EXHIBIT 99-26
THIRTEENTH AMENDMENT TO TRUST AGREEMENT BETWEEN
FIDELITY MANAGEMENT TRUST COMPANY AND
THE DETROIT EDISON COMPANY
THIS THIRTEENTH AMENDMENT, dated as of the twenty first day of December,
2001, by and between Fidelity Management Trust Company (the "Trustee") and The
Detroit Edison Company (the "Sponsor");
WITNESSETH:
WHEREAS, the Trustee and the Sponsor heretofore entered into a Master
Trust Agreement dated June 30,1994, as amended with regard to The Detroit Edison
Savings & Investment Plan, The Detroit Edison Savings & Investment Plan for
Employees Represented by Local 17 of the International Brotherhood of Electrical
Workers, and The Detroit Edison Savings & Investment Plan for Employees
Represented by Local 223 of the Utility Workers Union of America (collectively
and individually, the "Plan"); and
WHEREAS, the Sponsor has informed the Trustee that the Sponsor has
acquired MCN Energy Group, and as a result the MichCon Savings and Stock
Ownership Plan will be trusteed under the Master Trust Agreement; and
WHEREAS, the Sponsor has informed the Trustee that the MCN Energy Savings
and Stock Ownership Plan and the Citizen's Gas Fuel Co. Investment Share Plan
is merging with and into The Detroit Edison Savings & Investment Plan; and
WHEREAS, the MAS Value Portfolio is now known as the "Morgan Stanley
Institutional Fund Trust Value Portfolio- Adviser Class Shares"; and
WHEREAS, the MAS Mid Cap Growth Portfolio is now known as the "Morgan
Stanley Institutional Fund Trust Mid Cap Growth Portfolio- Adviser lass Shares";
and
WHEREAS, the Trustee and the Sponsor now desire to amend said Trust
Agreement as provided for in Section 14 thereof;
NOW THEREFORE, in consideration of the above premises the Trustee and the
Sponsor hereby amend the Trust Agreement by:
(1) Amending all references to the Sponsor as "The Detroit Edison
Company" to now read "DTE Energy Company."
(2) Amending all references to the Trust Agreement as "The Detroit
Edison Company Master Plan Trust" to now read the "DTE Energy Master
Plan Trust."
(3) Amending and restating the first "WHEREAS" clause, in its entirety,
as follows:
WHEREAS, the Sponsor is the sponsor of The Detroit Edison Savings &
Investment Plan, The Detroit Edison Savings & Investment Plan for
Employees Represented by Local 17 of the International Brotherhood of
Electrical Workers. The Detroit Edison Savings & Investment
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Plan for Employees Represented by Local 223 of the Utility Workers Union of
America and the MichCon Savings and Stock Ownership Plan (collectively and
individually, the "Plan"): and
(4) Amending and restating Section l(m) in its entirety, as follows:
(m) "Plan" shall mean The Detroit Edison Savings & Investment Plan, The
Detroit Edison Savings & Investment Plan for Employees Represented by Local 17
of the International Brotherhood of Electrical Workers, The Detroit Edison
Savings & Investment Plan for Employees Represented by Local 223 of the Utility
Workers Union of America and the MichCon Savings and Stock Ownership Plan and
such other tax-qualified, defined contribution plans which are maintained by the
Sponsor or any of its subsidiaries or affiliates for the benefit of their
eligible employees as may be designated by the Sponsor in writing to the Trustee
as a Plan hereunder, such writing to be in the form of the Plan Designation Form
attached hereto as Schedule "J." Each reference to "a Plan" or "the Plan" in
this Agreement shall mean and include the Plan or Plans to which the particular
provision of this Agreement is being applied or all Plans, as the context may
require.
(5) Amending Section 5(b), Available Investment Options, by adding the
following:
(vii) collective investment funds maintained by entities other than the
Trustee for qualified plans.
(6) Amending and restating Section 5(e). Sponsor Stock, in its entirety, as
follows:
(e) Sponsor Stock. Trust investments in Sponsor Stock shall be made via
the Detroit Edison Common Stock Fund (the "Stock Fund"). Dividends received on
shares of Sponsor Stock shall be reinvested in additional shares of Sponsor
Stock and allocated to Participants' accounts.
(i) Acquisition Limit. Pursuant to the Plan, the Trust
may be invested in Sponsor Stock to the extent necessary to comply with
investment directions under this Agreement. The Sponsor shall be responsible for
providing specific direction on any acquisition limits required by the Plan or
applicable law.
(ii) Fiduciary Duty.
(A) The Named Fiduciary shall continually monitor
the suitability of the Trust acquiring and holding Sponsor Stock, under the
fiduciary duty rules of section 404(a)(1) of ERISA (as modified by section
404(a)(2) of ERISA). The Trustee shall not be liable for any loss, or expense,
which arises from the directions of the Named Fiduciary with respect to the
acquisition and holding of Sponsor Stock, unless it is clear on their face that
the actions to be taken under those directions would be prohibited by the
foregoing fiduciary duty rules or would be contrary to the terms of this
Agreement.
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(B) Each Participant with an interest in Sponsor
Stock (or, in the event of the Participant's death, his beneficiary) is, for
purposes of this section 4(e)(ii), hereby designated as a "named fiduciary"
(within the meaning of section 403(a)(l) of ERISA), with respect to shares of
Sponsor Stock allocated to his or her account but not purchased at his or her
direction, and such Participant (or beneficiary) shall have the right to direct
the Trustee as to the manner in which the Trustee is to vote or tender such
shares.
(iii) Purchases and Sales of Sponsor Stock.
Unless otherwise directed by the Sponsor in writing, pursuant to directions that
the Trustee can administratively implement, the following provisions shall
govern purchases and sales of Sponsor Stock:
(A) Open Market Purchases and Sales. Purchases and
sales of Sponsor Stock (other than for exchanges) shall be made on the open
market on the date on which the Trustee receives from the Administrator in good
order all information, documentation, and wire transfer of funds (if
applicable), necessary to accurately effect such transactions. Exchanges of
Sponsor Stock shall be made in accordance with the exchange guidelines attached
hereto as Schedule "G." Such general rules shall not apply in the following
circumstances:
(1) If the Trustee is unable to purchase or
sell the total number of shares required to he purchased or sold on such day as
a result of market conditions; or
(2) If the Trustee is prohibited by the
Securities and Exchange Commission, the New York Stock Exchange or principal
exchange on which the Sponsor Stock is traded, or any other regulatory body from
purchasing or selling any or all of the shares required to be purchased or sold
on such day.
In the event of the occurrence of a circumstance described in (1) or (2) above,
the Trustee shall purchase or sell such shares as soon thereafter as
administratively feasible, and shall determine the price of such purchases or
sales to be the average purchase or sales price of all such shares purchased or
sold, respectively. The Trustee may follow written directions from the Named
Fiduciary to deviate from the above purchase and sale procedures.
(B) Use of an Affiliated Broker. The Named
Fiduciary hereby directs the Trustee to use National Financial Services LLC
("NFSLLC"') to provide
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brokerage services in connection with any purchase or sale of Sponsor Stock in
accordance with directions from Plan Participants. NFSLLC shall execute such
directions directly or through any of its affiliates. The provision of brokerage
services shall be subject to the following:
(1) As consideration for such brokerage
services, the Named Fiduciary agrees that NFSLLC shall be entitled to
remuneration under this direction provision in the amount of $0.05 commission on
each share of Sponsor Stock up to 10,000 shares in a singular transaction, $0.04
commission on each share of Sponsor Stock from 10,001 to 19,999 shares in a
singular transaction, and $0,034 commission on each share of Sponsor Stock in
excess of 19,999 shares in a singular transaction. Any change in such
remuneration may be made only by a signed agreement between the Named Fiduciary
and Trustee.
(2) Any successor organization of NFSLLC,
through reorganization, consolidation, merger or similar transactions, shall,
upon consummation of such transaction, become the successor broker in accordance
with the terms of this direction provision.
(3) The Trustee and NFSLLC shall continue to
rely on this direction provision until notified to the contrary. The Named
Fiduciary reserves the right to terminate this direction upon written notice to
NFSLLC (or its successor) and the Trustee, in accordance with Section 12 of this
Agreement.
(iv) Securities Law Reports.
The Named Fiduciary shall be responsible for filing all reports required under
Federal or state securities laws with respect to the Trust's ownership of
Sponsor Stock, including, without limitation, any reports required under section
13 or 16 of the Securities Exchange Act of 1934, and shall immediately notify
the Trustee in writing of any requirement to stop purchases or sales of Sponsor
Stock pending the filing of any report. The Trustee shall provide to the Named
Fiduciary such information on the Trust's ownership of Sponsor Stock as the
Named Fiduciary may reasonably request in order to comply with Federal or state
securities laws.
(v) Voting and Tender Offers.
Notwithstanding any other provision of this Agreement the provisions of this
Section shall govern the voting and tendering of Sponsor Stock. The Sponsor
shall pay for all printing, mailing, tabulation and other costs associated with
the voting and tendering of Sponsor Stock.
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The Trustee, after consultation with the Sponsor, shall prepare the necessary
documents associated with the voting and tendering of Sponsor Stock.
(A) Voting,
(1) When the issuer of Sponsor Stock prepares
for any annual or special meeting, the Sponsor shall notify the Trustee at least
thirty (30) days in advance of the intended record date and shall cause a copy
of all proxy solicitation materials to be sent to the Trustee. If requested by
the Trustee the Sponsor shall certify to the Trustee that the aforementioned
materials represents the same information distributed to shareholders of Sponsor
Stock, Based on these materials, the Trustee shall prepare a voting instruction
form and shall provide a copy of all proxy solicitation materials to be sent to
each Participant with an interest in Sponsor Stock held in the Trust, together
with the foregoing voting instruction form to be returned to the Trustee or its
designee. The form shall show the number of full and fractional shares of
Sponsor Stock credited to the Participant's accounts.
(2) Each Participant with an interest in the
Sponsor Stock held in the Trust shall have the right to direct the Trustee as to
the manner in which the Trustee is to vote (including not to vote) that number
of shares of Sponsor Stock credited to the Participant's accounts (both vested
and unvested). Directions from a Participant to the Trustee concerning the
voting of Sponsor Stock shall be communicated in writing, or by such other means
as agreed upon by the Trustee and the Sponsor. These directions shall be held in
confidence by the Trustee and shall not be divulged to the Sponsor, or any
officer or employee thereof, or any other person except to the extent that the
consequences of such directions are reflected in reports regularly communicated
to any such person in the ordinary course of the performance of the Trustee's
services hereunder. Upon its receipt of the directions, the Trustee shall vote
the shares of Sponsor Stock as directed by the Participant Except as otherwise
required by law, the Trustee shall not vote shares of Sponsor Stock credited to
a Participant's account for which it has received no directions from the
Participant.
(3) Except as otherwise required by law, the
Trustee shall vote that number of shares of Sponsor Stock not credited to
Participants' accounts in the same proportion on each issue as it votes those
shares credited to Participants' accounts for which it received voting
directions from Participants.
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(B) Tender Offers.
(1) Upon commencement of a tender offer for any
securities held in the Trust that are Sponsor Stock, the Sponsor shall timely
notify the Trustee in advance of the intended tender date and shall cause a copy
of all materials to be sent to the Trustee. The Sponsor shall certify to the
Trustee that the aforementioned materials represent the same information
distributed to shareholders of Sponsor Stock. Based on these materials and after
consultation with the Sponsor, the Trustee shall prepare a tender instruction
form and shall provide a copy of all tender materials to be sent to each
Participant with an interest in the Stock Fund, together with the foregoing
tender instruction form, to be returned to the Trustee or its designee. The
tender instruction form shall show the number of full and fractional shares of
Sponsor Stock credited to the Participants account (both vested and unvested).
(2) Each Participant with an interest in the
Stock Fund shall have the right to direct the Trustee to tender or not to tender
some or all of the shares of Sponsor Stock credited to the Participant's
accounts (both vested and unvested). Directions from a Participant to the
Trustee concerning the tender of Sponsor Stock shall be communicated in writing,
or such other means as is agreed upon by the Trustee and the Sponsor. These
directions shall be held in confidence by the Trustee and shall not be divulged
to the Sponsor, or any officer or employee thereof, or any other person except
to the extent that the consequences of such directions are reflected in reports
regularly communicated to any such persons in the ordinary course of the
performance of the Trustee's services hereunder. The Trustee shall tender or not
tender shares of Sponsor Stock as directed by the Participant. Except as
otherwise required by law, the Trustee shall not tender shares of Sponsor Stock
credited to a Participant's accounts for which it has received no directions
from the Participant.
(3) Except as otherwise required by law, the
Trustee shall tender that number of shares of Sponsor Stock not credited to
Participants' accounts in the same proportion as the total number of shares of
Sponsor Stock credited to Participants' accounts for which it received
instructions from Participants.
(4) A Participant who has directed the Trustee
to tender some or all of the shares of Sponsor Stock credited to the
Participant's accounts may, at any time prior to the tender offer withdrawal
date, direct the Trustee to withdraw some or all of the tendered shares, and the
Trustee shall withdraw the directed number of shares from the tender offer prior
to the tender offer withdrawal deadline. Prior to the withdrawal deadline, if
any
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shares of Sponsor Stock not credited to Participants' accounts have been
tendered, the Trustee shall redetermine the number of shares of Sponsor Stock
that would be tendered under Section 5(e)(v)(B)(3) if the date of the foregoing
withdrawal were the date of determination, and withdraw from the tender offer
the number of shares of Sponsor Stock not credited to Participants' accounts
necessary to reduce the amount of tendered Sponsor Stock not credited to
Participants' accounts to the amount so redetermined. A Participant shall not be
limited as to the number of directions to tender or withdraw that the
Participant may give to the Trustee.
(5) A direction by a Participant to the Trustee
to tender shares of Sponsor Stock credited to the Participant's accounts shall
not be considered a written election under the Plan by the Participant to
withdraw, or have distributed, any or all of his withdrawable shares. The
Trustee shall credit to each account of the Participant from which the tendered
shares were taken the proceeds received by the Trustee in exchange for the
shares of Sponsor Stock tendered from that account. Pending receipt of
directions (through the Administrator) from the Participant or the Named
Fiduciary, as provided in the Plan, as to which of the remaining investment
options the proceeds should be invested in, the Trustee shall invest the
proceeds in the investment option described in Schedule "C".
(vi) General.
With respect to all shareholder rights other than the right to vote, the right
to tender, and the right to withdraw shares previously tendered, in the case of
Sponsor Stock, the Trustee shall follow the procedures set forth in subsection
(A), above.
(vii) Conversion.
All provisions in this Section 5(e) shall also apply to any securities received
as a result of a conversion of Sponsor Stock.
(7) Amending Section 5, Investment of Trust, by adding the following as new
subsections (g) and (h), and re-lettering all subsequent subsections
accordingly:
(g) Participation in Collective Investment Funds Managed by the Trustee.
The Sponsor hereby (A) acknowledges that it has received from the Trustee a copy
of the Group Trust, the participation agreement for the Group Trust (the
"Participation Agreement") and the Declaration of Separate Fund for each
separate fund of the Group Trust selected by the Named Fiduciary, and (B) adopts
as part of this Agreement the terms of the Group Trust, the
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Participation Agreement and the Declaration of Separate Fund for each such
separate fund of the Group Trust.
(h) Outside Managed Collective Investment Fund. All transactions involving
the Wellington Trust Company Large Cap Research Value Fund shall be done in
accordance with the Operating Procedures attached hereto as Schedule "K".
(8) Amending Section 7, Compensation and Expenses, by adding the following:
All invoices from the Trustee are due and payable within thirty (30) days
of receipt, and the Trustee reserves the right to assess interest on any
undisputed amounts which remain unpaid after thirty (30) days at a rate of one
and one-half percent (1 1/2%) per month. In order to dispute an invoice, DTE
Energy Company must provide the Trustee with written notice of the reasons for
such dispute within thirty (30) days of receipt of the invoice.
(9) Amending all references to the "MAS Value Portfolio" to now read the
"Morgan Stanley Institutional Fund Trust Value Portfolio- Adviser Class
Shares."
(10) Amending all references to the "MAS Mid Cap Growth Portfolio" to now read
the "Morgan Stanley Institutional Fund Trust Mid Cap Growth Portfolio.
Adviser lass Shares."
(11) Amending the "investment options" portion of Schedule "A" by adding the
following:
- Fidelity Freedom 2040 Fund
- Fidelity Blue Chip Growth Fund
- Fidelity U.S. Equity Index Commingled Pool
- Legg Mason Value Trust-Institutional Class
- Longleaf Partners Fund-Class A
- Lord Abbott Developing Growth Fund-Class A
- Putnam Global Growth Fund- Y Class
- Putnam Growth & Income Fund- Y Class
- Putnam International Growth Fund- Y Class
- Putnam New Opportunities Fund- Y Class
- Putnam Voyager Fund- Y Class
- Vanguard U.S. Growth Fund
- Wellington Trust Company Large Cap Value Fund
- Western Asset Core Portfolio- Institutional Class
(12) Amending the "money classifications" portion of Schedule "A" by adding the
following for The Detroit Edison Savings & Investment Plan, The Detroit
Edison Savings & Investment Plan for Employees Represented by Local 17 of
the International Brotherhood of Electrical Workers and The Detroit Edison
Savings & Investment Plan for Employees Represented by Local 223 of the
Utility Workers Union of America:
- ESOP Match
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- Employer Match
- ESOP Pre 2002 Restricted Match
- ESOP Pre 2002 After-Tax Restricted Match
- ESOP Pre 2002 Unrestricted Match
- ESOP Pre 2002 After-Tax Unrestricted Match
- After-Tax Match
- Prior Employer Match
- Prior Employer After-Tax Match
- Prior Employer ESOP
- Prior Employer After-Tax ESOP
(13) Amending the "money classifications" portion of Schedule "A" by adding the
following:
* Maintenance of the following money classifications for the MichCon
Savings and Stock Ownership Plan:
- Basic Deferred
- Supplemental Deferred
- Basic After-Tax
- Supplemental After-Tax
- Company Match Unmatured
- Rollover
- Company Match Matured
- ESOP Match
- Employer Match
- ESOP Pre 2002 Restricted Match
- ESOP Pre 2002 After-Tax Restricted Match
- ESOP Pre 2002 Unrestricted Match
- ESOP Pre 2002 After-Tax Unrestricted Match
- After-Tax Match
- Prior Employer Match
- Prior Employer After-Tax Match
- Prior Employer ESOP
- Prior Employer After-Tax ESOP
(14) Amending and restating the "Non-Fidelity Mutual Funds" section of Schedule
"B", in its entirety, as follows:
Non Fidelity Mutual Funds: Non-Fidelity Mutual Fund vendors shall pay
fees directly to Fidelity Investments
Institutional Operations Company, Inc.
(FIIOC) or its affiliates equal to such
percentage (generally 25 to 50 basis
points) of plan assets invested in such
Non-Fidelity Mutual Funds as may be
disclosed periodically, or, in the case of
the following investment options, in the
amounts listed below:
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- 0 basis points for Legg Mason Value
Trust-Institutional Class.
- 0 basis points for Longleaf partners-
Class A.
- 25 basis points for Lord Abbott
Developing Growth Fund- Class A.
- 0 basis points for Putnam Global Growth
Fund- Y Class
- 0 basis points for Putnam Growth &
Income Fund- Y Class.
- 0 basis points for Putnam International
Growth Fund- Y Class.
- 0 basis points for Putnam New
Opportunities Fund- Y Class.
- 0 basis points for Putnam Voyager Fund-
Y Class.
- 0 basis points for Vanguard U.S. Growth
Fund.
- 0 basis points for Western Asset Core
Portfolio.
Unless otherwise noted, disclosure shall be
posted and updated quarterly on Plan Sponsor
Webstation at https://psw.fidelity.com or a
successor site.
(15) Amending and restating the Detroit Edison Common Stock Fund section of
Schedule "G", in its entirety, as follows:
DETROIT EDISON COMMON STOCK FUND
I. EXCHANGES FROM MUTUAL FUNDS INTO SPONSOR STOCK
Sponsor Stock exchanges are processed on a daily cycle, market conditions
permitting. Participants who wish to exchange out of a mutual fund into
Sponsor Stock may call on any business day. Calls received after 4:00 p.m.
(ET) will be processed as if received on the following business day.
Mutual fund shares are sold on the day on which the request is received.
Buy trades for Sponsor Stock are batched and execution of the batch is
commenced on the following business day (call date plus 1). Sponsor Stock
will be reflected in the Participant's account on the business day
following execution of the batched trade (call date plus 2) for a batch
trade executed on a single date.
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II. EXCHANGES FROM SPONSOR STOCK INTO MUTUAL FUNDS
Participants who wish to exchange out of Sponsor Stock into mutual funds
may call on any business day. Calls received after 4:00 p.m. (ET) will be
processed as if received on the following business day.
Sell trades for Sponsor Stock are batched, and execution of the batch is
commenced on the business day following the call. The subsequent purchase
into mutual fund shares will take place three (3) business days later
(call date plus 4), using the volume weighted average price for the
batched sell trade, to allow for settlement of the stock. The mutual fund
shares will be reflected in the Participant's account on the following
business day (call date plus 5), assuming the batched sell trade has been
completed by that time,
(16) Adding Schedule "J", as attached hereto.
(17) Adding Schedule "K", as attached hereto.
IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this Thirteenth
Amendment to be executed by their duly authorized officers effective as of the
day and year first above written.
THE DETROIT EDISON COMPANY FIDELITY MANAGEMENT TRUST
COMPANY
By: /s/ Dina L. McClung By: /s/ Carolyn Redden 3/6/02
------------------- --------------------------
Dina L. McClung Carolyn Redden
Date 2/4/02 Vice President Date
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SCHEDULE "J" - AUTHORIZED SIGNERS FOR PLAN(S) ADDED TO A MASTER TRUST
[Sponsor's Letterhead]
Mr. Peter Lacy
Fidelity Investments Institutional Operations Company, Inc..
300 Puritan Way - MM3H
Marlborough, Massachusetts 01752-3078
MichCon Savings and Stock Ownership Plan
Dear Mr. Lacy:
This letter is sent to you in accordance with the terms of the Trust
Agreement dated as of the thirtieth day of June, 1994, between DTE Energy
Company and Fidelity Management Trust Company.
The plan identified above is a tax-qualified defined contribution plan
which meets the requirements of Section 17 of said Trust Agreement and which is
maintained by the Sponsor, or one of its subsidiaries or affiliates (as
identified below), for the benefit of its eligible employees. The
above-referenced plan is hereby designated as a "Plan" for purposes of said
Trust Agreement. The following individuals or entities are the Administrator and
Named Fiduciary(ies) of said Plan(s) (if different from those previously
identified by the Sponsor).
Plans Administrator Named Fiduciary(ies)
- ------------------------------------ ------------------------------------
[signature of designated individual] [signature of designated individual]
- ------------------------------------ ------------------------------------
[name of designated individual] [name of designated individual]
- ------------------------------- -------------------------------
[signature of designated individual] [signature of designated individual]
- ------------------------------------ ------------------------------------
[name of designated individual] [name of designated individual]
The signer(s) of this letter hereby further certify(ies) that each
Employer with respect to the foregoing Plan has authorized the assets of such
Plan to be deposited in the Trust and, as a result, is bound by Section 19(b) of
said Trust Agreement.
You may rely upon the foregoing designations and certifications until we
deliver to you written notice of a change in any of the information set forth
therein.
Very truly yours,
[SPONSOR]
By:__________________________________
[SPONSOR OF ADDED PLAN, if different]
By:__________________________________
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SCHEDULE "K"
OPERATING PROCEDURES AGREEMENT
This Operating Procedures Agreement (this "Agreement") is entered into as of
November____, 2001, by and between Wellington Trust Company, NA ("Wellington
Trust") and Fidelity Investments Institutional Operations Company. Inc.
("FIIOC").
WHEREAS, FIIOC makes available shares of investment companies or other
investment vehicles to the DTE Energy Company Executive Deferred Compensation
Plan and the Detroit Edison Savings and Investment Plan (together, the "Plan");
and
WHEREAS, FIIOC has been retained by the Plan to provide certain recordkeeping
and other third party administrative services to the Plan; and
WHEREAS, Wellington Trust will enter into an Investment Agreement with the Plan
pursuant to which the Plan will own units ("Units") of the WTC-CIF II Large Cap
Research Value portfolio (the "Portfolio") and FIIOC and Wellington Trust desire
to facilitate the purchase and redemption of Units by the Plan,
NOW, THEREFORE, the parties agree as follows::
A) PRICING;
1) Wellington Trust shall be responsible for calculating a price per Unit for
the Portfolio each day the New York Stock Exchange ("NYSE") is open for
business (a "Business Day"), using pricing as of the close of trading on
that Business Day. FIIOC shall not review the price as calculated by
Wellington Trust.
2) By 7:00 p.m. Eastern Time ("ET") each Business Day, Wellington Trust shall
provide the price for The Portfolio, along with the price change from that
of the previous Business Day ("Price Information"), to the Fidelity
Participant Recordkeeping System ("FPRS") via an electronic data transfer
("EDT") feed, as agreed to by the parties. Because the plan allows daily
transaction processing into or out of the Portfolio, Wellington Trust must
provide a price each Business Day. Schedule 1 provides detailed pricing
procedures, including contingency plans.
3) in the event that Wellington Trust fails to provide Price Information on
any Business Day, FIIOC shall pend associated Plan transaction activity
until the relevant Price Information is provided or made available by
Wellington Trust.
4) With respect to any Fidelity mutual fund that is a related Plan investment
option, as defined below, subject to (a) policies adopted by the Fidelity
Fund Board(s) of Trustees, and (b) guidelines established by the
Securities and Exchange Commission, FIIOC agrees to take all appropriate
action as to mitigate any Net Direct Loss due to delayed Price Information
from Wellington Trust.
5) In the event that Wellington Trust fails to provide Price Information or
provides incorrect Price Information as a result of the negligence of
Wellington Trust, and thereby causes a Net Direct Loss to any Plan
participant account maintained by FIIOC, than Wellington Trust shall be
responsible
for compensating the Plan participant account(s) so that any participant
who has incurred such a loss shall be made whole. In addition, Wellington
Trust agrees to compensate FIIOC for its reasonable out-of-pocket expenses
incurred, subject to a cap on such reasonable expenses as follows: (a)
$1,000 per day for each day the incorrect or delayed Price Information is
not corrected or provided, and (b) up to $10,000 per occurrence in the
aggregate. Any incorrect or delayed Price Information that has a common
nexus with any single error shall be deemed to be one occurrence for these
purposes, provided that all corrections are provided at the same time.
6) In the event that a Plan participant gained from incorrect or delayed
Price Information and the gain is reflected in Units of the Portfolio,
FIIOC shall adjust the Plan participant's account upon notification to the
the Plan and Wellington Trust. The account shall be adjusted by selling
any excess Units of the Portfolio, to the extent available, on a current
basis; the resulting proceeds shall be returned by FIIOC to Wellington
Trust.
7) In the event that a Plan participant gained from incorrect or delayed
Price Information and received a cash distribution during the time period
affected by an overstated price, FIIOC shall make a reasonable effort to
recover the overpayment from such Plan participant, and return such
overpayment to Wellington Trust, upon notification to the Plan and
Wellington Trust, provided that Wellington Trust assumes responsibility
for all reasonable and demonstrable expenses incurred by FIIOC in
attempting to recover the overpayment.
8) In the event that a participant gained from incorrect Price Information
and an exchange transaction was involved, FIIOC shall sell the excess
Units in the affected Plan participant account, to the extent available,
on a current basis, and remit the resulting proceeds to Wellington Trust.
9) Wellington Trust shall not net the impact of individual Plan participant
gains and losses in calculating any compensation due Plan participants
and/or FIIOC as the result of incorrect Price Information. Any resultant
gains shall be returned to Wellington Trust.
10) With respect to any Net Direct Loss for which Wellington Trust is
responsible under paragraphs 3, 5, 6, 7, and 8 above, FIIOC shall take all
reasonable steps, in accordance with the provisions of paragraphs 5, 6, 7
and 8 above, so as to mitigate the amount of such Net Direct Loss.
11) For purposes of this Agreement, "Net Direct Loss" is defined as (a)
earnings and/or appreciation that would have been realized in amounts that
should have been but were not invested or withdrawn within a participant
account in accordance with a participant-level instruction due to
incorrect, or delayed input of, price Information by Wellington Trust,
over (b) earnings and/or appreciation realized by the initiator of the
participant-level instruction on amounts that were erroneously credited,
or were not credited to that participant's account, due to incorrect, or
delayed input of, Price Information, by Wellington Trust, A "related Plan,
investment option" is defined as any Plan investment option (including,
but not limited to, Fidelity mutual funds, non-Fidelity mutual funds,
employer stock, commingled pools, guaranteed investment contracts, and
customized separately managed portfolios) impacted by pended transaction
activity due to Wellington Trust's failure to provide timely Price
Information to FIIOC, from incorrect or delayed Price Information.
B) TRADE INSTRUCTIONS:
FIIOC represents that all participant-level activity reflected in the Trade
Report described below was received by it prior to the close of business on the
prior Business Day.
1) FIIOC shall provide Wellington Trust, via fax, a report of net activity
(the "Trade Report") that occurred in the Portfolio on the prior Business
Day, by 7:30 a.m. ET, and shall provide an adjustment Trade Report by 9:00
a.m. ET. The Trade Report shall reflect the net dollar and Unit amounts of
assets invested or withdrawn as of the end of the processing date. FIIOC
shall fax the Trade Report to Wellington Trust each Business Day,
regardless of processing activity. If for any reason FIIOC is unable to
fax the Trade Report to Wellington Trust on any Business Day, FIIOC Shall
notify Wellington Trust of this by no later than 9:00 a.m. ET.
2) Trade Reports received by Wellington Trust by 9:00 a.m. ET on Trade Date
+ 1 Shall be processed at the prior Business Day's pries per Unit.
3) Schedule 1 provides detailed trading procedures, including contingency
plans.
4) FIIOC agrees to indemnify and hold harmless the Portfolio and Wellington
Trust for any loss incurred by the Portfolio, Wellington Trust and/or a
Plan participant due to a trading error caused by FIIOC. FIIOC also agrees
to compensate the Portfolio, Wellington Trust and/or a Plan participant
for the cost of any adjustments to the Portfolio due to such trading
error.
C) MONETARY TRANSFERS:
For purposes of wire transfers, FIIOC shall net purchase and redemption
activity occurring on the same Business Day. The monetary transfers between
FIIOC and Wellington Trust shall operate as follows:
1) Based upon the cash value of the net redemption activity reported each
Business Day, Wellington Trust shall initiate a wire transfer for receipt
by FIIOC by no later than the close of business at the New York Federal
Reserve Bank on Trade Date + 1. The mailing of participant distribution
checks and investments into other investment options will occur upon
receipt of the wire from Wellington Trust.
2) Based upon the cash value of the net purchase activity reported each
Business Day, FIIOC shall initiate a wire transfer for receipt by
Wellington Trust by no later than the close of business at the New York
Federal Reserve Bank on Trade Date + 1.
3) Wires shall be sent according to wire instructions listed below.
FIIOC'S WIRE TRANSFER WELLINGTON TRUST COMPANY WIRE
INSTRUCTIONS: INSTRUCTIONS:
Bankers Trust of New York NY Stats Street Bank & Trust Company, Boston
ABA Number: 021 001 033 ABA Number: 011-000-028
Account Name: FPRS Depository Account Name: Wellington Trust Daily
Account Number: 00163002 Account Number: 71933410
BenRef: PLAN 02448 Ref: Fidelity/DTE Energy
4) FIIOC and Wellington Trust shall monitor the receipt of wires on a daily
basis. If for any reason a wire is not received, the receiving parry is
responsible for notifying the sender of this problem by 1:00 p.m. ET on
the next Business Day. The party that failed to initiate the wire in a
timely manner shall be responsible for the amount of such wire, plus
associated bank penalties.
D) CORPORATE ACTIONS:
Wellington Trust shall notify FIIOC of all dividends paid by the Portfolio on
declaration date and provide FIIOC with the necessary written notification to
allocate the dividends to participant accounts. This notification shall include
the ex-date, record date, payable date, eligible share basis, dividend rate,
trade price, and the corresponding number of Units to be allocated to
participant accounts by FIIOC.
E) RECONCILIATION:
1) Wellington Trust shall fax to FIIOC transaction confirms for all daily
activity in the Portfolio. FIIOC shall perform a trade reconciliation to
FPRS to ensure that the Portfolio's assets are in balance. FIIOC will
notify Wellington Trust of any material differences between the
participant balances and the Portfolio's balance maintained by Wellington
Trust within five (5) Business Days of confirm receipt.
2) Wellington Trust shall send FIIOC a monthly fund statement within eight
(8) Business Days of month-end.
3) Wellington Trust agrees to indemnity and hold harmless FIIOC for any loss
related to discrepancies between the participant balances maintained by
FIIOC and the Plan's balance in the Portfolio, as maintained by Wellington
Trust, due to errors caused by Wellington Trust.
4) FIIOC agrees to indemnify and hold harmless the Portfolio and Wellington
Trust for any loss related to balance discrepancies between the
participant balances maintained by FIIOC and the Plan's balance in the
Portfolio, as maintained by Wellington Trust, due to errors caused by
FIIOC.
F) ADVERTISING AND RELATED MATERIALS:
1) Advertising and literature with respect to the Portfolio prepared by FIIOC
or its agents for use in marketing Units of the Portfolio to the Plan,
except any material that simply lists the Portfolio's name where the form
of presentation of such name has previously been approved by Wellington
Trust, shall be submitted to Wellington Trust for review and approval
before such material is used with the Plan, or any Plan participant, or
potential Plan participant, Wellington Trust shall advise the submitting
party in writing within three (3) Business Days of receipt of such
materials by Wellington Trust of its approval or disapproval of such
materials.
2) If requested by FIIOC, Wellington Trust shall provide to FIIOC or its
authorized representative, at a single address and at no expense to FIIOC,
a single copy of the following materials relating to the Portfolio:
statement of characteristics, quarterly appraisal, audited annual
financial statements, and any other appropriate documentation. In
addition, on a quarterly basis, Wellington Trust shall print, reproduce
the requested number of copies and provide to FIIOC or its authorized
representative, at a single address and at no expense to FIIOC, a
Portfolio fact sheet for the prior quarter, FIIOC shall be responsible for
distributing the portfolio fact sheet to the Plan and/of any Plan
participant, as the case may be, if requested.
3) Wellington Trust will agree to provide to FIIOC, in electronic format,
performance updates and portfolio updates for The portfolio within 15
business days after the end of each calendar quarter.
G) FORCE MAJEURE:
Notwithstanding anything to the contrary contained herein or in the attached
schedule, both FIIOC and Wellington Trust shall be excused from performing
hereunder in the event of any force majeure event including, but not limited to,
acts of terrorism, natural disasters, acts of God, fire or other casualty, power
outages, system failures and civil commotion. This clause shall not excuse
either party from any liability Which results from failure to have in place
reasonable disaster recovery and safeguarding plans adequate for protecting all
data that the respective party is responsible for maintaining in order to
provide services Under this Agreement.
The above procedures and conditions are hereby confirmed by all parties.
FIDELITY INVESTMENTS INSTITUTIONAL OPERATIONS COMPANY, INC.
By: /s/ Richard A. Linton, Jr.
- ------------------------------
Name: Richard A. Linton, Jr.
Title:Vice President
Date: 11-27-01
WELLINGTON TRUST COMPANY, NA
By: /s/ Jonathan M. Payson
- -----------------------------
Name: Jonathan M. Payson
Title: PRESIDENT
Date: 16 NOVEMBER 01
SCHEDULE 1
A) REMOTE PRICING PROCEDURES
The Price Information, as defined in the Operating Procedures Agreement, shall
be provided by Wellington Trust to FIIOC as follows:
1) Wellington Trust shall provide the Price Information to the EPRS via EDT
feed by no later than 7:00 p.m. ET each Business Day.
2) In the event that the EDT feed is unavailable prior to 7:00 p.m. ET.
Wellington Trust will notify FIIOC via telephone and shall then send the
Price Information via fax to 859-491-9167 (primary fax machine) or
859-291-6396 (back-up fax machine) by no later than 7:00 p.m. ET. FIIOC
shall promptly notify Wellington Trust if the FIIOC fax numbers change.
3) Upon receipt of the faxed Price Information, FIIOC shall contact
Wellington Trust by telephone to verbally confirm the Portfolio price and
the relevant pricing data.
4) In the event that a fax machine is unavailable to Wellington Trust, or
reasonably appears to Wellington Trust to be unavailable to FIIOC, prior
to 7:00 p.m. ET, Wellington Trust shall provide FIIOC with the Price
Information via a telephone call, and shall confirm such information via
fax as soon as practicable, FIIOC shall document the Price Information
received by telephone, referencing Wellington Trust employee's name, date
and time.
5) In the event that Wellington Trust does not provide Price Information to
FIIOC in accordance with Steps 1 through 4 above, transactions involving
the Portfolio (which may include other Plan investment options for
purposes of participant distributions and exchanges, as described in the
Pricing Section of this Agreement) shall pend until the next nightly cycle
following receipt of price Information from Wellington Trust.
Transactions shall be processed "as of" the original trade date.
B) ACTIVITY REPORTING PROCEDURES
The final net purchase or net redemption activity as described in the Operating
Procedures Agreement shall be provided by FIIOC to Wellington Trust as follows:
1) FIIOC shall fax the final net activity information to Wellington Trust to
617-985-9626 (primary fax machine) or 617-985-7215 (back-up fax machine)
by no later than 9:00 a.m. ET each Business Day, regardless of whether or
not activity occurred. Wellington Trust shall promptly notify FIIOC if the
Wellington Trust fax numbers change.
2) FIIOC shall notify Wellington Trust via telephone by 9:00 a.m. ET if the
fax has not yet been transmitted.
3) In The event that a fax machine is unavailable to either FIIOC or
Wellington Trust, FIIOC shall provide Wellington Trust with the activity
information via a telephone call and shall confirm such information via
fax as soon as practicable thereafter. FIIOC shall document the activity
information reported, referencing Wellington Trust employee's name, date
and time.