<PAGE> 1
FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
THE DETROIT EDISON COMPANY
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Michigan 38-0478650
----------------------- ------------------
(State of incorporation (IRS Employer
or organization) Identification No.)
2000 Second Avenue
Detroit, Michigan 48226
--------------------- ----------
(Address of principal (Zip Code)
executive offices)
If this Form relates to the registration of a class of debt securities and is
effective upon filing pursuant to General Instruction A.(c)(1), please check
the following box. [X]
If this Form relates to the registration of a class of debt securities and is
to become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1993 pursuant to General
Instruction A.(c)(2), please check the following box. [ ]
Securities to be registered pursuant to Section 12(b) of the Act:
Name of each exchange on
Title of each class which each class is to be
to be so registered registered
- ------------------- -------------------------
Junior Subordinated New York Stock
Deferrable Interest Exchange, Inc.
Debentures, Due 2028
Securities to be registered pursuant to Section 12(g) of the Act:
None
- --------------------------------------------------------------------------------
(Title of class)
<PAGE> 2
2
Item 1. Description of Registrant's Securities to be Registered.
A description of the securities is contained under the heading "Description
of QUIDS" in the Prospectus Supplement, dated April 30, 1998, to Prospectus
dated April 30, 1998 relating to The Detroit Edison Company's (the
"Company") 7.54% Quarterly Income Debt Securities (Junior Subordinated
Deferrable Interest Debentures, Due 2028) (the "QUIDS") filed with the
Securities and Exchange Commission as part of the Registration Statement on
Form S-3 (File No. 33-53207) of the Company, which description is incorporated
herein by reference.
Item 2. Exhibits Filed Herewith.
4-1 Sixth Supplemental Indenture, dated as of May 1, 1998
(including form of QUIDS as set forth in Exhibit A).
8-1 Tax Opinion of Brown & Word LLP
Exhibits Incorporated by Reference
4 (a) Collateral Trust Indenture (Notes), dated as of June 30, 1993
between The Detroit Edison Company and Bankers Trust Company
(Exhibit 4-152 to Registration Statement No. 33-50325).
4 (b) First Supplemental Note Indenture, dated as of June 30, 1993
(Exhibit 4-153 to Registration No. 33-50325).
4 (c) Second Supplemental Note Indenture, dated as of September 15,
1993 (Exhibit 4-159 to The Detroit Edison Company's Form 10-Q
for quarter ended September 30, 1993).
4 (d) First Amendment, dated as of August 15, 1996 to second
supplemental Note Indenture (Exhibit 4-17 to Form 10-Q for
quarter ended September 30, 1996).
4 (e) Third Supplemental Note Indenture, dated as of August 15, 1994
(Exhibit 4-169 to The Detroit Edison Company's Form 10-Q for
quarter ended September 30, 1994).
4 (f) First Amendment, dated as of December 12, 1995, to Third
Supplemental Note Indenture, dated as of August 15, 1994
(Exhibit 4-13 to Registration No. 333-00023).
4 (g) Fourth Supplemental Note Indenture, dated as of August 15, 1995
(Exhibit 4-175 to The Detroit Edison Company's Form 10-Q for
quarter ended September 30, 1995).
4 (h) Fifth Supplemental Note Indenture, dated as of February 1, 1996
(Exhibit 4-14 to Form 10-K for year ended December 31, 1996).
99 (a) Prospectus Supplement, dated April 30, 1998, to Prospectus
dated April 30, 1998 (filed pursuant to Rule 424(b)(2),
Registration No. 33-53207).
<PAGE> 3
3
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act of
1934, the Registrant has duly caused this Registration Statement or amendment
thereto to be signed on its behalf by the undersigned, thereto duly authorized.
THE DETROIT EDISON COMPANY
(Registrant)
By: /s/ Jack L. Somers
------------------------
Name: Jack L. Somers
Title: Assistant
Corporate Secretary
Date: May 11, 1998
<PAGE> 4
EXHIBIT INDEX
Exhibits filed herewith
Exhibit
Number Description
------ -----------
4-1 Sixth Supplemental Indenture, dated as of May 1, 1998
(including form of QUIDS as set forth in Exhibit A).
8-1 Tax Opinion of Brown & Word LLP
Exhibits Incorporated by Reference
4 (a) Collateral Trust Indenture (Notes), dated as of June 30, 1993
between The Detroit Edison Company and Bankers Trust Company
(Exhibit 4-152 to Registration Statement No. 33-50325).
4 (b) First Supplemental Note Indenture, dated as of June 30, 1993
(Exhibit 4-153 to Registration No. 33-50325).
4 (c) Second Supplemental Note Indenture, dated as of September 15,
1993 (Exhibit 4-159 to The Detroit Edison Company's Form 10-Q
for quarter ended September 30, 1993).
4 (d) First Amendment, dated as of August 15, 1996 to second
supplemental Note Indenture (Exhibit 4-17 to Form 10-Q for
quarter ended September 30, 1996).
4 (e) Third Supplemental Note Indenture, dated as of August 15, 1994
(Exhibit 4-169 to The Detroit Edison Company's Form 10-Q for
quarter ended September 30, 1994).
4 (f) First Amendment, dated as of December 12, 1995, to Third
Supplemental Note Indenture, dated as of August 15, 1994
(Exhibit 4-13 to Registration No. 333-00023).
4 (g) Fourth Supplemental Note Indenture, dated as of August 15, 1995
(Exhibit 4-175 to The Detroit Edison Company's Form 10-Q for
quarter ended September 30, 1995).
4 (h) Fifth Supplemental Note Indenture, dated as of February 1, 1996
(Exhibit 4-14 to Form 10-K for year ended December 31, 1996).
99 (a) Prospectus Supplement, dated April 30, 1998, to Prospectus
dated April 30, 1998 (filed pursuant to Rule 424(b)(2),
Registration No. 33-53207).
<PAGE> 1
EXHIBIT 4-1
________________________________________________________________________________
THE DETROIT EDISON COMPANY
AND
BANKERS TRUST COMPANY
TRUSTEE
-------
SIXTH SUPPLEMENTAL INDENTURE
DATED AS OF MAY 1, 1998
-------
SUPPLEMENTING THE COLLATERAL TRUST INDENTURE
DATED AS OF JUNE 30, 1993
PROVIDING FOR
7.54% QUARTERLY INCOME DEBT SECURITIES
("QUIDS") (JUNIOR SUBORDINATED DEFERRABLE
INTEREST DEBENTURES, DUE 2028)
________________________________________________________________________________
<PAGE> 2
SIXTH SUPPLEMENTAL INDENTURE, dated as of the 1st day of May 1998
between THE DETROIT EDISON COMPANY, a corporation organized and existing under
the laws of the State of Michigan (the "Company"), and BANKERS TRUST COMPANY, a
New York banking corporation, having its principal office in The City of New
York, New York, as trustee (the "Trustee");
WHEREAS, the Company has heretofore executed and delivered to the
Trustee a Collateral Trust Indenture dated as of June 30, 1993 (the "Original
Indenture"), as supplemented by a First Supplemental Indenture dated as of June
30, 1993, a Second Supplemental Indenture dated as of September 15, 1993, as
amended, a Third Supplemental Indenture dated as of August 15, 1994, as amended,
a Fourth Supplemental Indenture dated as of August 15, 1995 and a Fifth
Supplemental Trust Indenture dated as of February 1, 1996 (the "Prior
Supplemental Indentures") providing for the issuance by the Company from time to
time of its debt securities; and
WHEREAS, the Company now desires to provide for the issuance of an
additional series of its unsecured, subordinated debt securities pursuant to the
Original Indenture; and
WHEREAS, the Company intends hereby to designate a series of debt
securities which shall not have the benefit of the provisions of Article Four of
the Original Indenture and the other related provisions of the Original
Indenture relating to the grant of security and which shall have the terms and
variations from the provisions of the Original Indenture as set forth herein;
and
WHEREAS, the Company, in the exercise of the power and authority
conferred upon and reserved to it under the provisions of the Original
Indenture, including Section 1001 thereof, and pursuant to appropriate
resolutions of the Board of Directors, has duly determined to make, execute and
deliver to the Trustee this Sixth Supplemental Indenture to the Original
Indenture as permitted by Sections 201 and 301 of the Original Indenture in
order to establish the form or terms of, and to provide for the creation and
issue of, a series of its debt securities under the Original Indenture, which
shall be known as the 7.54% Quarterly Income Debt Securities (the "QUIDS")
Junior Subordinated Deferrable Interest Debentures, Due 2028; and
WHEREAS, all things necessary to make such debt securities, when
executed by the Company and authenticated and delivered by the Trustee or any
Authenticating Agent and issued upon the terms and subject to the conditions
hereinafter and in the Original Indenture set forth against payment therefor,
the valid, binding and legal obligations of the Company and to make this Sixth
Supplemental Indenture a valid, binding and legal agreement of the Company, have
been done;
NOW, THEREFORE, THIS SIXTH SUPPLEMENTAL INDENTURE WITNESSETH that, in
order to establish the terms of a series of debt securities, and for and in
consideration of the premises and of the covenants contained in the Original
Indenture and in this Sixth Supplemental Indenture and for other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, it is mutually covenanted and agreed as follows:
<PAGE> 3
ARTICLE ONE
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. Each capitalized term that is used herein and
is defined in the Original Indenture shall have the meaning specified in the
Original Indenture unless such term is otherwise defined herein.
"Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions located in the State of
Michigan or in the state in which the principal corporate trust office of the
Trustee is located, are authorized or obligated by or pursuant to law or
executive order to close.
"Capital Stock" means any and all shares of the Company's Preferred
Stock, Preference Stock or Common Stock or any other equity securities of the
Company.
"Payment Obligation", when used with respect to Senior Indebtedness,
means an obligation stated in an agreement, instrument or lease to pay money
(whether for principal, premium, interest, sinking fund, periodic rent,
stipulated value, termination value, liquidated damages or otherwise), but
excluding an obligation to pay money in respect of fees of, or as payment or
reimbursement for expenses incurred by or on behalf of, or as indemnity for
losses, damages, taxes or other indemnity claims of any kind owed to, any holder
of Senior Indebtedness or other party to such agreement, instrument or lease.
"Senior Indebtedness" means each of the following, whether outstanding
on the date hereof or hereafter created, incurred or assumed:
(a) (i) any Payment Obligation of the Company in respect of any
indebtedness, directly or indirectly, created, incurred or
assumed for borrowed money other than (A) the $49.9 million in
aggregate principal amount of Quarterly Income Debt Securities (Junior
Subordinated Deferrable Interest Debentures, Due 2025), and (B) the
$185 million in aggregate principal amount of Quarterly Income Debt
Securities (Junior Subordinated Deferrable Interest Debentures, Due
2026), each of which has been expressly deemed by its terms to be
subordinate or (ii) in connection with the acquisition of any
business, property or asset (including securities), other than any
account payable or other indebtedness created, incurred or assumed in
the ordinary course of business in connection with the obtaining of
materials or services;
(b) any Payment Obligation of the Company in respect of any
lease that would, in accordance with generally accepted accounting
principles, be required to be classified and accounted for as a capital
lease;
(c) any Payment Obligation of the Company in respect of any
interest rate exchange agreement, currency exchange agreement or
similar agreement that provides for payment (whether or not contingent)
over a period or term (including any renewals or extensions) longer
than one year from the execution thereof;
(d) any Payment Obligation of the Company in respect of any
agreement relating to the acquisition (including a sale and buyback) or
lease (including a sale and
2
<PAGE> 4
leaseback) of real or personal property that provides for payment
(whether or not contingent) over a period or term (including any
renewals or extensions) longer than one year from the execution
thereof;
(e) any Payment Obligation of any Subsidiary or of others of
the kind described in the preceding clauses (a) through (d) assumed or
guaranteed by the Company or for which the Company is otherwise
responsible or liable; and
(f) any amendment, renewal, extension or refunding of any
Payment Obligation described in the preceding subparagraphs (a) through
(e);
unless in the agreement, instrument or lease in which any such Payment
Obligation is stated it is expressly provided that such Payment Obligation is
not senior in right of payment to the QUIDS.
"Tax Event" means that the Company shall have received an opinion of
counsel (which may be counsel to the Company or an affiliate but not an employee
thereof) experienced in such matters to the effect that, as a result of any
amendment to, or change (including any announced prospective change) in the laws
(or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein affecting taxation, or as a
result of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or such pronouncement or decision is announced on or after the date of
original issuance of the QUIDS, there is more than an insubstantial risk that
interest payable by the Company on the QUIDS is not, or will not be, deductible
by the Company for federal income tax purposes.
SECTION 102. Section References. Each reference to a particular section
set forth in this Supplemental Indenture shall, unless the context otherwise
requires, refer to this Sixth Supplemental Indenture.
ARTICLE TWO
TITLE AND TERMS OF THE QUIDS
SECTION 201. Title of the QUIDS. This Sixth Supplemental Indenture
hereby establishes a series of QUIDS, which shall be known as the Company's
7.54% Quarterly Income Debt Securities (Junior Subordinated Deferrable Interest
Debentures, Due 2028) (referred to herein as the "QUIDS"). For purposes of the
Original Indenture, the QUIDS shall constitute a single series of Securities.
The stated maturity of the QUIDS will be June 30, 2028.
SECTION 202. Variations from the Original Indenture. Notwithstanding
the provisions of the Original Indenture, the QUIDS shall be without benefit of
any security and shall be subordinated to Senior Indebtedness as and to the
extent provided in Article Four of this Supplemental Indenture. The QUIDS shall
not have the benefit of the provisions of Article Four of the Original Indenture
and shall not have the benefit of, or be subject to, the other related
provisions of the Original Indenture relating to the grant of security,
including (for avoidance of
3
<PAGE> 5
doubt and not for purposes of limitation) the Granting Clause, the definitions
of "Deliverable Mortgage Bonds," "Deliverable Securities," "Designated Mortgage
Bonds," "Grant," "Mortgage," "Mortgage Bonds," "Mortgage Trustee," "Previously
Delivered Mortgage Bonds," and "Trust Estate," Section 301 (20), Sections 301
(a) (v), (ix), (x) and (xi), Sections 301 (b) (ii) and (iii), Section 301 (d),
and Sections 601(4) and (8).
SECTION 203. Amount and Denominations; DTC. The aggregate principal
amount of QUIDS that may be issued under this Sixth Supplemental Indenture is
limited to $100,122,300. The QUIDS shall be issuable only in fully registered
form and, as permitted by Sections 301 and 302 of the Original Indenture, in
denominations of $25 and integral multiples thereof. The QUIDS will initially be
issued under a book-entry system, registered in the name of The Depository Trust
Company, as depository ("DTC"), or its nominee, who is hereby designated as
"U.S. Depository" under the Original Indenture.
SECTION 204. Interest Rate and Interest Payment Dates. (a) The QUIDS
will bear interest at the rate of 7.54% per annum from the date of original
issuance until the principal thereof becomes due and payable, and on any overdue
principal and (to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the same rate per
annum during such overdue period. Interest on the QUIDS will be payable
quarterly (subject to deferral as set forth herein) in arrears on March 31, June
30, September 30 and December 31 of each year (each an "Interest Payment Date"),
commencing June 30, 1998 to the persons in whose names the QUIDS are registered
at the close of business on the relevant record date for such interest
installment, which will be one Business Day prior to the relevant Interest
Payment Date or, in the case of a Deferral Period (as described herein), one
Business Day prior to the Interest Payment Date for such Deferral Period (each a
"Record Date"); provided, however, that, in the event that any Interest Payment
Date shall not be a Business Day, then interest shall be payable on the next day
that is a Business Day (but without interest or other payment in respect of such
delay), except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day
without reduction in amount due to such early payment (and in which case the
relevant Record Date shall be on the Business Day immediately preceding such
Interest Payment Date), in each case with the same force and effect as if made
on such Interest Payment Date, subject to certain rights of deferral described
in Section 204(b) hereof.
The amount of interest payable in any period will be computed on the
basis of twelve 30-day months and a 360-day year and, for any period shorter
than a full quarterly interest period, will be computed on the basis of the
actual number of days elapsed in such period.
(b) The provisions of Section 204(a) notwithstanding, the Company shall
have the right at any time, on one or more occasions so long as an Event of
Default with respect to the QUIDS has not occurred and is not continuing, to
extend any interest payment period on the QUIDS for a period (a "Deferral
Period") not to exceed 20 consecutive quarterly interest payment periods;
provided that the date on which such Deferral Period ends must be an Interest
Payment Date and must be no later than June 30, 2028 or any date on which any
QUIDS are
4
<PAGE> 6
fixed for redemption. The quarterly interest payments on the QUIDS so deferred
will continue to accrue with interest thereon at the rate of interest of the
QUIDS during such Deferral Period. On the Interest Payment Date at the end of
the Deferral Period, the Company shall pay all interest then accrued and
unpaid, which shall be compounded quarterly at the rate of interest on the
QUIDS (except to the extent prohibited by law) to the date of payment, to the
persons in whose names the QUIDS are registered on the Record Date for such
Deferral Period. The Company shall give the Holders of the QUIDS notice of its
election to defer interest payments or to extend the Deferral Period ten
Business Days prior to the earlier of (1) the next scheduled quarterly payment
date and (2) the date the Company is required to give notice of the record date
of such related interest payment to the New York Stock Exchange or other
applicable self-regulatory organization or to the Holders of the QUIDS, but in
any event not less than two Business Days prior to such record date. During the
Deferral Period the Company shall not declare or pay any dividend on or redeem,
purchase, acquire or make a liquidation payment with respect to, any of its
Capital Stock or make any guaranty payment with respect to the foregoing, other
than redemptions of any series of Capital Stock of the Company pursuant to the
terms of any sinking fund provisions with respect thereto. During any Deferral
Period, the Company may not (i) make any distributions, loans or guarantees for
the benefit of, (ii) purchase, defease, redeem or otherwise acquire or retire
for value any securities of or (iii) make any other investment in, any person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company, for the purpose of, or to enable the payment
of, directly or indirectly, dividends on any equity securities of DTE Energy
Company and its successors or assigns. During any Deferral Period, the Company
may continue to extend the interest payment period by extending the Deferral
Period, on one or more occasions, by notice given as aforesaid in this
paragraph (b), provided that such Deferral Period, as so extended, must end on
an Interest Payment Date and in no event shall the aggregate Deferral Period,
as extended, exceed 20 consecutive quarterly interest payment periods or extend
beyond June 30, 2028 or any date on which QUIDS are fixed for redemption. No
interest shall be due and payable during a Deferral Period except at the end
thereof.
SECTION 205. Optional Redemption of QUIDS. Other than in accordance
with Section 206 below, the QUIDS shall not be redeemable prior to June 30,
2003. Thereafter, upon notice given by mailing the same, postage prepaid, at
least 30 days and not more than 60 days prior to the date fixed for redemption,
any or all of the QUIDS may be redeemed by the Company, at its option, at any
time and from time to time, at a redemption price equal to 100% of the principal
amount of the QUIDS to be redeemed plus accrued and unpaid interest thereon to
the date fixed for redemption.
SECTION 206. Tax Event Redemption of QUIDS. If a Tax Event has occurred
and is continuing, the Company has the right, within 90 days following the
occurrence of such Tax Event, to redeem the QUIDS, in whole but not in part, at
a redemption price equal to the aggregate principal amount of the QUIDS plus
accrued and unpaid interest to the date of redemption.
SECTION 207. Form of QUIDS. Attached hereto as Exhibit A is a form of
the definitive QUIDS.
5
<PAGE> 7
ARTICLE THREE
ADDITIONAL EVENTS OF DEFAULT AND COVENANTS
SECTION 301. Inapplicability of Certain Events of Default. The Events
of Default set forth in Sections 601(4) and 601(8) of the Original Indenture
shall not apply to the QUIDS. The omission by the Company to pay interest on the
QUIDS during a Deferral Period as permitted by Section 204 shall not constitute
an Event of Default under Section 601 (1) of the Original Indenture.
ARTICLE FOUR
SUBORDINATION OF QUIDS
SECTION 401. QUIDS Subordinate to Senior Indebtedness. The Company for
itself, its successors and assigns, covenants and agrees, and each Holder of
QUIDS issued, whether upon original issue or upon transfer or assignment
thereof, by its acceptance thereof likewise covenants and agrees, that the
payment of principal of and interest on each and all of the QUIDS is hereby
expressly subordinated, to the extent and in the manner hereinafter in this
Article set forth, in right of payment to the prior payment in full of all
existing and future Senior Indebtedness of the Company.
SECTION 402. Payments to Securityholders. (a) Upon (i) any acceleration
of the principal amount due on the QUIDS or (ii) any payment or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution or winding-up or total or partial
liquidation or reorganization of the Company, whether voluntary or involuntary
or in bankruptcy, insolvency, receivership or other proceedings, all principal,
premium, if any, and interest, if any, due upon all Senior Indebtedness shall
first be paid in full, or payment thereof provided for in money or money's worth
in accordance with its terms, before any payment is made on account of the
principal of or interest on the indebtedness evidenced by the QUIDS, and upon
any such dissolution or winding-up or liquidation or reorganization any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to which the Holders of the QUIDS under the terms
of this Supplemental Indenture would be entitled, except for the provisions
hereof, shall (subject to the power of a court of competent jurisdiction to make
other equitable provision reflecting the rights conferred by the provisions
hereof upon the Senior Indebtedness and the holders thereof with respect to the
QUIDS and the Holders thereof by a lawful plan of reorganization under
applicable bankruptcy law), be paid by the Company or any receiver, trustee in
bankruptcy, liquidating trustee, agent or other person making such payment or
distribution, or by the Holders of the QUIDS if received by them, directly to
the holders of Senior Indebtedness (pro rata to each such holder on the basis of
the respective amounts of Senior Indebtedness held by such holder) or their
representatives, to the extent necessary to pay all Senior Indebtedness
(including interest thereon) in full, in money or money's worth, in accordance
with its terms, after giving effect to any concurrent payment or distribution to
or for the holders of Senior Indebtedness, before any payment or distribution is
6
<PAGE> 8
made to the Holders of the indebtedness evidenced by the QUIDS. The
consolidation of the Company with, or a merger of the Company into, another
Person or the liquidation or dissolution of the Company following the conveyance
or transfer of its property as an entirety, or substantially as an entirety, to
another Person upon the terms and conditions provided in Section 901 of the
Original Indenture shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 402(a).
(b) In the event that any payment or distribution of assets of the
Company of any kind or character not permitted by Section 402(a), whether in
cash, property or securities, shall be received by the Trustee or the Holders of
QUIDS before all Senior Indebtedness is paid in full, or provision made for such
payment, in accordance with its terms, upon written notice to the Trustee or, as
the case may be, such Holder, such payment or distribution shall be held in
trust for the benefit of, and shall be paid over or delivered to, the holders of
such Senior Indebtedness or their representative or representatives, or to the
Trustee or trustees under any indenture pursuant to which any instruments
evidencing any of such Senior Indebtedness may have been issued, as their
respective interests may appear, for application to the payment of all Senior
Indebtedness remaining unpaid to the extent necessary to pay all such Senior
Indebtedness in full in accordance with its terms, after giving effect to any
concurrent payment or distribution to the holders of such Senior Indebtedness.
Nothing in this Article shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 706 of the Original Indenture. In addition, nothing
in this Article shall prevent the Company from making or the Trustee from
receiving or applying any payment in connection with the redemption of the QUIDS
if the first publication of notice of such redemption (whether by mail or
otherwise in accordance with this Supplemental Indenture) has been made, and the
Trustee has received such payment from the Company, prior to the occurrence of
any of the contingencies specified in this Section 402.
(c) No payment on account of principal of or interest on the QUIDS
shall be made unless full payment of amounts then due for principal, premium, if
any, sinking funds and interest on any Senior Indebtedness has been made or duly
provided for in money or money's worth in accordance with the terms of such
Senior Indebtedness. No payment on account of principal or interest on the QUIDS
shall be made if, at the time of such payment or immediately after giving effect
thereto, (i) there shall exist a default in the payment of principal, premium,
if any, sinking fund or interest with respect to any Senior Indebtedness, or
(ii) there shall have occurred an event of default (other than a default in the
payment of principal, premium, if any, sinking funds or interest) with respect
to any Senior Indebtedness, as defined therein or in the instrument under which
the same is outstanding, permitting the holders thereof to accelerate the
maturity thereof and upon written notice thereof given to the Trustee, with a
copy to the Company (the delivery of which shall not affect the validity of the
notice to the Trustee), and such event of default shall not have been cured or
waived or shall not have ceased to exist; provided, however, that if the holders
of the Senior Indebtedness to which the default relates have not declared such
Senior Indebtedness to be immediately due and payable within 180 days after the
occurrence of such default (or have declared such Senior Indebtedness to be
immediately due and payable and within such period have rescinded such
declaration of acceleration), then the Company shall resume making any and all
required payments in respect
7
<PAGE> 9
of the QUIDS (including any missed payments). Only one payment blockage
period under the immediately preceding sentence may be commenced within any
consecutive 365-day period with respect to the QUIDS of any series. No event of
default which existed or was continuing on the date of the commencement of any
180-day payment blockage period with respect to the Senior Indebtedness
initiating such payment blockage period shall be, or be made, the basis for the
commencement of a second payment blockage period by a registered holder or
representative of such Senior Indebtedness whether or not within a period of
365 consecutive days unless such event of default shall have been cured or
waived for a period of not less than 90 consecutive days (and, in the case of
any such waiver, no payment shall be made by the Company to the holders of
Senior Indebtedness in connection with such waiver other than amounts due
pursuant to the terms of the Senior Indebtedness as in effect at the time of
such default).
SECTION 403. Subrogation to Rights of Holders of Senior Indebtedness.
From and after the payment in full of all Senior Indebtedness, the Holders of
the QUIDS (together with the holders of any other indebtedness of the Company
which is subordinate in right of payment to the payment in full of all Senior
Indebtedness, which is not subordinate in right of payment to the QUIDS and
which by its terms grants such right of subrogation to the holder thereof)
shall be subrogated to the rights of the holders of Senior Indebtedness to
receive payments or distributions of assets or securities of the Company
applicable to the Senior Indebtedness until the QUIDS shall be paid in full,
and, for the purposes of such subrogation, no such payments or distributions to
the holders of Senior Indebtedness of assets or securities, which otherwise
would have been payable or distributable to Holders of the QUIDS, shall, as
between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders of the QUIDS, be deemed to be a payment by the
Company to or on account of the Senior Indebtedness, it being understood that
the provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the QUIDS, on the one hand, and
the holders of the Senior Indebtedness, on the other hand, and nothing
contained herein is intended to or shall impair as between the Company, its
creditors other than the holders of Senior Indebtedness, and the Holders of the
QUIDS, the obligation of the Company, which is unconditional and absolute, to
pay to the Holders of the QUIDS the principal of and interest on the QUIDS as
and when the same shall become due and payable in accordance with their terms,
or to affect the relative rights of the Holders of the QUIDS and creditors of
the Company other than the holders of the Senior Indebtedness, nor shall
anything herein or therein prevent the Trustee or the Holder of QUIDS from
exercising all remedies otherwise permitted by applicable law upon default
hereunder with respect to the QUIDS subject to the rights of the holders of
Senior Indebtedness, under Section 402, to receive cash, property or securities
of the Company otherwise payable or deliverable to the Trustee or the Holders
of the QUIDS or to a representative of such Holders, on their behalf.
Upon any distribution or payment in connection with any proceedings or
sale referred to in Section 402(a), the Trustee and each Holder of the QUIDS
then Outstanding, shall be entitled to rely upon a certificate of the
liquidating trustee or agent or other Person making any distribution or payment
to the Trustee or such Holder for the purpose of ascertaining the holders of
Senior Indebtedness entitled to participate in such payment or distribution, the
amount of such
8
<PAGE> 10
Senior Indebtedness or the amount payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
SECTION 404. No Impairment of Subordination. Nothing contained in this
Article or elsewhere in this Supplemental Indenture or the QUIDS shall prevent
at any time the Company from making payments at any time of principal of or
interest on the QUIDS, except under the conditions described in Section 402 or
during the pendency of any proceedings or sale therein referred to.
SECTION 405. Trustee to Effectuate Subordination. Each Holder of QUIDS
by his acceptance thereof, whether upon original issue or upon transfer or
assignment, authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provisions in this Article and appoints the Trustee his attorney-in-fact for
any and all such purposes.
No rights of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Trustee
or any Holder of the QUIDS then Outstanding, or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by any such holder, with
the terms, provisions and covenants of this Supplemental Indenture, regardless
of any knowledge thereof which any such holder may have or otherwise be charged
with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Holders of the QUIDS, without incurring
responsibility to the Holders of the QUIDS and without impairing or releasing
the subordination provided in this Article or the obligations of the Holders of
the QUIDS to the holders of Senior Indebtedness, do any one or more of the
following: (i) change the manner, place or terms of payment of, or renew or
alter, Senior Indebtedness, or otherwise amend or supplement in any manner
Senior Indebtedness or any instrument evidencing the same or any agreement under
which Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for the collection
of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights
against the Company and any other Person.
SECTION 406. Notice to Trustee. The Company shall give prompt written
notice to the Trustee in the form of an Officers' Certificate of any fact known
to the Company which would prohibit the making of any payment of money to or by
the Trustee in respect of the QUIDS pursuant to the provisions of this Article.
Notwithstanding the provisions of this Article or any other provisions of this
Supplemental Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts which would prohibit the making of any payment to or by
the Trustee in respect of the QUIDS pursuant to the provisions of this Article,
unless and until the Trustee shall have received at its Corporate Trust Office
written notice thereof from the Company or a holder or holders of Senior
Indebtedness or from any trustee therefor at least two
9
<PAGE> 11
Business Days prior to such payment date; and, prior to the receipt of any such
written notice, the Trustee, shall be entitled in all respects to assume that no
such facts exist.
The Trustee shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee on behalf of such holder) to establish that such
notice has been given by a holder of Senior Indebtedness or a trustee on behalf
of any such holder. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a holder
of Senior Indebtedness to participate in any payment or distribution pursuant to
this Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under the Article, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 407. Reliance on Certificate of Liquidating Agent. Upon any
payment or distribution referred to in this Article, the Trustee and the
Holders of the QUIDS shall be entitled to rely upon any order or decree entered
by any court of competent jurisdiction in which a dissolution, winding up or
total or partial liquidation or reorganization of the Company is pending, or a
certificate of the trustee in bankruptcy, liquidating trustee, custodian,
receiver, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of the
QUIDS, for the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of the Senior Indebtedness and other indebtedness
of the Company, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this
Article.
SECTION 408. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if it shall in
good faith mistakenly pay over or distribute to Holders of the QUIDS of any
series or to the Company or to any other Person cash, property or securities to
which any holders of Senior Indebtedness shall be entitled by virtue of this
Article or otherwise.
SECTION 409. Rights of Trustee as Holder of Senior Indebtedness. The
Trustee in its individual capacity shall be entitled to all the rights set forth
in this Article with respect to any Senior Indebtedness which may at any time be
held by it, to the same extent as any other holder of Senior Indebtedness, and
nothing in this Supplemental Indenture shall deprive the Trustee of any of its
rights as such holder.
SECTION 410. Article Applicable to Paying Agent. In case at any time
any Paying Agent other than the Trustee shall have been appointed by the Company
and be then acting hereunder, the term "Trustee" as used in this Article shall
in such case (unless the context shall otherwise require) be construed as
extending to and including such Paying Agent within its
10
<PAGE> 12
meaning as fully for all intents and purposes as if such Paying Agent were named
in this Article in addition to or in place of the Trustee; provided, however,
that this Section shall not apply to the Company or any Affiliate of the Company
if it or such Affiliate acts as Paying Agent.
ARTICLE FIVE
MISCELLANEOUS PROVISIONS
The Trustee makes no undertaking or representations in respect of, and
shall not be responsible in any manner whatsoever for and in respect of, the
validity or sufficiency of this Sixth Supplemental Indenture or the proper
authorization or the due execution hereof by the Company or for or in respect of
the recitals and statements contained herein, all of which recitals and
statements are made solely by the Company.
Except as expressly amended hereby, the Original Indenture shall
continue in full force and effect in accordance with the provisions thereof and
the Original Indenture is in all respects hereby ratified and confirmed. This
Sixth Supplemental Indenture and all its provisions shall be deemed a part of
the Original Indenture in the manner and to the extent herein and therein
provided.
This Sixth Supplemental Indenture shall be governed by, and construed
in accordance with, the laws of the State of New York.
This Sixth Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
11
<PAGE> 13
IN WITNESS WHEREOF, the parties hereto have caused this Sixth
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
THE DETROIT EDISON COMPANY
By: /s/
-------------------------
Name:
Title:
ATTEST:
By: /s/
------------------------------
12
<PAGE> 14
[Corporate Seal]
STATE OF MICHIGAN )
) :
COUNTY OF WAYNE )
On the , day of May 1998, before me personally came , to me
known, who, being by me duly sworn, did depose and say that he is
of THE DETROIT EDISON COMPANY, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and he
signed his name thereto by like authority.
/s/
------------------------
Notary Public
My Commission Expires
[Notarial Seal]
BANKERS TRUST COMPANY,
as Trustee
By: /s/
----------------------
Name:
Title:
ATTEST:
By: /s/
------------------------
13
<PAGE> 15
[Corporate Seal]
STATE OF NEW YORK )
) :
COUNTY OF NEW YORK )
On the day of May 1998, before me personally came , to me
known, who, being by me duly sworn, did depose and say that he is
of BANKERS TRUST COMPANY, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and she
signed her name thereto by like authority.
/s/
-------------------------
[Notarial Seal]
14
<PAGE> 16
EXHIBIT A
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITORY TRUST COMPANY ("DTC"), TO A NOMINEE OF DTC OR BY DTC OR
ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR. UNLESS
THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.,
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC)
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL, INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
NO. R-1 $100,122,300
THE DETROIT EDISON COMPANY
7.54% QUARTERLY INCOME DEBT SECURITIES
(JUNIOR SUBORDINATED
DEFERRABLE INTEREST DEBENTURES
DUE 2028)
ISSUE PRICE ISSUE DATE CUSIP NO.
----------- ---------- ---------
$25.00, or any integral
multiple thereof. May 11, 1998 250847696
THE DETROIT EDISON COMPANY, a corporation duly organized and existing
under the laws of the State of Michigan (herein referred to as the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of $100,122,300 on June 30, 2028 and to
pay interest at the rate of 7.54% per annum on said principal sum from the date
of issuance until the principal of this Debenture ("Note") hereof becomes due
and payable, and on any overdue principal and (to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment
of interest at the same rate per annum during such overdue period. Interest on
this Note will be payable quarterly (subject to deferral as set forth
15
<PAGE> 17
herein) in arrears on March 31, June 30, September 30 and December 31 of each
year (each such date, an "Interest Payment Date"), commencing June 30, 1998.
The amount of interest payable for any period shall be computed on the
basis of twelve 30-day months and a 360-day year and, for any period shorter
than a full quarterly interest period, will be computed on the basis of the
actual number of days elapsed in such period. In the event that any date on
which interest is payable on this Note is not a Business Day, then payment of
the amount payable on such date will be made on the next succeeding day which is
a Business Day (and without any interest or other payment in respect of any such
delay), except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day
without reduction in the amount due to such early payment (and in which case the
relevant Record Date shall be on the Business Day immediately preceding such
Interest Payment Date), in each case with the same force and effect as if made
on such date, subject to certain rights of deferral described below. A "Business
Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions located in the State of Michigan or in
the state in which the principal corporate trust office of the Trustee is
located are authorized or obligated by or pursuant to law or executive order to
close. The interest installment so payable, and punctually paid or duly provided
for, on any Interest Payment Date (other than interest payable on redemption or
maturity) will, as provided in the Indenture (as defined herein), be paid to the
person in whose name this Note (or one or more Predecessor Notes, as defined in
said Indenture) is registered at the close of business on the relevant record
date for such interest installment, which shall be one Business Day prior to the
relevant Interest Payment Date or, in the case of a Deferral Period (as defined
in the Indenture), one Business Day prior to Interest Payment Date for such
Deferral Period (each a "Record Date"). Interest payable on redemption or
maturity shall be payable to the person to whom the principal is paid. Any such
interest installment not punctually paid or duly provided for shall forthwith
cease to be payable to the registered holders on such Record Date, and may be
paid to the person in whose name this Note (or one or more Predecessor Notes) is
registered at the close of business on a special record date to be fixed by the
Trustee for the payment of such defaulted interest, notice whereof shall be
given to the registered holders of this series of Notes not less than 10 days
prior to such special record date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. The principal of and
the interest on this Note shall be payable at the office or agency of the
Company maintained for that purpose in the Borough of Manhattan, The City of New
York, in any coin or currency of the United States of America which at the time
of payment is legal tender for payment of public and private debts; provided,
however, that payment of interest may be made at the option of the Company by
check mailed to the registered holder at the close of business on the Record
Date at such address as shall appear in the Security Register.
Payment of the principal of and interest on this Note is, to the extent
provided in the Indenture, subordinated and subject in right of payment to the
prior payment in full of all existing and future Senior Indebtedness, as defined
in the Indenture, of the Company and this
16
<PAGE> 18
Note is issued subject to the provisions of the Indenture with respect thereto.
Each registered holder of this Note, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on his
or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c) appoints the
Trustee as his or her attorney-in-fact for any and all such purposes. Each
registered holder hereof, by his or her acceptance hereof, hereby waives all
notice of the acceptance of the subordination provisions contained herein and in
the Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon said
provisions.
This Note shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until
the Certificate of Authentication hereon shall have been signed by or on behalf
of the Trustee.
Unless the Certificate of Authentication hereon has been executed by
the Trustee or a duly appointed Authentication Agent referred to herein, this
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
This Note is one of a duly authorized series of Notes of the Company
(herein sometimes referred to as the "Notes"), specified in the
Indenture, all issued or to be issued in one or more series under and pursuant
to a Collateral Trust Indenture dated as of June 30, 1993 (the "Original
Indenture") duly executed and delivered between the Company and Bankers Trust
Company, a New York banking corporation, as Trustee (herein referred to as the
"Trustee"), as supplemented by the First Supplemental Indenture dated as of
June 30, 1993, a Second Supplemental Indenture dated as of September 15, 1993,
as amended, a Third Supplemental Indenture dated as of August 15, 1994, as
amended, a Fourth Supplemental Indenture dated as of August 15, 1995 , a Fifth
Supplemental Indenture dated as of February 1, 1996 and a Sixth Supplemental
Indenture dated as of May 1, 1998 (together with the Original Indenture, the
"Indenture") between the Company and the Trustee, to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the respective rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the registered holders of
the Notes and of the terms upon which the Notes are, and are to be,
authenticated and delivered. By the terms of the Indenture, the Notes are
issuable in series which may vary as to amount, date of maturity, rate of
interest and in other respects as in the Indenture provided. This series of
Notes is limited in aggregate principal amount as specified in said Sixth
Supplemental Indenture.
Notwithstanding the provisions of the Original Indenture, this Note
shall be without benefit of any security and shall be subordinated to Senior
Indebtedness (as defined in the Indenture) as and to the extent provided in
Article Four of said Sixth Supplemental Indenture. This Note shall not have the
benefit of the provisions of Article Four of the Original Indenture and shall
not have the benefit of, or be subject to, the other related provisions of the
Original Indenture relating to the grant of security, including (for avoidance
of doubt and not for purposes of limitation) the Granting Clause, the
definitions of "Deliverable Mortgage Bonds," "Deliverable Securities,"
"Designated Mortgage Bonds," "Grant," "Mortgage," Mortgage Bonds," "Mortgage
Trustee," "Previously Delivered Mortgage Bonds," and "Trust Estate," Section
301(20), Sections 301 (a) (v), (ix), (x) and (xi), Sections 301 (b) (ii) and
(iii), and Section 301 (d). In addition, the Events of Default set forth in
Sections 601(4) and 601 (8) of the
17
<PAGE> 19
Original Indenture shall not apply to this Note. The omission by the Company to
pay interest on this Note during a Deferral Period as permitted by Section 204
of said Sixth Supplemental Indenture shall not constitute an Event of Default
under Section 601(l) of the Original Indenture.
The Company shall have the right to redeem this Note at the option of
the Company, without premium or penalty, in whole or in part, at any time on or
after June 30, 2003 and prior to maturity at a redemption price equal to 100% of
the principal amount redeemed plus the accrued and unpaid interest thereon to
the date fixed for redemption. Any redemption pursuant to this paragraph will be
made upon not less than 30 nor more than 60 days notice. If the Notes are only
partially redeemed by the Company, the Notes will be redeemed pro rata or by lot
or by any other method utilized by the Trustee; provided that if at the time of
redemption, the Notes are registered as a Global Note, the Depositary shall
determine by lot the principal amount of such Notes held by each Note holder to
be redeemed.
If a Tax Event (as hereinafter defined) has occurred and is continuing,
the Company shall have the right, within 90 days following the occurence of
such Tax Event, to redeem the QUIDS, in whole but not in part, at a
redemption price equal to the aggregate principal amount of the QUIDS plus
accrued and unpaid interest to the date of redemption. "Tax Event" means that
the Company shall have received an opinion of counsel (which may be counsel to
the Company or an affiliate but not an employee thereof) experienced in such
matters to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in,the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein affecting taxation, or as a result of any official
administrative pronouncement or judicial decision interpreting or applying such
laws or regulations, which amendment or change is effective or such
pronouncement or decision is announced on or after the date of original
issuance of the QUIDS, there is more than an insubstantial risk that interest
payable by the Company on the QUIDS is not, or will not be, deductible by the
Company for federal income tax purposes.
In the event of redemption of this Note in part only, a new Note or
Notes of this series for the unredeemed portion hereof will be issued in the
name of the registered holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Notes may be declared,
and upon such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Note upon compliance by the Company with certain
conditions set forth therein.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the registered holders of not less than a majority
in aggregate principal amount of the outstanding Notes of each series affected
at the time, as defined in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to or changing in any manner
18
<PAGE> 20
or eliminating any of the provisions of the Indenture or of any supplemental
indenture or of modifying in any manner the rights of the registered holders of
the Notes; provided, however, that no such supplemental indenture shall (i)
extend the fixed maturity of any Notes of any series, or reduce the principal
amount thereof, or reduce the rate of or extend the time of payment of interest
thereon, or reduce any premium payable upon the redemption thereof, without the
consent of the registered holder of each Note so affected or (ii) reduce the
aforesaid percentage of Notes, the registered holders of which are required to
consent to any such supplemental indenture, without the consent of the
registered holders of each Note then outstanding and affected thereby. The
Indenture also contains provisions permitting (i) the registered holders of at
least 66 2/3% in aggregate principal amount of the Notes of all series at the
time outstanding affected thereby, on behalf of the registered holders of the
Notes of such series, to waive compliance by the Company with certain provisions
of the Indenture and (ii) the registered holders of a majority in aggregate
principal amount of the Notes of all series at the time outstanding affected
thereby, on behalf of the registered holders of the Notes of such series, to
waive certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the registered bolder of this Note (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such registered
holder and upon all future registered holders and owners of this Note and of any
Note issued in exchange hereof or in place hereof (whether by registration of
transfer or otherwise), irrespective of whether or not any notation of such
consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the time and place and at the rate and in the coin or currency herein
prescribed.
The Company shall have the right at any time, on one or more occasions,
so long as an Event of Default has not occurred and is not continuing under the
Indenture with respect to the Notes, to extend any interest payment period on
this Note to a period not to exceed 20 consecutive quarterly interest payment
periods and, as a consequence, the quarterly interest payment on the Notes would
be deferred (but would continue to accrue with interest thereon compounded
quarterly at the rate of interest on the Notes, except as provided by law)
during any such Deferral Period (as defined in the Indenture). At the end of
each Deferral Period, the Company shall pay all interest then accrued and unpaid
(compounded quarterly, at the rate of interest on the Notes, except to the
extent provided by law) to the persons in whose name the QUIDS are registered on
the Record Date for such Deferral Period. In the event the Company exercises
this right, the Company shall not declare or pay any dividends on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of its
Capital Stock (as defined in the Indenture) or make any guarantee payments with
respect to the foregoing during such Deferral Period, other than redemptions of
any series of Capital Stock of the Company pursuant to the terms of any sinking
fund provisions with respect thereto. In addition, during any Deferral Period,
the Company may not (i) make any distributions, loans or guarantees for the
benefit of, (ii) purchase, defease, redeem or otherwise acquire or retire for
value any securities of or (iii) make any other investment in any person
directly or indirectly controlling or controlled by or
19
<PAGE> 21
under direct or indirect common control with the Company, for the purpose of, or
to enable the payment of, directly or indirectly, dividends on any equity
security of DTE Energy Company and its successors or assigns. During any
Deferral Period, the Company may continue to extend the interest payment period
by extending the Deferral Period, provided that the aggregate Deferral Period,
as extended, must end on an Interest Payment Date and in no event shall the
aggregate Deferral Period exceed 20 consecutive quarterly interest payment
periods or extend beyond the maturity of the Notes or any date on which any of
the Notes are fixed for redemption. No interest shall be due and payable on the
Notes during a Deferral Period except at the end thereof. The Company shall give
the registered holders of Notes notice of its election to defer interest
payments or to extend the Deferral Period ten Business Days prior to the earlier
of (i) the next scheduled quarterly payment date or (ii) the date the Company is
required to give notice of the record date of such related interest payment to
the New York Stock Exchange or other applicable self-regulatory organization or
to the holders of the Notes, but in any event not less than two Business Days
prior to such record date.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Security Register of
the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company in any place where the principal of and any
interest on this Note are payable or at such other offices or agencies as the
Company may designate, duly endorsed by or accompanied by a written instrument
or instruments of transfer in form satisfactory to the Company and the Security
Registrar or any transfer agent duly executed by the registered holder hereof or
his or her attorney duly authorized in writing, and thereupon one or more new
Notes of this series and of like tenor, of authorized denominations and for the
same aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Note, the
Company, the Trustee, any paying agent and any Note Registrar may deem and treat
the registered holder hereof as the absolute owner hereof (whether or not this
Note shall be overdue and notwithstanding any notice of ownership or writing
hereon made by anyone other than the Note Registrar) for the purpose of
receiving payment of or on account of the principal hereof and interest due
hereon and for all other purposes, and neither the Company nor the Trustee nor
any paying agent nor any Note Registrar shall be affected by any notice to the
contrary.
The Notes of this series are issuable only in fully registered form
without coupons in denominations of $25 and any integral multiple thereof. This
Global Note is exchangeable for Notes in definitive form only under certain
limited circumstances set forth in the Indenture. Notes of this series so issued
are issuable only in registered form without coupons in denominations of $25 and
any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Notes of this series are exchangeable for
a like aggregate principal amount of Notes of this series of a different
authorized denomination, as requested by the registered holder surrendering the
same.
20
<PAGE> 22
As set forth in, and subject to the provisions of, the Indenture, no
registered owner of any Note will have any right to institute any proceeding
with respect to the Indenture or for any remedy thereunder, unless (i) such
registered owner shall have previously given to the Trustee written notice of a
continuing Event of Default with respect to the Notes of this series, (ii) the
registered owners of not less than 25% in principal amount of the outstanding
Notes of this series shall have made written request, and offered reasonable
indemnity, to the Trustee to institute such proceeding as trustee, (iii) the
Trustee shall have failed to institute such proceeding within 60 days and (iv)
the Trustee shall not have received from the registered owners of a majority in
principal amount of the outstanding Notes of this series a direction
inconsistent with such request within such 60-day period; provided, however,
that such limitations do not apply to a suit instituted by the registered owner
hereof for the enforcement of payment of the principal of or any interest on
this Note on or after the respective due dates expressed herein, subject to
deferral as set forth herein.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
21
<PAGE> 23
IN WITNESS WHEREOF, the Company has caused this Instrument to be
executed.
THE DETROIT EDISON COMPANY
By /s/ L. L. Loomans
------------------------------
L. L. Loomans
Vice President and Treasurer
Attest:
By /s/ Susan M. Beale
--------------------------------------
Susan M. Beale
Vice President and Corporate Secretary
[Corporate Seal]
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes described in the within
mentioned Indenture.
BANKERS TRUST COMPANY
as Trustee
By
------------------------------
Authorized Signatory
Date:
22
<PAGE> 24
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
(Please insert Social Security or Other Identifying Number of Assignee)
________________________________________________________________________________
(Please print or type name and address, including zip code of assignee)
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorneys to transfer the within Note on the books of the
Issuer, with full power of substitution in the premises.
Dated:________________________
NOTICE: The signature of this assignment must correspond with the name as
written upon the face of the within Note in every particular, without alteration
or enlargement or any change whatever and NOTICE: Signature(s) must be
guaranteed by a financial institution that is a member of the Securities
Transfer Agents Medallion Program ("STAMP"), the Stock Exchange, Inc. Medallion
Signature Program ("MSP"). When assignment is made by a guardian, trustee,
executor or administrator, an officer of a corporation, or anyone in a
representative capacity, proof of his or her authority to act must accompany
this Note.
23
<PAGE> 1
EXHIBIT 8-1
April 30, 1998
The Detroit Edison Company
2000 Second Avenue
Detroit, Michigan 48226
Ladies and Gentlemen:
We have acted as special United States tax counsel to The Detroit
Edison Company (the "Company") in connection with the preparation and filing of
each of the prospectus supplement dated April 30, 1998 (the "Prospectus
Supplement") and the prospectus dated April 30, 1998 (the "Prospectus"), in
respect of an offering of $100,122,300 aggregate principal amount of 7.54%
Quarterly Income Debt Securities ("QUIDS [SM]")(Junior Subordinated Deferrable
Interest Debentures, Due 2028) to be offered by the Company. The QUIDS are a
series of Debt Securities (as defined in the Prospectus) of the Company, the
terms of which are set forth in the Prospectus relating to the Company's
registration statement on Form S-3 (No. 33-53207) (the "Registration Statement")
under the Securities Act of 1933, as amended (the "Securities Act").
Based upon the terms of the QUIDS and the Debt Securities,
respectively, we hereby confirm that the discussions set forth under the
captions entitled "Certain United States Federal Income Tax Consequences" in the
Prospectus Supplement and "Certain United States Federal Income Tax
Considerations" in the Prospectus, except as otherwise stated therein,
constitute our opinions as to the material United States Federal income tax
considerations of the acquisition, holding and disposition of the QUIDS and the
Debt Securities, respectively.
Our opinions, which are not binding on the Internal Revenue Service,
are based upon existing statutory, regulatory and judicial authority, any of
which maybe changed at any time with retroactive effect to the detriment of the
holders of the Debt Securities, including the QUIDS. The opinions expressed in
the preceding paragraph are limited to the tax matters specifically discussed
under the captions entitled "Certain United States Federal Income Tax
Consequences" in the Prospectus Supplement and "Certain United States Federal
Income Tax Considerations" in the Prospectus, and we have not been asked to
address, nor have we addressed, any other tax considerations relating to the
Debt Securities or the QUIDS.
<PAGE> 2
We are members of the Bar of the State of New York, and we do not
express any opinion herein concerning any law other than the Federal law of the
United States. As you are aware, we have also acted as counsel to the
underwriters of the QUIDS offering in connection with the execution and delivery
of the underwriting agreement between the underwriters and you and the
transactions contemplated thereby.
We hereby consent to the filing of this letter as an exhibit to the
Registration Statement and to the references to us under the captions "Certain
United States Federal Income Tax Consequences," "Certain United States Federal
Income Tax Considerations" and "Legal Opinions" in the related Prospectus
Supplement and Prospectus. In giving such consent, we do not hereby admit that
we are in the category of persons whose consent is required under Section 7 of
the Securities Act.
Very truly yours,
/s/ BROWN & WOOD LLP
2
