exv4w265






Exhibit
4-265




 





AMENDMENT, DATED JUNE 1, 2009, TO




TWENTY-FOURTH SUPPLEMENTAL INDENTURE




DATED AS OF MAY 1, 2008




 






BETWEEN




THE DETROIT EDISON COMPANY

AND

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.

TRUSTEE

 






SUPPLEMENTING THE COLLATERAL TRUST INDENTURE

DATED AS OF JUNE 30, 1993

PROVIDING FOR




2008 SERIES ET VARIABLE RATE SENIOR NOTES DUE 2029




 





 









 




THIS AMENDMENT, dated as of June 1, 2009, is being entered into between THE DETROIT EDISON COMPANY
(the “Company”), a Michigan corporation, and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a
national banking association, acting through its corporate trust office in Detroit, Michigan, as
Trustee (the “Trustee”).




Premises





WHEREAS, the Company and the Trustee have executed and delivered a Twenty-Fourth Supplemental
Indenture, dated as of May 1, 2008 (the “Supplemental Indenture”), supplementing the Collateral
Trust Indenture dated as of June 30, 1993, to provide for the issuance by the Company of its
2008 Series ET Variable Rate Senior Notes due 2029 in connection with its obligations to the
Michigan Strategic Fund under the Loan Agreement dated as of May 1, 2008 relating to the
Michigan Strategic Fund Variable Rate Limited Obligation Refunding Revenue Bonds (The Detroit
Edison Company Exempt Facilities Project), Series 2008ET (the “2008ET Bonds”); and




WHEREAS, the Company has elected to convert the Rate Period applicable to the 2008ET Bonds from
the Weekly Interest Rate Period to the Term Interest Rate Period; and




WHEREAS, the Company and the Trustee desire to amend the Supplemental Indenture by execution of
this Amendment in connection with the conversion of the 2008ET Bonds to the Term Interest Rate
Period, and to hereby add to the covenants of the Company for the benefit of the holders of the
2008ET Bonds;




NOW, THEREFORE, for and in consideration of these premises and the mutual covenants herein
contained, the Company covenants with the Trustee as follows:



Article I




Definitions




     All terms defined in the recitals hereto shall have the meanings therein defined. All terms
used in this Amendment, including the recitals, which are defined in the Supplemental Indenture
shall have the meanings as defined in the Supplemental Indenture, unless expressly given a
different meaning herein or unless the context or use indicates another or different meaning or
intent.



Article II




Amendments to Supplemental Indenture




     Section 2.01 Amendment to Section 2.05 of the Supplemental Indenture



     Section 2.05 of the Supplemental Indenture is hereby amended and restated in its entirety as
follows:



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     SECTION 2.05 Form of Note. Attached hereto as Exhibit A is the form of the definitive Note.
On and after the Release Date, the terms of the Notes shall be amended to make appropriate
reference to the Substitute Mortgage and the Substitute Mortgage Bonds; provided, that the consent
of Holders shall not be required in connection with such amendment.



     Section 2.02 Amendment to Article III of the Supplemental Indenture



     All sections of Article III of the Supplemental Indenture are hereby deleted in their entirety
and Article III is hereby designated “RESERVED.”



     Section 2.03 Amendment to Section 4.02 of the Supplemental Indenture



     Section 4.02 of the Supplemental Indenture is hereby amended and restated in its entirety as
follows:



     SECTION 4.02. Release. Until the Release Date and subject to Article Four of the Original
Indenture, the Bonds of the related series issued and delivered to the Trustee shall serve as
security for any and all obligations of the Company under all Notes from time to time Outstanding,
including, but not limited to (1) the full and prompt payment of the principal and premium, if any,
on the Notes when and as the same shall become due and payable in accordance with the terms and
provisions of the Indenture or the Notes, either at the Stated Maturity thereof, upon acceleration
of the maturity thereof, upon redemption, or otherwise, and (2) the full and prompt payment of any
interest on the Notes when and as the same shall become due and payable in accordance with the
terms and provisions of this Indenture or the Notes including, if and to the extent provided for in
the Notes, interest on overdue installments of principal and (to the extent permitted by law)
interest on overdue installments of interest.



     Each supplemental indenture to the Mortgage pursuant to which any Bonds are issued shall
contain a provision to the effect that any payment by the Company hereunder of principal of or
premium or interest on Notes which shall have been authenticated and delivered in connection with
the issuance and delivery to the Trustee of such Bonds (other than by the application of the
proceeds of a payment in respect of such Bonds) shall to the extent thereof, be deemed to satisfy
and discharge the obligation of the Company, if any, to make a payment of principal, premium or
interest, as the case may be, in respect of such Bonds which is then due.



     Notwithstanding anything in the Original Indenture to the contrary, from and after the Release
Date, the obligation of the Company to make payment with respect to the principal of and premium,
if any, and interest on the Bonds shall be deemed satisfied and discharged as provided in the
supplemental indenture or indentures to the Mortgage creating such Bonds and the Bonds shall cease
to secure in any manner Notes theretofore or subsequently issued; the Trustee shall thereupon
surrender the Bonds to the Mortgage Trustee for cancellation and execute and deliver such proper
instruments of release as may be required. From and after the Release Date, all Notes, whether
theretofore or subsequently issued, shall be secured by Substitute Mortgage Bonds pursuant to
Section 4.03 below, and any conditions to the issuance of Notes that refer or relate to Bonds or
the Mortgage shall be inapplicable (except as such conditions shall be deemed



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to refer to Substitute Mortgage Bonds or a Substitute Mortgage pursuant to Section 4.03
below). From and after the Release Date, the Company shall not issue any additional Mortgage
Bonds, including Pledged Bonds, under the Mortgage. Notice of the occurrence of the Release Date
shall be given by the Trustee to the Holders of the Notes in the manner provided for in the
Original Indenture not later than 30 days after the Company notifies the Trustee of the occurrence
of the Release Date.




     In connection with the establishment of the occurrence of the Release Date, the Trustee shall
be entitled to receive, may presume the correctness of, and shall be fully protected in relying
upon, an Officers’ Certificate designating the Release Date and stating that the conditions to the
occurrence of the Release Date have been satisfied.



     When the obligation of the Company to make payments with respect to the principal of, and
premium, if any, and interest on all or any part of the Bonds shall be satisfied or deemed
satisfied pursuant to the Original Indenture or pursuant to this Twenty-Fourth Supplemental
Indenture, the Trustee shall, upon written request of the Company, deliver to the Company without
charge therefor all of the Bonds so satisfied or deemed satisfied, together with such appropriate
instruments of transfer or release as may be reasonably requested by the Company. All Bonds
delivered to the Company in accordance with this Section shall be delivered by the Company to the
Mortgage Trustee for cancellation.



     Section 2.04 Amendment to Section 4.03 of the Supplemental Indenture



     Section 4.03 of the Supplemental Indenture is hereby amended and restated in its entirety as
follows:



     SECTION 4.03. Substitute Mortgage Bonds.



     (a) The Company shall notify the Trustee not less than 90 days prior to the Release Date (or
such shorter period as the Company and the Trustee may agree) that the Company will deliver to the
Trustee on the Release Date Substitute Mortgage Bonds in an aggregate principal amount equal to the
aggregate principal amount of Notes and any other Securities subject to the release provisions
Outstanding on the Release Date, in trust for the benefit of the Holders from time to time of the
Notes and any other Securities subject to the release provisions issued under the Original
Indenture, as supplemented, as security for any and all obligations of the Company under the Notes
and any other Securities subject to the release provisions, including but not limited to, (1) the
full and prompt payment of the principal of and premium, if any, on the Notes and any other
Securities subject to the release provisions when and as the same shall become due and payable in
accordance with the terms and provisions of the Original Indenture, as supplemented, or the Notes
or such other Securities subject to the release provisions, either at the stated maturity thereof,
upon acceleration of the maturity thereof or upon redemption, and (2) the full and prompt payment
of any interest on the Notes and any other Securities subject to the release provisions when and as
the same shall become due and payable in accordance with the terms and provisions of the Original
Indenture, as supplemented, or the Notes or such other Securities subject to the release
provisions.



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     (b) The Company shall deliver such Substitute Mortgage Bonds described in Section 4.03(a) in
separate series and issues corresponding to the series and issues of Notes and other Securities
subject to the release provisions Outstanding on or prior to the Release Date, each series or issue
of Substitute Mortgage Bonds having the same stated rate or rates of interest (or interest
calculated in the same manner), Interest Payment Dates, stated maturity date and redemption
provisions, and in the same aggregate principal amount, as the related series or issue of Notes or
other Securities subject to the release provisions outstanding on the Release Date; it being
expressly understood that each such series of Substitute Mortgage Bonds shall be held by the
Trustee for the benefit of the Holders of the corresponding series of Securities from time to time
Outstanding subject to such terms and conditions relating to surrender to the Company, transfer
restrictions, voting, application of payments of principal and interest and other matters as shall
be set forth in an indenture supplemental hereto specifically providing for the delivery to the
Trustee of such Substitute Mortgage Bonds. Such Substitute Mortgage Bonds shall be issued under
and secured by a Substitute Mortgage (A) on which the Company shall be the obligor; and (B) which
shall be qualified, or shall meet the requirements for qualification, under the Trust Indenture Act
for the issuance of Substitute Mortgage Bonds.



     (c) On or prior to the Release Date the Company shall have delivered to the Trustee:




(A) a supplemental indenture to the Original Indenture that provides among other things,
that on the delivery of the Substitute Mortgage Bonds described in Section 4.03(b), the
Company shall deliver to the Trustee in trust for the benefit of the Holders as described in
Section 4.03(a) hereof, and the Trustee shall accept therefor, related series of Substitute
Mortgage Bonds registered in the name of the Trustee and conforming to the requirements
herein and therein specified;




(B) an Officer’s Certificate (1) stating that, to the knowledge of the signer, (a) no Event
of Default has occurred and is continuing and (b) no event has occurred and is continuing
which entitles the secured party under the Substitute Mortgage to accelerate the maturity of
the indebtedness outstanding thereunder and (2) stating the aggregate principal amount of
indebtedness issuable, and then proposed to be issued, under and secured by the lien of the
Substitute Mortgage; and




(C) an Opinion of Counsel to the effect that such Substitute Mortgage Bonds have been duly
issued under such Substitute Mortgage and constitute valid obligations, entitled to the
benefit of the lien of the Substitute Mortgage equally and ratably with all other
indebtedness then outstanding secured by such lien.



     (d) On or prior to the Release Date the Company shall provide an Officer’s Certificate stating
that the Company has been advised in writing, within not more than 30 days prior to such
substitution of the Substitute Mortgage Bonds for the Mortgage Bonds, by at least two credit rating
agencies qualifying as “nationally recognized statistical rating organizations” (as defined by the
Securities Exchange Act of 1934, as amended) then maintaining a securities rating on the 2008ET
Bonds that the substitution of such Substitute Mortgage Bonds for the Mortgage Bonds will not
result in a reduction of the securities rating assigned to the 2008ET Bonds by that credit



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rating agency immediately prior to the substitution or the suspension or withdrawal of its
rating and the Company shall have provided the Trustee with written evidence of such advice.




     (e) In the event that the Company cannot obtain assurance of at least two credit rating
agencies as described in Section 4.03(d) above, the Company will take such actions as are necessary
to cause the Release Date not to occur.



     (f) Article Four and related provisions of the Original Indenture (except for any provisions
relating to discharge of Bonds or amounts owing on Bonds on or after the Release Date) shall apply
to Substitute Mortgage Bonds pledged to the Trustee hereunder and the provisions thereof shall be
deemed to refer to the Substitute Mortgage and the Substitute Mortgage Bonds. Article Four and
related provisions may be amended by the Company to have the Notes secured by Substitute Mortgage
Bonds on and after the Release Date and make appropriate reference to the Substitute Mortgage and
the Substitute Mortgage Bonds; provided, that the consent of Holders shall not be required in
connection with such amendment.



     Section 2.05 Amendment to Section 4.04 of the Supplemental Indenture



     Section 4.04 of the Supplemental Indenture is hereby amended and restated in its entirety as
follows:



     SECTION 4.04. Events of Default.



     (a) On and after the Release Date, Section 601(8) of the Original Indenture shall no longer
apply to the Notes.



     For purposes of the Notes, Section 601(8) of the Original Indenture shall read, “the
occurrence of an “event of default” as such term is defined in the Mortgage; or”.



     (b) On and after the Release Date, the occurrence of a “default” (as defined in the Substitute
Mortgage) shall constitute an Event of Default under Section 601 of the Original Indenture with
respect to the Notes and the references in Section 601(4) of the Original Indenture and related
provisions to “Mortgage Bonds” shall be deemed to refer to “Substitute Mortgage Bonds.”



     (c) In addition, failure by the Company to deliver Substitute Mortgage Bonds in accordance
with the provisions of Section 4.03 of this Supplemental Indenture on or prior to the Release Date
shall be an “Event of Default” with respect to the Notes as contemplated by Section 601(9) of the
Original Indenture.




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Article III




Miscellaneous




     Section 3.01.
Amendment Construed with Supplemental Indenture. All of the
provisions of this Amendment shall be deemed and construed as part of the Supplemental Indenture to
the same extent as if fully set forth therein.




     Section 3.02. Effectiveness and Effect of Amendment. This Amendment shall be
and become effective on and as of the date of execution and delivery by the parties hereto. Except
as amended and supplemented hereby, the Supplemental Indenture shall be and remain in full force
and effect.



     Section 3.03. Severability. If any one or more sections, clauses or
provisions of this Amendment shall be determined by a court of competent jurisdiction to be invalid
or ineffective for any reason, such determination shall in no way affect the validity and
effectiveness of the remaining sections, clauses and provisions of this Amendment.



     Section 3.04. Headings. Any headings shall be solely for convenience of
reference and shall not constitute a part of this Amendment, nor shall they affect its meaning,
construction or effect.



     Section 3.05. Counterparts. This Amendment may be executed in several
counterparts, each of which shall be an original and all of which shall constitute one instrument.



     Section 3.06. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.



[remainder of page intentionally blank]




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     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by
persons thereunto duly authorized, as of June 1, 2009.



	 	 	 	 	 
	 	THE DETROIT EDISON COMPANY

 	 
	 	By:  	/s/ Edward Solomon
 	 
	 	 	Name:  	Edward Solomon 	 
	 	 	Title:  	Assistant Treasurer 	 


	 	 	 	 
	ATTEST:

 	 
	By:  	/s/ Sandra Kay Ennis
 	 
	 	Name:  	Sandra Kay Ennis 	 
	 	Title:  	Corporate Secretary 	 





	 	 	 	 	 
	 	THE BANK OF NEW YORK MELLON TRUST

COMPANY, N.A., as Trustee





	 
	 	By:  	                                           /s/Alexis M. Johnson
 	 
	 	 	Name:  	Alexis M. Johnson 	 
	 	 	Title:  	Assistant Vice President 	 


	 	 	 	 
	ATTEST:

 	 
	By:  	/s/ J. Michael Banas
 	 
	 	Name:  	J. Michael Banas 	 
	 	Title:  	Vice President 	 
				




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