EXHIBIT 4.6
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FORM OF
PREFERRED SECURITIES GUARANTEE AGREEMENT
Detroit Edison Trust [I/II]
Dated as of ______________
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CROSS REFERENCE TABLE(1)
Section of Trust Indenture Act
of 1939, as amended Section of Agreement
310(a) .................................................................4.1(a)
310(b) ....................................................................2.8
310(c) ...........................................................Inapplicable
311(a) ....................................................................2.2
311(b) ....................................................................2.2
311(c) ...........................................................Inapplicable
312(a) ....................................................................2.2
312(b) ....................................................................2.2
312(c) ...........................................................Inapplicable
313(a) ....................................................................2.3
313(b) ....................................................................2.3
313(c) ....................................................................2.3
313(d) ....................................................................2.3
314(a) ....................................................................2.4
314(b) ...........................................................Inapplicable
314(c) ....................................................................2.5
314(d) ...........................................................Inapplicable
314(e) ....................................................................2.5
314(f) ...........................................................Inapplicable
315(a) .........................................................3.1(d); 3.2(a)
315(b) .................................................................2.7(a)
315(c) .................................................................3.1(c)
315(d) .................................................................3.1(d)
316(a) ............................................................2.6; 5.4(a)
317(a) .................................................................3.1(b)
318(a) .................................................................2.1(b)
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1 This Cross-Reference Table does not constitute part of the
Agreement and shall not have any bearing upon the interpretation of any of
its terms or provisions.
TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS AND INTERPRETATIONS
SECTION 1.1 Definitions and Interpretations...............................................................1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act: Application.............................................................5
SECTION 2.2 List of Holders of Securities.................................................................5
SECTION 2.3 Reports by the Preferred Securities Guarantee Trustee.........................................5
SECTION 2.4 Periodic Reports to Preferred Securities Guarantee Trustee....................................6
SECTION 2.5 Evidence of Compliance with Conditions Precedent..............................................6
SECTION 2.6 Events of Default; Waiver.....................................................................6
SECTION 2.7 Event of Default; Notice......................................................................6
SECTION 2.8 Conflicting Interests.........................................................................7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Securities Guarantee Trustee...............................7
SECTION 3.2 Certain Rights of Preferred Securities Guarantee Trustee......................................9
SECTION 3.3 Not Responsible for Recitals or Issuance of Guarantee........................................11
ARTICLE IV
PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Preferred Securities Guarantee Trustee; Eligibility..........................................11
SECTION 4.2 Appointment, Removal and Resignation of Preferred Securities Guarantee Trustee...............12
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee....................................................................................13
SECTION 5.2 Waiver of Notice and Demand..................................................................13
SECTION 5.3 Obligations Not Affected.....................................................................13
SECTION 5.4 Rights of Holders............................................................................14
SECTION 5.5 Guarantee of Payment.........................................................................15
SECTION 5.6 Subrogation..................................................................................15
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SECTION 5.7 Independent Obligations......................................................................15
ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1 Limitation of Transactions...................................................................15
SECTION 6.2 Ranking......................................................................................16
ARTICLE VII
TERMINATION
SECTION 7.1 Termination..................................................................................16
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation..................................................................................17
SECTION 8.2 Indemnification..............................................................................17
SECTION 8.3 Compensation.................................................................................18
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.......................................................................18
SECTION 9.2 Amendments...................................................................................18
SECTION 9.3 Notices......................................................................................18
SECTION 9.4 Benefit......................................................................................19
SECTION 9.5 Governing Law................................................................................19
SECTION 9.6 Counterparts.................................................................................19
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PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Preferred Securities
Guarantee"), dated as of ______________, is executed and delivered by The
Detroit Edison Company, a Michigan corporation (the "Guarantor"), and [Bank One
Trust Company, National Association], as trustee (the "Preferred Securities
Guarantee Trustee"), for the benefit of the Holders (as defined herein) from
time to time of the Preferred Securities (as defined herein) of Detroit Edison
Trust [I/II], a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement
(the "Agreement"), dated as of ________________, among the trustees of the
Issuer named therein, the Guarantor, as sponsor, and the holders from time to
time of undivided beneficial interests in the assets of the Issuer, the Issuer
is issuing on the date hereof up to _______________ preferred securities,
liquidation amount $___ per preferred security, having an aggregate liquidation
amount of $_____________ designated the __% preferred securities (the "Preferred
Securities");
WHEREAS, as incentive for the Holders to purchase the
Preferred Securities, the Guarantor desires irrevocably and unconditionally to
agree, to the extent set forth in this Preferred Securities Guarantee, to pay to
the Holders the Guarantee Payments (as defined herein) and to make certain other
payments and fulfill certain other obligations on the terms and conditions set
forth herein; and
WHEREAS, the Guarantor is concurrently herewith executing and
delivering a guarantee agreement (the "Common Securities Guarantee") with
substantially identical terms to this Preferred Securities Guarantee for the
benefit of the holders of the Common Securities (as defined herein), except that
if an Event of Default (as defined in the Agreement), has occurred and is
continuing, the rights of holders of the Common Securities to receive Guarantee
Payments under the Common Securities Guarantee are subordinated to the rights of
Holders to receive Guarantee Payments under this Preferred Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each
Holder, which purchase the Guarantor hereby agrees shall benefit the Guarantor,
the Guarantor executes and delivers this Guarantee for the benefit of the
Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATIONS
SECTION 1.1 Definitions and Interpretations
In this Preferred Securities Guarantee, unless the context
otherwise requires or otherwise specifies:
(a) capitalized terms used in this Preferred Securities
Guarantee but not defined in the preamble above have
the respective meanings assigned to them in this
Section 1.1;
(b) terms defined in the Agreement as at the date of
execution of this Preferred Securities Guarantee have
the same meaning when used in this Preferred
Securities Guarantee unless otherwise defined in this
Preferred Securities Guarantee;
(c) a term defined anywhere in this Preferred Securities
Guarantee, including the recitals, has the same
meaning throughout;
(d) all references to "the Preferred Securities
Guarantee" or "this Preferred Securities Guarantee"
are to this Preferred Securities Guarantee as
modified, supplemented or amended from time to time;
(e) all references in this Preferred Securities Guarantee
to an Article, Section or other subdivision are to an
Article, Section or other subdivision of this
Preferred Securities Guarantee;
(f) a term defined in the Trust Indenture Act has the
same meaning when used in this Preferred Securities
Guarantee, unless otherwise defined in this Preferred
Securities Guarantee;
(g) a reference to the singular includes the plural and
vice versa;
(h) the words "include," "includes" and "including" shall
be deemed to be followed by the phrase "without
limitation; and
(i) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Agreement
as a whole and not to any particular Article or
Section or other subdivision.
"Affiliate" has the same meaning given to that term in Rule
405 of the Securities Act of 1933, as amended, or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is
authorized to bind such Person.
"Business Day" means any day other than Saturday, Sunday or
any day on which banking institutions in The City of New York are permitted or
required by any applicable law or executive order to close.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Issuer.
"Corporate Trust Office" means the office of the Preferred
Securities Guarantee Trustee at which the corporate trust business of the
Preferred Securities Guarantee Trustee shall, at any particular time, be
principally administered, which office at the date of execution of this
Guarantee is located at ___________________, __________________, New York, NY
_____________, Attention: ___________________.
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"Covered Person" means any Holder or beneficial owner of
Preferred Securities.
"Debentures" means the series of debt securities of the
Guarantor issued under the Indenture (as defined in the Agreement) held by the
Property Trustee (as defined in the Agreement) on behalf of the Issuer.
"Direction" by a person means a written direction signed: (a)
if the Person is a natural person, by that Person; or (b) in any other case in
the name of such Person by one or more Authorized Officers of that Person.
"Event of Default" means a default by the Guarantor on any of
its payment or other obligations under this Preferred Securities Guarantee.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Preferred Securities, to
the extent not paid or made by the Issuer:
(i) any accrued and unpaid Distributions (as defined
in the Agreement) that are required to be paid on such
Preferred Securities to the extent the Issuer shall have funds
available therefor,
(ii) the redemption or repayment price, if any,
specified in the Agreement, including all accrued and unpaid
distributions to the date of redemption or repayment (the
"Redemption or Repayment Price") with respect to Preferred
Securities called or submitted for redemption or repayment, to
the extent the Issuer has funds available therefor, and
(iii) upon a voluntary or involuntary dissolution,
winding-up or termination of the Issuer (other than in
connection with the distribution of Debentures to the Holders
in exchange for Preferred Securities if so provided in the
Agreement), the lesser of (a) the aggregate of the liquidation
amount and all accrued and unpaid Distributions on the
Preferred Securities to the date of payment, to the extent the
Issuer shall have funds available therefor, and (b) the amount
of assets of the Issuer remaining available for distribution
to Holders in liquidation of the Issuer (in either case, the
"Liquidation Distribution").
"Holder" shall mean any holder, as registered on the books and
records of the Issuer, of any Preferred Securities; provided, however, that, in
determining whether the Holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Preferred Securities Guarantee
Trustee, including in its individual capacity, any Affiliate of the Preferred
Securities Guarantee Trustee, or any officers, directors, shareholders, members,
partners, employees, representatives, nominees, custodians or agents of the
Preferred Securities Guarantee Trustee.
"Officers' Certificate" means, with respect to (A) the
Guarantor, a certificate signed by the [Chairman, President and Chief Executive
and Chief Operating Officer or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or
an
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Assistant Secretary] of the Guarantor and (B) any other Person, a certificate
signed by any two Authorized Officers of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Preferred Securities Guarantee shall comply with Section 314 of the
Trust Indenture Act and shall include:
(a) a statement that the individuals signing the Officers'
Certificate have read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such Officers' Certificate are based;
(c) a statement that, in the opinion of each such individual,
he or she has made such examination or investigation as, in such individual's
opinion, is necessary to enable such individual to express an informed opinion
as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of such
individuals, such condition or covenant has been complied with.
["Other Document" means any instrument or agreement
constituting Trust Property, other than the Debentures, specified in the
Agreement.]
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Property Trustee" means [The Bank of New York].
"Preferred Securities Guarantee Trustee" means [Bank One Trust
Company, National Association], until a Successor Preferred Securities Guarantee
Trustee has been appointed and has accepted such appointment pursuant to the
terms of this Preferred Securities Guarantee and thereafter means each such
Successor Preferred Securities Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred
Securities Guarantee Trustee, any officer within the Corporate Trust Office of
the Preferred Securities Guarantee Trustee with direct responsibility for the
Preferred Securities Guarantee Trustee's obligations under this Preferred
Securities Guarantee and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of that
Officer's knowledge of and familiarity with the particular subject.
"Successor Preferred Securities Guarantee Trustee" means a
successor Preferred Securities Guarantee Trustee possessing the qualifications
to act as Preferred Securities Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
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ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act: Application
(a) This Preferred Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Preferred Securities Guarantee and shall, to the extent applicable, be governed
by such provisions; and
(b) If and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
SECTION 2.2 List of Holders of Securities
In accordance with ss.312(a) of the Trust Indenture Act, the
Guarantor shall provide to the Preferred Securities Guarantee Trustee:
(a) within 14 days after each of the dates as are determined
for the Property Trustee pursuant to Section 2.2(a)(i) of the Agreement, a list,
in such form as the Preferred Securities Guarantee Trustee may reasonably
require, of the names and addresses of the Holders ("List of Holders") as of
such date, provided that the Guarantor shall not be obligated to provide such
List of Holders if the Preferred Securities Guarantee Trustee is the Registrar
or at any time the List of Holders does not differ from the most recent List of
Holders given to the Preferred Securities Guarantee Trustee by the Guarantor;
and
(b) at any other time, within 30 days of receipt by the
Guarantor of a written request by the Preferred Securities Guarantee Trustee for
a List of Holders as of a date no more than 14 days before such List of Holders
is given to the Preferred Securities Guarantee Trustee. The Preferred Securities
Guarantee Trustee shall preserve, in as current a form as is reasonably
practicable, all information contained in the List of Holders given to it or
which it receives in its capacity as paying agent or registrar (if acting in
such capacity), provided that the Preferred Securities Guarantee Trustee may
destroy any List of Holders previously given to it on receipt of a new List of
Holders.
The Preferred Securities Guarantee Trustee shall comply with
its obligations under ss.ss. 311(a), 311(b) and 312(b) of the Trust Indenture
Act.
SECTION 2.3 Reports by the Preferred Securities Guarantee Trustee
Within 60 days after [____ 15] of each year, commencing with
the [___ 15] that first occurs following the issuance of the Preferred
Securities, the Preferred Securities Guarantee Trustee shall provide to the
Holders such reports as are required by Section 313 of the Trust Indenture Act,
if any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Preferred Securities Guarantee Trustee shall also comply with
the requirements of Section 313(d) of the Trust Indenture Act.
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SECTION 2.4 Periodic Reports to Preferred Securities Guarantee Trustee
The Guarantor shall provide to the Preferred Securities
Guarantee Trustee such documents, reports and information as required by Section
314 (if any) and the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Preferred Securities
Guarantee Trustee such evidence of compliance with any conditions precedent, if
any, provided for in this Preferred Securities Guarantee that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver
The Holders of not less than a Majority in liquidation amount
of Preferred Securities may, by vote or written consent, on behalf of all
Holders, waive any past Event of Default and its consequences. Upon such waiver,
any such Event of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Preferred Securities Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 2.7 Event of Default; Notice
(a) The Preferred Securities Guarantee Trustee shall, within
90 days after a Responsible Officer of the Preferred Securities Guarantee
Trustee obtains actual knowledge of the occurrence of an Event of Default,
transmit by mail, first class postage prepaid, to the Holders, notices of all
such Events of Default actually known to such Responsible Officer of the
Preferred Securities Guarantee Trustee, unless such defaults have been cured
before the giving of such notice, provided, that, except in the case of default
in the payment of any Guarantee Payment or, if applicable, in the delivery of
any cash, securities or other property in exchange for or upon conversion or
redemption of or otherwise in accordance with the terms of, any Debenture [or
Other Document] or the Preferred Securities, the Preferred Securities Guarantee
Trustee shall be protected in withholding such notice if and so long as a
Responsible Officer of the Preferred Securities Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders.
(b) The Preferred Securities Guarantee Trustee shall not be
deemed to have knowledge of any Event of Default except:
(i) a default in the payment of any Guarantee Payment;
(ii) any failure to deliver any cash, securities or other
property in exchange for or upon conversion or
redemption of or otherwise in accordance with the
terms of any Debenture [or Other Document] or the
Preferred Securities, if applicable; and
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(iii) any default as to which the Preferred Securities
Guarantee Trustee shall have received written notice
or of which a Responsible Officer of the Preferred
Securities Guarantee Trustee charged with the
administration of this Preferred Securities Guarantee
shall have actual knowledge.
(c) The Guarantor shall file annually within 30 days after
[____ 15] of each year, commencing with the [___ 15] that first occurs following
the issuance of the Preferred Securities, with the Preferred Securities
Guarantee Trustee in accordance with Section 314(a)(4) of the Trust Indenture
Act a certification as to whether or not it is in compliance with all the
conditions applicable to it under this Preferred Securities Guarantee Agreement.
SECTION 2.8 Conflicting Interests
(a) If the Preferred Securities Guarantee Trustee has or shall
acquire any "conflicting interest" within the meaning of ss. 310(b) of the Trust
Indenture Act, the Preferred Securities Guarantee Trustee shall in all respects
comply with the provisions of ss. 310(b) of the Trust Indenture Act.
(b) The Agreement and the Indenture shall be deemed to be
specifically described in this Preferred Securities Guarantee for the purposes
of clause (i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act. [Describe others if applicable]
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Securities Guarantee
Trustee
(a) This Preferred Securities Guarantee shall be held by the
Preferred Securities Guarantee Trustee for the benefit of the Holders, and the
Preferred Securities Guarantee Trustee shall not transfer this Preferred
Securities Guarantee to any Person except a Holder exercising his or her rights
pursuant to Section 5.4(b) or to a Successor Preferred Securities Guarantee
Trustee on acceptance by such Successor Preferred Securities Guarantee Trustee
of its appointment to act as Successor Preferred Securities Guarantee Trustee.
The right, title and interest of the Preferred Securities Guarantee Trustee
shall automatically vest in any Successor Preferred Securities Guarantee
Trustee, and such vesting and succession of title shall be effective whether or
not conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Preferred Securities Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible
Officer of the Preferred Securities Guarantee Trustee has occurred and is
continuing, the Preferred Securities Guarantee Trustee shall enforce this
Preferred Securities Guarantee for the benefit of the Holders.
(c) The Preferred Securities Guarantee Trustee, before the
occurrence of any Event of Default and after the curing or waiver of all Events
of Default that may have occurred,
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shall undertake to perform only such duties as are specifically set forth in
this Preferred Securities Guarantee, and no implied covenants or obligations
shall be read into this Preferred Securities Guarantee against the Preferred
Securities Guarantee Trustee. In case an Event of Default has occurred (that has
not been cured or waived pursuant to Section 2.6) and is actually known to a
Responsible Officer of the Preferred Securities Guarantee Trustee, the Preferred
Securities Guarantee Trustee shall exercise such of the rights and powers vested
in it by this Preferred Securities Guarantee, and use the same degree of care
and skill in its exercise thereof, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(d) No provision of this Preferred Securities Guarantee shall
be construed to relieve the Preferred Securities Guarantee Trustee from
liability for its own negligent action, its own negligent failure to act, its
own bad faith or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default
and after the curing or waiving of such Events of Default that
may have occurred:
(A) the duties and obligations of the
Preferred Securities Guarantee Trustee shall be
determined solely by the express provisions of this
Preferred Securities Guarantee, and the Preferred
Securities Guarantee Trustee shall not be liable
except for the performance of such duties and
obligations as are specifically set forth in this
Preferred Securities Guarantee, and no implied
covenants or obligations shall be read into this
Preferred Securities Guarantee against the Preferred
Securities Guarantee Trustee; and
(B) in the absence of bad faith on the part
of the Preferred Securities Guarantee Trustee, the
Preferred Securities Guarantee Trustee may
conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished
to the Preferred Securities Guarantee Trustee and
conforming to the requirements of this Preferred
Securities Guarantee; but in the case of any such
certificates or opinions that by any provision hereof
are specifically required to be furnished to the
Preferred Securities Guarantee Trustee, the Preferred
Securities Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they
conform to the requirements of this Preferred
Securities Guarantee;
(ii) the Preferred Securities Guarantee Trustee shall
not be liable for any error of judgment made in good faith by
a Responsible Officer of the Preferred Securities Guarantee
Trustee, unless it shall be proved that the Preferred
Securities Guarantee Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Preferred Securities Guarantee Trustee
shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a Majority in
liquidation amount of the Preferred Securities relating to the
time, method and place of conducting
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any proceeding for any remedy available to the Preferred
Securities Guarantee Trustee, or exercising any trust or power
conferred upon the Preferred Securities Guarantee Trustee
under this Preferred Securities Guarantee; and
(iv) no provision of this Preferred Securities
Guarantee shall require the Preferred Securities Guarantee
Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if
the Preferred Securities Guarantee Trustee shall have
reasonable grounds for believing that the repayment of such
funds or liability is not reasonably assured to it under the
terms of this Preferred Securities Guarantee or if indemnity
reasonably satisfactory to the Preferred Securities Guarantee
Trustee against such risk or liability is not reasonably
assured to it.
SECTION 3.2 Certain Rights of Preferred Securities Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) the Preferred Securities Guarantee Trustee may
conclusively rely, and shall be fully protected in acting or
refraining from acting upon, any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed
by it to be genuine and to have been signed, sent or presented
by the proper party or parties;
(ii) any direction or act of the Guarantor
contemplated by this Preferred Securities Guarantee shall be
sufficiently evidenced by a Direction or an Officers'
Certificate;
(iii) whenever, in the administration of this
Preferred Securities Guarantee, the Preferred Securities
Guarantee Trustee shall deem it desirable that a matter be
proved or established before taking, suffering or omitting any
action hereunder, the Preferred Securities Guarantee Trustee
(unless other evidence is herein specifically prescribed) may,
in the absence of negligence, bad faith or willful misconduct
on its part, request and conclusively rely upon an Officers'
Certificate which, upon receipt of such request, shall be
promptly delivered by the Guarantor;
(iv) the Preferred Securities Guarantee Trustee shall
have no duty to see to any recording, filing or registration
of any instrument (or any rerecording, refiling or
reregistration thereof);
(v) the Preferred Securities Guarantee Trustee may
consult with competent legal counsel or other experts, and the
advice or written opinion of such counsel and experts with
respect to legal matters or advice within the scope of such
legal counsel's or expert's area of expertise shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good
faith and in accordance with such advice or opinion. Such
counsel may be counsel to the Guarantor or any of its
Affiliates and may include
9
any of its employees. The Preferred Securities Guarantee
Trustee shall have the right at any time to seek instructions
concerning the administration of this Preferred Securities
Guarantee from any court of competent jurisdiction;
(vi) the Preferred Securities Guarantee Trustee shall
be under no obligation to exercise any of the rights or powers
vested in it by this Preferred Securities Guarantee at the
request or direction of any Holder, unless such Holder shall
have provided to the Preferred Securities Guarantee Trustee
such security and indemnity, reasonably satisfactory to the
Preferred Securities Guarantee Trustee, against the reasonable
costs, expenses (including reasonable attorneys' fees and
reasonable expenses and the expenses of the Preferred
Securities Guarantee Trustee, agents, nominees or custodians)
and liabilities that might be incurred by it in complying with
such request or direction, including such reasonable advances
as may be requested by the Preferred Securities Guarantee
Trustee; provided that, nothing contained in this Section
3.2(a)(vi) shall be taken to relieve the Preferred Securities
Guarantee Trustee, upon the occurrence of an Event of Default,
of its obligation to exercise the rights and powers vested in
it by this Preferred Securities Guarantee;
(vii) the Preferred Securities Guarantee Trustee
shall not be bound to conduct an investigation into the facts
or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Preferred
Securities Guarantee Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as
it may see fit;
(viii) the Preferred Securities Guarantee Trustee may
execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through agents,
nominees, custodians or attorneys, and the Preferred
Securities Guarantee Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(ix) any action taken by the Preferred Securities
Guarantee Trustee or its agents hereunder shall bind the
Holders, and the signature of the Preferred Securities
Guarantee Trustee or its agents alone shall be sufficient and
effective to perform any such action, and no third party shall
be required to inquire as to the authority of the Preferred
Securities Guarantee Trustee to so act or as to its compliance
with any of the terms and provisions of this Preferred
Securities Guarantee, both of which shall be conclusively
evidenced by the Preferred Securities Guarantee Trustee's or
its agent's taking such action;
(x) whenever in the administration of this Preferred
Securities Guarantee the Preferred Securities Guarantee
Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other
action hereunder, the Preferred Securities Guarantee Trustee
(i) may request instructions from the Holders of a Majority in
liquidation amount of the Preferred
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Securities, (ii) may refrain from enforcing such remedy or
right or taking such other action until such instructions are
received, and (iii) shall be protected in conclusively relying
on or acting in accordance with such instructions;
(xi) except as otherwise expressly provided by this
Preferred Securities Guarantee, the Preferred Securities
Guarantee Trustee shall not be under any obligation to take
any action that is discretionary under the provisions of this
Preferred Securities Guarantee; and
(xii) the Preferred Securities Guarantee Trustee
shall not be liable for any action taken, suffered, or omitted
to be taken by it in good faith, without negligence, and
reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Preferred Securities Guarantee.
(b) No provision of this Preferred Securities Guarantee shall
be deemed to impose any duty or obligation on the Preferred Securities Guarantee
Trustee to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in which it shall be
illegal, or in which the Preferred Securities Guarantee Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Preferred Securities Guarantee
Trustee shall be construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of Guarantee
The recitals contained in this Guarantee shall be taken as the
statements of the Guarantor, and the Preferred Securities Guarantee Trustee does
not assume any responsibility for their correctness. The Preferred Securities
Guarantee Trustee makes no representation as to the validity or sufficiency of
this Preferred Securities Guarantee.
ARTICLE IV
PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Preferred Securities Guarantee Trustee; Eligibility
(a) There shall at all times be a Preferred Securities
Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business
under the laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Securities and Exchange
Commission to act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus
of at least 50 million U.S. dollars ($50,000,000), and subject
to supervision or examination by Federal, State, Territorial
or District of Columbia authority. If such corporation
publishes reports of condition at least annually,
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pursuant to law or to the requirements of the supervising or
examining authority referred to above, then, for the purposes
of this Section 4.1(a)(ii), the combined capital and surplus
of such corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of
condition so published.
(b) If at any time the Preferred Securities Guarantee Trustee
shall cease to be eligible to so act under Section 4.1(a), the Preferred
Securities Guarantee Trustee shall immediately resign in the manner and with the
effect set out in Section 4.2(c).
SECTION 4.2 Appointment, Removal and Resignation of Preferred Securities
Guarantee Trustee
(a) Subject to Section 4.2(b), the Preferred Securities
Guarantee Trustee may be appointed or removed without cause at any time:
(i) until the issuance of any Preferred Securities,
by written instrument executed by the Guarantor;
(ii) unless an Event of Default shall have occurred
and be continuing, after the issuance of any Securities, by
the Guarantor; and
(iii) if an Event of Default shall have occurred and
be continuing, after the issuance of the Preferred Securities,
by vote or written consent of the Holders of a Majority in
liquidation amount of the Preferred Securities.
(b) The Preferred Securities Guarantee Trustee shall not be
removed in accordance with Section 4.2(a) until a Successor Preferred Securities
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Preferred Securities Guarantee
Trustee and delivered to the Guarantor.
(c) The Preferred Securities Guarantee Trustee appointed to
office shall hold office until a Successor Preferred Securities Guarantee
Trustee shall have been appointed or until its removal or resignation. The
Preferred Securities Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Preferred Securities Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Preferred Securities
Guarantee Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Preferred Securities Guarantee
Trustee and delivered to the Guarantor and the resigning Preferred Securities
Guarantee Trustee.
(d) If no Successor Preferred Securities Guarantee Trustee
shall have been appointed and accepted appointment as provided in this Section
4.2 within 60 days after delivery to the Guarantor of an instrument of removal
or resignation, the Preferred Securities Guarantee Trustee resigning or being
removed may petition any court of competent jurisdiction for appointment of a
Successor Preferred Securities Guarantee Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem proper, appoint a
Successor Preferred Securities Guarantee Trustee.
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(e) No Preferred Securities Guarantee Trustee shall be liable
for the acts or omissions to act of any Successor Preferred Securities Guarantee
Trustee.
(f) Upon termination of this Preferred Securities Guarantee or
removal or resignation of the Preferred Securities Guarantee Trustee pursuant to
this Section 4.2, the Guarantor shall pay to the Preferred Securities Guarantee
Trustee all amounts due to the Preferred Securities Guarantee Trustee accrued to
the date of such termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim that the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders.
In addition, the Guarantor irrevocably and unconditionally
agrees to cause the Issuer to deliver to the Holders such securities and other
property as may be deliverable to them in accordance with the terms of the
Preferred Securities, including as a result of any conversion, exchange,
redemption, liquidation or other provision of the Debentures, [the Other
Documents] or the Preferred Securities.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this
Preferred Securities Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding first
against the Issuer or any other Person before proceeding against the Guarantor,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the
Guarantor under this Preferred Securities Guarantee shall in no way be affected
or impaired by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Preferred Securities to
be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all
or any portion any sums payable or the performance by the Issuer of any other
obligation under, arising out of, or in
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connection with, the Preferred Securities (other than an extension of time
permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right, privilege, power
or remedy conferred on the Holders pursuant to the terms of the Preferred
Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of debt of, or other similar proceedings affecting, the Issuer or any of the
assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it being
the intent of this Section 5.3 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to,
or obtain the consent of, the Guarantor with respect to the happening of any of
the foregoing.
SECTION 5.4 Rights of Holders
(a) The Holders of a Majority in liquidation amount of the
Preferred Securities have the right to direct the time, method and place of
conducting of any proceeding for any remedy available to the Preferred
Securities Guarantee Trustee in respect of this Preferred Securities Guarantee
or exercising any trust or power conferred upon the Preferred Securities
Guarantee Trustee under this Preferred Securities Guarantee.
(b) If the Preferred Securities Guarantee Trustee fails to
enforce this Preferred Securities Guarantee, any Holder may institute a legal
proceeding directly against the Guarantor to enforce its rights under this
Preferred Securities Guarantee, without first instituting a legal proceeding
against the Issuer, the Preferred Securities Guarantee Trustee or any other
Person. Notwithstanding the foregoing, if the Guarantor has failed to make a
Guarantee Payment or to perform any of its other obligations under Section 5.1,
a Holder may directly institute a proceeding in the Holder's own name against
the Guarantor for enforcement of this Preferred Securities Guarantee for the
portion of such Guarantee Payment or the performance of such other obligation to
which such Holder is entitled. The Guarantor waives any right or remedy to
require that any action on this Preferred Securities Guarantee be brought first
against the Issuer or any other person or entity before proceeding directly
against the Guarantor.
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SECTION 5.5 Guarantee of Payment
This Preferred Securities Guarantee creates a guarantee of
payment and not of collection. This Preferred Securities Guarantee will not be
discharged except by payment of the Guarantee Payments in full (without
duplication of amounts theretofore paid by the Issuer) or upon distribution of
Debentures to Holders as provided in the Agreement.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all rights, if any, of
the Holders against the Issuer in respect of any amounts paid to such Holders by
the Guarantor under this Preferred Securities Guarantee; provided, however, that
the Guarantor shall not (except to the extent required by mandatory provisions
of law) be entitled to enforce or exercise any right that it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Preferred Securities Guarantee, if, at the
time of any such payment, any amounts are due and unpaid under this Preferred
Securities Guarantee. If any amount shall be paid or property delivered to the
Guarantor in violation of the preceding sentence, the Guarantor agrees to hold
such amount or property in trust for the Holders and to pay over such amount or
deliver such property to the Holders entitled thereto.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Preferred
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1 Limitation of Transactions
So long as any Preferred Securities remain outstanding, the
Guarantor shall not
(i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect
to, any of the Guarantor's capital stock (which includes
common and preferred stock);
(ii) make any payment of principal, interest or premium, if any, on
or repay or repurchase or redeem any debt securities of the
Guarantor that rank pari passu with or junior in right of
payment to the Debentures;
(iii) make any guarantee payments with respect to any guarantee by
the Guarantor of the debt securities of any subsidiary thereof
or any other party if such guarantee ranks pari passu or
junior in right of payment to the Debentures (other than (a)
dividends or distributions in shares of, or options, warrants
or rights to subscribe for or purchase shares of, common stock
of the Guarantor, (b) any declaration of a dividend in
connection with the implementation of a stockholders'
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rights plan, or the issuance of stock under any such plan in
the future, or the redemption or repurchase of any such rights
pursuant thereto, (c) payments under the Preferred Securities
Guarantee and any Other Documents, (d) as a result of a
reclassification of the Guarantor's capital stock or the
exchange or the conversion of one class or series of the
Guarantor's capital stock for another class or series of the
Guarantor's capital stock, (e) the purchase of fractional
interests in shares of the Guarantor's capital stock pursuant
to the conversion or exchange provisions of such capital stock
or the security being converted or exchanged, and (f)
purchases of common stock related to the issuance of common
stock or rights under any of the Guarantor's benefit plans for
its directors, officers or employees or any of the Guarantor's
dividend reinvestment plans)
if at such time (i) there shall have occurred any event of which the Guarantor
has actual knowledge that is, or with the giving of notice or the lapse of time,
or both, would be an Event of Default, (ii) the Guarantor shall be in default
with respect to its payment or other obligations under Section 5.1 of this
Preferred Securities Guarantee or (iii) , if the terms of the Debentures provide
for the deferral of the obligation of the Guarantor, as issuer of the Debenture,
to pay interest thereon, whether at the option of the Guarantor or another
Person or otherwise, a notice of deferral has been given and not rescinded or
any interest deferral period shall have commenced and be continuing. [insert or
modify the foregoing provision as appropriate]
SECTION 6.2 Ranking
This Preferred Securities Guarantee will constitute an
unsecured obligation of the Guarantor and will rank [insert applicable ranking,
i.e., equal to Debentures, subordinate, senior or otherwise]
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Preferred Securities Guarantee shall terminate upon (i)
full payment of the Redemption or Repayment Price of all Preferred Securities,
(ii) the conversion or exchange of all the Preferred Securities and the full
payment of any related amounts or (iii) full payment of the amounts payable or
delivery of securities or other property deliverable upon liquidation of the
Issuer, in each case, in accordance with the terms of the Agreement.
Notwithstanding the foregoing, this Preferred Securities Guarantee will continue
to be effective or will be reinstated, as the case may be, if at any time any
Holder must restore payment of any sums paid or other property distributed under
the Preferred Securities or under this Preferred Securities Guarantee.
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ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith in accordance with this
Preferred Securities Guarantee and in a manner that such Indemnified Person
reasonably believed to be within the scope of the authority conferred on such
Indemnified Person by this Preferred Securities Guarantee or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's negligence, bad faith or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence and
amount of assets from which Distributions to Holders might properly be paid.
SECTION 8.2 Indemnification
(a) To the fullest extent permitted by applicable law, the
Guarantor agrees to indemnify and hold harmless each Indemnified Person from and
against any loss, damage or claim incurred by such Indemnified Person by reason
of any act or omission performed or omitted by such Indemnified Person in good
faith in accordance with this Preferred Securities Guarantee and in a manner
such Indemnified Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person by this Preferred Securities Guarantee,
except that no Indemnified Person shall be entitled to be indemnified in respect
of any loss, damage or claim incurred by such Indemnified Person by reason of
negligence, bad faith or willful misconduct with respect to such acts or
omissions.
(b) To the fullest extent permitted by applicable law,
reasonable out-of-pocket expenses (including reasonable legal fees) incurred by
an Indemnified Person in defending any claim, demand, action, suit or proceeding
shall, from time to time, be advanced by the Guarantor prior to the final
disposition of such claim, demand, action, suit or proceeding upon receipt by
the Guarantor of an undertaking by or on behalf of the Indemnified Person to
repay such amount if it shall be determined that the Indemnified Person is not
entitled to be indemnified as authorized in Section 8.2(a).
(c) The provisions set forth in this Section 8.2 shall survive
the termination of the Preferred Securities Guarantee and any resignation or
removal of the Preferred Securities Guarantee Trustee.
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SECTION 8.3 Compensation
The Guarantor agrees:
(a) to pay to the Preferred Securities Guarantee Trustee from
time to time such compensation as shall be agreed in writing between the
Guarantor and the Preferred Securities Guarantee Trustee for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust); and
(b) to reimburse the Preferred Securities Guarantee Trustee
upon its request for reasonable expenses, disbursements and advances incurred or
made by the Preferred Securities Guarantee Trustee in accordance with any
provision of this Preferred Securities Guarantee (including the reasonable
compensation and the expenses and advances of its agents and counsel), except
any such expense or advance as may be attributable to its negligence, willful
misconduct or bad faith.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
All guarantees and agreements contained in this Preferred
Securities Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Preferred Securities then outstanding.
SECTION 9.2 Amendments
Except with respect to any changes that do not adversely
affect the rights of Holders (in which case no consent of Holders will be
required), this Preferred Securities Guarantee may only be amended while any
Preferred Securities are outstanding with the prior approval of the Holders of
at least a Majority in liquidation amount (including the stated amount that
would be paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined) of
all the outstanding Preferred Securities covered by the Preferred Securities
Guarantee. The provisions of Section 12.2 of the Agreement with respect to
meetings of Holders apply to the giving of such approval.
SECTION 9.3 Notices
All notices provided for in this Preferred Securities
Guarantee shall be in writing, duly signed by the party giving such notice, and
shall be delivered, telecopied or mailed by registered or certified mail, as
follows:
(a) If given to the Preferred Securities Guarantee Trustee, at
the Preferred Securities Guarantee Trustee's mailing address set forth below (or
such other address as the
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Preferred Securities Guarantee Trustee may give notice of to the Holders of the
Preferred Securities):
[Bank One Trust Company, National Association
100 East Broad Street
Columbus, Ohio 43271]
Attention: [__________________]
(b) If given to the Guarantor, at the Guarantor's mailing
address set forth below (or such other address as the Guarantor may give notice
of to the Holders):
The Detroit Edison Company
2000 2nd Avenue
Detroit, Michigan 48826-1279
Attention: ___________________
(c) If given to any Holder, at the address set forth on the
books and records of the Issuer.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 9.4 Benefit
This Preferred Securities Guarantee is solely for the benefit
of the Holders and, subject to Section 3.1(a), is not separately transferable
from the Preferred Securities.
SECTION 9.5 Governing Law.
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF _______
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
SECTION 9.6 Counterparts.
The parties may sign any number of copies of this Preferred
Securities Guarantee. Each signed copy shall be an original, but all of them
together represent the same agreement. Any signed copy shall be sufficient proof
of this Preferred Securities Guarantee.
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THIS PREFERRED SECURITIES GUARANTEE is executed as of the day
and year first above written.
THE DETROIT EDISON COMPANY
as Guarantor
By:
-------------------------------------------
Name:
Title:
[BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION]
as Preferred Securities Guarantee Trustee
By:
-------------------------------------------
Name:
Title:
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