed over 360 if the Initial Interest Rate Period is less
than one year or (b) a year of 360 days consisting of twelve 30-day months if
the Initial Interest Rate Period is one year or more.
Determination of Interest Rates. The interest rate for any
Note will be established by the applicable Remarketing Agent in a remarketing
as described in Section 206 hereof or otherwise not later than the Interest
Rate Adjustment Date for such Note as the minimum rate of interest necessary in
the judgment of such Remarketing Agent to produce a par bid in the secondary
market for such Note on the date the interest rate is established. Such rate
will be effective for the next succeeding Interest Rate Period for such Note
commencing on such Interest Rate Adjustment Date.
In the event that (i) the applicable Remarketing Agent has
been removed or has resigned and no successor has been appointed, or (ii) such
Remarketing Agent has failed to
5
7
announce the appropriate interest rate on the Interest Rate Adjustment Date for
any Note for whatever reason, or (iii) the appropriate interest rate or
Interest Rate Period cannot be determined for any Note for whatever reason, all
such Notes for which such Remarketing Agent is responsible for remarketing
shall be automatically converted to the Weekly Interest Rate Mode and the rate
of interest thereon shall be equal to the rate per annum announced by NBD Bank,
N.A., or such other nationally recognized bank located in the United States as
the Company may select, as its prime lending rate, (such rate of interest being
referred to herein as the "Special Interest Rate").
The interest rate on the Notes shall not exceed the Maximum
Rate.
The Trustee shall, upon request of any Beneficial Owner of a
Note, advise such Beneficial Owner or the applicable Remarketing Agent of the
interest rate applicable to such Beneficial Owner's Notes for the next Interest
Rate Period. Neither the Trustee nor the Company will otherwise be required to
advise Beneficial Owners of the applicable interest rate.
Interest Rate Modes.
Commercial Paper Term Period. The Interest Rate Period for
any Note in the Commercial Paper Term Mode will be a Commercial Paper Term
Period, which will be a period of not less than one nor more than 364
consecutive calendar days, as determined by the Company or, if not so
determined, by the Remarketing Agent for such Note (in its best judgment in
order to obtain the lowest interest cost for such Note). Each Commercial Paper
Term Period will commence on the Interest Rate Adjustment Date therefor and end
on the day preceding the date specified by such Remarketing Agent as the first
day of the next Interest Rate Period for such Note. The interest rate for any
Commercial Paper Term Period relating to a Remarketed Note will be determined
not later than 11:00 a.m., New York City time, on the Interest Rate Adjustment
Date for such Notes (subject to Section 206) which is the first day of each
Interest Rate Period for such Notes; provided, however, that if such day is not
a Business Day, the Interest Rate Adjustment Date for any Note in such
Commercial Paper Term Mode shall be the next succeeding day which is a Business
Day.
Daily Interest Rate Period. The Interest Rate Period for any
Note in the Daily Interest Rate Mode will commence at the beginning of each
Business Day and end at the end of the calendar day preceding the next Business
Day. The interest rate for such Notes will be determined each Business Day not
later than 9:30 a.m., New York City time on such day (subject to Section 206).
The Daily Interest Rate Mode shall occur only so long as the Notes are
maintained in a book-entry system.
Weekly Interest Rate Period. The Interest Rate Period for any
Note in the Weekly Interest Rate Mode will generally be a seven day period
commencing on any Business Day, as
6
8
determined by the applicable Remarketing Agent, and ending on the day preceding
the first day of the next Interest Rate Period for such Note. The interest
rate for any Notes in the Weekly Interest Rate Mode will be determined not
later than 11:00 a.m., New York City time, on the Interest Rate Adjustment Date
for such Notes (subject to Section 206), which is the first day of each
Interest Rate Period for such Notes.
Long Term Rate Period. The Interest Rate Period for any Note
in the Long Term Rate Mode will be established by the Company as a period of
more than 364 days and less than the Stated Maturity of such Note; provided,
however, that such Interest Rate Period must end on the day prior to an
Interest Payment Date for such Note; and provided further that, if so provided
in a Note in the Long Term Rate Mode and specified at the time of remarketing
into a Long Term Rate Period, the Company may shorten the Interest Rate Period
and provide for payment of a premium in respect thereof for any such Note upon
written notice to the Remarketing Agent and the Trustee not less than thirty
(30) days prior to the date upon which such shortened Interest Rate Period
shall expire. Promptly upon receipt of such notice and, in any case, not later
than the close of business on such date, the Trustee will transmit such
information to DTC in accordance with DTC's procedures as in effect from time
to time. In such case, the next Interest Rate Adjustment Date otherwise set
forth in such Note shall instead be the date upon which such Interest Rate
Period shall expire. The interest rate for any Notes in the Long Term Rate
Mode will be determined not later than 11:00 a.m., New York City time, on the
Interest Rate Adjustment Date for such Notes (subject to Section 206). The
Interest Rate Adjustment Date for the Long Term Rate Mode is the first day of
the Interest Rate Period; provided, however, that if such day is not a Business
Day, the Interest Rate Adjustment Date for any Note in such Long Term Rate Mode
shall be the next succeeding day which is a Business Day.
If any Note is subject to early remarketing as provided above, the
Interest Rate Period may be shortened by the Company on any date on and after
the Initial Early Remarketing Date, if any, specified in the Note, upon prior
written notice as provided above. On and after the Initial Early Remarketing
Date, if any, on the Interest Rate Adjustment Date relating to such shortened
Interest Rate Period for this Note, the Company will pay a premium to the
tendering Beneficial Owner of the Note, together with accrued interest, if any,
thereon at the applicable rate payable to such Interest Rate Adjustment Date.
Unless otherwise specified in the Note, the premium shall be an amount equal to
the Initial Early Remarketing Premium specified therein (as adjusted by the
Annual Early Remarketing Premium Percentage Reduction, if applicable),
multiplied by the principal amount of the Note subject to early remarketing.
The Initial Early Remarketing Premium, if any, shall decline at each
anniversary of the Initial Early Remarketing Date by an amount equal to the
applicable Annual Early Remarketing Premium Percentage Reduction, if any,
specified in the Note until the premium is equal to 0.
Fixed Interest Rate Period. The Interest Rate Period for any
Note in the Fixed Interest Rate Mode will commence on the date of conversion to
such Interest Rate Mode and
7
9
continue to the final maturity or date of redemption of such Note. The
interest rate for Notes in the Fixed Interest Rate Mode will be determined not
later than 11:00 a.m., New York City time, on the Interest Rate Adjustment Date
for such Notes (subject to Section 206), which is the date of conversion to the
Fixed Interest Rate Mode for such Notes and will be set forth on the face of
such Notes.
The foregoing Section 203 supersedes Section 204 of the Third
Supplemental Indenture in its entirety.
Section 204. Conversion. As long as the Notes are not in the
Fixed Rate Mode, the Company may change the Interest Rate Mode at its option in
the manner described below.
(a) Conversion From a Floating Interest Rate Mode. Any
Note in a Floating Interest Rate Mode may be converted at the option of the
Company to any Interest Rate Mode on any Interest Rate Adjustment Date for such
Note upon receipt by the Trustee and the applicable Remarketing Agent of
notice, confirmed in writing, from the Company (a "Conversion Notice") not less
than ten days prior to such Interest Rate Adjustment Date. The Conversion
Notice will contain the new Interest Rate Mode and the date of such conversion
(a "Conversion Date"), and will state that such Note will be subject to
mandatory tender by the Beneficial Owner thereof, as described in Section 205
hereof. Such Beneficial Owner will be deemed to have tendered such Note as of
the Conversion Date and will not be entitled to further accrual of interest on
such Note after such date. Promptly upon receipt of such notice and, in any
case, not later than the close of business on such date, the Trustee will
transmit such information to DTC in accordance with DTC's procedures as in
effect from time to time.
(b) Conversion from the Commercial Paper Term Mode or the
Long Term Rate Mode. Any Note in the Commercial Paper Term Mode or the Long
Term Rate Mode may be converted at the option of the Company to a Floating
Interest Rate Mode or the Fixed Interest Rate Mode on any Interest Rate
Adjustment Date upon receipt by the Trustee and the applicable Remarketing
Agent of notice, confirmed in writing, from the Company not less than five
Business Days prior to such Interest Rate Adjustment Date. The Conversion
Notice will contain the new Interest Rate Mode and the Conversion Date, and
will state that such Note will be subject to mandatory tender by the Beneficial
Owner thereof, as described in Section 205 hereof. Such Beneficial Owner will
be deemed to have tendered such Note as of the Conversion Date and will not be
entitled to further accrual of interest on such Note after such date. Promptly
upon receipt of such notice and, in any case, not later than the close of
business on such date, the Trustee will transmit such information to DTC in
accordance with DTC's procedures as in effect from time to time. No Conversion
Notice will be required hereunder for conversions within or between the
Commercial Paper Term Mode and the Long Term Rate Mode.
8
10
Any Note converted to the Fixed Interest Rate Mode will not be
subject to any further conversions between Interest Rate Modes.
(c) Revocation or Change of Conversion Notice. The
Company may, upon written notice received by the Trustee, the applicable
Remarketing Agent and DTC, revoke any Conversion Notice or change the Interest
Rate Mode to which such Conversion Notice relates up to 9:30 a.m., New York
City time, on the Conversion Date.
The foregoing Section 204 supersedes Section 205 of the Third
Supplemental Indenture in its entirety.
Section 205. Tender of Notes.
(a) Demand Tender Option for Notes in a Floating Interest
Rate Mode. Any Note in the Daily or Weekly Interest Rate Mode is subject to
tender and purchase upon demand by the Beneficial Owner thereof on any Business
Day selected by such Beneficial Owner as hereinafter provided, at the purchase
price of par plus accrued interest, upon notice to the applicable Remarketing
Agent and to such Beneficial Owner's DTC participant on a Business Day not
later than (i) one (1) Business Day prior to the specified purchase date, in
the case of any Note in the Daily Interest Rate Mode, or (ii) seven days prior
to the specified purchase date, in the case of any Note in the Weekly Interest
Rate Mode; provided, however, that in either such case if the date selected for
purchase is not a Business Day, the purchase date shall be the next succeeding
Business Day. Such notice shall (A) state the principal amount (or portion
thereof) of such Note to be purchased, (B) state the purchase date on which
such Note will be purchased, and (C) irrevocably request such purchase. Upon
giving such notice, the Beneficial Owner of such Note will be deemed to have
irrevocably tendered such Note for remarketing as described below. Notes may
only be tendered in amounts of $100,000 and integral multiples thereof and no
Notes will be purchased in part if such partial purchase would result in the
principal amount of any Notes of a Beneficial Owner outstanding being in any
denomination of less than $100,000 or an integral multiple thereof.
(b) Mandatory Tender of Notes at the Initial Interest
Rate or in the Long Term Rate Mode or Commercial Paper Term Mode. Any Note
bearing interest at the Initial Interest Rate or in the Long Term Rate Mode or
in the Commercial Paper Term Mode will be automatically tendered for purchase,
or deemed tendered for purchase, on each Interest Rate Adjustment Date relating
thereto. Notes will be purchased on the Interest Rate Adjustment Date relating
thereto as described in Section 206 hereof.
Section 206. Remarketing. The interest rate on each Note
will be established from time to time by each Remarketing Agent responsible for
the remarketing thereof in accordance with the following procedures:
9
11
(a) Interest Rate Adjustment Date; Determination of
Interest Rate. By 11:00 a.m., New York City time (or 9:30 a.m., New York City
time, in the case of any Note in the Daily Interest Rate Mode), on the Interest
Rate Adjustment Date for any Note, the applicable Remarketing Agent will
determine the interest rate for such Note being remarketed to the nearest
one-thousandth (0.001) of one percent per annum for the next Interest Rate
Period; provided, that between 11:00 a.m., New York City time (or 9:30 a.m.,
New York City time, in the case of any Note in the Daily Interest Rate Mode),
and 11:50 a.m., New York City time, the Remarketing Agent and the Standby
Agent, if any, shall use their best efforts to determine the interest rate for
any Notes not successfully remarketed as of the applicable deadline specified
in this paragraph. In determining the applicable interest rate for such Note
and other terms, such Remarketing Agent will, after taking into account market
conditions as reflected in the prevailing yields on fixed and variable rate
taxable debt securities, (i) consider the principal amount of all Notes
tendered or to be tendered on such date and the principal amount of such Notes
prospective purchasers are or may be willing to purchase and (ii) contact, by
telephone or otherwise, prospective purchasers and ascertain the interest rates
therefor at which they would be willing to hold or purchase such Notes.
(b) Notification of Results; Settlement. By 12:30 p.m.,
New York City time, on the Interest Rate Adjustment Date for any Notes, the
applicable Remarketing Agent will notify the Company and the Trustee in writing
(which may include facsimile or other electronic transmission), of (i) the
interest rate applicable to such Notes for the next Interest Rate Period, (ii)
the Interest Rate Adjustment Date, (iii) the Interest Payment Dates, for any
Notes in the Commercial Paper Term Mode (if other than the Interest Rate
Adjustment Date), the Long Term Rate Mode or the Fixed Interest Rate Mode, (iv)
the optional redemption terms, if any, and early remarketing terms, if any, in
the case of a remarketing into a Long Term Rate Period, (v) the aggregate
principal amount of tendered Notes and (vi) the aggregate principal amount of
such tendered Notes which such Remarketing Agent was able to remarket, at a
price equal to 100% of the principal amount thereof plus accrued interest, if
any. Immediately after receiving such notice, and in any case, not later than
1:30 p.m. New York City time, the Trustee will transmit such information and
any other settlement information required by DTC to DTC in accordance with
DTC's procedures as in effect from time to time.
By telephone at approximately 1:00 p.m., New York City time,
on such Interest Rate Adjustment Date, the applicable Remarketing Agent will
advise each purchaser of such Notes (or the DTC participant of each such
purchaser who it is expected in turn will advise such purchaser) of the
principal amount of such Notes that such purchaser is to purchase.
Each purchaser of Notes in a remarketing will be required to
give instructions to its DTC participant to pay the purchase price therefor in
same day funds to the applicable Remarketing Agent against delivery of the
principal amount of such Notes by book entry through DTC by 3:00 p.m., New York
City time, on the Interest Rate Adjustment Date. Any Notes bearing interest in
a Floating Interest Rate Mode for the Interest Rate Period immediately
10
12
preceding a remarketing will be settled at a price of 100% of the principal
amount thereof plus accrued interest from the most recent Interest Payment Date
therefor to the date of settlement.
All tendered Notes will be automatically delivered to the
account of the Trustee (or such other account meeting the requirements of DTC's
procedures as in effect from time to time), by book entry through DTC against
payment of the purchase price or redemption price therefor, on the Interest
Rate Adjustment Date relating thereto.
The applicable Remarketing Agent will make, or cause the
Trustee to make, payment to the DTC participant of each tendering Beneficial
Owner of Notes subject to a remarketing, by book entry through DTC by the close
of business on the Interest Rate Adjustment Date against delivery through DTC
of such Beneficial Owner's tendered Notes, of the purchase price for tendered
Notes that have been sold in the remarketing. If any such Notes were purchased
pursuant to a Special Mandatory Purchase, subject to receipt of funds from the
Company or the Liquidity Provider, as the case may be, the Trustee will make
such payment of the purchase price of such Notes plus accrued interest, if any,
to such date.
The transactions described above for a remarketing of any
Notes will be executed on the Interest Rate Adjustment Date for such Notes
through DTC in accordance with the procedures of DTC, and the accounts of the
respective DTC participants will be debited and credited and such Notes
delivered by book entry as necessary to effect the purchases and sales thereof,
in each case as determined in the related remarketing.
Except as otherwise set forth in Section 207 hereof, any Notes
tendered in a remarketing will be purchased solely out of the proceeds received
from purchasers of such Notes in such remarketing, and neither the Trustee, the
applicable Remarketing Agent nor any Standby Remarketing Agent or the Company
will be obligated to provide funds to make payment upon any Beneficial Owner's
tender in a remarketing.
Although tendered Notes will be subject to purchase by a
Remarketing Agent in a remarketing, such Remarketing Agent and any Standby
Remarketing Agent will not be obligated to purchase any such Notes.
The settlement and remarketing procedures described above,
including provisions for payment by purchasers of tendered Notes or for payment
to selling Beneficial Owners of tendered Notes, may be modified to the extent
required by DTC. In addition, each Remarketing Agent may, in accordance with
the terms of the Original Indenture, modify the settlement and remarketing
procedures set forth above in order to facilitate the settlement and
remarketing process.
11
13
As long as DTC's nominee holds the certificates representing
the Notes in the book entry system of DTC, no certificates for such Notes will
be delivered by any selling Beneficial Owner to reflect any transfer of Notes
effected in any remarketing.
The Trustee shall confirm to DTC the interest rate for the
following Interest Rate Period in accordance with DTC's procedures as in effect
from time to time.
The interest rate announced by the applicable Remarketing
Agent, absent manifest error, shall be binding and conclusive upon the
Beneficial Owners, the Company and the Trustee.
(c) Failed Remarketing. By 12:00 o'clock noon, New York
City time, on any Interest Rate Adjustment Date, the applicable Remarketing
Agent will notify the Liquidity Provider, if any, the Trustee and the Company
by telephone or facsimile, confirmed in writing, of the principal amount of
Notes that such Remarketing Agent and the applicable Standby Remarketing Agent
were unable to remarket on such date. In the event that the Company has
entered into a Standby Note Purchase Agreement which is in effect on such date,
such notice will constitute a demand for the benefit of the Company to the
Liquidity Provider to purchase such unremarketed Notes at a price equal to the
outstanding principal amount thereof pursuant to the terms of such Standby Note
Purchase Agreement. If a Standby Note Purchase Agreement is not in effect on
such date, or if the Liquidity Provider fails to advance funds under the
Standby Note Purchase Agreement, the Company hereby agrees to purchase such
unremarketed Notes. In each case the Company will pay all accrued and unpaid
interest, if any, on unremarketed Notes to such Interest Rate Adjustment Date.
Payment of the principal amount of unremarketed Notes by the Company or the
Liquidity Provider, as the case may be, and payment of accrued and unpaid
interest, if any, by the Company, shall be made by deposit of same-day funds
with the Trustee (or such other account meeting the requirements of DTC's
procedures as in effect from time to time) irrevocably in trust for the benefit
of the Beneficial Owners of Notes subject to Special Mandatory Purchase by 3:00
p.m., New York City time, on such Interest Rate Adjustment Date.
Section 207. Purchase and Redemption of Notes
(a) Special Mandatory Purchase. Subject to certain
exceptions, if by 12:00 o'clock noon, New York City time, on any Interest Rate
Adjustment Date for any Notes, the applicable Remarketing Agent and the
applicable Standby Remarketing Agent have not remarketed all such Notes, the
Notes that are unremarketed are subject to Special Mandatory Purchase. Either
the Company or, subject to the terms and conditions of a Standby Note Purchase
Agreement, if any, which may be in effect on such date, the Liquidity Provider,
will deposit same-day funds in the account of the Trustee (or such other
account meeting the requirements of DTC's procedures as in effect from time to
time) irrevocably in trust for the benefit of the Beneficial Owners of Notes
subject to Special Mandatory Purchase by 3:00 p.m.,
12
14
New York City time, on such Interest Rate Adjustment Date. Such funds shall be
in an amount sufficient to pay the aggregate purchase price of such
unremarketed Notes, equal to 100% of the principal amount thereof. In the
event a Standby Note Purchase Agreement is in effect but the Liquidity Provider
shall fail to advance funds for whatever reason thereunder, the Company hereby
agrees to purchase such unremarketed Notes on such Interest Rate Adjustment
Date. The Company hereby agrees to pay the accrued interest, if any, on such
Notes by depositing sufficient same-day funds therefor in the account of the
Trustee (or such other account meeting the requirements of DTC's procedures as
in effect from time to time) by 3:00 p.m., New York City time, on such Interest
Rate Adjustment Date.
Notes purchased by the Liquidity Provider ("Purchased Notes")
shall bear interest at the rates and be payable on the dates as may be agreed
upon by the Company and the Liquidity Provider, but in no event shall such rate
be more than the Maximum Rate. Upon purchase of any Note by the Liquidity
Provider, all interest accruing thereon from the last date for which interest
was paid shall accrue for the benefit of and be payable to the Liquidity
Provider. Unless an event of default under the Standby Note Purchase Agreement
occurs, the applicable Remarketing Agent shall continue its remarketing efforts
with respect to Purchased Notes until the earlier to occur of a successful
remarketing of such Purchased Notes or the expiration of the Standby Note
Purchase Agreement. In the event the Liquidity Provider holds Purchased Notes
on the date the Standby Note Purchase Agreement expires, the Company will be
required to purchase such Notes on such date at a purchase price equal to the
principal amount thereof plus accrued interest thereon to the purchase date.
Such Notes will remain outstanding and enjoy the benefits of the Original
Indenture, the Third Supplemental Indenture (as amended hereby) and this First
Amendment to the Third Supplemental Indenture until such time as the Company
delivers certificates for the Notes to the Trustee for cancellation.
(b) Optional Redemption While Notes are in a Floating
Interest Rate Mode or Commercial Paper Term Mode. Any Notes in a Floating
Interest Rate Mode or in the Commercial Paper Term Mode are subject to
redemption at the option of the Company in whole or in part on any Interest
Rate Adjustment Date relating thereto in accordance with the terms and
provisions of the Original Indenture, upon 30 days notice to the holders
thereof at a redemption price equal to the aggregate principal amount of such
Notes to be redeemed plus accrued interest thereon to the redemption date.
(c) Redemption While Notes are in the Long Term Rate
Mode. Any Notes in the Long Term Rate Mode are subject to redemption at the
option of the Company at the times and upon the terms specified at the time of
conversion to or within such Long Term Rate Mode and set forth in the Note
relating thereto.
(d) Redemption While Notes are in the Fixed Interest Rate
Mode. Any Notes in the Fixed Interest Rate Mode will be subject to redemption
at the option of the Company or
13
15
pursuant to a sinking fund at the times and upon the terms specified at the
time of conversion to such Fixed Interest Rate Mode and set forth in the Note
relating thereto.
Section 208. Form and Other Terms of the Notes.
(a) Attached hereto as Exhibit A is a form of Note, which
form is hereby established as the form in which Notes may be issued bearing
interest at the Initial Interest Rate or in a Floating Interest Rate Mode, the
Commercial Paper Term Mode, the Long Term Rate Mode or the Fixed Interest Rate
Mode. Annex A to Exhibit A is deemed to be a part of such Note and such Annex
may be changed upon the mutual agreement of the Company and the Trustee to
reflect changes occasioned by remarketings.
(b) Attached hereto as Exhibit B is a form of Liquidity
Provider Note, which form is hereby established as a form in which Notes held
by the Liquidity Provider may be issued. The form of Liquidity Provider Note
may be amended to reflect changes occasioned by remarketings upon the mutual
agreement of the Company and the Trustee, but only with the consent of the
Administrative Agent (as defined in such Exhibit B).
(c) Subject to (a) and (b) above, any Note may be issued
in such other form as may be provided by, or not inconsistent with, the terms
of the Original Indenture, the Third Supplemental Indenture and this First
Amendment to the Third Supplemental Indenture.
ARTICLE THREE
ADDITIONAL EVENT OF DEFAULT
With respect to the Notes, the following will be an additional
Event of Default to follow subsection (8) under Section 601 of the Indenture:
(9) default in the performance of the Company's
obligation to purchase Notes held by the Liquidity Provider
under the terms of the Standby Note Purchase Agreement, if
any, and continuance of such default for a period of 60 days
after there has been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of
the Outstanding Securities of that series a written notice
specifying such default and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder.
ARTICLE FOUR
14
16
AUTHENTICATION AND DELIVERY OF THE NOTES
Section 401. Security. 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 general and refunding mortgage
bonds (the "General and Refunding Mortgage Bonds, 1994 Series C" or the
"Bonds") of the Company to be issued from time to time under and secured by a
Mortgage and Deed of Trust, dated as of October 1, 1924, between the Company
and the Trustee, as amended and supplemented by various supplemental
indentures, including the supplemental indenture, dated as of August 15, 1994,
creating the General and Refunding Mortgage Bonds, 1994 Series C (collectively,
the "Mortgage"), pledged by the Company for the benefit of the holders of the
Notes to the Trustee under this Indenture.
Section 402. Authentication and Delivery. As provided in and pursuant
to Section 303 of the Original Indenture, each time that the Company delivers
Notes to the Trustee or Authenticating Agent for authentication, the Company
shall deliver a Supplemental Company Order in the form of Exhibit C to this
Amended Third Supplemental Indenture for the authentication and delivery of
such Notes and the Trustee or such Authenticating Agent shall authenticate and
deliver such Notes. Authentication and delivery of any Notes shall be subject
to the Company delivering a Certificate instructing the Trustee or
Authenticating Agent to authenticate and deliver Bonds securing the payment of
principal, interest and premium, if any, in respect of such Notes, and the
Trustee or Authenticating Agent authenticating and delivering such Bonds, all
as provided in or pursuant to the Mortgage. Terms used in the preceding
sentence and not otherwise defined herein shall have the meanings specified in
the Mortgage.
ARTICLE FIVE
MISCELLANEOUS PROVISIONS
The Trustee makes no undertaking or representations in respect
of, and shall not be responsible in any manner whatsoever for and in respect
of, the validity or sufficiency of this First Amendment to the Third
Supplemental Indenture or the proper authorization or the due execution hereof
by the Company or for or in respect of the recitals and statements contained
herein, all of which recitals and statements are made solely by the Company.
Except as expressly amended hereby, the Original Indenture and
the Third Supplemental Indenture shall continue in full force and effect in
accordance with the provisions thereof and the Original Indenture and the Third
Supplemental Indenture are in all respects hereby ratified and confirmed. This
First Amendment to the Third Supplemental Indenture and all its provisions
shall be deemed a part of the Original Indenture, as supplemented by the Third
Supplemental Indenture, in the manner and to the extent herein and therein
provided.
15
17
This First Amendment to the Third Supplemental Indenture shall
be governed by, and construed in accordance with, the laws of the State of New
York.
This First Amendment to the Third Supplemental Indenture may
be executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
16
18
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to the Third Supplemental Indenture to be duly executed, and their
respective corporate seals to be hereunto affixed and attested, all as of the
day and year first above written.
THE DETROIT EDISON COMPANY
By:________________________________
Name:
Title:
ATTEST:
By:________________________
(Corporate Seal)
BANKERS TRUST COMPANY,
as Trustee
By:_______________________________
Name:
Title:
ATTEST:
By:________________________
(Corporate Seal)
19
STATE OF MICHIGAN )
) :
COUNTY OF XXXXX )
On the _____ day of ________, 1995, before me personally came ________________
_______________________, to me known, who, being by me duly sworn, did depose
and say that he is _________________ of THE DETROIT EDISON COMPANY, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and he signed his name thereto by like
authority.
----------------------------------
Notary Public, State of Michigan
[Notarial Seal]
STATE OF NEW YORK )
) :
COUNTY OF _________ )
On the ___ day of _______, 1995, before me personally came ____________________
_____________________, to me known, who, being by me duly sworn, did depose and
say that he is _________________ of BANKERS TRUST COMPANY, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and he signed his name thereto by like
authority.
---------------------------------------
Notary Public, State of New York
[Notarial Seal]
20
EXHIBIT C
THE DETROIT EDISON COMPANY
REMARKETED SECURED NOTES 1994 SERIES C DUE 2034
SUPPLEMENTAL COMPANY ORDER
Pursuant to Article Four of the First Amendment, dated as of
December 12, 1995, to the Third Supplemental Indenture, dated as of August 15
1994, to Collateral Trust Indenture, dated as of June 30, 1993, as amended, you
are instructed to prepare and authenticate a Note, of the series identified
above, in the principal amount of $____________. The Note is being delivered
in exchange for issued and outstanding Notes of the series identified above.
IN WITNESS WHEREOF, I have hereunto set my hand this _____ day of
___________, 1995.
___________________________
X. X. Xxxxxx
Assistant Treasurer
The Detroit Edison Company
