Dte Energy Co S-3ASR, filed Apr 8, 2022
Dte Energy Co (DTE)
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As filed with the Securities and Exchange Commission on April 8, 2022
Registration Nos. 333- , 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
| DTE Energy Company | DTE Electric Company | |
| (Exact name of the registrant as specified in its charter) |
(Exact name of the registrant as specified in its charter) | |
| Michigan | Michigan | |
| (State or other jurisdiction of incorporation or organization) |
(State or other jurisdiction of incorporation or organization) | |
| 38-3217752 | 38-0478650 | |
| (I.R.S. Employer Identification Number) |
(I.R.S. Employer Identification Number) | |
One Energy Plaza
Detroit, Michigan 48226-1279
(313) 235-4000
(Address, including zip code, and telephone number, including area code, of registrants’ principal executive offices)
Lisa A. Muschong
DTE Energy Company
One Energy Plaza
Detroit, Michigan 48226-1279
(313) 235-4000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
| Timothy E. Kraepel DTE Energy Company One Energy Plaza Detroit, Michigan 48226-1279 (313) 235-4000 |
Catherine C. Hood Bracewell LLP 31 West 52nd Street New York, New York 10019 (212) 508-6118 |
Approximate Date of Commencement of Proposed Sale to the Public: From time to time after this registration statement becomes effective, as determined by market and other conditions.
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If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
DTE ENERGY COMPANY:
| Large accelerated filer | ☒ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☐ | Smaller reporting company | ☐ | |||
| Emerging growth company | ☐ | |||||
DTE ELECTRIC COMPANY:
| Large accelerated filer | ☐ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☒ | Smaller reporting company | ☐ | |||
| Emerging growth company | ☐ | |||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section (7)(a)(2)(B) of the Securities Act. ☐
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EXPLANATORY NOTE
This registration statement contains two forms of prospectuses to be used in connection with offerings of the following securities:
Prospectus of DTE Energy Company:
| • | Common Stock of DTE Energy Company; |
| • | Debt Securities of DTE Energy Company; |
| • | Stock Purchase Contracts of DTE Energy Company; and |
| • | Stock Purchase Units of DTE Energy Company. |
Prospectus of DTE Electric Company:
| • | Debt Securities of DTE Electric Company. |
Each offering made under this registration statement will be made pursuant to one of these two prospectuses, with specific terms of the securities offered thereby set forth in an accompanying prospectus supplement.
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Prospectus
DTE Energy Company
Common Stock
Debt Securities
Stock Purchase Contracts
Stock Purchase Units
By this prospectus, DTE Energy Company may offer from time to time:
| • | common stock; |
| • | senior debt securities and/or subordinated debt securities, including debt securities convertible into common stock of DTE Energy or exchangeable for other securities; |
| • | Stock Purchase Contracts; and |
| • | Stock Purchase Units. |
We will provide specific terms of the securities, including the offering prices, in supplements to this prospectus. The supplements may also add, update or change information contained in this prospectus. You should read this prospectus and any supplements carefully before you invest.
We may offer these securities directly or through underwriters, agents or dealers. This prospectus may also be used by a selling security holder of the securities described herein. The supplements to this prospectus will describe the terms of any particular plan of distribution, including any underwriting arrangements, and will identify any selling security holders. See the “Plan of Distribution” section beginning on page 26 of this prospectus for more information.
See “Risk Factors ” beginning on page 3 regarding risks associated with an investment in these securities.
The mailing address of DTE Energy Company’s principal executive office is One Energy Plaza, Detroit, Michigan 48226-1279, and its telephone number is (313) 235-4000.
DTE Energy Company’s common stock is traded on the New York Stock Exchange under the symbol “DTE.”
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
This prospectus is dated April 8, 2022
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| Description of Stock Purchase Contracts and Stock Purchase Units |
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You should rely only on the information contained or incorporated by reference in this prospectus and the applicable prospectus supplement or supplements. We have not authorized any person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. You should not assume that the information contained or incorporated in this prospectus is accurate as of any time after the date of this prospectus, or, if later, the date of an incorporated document, because our business, financial condition, results of operations and prospects may have changed since such dates.
We are not making an offer to sell these securities in any jurisdiction that prohibits the offer or sale of these securities.
In this prospectus references to “DTE Energy,” the “Company,” “we,” “us” and “our” refer to DTE Energy Company, unless the context indicates that the references are to DTE Energy Company and its consolidated subsidiaries.
This prospectus is part of a registration statement that DTE Energy filed with the Securities and Exchange Commission (“SEC”) utilizing a “shelf” registration process. Under this shelf registration process, DTE Energy may sell any combination of the securities described in this prospectus in one or more offerings.
This prospectus provides you with a general description of the securities DTE Energy may offer. Each time DTE Energy sells securities, DTE Energy will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read this prospectus and any prospectus supplement together with the additional information described below under the heading “Where You Can Find More Information.”
For more detailed information about the securities, you can read the exhibits to the registration statement. Those exhibits have been either filed with the registration statement or incorporated by reference to earlier SEC filings listed in the registration statement.
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An investment in the securities involves risks. You should carefully consider the “Risk Factors” set forth in our most recent Annual Report on Form 10-K and Quarterly Reports on Form 10-Q, together with the other information in this prospectus, any applicable prospectus supplement, and the documents that are incorporated by reference in this prospectus, about risks concerning the securities, before buying any securities. See also “Cautionary Statements Regarding Forward-Looking Statements” below.
CAUTIONARY STATEMENTS REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference in this prospectus contain “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933 (the “Securities Act”) and Section 21E of the Securities Exchange Act of 1934 (the “Exchange Act”), with respect to the financial condition, results of operations and business of DTE Energy. You can find many of these statements by looking for words such as “anticipate,” “believe,” “expect,” “projected,” “aspiration,” and “goals” or similar expressions in this prospectus or in documents incorporated herein that signify forward-looking statements. Forward-looking statements are not guarantees of future results and conditions, but rather are subject to numerous assumptions, risks, and uncertainties that may cause actual future results to be materially different from those contemplated, projected, estimated, or budgeted. Many factors may impact forward-looking statements including, but not limited to, the following:
| • | risks related to the separation of DT Midstream, including that providing DT Midstream with transition services could adversely affect our business and that the transaction may not achieve some or all of the anticipated benefits; |
| • | the duration and impact of the COVID-19 pandemic on us, our consolidated subsidiaries and customers; |
| • | impact of regulation by the Environmental Protection Agency, the Michigan Department of Environment, Great Lakes, and Energy, the Federal Energy Regulatory Commission, the Michigan Public Service Commission, the Nuclear Regulatory Commission, the Commodity Futures Trading Commission, and the California Air Resources Board, as well as other applicable governmental proceedings and regulations, including any associated impact on rate structures; |
| • | the amount and timing of cost recovery allowed as a result of regulatory proceedings, related appeals, or new legislation, including legislative amendments and retail access programs; |
| • | economic conditions and population changes in our geographic area resulting in changes in demand, customer conservation, and thefts of electricity and natural gas; |
| • | the operational failure of electric or gas distribution systems or infrastructure; |
| • | impact of volatility in prices in international steel markets and in prices of environmental attributes generated from renewable natural gas investments on the operations of DTE Vantage; |
| • | the risk of a major safety incident; |
| • | environmental issues, laws, regulations, and the increasing costs of remediation and compliance, including actual and potential new federal and state requirements; |
| • | the cost of protecting assets and customer data against, or damage due to, cyber incidents and terrorism; |
| • | health, safety, financial, environmental, and regulatory risks associated with ownership and operation of nuclear facilities; |
| • | volatility in commodity markets, deviations in weather, and related risks impacting the results of our energy trading operations; |
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| • | changes in the cost and availability of coal and other raw materials, purchased power, and natural gas; |
| • | advances in technology that produce power, store power, or reduce power consumption; |
| • | changes in the financial condition of significant customers and strategic partners; |
| • | the potential for losses on investments, including nuclear decommissioning and benefit plan assets and the related increases in future expense and contributions; |
| • | access to capital markets and the results of other financing efforts which can be affected by credit agency ratings; |
| • | instability in capital markets which could impact availability of short and long-term financing; |
| • | impacts of inflation and the timing and extent of changes in interest rates; |
| • | the level of borrowings; |
| • | the potential for increased costs or delays in completion of significant capital projects; |
| • | changes in, and application of, federal, state, and local tax laws and their interpretations, including the Internal Revenue Code, regulations, rulings, court proceedings, and audits; |
| • | the effects of weather and other natural phenomena, including climate change, on operations and sales to customers, and purchases from suppliers; |
| • | unplanned outages; |
| • | employee relations and the impact of collective bargaining agreements; |
| • | the availability, cost, coverage, and terms of insurance and stability of insurance providers; |
| • | cost reduction efforts and the maximization of plant and distribution system performance; |
| • | the effects of competition; |
| • | changes in and application of accounting standards and financial reporting regulations; |
| • | changes in federal or state laws and their interpretation with respect to regulation, energy policy, and other business issues; |
| • | successful execution of new business development and future growth plans; |
| • | contract disputes, binding arbitration, litigation, and related appeals; |
| • | the ability of the electric and gas utilities to achieve net zero emissions goals; and |
| • | the risks discussed in our public filings with the Securities and Exchange Commission. |
New factors emerge from time to time. We cannot predict what factors may arise or how such factors may cause results to differ materially from those contained in any forward-looking statement. Any forward-looking statements speak only as of the date on which such statements are made. We undertake no obligations to update any forward-looking statement to reflect events or circumstances after the date on which such statement is made or to reflect the occurrence of unanticipated events.
The factors discussed above and other factors are discussed more completely in our public filings with the SEC, including our most recent Annual Report on Form 10-K.
DTE Energy Company is a Michigan corporation engaged in utility operations through its wholly owned subsidiaries, DTE Electric Company (“DTE Electric”) and DTE Gas Company (“DTE Gas”). DTE Energy also has two other segmemts that are engaged in a variety of energy-related business.
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DTE Electric is a Michigan corporation organized in 1903 and is an indirect wholly-owned subsidiary of DTE Energy. DTE Electric is a public utility enagegd in the generation, purchase, distribution, and sale of electricity to approximately 2.3 million customers in southeastern Michigan.
DTE Gas is a Michigan corporation organized in 1898 and is an indirect, wholly-owned subsidiary of DTE Energy. DTE Gas is a public utility engaged in the purchase, storage, transportation, distribution, and sale of natural gas to approximately 1.3 million customers throughout Michigan and the sale of storage and transportation capacity.
DTE Energy’s other businesses include:
| • | DTE Vantage, formerly DTE Energy’s Power and Industrial Projects segment, which is comprised primarily of renewable energy projects that sell electricity and pipeline-quality gas and projects that deliver energy and utility-type products and services to industrial, commercial, and institutional customers, and |
| • | Energy marketing and trading operations. |
Except as we may otherwise state in an accompanying prospectus supplement, DTE Energy expects to use the net proceeds from the sale of its securities for general corporate purposes, which may include, among other things:
| • | financing, development and construction of new facilities; |
| • | additions to working capital; and |
| • | repurchase or refinancing of securities. |
The precise amount and timing of the application of such proceeds will depend upon our funding requirements, market conditions and the availability and cost of other funds. Pending the application of proceeds, we may also invest the funds temporarily in short-term investment grade securities.
THE SECURITIES THAT WE MAY OFFER
The descriptions of the securities contained in this prospectus, together with the applicable prospectus supplements, summarize certain terms and provisions of the various types of securities that DTE Energy may offer. The particular terms of the securities offered by any prospectus supplement will be described in that prospectus supplement. If indicated in the applicable prospectus supplement, the terms of the securities may differ from the terms summarized below. The prospectus supplement will also contain information, where applicable, about material U.S. federal income tax considerations relating to the securities, and any securities exchange on which the securities may be listed.
We may sell from time to time, in one or more offerings:
| • | common stock; |
| • | senior debt securities and/or subordinated debt securities, including debt securities convertible into common stock of DTE Energy or exchangeable for other securities; |
| • | stock purchase contracts; and |
| • | stock purchase units. |
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In this prospectus, we refer to the common stock, senior debt securities, subordinated debt securities, stock purchase contracts and stock purchase units together as “securities.” We refer to the senior debt securities and the subordinated debt securities together as the “debt securities.”
Authorized Capital Stock
The authorized capital stock of DTE Energy currently consists of 400,000,000 shares of DTE Energy common stock, without par value, and 5,000,000 shares of preferred stock, without par value. As of December 31, 2021, there were 193,747,509 shares of DTE Energy common stock issued and outstanding. All outstanding shares of common stock are, and the common stock offered hereby when issued and paid for will be, duly authorized, validly issued, fully paid and nonassessable. As of December 31, 2021, there were no shares of preferred stock issued and outstanding.
Under the DTE Energy amended and restated articles of incorporation, which we refer to as the articles of incorporation, our board of directors may cause the issuance of one or more new series of the authorized shares of preferred stock, determine the number of shares constituting any such new series and fix the voting, distribution, dividend, liquidation and all other rights and limitations of the preferred stock. These rights may be superior to those of the DTE Energy common stock. To the extent any shares of DTE Energy’s preferred stock have voting rights, no share of preferred stock may be entitled to more than one vote per share.
Common Stock
The following description of our common stock, together with the additional information included in any applicable prospectus supplement, summarizes the material terms and provisions of this type of security. If indicated in a prospectus supplement, the terms of any common stock offered under that prospectus supplement may differ from the terms described below. For the complete terms of our common stock, please refer to our articles of incorporation and bylaws that are incorporated by reference into the registration statement that includes this prospectus or may be incorporated by reference in this prospectus. The terms of our common stock may also be affected by the laws of the State of Michigan.
Dividends
Holders of common stock are entitled to participate equally in respect to dividends as, when and if dividends are declared by our board of directors out of funds legally available for their payment. However, this dividend right is subject to any preferential dividend rights we may grant to future holders of preferred stock and to the prior rights of DTE Energy’s debt holders and other creditors. As a Michigan corporation, we are subject to statutory limitations on the declaration and payment of dividends. Dividends on DTE Energy common stock will depend primarily on the earnings and financial condition of DTE Energy. DTE Energy is a holding company and its assets consist primarily of its investment in its operating subsidiaries. Thus, as a practical matter, dividends on common stock of DTE Energy will depend in the foreseeable future primarily upon the earnings, financial condition and capital requirements of DTE Electric, DTE Gas and our other subsidiaries, and the distribution of such earnings to DTE Energy in the form of dividends. The subsidiaries are separate and distinct legal entities and have no obligation to make payments with respect to any of DTE Energy’s securities, or to pay dividends to or make funds available to DTE Energy so that DTE Energy can make payments on its securities, including its common stock. In addition, existing or future covenants limiting the right of DTE Electric, DTE Gas or our other subsidiaries to pay dividends on or make other distributions with respect to their common stock may affect DTE Energy’s ability to pay dividends on its common stock. See “Description of Debt Securities — Ranking.”
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Voting
Subject to any special voting rights that may vest in the holders of preferred stock, the holders of DTE Energy common stock are entitled to vote as a class and are entitled to one vote per share for each share held of record on all matters voted on by shareholders. All questions are decided by a majority of the votes cast by the holders of shares entitled to vote on that question, unless a greater or different vote is required by the articles of incorporation or Michigan law. However, if the number of director nominees for any director election exceeds the number of directors to be elected, the nominees receiving a plurality of the votes cast by holders of the shares entitled to vote at any meeting for the election of directors at which a quorum is present will be elected.
We are subject to Chapter 7A of the Michigan Business Corporation Act, which we refer to as the Corporation Act, which provides that business combinations subject to Chapter 7A between a Michigan corporation and a beneficial owner of shares entitled to 10% or more of the voting power of such corporation generally require the affirmative vote of 90% of the votes of each class of stock entitled to vote, and not less than 2/3 of each class of stock entitled to vote (excluding voting shares owned by such 10% owner), voting as a separate class. These requirements do not apply if (1) the corporation’s board of directors approves the transaction prior to the time the 10% owner becomes such or (2) the transaction satisfies certain fairness standards, certain other conditions are met and the 10% owner has been such for at least five years.
Board of Directors
The number of directors is fixed by the board of directors from time to time. DTE Energy currently has 12 directors. Directors are elected annually for terms which expire upon election of their successor at the next year’s annual shareholder meeting.
Amendments to DTE Energy’s Articles of Incorporation
Under Michigan law, our articles of incorporation may be amended by the affirmative vote of the holders of a majority of the outstanding shares entitled to vote on the proposed amendment (which would include the common stock and any series of preferred stock which, by its terms or applicable law, was so entitled to vote), and, if any class or series of shares is entitled to vote as a class, then the proposed amendment must be approved by the required vote of each class or series of shares entitled to vote as a class.
Liquidation Rights
In the event of a liquidation, dissolution or winding-up of DTE Energy, holders of our common stock have the right to share in DTE Energy’s assets remaining after satisfaction in full of the prior rights of creditors, and all liabilities and the aggregate liquidation preferences of any outstanding shares of DTE Energy preferred stock.
Preemptive Rights
The holders of DTE Energy common stock have no conversion or redemption rights, or any rights to subscribe for or purchase other stock of DTE Energy.
Listing
Our common stock is listed on the New York Stock Exchange under the symbol “DTE.”
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Equiniti Trust Company, P.O. Box 64874, St. Paul, MN 55164-0854.
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Advance Notice Requirements; Possible Anti-Takeover Effects
Certain provisions of our articles of incorporation and bylaws may have the effect of discouraging unilateral tender offers or other attempts to take over and acquire the business of DTE Energy. Our bylaws provide that shareholders seeking to nominate candidates for election as directors or to bring business before an annual meeting of shareholders or a shareholder-requested special meeting of shareholders must deliver timely notice of their proposal in writing to our principal executive offices. Our bylaws also specify requirements as to the form and content of a shareholder’s notice. These provisions may impede shareholders’ ability to bring matters before an annual meeting of shareholders, a shareholder requested special meeting of shareholders or make nominations for directors. These provisions may limit the ability of individuals to bring matters before shareholder meetings, change the composition of the board of directors and pursue a merger, takeover, business combination or tender offer involving DTE Energy, which, under certain circumstances, could encourage a potentially interested purchaser to negotiate with the board of directors rather than pursue a non-negotiated takeover attempt, including one that shareholders might favor, and could reduce the market value of our common stock.
DESCRIPTION OF DEBT SECURITIES
The following description, together with any applicable prospectus supplement, summarizes certain material terms and provisions of the debt securities we may offer under this prospectus and the related indenture. We will issue the debt securities under an amended and restated indenture, dated as of April 9, 2001, as supplemented or amended from time to time, which we refer to as the “indenture,” between DTE Energy and The Bank of New York Mellon Trust Company, N.A., as successor trustee. We refer to The Bank of New York Mellon Trust Company, N.A., or any successor or additional trustee, in its capacity as trustee under the indenture, as the “trustee” for purposes of this section. The indenture may, but need not, have separate trustees for senior and subordinated debt securities.
This summary of the indenture and the debt securities relates to terms and conditions applicable to the debt securities generally. The particular terms of any series of debt securities will be summarized in the applicable prospectus supplement. If indicated in the prospectus supplement, the terms of any series may differ from the terms summarized below.
Because the descriptions of provisions of the indenture below are summaries, they do not describe every aspect of the indenture. The summaries below are subject to, and are qualified in their entirety by reference to, all provisions of the indenture, including the definitions therein of certain terms. We have filed a copy of the indenture as an exhibit to the registration statement of which this prospectus is a part. We encourage you to read the indenture for provisions that may be important to you. Wherever we refer to particular articles, sections or defined terms of the indenture, those articles, sections or defined terms are incorporated herein by reference, and the statement in connection with which such reference is made is qualified in its entirety by such reference. The indenture contains, and the debt securities, when issued, will contain, additional important terms and provisions. We will describe the particular terms of the debt securities offered by any prospectus supplement and the extent, if any, to which such general provisions may apply to the debt securities so offered in the prospectus supplement relating to those debt securities.
The indenture does not limit the amount of debt securities we may issue under it, and it provides that additional debt securities of any series may be issued up to the aggregate principal amount that we may authorize from time to time. As of December 31, 2021, approximately $6.5 billion aggregate principal amount of debt securities were issued and outstanding under the indenture.
Principal and any premium and interest in respect to the debt securities will be payable, and the debt securities will be transferable, at the corporate trust office of the trustee, unless we specify otherwise in the applicable prospectus supplement. At our option, however, payment of interest may be made by check mailed to the registered holders of the debt securities at their registered addresses.
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We will describe material U.S. federal income tax and other considerations relating to debt securities denominated in foreign currencies or units of two or more foreign currencies in the applicable prospectus supplement.
Unless we otherwise specify in this prospectus or in the applicable prospectus supplement, we will issue debt securities in the form of global securities, deposited with and registered in the name of The Depository Trust Company, as depositary, which we refer to as “DTC,” or its nominee. Interests in the debt securities will be shown on, and transfers thereof will be effected only through, records maintained by DTC and its participants. See “Book-Entry Securities.”
General
The prospectus supplement that accompanies this prospectus relating to the debt securities being offered will include specific terms relating to the offered debt securities. These terms may include some or all of the following:
| • | the title or designation of the debt securities; |
| • | the aggregate principal amount of the debt securities; |
| • | whether the debt securities are to represent senior or subordinated indebtedness and, if subordinated debt securities, the specific subordination provisions applicable thereto; |
| • | in the case of subordinated debt securities, the relative degree, if any, to which such subordinated debt securities of the series will be senior to or be subordinated to other series of subordinated debt securities or other indebtedness of DTE Energy in right of payment, whether such other series of subordinated debt securities or other indebtedness is outstanding or not; |
| • | whether the debt securities will be issued as registered securities, bearer securities or a combination of the two; |
| • | the person to whom any interest on any registered security shall be payable, if other than the person in whose name that security is registered at the close of business on the record date, the manner in which, or the person to whom, any interest on any bearer security shall be payable, if other than upon presentation and surrender of coupons, and the extent to which, or the manner in which, any interest payable on a temporary global security will be paid if other than in the manner provided in the indenture; |
| • | whether the debt securities will be issued in the form of one or more global securities; |
| • | the date or dates on which the principal of (and premium, if any, on) the debt securities will be payable or the method or methods, if any, by which such date or dates will be determined; |
| • | the rate or rates, at which the debt securities will bear any interest or the method or methods, if any, by which such rate or rates will be determined; |
| • | the date or dates from which any interest will accrue or the method or methods, if any, by which such date or dates will be determined and the date or dates on which such interest will be payable; |
| • | whether and under what circumstances we will pay “additional amounts,” as defined in the indenture, on the debt securities to any holder who is a “United States alien,” as defined in the indenture, in respect of certain taxes, assessments or governmental charges, and, if so, whether we will have the option to redeem the debt securities rather than pay the additional amounts; the term “interest,” as used in this prospectus, includes any additional amounts; |
| • | the place or places where the principal of (and premium, if any) and interest on the debt securities will be payable, and where any registered securities may be surrendered for registration of transfer or exchange; |
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| • | a description of any provisions providing for redemption or repurchase of the debt securities, in whole or in part, at our option, a holder’s option or otherwise, and the terms and provisions of such a redemption or repurchase; |
| • | any sinking fund or other mandatory redemption or similar terms; |
| • | whether the debt securities will be convertible into shares of common stock of DTE Energy and/or exchangeable for other securities, whether or not issued by DTE Energy, property or cash, or a combination of any of the foregoing, and, if so, the terms and conditions of such conversion or exchange, either mandatory, at the option of the holder, or at the option of DTE Energy, and any deletions from or modifications or additions to the indenture to allow the issuance of such convertible or exchangeable debt securities; |
| • | the authorized denominations of the debt securities, if other than denominations of $1,000 and any integral multiple thereof (in the case of registered securities) or $5,000 (in the case of bearer securities); |
| • | if other than the principal amount thereof, the portion of the principal amount of the debt securities or any of them that shall be payable upon declaration of acceleration of the maturity in accordance with the indenture upon an event of default or the method by which such portion is to be determined; |
| • | if other than U.S. dollars, the currency or currencies or currency unit or units of two or more currencies in which debt securities are denominated, for which they may be purchased, and in which principal and any premium and interest is payable; |
| • | if the currency or currencies or currency unit or units for which debt securities may be purchased or in which principal and any premium and interest may be paid is at our election or at the election of a purchaser, the manner in which an election may be made and its terms; |
| • | any index or other method used to determine the amount of payments of principal of, and any premium and interest on, the debt securities; |
| • | if either or both of the sections of the indenture relating to defeasance and covenant defeasance are applicable to the debt securities, or if any covenants in addition to or other than those specified in the indenture shall be subject to covenant defeasance; |
| • | any deletions from, or modifications or additions to, the provisions of the indenture relating to satisfaction and discharge in respect of the debt securities; |
| • | if there is more than one trustee, the identity of the trustee and, if not the trustee, the identity of each security registrar, paying agent and/or authenticating agent with respect to the debt securities; |
| • | whether the debt securities shall be issued as original issue discount securities; |
| • | whether a credit facility or other form of credit support will apply to the debt securities; |
| • | any deletions from, modifications of or additions to the events of default or covenants with respect to the debt securities whether or not such events of default or covenants are consistent with the events of default or covenants in the indenture, and whether the limitations on secured debt under the indenture will be applicable; and |
| • | any other specific terms of the debt securities. |
We are not obligated to issue all debt securities of any one series at the same time and all the debt securities of any one series need not bear interest at the same rate or mature on the same date.
Under the indenture, the terms of the debt securities of any series may differ and we, without the consent of the holders of the debt securities of any series, may reopen a previous series of debt securities and issue additional debt securities of such series or establish additional terms of such series.
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Other than as described below under “— Covenants” with respect to any applicable series of debt securities and as may be described in the applicable prospectus supplement, the indenture does not limit our ability to incur indebtedness or afford holders of debt securities protection in the event of a decline in our credit quality or if we are involved in a takeover, recapitalization or highly leveraged or similar transaction. Accordingly, we could in the future enter into transactions that could increase the amount of indebtedness outstanding at that time or otherwise affect our capital structure or credit rating. You should refer to the prospectus supplement relating to a particular series of debt securities for information regarding the applicability of the covenant described below under “— Covenants — Limitation on Secured Debt” or any deletions from, modifications of or additions to the events of default described below or covenants contained in the indenture, including any addition of a covenant or other provisions providing event risk or similar protection.
Ranking
Because DTE Energy is a holding company that conducts substantially all of its operations through subsidiaries, holders of debt securities and guarantees of DTE Energy will generally have a junior position to claims of creditors of those subsidiaries, including trade creditors, debtholders, secured creditors, taxing authorities, guarantee holders and preferred shareholders, if any. Our subsidiaries, principally DTE Electric and DTE Gas, from time to time incur debt to finance their business activities. Substantially all of the physical properties of DTE Electric and DTE Gas are subject to the liens of their respective mortgage indentures as security for the payment of outstanding mortgage bonds.
Our assets consist primarily of investment in subsidiaries. Our ability to service indebtedness, including any debt securities and guarantees, depends on the earnings of our subsidiaries and the distribution or other payment from subsidiaries of earnings to us in the form of dividends, loans or advances, and repayment of loans and advances from us. The subsidiaries are separate and distinct legal entities and have no obligation, contingent or otherwise, to pay any amounts due under the debt securities or to make payments to us in order for us to pay our obligations under the debt securities. In addition, existing and future contractual and other legal requirements may limit the ability of our subsidiaries to pay dividends to us.
Senior Debt Securities
Unless otherwise indicated in the applicable prospectus supplement, DTE Energy’s obligation to pay the principal of, and any premium and interest on, the senior debt securities will be unsecured and will rank equally with all of our other unsecured unsubordinated indebtedness.
Subordinated Debt Securities
DTE Energy’s obligation to pay the principal of, and any premium and interest on, any series of subordinated debt securities will be unsecured and will rank subordinate and junior in right of payment to all Senior Indebtedness (as defined below) to the extent provided in the supplemental indenture relating to the series and the terms of those subordinated debt securities, as described below and in any applicable prospectus supplement, which may make deletions from, or modifications or additions to, the subordination terms described below.
Upon any payment or distribution of assets or securities of DTE Energy to creditors upon any liquidation, dissolution, winding-up, reorganization, or any bankruptcy, insolvency, receivership or similar proceedings in connection with any insolvency or bankruptcy proceeding of DTE Energy, the holders of Senior Indebtedness will first be entitled to receive payment in full of the Senior Indebtedness before the holders of subordinated debt securities will be entitled to receive any payment or distribution in respect of the subordinated debt securities, and to that end the holders of Senior Indebtedness will be entitled to receive, for application to the payment thereof, any payment or distribution of any kind or character, whether in cash, property or securities, including any such payment or distribution that may be payable or deliverable by reason of the payment of any other
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Indebtedness of DTE Energy being subordinated to the payment of subordinated debt securities of such series, which may be payable or deliverable in respect of the subordinated debt securities of such series upon any such dissolution, winding-up, liquidation or reorganization or in any such bankruptcy, insolvency, receivership or other proceeding.
By reason of such subordination, in the event of liquidation or insolvency of DTE Energy, holders of Senior Indebtedness with respect to the subordinated debt securities of any series and holders of other obligations of DTE Energy that are not subordinated to such Senior Indebtedness may recover more, ratably, than the holders of the subordinated debt securities of such series.
Subject to the payment in full of all Senior Indebtedness with respect to the subordinated debt securities of any series, the rights of the holders of the subordinated debt securities of such series will be subrogated to the rights of the holders of Senior Indebtedness to receive payments or distributions of cash, property or securities of DTE Energy applicable to such Senior Indebtedness until the principal of, any premium and interest on, and any additional amounts with respect to, the subordinated debt securities of such series have been paid in full.
No payments on account of principal or any premium or interest in respect of the subordinated debt securities may be made if there has occurred and is continuing a default in any payment with respect to Senior Indebtedness or an event of default with respect to any Senior Indebtedness resulting in the acceleration of its maturity, or if any judicial proceeding is pending with respect to any default.
“Indebtedness” means:
| • | indebtedness for borrowed money; |
| • | obligations for the deferred purchase price of property or services (other than trade payables not overdue by more than 60 days incurred in the ordinary course of business); |
| • | obligations evidenced by notes, bonds, debentures or other similar instruments; |
| • | obligations created or arising under any conditional sale or other title retention agreement with respect to acquired property; |
| • | obligations as lessee under leases that have been or should be, in accordance with accounting principles generally accepted in the United States, recorded as capital leases; |
| • | obligations, contingent or otherwise, in respect of acceptances, letters of credit or similar extensions of credit; |
| • | obligations in respect of interest rate swap, cap or collar agreements, interest rate future or option contracts, currency swap agreements, currency future or option contracts and other similar agreements; |
| • | guarantees of Indebtedness of others, directly or indirectly, or Indebtedness in effect guaranteed directly or indirectly through an agreement (1) to pay or purchase such Indebtedness or to advance or supply funds for the payment or purchase of such Indebtedness, (2) to purchase, sell or lease property, or to purchase or sell services, primarily for the purpose of enabling the debtor to make payment of such Indebtedness or to assure the holder of such Indebtedness against loss, (3) to supply funds to or in any other manner invest in the debtor or (4) otherwise to assure a creditor against loss; and |
| • | Indebtedness described above secured by any Lien (as defined below) on property. |
“Senior Indebtedness,” for purposes of subordinated debt securities of each series, means all Indebtedness, whether outstanding on the date of issuance of subordinated debt securities of the applicable series or thereafter created, assumed or incurred, except Indebtedness ranking equally with the subordinated debt securities or Indebtedness ranking junior to the subordinated debt securities. Senior Indebtedness does not include obligations to trade creditors or indebtedness of DTE Energy to its subsidiaries. Senior Indebtedness with respect to the
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subordinated debt securities of any particular series will continue to be Senior Indebtedness with respect to the subordinated debt securities of such series and be entitled to the benefits of the subordination provisions irrespective of any amendment, modification or waiver of any term of such Senior Indebtedness.
“Indebtedness ranking equally with the subordinated debt securities,” for purposes of subordinated debt securities of the applicable series, means Indebtedness, whether outstanding on the date of issuance of the subordinated debt securities or thereafter created, assumed or incurred, to the extent the Indebtedness specifically by its terms ranks equally with and not prior to the subordinated debt securities in the right of payment upon the happening of the dissolution, winding-up, liquidation or reorganization of DTE Energy. The securing of any Indebtedness otherwise constituting Indebtedness ranking equally with the subordinated debt securities will not prevent the Indebtedness from constituting Indebtedness ranking equally with the subordinated debt securities.
“Indebtedness ranking junior to the subordinated debt securities,” for purposes of subordinated debt securities of the applicable series, means any Indebtedness, whether outstanding on the date of issuance of the subordinated debt securities of the applicable series or thereafter created, assumed or incurred, to the extent the Indebtedness by its terms ranks junior to and not equally with or prior to:
| • | the subordinated debt securities, and |
| • | any other Indebtedness ranking equally with the subordinated debt securities, |
in right of payment upon the happening of the dissolution, winding-up, liquidation or reorganization of DTE Energy. The securing of any Indebtedness otherwise constituting Indebtedness ranking junior to the subordinated debt securities will not prevent the Indebtedness from constituting Indebtedness ranking junior to the subordinated debt securities.
Covenants
The indenture contains covenants for the benefit of holders of debt securities of each series. The following covenant will apply to a series of debt securities only to the extent specified in the applicable prospectus supplement.
Limitation on Secured Debt
If this covenant is made applicable to the debt securities of any particular series, we have agreed that we will not create, issue, incur or assume any Secured Debt (as defined below) without the consent of the holders of a majority in principal amount of the outstanding debt securities of all series with respect to which this covenant is made, considered as one class; provided, however, that the foregoing covenant will not prohibit the creation, issuance, incurrence or assumption of any Secured Debt if we either:
| • | secure all debt securities then outstanding with respect to which this covenant is made equally and ratably with the Secured Debt; or |
| • | deliver to the trustee bonds, notes or other evidences of indebtedness secured by the Lien (as defined below) which secures the Secured Debt in an aggregate principal amount equal to the aggregate principal amount of the debt securities then outstanding with respect to which this covenant is made and meeting certain other requirements in the indenture. |
“Debt” means:
| • | indebtedness for borrowed money evidenced by a bond, debenture, note or other written instrument or agreement by which we are obligated to repay such borrowed money; and |
| • | any guaranty by DTE Energy of any such indebtedness of another person. |
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“Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including, without limitation, any conditional sale or other title retention agreement or lease in the nature thereof or any agreement to give any security interest).
“Secured Debt” means Debt created, issued, incurred or assumed by DTE Energy that is secured by a Lien upon any shares of stock of any Significant Subsidiary, as defined in Regulation S-X of the rules and regulations under the Securities Act, whether owned at the date of the initial authentication and delivery of the debt securities of any series or thereafter acquired.
Consolidation, Merger and Sale of Assets
DTE Energy may, without the consent of the holders of the debt securities, consolidate or merge with or into, or convey, transfer or lease our properties and assets as an entirety or substantially as an entirety to, any person or permit any person to consolidate with or merge into us or convey, transfer or lease its properties and assets substantially as an entirety to us, as long as:
| • | if DTE Energy merges into or consolidates with, or transfers its properties and assets as an entirety (or substantially as an entirety) to any person, such person is a corporation, partnership or trust, organized and validly existing under the laws of the United States of America, any state thereof or the District of Columbia; |
| • | any successor person (if not DTE Energy) assumes by supplemental indenture, the due and punctual payment of the principal of, any premium and interest on and any additional amounts with respect to all the debt securities issued thereunder, and the performance of our obligations under the indenture and the debt securities issued thereunder, and provides for conversion or exchange rights in accordance with the provisions of the debt securities of any series that are convertible or exchangeable into common stock or other securities; |
| • | no event of default under the indenture has occurred and is continuing after giving effect to the transaction; |
| • | no event which, after notice or lapse of time or both, would become an event of default under the indenture has occurred and is continuing after giving effect to the transaction; and |
| • | certain other conditions are met. |
Upon any merger or consolidation described above or conveyance or transfer of the properties and assets of DTE Energy as or substantially as an entirety as described above, the successor person will succeed to DTE Energy’s obligations under the indenture and, except in the case of a lease, the predecessor person will be relieved of such obligations.
The indenture does not prevent or restrict any conveyance or other transfer, or lease, of any part of the properties of DTE Energy which does not constitute the entirety, or substantially the entirety, thereof.
Events of Default
Unless otherwise specified in the applicable prospectus supplement, an event of default with respect to any series of debt securities will be any of the following events:
(1) failure to pay interest on the debt securities of that series, or any additional amounts payable with respect thereto, for 30 days after payment is due;
(2) failure to pay principal or any premium on the debt securities of that series, or any additional amounts payable with respect thereto, when due;
(3) failure to pay any sinking fund installment or analogous payment when due;
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(4) failure to perform, or breach of, any other covenant or warranty or obligation of DTE Energy in the indenture for 60 days after we are given written notice by the trustee or we and the trustee are given written notice by the registered owners of at least 25% in principal amount of the debt securities of that series;
(5) default occurs under any bond, note, debenture or other instrument evidencing any indebtedness for money borrowed by DTE Energy (including a default with respect to any other series of debt securities issued under the indenture), or under any mortgage, indenture or other instrument under which there may be issued or by which there may be secured or evidenced any indebtedness for money borrowed by DTE Energy (or the payment of which is guaranteed by DTE Energy), whether such indebtedness or guarantee exists on the date of the indenture or is issued or entered into following the date of the indenture, if:
| • | either: |
| • | such default results from failure to pay any such indebtedness when due and such defaulted payment has not been made, waived or extended within 30 days of such payment default; or |
| • | as a result of such default the maturity of such indebtedness has been accelerated prior to its expressed maturity and such indebtedness shall not have been discharged in full or such acceleration has not been rescinded or annulled within 30 days of such acceleration; and |
| • | the principal amount of such indebtedness, together with the principal amount of any other such indebtedness in default for failure to pay any such indebtedness when due or the maturity of which has been so accelerated, aggregates to at least $40 million; |
(6) certain events of bankruptcy, insolvency, reorganization, receivership or liquidation relating to DTE Energy; or
(7) any other event of default provided with respect to debt securities of that series.
If an event of default with respect to the debt securities of any series occurs and is continuing, either the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series may declare the principal amount of the debt securities of that series to be due and payable immediately. At any time after a declaration of acceleration has been made, but before a judgment or decree for payment of money has been obtained by the trustee, and subject to applicable law and certain other provisions of the indenture, the holders of a majority in aggregate principal amount of the debt securities of that series may, under certain circumstances, rescind and annul the acceleration. If an event of default occurs pertaining to certain events of bankruptcy, insolvency or reorganization specified in the indenture as described in paragraph (6) above, the principal amount and accrued and unpaid interest and any additional amounts payable in respect of the debt securities of that series, or a lesser amount as provided for in the debt securities of that series, will be immediately due and payable without any declaration or other act by the trustee or any holder.
The indenture provides that within 90 days after the occurrence of any default under the indenture with respect to the debt securities of any series, the trustee must transmit to the holders of the debt securities of such series, in the manner set forth in the indenture, notice of the default known to the trustee, unless the default has been cured or waived. However, except in the case of a default in the payment of the principal of (or premium, if any) or interest or any additional amounts or in the payment of any sinking fund installment with respect to, any debt security of such series, the trustee may withhold such notice if and so long as the board of directors, the executive committee or a trust committee of directors or responsible officers of the trustee has in good faith determined that the withholding of such notice is in the interest of the holders of debt securities of such series. In addition, in the case of any event of default described in paragraph (4) above, no such notice to holders will be given until at least 30 days after the occurrence of the event of default.
If an event of default occurs and is continuing with respect to the debt securities of any series, the trustee may in its discretion proceed to protect and enforce its rights and the rights of the holders of debt securities of such series by all appropriate judicial proceedings.
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The indenture further provides that, subject to the duty of the trustee during any default to act with the required standard of care, the trustee will be under no obligation to exercise any of its rights or powers under the indenture at the request or direction of any of the holders of debt securities, unless that requesting holder has offered to the trustee reasonable indemnity. Subject to such provisions for the indemnification of the trustee, and subject to applicable law and certain other provisions of the indenture, the holders of a majority in aggregate principal amount of the outstanding debt securities of a series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities of such series.
The indenture provides that no holder of any debt security of a series will have any right to institute any proceeding with respect to the indenture for the appointment of a receiver or for any other remedy thereunder unless:
| • | that holder has previously given the trustee written notice of a continuing event of default; |
| • | the holders of 25% in aggregate principal amount of the outstanding debt securities of that series have made written request to the trustee to institute proceedings in respect of that event of default and have offered the trustee reasonable indemnity against costs and liabilities incurred in complying with such request; and |
| • | for 60 days after receipt of such notice, the trustee has failed to institute any such proceeding and no direction inconsistent with such request has been given to the trustee during such 60-day period by the holders of a majority in aggregate principal amount of outstanding debt securities of that series. |
Furthermore, no holder will be entitled to institute any such action if and to the extent that such action would disturb or prejudice the rights of other holders.
However, each holder has an absolute and unconditional right to receive payment when due and to bring a suit to enforce that right.
Under the indenture, we are required to furnish to the trustee annually a statement as to our performance of certain of our obligations under the indenture and as to any default in such performance. We are also required to deliver to the trustee, within five days after occurrence thereof, written notice of any event that after notice or lapse of time or both would constitute an event of default.
Interest Rates and Discounts
The debt securities will earn interest at a fixed or floating rate or rates for the period or periods of time specified in the applicable prospectus supplement. Unless otherwise specified in the applicable prospectus supplement, the debt securities will bear interest on the basis of a 360-day year consisting of twelve 30-day months.
We may sell debt securities at a substantial discount below their stated principal amount, bearing no interest or interest at a rate that at the time of issuance is below market rates. Material U.S. federal income tax consequences and special considerations that apply to any series will be described in the applicable prospectus supplement.
Exchange, Registration and Transfer
Registered securities of any series that are not global securities will be exchangeable for other registered securities of the same series and of like aggregate principal amount and tenor in different authorized denominations. In addition, if debt securities of any series are issuable as both registered securities and bearer securities, the holder may choose, upon written request, and subject to the terms of the indenture, to exchange bearer securities and the appropriate related coupons of that series into registered securities of the same series of
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any authorized denominations and of like aggregate principal amount and tenor. Bearer securities with attached coupons surrendered in exchange for registered securities between a regular record date or a special record date and the relevant date for interest payment shall be surrendered without the coupon relating to the interest payment date. Interest will not be payable with respect to the registered security issued in exchange for that bearer security. That interest will be payable only to the holder of the coupon when due in accordance with the terms of the indenture. Bearer securities will not be issued in exchange for registered securities.
Holders may present registered securities for registration of transfer, together with a duly executed form of transfer, at the office of the security registrar or at the office of any transfer agent designated by us for that purpose with respect to any series of debt securities and referred to in the applicable prospectus supplement. This may be done without service charge but upon payment of any taxes and other governmental charges as described in the indenture. The security registrar or the transfer agent will effect the transfer or exchange upon being satisfied with the documents of title and identity of the person making the request. We have appointed the trustee as security registrar for the indenture. If a prospectus supplement refers to any transfer agents initially designated by us with respect to any series of debt securities in addition to the security registrar, we may at any time rescind the designation of any of those transfer agents or approve a change in the location through which any of those transfer agents acts. However, if debt securities of a series are issuable solely as registered securities, we will be required to maintain a transfer agent in each place of payment for that series, and if debt securities of a series are issuable as bearer securities, we will be required to maintain a transfer agent in a place of payment for that series located outside the United States in addition to the security registrar. We may at any time designate additional transfer agents with respect to any series of debt securities.
In the event of any redemption, we will not be required to:
| • | issue, register the transfer of or exchange debt securities of any series during a period beginning at the opening of business 15 days before any selection of debt securities of that series to be redeemed and ending at the close of business on: |
| • | the day of the mailing of the relevant notice of redemption if the debt securities are issuable only as registered securities; or |
| • | the day of the first publication of the notice of redemption if the debt securities are issuable as bearer securities, or, if the debt securities are also issuable as registered securities and there is no publication, the mailing of the notice of redemption; |
| • | register the transfer of or exchange any registered security, or portion thereof, selected for redemption, except the unredeemed portion of any registered security being redeemed in part; |
| • | exchange any bearer security so selected for redemption, except to exchange such bearer security for a registered security of that series and like tenor that is simultaneously surrendered for redemption; or |
| • | issue, register the transfer of or exchange any debt security that has been surrendered for repayment at the option of the holder, except the portion, if any, of such debt security not to be so repaid. |
Payment and Paying Agents
Unless we specify otherwise in the applicable prospectus supplement, payment of principal of, and any premium and interest on, bearer securities will be payable in accordance with any applicable laws and regulations, at the offices of those paying agents outside the United States that we may designate at various times. We will make interest payments on bearer securities and the attached coupons on any interest payment date only against surrender of the coupon relating to that interest payment date. No payment with respect to any bearer security will be made at any of our offices or agencies in the United States by check mailed to any U.S. address or by transfer to an account maintained with a bank located in the United States. If, however, but only if, payment in U.S. dollars of the full amount of principal of, and any premium and interest on, bearer securities denominated and payable in U.S. dollars at all offices or agencies outside the United States is illegal or
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effectively precluded by exchange controls or other similar restrictions, then those payments will be made at the office of our paying agent in the Borough of Manhattan, The City of New York.
Unless we specify otherwise in the applicable prospectus supplement, payment of principal of, and any premium and interest on, registered securities will be made at the office of the paying agent or paying agents that we designate at various times. However, at our option, we may make interest payments by check mailed to the address, as it appears in the security register, of the person entitled to the payments. Unless we specify otherwise in the applicable prospectus supplement, we will make payment of any installment of interest on registered securities to the person in whose name that registered security is registered at the close of business on the regular record date for such interest.
Unless we specify otherwise in the applicable prospectus supplement, the corporate trust office of the trustee in the Borough of Manhattan, The City of New York, will be designated:
| • | as our sole paying agent for payments with respect to debt securities that are issuable solely as registered securities; and |
| • | as our paying agent in the Borough of Manhattan, The City of New York, for payments with respect to debt securities, subject to the limitation described above in the case of bearer securities, that are issuable solely as bearer securities or as both registered securities and bearer securities. |
We will name any paying agents outside the United States and any other paying agents in the United States initially designated by us for the debt securities in the applicable prospectus supplement. We may at any time designate additional paying agents or rescind the designation of any paying agent or approve a change in the office through which any paying agent acts. However, if debt securities of a series are issuable solely as registered securities, we will be required to maintain a paying agent in each place of payment for that series. If debt securities of a series are issuable as bearer securities, we will be required to maintain:
| • | a paying agent in the Borough of Manhattan, The City of New York, for payments with respect to any registered securities of the series and for payments with respect to bearer securities of the series in the circumstance described above, but not otherwise; and |
| • | a paying agent in a place of payment located outside the United States where debt securities of that series and any attached coupons may be presented and surrendered for payment. |
However, if the debt securities of that series are listed on a stock exchange located outside the United States, and if the stock exchange requires it, we will maintain a paying agent in any required city located outside the United States for those debt securities.
All monies we pay to a paying agent for the payment of principal of, and any premium or interest on, any debt security or coupon that remains unclaimed at the end of two years after becoming due and payable will be repaid to us. After that time, the holder of the debt security or coupon may look only to us for payments out of those repaid amounts.
Global Securities
The debt securities of a series may be issued in whole or in part in the form of one or more global certificates that we will deposit with a depository identified in the applicable prospectus supplement. Global securities may be issued in either registered or bearer form and in either temporary or permanent form. Unless and until it is exchanged in whole or in part for the individual debt securities it represents, a global security may not be transferred except as a whole:
| • | by the applicable depository to a nominee of the depository; |
| • | by any nominee to the depository itself or another nominee; or |
| • | by the depository or any nominee to a successor depository or any nominee of the successor. |
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To the extent not described below and under the heading “Book-Entry Securities,” we will describe the terms of the depository arrangement with respect to a series of debt securities in the applicable prospectus supplement. We anticipate that the following provisions will generally apply to depository arrangements.
As long as the depository for a global security, or its nominee, is the registered owner of that global security, the depository or nominee will be considered the sole owner or holder of the debt securities represented by the global security for all purposes under the indenture. Except as provided under “Book-Entry Securities” or in any applicable prospectus supplement, owners of beneficial interests in a global security:
| • | will not be entitled to have any of the underlying debt securities registered in their names; |
| • | will not receive or be entitled to receive physical delivery of any of the underlying debt securities in definitive form; |
| • | will not be considered the owners or holders under the indenture relating to those debt securities; and |
| • | will not be able to transfer or exchange the global debt securities, except in the limited circumstances as described in this prospectus or any supplement. |
The laws of some states require that certain purchasers of securities take physical delivery of securities in definitive form. These laws may impair the owner’s ability to transfer beneficial interests in a global security.
Payments of principal of, and any premium and interest on, individual debt securities represented by a global security registered in the name of a depository or its nominee will be made to the depository or its nominee as the registered owner of the global security representing such debt securities. Neither we, the trustee, any paying agent nor the registrar for the debt securities will be responsible for any aspect of the records relating to or payments made by the depository or any participants on account of beneficial interests of the global security.
For a description of the depository arrangements for global securities held by The Depository Trust Company, see “Book-Entry Securities.”
Discharge, Defeasance and Covenant Defeasance
We may discharge certain obligations to holders of any series of debt securities that have not already been delivered to the trustee for cancellation and that:
| • | have become due and payable; |
| • | will become due and payable within one year; or |
| • | are scheduled for redemption within one year. |
To discharge the obligations with respect to a series of debt securities, we must deposit with the trustee, in trust, an amount of funds in U.S. dollars or in the foreign currency in which those debt securities are payable. The deposited amount must be sufficient to pay the entire amount of principal of, and any premium, interest and additional amounts on, those debt securities to the date of the deposit if those debt securities have become due and payable or to the maturity or redemption date of the debt securities, as the case may be; provided, however, we have paid all other sums payable under the indenture with respect to the debt securities, and certain other conditions are met.
Unless we specify otherwise in the applicable prospectus supplement, we may elect:
| • | to defease and be discharged from any and all obligations with respect to those debt securities, which we refer to as “defeasance;” or |
| • | with respect to any debt securities, to be released from certain covenant obligations as described in the related prospectus supplement, as may be provided for under Section 301 of the indenture, which we refer to as “covenant defeasance.” |
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In the case of defeasance we will still retain some obligations in respect of the debt securities, including our obligations:
| • | to pay additional amounts, if any, upon the occurrence of certain events of taxation, assessment or governmental charge with respect to payments on the debt securities; |
| • | to register the transfer or exchange of the debt securities; |
| • | to replace temporary or mutilated, destroyed, lost or stolen debt securities; and |
| • | to maintain an office or agency with respect to the debt securities and to hold monies for payment in trust. |
After a covenant defeasance, any omission to comply with the obligations or covenants that have been defeased shall not constitute a default or an event of default with respect to the debt securities.
To elect either defeasance or covenant defeasance we must deposit with the trustee, in trust, an amount, in U.S. dollars or in the foreign currency in which the relevant debt securities are payable at stated maturity, or in government obligations, as defined below, or both, applicable to such debt securities. The deposit will provide through the scheduled payment of principal and interest in accordance with their terms, money in an amount sufficient to pay the principal of and any premium and interest on (and, to the extent that (1) the debt securities of such series provide for the payment of additional amounts and (2) we may reasonably determine the amount of any such additional amounts at the time of deposit (in the exercise of our sole discretion), any such additional amounts with respect to) such debt securities, and any mandatory sinking fund or analogous payments thereon, on their scheduled due dates.
In addition, we can only elect defeasance or covenant defeasance if, among other things:
| • | the defeasance or covenant defeasance does not result in a breach or violation of, or constitute a default under, the indenture or any other material agreement or instrument to which we are a party or by which we are bound; |
| • | no event of default or event that with notice or lapse of time or both would become an event of default with respect to the debt securities to be defeased will have occurred and be continuing on the date of the deposit of funds with the trustee and, with respect to defeasance only, at any time during the period ending on the 123rd day after the date of the deposit of funds with the trustee; and |
| • | we have delivered to the trustee an opinion of counsel to the effect that the holders of the debt securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the defeasance or covenant defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if the defeasance had not occurred, and the opinion of counsel, in the case of defeasance, must refer to and be based upon a letter ruling of the Internal Revenue Service received by us, a Revenue Ruling published by the Internal Revenue Service or a change in applicable U.S. federal income tax law occurring after the date of the indenture. |
The indenture deems a foreign currency to be any currency, currency unit or composite currency including, without limitation, the euro, issued by the government of one or more countries other than the United States or by any recognized confederation or association of governments.
The indenture defines government obligations as securities that are not callable or redeemable at the option of the issuer or issuers and are:
| • | direct obligations of the United States or the government or governments in the confederation that issued the foreign currency in which the debt securities of a particular series are payable, for the payment of which its full faith and credit is pledged; or |
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| • | obligations of a person or entity controlled or supervised by and acting as an agency or instrumentality of the United States or the government or governments that issued the foreign currency in which the debt securities of a particular series are payable, the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States or that other government or governments. |
Government obligations also include a depositary receipt issued by a bank or trust company as custodian with respect to any government obligation described above or a specific payment of interest on or principal of or any other amount with respect to any government obligation held by that custodian for the account of the holder of such depositary receipt, as long as, except as required by law, that custodian is not authorized to make any deduction from the amount payable to the holder of the depositary receipt from any amount received by the custodian with respect to the government obligation or the specific payment of interest on or principal of or any other amount with respect to the government obligation evidenced by the depositary receipt.
Unless otherwise specified in the applicable prospectus supplement, if, after we have deposited funds and/or government obligations to effect defeasance or covenant defeasance with respect to debt securities of any series, either:
| • | the holder of a debt security of that series is entitled to, and does, elect to receive payment in a currency other than that in which such deposit has been made in respect of that debt security; or |
| • | a conversion event, as defined below, occurs in respect of the foreign currency in which the deposit has been made, |
the indebtedness represented by that debt security shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of, and any premium and interest on, and additional amounts, if any, with respect to, that debt security as that debt security becomes due out of the proceeds yielded by converting the amount or other properties so deposited in respect of that debt security into the currency in which that debt security becomes payable as a result of the election or conversion event based on:
| • | in the case of payments made pursuant to the first of the two items in the list above, the applicable market exchange rate for the currency in effect on the second business day prior to the date of the payment; or |
| • | with respect to a conversion event, the applicable market exchange rate for such foreign currency in effect, as nearly as feasible, at the time of the conversion event. |
The indenture defines a “conversion event” as the cessation of use of:
| • | a foreign currency both by the government of the country or the confederation that issued such foreign currency and for the settlement of transactions by a central bank or other public institutions of or within the international banking community; or |
| • | any currency unit or composite currency for the purposes for which it was established. |
Unless otherwise provided in the applicable prospectus supplement, all payments of principal of, and any premium and interest on, any debt security that are payable in a foreign currency that ceases to be used by the government or confederation of issuance shall be made in U.S. dollars.
If we effect a covenant defeasance with respect to any debt securities and the debt securities are declared due and payable because of the occurrence of any event of default other than an event of default with respect to which there has been covenant defeasance, the amount in the foreign currency in which the debt securities are payable, and government obligations on deposit with the trustee, will be sufficient to pay amounts due on the debt securities at the time of the stated maturity but may not be sufficient to pay amounts due on the debt securities at the time of the acceleration resulting from the event of default. However, we would remain liable for payment of the amounts due at the time of acceleration.
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The applicable prospectus supplement may further describe the provisions, if any, permitting defeasance or covenant defeasance, including any modifications to the provisions described above, with respect to the debt securities of or within a particular series.
Modification and Waiver
DTE Energy and the trustee may generally modify certain provisions of the indenture with the consent of the holders of not less than a majority in aggregate principal amount of the debt securities of each series affected by the modification, except that no such modification or amendment may, without the consent of the holder of each debt security affected thereby:
| • | change the stated maturity of the principal of, or any installment of principal of, or any premium or interest on, or any additional amounts with respect to, any debt security issued under the indenture; |
| • | reduce the principal amount of, or premium or interest on, or any additional amounts with respect to, any debt security issued under the indenture; |
| • | change the place of payment or the coin or currency in which any debt security issued under that indenture or any premium or any interest on that debt security or any additional amounts with respect to that debt security is payable; |
| • | reduce the percentage in principal amount of the outstanding debt securities, the consent of whose holders is required under the indenture in order to take certain actions; |
| • | change any of our obligations to maintain an office or agency in the places and for the purposes required by the indenture; |
| • | if the debt securities are convertible or exchangeable, modify the conversion or exchange provision in a manner adverse to holders of that debt security; |
| • | in the case of a subordinated debt security, modify any of the subordination provisions in a manner adverse to holders of that debt security; |
| • | impair the right to institute suit for the enforcement of any payment on or after the stated maturity of any debt securities issued under that indenture or, in the case of redemption, exchange or conversion, if applicable, on or after the redemption, exchange or conversion date or, in the case of repayment at the option of any holder, if applicable, on or after the date for repayment; or |
| • | modify any of the above provisions or certain provisions regarding the waiver of past defaults or the waiver of certain covenants, with limited exceptions. |
In addition, we and the trustee may, without the consent of any holders, modify provisions of the indenture for certain purposes, including, among other things:
| • | evidencing the succession of another person to DTE Energy and the assumption by any such successor of the covenants of DTE Energy in the indenture and in the debt securities; |
| • | adding to the covenants of DTE Energy for the benefit of the holders of debt securities (and if such covenants are to be for the benefit of less than all series of debt securities, stating that such covenants are expressly being included solely for the benefit of such series) or surrendering any right or power herein conferred upon DTE Energy with respect to the debt securities; |
| • | adding any additional events of default with respect to the debt securities (and, if such event of default is applicable to less than all series of debt securities, specifying the series to which such event of default is applicable); |
| • | adding to or changing any provisions of the indenture to provide that bearer debt securities may be registrable, changing or eliminating any restrictions on the payment of principal of (or premium, if any) |
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| or interest on or any additional amounts with respect to bearer debt securities, permitting bearer debt securities to be issued in exchange for registered debt securities, permitting bearer debt securities to be issued in exchange for bearer debt securities of other authorized denominations or facilitating the issuance of debt securities in uncertificated form provided that any such action shall not adversely affect the interests of the holders of the debt securities in any material respect; |
| • | establishing the form or terms of debt securities of any series; |
| • | evidencing and providing for the acceptance of appointment of a successor trustee and adding to or changing any of the provisions of the indenture to facilitate the administration of the trusts; |
| • | curing any ambiguity, correcting or supplementing any provision in the indenture that may be defective or inconsistent with any other provision therein, or making or amending any other provisions with respect to matters or questions arising under the indenture which shall not adversely affect the interests of the holders of debt securities of any series in any material respect; |
| • | modifying, eliminating or adding to the provisions of the indenture to maintain the qualification of the indenture under the Trust Indenture Act as the same may be amended from time to time; |
| • | adding to, deleting from or revising the conditions, limitations and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of debt securities, as therein set forth; |
| • | modifying, eliminating or adding to the provisions of any security to allow for such security to be held in certificated form; |
| • | securing the debt securities; |
| • | making provisions with respect to conversion or exchange rights of holders of securities of any series; |
| • | amending or supplementing any provision contained therein or in any supplemental indenture, provided that no such amendment or supplement will adversely affect the interests of the holders of any debt securities then outstanding in any material respect; or |
| • | modifying, deleting or adding to any of the provisions of the indenture other than as contemplated above. |
The holders of at least 662/3% in aggregate principal amount of debt securities of any series issued under the indenture may, on behalf of the holders of all debt securities of that series, waive our compliance with certain restrictive provisions of the indenture. The holders of not less than a majority in aggregate principal amount of debt securities of any series issued under the indenture may, on behalf of all holders of debt securities of that series, waive any past default and its consequences under the indenture with respect to the debt securities of that series, except:
| • | payment default with respect to debt securities of that series; or |
| • | a default of a covenant or provision of the indenture that cannot be modified or amended without the consent of the holder of each debt security of that series. |
Resignation and Removal of the Trustee; Deemed Resignation
The trustee may resign at any time with respect to the debt securities of one or more series by giving written notice thereof to us.
The trustee may also be removed with respect to the debt securities of any series by act of the holders of a majority in principal amount of the then outstanding debt securities of such series.
No resignation or removal of such trustee and no appointment of a successor trustee will become effective until the acceptance of appointment by a successor trustee in accordance with the requirements of the indenture.
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Under certain circumstances, we may appoint a successor trustee and if the successor accepts, the retiring trustee will be deemed to have resigned.
Governing Law
The indenture is governed by, and will be construed in accordance with, the laws of the State of New York.
Concerning the Trustee
The Bank of New York Mellon Trust Company, N.A., is the successor trustee under the indenture. In addition to acting as trustee under the indenture and in certain other capacities as described in this prospectus, the trustee and its affiliates may act as trustee under various other indentures, trusts and guarantees of DTE Energy and its affiliates and may act as a lender and provide other banking, trust and investment services for DTE Energy and its affiliates in the ordinary course of business.
The Trust Indenture Act contains limitations on the rights of the trustee, should it become a creditor of DTE Energy, to obtain payment of claims in certain cases or to realize on certain property received by it in respect of any such claims, as security or otherwise. The trustee is permitted to engage in other transactions with DTE Energy and its subsidiaries from time to time, provided that if the trustee acquires any conflicting interest it must eliminate such conflict upon the occurrence of an event of default under the indenture, or else resign.
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
We may issue stock purchase contracts, including contracts that obligate holders to purchase from us, and obligate us to sell to these holders, a specified number of shares of common stock or preferred stock at a future date or dates. The consideration per share of common stock or preferred stock may be fixed at the time the stock purchase contracts are issued or may be determined by reference to a specific formula set forth in the stock purchase contracts. The stock purchase contracts may be issued separately or as a part of stock purchase units consisting of a stock purchase contract and either our debt securities or debt securities of third parties including, but not limited to, U.S. Treasury securities, that would secure the holders’ obligations to purchase the common stock or preferred stock under the stock purchase contracts. The stock purchase contracts may require us to make periodic payments to the holders of some or all of the stock purchase units or vice versa, and such payments may be unsecured or prefunded on some basis. The stock purchase contracts may require holders to secure their obligations under these stock purchase contracts in a specified manner.
The applicable prospectus supplement or other offering materials will describe the terms of the stock purchase contracts or stock purchase units and will contain a discussion of the material federal income tax considerations applicable to the stock purchase contracts and stock purchase units. The description in the applicable prospectus supplement or other offering materials will not necessarily be complete, and reference will be made for additional information to the purchase contract agreement or unit purchase agreement, as applicable, that we will enter into at the time of issue, and, if applicable, collateral or depositary arrangements, relating to the stock purchase contracts or stock purchase units.
Unless we otherwise specify in the applicable prospectus supplement, the securities, other than our common stock, will be represented by one or more global securities. Each global security will be deposited with, or on behalf of, DTC and registered in the name of a nominee of DTC.
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Portions of the following information concerning DTC and DTC’s book-entry only system have been obtained from sources, including DTC, that we believe to be reliable. We make no representation as to the accuracy of such information.
DTC is a limited-purpose trust company organized under the New York Banking Law, a “banking organization” within the meaning of the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform Commercial Code, and a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act. DTC holds and provides asset servicing for U.S. and non-U.S. equity issues, corporate and municipal debt issues and money market instruments that DTC’s participants (“Direct Participants”) deposit with DTC. DTC also facilitates the post-trade settlement among Direct Participants of sales and other securities transactions in deposited securities, through electronic computerized book-entry transfers and pledges between Direct Participants’ accounts. This eliminates the need for physical movement of securities certificates. Direct Participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations. DTC is a wholly owned subsidiary of The Depository Trust & Clearing Corporation (“DTCC”). DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access to the DTC system is also available to others such as both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, and clearing corporations that clear through or maintain a custodial relationship with a Direct Participant, either directly or indirectly (“Indirect Participants”). The DTC Rules applicable to its Participants are on file with the SEC.
Purchases of global securities under the DTC system must be made by or through Direct Participants, which will receive a credit for the global securities on DTC’s records. The ownership interest of each actual purchaser of each security (“Beneficial Owner”) is in turn to be recorded on the Direct and Indirect Participants’ records. Beneficial Owners will not receive written confirmation from DTC of their purchase, but Beneficial Owners are expected to receive written confirmations providing details of the transaction, as well as periodic statements of their holdings, from the Direct or Indirect Participant through which the Beneficial Owner entered into the transaction. Transfers of ownership interests in the securities are to be accomplished by entries made on the books of Direct and Indirect Participants acting on behalf of Beneficial Owners. Beneficial Owners will not receive certificates representing their ownership interests in the global securities except in the event that use of the book-entry system for the global securities is discontinued.
To facilitate subsequent transfers, all global securities deposited by Direct Participants with DTC will be registered in the name of DTC’s partnership nominee, Cede & Co. or such other name as may be requested by an authorized representative of DTC. The deposit of global securities with DTC and their registration in the name of Cede & Co. or such other nominee will effect no change in beneficial ownership. DTC will have no knowledge of the actual Beneficial Owners of the global securities; DTC’s records will reflect only the identity of the Direct Participants to whose accounts such securities are credited, which may or may not be the Beneficial Owners. The Direct and Indirect Participants will remain responsible for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct Participants, by Direct Participants to Indirect Participants, and by Direct Participants and Indirect Participants to Beneficial Owners will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time. Beneficial Owners may wish to take certain steps to augment transmission to them of notices of significant events with respect to the global securities, such as redemptions, tenders, defaults and proposed amendments to the Indenture. Beneficial Owners may wish to ascertain that the nominee holding the global securities for their benefit has agreed to obtain and transmit notices to the Beneficial Owners. In the alternative, Beneficial Owners may wish to provide their names and addresses to the registrar and request that copies of notices be provided directly to them.
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Any redemption notices will be sent to DTC. If less than all of a series of global securities are being redeemed, DTC’s practice is to determine by lot the amount of the interest of each Direct Participant to be redeemed.
Neither DTC nor Cede & Co. (nor any other DTC nominee) will consent or vote with respect to securities unless authorized by a Direct Participant in accordance with DTC’s procedures. Under its usual procedures, DTC mails an Omnibus Proxy to us as soon as possible after the record date. The Omnibus Proxy assigns Cede & Co.’s consenting or voting rights to those Direct Participants to whose accounts the securities are credited on the record date (identified in a listing attached to the Omnibus Proxy).
Principal and interest payments, distributions and dividend payments and redemption proceeds, if any, on the global securities will be made to Cede & Co. or such other nominee as may be requested by an authorized representative of DTC. DTC’s practice is to credit Direct Participants’ accounts upon DTC’s receipt of funds and corresponding detail information from the trustee or agent on the payment date in accordance with their respective holdings shown on DTC’s records. Payments by Direct and Indirect Participants to Beneficial Owners will be governed by standing instructions and customary practices, as is the case with securities held for the accounts of customers in bearer form or registered in “street-name,” and will be the responsibility of such Participants and not of DTC, the trustee or agent for such securities or us, subject to any statutory or regulatory requirements as may be in effect from time to time. Payment of principal, premium, if any, interest, distributions and dividend payments and redemption proceeds, if any, to Cede & Co. (or such other nominee as may be requested by an authorized representative of DTC) is the responsibility of the appropriate trustee or agent and us, disbursement of such payments to Direct Participants is the responsibility of DTC, and disbursement of such payments to the Beneficial Owners is the responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as securities depository with respect to the securities at any time by giving reasonable notice to us or the trustee. Under such circumstances, in the event that a successor securities depository is not obtained, certificates representing the securities are required to be printed and delivered.
We may decide to discontinue use of the system of book-entry-only transfers through DTC (or a successor securities depository), subject to the procedures of DTC. In that event, certificates representing the securities will be printed and delivered to DTC.
The underwriters, dealers or agents of any of the securities may be direct participants of DTC.
DTE Energy may sell the securities through agents, underwriters or dealers, or directly to one or more purchasers without using underwriters or agents.
DTE Energy may designate one or more agents to sell the securities. Unless otherwise stated in a prospectus supplement, the agents will agree to use their reasonable efforts to solicit purchases for the period of their appointment or to sell securities on a continuing basis.
If DTE Energy uses underwriters for a sale of securities, the underwriters will acquire the securities for their own account. The underwriters may resell the securities in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. The underwriters may sell the securities directly or through underwriting syndicates represented by managing underwriters. Unless otherwise stated in a prospectus supplement, the obligations of the underwriters to purchase the securities will be subject to the conditions set forth in the applicable underwriting agreement. The underwriters will be obligated to purchase all the securities offered if any of those securities are purchased. If DTE Energy uses a dealer in the
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sale, it will sell the securities to the dealer as principal. The dealer may then resell those securities at varying prices determined at the time of resale. Any initial public offering price and any discounts or concessions allowed or re-allowed or paid to dealers will be described in the applicable prospectus supplement and may be changed from time to time.
Underwriters, dealers and agents that participate in the distribution of the securities may be underwriters as defined in the Securities Act and any discounts or commissions they receive from DTE Energy and any profit on their resale of the securities may be treated as underwriting discounts and commissions under the Securities Act. The applicable prospectus supplement will identify any underwriters, dealers or agents and will describe their compensation. DTE Energy may have agreements with the underwriters, dealers and agents to indemnify them against certain civil liabilities, including liabilities under the Securities Act. Underwriters, dealers and agents may engage in transactions with or perform services for us or our subsidiaries in the ordinary course of their businesses.
Trading Markets and Listing of Securities
Unless otherwise specified in the applicable prospectus supplement, each class or series of securities will be a new issue with no established trading market, other than the common stock, which is listed on the New York Stock Exchange. DTE Energy may elect to list any other class or series of securities on any exchange but is not obligated to do so. It is possible that one or more underwriters may make a market in a class or series of securities, but the underwriters will not be obligated to do so and may discontinue any market making at any time without notice DTE Energy cannot give any assurance as to the liquidity of the trading market for any of the securities.
Stabilization Activities
Any underwriter may engage in over-allotment, stabilizing transactions, syndicate-covering transactions and penalty bids under the Exchange Act. Over-allotment involves sales in excess of the offering size, which create a syndicate short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. Syndicate-covering transactions involve purchases of the securities in the open market after the distribution is completed to cover syndicate short positions. Penalty bids permit the underwriters to reclaim a selling concession from a syndicate member when the securities originally sold by the syndicate member are purchased in a syndicate covering transaction to cover syndicate short positions. These stabilizing activities may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time.
The validity of the securities and certain other legal matters will be passed upon for DTE Energy by JoAnn Chávez, Senior Vice President and Chief Legal Officer. Ms. Chávez beneficially owns shares of DTE Energy common stock. Except as otherwise set forth in a prospectus supplement, certain legal matters relating to the securities will be passed upon for any underwriters, dealers or agents by Bracewell LLP, New York, New York.
Bracewell LLP has represented, and may in the future continue to represent, us and certain of our affiliates in connection with matters unrelated to the offering of securities described in this prospectus.
The consolidated financial statements and management’s assessment of the effectiveness of internal control over financial reporting (which is included in Management’s report on internal control over financial reporting)
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incorporated in this prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2021 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
Available Information
We file annual, quarterly and special reports, and other information with the Securities and Exchange Commission. Our SEC filings are available to the public over the Internet at the SEC’s web site at http://www.sec.gov.
We maintain a web site at http://www.dteenergy.com, that contains information about us. The information on our web site is not incorporated by reference into this prospectus and you should not consider it part of this prospectus.
Incorporation by Reference
The SEC allows us to “incorporate by reference” the information we file with them, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is an important part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (other than information in such documents that is deemed not to be filed):
| • | Annual Report on Form 10-K for the year ended December 31, 2021 (including information specifically incorporated by reference into DTE Energy’s Form 10-K from DTE Energy’s definitive Proxy Statement for its 2022 annual meeting of shareholders filed on March 17, 2022; |
| • | Current Reports on Form 8-K filed February 8, February 22, and March 10, 2022; and |
| • | Description of DTE Energy common stock on Form 8-B, filed on January 2, 1996. |
Each of these documents is available from the SEC’s web site described above. We will provide without charge to each person, including any beneficial owner, to whom a copy of this prospectus is delivered, on the written or oral request of that person, a copy of any or all of the documents incorporated in this prospectus or in any related prospectus supplement by reference, excluding the exhibits to those documents unless the exhibits are specifically incorporated by reference therein. You may make such a request by writing or telephoning DTE Energy Investor Relations at:
DTE Energy Company
Attention: Investor Relations, 1150 WCB
One Energy Plaza
Detroit, Michigan 48226-1279
(313) 235-8030
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Prospectus
DTE Electric Company
Debt Securities
By this prospectus, DTE Electric Company may offer from time to time:
| • | senior secured debt securities, including general and refunding mortgage bonds and other senior debt securities secured by mortgage bonds; and/or |
| • | unsecured debt securities, which may be senior or subordinated. |
We will provide specific terms of the securities, including the offering prices, in supplements to this prospectus. The supplements may also add, update or change information contained in this prospectus. You should read this prospectus and any supplements carefully before you invest. This prospectus may not be used to consummate sales of any of these securities unless it is accompanied by a prospectus supplement that describes those securities.
We may offer these securities directly or through underwriters, agents or dealers. The supplements to this prospectus will describe the terms of any particular plan of distribution, including any underwriting arrangements. See the “Plan of Distribution” section beginning on page 23 of this prospectus for more information.
See “Risk Factors” beginning on page 3 regarding risks associated with an investment in these securities.
The mailing address of DTE Electric Company’s principal executive offices is One Energy Plaza, Detroit, Michigan 48226-1279, and its telephone number is (313) 235-4000.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
This prospectus is dated April 8, 2022
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You should rely only on the information contained or incorporated by reference in this prospectus and the applicable prospectus supplement or supplements. We have not authorized any person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. You should not assume that the information contained or incorporated in this prospectus is accurate as of any time after the date of this prospectus, or if later, the date of an incorporated document, because our business, financial condition, results of operations and prospects may have changed since such dates.
We are not making an offer to sell these securities in any jurisdiction that prohibits the offer or sale of these securities.
In this prospectus, references to “DTE Electric,” the “Company,” “we,” “us” and “our” refer to DTE Electric Company, unless the context indicates that the references are to DTE Electric Company and its consolidated subsidiaries.
This prospectus is part of a registration statement that DTE Electric filed with the Securities and Exchange Commission (“SEC”) utilizing a “shelf” registration process. Under this shelf registration process, DTE Electric may sell any combination of the securities described in this prospectus in one or more offerings.
This prospectus provides you with a general description of the securities DTE Electric may offer. Each time DTE Electric sells securities, DTE Electric will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read this prospectus and any prospectus supplement together with the additional information described below under the heading “Where You Can Find More Information.”
For more detailed information about the securities, you can read the exhibits to the registration statement. Those exhibits have been either filed with the registration statement or incorporated by reference to earlier SEC filings listed in the registration statement.
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An investment in the securities involves risks. You should carefully consider the “Risk Factors” set forth in our most recent Annual Report on Form 10-K and Quarterly Reports on Form 10-Q, together with the other information in this prospectus, any applicable prospectus supplement and the documents that are incorporated by reference in this prospectus, about risks concerning the securities, before buying any securities. See also “Cautionary Statements Regarding Forward-Looking Statements” below.
CAUTIONARY STATEMENTS REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference in this prospectus contain “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933 (the “Securities Act”) and Section 21E of the Securities Exchange Act of 1934 (the “Exchange Act”), with respect to the financial condition, results of operations and business of DTE Electric. You can find many of these statements by looking for words such as “anticipate,” “believe,” “expect,” “projected,” “aspiration,” and “goals” or similar expressions in this prospectus or in documents incorporated herein that signify forward-looking statements. Forward-looking statements are not guarantees of future results and conditions, but rather are subject to numerous assumptions, risks, and uncertainties that may cause actual future results to be materially different from those contemplated, projected, estimated, or budgeted. Many factors may impact forward-looking statements including, but not limited to, the following:
| • | impact of regulation by the Environmental Protection Agency, the Michigan Department of Environment, Great Lakes, and Energy, the Federal Energy Regulatory Commission, the Michigan Public Service Commission, and the Nuclear Regulatory Commission, as well as other applicable governmental proceedings and regulations, including any associated impact on rate structures; |
| • | the amount and timing of cost recovery allowed as a result of regulatory proceedings, related appeals, or new legislation, including legislative amendments and retail access programs; |
| • | economic conditions and population changes in our geographic area resulting in changes in demand, customer conservation, and thefts of electricity; |
| • | the operational failure of electric distribution systems or infrastructure; |
| • | the risk of a major safety incident; |
| • | environmental issues, laws, regulations, and the increasing costs of remediation and compliance, including actual and potential new federal and state requirements; |
| • | the cost of protecting assets and customer data against, or damage due to, cyber incidents and terrorism; |
| • | health, safety, financial, environmental, and regulatory risks associated with ownership and operation of nuclear facilities; |
| • | changes in the cost and availability of coal and other raw materials, purchased power, and natural gas; |
| • | advances in technology that produce power, store power or reduce power consumption; |
| • | changes in the financial condition of significant customers and strategic partners; |
| • | the potential for losses on investments, including nuclear decommissioning and benefit plan assets and the related increases in future expense and contributions; |
| • | access to capital markets and the results of other financing efforts which can be affected by credit agency ratings; |
| • | instability in capital markets which could impact availability of short and long-term financing; |
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| • | impacts of inflation and the timing and extent of changes in interest rates; |
| • | the level of borrowings; |
| • | the potential for increased costs or delays in completion of significant capital projects; |
| • | changes in, and application of, federal, state, and local tax laws and their interpretations, including the Internal Revenue Code, regulations, rulings, court proceedings, and audits; |
| • | the effects of weather and other natural phenomena, including climate change, on operations and sales to customers, and purchases from suppliers; |
| • | unplanned outages; |
| • | employee relations and the impact of collective bargaining agreements; |
| • | the availability, cost, coverage, and terms of insurance and stability of insurance providers; |
| • | cost reduction efforts and the maximization of plant and distribution system performance; |
| • | the effects of competition; |
| • | changes in and application of accounting standards and financial reporting regulations; |
| • | changes in federal or state laws and their interpretation with respect to regulation, energy policy, and other business issues; |
| • | contract disputes, binding arbitration, litigation, and related appeals; |
| • | our ability to achieve net zero emissions goals; and |
| • | the risks discussed in our public filings with the Securities and Exchange Commission. |
New factors emerge from time to time. We cannot predict what factors may arise or how such factors may cause results to differ materially from those contained in any forward-looking statement. Any forward-looking statements speak only as of the date on which such statements are made. We undertake no obligation to update any forward-looking statement to reflect events or circumstances after the date on which such statement is made or to reflect the occurrence of unanticipated events.
The factors discussed above and other factors are discussed more completely in our public filings with the SEC, including our most recent Annual Report on Form 10-K.
DTE Electric Company is a Michigan public utility engaged in the generation, purchase, distribution, and sale of electricity to approximately 2.3 million customers in southeastern Michigan. DTE Electric is a wholly-owned subsidiary of DTE Energy Company, which we refer to as DTE Energy. DTE Energy is a Detroit-based diversified energy company involved in the development and management of energy-related businesses and services nationwide.
DTE Electric is regulated by numerous federal and state governmental agencies, including, but not limited to the MPSC, the FERC, the NRC, the EPA, and EGLE. DTE Electric generates electricity from fossil-fuel plants, a hydroelectric pumped storage plant, a nuclear plant, wind and other renewable assets, and supplements its needs with purchased power. DTE Electric sells or distributes electricity through its retail access program to three major classes of customers: residential, commercial, and industrial, throughout southeastern Michigan.
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Except as we may otherwise state in an accompanying prospectus supplement, we expect to use the net proceeds from the sale of our debt securities for general corporate purposes, which may include, among other things:
| • | to repay outstanding indebtedness; |
| • | to replace funds previously utilized for the redemption or repayment of securities; |
| • | working capital; and |
| • | capital expenditures. |
The precise amount and timing of the application of such proceeds will depend upon our funding requirements and the availability and cost of other funds. Pending the application of proceeds, we may invest the funds temporarily in short-term investment grade securities.
THE SECURITIES THAT WE MAY OFFER
The descriptions of the securities contained in this prospectus, together with the applicable prospectus supplements, summarize certain terms and provisions of the various types of securities that DTE Electric may offer. The particular terms of the securities offered by any prospectus supplement will be described in that prospectus supplement. If indicated in the applicable prospectus supplement, the terms of the securities may differ from the terms summarized below. The prospectus supplement will also contain information, where applicable, about material U.S. federal income tax considerations relating to the securities, and any securities exchange on which the securities may be listed.
We may sell from time to time, in one or more offerings:
| • | senior secured debt securities, including general and refunding mortgage bonds and other senior debt securities secured by mortgage bonds; and/or |
| • | unsecured debt securities, which may be senior or subordinated. |
In this prospectus, DTE Electric refers to the senior secured debt securities and unsecured debt securities together as “securities” or the “debt securities.”
DESCRIPTION OF DEBT SECURITIES
General
The following description, together with any applicable prospectus supplement, summarizes certain material terms and provisions of the debt securities we may offer under this prospectus and the related indenture.
The general and refunding mortgage bonds, which we refer to as the “mortgage bonds,” are to be issued under and secured by the mortgage and deed of trust, dated as of October 1, 1924, between DTE Electric and The Bank of New York Mellon Trust Company, N.A., as successor trustee, as amended and supplemented by various supplemental indentures and as to be further amended and supplemented by one or more supplemental indentures creating the mortgage bonds, which we refer to collectively as the “mortgage.” We refer to The Bank of New York Mellon Trust Company, N.A., or any successor or additional trustee, in its capacity as trustee under the mortgage, as the “mortgage trustee” for purposes of this section.
We will issue the debt securities, other than general and refunding mortgage bonds, under an indenture, dated as of June 30, 1993, as supplemented, and supplemental indentures creating each applicable series of debt
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securities, which we refer to collectively as the “indenture,” between DTE Electric and The Bank of New York Mellon Trust Company, N.A., as successor trustee. We refer to The Bank of New York Mellon Trust Company, N.A., or any successor or additional trustee, in its capacity as trustee under the indenture, as the “indenture trustee” for purposes of this section. Each series of secured debt securities will be secured as to payment of principal, interest and premium, if any, by mortgage bonds.
The indenture does not limit the amount of debt securities we may issue under it, and it provides that additional debt securities of any series may be issued up to the aggregate principal amount that we may authorize from time to time. As of December 31, 2021 approximately $1.1 billion aggregate principal amount of debt securities were issued and outstanding under the indenture, of which approximately $59 million were issued in connection with the security arrangements for the insurance applicable to industrial development revenue bonds.
As of December 31, 2021 approximately $9.0 billion aggregate principal amount of mortgage bonds were issued and outstanding under the mortgage. At the date of this prospectus, and since December 31, 2021, the Company has issued $900 million and redeemed $250 million of mortgage bonds under the indenture. Of these outstanding mortgage bonds, $1.1 billion aggregate principal amount were issued as security for our debt securities and are subject to the release provisions described below under “— Provisions Applicable to All Debt Securities Other Than Mortgage Bonds — Security; Pledge of Mortgage Bonds — Release Date.”
The following summaries set forth certain general terms and provisions of the debt securities to which any prospectus supplement may relate. Because the descriptions of provisions of the indenture and the mortgage below are summaries, they do not describe every aspect of the indenture or the mortgage. The summaries below are subject to, and are qualified in their entirety by reference to, all provisions of the indenture and the mortgage, including the definitions therein of certain terms. We have filed copies of the indenture and the mortgage as exhibits to the registration statement of which this prospectus is a part. We encourage you to read the mortgage and indenture for provisions that may be important to you. Wherever particular articles, sections or defined terms of the indenture or mortgage are referred to those articles, sections or defined terms are incorporated herein by reference, and the statement in connection with which such reference is made is qualified in its entirety by such reference. The indenture and the mortgage contain, and the debt securities, when issued, will contain, additional important terms and provisions. We will describe the particular terms of the debt securities offered by any prospectus supplement and the extent, if any, to which such general provisions may apply to the debt securities so offered in the prospectus supplement relating to those debt securities.
Unless we otherwise specify in this prospectus or in the applicable prospectus supplement, we will issue debt securities in the form of global securities, deposited with and registered in the name of The Depository Trust Company, as depositary, which we refer to as “DTC,” or its nominee. Interests in the debt securities will be shown on, and transfers thereof will be effected only through, records maintained by DTC and its participants. See “Book-Entry Securities.”
Provisions Applicable to All Debt Securities
General
The prospectus supplement that accompanies this prospectus relating to the debt securities being offered will include specific terms relating to the offered debt securities. These terms will include some or all of the following:
| • | the title or designation of the debt securities; |
| • | the aggregate principal amount of the debt securities; |
| • | whether the debt securities are to represent secured indebtedness, including mortgage bonds, or senior unsecured indebtedness or subordinated indebtedness and, if subordinated debt securities, the specific subordination provisions applicable thereto; |
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| • | in the case of subordinated debt securities, the relative degree, if any, to which such subordinated debt securities of the series will be senior to or be subordinated to other series of subordinated debt securities or other indebtedness of DTE Electric in right of payment, whether such other series of subordinated debt securities or other indebtedness is outstanding or not; |
| • | whether the debt securities will be issued as registered securities, bearer securities or a combination of the two; |
| • | the person to whom any interest on any registered security shall be payable, if other than the person in whose name that security is registered at the close of business on the record date, the manner in which, or the person to whom, any interest on any bearer security shall be payable, if other than upon presentation and surrender of coupons, and the extent to which, or the manner in which, any interest payable on a temporary global security will be paid if other than in the manner provided in the indenture or the mortgage, as the case may be; |
| • | whether the debt securities will be issued in the form of one or more global securities; |
| • | the date or dates on which the principal of (and premium, if any, on) the debt securities will be payable or the method or methods, if any, by which such date or dates will be determined; |
| • | the rate or rates, which may be fixed or variable, or the method or methods of determining the rate or rates at which the debt securities will bear any interest; |
| • | the date or dates from which any interest will accrue or the method or methods, if any, by which such date or dates will be determined and the date or dates on which such interest will be payable; |
| • | whether and under what circumstances we will pay “additional amounts,” as defined in the indenture, on the debt securities to any holder who is a “United States alien,” as defined in the indenture, in respect of any tax, assessment or governmental charge, and, if so, whether we will have the option to redeem the debt securities rather than pay the additional amounts (the term “interest,” as used in this prospectus, includes any additional amounts); |
| • | the place or places where the principal of (and premium, if any) and interest on the debt securities shall be payable, and where any registered securities may be surrendered for registration of transfer or exchange; |
| • | a description of any provisions providing for redemption of the debt securities, in whole or in part, at our option, a holder’s option or otherwise, and the terms and provisions of such a redemption; |
| • | any sinking fund or other mandatory redemption or similar terms; |
| • | the authorized denominations of the debt securities, if other than denominations of $1,000 and any integral multiple thereof (in the case of registered securities) or $5,000 (in the case of bearer securities); |
| • | if other than the principal amount thereof, the portion of the principal amount of the debt securities or any of them that shall be payable upon declaration of acceleration of the maturity thereof or the method by which such portion is to be determined; |
| • | if other than U.S. dollars, the currency or currencies or currency unit or units of two or more currencies in which debt securities are denominated, for which they may be purchased, and in which principal and any premium and interest is payable; |
| • | if the currency or currencies or currency unit or units for which debt securities may be purchased or in which principal and any premium and interest may be paid is at our election or at the election of a purchaser, the manner in which an election may be made and its terms; |
| • | any index or other method used to determine the amount of payments of principal of, and any premium and interest on, the debt securities; |
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| • | if there is more than one trustee under the indenture or the mortgage, the identity of the trustee and, if not the trustee, the identity of each security registrar, paying agent and/or authenticating agent with respect to the debt securities; |
| • | whether the debt securities shall be issued as original issue discount securities; |
| • | whether a credit facility or other form of credit support will apply to the debt securities; |
| • | any deletions from, modifications of or additions to the events of default or covenants with respect to the debt securities; |
| • | in the case of debt securities secured by mortgage bonds, a description of any provisions relating to the release of such mortgage bonds; and |
| • | any other specific terms of the debt securities. |
We are not obligated to issue all debt securities of any one series at the same time and all the debt securities of any one series need not bear interest at the same rate or mature on the same date.
If we sell any of the debt securities for foreign currencies or foreign currency units or if the principal of, or any premium or interest on, any series of debt securities is payable in foreign currencies or foreign currency units, we will describe the restrictions, elections, tax consequences, specific terms and other information with respect to such issue of debt securities and such currencies or currency units in the applicable prospectus supplement.
Other than as described below under “— Provisions Applicable to General and Refunding Mortgage Bonds — Issuance of Additional Mortgage Bonds” with respect to limitations on the issuance of mortgage bonds, neither the mortgage nor the indenture limits our ability to incur indebtedness. In addition, neither the mortgage nor the indenture affords holders of debt securities protection in the event of a decline in our credit quality or if we are involved in a takeover, recapitalization or highly leveraged or similar transaction. Accordingly, we could in the future enter into transactions that could increase the amount of indebtedness outstanding at that time or otherwise affect our capital structure or credit rating. You should refer to the prospectus supplement relating to a particular series of debt securities for information regarding any deletions from, modifications of or additions to the events of default described below or covenants contained in the indenture, including any addition of a covenant or other provisions providing event risk or similar protection.
Provisions Applicable to General and Refunding Mortgage Bonds
General
The mortgage bonds, which we may issue directly or which may secure our obligations with respect to a series of secured debt securities, are to be issued under and secured by the mortgage.
The mortgage bonds may be issued in whole or in part in the form of one or more global securities that shall be deposited with, or on behalf of, DTC or such other depository as may be specified, and registered in the name of a nominee of the depository. See “Book-Entry Securities.” We will issue the mortgage bonds only in fully registered form in denominations of $1,000 and integral multiples thereof or any authorized minimum denomination. Mortgage bonds of any denomination will be exchangeable without charge (except for stamp taxes and other governmental charges) for mortgage bonds of the same series of other authorized denominations.
Unless otherwise specified in a prospectus supplement, there will be no sinking fund, maintenance and replacement fund, improvement fund or similar provisions with respect to the debt securities.
At December 31, 2021, mortgage bonds of various series, aggregating $208 million in principal amount, were issued as security for various series of outstanding industrial development revenue bonds or as security for
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the insurance applicable to such revenue bonds. In addition, mortgage bonds of various other series, aggregating $8.8 billion in principal amount, were directly issued or issued as security for various series of DTE Electric’s outstanding notes issued under the indenture. Of the $9.0 billion total outstanding mortgage bonds, $1.1 billion are subject to the release provisions described below under “— Provisions Applicable to All Debt Securities Other Than Mortgage Bonds — Security; Pledge of Mortgage Bonds — Release Date.” Such bonds contain provisions that correspond to the revenue bonds or notes they collateralize in respect of principal amounts, interest rates, maturity dates and redemption. All payments of interest on, and reductions of the principal amounts of, such revenue bonds or notes will be credited as payments to, or will give rise to reductions of principal amounts of, the corresponding bonds issued under the mortgage. At the date of this prospectus, and since December 31, 2021, the Company has issued $900 million and redeemed $250 million of general and refunding mortgage bonds.
Security and Priority
The mortgage is a first lien (subject only to excepted encumbrances as described in the mortgage) on a substantial portion of DTE Electric’s properties and franchises and will (subject to the necessity for particular filings and recordings in the case of certain personal property) constitute a first lien on any such properties hereafter acquired by DTE Electric, except that (1) after-acquired property will be subject to prior liens and encumbrances, if any, existing when acquired by DTE Electric, (2) the mortgage will not become a lien upon after-acquired real property in a new county until it has been duly filed and recorded, and (3) the mortgage may not be effective as to property acquired subsequent to the filing of a bankruptcy proceeding with respect to DTE Electric. The mortgage is not a lien on (a) equipment, materials or supplies purchased for resale or (b) securities or cash not specifically pledged and deposited with the mortgage trustee.
The mortgage bonds will rank equally as to security with all mortgage bonds of all other series outstanding under the mortgage except insofar as any sinking, improvement or analogous fund may be deemed to afford additional security for the mortgage bonds of any series and except that, as provided in Section 3 of Article VI of the mortgage, the mortgage trustee may, when in possession during a default, apply any residue of collections to payment of principal of such mortgage bonds as are then due if all of the mortgage bonds have not become due.
DTE Electric has good and marketable title to all properties standing of record in its name (which include all of those properties on which its principal plants, generating stations and substations are erected and on which its general office and service buildings are constructed and all other important parcels of real estate and improvements thereon, other than pollution control facilities standing in the names of certain municipalities that are being sold to DTE Electric pursuant to installment sales contracts and the undivided ownership interest of the Michigan Public Power Agency in a portion of the Belle River Power Plant), subject to the lien of the mortgage and subject to minor exceptions, defects, irregularities and deficiencies that, in the opinion of DTE Electric, do not materially impair the use of such property for its purposes, and has adequate rights to maintain and operate such of its distribution facilities as are located on public or other property.
Issuance of Additional Mortgage Bonds
Additional mortgage bonds may be issued under the mortgage on the basis of:
| • | 60% of the cost or fair value to DTE Electric (whichever is less) of property additions (as detailed below) that have not previously been taken into account for other purposes under the mortgage; |
| • | retired bonds in the same principal amount that have not previously been taken into account for other purposes under the mortgage; and |
| • | cash deposited with the mortgage trustee in the same amount. (Article III) |
Property additions include property, real and personal, used in the business of generating, transmitting or distributing electricity or gas, or power or heat by means of steam or hot water, and, with certain exceptions, located in the State of Michigan. Property additions do not include property acquired or constructed to keep the
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mortgaged property in working order or merely to replace obsolete or worn out property, except for the excess over the original cost of the original property. (Article I, Section 4; Article III, Section 4)
Bonds may not be issued on the basis of property additions or deposited cash unless earnings of DTE Electric (after all operating expenses including all taxes, but excluding depreciation and interest charges) available for interest and reserves, including depreciation, for any consecutive twelve-month period within the immediately preceding fifteen months shall have been at least one and three-quarters times the annual interest charges on all mortgage bonds then outstanding under the mortgage, all mortgage bonds then applied for, all prior lien bonds if there are any outstanding and any other indebtedness secured by a lien superior to the mortgage on any portion of the mortgaged property.
At December 31, 2021, we could have issued approximately $3.3 billion of mortgage bonds on the basis of property additions, assuming an interest rate of 5% for purposes of the earnings test, and as of December 31, 2021, approximately $985 million of mortgage bonds on the basis of mortgage bond retirements. At the date of this prospectus, and since December 31, 2021, the Company has issued $900 million and redeemed $250 million of mortgage bonds.
Cash deposited with the mortgage trustee as the basis for the issuance of additional mortgage bonds may be withdrawn by DTE Electric up to an amount equal to the aggregate principal amount of mortgage bonds that DTE Electric has become entitled to have authenticated and delivered on the basis of property additions, or equal to the aggregate principal amount of mortgage bonds theretofore authenticated and delivered under the mortgage which are delivered to the mortgage trustee for cancellation. (Article III, Section 7)
Release Provisions
DTE Electric may, in the ordinary course of business, use and consume materials and equipment and may alter, repair, replace, change location or position of and add to plants, buildings, machinery and other fixtures without notice to the mortgage bondholders. Leases and contracts may be entered into, terminated or altered, and materials, equipment and supplies may be sold, exchanged or otherwise disposed of, free from the lien of the mortgage, all in the ordinary course of business. (Article X, Sections 1 and 2) DTE Electric may also surrender or modify its franchises or sell or exchange any other part of its property upon compliance with the mortgage requirements, including, without limitation, the delivery to the mortgage trustee of cash in an amount or retired bonds in a principal amount, and/or the certification to the mortgage trustee of property additions having a fair value, equal in the aggregate to the fair value of the property to be released. (Article X, Sections 3 and 4; Article XA, Section 2) The mortgage trustee is required to report annually to the mortgage bondholders with respect to any release, or release and substitution of property. (Article XII, Section 7)
Cash deposited with the mortgage trustee in connection with the release of property may, among other things, be paid over to DTE Electric in an amount equal to the amount of property additions, on the principal amount of retired bonds, certified for this purpose.
Consolidation, Merger and Sale of Assets
DTE Electric may, without the consent of the holders of the debt securities, consolidate or merge with or into, or convey or lease substantially all the properties subject to the mortgage as an entirety to, any corporation lawfully entitled to acquire and operate the same, or may permit any such corporation to consolidate or merge with or into DTE Electric, or convey, transfer or lease substantially all the properties subject to the mortgage as an entirety to DTE Electric, provided that any successor corporation assumes DTE Electric’s obligations on the mortgage bonds and under the mortgage; provided, however, that no such consolidation, merger, conveyance, or lease shall impair the lien and security of the mortgage or any of the rights and powers of the mortgage trustee or the bondholders thereunder, and provided that any such lease shall be made expressly subject to immediate termination by DTE Electric or by the mortgage trustee at any time upon the happening of an event of default, and that certain other conditions are met. (Article XIV)
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Modification
DTE Electric and the mortgage trustee may modify the mortgage and the rights and obligations of DTE Electric and of the mortgage bondholders with the consent of DTE Electric and of the holders of 85% of the principal amount of mortgage bonds outstanding; provided that no such modification may permit any change in the terms of payment of principal or interest of any bond without the consent of the holder thereof, nor permit the creation of any lien ranking prior to or on parity with the lien of the mortgage with respect to any property mortgaged thereunder, nor reduce the percentage of mortgage bondholders necessary to consent to such modification. (Article XV)
The mortgage also provides that DTE Electric and the mortgage trustee may enter into supplemental indentures, without the consent of the bondholders, for the purposes of:
| • | adding to the conditions, limitations and restrictions on the authentication and delivery of bonds under the mortgage; |
| • | adding to the covenants and agreements of DTE Electric; |
| • | evidencing new series of bonds; |
| • | evidencing the succession of another corporation to DTE Electric; |
| • | conveying, transferring, and assigning additional properties, securities, and franchises to the mortgage trustee; |
| • | providing a sinking, amortization, improvement or other analogous fund for the purchase, redemption or other retirement of any bonds; or |
| • | curing any ambiguities, or curing, correcting or supplementing any defect or inconsistent provision contained in the mortgage as supplemented. |
The mortgage also provides that any supplemental indenture shall, insofar as may be required by the provisions of the Trust Indenture Act of 1939 as then in effect, comply with the provisions of that Act. (Article XVI)
Events of Default and Remedies
The following events of default are applicable to the mortgage bonds:
| • | failure to pay interest when due on the mortgage bonds, continued for 90 days; |
| • | failure to pay principal of, or premium, if any on the mortgage bonds when due; |
| • | failure to pay interest on outstanding underlying or prior lien bonds when due, continued for 90 days; |
| • | failure to pay principal of (or premium on) outstanding underlying or prior lien bonds when due; |
| • | failure to perform or observe covenants, agreements or conditions contained in the mortgage, continued for 90 days after notice of default as provided in the mortgage; and |
| • | insolvency or adjudication of bankruptcy or appointment of a receiver not removed or discharged within 90 days. (Article VI, Section 2) |
If an event of default under the mortgage occurs and is continuing, the mortgage trustee may, and the holders of at least 25% in principal amount of outstanding mortgage bonds may, and upon the request of the holders of at least a majority in principal amount of outstanding mortgage bonds the mortgage trustee will, by notice as provided in the mortgage, declare the principal of all outstanding mortgage bonds, together with accrued interest thereon, to be immediately due and payable. If, at any time after any such declaration of acceleration, and before any sale of the trust estate has been made, all arrears of interest have been paid and all
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other defaults, if any, have been remedied or secured, then the holders of a majority in principal amount of outstanding mortgage bonds may, by notice as provided in the mortgage, waive such default and its consequences and rescind such declaration, but no such waiver will extend to any subsequent default. (Article VI, Section 2)
If an event of default occurs and is continuing, the mortgage trustee may:
| • | take possession of the trust estate and hold, use, operate, manage and control the same; |
| • | sell the trust estate; and |
| • | enforce its rights and the rights of the mortgage bondholders by appropriate judicial proceeding at law or in equity. (Article IV, Section 3) |
The holders of a majority in aggregate principal amount of outstanding mortgage bonds have the right to direct the method and place of conducting all proceedings for the sale of the trust estate, foreclosure or appointment of a receiver or other proceedings under the mortgage. (Article VI, Section 15) The holders of not less than a majority in principal amount, upon providing reasonable security and indemnity to the mortgage trustee, can require the mortgage trustee to take action toward the execution or enforcement of the trusts created by the mortgage. (Article VI, Section 16; Article XII, Section 1(b)(8))
No holder of any mortgage bond will have the right to institute any proceeding for the foreclosure of the mortgage or for the enforcement of any other remedy under the mortgage unless:
| • | such holder has previously given the mortgage trustee notice of default; |
| • | the holders of 25% in principal amount of outstanding mortgage bonds have requested the mortgage trustee, and afforded it a reasonable opportunity, to institute such proceeding in its own name; |
| • | such holder or holders have offered the mortgage trustee adequate security and indemnity against costs, expenses and liabilities; and |
| • | the mortgage trustee has refused or neglected to comply with such request within a reasonable time. (Article VI, Section 18) |
No holder of mortgage bonds will have any right in any manner to affect, disturb or prejudice the lien of the mortgage. (Article VI, Section 18)
Nothing in the mortgage, however, will affect or impair the right of any bondholder, which is absolute and unconditional, to enforce payment of the principal and interest of such holder’s bonds. (Article VI, Section 18)
The laws of the various states in which the trust estate is located may limit or deny the ability of the mortgage trustee to enforce certain rights and remedies provided in the mortgage in accordance with their terms.
Evidence of Compliance
DTE Electric is required to furnish to the mortgage trustee an opinion of counsel as to recordation of each supplemental indenture and an annual opinion as to recording, filing, re-recording and re-filing of the mortgage and supplements thereto. (Article XA, Section 3) DTE Electric is also required to furnish to the mortgage trustee an annual certificate of its officers as to compliance with certain provisions of the mortgage. (Article V, Section 19)
Provisions Applicable to All Debt Securities Other Than Mortgage Bonds
We may issue the debt securities in one or more series with the same or various maturities. (Section 301) We may issue debt securities solely in fully registered form as registered securities without coupons, solely in bearer form as bearer securities with or without coupons, or both as registered securities and bearer securities. (Section 301)
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Unless otherwise specified in the applicable prospectus supplement, principal and interest, if any, on the debt securities offered thereby are to be payable at the office or agency of DTE Electric maintained for such purposes in the city where the principal corporate trust office of the indenture trustee is located, and will initially be the principal corporate trust office of the indenture trustee, provided that payment of interest, if any, may be made at the option of DTE Electric by check mailed to the persons in whose names the debt securities are registered at the close of business on the day specified in the prospectus supplement accompanying this prospectus.
However, if we default in paying interest on a debt security, we will pay defaulted interest in either of the two following ways:
| • | We will first propose to the indenture trustee a payment date for such defaulted interest and we will deposit with the paying agent an amount of money equal to the aggregate amount proposed to be paid in respect of such defaulted interest. Next, the indenture trustee will choose a special record date for determining which Holders are entitled to the payment. The special record date will be 10 days before the payment date we propose. Finally, the paying agent will pay such defaulted interest on the payment date to the holder of the debt security as of the close of business on the special record date; or |
| • | Alternatively, we can propose to the indenture trustee any other lawful manner of payment that is consistent with the requirements of any securities exchange on which such debt securities are listed for trading. If the indenture trustee thinks the proposal is practicable, payment will be made as proposed. (See Section 307) |
We may sell debt securities at a substantial discount below their stated principal amount, bearing no interest or interest at a rate which at the time of issuance is below market rates. We may describe the Federal income tax consequences and special considerations applicable to any series in the applicable prospectus supplement.
Form, Exchange, Registration and Transfer
Registered debt securities will be exchangeable for other debt securities of the same series and of like tenor, of any authorized denominations and of a like aggregate principal amount and stated maturity (as defined in the indenture). Debt securities may be presented for registration of transfer (with the form of transfer endorsed thereon duly executed), at the office of the indenture trustee or at the office of any transfer agent designated by DTE Electric for such purpose, without service charge but upon payment of any taxes and other governmental charges as described in the indenture. Such transfer or exchange will be effected upon the books of the indenture trustee or such transfer agent, as the case may be, being satisfied with the documents of title and identity of the person making the request. (Section 305)
DTE Electric will not be required to (i) issue, register the transfer of or exchange debt securities during a period beginning at the opening of business 15 days before any selection of debt securities of such series to be redeemed and ending at the close of business on the day of mailing of the relevant notice of redemption, or (ii) register the transfer of or exchange any such registered debt security, or portion thereof, called for redemption, except the unredeemed portion of any such debt security being redeemed in part. (Section 305)
If we issue debt securities of any series as bearer securities, the prospectus supplement will contain any restrictions applicable to the offer, sale or delivery of bearer securities and the terms upon which bearer securities of the series may be exchanged for registered securities of the series and, if permitted by applicable laws and regulations, the terms upon which registered securities of the series may be exchanged for bearer securities of the series, whether such debt securities are to be issuable in permanent global form with or without coupons and, if so, whether beneficial owners of interests in any such permanent global security may exchange such interests for debt securities of such series and the circumstances under which any such exchanges may occur.
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Satisfaction and Discharge
DTE Electric will be deemed to have paid and discharged the indebtedness on all the debt securities of a series and the indenture trustee will execute instruments acknowledging the satisfaction and discharge of such indebtedness and, if applicable, will pay, or assign or transfer and deliver to DTE Electric the related mortgage bond issued in connection with the debt securities of such series if:
| • | DTE Electric has deposited or caused to be deposited with the indenture trustee an amount sufficient to pay and discharge the entire indebtedness on all outstanding debt securities of such series for principal (and premium, if any) and interest to the stated maturity or any redemption date, as the case may be; or DTE Electric has deposited or caused to be deposited with the indenture trustee such amount of direct noncallable obligations of, or noncallable obligations the payment of principal of and interest on which is fully guaranteed by, the United States of America maturing as to principal and interest in such amounts and at such times as will, without consideration of any reinvestment thereof, be sufficient to pay and discharge the entire indebtedness on all outstanding debt securities of such series for principal (and premium, if any) and interest to the stated maturity or any redemption date, as the case may be; |
| • | after giving effect to the satisfaction and discharge of the debt securities and to the release from the lien of the indenture of the mortgage bonds related to such debt securities and designated by us for such release, the aggregate principal amount of the mortgage bonds relating to all outstanding debt securities shall not be less than the aggregate principal amount of (and premium, if any) all then outstanding debt securities; |
| • | DTE Electric has paid or caused to be paid all other sums payable with respect to the debt securities of such series; and (Section 503) |
| • | All other conditions specified with respect to debt securities of such series have been satisfied. |
Events of Default
Any one of the following events will constitute an event of default under the indenture with respect to the debt securities of any series:
| • | failure to pay any interest on any debt security of that series when due, continued for 30 days; |
| • | failure to pay principal of (or premium, if any) on the debt securities of that series when due; |
| • | default in the deposit of any sinking fund payment when due; |
| • | in the case of debt securities secured by mortgage bonds, failure to comply with the provisions of the pledged mortgage bonds as set forth in the indenture; |
| • | failure to perform or breach of any other covenant or warranty of DTE Electric in the indenture (other than a covenant or warranty included in the indenture solely for the benefit of a series of securities other than such debt securities), continued for 60 days after written notice as provided in the indenture; |
| • | certain events of bankruptcy, insolvency or reorganization involving DTE Electric; |
| • | in the case of debt securities secured by mortgage bonds, the occurrence of a “default” as such term is defined in the mortgage; and |
| • | any other event of default that may be provided with respect to the debt securities of that series. (Section 601) |
If an event of default with respect to the debt securities of any series occurs and is continuing, either the indenture trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of such series, by notice as provided in the indenture, may declare the principal amount of such debt securities to be due and payable immediately. At any time after a declaration of acceleration has been made, but before a judgment or decree for payment of money has been obtained by the indenture trustee, and subject to applicable
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law and certain other provisions of the indenture, the holders of a majority in aggregate principal amount of the debt securities of such series may, under certain circumstances, rescind and annul such acceleration. (Section 602)
The indenture provides that within 90 days after the occurrence of any event of default thereunder with respect to the debt securities of any series, the indenture trustee shall transmit, in the manner set forth in the indenture, notice of such event of default to the holders of the debt securities of such series unless such event of default has been cured or waived; provided, however, that except in the case of a default in the payment of the principal of (or premium, if any) or interest on any debt security of such series, the indenture trustee may withhold such notice if and so long as the board of directors, the executive committee or a trust committee of directors or responsible officers of the indenture trustee has in good faith determined that the withholding of such notice is in the interest of the holders of debt securities of such series. (Section 701)
If an event of default occurs and is continuing with respect to the debt securities of any series, the indenture trustee may in its discretion proceed to protect and enforce its rights and the rights of the holders of debt securities of such series by all appropriate judicial proceedings. (Section 603)
The indenture provides that, subject to the duty of the indenture trustee during any default to act with the required standard of care, the indenture trustee will be under no obligation to exercise any of its rights or powers under the indenture at the request or direction of any of the holders of debt securities, unless such holders shall have offered to the indenture trustee reasonable indemnity. (Section 702) Subject to such provisions for the indemnification of the indenture trustee, and subject to applicable law and certain other provisions of the indenture, the holders of a majority in aggregate principal amount of the outstanding debt securities of a series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the indenture trustee, or exercising any trust or power conferred on the indenture trustee, with respect to the debt securities of such series. (Section 612)
In addition, the indenture provides that no holder of any debt security will have any right to institute any proceeding judicial or otherwise, with respect to the indenture for the appointment of a receiver or for any other remedy thereunder unless:
| • | that holder has previously given the indenture trustee written notice of a continuing event of default; |
| • | the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made written request to the indenture trustee to institute proceedings in respect of that event of default and have offered the indenture trustee reasonable indemnity against costs and liabilities incurred in complying with such request; and |
| • | for 60 days after receipt of notice, the indenture trustee has failed to institute any such proceeding and no direction inconsistent with such request has been given to the indenture trustee during such 60-day period by the holders of a majority in aggregate principal amount of outstanding debt securities of that series. |
Furthermore, no holder will be entitled to institute any such action if and to the extent that such action would disturb or prejudice the rights of other holders. (See Section 607)
However, each holder has an absolute and unconditional right to receive payment when due and to bring a suit to enforce that right. (See Section 608)
Modification and Waiver
We and the indenture trustee may, without the consent of the holders, modify provisions of the indenture for certain purposes, including:
| • | evidencing the succession of another entity to the Company; |
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| • | adding one or more covenants of the company for the benefit of the holders of all or any series of securities, or surrendering any right or power conferred upon the Company with respect to all or any series of securities; |
| • | adding any additional events of default for all or any series of the securities; |
| • | providing for the issuance of bearer securities; |
| • | establishing the form or terms of securities of any series or any related coupons; |
| • | evidencing and providing for the acceptance of appointment of a separate or successor indenture trustee; |
| • | curing any ambiguity, correcting or supplementing any provision which may be inconsistent with any other provision of the indenture so long as such provisions do not adversely affect the interests of the holders in any material respect; |
| • | modifying, eliminating or adding to the provisions of the indenture to such extent to qualify the indenture under the Trust Indenture Act; |
| • | adding, deleting from or revising the conditions, limitations and restrictions on the authorized amount, terms or purposes of the issue, authentication and delivery of the securities; |
| • | modifying, eliminating or adding to the provisions of any security to allow for such security to be held in certificated form; or |
| • | otherwise modifying, deleting or adding any provisions of the indenture that will become effective only with respect to securities issued thereafter. (Section 1001) |
We and the indenture trustee may modify certain other provisions of the indenture with the consent of the holders of not less than a majority in aggregate principal amount of the debt securities of each series affected by the modification; provided, however, that no such modification or amendment may, without the consent of the holder of each debt security affected thereby:
| • | change the stated maturity of the principal of, or any installment of principal of or interest on, any debt securities; |
| • | reduce the principal amount of, or premium or interest on, any debt securities; |
| • | change the place of payment, coin or currency in which any debt securities or any premium or any interest thereon is payable; |
| • | impair the right to institute suit for the enforcement of any payment on or after the stated maturity of any debt securities (or, in the case of redemption, on or after the redemption date); |
| • | reduce the percentage in principal amount of the outstanding debt securities, the consent of whose holders is required in order to take certain actions; |
| • | change any obligation of DTE Electric to maintain an office or agency for payment on the debt securities; |
| • | modify or change any of the provisions in the indenture with respect to the mortgage or any of the provisions of the mortgage or the mortgage bonds in a manner adverse to the holders of the debt securities affected thereby; or |
| • | modify any of the above provisions. (Section 1002) |
The holders of at least 662/3% in aggregate principal amount of debt securities of any series may, on behalf of the holders of all debt securities of that series, waive compliance by DTE Electric with certain restrictive provisions of the indenture. (Section 1109) The holders of not less than a majority in aggregate principal amount of debt securities of any series may, on behalf of all holders of debt securities of that series, waive any past
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default and its consequences under the indenture with respect to the debt securities of that series, except a default (a) in the payment of principal of (or premium, if any) or any interest on any debt security of that series, or (b) in respect of a covenant or provision of the indenture that cannot be modified or amended without the consent of the holder of each debt security of that series. (Section 613)
Consolidation, Merger and Sale of Assets
DTE Electric may, without the consent of the holders of the debt securities, consolidate with or merge into, or convey, transfer or lease its properties and assets substantially as an entirety to any person that is a corporation, partnership or trust organized and validly existing under the laws of any domestic jurisdiction, or may permit any such person to consolidate with or merge into DTE Electric or convey, transfer or lease its properties and assets substantially as an entirety to DTE Electric, provided that any successor person assumes DTE Electric’s obligations on the debt securities and under the indenture, that after giving effect to the transaction no event of default, and no event which, after notice or lapse of time or both, would become an event of default, shall have occurred and be continuing, and that certain other conditions are met. In the case of any such transaction in which DTE Electric is not the surviving successor, except in the case of a lease, DTE Electric will be relieved of its obligations under the debt securities and the indenture. (Sections 901 and 902)
Security; Pledge of Mortgage Bonds
Unless otherwise set forth in the applicable prospectus supplement, each series of secured debt securities will be secured as to payment of principal, interest and premium, if any, as set forth below.
General. In order to secure the obligation of DTE Electric to pay the principal of (and premium, if any) and interest on the secured debt securities of each series, DTE Electric will issue and deliver to and pledge with the indenture trustee its mortgage bonds such that the aggregate principal amount of the secured debt securities outstanding will not exceed the aggregate principal amount of the related mortgage bonds pledged with and held by the indenture trustee. (Section 401) The mortgage bonds will bear interest at times and in amounts sufficient to provide for the payment of interest on the related secured debt securities and also will be redeemed at times and in amounts that correspond to the required payments of principal of and any premium on the related secured debt securities. Payments on the secured debt securities will satisfy payment obligations on the underlying mortgage bonds. (Article 4) The mortgage bonds will be secured by a first mortgage lien on certain property owned by DTE Electric and will rank on parity with all other general and refunding mortgage bonds of DTE Electric. See “— Provisions Applicable to General and Refunding Mortgage Bonds — Security and Priority” above. As of December 31, 2021 DTE Electric had outstanding approximately $9.0 billion aggregate principal amount of general and refunding mortgage bonds. See “— Provisions Applicable to General and Refunding Mortgage Bonds.”
Satisfaction of Payment Obligation on Mortgage Bonds. The indenture provides that the obligation of DTE Electric to make any payment of the principal of (and premium, if any) or interest on the mortgage bonds will be deemed to have been satisfied and discharged to the extent that at the time any such payment shall be due, the then due principal of (and premium, if any) or interest on the related secured debt securities, shall have been paid, deemed to have been paid or otherwise satisfied and discharged. In addition, such obligation to make any payment of the principal of (and premium, if any) or interest on the mortgage bonds at any time will be deemed to have been satisfied and discharged to the extent that the amount of DTE Electric’s obligation to make any payment of the principal of (and premium, if any) or interest on the mortgage bonds exceeds the obligation of DTE Electric at that time to make any payment of the principal of (and premium, if any) or interest on the related secured debt securities. (Section 403)
Redemption of Mortgage Bonds. DTE Electric agrees in the indenture that upon the required payment of principal or premium, if any, becoming due and payable with respect to any secured debt securities, it will redeem the related mortgage bonds in an aggregate principal amount equal to the amount becoming due and
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payable on such secured debt securities, plus accrued interest; provided, however, that DTE Electric’s obligation to redeem such mortgage bonds will be fully or partially deemed to have been satisfied and discharged to the extent that at the time any such payment shall be due, the then due aggregate principal amount of the secured debt securities, plus the aggregate amount of any premium on, or accrued interest to the redemption date for, such secured debt securities shall have been fully or partially paid, deemed to have been paid or otherwise satisfied and discharged. Except for such redemption, DTE Electric covenants that it will not redeem the mortgage bonds or take any action that will result in the mortgage trustee or DTE Electric incurring an obligation to redeem the mortgage bonds. (Section 404)
Voting of Mortgage Bonds. The indenture provides that the indenture trustee will, as holder of the mortgage bonds delivered as the basis for the issuance of debt securities, attend such meetings of bondholders under the related mortgage, or deliver its proxy in connection therewith, as relates to matters with respect to which it, as such holder, is entitled to vote or consent. The indenture provides that, so long as no event of default as defined in the indenture has occurred and is continuing, the indenture trustee will, as holder of such mortgage bonds, vote or consent in favor of any amendments or modifications to the mortgage except that the trustee will not vote or consent to any such amendment or modification that is correlative to any amendment or modification of the indenture that would require the consent of holders of securities of any series without the prior written consent that would be required for such correlative amendment or modification of the indenture. (Section 407)
Release Date. If so provided in a prospectus supplement with respect to any series of debt securities, on a “release date” described below, DTE Electric will retire the related series of mortgage bonds and all other mortgage bonds subject to the release provisions, and thereafter will not issue any additional mortgage bonds under the mortgage. DTE Electric will be required to give notice to the holders of the applicable debt securities of the occurrence of any release date. The “release date” means the date as of which all mortgage bonds, other than the mortgage bonds subject to the release provisions of the indenture, including the series of mortgage bonds relating to any debt securities, and other than outstanding mortgage bonds which do not in aggregate principal amount exceed the greater of 5% of DTE Electric’s Net Tangible Assets (as defined below) or 5% of DTE Electric’s Capitalization, have been retired through payment, redemption or otherwise.
On the release date, the related series of mortgage bonds will no longer secure the applicable debt securities, and those debt securities, together with all other debt securities secured by mortgage bonds subject to the release provisions, will instead be secured by substitute mortgage bonds issued under a mortgage indenture other than the mortgage, which we refer to as the substitute mortgage. On the date of substitution, DTE Electric will issue and deliver to the indenture trustee, as security for such debt securities, substitute mortgage bonds. The interest rate, interest payment dates, method of paying interest, stated maturity date and redemption provisions will be identical to those of the applicable series of debt securities, and the substitute mortgage bonds will be issued in the same aggregate principal amount as the related debt securities then outstanding. Until all mortgage bonds issued under the mortgage are no longer outstanding and the mortgage is terminated, the lien securing the substitute mortgage bonds would be subject to the prior lien of the mortgage.
At December 31, 2021 we had outstanding mortgage bonds subject to the release provisions of approximately $1.1 billion, and outstanding mortgage bonds not subject to the release provisions of approximately $7.9 billion, which is approximately 32% of our net tangible assets and 44% of our Capitalization.
As used in this prospectus, the following terms have the meanings indicated:
“Capitalization” means the total of all the following items appearing on, or included in, our consolidated balance sheet: (i) liabilities for indebtedness maturing more than 12 months from the date of determination, and (ii) common stock, common stock expense, accumulated other comprehensive income or loss, preferred stock, preference stock, premium on capital stock and retained earnings (however the foregoing may be designated), less, to the extent not otherwise deducted, the cost of shares of our capital stock held in our treasury, if any. Subject to the foregoing, capitalization shall be determined in accordance
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with generally accepted accounting principles and practices applicable to the type of business in which we are engaged and may be determined as of a date not more than 60 days prior to the happening of the event for which the determination is being made.
“Net Tangible Assets” means the amount shown as total assets on our consolidated balance sheet, less (i) intangible assets including, but without limitation, such items as goodwill, trademarks, trade names, patents, unamortized debt discount and expense and other regulatory assets carried as an asset on our consolidated balance sheet, and (ii) appropriate adjustments, if any, on account of minority interests. Net Tangible Assets shall be determined in accordance with generally accepted accounting principles and practices applicable to the type of business in which we are engaged and may be determined as of a date not more than 60 days prior to the happening of the event for which such determination is being made.
Surrender and Exchange of Mortgage Bonds. The indenture trustee will surrender to the mortgage trustee for cancellation the mortgage bonds in an aggregate principal amount equal to the aggregate principal amount of any other mortgage bonds delivered to and pledged with the indenture trustee pursuant to the indenture in exchange therefor, provided that the mortgage bonds so delivered to and pledged with the indenture trustee contain no provisions that would impair the benefit of the lien of the mortgage in favor of the holders of the related secured debt securities. (Section 406(c))
Provisions Applicable to Subordinated Debt Securities
General
Subordinated debt securities will be issued under the indenture and will rank equally with certain other subordinated debt of DTE Electric that may be outstanding from time to time and will rank junior to all senior indebtedness of DTE Electric (including any senior debt securities) that may be outstanding from time to time.
Subordination
The payment of the principal of (and premium, if any) and interest on the subordinated debt securities is expressly subordinated, to the extent and in the manner set forth in the indenture, in right of payment to the prior payment in full of all of our senior indebtedness. (See form of supplemental indenture creating subordinated debt securities).
Upon (i) any acceleration of the principal amount due on the subordinated debt securities or (ii) any payment or distribution of our assets 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 us, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, all principal and premium, if any, and interest 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 subordinated debt securities, and upon any such dissolution or winding-up or liquidation or reorganization any payment or distribution of our assets of any kind or character, whether in cash, property or securities, to which the holders of the subordinated debt securities would be entitled, except for the provisions of the indenture, shall (subject to the power of a court of competent jurisdiction to make other equitable provision reflecting the rights conferred by the provisions of the subordinated debt securities upon the senior indebtedness and the holders thereof with respect to the subordinated debt securities and the holders thereof by a lawful plan of reorganization under applicable bankruptcy law), be paid by us or any receiver, trustee in bankruptcy, liquidating trustee, agent or other person making such payment or distribution, or by the holders of the subordinated debt securities 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, after giving effect to any concurrent payments or distributions to or for the holders of senior indebtedness, before any payment or distribution is made to the holders of the
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indebtedness evidenced by the subordinated debt securities. Our consolidation with or merger into another person or our liquidation or dissolution following the conveyance or transfer of our property as an entirety, or substantially as an entirety, to another person upon the terms and conditions provided in the indenture shall not be deemed a dissolution, winding-up, liquidation or reorganization for these purposes.
In the event that any payment or distribution of our assets of any kind or character not permitted by the foregoing provisions, whether in cash, property or securities, shall be received by the trustee or the holders of subordinated debt securities before all senior indebtedness is paid in full, or provision made for such payment, in accordance with its terms, 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.
We will make no payment on account of principal of or interest on the subordinated debt securities 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. We will make no payment on account of principal or interest on the subordinated debt securities 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 funds or interest with respect to any senior indebtedness, or (ii) there shall have occurred an event or 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 such event of default shall not have been cured or waived or shall not have ceased to exist.
Subrogation
From and after the payment in full of all senior indebtedness, the holders of the subordinated debt securities (together with the holders of any other indebtedness of DTE Electric that 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 subordinated debt securities 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 DTE Electric applicable to the senior indebtedness until the subordinated debt securities shall be paid in full. 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 subordinated debt securities, shall, as between DTE Electric, its creditors other than the holders of senior indebtedness, and the holders of the subordinated debt securities, be deemed to be a payment by DTE Electric to or on account of the senior indebtedness, it being understood that these provisions of the indenture are and are intended solely for the purpose of defining the relative rights of the holders of the subordinated debt securities, on the one hand, and the holders of the senior indebtedness, on the other hand. Nothing contained in the indenture is intended to or shall impair as between DTE Electric, its creditors other than the holders of senior indebtedness, and the holders of the subordinated debt securities, the obligation of DTE Electric, which is unconditional and absolute, to pay to the holders of the subordinated debt securities the principal of and interest on the subordinated debt securities 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 subordinated debt securities and creditors of DTE Electric other than the holders of the senior indebtedness, nor shall anything therein prevent the holder of any subordinated debt security from exercising all remedies otherwise permitted by applicable law upon default under such subordinated debt security subject to the rights of the holders of senior indebtedness to receive cash, property or securities of DTE Electric otherwise payable or deliverable to the holders of the subordinated debt securities or to a representative of such holders, on their behalf.
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Except as we may provide in the applicable prospectus supplement and supplemental indenture, the term “senior indebtedness” is defined in the indenture as indebtedness incurred by DTE Electric for money borrowed whether outstanding on the date hereof or incurred in the future, all deferrals, renewals or extensions of any such indebtedness and all evidences of indebtedness issued in exchange for any such indebtedness and guarantees by DTE Electric of the foregoing items of indebtedness for money borrowed by persons other than DTE Electric and all obligations as lessee under any and all leases of property, equipment and other assets required to be capitalized on the balance sheet of the lessee under generally accepted accounting principles, unless, in any such case, such indebtedness, guarantee or obligation provides by its terms that it shall not constitute senior indebtedness.
If we issue subordinated debt securities, we will describe the aggregate principal amount of senior indebtedness outstanding as of a recent date in the applicable prospectus supplement. The indenture does not restrict the amount of senior indebtedness that DTE Electric may incur.
Governing Law
The indenture is governed by, and will be construed in accordance with, the laws of the State of New York.
Concerning the Trustees
The Bank of New York Mellon Trust Company, N.A. is the successor trustee under the indenture and the successor trustee under the mortgage. Affiliates of The Bank of New York Mellon Trust Company, N.A. act as lender for, and provide other banking, investment banking and other financial services to, DTE Electric and its affiliates. The Trust Indenture Act contains limitations on the rights of The Bank of New York Mellon Trust Company, N.A., in its capacity as indenture trustee and mortgage trustee, should it become a creditor of DTE Electric, to obtain payment of claims in certain cases or to realize on certain property received by it in respect of any such claims, as security or otherwise. Each of the indenture trustee and the mortgage trustee is permitted to engage in other transactions with DTE Electric and its subsidiaries from time to time, provided that if either such trustee acquires any conflicting interests it must eliminate such conflicts upon the occurrence of an event of default under the indenture or mortgage, as the case may be, or else resign.
Unless we otherwise specify in the applicable prospectus supplement, the securities will be represented by one or more global securities. Each global security will be deposited with, or on behalf of, The Depository Trust Company (“DTC”) and registered in the name of a nominee of DTC.
Portions of the following information concerning DTC and DTC’s book-entry only system have been obtained from sources, including DTC, that we believe to be reliable. We make no representation as to the accuracy of such information.
DTC is a limited-purpose trust company organized under the New York Banking Law, a “banking organization” within the meaning of the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform Commercial Code, and a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act. DTC holds and provides asset servicing for U.S. and non-U.S. equity issues, corporate and municipal debt issues and money market instruments that DTC’s participants (“Direct Participants”) deposit with DTC. DTC also facilitates the post-trade settlement among Direct Participants of sales and other securities transactions in deposited securities, through electronic computerized book-entry transfers and pledges between Direct Participants’ accounts. This eliminates the need for physical movement of securities certificates. Direct Participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations. DTC is a
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wholly owned subsidiary of The Depository Trust & Clearing Corporation (“DTCC”). DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access to the DTC system is also available to others such as both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, and clearing corporations that clear through or maintain a custodial relationship with a Direct Participant, either directly or indirectly (“Indirect Participants”). The DTC Rules applicable to its Participants are on file with the SEC.
Purchases of global securities under the DTC system must be made by or through Direct Participants, which will receive a credit for the global securities on DTC’s records. The ownership interest of each actual purchaser of each security (“Beneficial Owner”) is in turn to be recorded on the Direct and Indirect Participants’ records. Beneficial Owners will not receive written confirmation from DTC of their purchase, but Beneficial Owners are expected to receive written confirmations providing details of the transaction, as well as periodic statements of their holdings, from the Direct or Indirect Participant through which the Beneficial Owner entered into the transaction. Transfers of ownership interests in the securities are to be accomplished by entries made on the books of Direct and Indirect Participants acting on behalf of Beneficial Owners. Beneficial Owners will not receive certificates representing their ownership interests in the global securities except in the event that use of the book-entry system for the global securities is discontinued.
To facilitate subsequent transfers, all global securities deposited by Direct Participants with DTC will be registered in the name of DTC’s partnership nominee, Cede & Co. or such other name as may be requested by an authorized representative of DTC. The deposit of global securities with DTC and their registration in the name of Cede & Co. or such other nominee will effect no change in beneficial ownership. DTC will have no knowledge of the actual Beneficial Owners of the global securities; DTC’s records will reflect only the identity of the Direct Participants to whose accounts such securities are credited, which may or may not be the Beneficial Owners. The Direct and Indirect Participants will remain responsible for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct Participants, by Direct Participants to Indirect Participants, and by Direct Participants and Indirect Participants to Beneficial Owners will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time. Beneficial Owners may wish to take certain steps to augment transmission to them of notices of significant events with respect to the global securities, such as redemptions, tenders, defaults and proposed amendments to the Indenture. Beneficial Owners may wish to ascertain that the nominee holding the global securities for their benefit has agreed to obtain and transmit notices to the Beneficial Owners. In the alternative, Beneficial Owners may wish to provide their names and addresses to the registrar and request that copies of notices be provided directly to them.
Any redemption notices will be sent to DTC. If less than all of a series of global securities are being redeemed, DTC’s practice is to determine by lot the amount of the interest of each Direct Participant to be redeemed.
Neither DTC nor Cede & Co. (nor any other DTC nominee) will consent or vote with respect to securities unless authorized by a Direct Participant in accordance with DTC’s procedures. Under its usual procedures, DTC mails an Omnibus Proxy to us as soon as possible after the record date. The Omnibus Proxy assigns Cede & Co.’s consenting or voting rights to those Direct Participants to whose accounts the securities are credited on the record date (identified in a listing attached to the Omnibus Proxy).
Principal and interest payments, distributions and dividend payments and redemption proceeds, if any, on the global securities will be made to Cede & Co. or such other nominee as may be requested by an authorized representative of DTC. DTC’s practice is to credit Direct Participants’ accounts upon DTC’s receipt of funds and corresponding detail information from the trustee or agent on the payment date in accordance with their
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respective holdings shown on DTC’s records. Payments by Direct and Indirect Participants to Beneficial Owners will be governed by standing instructions and customary practices, as is the case with securities held for the accounts of customers in bearer form or registered in “street-name,” and will be the responsibility of such Participants and not of DTC, the trustee or agent for such securities or us, subject to any statutory or regulatory requirements as may be in effect from time to time. Payment of principal, premium, if any, interest, distributions and dividend payments and redemption proceeds, if any, to Cede & Co. (or such other nominee as may be requested by an authorized representative of DTC) is the responsibility of the appropriate trustee or agent and us, disbursement of such payments to Direct Participants is the responsibility of DTC, and disbursement of such payments to the Beneficial Owners is the responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as securities depository with respect to the securities at any time by giving reasonable notice to us or the trustee. Under such circumstances, in the event that a successor securities depository is not obtained, certificates representing the securities are required to be printed and delivered.
We may decide to discontinue use of the system of book-entry-only transfers through DTC (or a successor securities depository), subject to the procedures of DTC. In that event, certificates representing the securities will be printed and delivered to DTC.
The underwriters, dealers or agents of any of the securities may be direct participants of DTC.
DTE Electric may sell the securities through agents, underwriters or dealers, or directly to one or more purchasers without using underwriters or agents.
DTE Electric may designate one or more agents to sell the securities. Unless otherwise stated in a prospectus supplement, the agents will agree to use their reasonable efforts to solicit purchases for the period of their appointment or to sell securities on a continuing basis.
If DTE Electric uses underwriters for a sale of securities, the underwriters will acquire the securities for their own account. The underwriters may resell the securities in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. The underwriters may sell the securities directly or through underwriting syndicates represented by managing underwriters. Unless otherwise stated in a prospectus supplement, the obligations of the underwriters to purchase the securities will be subject to the conditions set forth in the applicable underwriting agreement. The underwriters will be obligated to purchase all the securities offered if any of those securities are purchased. If DTE Electric uses a dealer in the sale, it will sell the securities to the dealer as principal. The dealer may then resell those securities at varying prices determined at the time of resale. Any initial public offering price and any discounts or concessions allowed or re- allowed or paid to dealers will be described in the applicable prospectus supplement and may be changed from time to time.
Underwriters, dealers and agents that participate in the distribution of the securities may be underwriters as defined in the Securities Act and any discounts or commissions they receive from DTE Electric and any profit on their resale of the securities may be treated as underwriting discounts and commissions under the Securities Act. The applicable prospectus supplement will identify any underwriters, dealers or agents and will describe their compensation. DTE Electric may have agreements with the underwriters, dealers and agents to indemnify them against certain civil liabilities, including liabilities under the Securities Act. Underwriters, dealers and agents may engage in transactions with or perform services for us or our subsidiaries in the ordinary course of their businesses.
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Trading Markets and Listing of Securities
Unless otherwise specified in the applicable prospectus supplement, each class or series of securities will be a new issue with no established trading market. DTE Electric may elect to list any class or series of securities on any exchange but is not obligated to do so. It is possible that one or more underwriters may make a market in a class or series of securities, but the underwriters will not be obligated to do so and may discontinue any market making at any time without notice. DTE Electric cannot give any assurance as to the liquidity of the trading market for any of the securities.
Stabilization Activities
Any underwriter may engage in over-allotment, stabilizing transactions, syndicate-covering transactions and penalty bids under the Exchange Act. Over-allotment involves sales in excess of the offering size, which create a syndicate short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. Syndicate-covering transactions involve purchases of the securities in the open market after the distribution is completed to cover syndicate short positions. Penalty bids permit the underwriters to reclaim a selling concession from a syndicate member when the securities originally sold by the syndicate member are purchased in a syndicate covering transaction to cover syndicate short positions. These stabilizing activities may cause the price of the securities to be higher than it would otherwise be. If commenced, the underwriters may discontinue any of the activities at any time.
The validity of the securities and certain other legal matters will be passed upon for DTE Electric by Michael J. Solo, General Counsel. Mr. Solo beneficially owns shares of DTE Energy common stock. Except as otherwise set forth in a prospectus supplement, certain legal matters relating to the securities will be passed upon for any underwriters, dealers or agents by Bracewell LLP, New York, New York.
Bracewell LLP has represented, and may in the future continue to represent, us and certain of our affiliates in connection with matters unrelated to the offering of securities described in this prospectus.
The consolidated financial statements incorporated in this prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2021 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
Available Information
We file annual, quarterly and special reports, and other information with the Securities and Exchange Commission. Our SEC filings are available to the public over the Internet at the SEC’s web site at http://www.sec.gov.
Our parent, DTE Energy, maintains a web site at http://www.dteenergy.com that contains information about us. The information on DTE Energy’s web site is not incorporated by reference into this prospectus and you should not consider it part of this prospectus.
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Incorporation by Reference
The SEC allows us to “incorporate by reference” the information we file with them, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is an important part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (other than information in such documents that is deemed not to be filed):
| • | Annual Report on Form 10-K for the year ended December 31, 2021 and |
| • | Current Reports on Form 8-K filed March 14, 2022 and March 17, 2022. |
Each of these documents is available from the SEC’s web site described above. We will provide without charge to each person, including any beneficial owner, to whom a copy of this prospectus is delivered, on the written or oral request of that person, a copy of any or all of the documents incorporated in this prospectus or in any related prospectus supplement by reference, excluding the exhibits to those documents unless the exhibits are specifically incorporated by reference therein. You may make such a request by writing or telephoning DTE Electric Investor Relations at:
DTE Electric Company
Attention: Investor Relations, 1150 WCB
One Energy Plaza
Detroit, Michigan 48226-1279
(313) 235-8030
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 14. | Other Expenses of Issuance and Distribution |
The estimated expenses, other than underwriting discounts and commissions, in connection with the issuance and distribution of the securities are as follows:
| Amount to be Paid |
||||
| SEC filing fee for registration statement |
$ | (1) | ||
| Printing and mailing expenses |
(2) | |||
| Legal fees and expenses |
(2) | |||
| Accounting fees and expenses |
(2) | |||
| Trustees fees and expenses |
(2) | |||
| Rating agencies’ fees |
(2) | |||
| Miscellaneous |
(2) | |||
| Total |
(2) | |||
| (1) | To be deferred pursuant to Rule 456(b) and calculated in connection with the offering of securities under this registration statement pursuant to Rule 457(r). |
| (2) | These expenses are calculated based on the securities offered and the number of issuances and, accordingly, cannot be estimated at this time. |
| Item 15. | Indemnification of Directors and Officers |
(a) Indemnification. The DTE Energy articles of incorporation and the DTE Electric articles of incorporation provide that, to the fullest extent permitted by the Michigan Business Corporation Act (the “Corporation Act”) or any other applicable law, no director shall be personally liable to DTE Energy or DTE Electric, as applicable, or their respective shareholders for or with respect to any acts or omissions in the performance of his or her duties as a director.
DTE Energy’s articles of incorporation and DTE Electric’s articles of incorporation provide that each person who is or was or had agreed to become a director or officer, or each such person who is or was serving or who had agreed to serve at the request of the board of directors as an employee or agent or as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (including the heirs, executors, administrators or estate of such person), shall be indemnified to the full extent permitted by the Corporation Act or any other applicable laws as presently or hereafter in effect. DTE Energy’s articles of incorporation further state that DTE Energy may enter into one or more agreements with any person, which agreements provide for indemnification greater or different than that provided for in the articles of incorporation. In addition, pursuant to the authority granted by Article VII of its articles of incorporation, DTE Electric has entered into indemnification agreements with its officers and directors which provide for indemnification to the maximum extent permitted by law. These agreements set forth certain procedures for the advancement by DTE Electric of certain expenses to indemnitees.
Section 209(1)(c) of the Corporation Act permits a corporation to eliminate or limit a director’s liability to the corporation or its shareholders for money damages for any action taken or any failure to take action as a director, except liability for (1) the amount of financial benefit received by a director to which he or she is not entitled; (2) the intentional infliction of harm on the corporation or the shareholders; (3) a violation of Section 551 of the Corporation Act, dealing with unlawful distributions; or (4) an intentional criminal act.
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Section 561 of the Corporation Act permits a corporation to indemnify its directors and officers against expenses (including attorneys’ fees), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by them in connection with any action, suit or proceeding brought by third parties, if such directors or officers acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation or its shareholders and, with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful. Sections 562 and 564c of the Corporation Act provide that in a derivative action, i.e., one by or in the right of the corporation, indemnification may be made for expenses, including attorneys’ fees and amounts paid in settlement, actually and reasonably incurred by directors and officers in connection with the action or suit, but only with respect to a matter as to which they have acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation or its shareholders, except that no indemnification will be made if such person will have been found liable to the corporation, unless and only to the extent that the court in which the action or suit was brought has determined upon application that the defendant officers or directors are fairly and reasonably entitled to indemnity for such expenses in view of all relevant circumstances, despite such adjudication of liability.
Section 563 of the Corporation Act provides that a director or officer who has been successful on the merits or otherwise in defense of an action, suit or proceeding referred to in Sections 561 and 562, or in defense of a claim, issue, or matter in the action, suit or proceeding, shall be indemnified against actual and reasonable expenses, including attorney’s fees, incurred by him or her in connection with the action, suit or proceeding and an action suit or proceeding brought to enforce this mandatory indemnification.
Reference is made to the underwriting agreement or agreements filed or incorporated by reference as exhibits hereto, which will provide for indemnification of controlling persons, directors and certain officers of the registrant against certain liabilities.
(b) Insurance. DTE Energy and DTE Electric (with respect to indemnification liability) and their respective directors and officers (in their capacities as such) are insured against liability for wrongful acts (to the extent defined) under fifteen insurance policies providing aggregate coverage for DTE Energy and its affiliates, including DTE Electric, in the amount of $255 million.
| Item 16. | Exhibits |
Certain exhibits listed below refer to “The Detroit Edison Company” or “Detroit Edison” and were effective prior to the name change to DTE Electric Company effective January 1, 2013.
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| Supplemental Indenture, dated as of November 1, 2021, to the Amended and Restated Indenture, dated as of April 9, 2001, by and between DTE Energy Company and The Bank of New York Mellon Trust Company, N.A., as successor trustee (Exhibit 4.1 to DTE Energy’s Form 8-K dated November 24, 2021). (2021 Series E) | ||
| Form of DTE Energy’s Senior Supplemental Indenture (including Form of Note as Exhibit A). (incorporated herein by reference to Exhibit 4.13 to DTE Energy’s and DTE Electric’s Registration Statement on Form S-3 filed April 1, 2016 (File No. 333-210556 and 333-210556-01)) | ||
| Form of DTE Energy’s Subordinated Supplemental Indenture (including Form of Note as Exhibit A). (incorporated herein by reference to Exhibit 4.14 to DTE Energy’s and DTE Electric’s Registration Statement on Form S-3 filed April 1, 2016 (File No. 333-210556 and 333-210556-01)) | ||
| 4(b)* | Mortgage and Deed of Trust, dated as of October 1, 1924, between The Detroit Edison Company and The Bank of New York Mellon Trust Company, N.A., as successor trustee (Exhibit B-1 to Detroit Edison’s Registration Statement on Form A-2 (File No. 2-1630)) and indentures supplemental thereto, dated as of dates indicated below, and filed as exhibits to the filings set forth below: | |
| Supplemental Indenture, dated as of December 1, 1940, to the Mortgage and Deed of Trust, dated as of October 1, 1924, between The Detroit Edison Company and The Bank of New York Mellon Trust Company, N.A., as successor trustee (Exhibit B-14 to Detroit Edison’s Registration Statement on Form A-2 (File No. 2-4609)). (amendment) | ||
| Supplemental Indenture, dated as of September 1, 1947, to the Mortgage and Deed of Trust, dated as of October 1, 1924, between The Detroit Edison Company and The Bank of New York Mellon Trust Company, N.A., as successor trustee (Exhibit B-20 to Detroit Edison’s Registration Statement on Form S-1 (File No. 2-7136)). (amendment) | ||
| Supplemental Indenture, dated as of March 1, 1950, to the Mortgage and Deed of Trust, dated as of October 1, 1924, between The Detroit Edison Company and The Bank of New York Mellon Trust Company, N.A., as successor trustee (Exhibit B-22 to Detroit Edison’s Registration Statement on Form S-1 (File No. 2-8290)). (amendment) | ||
| Supplemental Indenture, dated as of November 15, 1951, to the Mortgage and Deed of Trust, dated as of October 1, 1924, between The Detroit Edison Company and The Bank of New York Mellon Trust Company, N.A., as successor trustee (Exhibit B-23 to Detroit Edison’s Registration Statement on Form S-1 (File No. 2-9226)). (amendment) | ||
| Supplemental Indenture, dated as of August 15, 1957, to the Mortgage and Deed of Trust, dated as of October 1, 1924, between The Detroit Edison Company and The Bank of New York Mellon Trust Company, N.A., as successor trustee (Exhibit 3-B-30 to Detroit Edison’s Form 8-K dated September 11, 1957). (amendment) | ||
| Supplemental Indenture, dated as of December 1, 1966, to the Mortgage and Deed of Trust, dated as of October 1, 1924, between The Detroit Edison Company and The Bank of New York Mellon Trust Company, N.A., as successor trustee (Exhibit 2-B-32 to Detroit Edison’s Registration Statement on Form S-9 (File No. 2-25664)). (amendment) | ||
| Supplemental Indenture, dated as of February 29, 1992, to the Mortgage and Deed of Trust, dated as of October 1, 1924, between The Detroit Edison Company and The Bank of New York Mellon Trust Company, N.A., as successor trustee (Exhibit 4-187 to Detroit Edison’s Form 10-Q for the quarter ended March 31, 1998). (1992 Series AP) | ||
| Supplemental Indenture, dated as of April 26, 1993, to the Mortgage and Deed of Trust, dated as of October 1, 1924, between The Detroit Edison Company and The Bank of New York Mellon Trust Company, N.A., as successor trustee (Exhibit 4-215 to Detroit Edison’s Form 10-K for the year ended December 31, 2000). (amendment) | ||
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| * | Previously filed. |
| † | To be filed in a current report on Form 8-K or by amendment, as contemplated by Item 601(b)(1) of Regulation S-K under the Securities Act. |
| Item 17. | Undertakings |
| (a) | The undersigned registrants hereby undertake: |
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; and
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrants pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
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(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrants pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrants under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
The undersigned registrants undertake that in a primary offering of securities of the undersigned registrants pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrants will be sellers to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrants relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrants or used or referred to by the undersigned registrants;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrants or their securities provided by or on behalf of the undersigned registrants; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrants to the purchaser.
(b) The undersigned registrants hereby undertake that, for purposes of determining any liability under the Securities Act of 1933, each filing of DTE Electric’s and DTE Energy’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrants pursuant to the foregoing provisions, or otherwise, the registrants have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the
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registrants of expenses incurred or paid by a director, officer or controlling person of the registrants in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrants will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
(d) The undersigned registrants hereby undertake that:
(1) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrants pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Detroit, State of Michigan, on the 8th day of April, 2022
| DTE ENERGY COMPANY | ||
| (Registrant) | ||
| By: | /s/ Gerardo Norcia | |
| Gerardo Norcia | ||
| President and | ||
| Chief Executive Officer | ||
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature |
Title |
Date | ||
| /s/ Gerardo Norcia Gerardo Norcia |
Director, President and Chief Executive Officer (Principal Executive Officer) |
April 8, 2022 | ||
| /s/ David Ruud David Ruud |
Senior Vice President and Chief Financial Officer (Principal Financial Officer) |
April 8, 2022 | ||
| /s/ Tracy J. Myrick Tracy J. Myrick |
Chief Accounting Officer (Principal Accounting Officer) |
April 8, 2022 | ||
| * Gerard M. Anderson |
Director | April 8, 2022 | ||
| * David A. Brandon |
Director | April 8, 2022 | ||
| * Charles G. McClure, Jr. |
Director | April 8, 2022 | ||
| * Gail J. McGovern |
Director | April 8, 2022 | ||
| * Mark A. Murray |
Director | April 8, 2022 | ||
| * Ruth G. Shaw |
Director | April 8, 2022 | ||
| * Robert C. Skaggs, Jr. |
Director | April 8, 2022 | ||
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| Signature |
Title |
Date | ||
| * David A. Thomas |
Director | April 8, 2022 | ||
| * Gary Torgow |
Director | April 8, 2022 | ||
| * James H. Vandenberghe |
Director | April 8, 2022 | ||
| * Valerie M. Williams |
Director | April 8, 2022 | ||
| *By: | /s/ Timothy E. Kraepel Timothy E. Kraepel Attorney-in-Fact |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Detroit, State of Michigan, on the 8th day of April, 2022.
| DTE ELECTRIC COMPANY | ||
| (Registrant) | ||
| By: | /s/ Gerardo Norcia | |
| Gerardo Norcia | ||
| Chief Executive Officer | ||
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Each person whose signature appears below hereby constitutes and appoints Timothy J. Lepczyk, Sarah M. Bello, and Timothy E. Kraepel the undersigned’s true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for the undersigned and in the undersigned’s name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement, and to cause the same to be filed, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and desirable to be done, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all acts and things the said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
| Signature |
Title |
Date | ||
| /s/ Gerardo Norcia Gerardo Norcia |
Director and Chief Executive Officer (Principal Executive Officer) |
April 8, 2022 | ||
| /s/ David Ruud David Ruud |
Director, Senior Vice President and Chief Financial Officer (Principal Financial Officer) | April 8, 2022 | ||
| /s/ Tracy J. Myrick Tracy J. Myrick |
Chief Accounting Officer (Principal Accounting Officer) |
April 8, 2022 | ||
| /s/ Lisa A. Muschong Lisa A. Muschong |
Director | April 8, 2022 | ||
| /s/ JoAnn Chávez JoAnn Chávez |
Director | April 8, 2022 | ||
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Exhibit 4.1
INDENTURE
DATED AS OF FEBRUARY 1, 2022
DTE ELECTRIC COMPANY
formerly known as
The Detroit Edison Company
(One Energy Plaza, Detroit, Michigan 48226)
TO
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
(500 Ross Street, 12th Floor, Pittsburgh, PA 15262)
AS TRUSTEE
SUPPLEMENTAL TO MORTGAGE AND DEED OF TRUST
DATED AS OF OCTOBER 1, 1924
PROVIDING FOR
(A) GENERAL AND REFUNDING MORTGAGE BONDS,
2022 SERIES A AND 2022 GREEN SERIES B
AND
(B) RECORDING AND FILING DATA
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| PAGE | ||||
| PARTIES |
3 | |||
| RECITALS |
||||
| Original Indenture and Supplemental Indentures |
3 | |||
| Issue of Bonds Under Indenture |
4 | |||
| Bonds Heretofore Issued |
4 | |||
| Reason for Creation of New Series |
11 | |||
| Bonds to be 2022 Series A and 2022 Green Series B |
11 | |||
| Further Assurance |
11 | |||
| Authorization of Supplemental Indenture |
11 | |||
| Consideration for Supplemental Indenture |
11 | |||
| PART I. CREATION OF THREE HUNDRED EIGHTY-FIFTH SERIES OF BONDS, GENERAL AND REFUNDING MORTGAGE BONDS, 2022 SERIES A |
12 | |||
| Sec. 1. Terms of Bonds of 2022 Series A |
12 | |||
| Sec. 2. Redemption of Bonds of 2022 Series A |
13 | |||
| Sec. 3. Exchange and Transfer |
15 | |||
| Sec. 4. Form of Bonds of 2022 Series A |
16 | |||
| Form of Trustee’s Certificate |
20 | |||
| PART II. CREATION OF THREE HUNDRED EIGHTY-SIXTH SERIES OF BONDS, GENERAL AND REFUNDING MORTGAGE BONDS, 2022 GREEN SERIES B |
21 | |||
| Sec. 1. Terms of Bonds of 2022 Green Series B |
21 | |||
| Sec. 2. Redemption of Bonds of 2022 Green Series B |
22 | |||
| Sec. 3. Exchange and Transfer |
24 | |||
| Sec. 4. Form of Bonds of 2022 Green Series B |
24 | |||
| Form of Trustee’s Certificate |
29 | |||
| PART III. RECORDING AND FILING DATA |
29 | |||
| Recording and Filing of Original Indenture |
29 | |||
| Recording and Filing of Supplemental Indentures |
30 | |||
| Recording and Filing of Supplemental Indenture Dated as of March 1, 2021 |
34 | |||
| Recording of Certificates of Provision for Payment |
35 | |||
| PART IV. THE TRUSTEE |
35 | |||
| Terms and Conditions of Acceptance of Trust by Trustee |
35 | |||
| PART V. MISCELLANEOUS |
35 | |||
| Confirmation of Section 318(c) of Trust Indenture Act |
35 | |||
| Execution in Counterparts |
35 | |||
| EXECUTION |
||||
| Testimonium |
36 | |||
| Execution by Company |
38 | |||
| Acknowledgment of Execution by Company |
39 | |||
| Execution by Trustee |
40 | |||
| Acknowledgment of Execution by Trustee |
41 | |||
| Affidavit as to Consideration and Good Faith |
42 | |||
| * | This Table of Contents shall not have any bearing upon the interpretation of any of the terms or provisions of this Indenture. |
2
| PARTIES. | SUPPLEMENTAL INDENTURE, dated as of the 1st day of February, in the year 2022, between DTE ELECTRIC COMPANY, formerly known as The Detroit Edison Company, a corporation organized and existing under the laws of the State of Michigan and a public utility (hereinafter called the “Company”), party of the first part, and The Bank of New York Mellon Trust Company, N.A., a trust company organized and existing under the laws of the United States, having a corporate trust agency office at 500 Ross Street, 12th Floor, Pittsburgh, Pennsylvania 15262, as successor Trustee under the Mortgage and Deed of Trust hereinafter mentioned (hereinafter called the “Trustee”), party of the second part. | |
| ORIGINAL INDENTURE AND SUPPLEMENTAL INDENTURES. |
WHEREAS, the Company has heretofore executed and delivered its Mortgage and Deed of Trust (hereinafter referred to as the “Original Indenture”), dated as of October 1, 1924, to the Trustee, for the security of all bonds of the Company outstanding thereunder, and pursuant to the terms and provisions of the Original Indenture, indentures dated as of, respectively, June 1, 1925, August 1, 1927, February 1, 1931, June 1, 1931, October 1, 1932, September 25, 1935, September 1, 1936, November 1, 1936, February 1, 1940, December 1, 1940, September 1, 1947, March 1, 1950, November 15, 1951, January 15, 1953, May 1, 1953, March 15, 1954, May 15, 1955, August 15, 1957, June 1, 1959, December 1, 1966, October 1, 1968, December 1, 1969, July 1, 1970, December 15, 1970, June 15, 1971, November 15, 1971, January 15, 1973, May 1, 1974, October 1, 1974, January 15, 1975, November 1, 1975, December 15, 1975, February 1, 1976, June 15, 1976, July 15, 1976, February 15, 1977, March 1, 1977, June 15, 1977, July 1, 1977, October 1, 1977, June 1, 1978, October 15, 1978, March 15, 1979, July 1, 1979, September 1, 1979, September 15, 1979, January 1, 1980, April 1, 1980, August 15, 1980, August 1, 1981, November 1, 1981, June 30, 1982, August 15, 1982, June 1, 1983, October 1, 1984, May 1, 1985, May 15, 1985, October 15, 1985, April 1, 1986, August 15, 1986, November 30, 1986, January 31, 1987, April 1, 1987, August 15, 1987, November 30, 1987, June 15, 1989, July 15, 1989, December 1, 1989, February 15, 1990, November 1, 1990, April 1, 1991, May 1, 1991, May 15, 1991, September 1, 1991, November 1, 1991, January 15, 1992, February 29, 1992, April 15, 1992, July 15, 1992, July 31, 1992, November 30, 1992, December 15, 1992, January 1, 1993, March 1, 1993, March 15, 1993, April 1, 1993, April 26, 1993, May 31, 1993, June 30, 1993, June 30, 1993, September 15, 1993, March 1, 1994, June 15, 1994, August 15, 1994, December 1, 1994, August 1, 1995, August 1, 1999, August 15, 1999, January 1, 2000, April 15, 2000, August 1, 2000, March 15, 2001, May 1, 2001, August 15, 2001, September 15, 2001, September 17, 2002, October 15, 2002, December 1, 2002, August 1, 2003, March 15, 2004, July 1, 2004, February 1, 2005, April 1, 2005, August 1, 2005, September 15, 2005, September 30, 2005, May 15, 2006, December 1, 2006, December 1, 2007, April 1, 2008, May 1, 2008, June 1, 2008, July 1, 2008, October 1, 2008, December 1, 2008, March 15, 2009, November 1, 2009, August 1, 2010, September 1, 2010, December 1, 2010, March 1, 2011, May 15, 2011, August 1, 2011, August 15, 2011, September 1, 2011, June 20, 2012, March 15, 2013, August 1, 2013 June 1, 2014, July 1, 2014, March 1, 2015, May 1, 2016, August 1, 2017, May 1, 2018, February 1, 2019, February 1, 2020, April 1, 2020 and March 1, 2021 supplemental to the Original Indenture, have heretofore been entered into between the Company and the Trustee (the Original Indenture and all indentures supplemental thereto together being hereinafter sometimes referred to as the “Indenture”); and | |
3
| ISSUE OF BONDS UNDER INDENTURE. | WHEREAS, the Indenture provides that said bonds shall be issuable in one or more series, and makes provision that the rates of interest and dates for the payment thereof, the date of maturity or dates of maturity, if of serial maturity, the terms and rates of optional redemption (if redeemable), the forms of registered bonds without coupons of any series and any other provisions and agreements in respect thereof, in the Indenture provided and permitted, as the Board of Directors may determine, may be expressed in a supplemental indenture to be made by the Company to the Trustee thereunder; and | |||
| BONDS HERETOFORE ISSUED. | WHEREAS, bonds in the principal amount of Twenty-two billion, one hundred three million, fifty-seven thousand dollars ($22,103,057,000) have heretofore been issued under the indenture as follows, viz: | |||
| (1) |
Bonds of Series A | — Principal Amount $26,016,000, | ||
| (2) |
Bonds of Series B | — Principal Amount $23,000,000, | ||
| (3) |
Bonds of Series C | — Principal Amount $20,000,000, | ||
| (4) |
Bonds of Series D | — Principal Amount $50,000,000, | ||
| (5) |
Bonds of Series E | — Principal Amount $15,000,000, | ||
| (6) |
Bonds of Series F | — Principal Amount $49,000,000, | ||
| (7) |
Bonds of Series G | — Principal Amount $35,000,000, | ||
| (8) |
Bonds of Series H | — Principal Amount $50,000,000, | ||
| (9) |
Bonds of Series I | — Principal Amount $60,000,000, | ||
| (10) |
Bonds of Series J | — Principal Amount $35,000,000, | ||
| (11) |
Bonds of Series K | — Principal Amount $40,000,000, | ||
| (12) |
Bonds of Series L | — Principal Amount $24,000,000, | ||
| (13) |
Bonds of Series M | — Principal Amount $40,000,000, | ||
| (14) |
Bonds of Series N | — Principal Amount $40,000,000, | ||
| (15) |
Bonds of Series O | — Principal Amount $60,000,000, | ||
| (16) |
Bonds of Series P | — Principal Amount $70,000,000, | ||
| (17) |
Bonds of Series Q | — Principal Amount $40,000,000, | ||
| (18) |
Bonds of Series W | — Principal Amount $50,000,000, | ||
| (19) |
Bonds of Series AA | — Principal Amount $100,000,000, | ||
| (20) |
Bonds of Series BB | — Principal Amount $50,000,000, | ||
| (21) |
Bonds of Series CC | — Principal Amount $50,000,000, | ||
| (22) |
Bonds of Series UU | — Principal Amount $100,000,000, | ||
4
| (23-31) |
Bonds of Series DDP Nos. 1-9 | — Principal Amount $14,305,000, | ||
| (32-45) |
Bonds of Series FFR Nos. 1-14 | — Principal Amount $45,600,000, | ||
| (46-67) |
Bonds of Series GGP Nos. 1-22 | — Principal Amount $42,300,000, | ||
| (68) |
Bonds of Series HH | — Principal Amount $50,000,000, | ||
| (69-90) |
Bonds of Series IIP Nos. 1-22 | — Principal Amount $3,750,000, | ||
| (91-98) |
Bonds of Series JJP Nos. 1-8 | — Principal Amount $6,850,000, | ||
| (99-107) |
Bonds of Series KKP Nos. 1-9 | — Principal Amount $34,890,000, | ||
| (108-122) |
Bonds of Series LLP Nos. 1-15 | — Principal Amount $8,850,000, | ||
| (123-143) |
Bonds of Series NNP Nos. 1-21 | — Principal Amount $47,950,000, | ||
| (144-161) |
Bonds of Series OOP Nos. 1-18 | — Principal Amount $18,880,000, | ||
| (162-180) |
Bonds of Series QQP Nos. 1-19 | — Principal Amount $13,650,000, | ||
| (181-195) |
Bonds of Series TTP Nos. 1-15 | — Principal Amount $3,800,000, | ||
| (196) |
Bonds of 1980 Series A | — Principal Amount $50,000,000, | ||
| (197-221) |
Bonds of 1980 Series CP Nos. 1-25 | — Principal Amount $35,000,000, | ||
| (222-232) |
Bonds of 1980 Series DP Nos. 1-11 | — Principal Amount $10,750,000, | ||
| (233-248) |
Bonds of 1981 Series AP Nos. 1-16 | — Principal Amount $124,000,000, | ||
| (249) |
Bonds of 1985 Series A | — Principal Amount $35,000,000, | ||
| (250) |
Bonds of 1985 Series B | — Principal Amount $50,000,000, | ||
| (251) |
Bonds of Series PP | — Principal Amount $70,000,000, | ||
| (252) |
Bonds of Series RR | — Principal Amount $70,000,000, | ||
| (253) |
Bonds of Series EE | — Principal Amount $50,000,000, | ||
| (254-255) |
Bonds of Series MMP and MMP No. 2 | — Principal Amount $5,430,000, | ||
| (256) |
Bonds of Series T | — Principal Amount $75,000,000, | ||
| (257) |
Bonds of Series U | — Principal Amount $75,000,000, | ||
| (258) |
Bonds of 1986 Series B | — Principal Amount $100,000,000, | ||
| (259) |
Bonds of 1987 Series D | — Principal Amount $250,000,000, | ||
| (260) |
Bonds of 1987 Series E | — Principal Amount $150,000,000, | ||
| (261) |
Bonds of 1987 Series C | — Principal Amount $225,000,000, | ||
5
| (262) |
Bonds of Series V | — Principal Amount $100,000,000, | ||
| (263) |
Bonds of Series SS | — Principal Amount $150,000,000, | ||
| (264) |
Bonds of 1980 Series B | — Principal Amount $100,000,000, | ||
| (265) |
Bonds of 1986 Series C | — Principal Amount $200,000,000, | ||
| (266) |
Bonds of 1986 Series A | — Principal Amount $200,000,000, | ||
| (267) |
Bonds of 1987 Series B | — Principal Amount $175,000,000, | ||
| (268) |
Bonds of Series X | — Principal Amount $100,000,000, | ||
| (269) |
Bonds of 1987 Series F | — Principal Amount $200,000,000, | ||
| (270) |
Bonds of 1987 Series A | — Principal Amount $300,000,000, | ||
| (271) |
Bonds of Series Y | — Principal Amount $60,000,000, | ||
| (272) |
Bonds of Series Z | — Principal Amount $100,000,000, | ||
| (273) |
Bonds of 1989 Series A | — Principal Amount $300,000,000, | ||
| (274) |
Bonds of 1984 Series AP | — Principal Amount $2,400,000, | ||
| (275) |
Bonds of 1984 Series BP | — Principal Amount $7,750,000, | ||
| (276) |
Bonds of Series R | — Principal Amount $100,000,000, | ||
| (277) |
Bonds of Series S | — Principal Amount $150,000,000, | ||
| (278) |
Bonds of 1993 Series D | — Principal Amount $100,000,000, | ||
| (279) |
Bonds of 1992 Series E | — Principal Amount $50,000,000, | ||
| (280) |
Bonds of 1993 Series B | — Principal Amount $50,000,000, | ||
| (281) |
Bonds of 1989 Series BP | — Principal Amount $66,565,000, | ||
| (282) |
Bonds of 1990 Series A | — Principal Amount $194,649,000, | ||
| (283) |
Bonds of 1990 Series D | — Principal Amount $0, | ||
| (284) |
Bonds of 1993 Series G | — Principal Amount $225,000,000, | ||
| (285) |
Bonds of 1993 Series K | — Principal Amount $160,000,000, | ||
| (286) |
Bonds of 1991 Series EP | — Principal Amount $41,480,000, | ||
| (287) |
Bonds of 1993 Series H | — Principal Amount $50,000,000, | ||
| (288) |
Bonds of 1999 Series D | — Principal Amount $40,000,000, | ||
| (289) |
Bonds of 1991 Series FP | — Principal Amount $98,375,000, | ||
6
| (290) |
Bonds of 1992 Series BP | — Principal Amount $20,975,000, | ||
| (291) |
Bonds of 1992 Series D | — Principal Amount $300,000,000, | ||
| (292) |
Bonds of 1992 Series CP | — Principal Amount $35,000,000, | ||
| (293) |
Bonds of 1993 Series C | — Principal Amount $225,000,000, | ||
| (294) |
Bonds of 1993 Series E | — Principal Amount $400,000,000, | ||
| (295) |
Bonds of 1993 Series J | — Principal Amount $300,000,000, | ||
| (296-301) |
Bonds of Series KKP Nos. 10-15 | — Principal Amount $179,590,000, | ||
| (302) |
Bonds of 1989 Series BP No. 2 | — Principal Amount $36,000,000, | ||
| (303) |
Bonds of 1993 Series FP | — Principal Amount $5,685,000, | ||
| (304) |
Bonds of 1993 Series IP | — Principal Amount $5,825,000, | ||
| (305) |
Bonds of 1994 Series AP | — Principal Amount $7,535,000, | ||
| (306) |
Bonds of 1994 Series BP | — Principal Amount $12,935,000, | ||
| (307) |
Bonds of 1994 Series DP | — Principal Amount $23,700,000, | ||
| (308) |
Bonds of 1994 Series C | — Principal Amount $200,000,000, | ||
| (309) |
Bonds of 2000 Series A | — Principal Amount $220,000,000, | ||
| (310) |
Bonds of 2005 Series A | — Principal Amount $200,000,000, | ||
| (311) |
Bonds of 1995 Series AP | — Principal Amount $97,000,000, | ||
| (312) |
Bonds of 1995 Series BP | — Principal Amount $22,175,000, | ||
| (313) |
Bonds of 2001 Series D | — Principal Amount $200,000,000, | ||
| (314) |
Bonds of 2005 Series B | — Principal Amount $200,000,000, | ||
| (315) |
Bonds of 2006 Series CT | — Principal Amount $68,500,000, | ||
| (316) |
Bonds of 2005 Series DT | — Principal Amount $119,175,000, | ||
| (317) |
Bonds of 1991 Series AP | — Principal Amount $32,375,000, | ||
| (318) |
Bonds of 2008 Series DT | — Principal Amount $68,500,000, | ||
| (319) |
Bonds of 1993 Series AP | — Principal Amount $65,000,000, | ||
| (320) |
Bonds of 2001 Series E | — Principal Amount $500,000,000, | ||
| (321) |
Bonds of 2001 Series AP | — Principal Amount $31,000,000, | ||
| (322) |
Bonds of 1991 Series BP | — Principal Amount $25,910,000, | ||
7
| (323) |
Bonds of 2001 Series BP | — Principal Amount $82,350,000, | ||
| (324) |
Bonds of 1999 Series AP | — Principal Amount $118,360,000, | ||
| (325) |
Bonds of 1999 Series CP | — Principal Amount $66,565,000, | ||
| (326) |
Bonds of 1999 Series BP | — Principal Amount $39,745,000, | ||
| (327) |
Bonds of 2001 Series CP | — Principal Amount $139,855,000, | ||
| (328) |
Bonds of 2000 Series B | — Principal Amount $50,745,000, | ||
| (329) |
Bonds of 2002 Series A | — Principal Amount $225,000,000, | ||
| (330) |
Bonds of 2002 Series C | — Principal Amount $64,300,000, | ||
| (331) |
Bonds of 2002 Series D | — Principal Amount $55,975,000, | ||
| (332) |
Bonds of 2009 Series CT | — Principal Amount $65,000,000, | ||
| (333) |
Bonds of 2003 Series A | — Principal Amount $49,000,000, | ||
| (334) |
Bonds of 2008 Series J | — Principal Amount $250,000,000, | ||
| (335) |
Bonds of 2008 Series LT | — Principal Amount $50,000,000 | ||
| (336) |
Bonds of 1990 Series C | — Principal Amount $85,475,000, | ||
| (337) |
Bonds of 1990 Series F | — Principal Amount $0, | ||
| (338) |
Bonds of 2011 Series AT | — Principal Amount $31,000,000, | ||
| (339) |
Bonds of 2004 Series B | — Principal Amount $31,980,000, | ||
| (340) |
Bonds of 2004 Series A | — Principal Amount $36,000,000, | ||
| (341) |
Bonds of 2009 Series BT | — Principal Amount $68,5000,000, | ||
| (342) |
Bonds of 2004 Series D | — Principal Amount $200,000,000, | ||
| (343) |
Bonds of 2005 Series AR | — Principal Amount $200,000,000, | ||
| (344) |
Bonds of 2010 Series CT | — Principal Amount $19,855,000, | ||
| (345) |
Bonds of 1990 Series B | — Principal Amount $256,932,000, | ||
| (346) |
Bonds of 1990 Series E | — Principal Amount $0, | ||
| (347) |
Bonds of 2008 Series G | — Principal Amount $300,000,000, | ||
| (348) |
Bonds of 2008 Series KT | — Principal Amount $32,375,000, | ||
| (349) |
Bonds of 2010 Series B | — Principal Amount $300,000,000, | ||
| (350) |
Bonds of 2010 Series A | — Principal Amount $300,000,000, | ||
8
| (351) |
Bonds of 1991 Series CP | — Principal Amount $32,800,000, | ||
| (352) |
Bonds of 1991 Series DP | — Principal Amount $37,600,000, and | ||
| (353) |
Bonds of 2011 Series B | — Principal Amount $250,000,000 | ||
| all of which have either been retired and cancelled, or no longer represent obligations of the Company, having matured or having been called for redemption and funds necessary to effect the payment, redemption and retirement thereof having been deposited with the Trustee as a special trust fund to be applied for such purpose; | ||||
| (354) |
Bonds of 1992 Series AP in the principal amount of Sixty-six million dollars ($66,000,000), all of which are outstanding at the date hereof; | |||
| (355) |
Bonds of 2002 Series B in the principal amount of Two hundred twenty-fifty million dollars ($225,000,000) all of which are outstanding at the date hereof; | |||
| (356) |
Bonds of 2005 Series BR in the principal amount of Two hundred million dollars ($200,000,000) all of which are outstanding at the date hereof; | |||
| (357) |
Bonds of 2005 Series C in the principal amount of One hundred million dollars ($100,000,000) all of which are outstanding at the date hereof; | |||
| (358) |
Bonds of 2005 Series E in the principal amount of Two hundred fifty million dollars ($250,000,000) all of which are outstanding at the date hereof; | |||
| (359) |
Bonds of 2006 Series A in the principal amount of Two hundred fifty million dollars ($250,000,000) all of which are outstanding at the date hereof; | |||
| (360) |
Bonds of 2007 Series A in the principal amount of Fifty million dollars ($50,000,000) all of which are outstanding at the date hereof; | |||
| (361) |
Bonds of 2008 Series ET in the principal amount of One hundred nineteen million one hundred seventy-five dollars ($119,175,000) of which fifty-nine million one hundred seventy-five thousand dollars ($59,175,000) are outstanding at the date hereof; | |||
| (362) |
Bonds of 2011 Series D in the principal amount of One hundred two million dollars ($102,000,000) all of which are outstanding at the date hereof | |||
| (363) |
Bonds of 2011 Series E in the principal amount of Seventy-seven million dollars ($77,000,000) all of which are outstanding at the date hereof | |||
| (364) |
Bonds of 2011 Series F in the principal amount of Forty-six million dollars ($46,000,000) all of which are outstanding at the date hereof | |||
| (365) |
Bonds of 2011 Series GT in the principal amount of Eighty-two million three hundred fifty thousand dollars ($82,350,000) all of which are outstanding at the date hereof | |||
| (366) |
Bonds of 2011 Series H in the principal amount of One hundred forty million dollars ($140,000,000) all of which are outstanding at the date hereof | |||
| (367) |
Bonds of 2012 Series A in the principal amount of Two hundred fifty million dollars ($250,000,000) all of which are outstanding at the date hereof | |||
9
| (368) |
Bonds of 2012 Series B in the principal amount of Two hundred fifty million dollars ($250,000,000) all of which are outstanding at the date hereof | |
| (369) |
Bonds of 2013 Series A in the principal amount of Three hundred seventy-five million dollars ($375,000,000) all of which are outstanding at the date hereof | |
| (370) |
Bonds of 2013 Series B in the principal amount of Four hundred million dollars ($400,000,000) all of which are outstanding at the date hereof | |
| (371) |
Bonds of 2014 Series A in the principal amount of one hundred million dollars ($100,000,000) all of which are outstanding at the date hereof | |
| (372) |
Bonds of 2014 Series B in the principal amount of One hundred fifty million dollars ($150,000,000) all of which are outstanding at the date hereof | |
| (373) |
Bonds of 2014 Series D in the principal amount of Three hundred and fifty million dollars ($350,000,000) all of which are outstanding at the date hereof; | |
| (374) |
Bonds of 2014 Series E in the principal amount of Three hundred and fifty million dollars ($350,000,000) all of which are outstanding at the date hereof; | |
| (375) |
Bonds of 2015 Series A in the principal amount of Five hundred million dollars ($500,000,000) all of which are outstanding at the date hereof; | |
| (376) |
Bonds of 2016 Series A in the principal amount of Three hundred million dollars ($300,000,000) all of which are outstanding at the date hereof; | |
| (377) |
Bonds of 2017 Series B in the principal amount of Four hundred forty million dollars ($440,000,000) all of which are outstanding at the date hereof; | |
| (378) |
Bonds of 2018 Series A in the principal amount of Five hundred twenty-five million dollars ($525,000,000) all of which are outstanding at the date hereof, | |
| (379) |
Bond of 2019 Series A in the principal amount of Six hundred fifty million dollars ($650,000,000) all of which are outstanding at the date hereof, | |
| (380) |
Bonds of 2020 Series A in the principal amount of Six hundred million dollars ($600,000,000) all of which are outstanding at the date hereof, | |
| (381) |
Bonds of 2020 Series B in the principal amount of Five hundred million dollars ($500,000,000) all of which are outstanding at the date hereof, | |
| (382) |
Bonds of 2020 Series C in the principal amount of Six hundred million dollars ($600,000,000) all of which are outstanding at the date hereof, | |
| (383) |
Bonds of 2021 Green Series A in the principal amount of Five hundred seventy-five million dollars ($575,000,000) all of which are outstanding at the date hereof, | |
| (384) |
Bonds of 2021 Green Series B in the principal amount of Four hundred twenty-five million dollars ($425,000,000) all of which are outstanding at the date hereof, | |
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| accordingly, the Company has issued and has presently outstanding Eight billion, nine hundred eighty-seven million, five hundred twenty-five thousand dollars ($8,307,925,000) aggregate principal amount of its General and Refunding Mortgage Bonds (the “Bonds”) at the date hereof. | ||
| REASON FOR CREATION OF NEW SERIES. | WHEREAS, the Company desires to issue two new series of bonds pursuant to the Indenture; and | |
| BONDS TO BE 2022 SERIES A AND 2022 GREEN SERIES B. | WHEREAS, the Company desires by this Supplemental Indenture to create two new series of bonds, to be designated “General and Refunding Mortgage Bonds, 2022 2 Series A,” in the aggregate principal amount of five hundred million dollars ($500,000,000), and “General and Refunding Mortgage Bonds, 2022 Green Series B in the aggregate principal amount of four hundred million dollars ($400,000,000), to be authenticated and delivered pursuant to Section 8 of Article III of the Indenture; and | |
| FURTHER ASSURANCE. | WHEREAS, the Original Indenture, by its terms, includes in the property subject to the lien thereof all of the estates and properties, real, personal and mixed, rights, privileges and franchises of every nature and kind and wheresoever situate, then or thereafter owned or possessed by or belonging to the Company or to which it was then or at any time thereafter might be entitled in law or in equity (saving and excepting, however, the property therein specifically excepted or released from the lien thereof), and the Company therein covenanted that it would, upon reasonable request, execute and deliver such further instruments as may be necessary or proper for the better assuring and confirming unto the Trustee all or any part of the trust estate, whether then or thereafter owned or acquired by the Company (saving and excepting, however, property specifically excepted or released from the lien thereof); and | |
| AUTHORIZATION OF SUPPLEMENTAL INDENTURE. | WHEREAS, the Company in the exercise of the powers and authority conferred upon and reserved to it under and by virtue of the provisions of the Indenture, and pursuant to resolutions of its Board of Directors, has duly resolved and determined to make, execute and deliver to the Trustee a supplemental indenture in the form hereof for the purposes herein provided; and | |
| WHEREAS, all conditions and requirements necessary to make this Supplemental Indenture a valid and legally binding instrument in accordance with its terms have been done, performed and fulfilled, and the execution and delivery hereof have been in all respects duly authorized; | ||
| CONSIDERATION FOR SUPPLEMENTAL INDENTURE. | NOW, THEREFORE, THIS INDENTURE WITNESSETH: That DTE Electric Company, in consideration of the premises and of the covenants contained in the Indenture and of the sum of One Dollar ($1.00) and other good and valuable consideration to it duly paid by the Trustee at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, hereby covenants and agrees to and with the Trustee and its successors in the trusts under the Original Indenture and in said indentures supplemental thereto as follows: | |
11
|
PART I.
CREATION OF THREE HUNDRED EIGHTY-FIFTH SERIES OF BONDS, GENERAL AND REFUNDING MORTGAGE BONDS, 2022 SERIES A
| ||
| TERMS OF BONDS OF 2022 SERIES A. | SECTION 1. The Company hereby creates the three hundred eighty-fifth series of bonds to be issued under and secured by the Original Indenture as amended to date and as further amended by this Supplemental Indenture, to be designated, and to be distinguished from the bonds of all other series, by the title “General and Refunding Mortgage Bonds, 2022 Series A” (elsewhere herein referred to as the “bonds of 2022 Series A”). The aggregate principal amount of bonds of 2022 Series A shall be limited to five hundred million dollars ($500,000,000), except as provided in Sections 7 and 13 of Article II of the Original Indenture with respect to exchanges and replacements of bonds, and except further that the Company may, without the consent of any holder of the bonds of 2022 Series A, “reopen” the bonds of 2022 Series A, so long as any additional bonds of 2022 Series A have the same tenor and terms as the bonds of 2022 Series A established hereby. | |
| The bonds of 2022 Series A shall be issued as registered bonds without coupons in denominations of $2,000 and any larger amount that is an integral multiple of $1,000. The bonds of 2022 Series A shall be issued in the aggregate principal amount of $500,000,000 shall mature on March 1, 2032 (subject to earlier redemption) and shall bear interest, payable semi-annually on March 1 and September 1 of each year (commencing September 1, 2022), at the rate of three percent (3.00%) per annum until the principal thereof shall have become due and payable and thereafter until the Company’s obligation with respect to the payment of said principal shall have been discharged as provided in the Indenture. The bonds of 2022 Series A will be issued in book-entry form through the facilities of The Depository Trust Company. Except as otherwise specifically provided in this Supplemental Indenture, the bonds of 2022 Series A shall be payable, as to principal, premium, if any, and interest, at the office or agency of the Company in the Borough of Manhattan, the City and State of New York, in any coin or currency of the United States of America which at the time of payment is legal tender for public and private debts. | ||
| Except as provided herein, each bond of 2022 Series A shall be dated the date of its authentication and interest shall be payable on the principal represented thereby from the March 1 or September 1 next preceding the date to which interest has been paid on bonds of 2022 Series A, unless the bond is authenticated on a date prior to September 1, 2022 in which case interest shall be payable from February 24, 2022. | ||
| The bonds of 2022 Series A in definitive form shall be, at the election of the Company, fully engraved or shall be lithographed or printed in authorized denominations as aforesaid and numbered R-1 and upwards (with such further designation as may be appropriate and desirable to indicate by such designation the form, series and denomination of bonds of 2022 Series A). Until bonds of 2022 Series A in definitive form are ready for delivery, the Company may execute, and upon its request in writing the Trustee shall authenticate and deliver in lieu thereof, bonds of 2022 Series A in temporary form, as provided in Section 10 of Article II of the Indenture. Temporary bonds of 2022 Series A if any, may be printed and may be issued in authorized denominations in substantially the form of definitive bonds of 2022 Series A, but without a recital of redemption prices and with such omissions, insertions and variations as may be appropriate for temporary bonds, all as may be determined by the Company. | ||
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| Interest on any bond of 2022 Series A that is payable on any interest payment date and is punctually paid or duly provided for shall be paid to the person in whose name that bond, or any previous bond to the extent evidencing the same debt as that evidenced by that bond, is registered at the close of business on the regular record date for such interest, which regular record date shall be the fifteenth calendar day (whether or not such day is a business day) immediately preceding the applicable interest payment date. If the Company shall default in the payment of the interest due on any interest payment date on the principal represented by any bond of 2022 Series A, such defaulted interest shall forthwith cease to be payable to the registered holder of that bond on the relevant regular record date by virtue of his having been such holder, and such defaulted interest may be paid to the registered holder of that bond (or any bond or bonds of 2022 Series A issued upon transfer or exchange thereof) on the date of payment of such defaulted interest or, at the election of the Company, to the person in whose name that bond (or any bond or bonds of 2022 Series A issued upon transfer or exchange thereof) is registered on a subsequent record date established by notice given by mail by or on behalf of the Company to the holders of bonds of 2022 Series A not less than ten (10) days preceding such subsequent record date, which subsequent record date shall be at least five (5) days prior to the payment date of such defaulted interest. Interest will be computed on the basis of a 360-day year of twelve 30-day months. | ||
| Bonds of 2022 Series A, in definitive and temporary form, may bear such legends as may be necessary to comply with any law or with any rules or regulations made pursuant thereto. | ||
| If any interest payment date, date of redemption or the stated maturity for the bonds of 2022 Series A would otherwise be a day that is not a business day, payment of principal and/or interest or premium, if any, with respect to the bonds of 2022 Series A will be paid on the next succeeding business day with the same force and effect as if made on such date and no interest on such payment will accrue from and after such date | ||
| “Business day” means any day other than a day on which banking institutions in the State of New York or the State of Michigan are authorized or obligated pursuant to law or executive order to close | ||
| REDEMPTION OF BONDS OF 2022 SERIES A. |
SECTION 2. Bonds of 2022 Series A will be redeemable at the option of the Company, in whole at any time or in part from time to time at the redemption prices set forth below. | |
| Prior to December 1, 2031 (the “Series A Par Call Date”), the Company may redeem the Bonds of 2022 Series A at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of: (1) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the Bonds of 2022 Series A matured on the Series A Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 15 basis points less (b) interest accrued to the date of redemption, and (2) 100% of the principal amount of the Bonds of 2022 Series A to be redeemed, plus, in either case, accrued and unpaid interest thereon to the redemption date. | ||
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| On or after the Series A Par Call Date, the Company may redeem the Bonds of 2022 Series A, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the Bonds of 2022 Series A being redeemed plus accrued and unpaid interest thereon to the redemption date. | ||
| “Treasury Rate” means, with respect to any redemption date, the yield determined by the Company in accordance with the following two paragraphs. | ||
| The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading). In determining the Treasury Rate, the Company shall select, as applicable: | ||
| (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the Series A Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the Series A Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date. | ||
| If on the third business day preceding the redemption date H.15 or any successor designation or publication is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, the Series A Par Call Date, as applicable. If there is no United States Treasury security maturing on the Series A Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Series A Par Call Date, one with a maturity date preceding the Series A Par Call Date and one with a maturity date following the Series A Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Series A Par Call Date. If there are two or more United States Treasury securities maturing on the Series A Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury | ||
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| securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places. | ||
| The Company’s actions and determinations in determining the redemption price shall be conclusive and binding for all purposes, absent manifest error. | ||
| The bonds of 2022 Series A shall be redeemable as aforesaid upon giving notice of such redemption by first class mail, postage prepaid, by or on behalf of the Company at least thirty (30) days, but not more than sixty (60) days, prior to the date fixed for redemption to the registered holders of bonds of 2022 Series A so called for redemption at their last respective addresses appearing on the register thereof, but failure to mail such notice to the registered holders of any bonds of 2022 Series A designated for redemption shall not affect the validity of any such redemption of any other bonds of such series. Interest shall cease to accrue on any bonds of 2022 Series A (or any portion thereof) so called for redemption from and after the date fixed for redemption if payment sufficient to redeem the bonds of 2022 Series A (or such portion) designated for redemption has been duly provided for. Bonds of 2022 Series A redeemed in part only shall be in amounts of $2,000 or any larger amount that is an integral multiple of $1,000. | ||
| If the giving of the notice of redemption shall have been completed, or if provision satisfactory to the Trustee for the giving of such notice shall have been made, and if the Company shall have deposited with the Trustee in trust funds (which shall have become available for payment to the holders of the bonds of 2022 Series A so to be redeemed) sufficient to redeem bonds of 2022 Series A in whole or in part, on the date fixed for redemption, then all obligations of the Company in respect of such bonds (or portions thereof) so to be redeemed and interest due or to become due thereon shall cease and be discharged and the holders of such bonds of 2022 Series A (or portions thereof) shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or in respect of such bonds (or portions thereof) and interest. | ||
| The bonds of 2022 Series A shall not be entitled to or subject to any sinking fund and shall not be redeemable other than as provided in Section 2 hereof. | ||
| EXCHANGE AND TRANSFER. | SECTION 3. At the option of the registered holder, any bonds of 2022 Series A, upon surrender thereof for cancellation at the office or agency of the Company in the Borough of Manhattan, the City and State of New York, together with a written instrument of transfer (if so required by the Company or by the Trustee) in form approved by the Company duly executed by the holder or by its duly authorized attorney, shall be exchangeable for a like aggregate principal amount of bonds of 2022 Series A upon the terms and conditions specified herein and in Section 7 of Article II of the Indenture. The Company waives its rights under Section 7 of Article II of the Indenture not to make exchanges or transfers of bonds of 2022 Series A during any period of ten (10) days next preceding any redemption date for such bonds. | |
| Bonds of 2022 Series A, in definitive and temporary form, may bear such legends as may be necessary to comply with any law or with any rules or regulations made pursuant thereto. | ||
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| FORM OF BONDS OF 2022 SERIES A. |
SECTION 4. The bonds of 2022 Series A and the form of Trustee’s Certificate to be endorsed on such bonds shall be substantially in the following forms, respectively: | |
|
DTE ELECTRIC COMPANY GENERAL AND REFUNDING MORTGAGE BOND 2022 SERIES A
| ||
| [This bond is a global security 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 bonds in certificated form, this bond 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 any such nominee to a successor of DTC or a nominee of such successor. Unless this bond is presented by an authorized representative of DTC to the issuer or its agent for registration of transfer, exchange or payment, and any bond 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.] | ||
| CUSIP | ||
| $______________ No. R-___ | ||
| DTE ELECTRIC COMPANY (hereinafter called the “Company”), a corporation of the State of Michigan, for value received, hereby promises to pay to [Cede & Co.], or registered assigns, at the Company’s office or agency in the Borough of Manhattan, the City and State of New York, the principal sum of _________________ dollars ($_______) in lawful money of the United States of America on March 1, 2032 (subject to earlier redemption) and interest thereon at the rate of 3.00% per annum, in like lawful money, from February 24, 2022 and after the first payment of interest on bonds of this Series has been made or otherwise provided for, from the most recent date to which interest has been paid or otherwise provided for, semi-annually on March 1 and September 1 of each year (commencing September 1, 2022), until the Company’s obligation with respect to payment of said principal shall have been discharged, all as provided, to the extent and in the manner specified in the Indenture hereinafter mentioned and in the supplemental indenture pursuant to which this bond has been issued. | ||
| This bond is one of an authorized issue of bonds of the Company, unlimited as to amount except as provided in the Indenture hereinafter mentioned or any indentures supplemental thereto, and is one of a series of General and Refunding Mortgage Bonds known as 2022 Series A, limited to an aggregate principal amount of $500,000,000, except as otherwise provided in the Indenture hereinafter mentioned. This bond and all other bonds of said series are issued and to be issued under, and are all equally and ratably secured (except insofar as any sinking, amortization, improvement or analogous fund, established in accordance with the provisions of the Indenture hereinafter mentioned, may afford additional security for the bonds of any particular series and except as provided in Section 3 of Article VI of said Indenture) by an Indenture, dated as of October 1, 1924, duly | ||
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| executed by the Company to The Bank of New York Mellon Trust Company, N.A., as successor Trustee, to which Indenture and all indentures supplemental thereto (including the Supplemental Indenture dated as of February 1, 2022) reference is hereby made for a description of the properties and franchises mortgaged and conveyed, the nature and extent of the security, the terms and conditions upon which the bonds are issued and under which additional bonds may be issued, and the rights of the holders of the bonds and of the Trustee in respect of such security (which Indenture and all indentures supplemental thereto, including the Supplemental Indenture dated as of February 1, 2022, are hereinafter collectively called the “Indenture”). As provided in the Indenture, said bonds may be for various principal sums and are issuable in series, which may mature at different times, may bear interest at different rates and may otherwise vary as in said Indenture provided. With the consent of the Company and to the extent permitted by and as provided in the Indenture, the rights and obligations of the Company and of the holders of the bonds and the terms and provisions of the Indenture, or of any indenture supplemental thereto, may be modified or altered in certain respects by affirmative vote of at least eighty-five percent (85%) in amount of the bonds then outstanding, and, if the rights of one or more, but less than all, series of bonds then outstanding are to be affected by the action proposed to be taken, then also by affirmative vote of at least eighty-five percent (85%) in amount of the series of bonds so to be affected (excluding in every instance bonds disqualified from voting by reason of the Company’s interest therein as specified in the Indenture); provided, however, that, without the consent of the holder hereof, no such modification or alteration shall, among other things, affect the terms of payment of the principal of or the interest on this bond, which in those respects is unconditional. | ||
| This bond is not subject to repayment at the option of the holder hereof. Except as provided below, this bond is not redeemable by the Company prior to maturity and is not subject to any sinking fund. | ||
| Prior to December 1 , 2031 (the “Series A Par Call Date”), the Company may redeem this bond at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of: (1) (a) the sum of the present values of the remaining scheduled payments of principal and interest hereon discounted to the redemption date (assuming this bond matured on the Series A Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 15 basis points less (b) interest accrued to the date of redemption, and (2) 100% of the principal amount of this bond to be redeemed, plus, in either case, accrued and unpaid interest thereon to the redemption date. | ||
| On or after the Series A Par Call Date, the Company may redeem this bond, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of this bond being redeemed plus accrued and unpaid interest thereon to the redemption date. | ||
| “Treasury Rate” means, with respect to any redemption date, the yield determined by the Company in accordance with the following two paragraphs. | ||
| The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third | ||
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| business day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading). In determining the Treasury Rate, the Company shall select, as applicable: | ||
| (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the Series A Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the Series A Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date. | ||
| If on the third business day preceding the redemption date H.15 or any successor designation or publication is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, the Series A Par Call Date, as applicable. If there is no United States Treasury security maturing on the Series A Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Series A Par Call Date, one with a maturity date preceding the Series A Par Call Date and one with a maturity date following the Series A Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Series A Par Call Date. If there are two or more United States Treasury securities maturing on the Series A Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places. | ||
| The Company’s actions and determinations in determining the redemption price shall be conclusive and binding for all purposes, absent manifest error. | ||
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| Notice of any optional redemption will be mailed at least 30 days but not more than 60 days before the optional redemption date to the holder hereof at its registered address. If notice has been provided in accordance with the Indenture and funds for the redemption of this bond called for redemption have been made available on the redemption date, this bond will cease to bear interest on the date fixed for redemption. Thereafter, the only right of the holder hereof will be to receive payment of the redemption price. | ||
| Under the Indenture, funds may be deposited with the Trustee (which shall have become available for payment), in advance of the redemption date of any of the bonds of this series (or portions thereof), in trust for the redemption of such bonds (or portions thereof) and the interest due or to become due thereon, and thereupon all obligations of the Company in respect of such bonds (or portions thereof) so to be redeemed and such interest shall cease and be discharged, and the holders thereof shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or with respect to such bonds (or portions thereof) and interest. | ||
| In case an event of default, as defined in the Indenture, shall occur, the principal of all the bonds issued thereunder may become or be declared due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture. | ||
| The bonds of this series are issuable only in fully registered form without coupons in denominations of $2,000 and any larger amount that is an integral multiple of $1,000. This Global Security is exchangeable for bonds in definitive form only under certain limited circumstances set forth in the Indenture. As provided in the Indenture and subject to certain limitations therein set forth, bonds of this series are exchangeable for a like aggregate principal amount of bonds of this series of a different authorized denomination, as requested by the registered holder surrendering the same. | ||
| This bond is transferable by the registered holder hereof, in person or by his attorney duly authorized in writing, on the books of the Company kept at its office or agency in the Borough of Manhattan, the City and State of New York, upon surrender and cancellation of this bond, and thereupon, a new registered bond of the same series of authorized denominations for a like aggregate principal amount will be issued to the transferee in exchange therefor, and this bond with others in like form may in like manner be exchanged for one or more new bonds of the same series of other authorized denominations, but of the same aggregate principal amount, all as provided and upon the terms and conditions set forth in the Indenture, and upon payment, in any event, of the charges prescribed in the Indenture. | ||
| No recourse shall be had for the payment of the principal of or the interest on this bond, or for any claim based hereon or otherwise in respect hereof or of the Indenture, or of any indenture supplemental thereto, against any incorporator, or against any past, present or future stockholder, director or officer, as such, of the Company, or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether for amounts unpaid on stock subscriptions or by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise howsoever; all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released by every holder or owner hereof, as more fully provided in the Indenture. | ||
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| This bond shall not be valid or become obligatory for any purpose until The Bank of New York Mellon Trust Company, N.A., the Trustee under the Indenture, or its successor thereunder, shall have signed the form of certificate endorsed hereon. | ||
| IN WITNESS WHEREOF, DTE ELECTRIC COMPANY has caused this instrument to be executed by an authorized officer, with his or her manual or facsimile signatures, and its corporate seal, or a facsimile thereof, to be impressed or imprinted hereon and the same to be attested by its Corporate Secretary or Assistant Corporate Secretary by manual or facsimile signature. | ||
| Dated: | ||
| DTE ELECTRIC COMPANY | ||
| By: | ||
| Name: | ||
| Title: |
| [Corporate Seal] | ||
| Attest:
By: Name: Title: | ||
| [FORM OF TRUSTEE’S CERTIFICATE] | ||
| FORM OF TRUSTEE’S CERTIFICATE. | This bond is one of the bonds, of the series designated therein, described in the within-mentioned Indenture. | |
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee | ||
| By: | ||
| Authorized Representative | ||
| Date: | ||
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| PART II. | ||
| CREATION OF THREE HUNDRED EIGHTY-SIXTH | ||
| SERIES OF BONDS, | ||
| GENERAL AND REFUNDING MORTGAGE BONDS, | ||
| 2022 GREEN SERIES B | ||
| TERMS OF BONDS OF 2022 GREEN SERIES B. | SECTION 1. The Company hereby creates the three hundred eighty-sixth series of bonds to be issued under and secured by the Original Indenture as amended to date and as further amended by this Supplemental Indenture, to be designated, and to be distinguished from the bonds of all other series, by the title “General and Refunding Mortgage Bonds, 2022 Green Series B” (elsewhere herein referred to as the “bonds of 2022 Series B”). The aggregate principal amount of bonds of 2022 Series B shall be limited to four hundred million dollars ($400,000,000), except as provided in Sections 7 and 13 of Article II of the Original Indenture with respect to exchanges and replacements of bonds, and except further that the Company may, without the consent of any holder of the bonds of 2022 Series B, “reopen” the bonds of 2022 Series B, so long as any additional bonds of 2022 Series B have the same tenor and terms as the bonds of 2022 Series B established hereby. | |
| The bonds of 2022 Series B shall be issued as registered bonds without coupons in denominations of $2,000 and any larger amount that is an integral multiple of $1,000. The bonds of 2022 Series B shall be issued in the aggregate principal amount of $400,000,000, shall mature on March 1, 2052 (subject to earlier redemption) and shall bear interest, payable semi-annually on March 1 and September 1 of each year (commencing September 1, 2022, at the rate of three and sixty-five hundredths percent (3.65%) per annum until the principal thereof shall have become due and payable and thereafter until the Company’s obligation with respect to the payment of said principal shall have been discharged as provided in the Indenture. The bonds of 2022 Series B will be issued in book-entry form through the facilities of The Depository Trust Company. Except as otherwise specifically provided in this Supplemental Indenture, the bonds of 2022 Series B shall be payable, as to principal, premium, if any, and interest, at the office or agency of the Company in the Borough of Manhattan, the City and State of New York, in any coin or currency of the United States of America which at the time of payment is legal tender for public and private debts. | ||
| Except as provided herein, each bond of 2022 Series B shall be dated the date of its authentication and interest shall be payable on the principal represented thereby from the March 1 or September 1 next preceding the date to which interest has been paid on bonds of 2022 Series B, unless the bond is authenticated on a date prior to September 1, 2022 in which case interest shall be payable from February 24, 2022. | ||
| The bonds of 2022 Series B in definitive form shall be, at the election of the Company, fully engraved or shall be lithographed or printed in authorized denominations as aforesaid and numbered R-1 and upwards (with such further designation as may be appropriate and desirable to indicate by such designation the form, series and denomination of bonds of 2022 Series B). Until bonds of 2022 Series B in definitive form are ready for delivery, the Company may execute, and upon its request in writing the Trustee shall authenticate and deliver in lieu thereof, bonds of 2022 Series B in temporary form, as provided in Section 10 of Article II of the Indenture. Temporary bonds of 2022 Series B if any, may be printed and may be issued in authorized denominations in substantially the form of definitive bonds of 2022 Series B, but without a recital of redemption prices and with such omissions, insertions and variations as may be appropriate for temporary bonds, all as may be determined by the Company. | ||
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| Interest on any bond of 2022 Series B that is payable on any interest payment date and is punctually paid or duly provided for shall be paid to the person in whose name that bond, or any previous bond to the extent evidencing the same debt as that evidenced by that bond, is registered at the close of business on the regular record date for such interest, which regular record date shall be the fifteenth calendar day (whether or not such day is a business day) immediately preceding the applicable interest payment date. If the Company shall default in the payment of the interest due on any interest payment date on the principal represented by any bond of 2022 Series B, such defaulted interest shall forthwith cease to be payable to the registered holder of that bond on the relevant regular record date by virtue of his having been such holder, and such defaulted interest may be paid to the registered holder of that bond (or any bond or bonds of 2022 Series B issued upon transfer or exchange thereof) on the date of payment of such defaulted interest or, at the election of the Company, to the person in whose name that bond (or any bond or bonds of 2022 Series B issued upon transfer or exchange thereof) is registered on a subsequent record date established by notice given by mail by or on behalf of the Company to the holders of bonds of 2022 Series B not less than ten (10) days preceding such subsequent record date, which subsequent record date shall be at least five (5) days prior to the payment date of such defaulted interest. Interest will be computed on the basis of a 360-day year of twelve 30-day months. | ||
| Bonds of 2022 Series B, in definitive and temporary form, may bear such legends as may be necessary to comply with any law or with any rules or regulations made pursuant thereto. | ||
| If any interest payment date, date of redemption or the stated maturity for the bonds of 2022 Series B would otherwise be a day that is not a business day, payment of principal and/or interest or premium, if any, with respect to the bonds of 2022 Series B will be paid on the next succeeding business day with the same force and effect as if made on such date and no interest on such payment will accrue from and after such date | ||
| “Business day” means any day other than a day on which banking institutions in the State of New York or the State of Michigan are authorized or obligated pursuant to law or executive order to close | ||
| REDEMPTION OF BONDS OF 2022 GREEN SERIES B. | SECTION 2. Bonds of 2022 Series B will be redeemable at the option of the Company, in whole at any time or in part from time to time at the redemption prices set forth below. | |
| Prior to September 1, 2051 (the “Series B Par Call Date”), the Company may redeem the Bonds of 2022 Series B at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of: (1) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the Bonds of 2022 Series B matured on the Series B Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 20 basis points less (b) interest accrued to the date of redemption, and (2) 100% of the principal amount of the Bonds of 2022 Series B to be redeemed, plus, in either case, accrued and unpaid interest thereon to the redemption date. | ||
| On or after the Series B Par Call Date, the Company may redeem the Bonds of 2022 Series B, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the Bonds of 2022 Series B being redeemed plus accrued and unpaid interest thereon to the redemption date. | ||
22
| “Treasury Rate” means, with respect to any redemption date, the yield determined by the Company in accordance with the following two paragraphs. | ||
| The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the Series B Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the Series B Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date. | ||
| If on the third business day preceding the redemption date H.15 or any successor designation or publication is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, the Series B Par Call Date, as applicable. If there is no United States Treasury security maturing on the Series B Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Series B Par Call Date, one with a maturity date preceding the Series B Par Call Date and one with a maturity date following the Series B Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Series B Par Call Date. If there are two or more United States Treasury securities maturing on the Series B Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places. | ||
23
| The Company’s actions and determinations in determining the redemption price shall be conclusive and binding for all purposes, absent manifest error. | ||
| The bonds of 2022 Series B shall be redeemable as aforesaid upon giving notice of such redemption by first class mail, postage prepaid, by or on behalf of the Company at least thirty (30) days, but not more than sixty (60) days, prior to the date fixed for redemption to the registered holders of bonds of 2022 Series B so called for redemption at their last respective addresses appearing on the register thereof, but failure to mail such notice to the registered holders of any bonds of 2022 Series B designated for redemption shall not affect the validity of any such redemption of any other bonds of such series. Interest shall cease to accrue on any bonds of 2022 Series B (or any portion thereof) so called for redemption from and after the date fixed for redemption if payment sufficient to redeem the bonds of 2022 Series B (or such portion) designated for redemption has been duly provided for. Bonds of 2022 Series B redeemed in part only shall be in amounts of $2,000 or any larger amount that is an integral multiple of $1,000. | ||
| If the giving of the notice of redemption shall have been completed, or if provision satisfactory to the Trustee for the giving of such notice shall have been made, and if the Company shall have deposited with the Trustee in trust funds (which shall have become available for payment to the holders of the bonds of 2022 Series B so to be redeemed) sufficient to redeem bonds of 2022 Series B in whole or in part, on the date fixed for redemption, then all obligations of the Company in respect of such bonds (or portions thereof) so to be redeemed and interest due or to become due thereon shall cease and be discharged and the holders of such bonds of 2022 Series B (or portions thereof) shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or in respect of such bonds (or portions thereof) and interest. | ||
| The bonds of 2022 Series B shall not be entitled to or subject to any sinking fund and shall not be redeemable other than as provided in Section 2 hereof. | ||
| EXCHANGE AND TRANSFER. | SECTION 3. At the option of the registered holder, any bonds of 2022 Series B, upon surrender thereof for cancellation at the office or agency of the Company in the Borough of Manhattan, the City and State of New York, together with a written instrument of transfer (if so required by the Company or by the Trustee) in form approved by the Company duly executed by the holder or by its duly authorized attorney, shall be exchangeable for a like aggregate principal amount of bonds of 2022 Series B upon the terms and conditions specified herein and in Section 7 of Article II of the Indenture. The Company waives its rights under Section 7 of Article II of the Indenture not to make exchanges or transfers of bonds of 2022 Series B during any period of ten (10) days next preceding any redemption date for such bonds. | |
| Bonds of 2022 Series B, in definitive and temporary form, may bear such legends as may be necessary to comply with any law or with any rules or regulations made pursuant thereto. | ||
| FORM OF BONDS OF 2022 GREEN SERIES B. |
SECTION 4. The bonds of 2022 Series B and the form of Trustee’s Certificate to be endorsed on such bonds shall be substantially in the following forms, respectively: | |
|
DTE ELECTRIC COMPANY GENERAL AND REFUNDING MORTGAGE BOND 2022 GREEN SERIES B
| ||
24
| [This bond is a global security 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 bonds in certificated form, this bond 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 any such nominee to a successor of DTC or a nominee of such successor. Unless this bond is presented by an authorized representative of DTC to the issuer or its agent for registration of transfer, exchange or payment, and any bond 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.] | ||
| CUSIP | ||
|
$______________ No. R-___ | ||
| DTE ELECTRIC COMPANY (hereinafter called the “Company”), a corporation of the State of Michigan, for value received, hereby promises to pay to [Cede & Co.], or registered assigns, at the Company’s office or agency in the Borough of Manhattan, the City and State of New York, the principal sum of ___________ dollars ($_______) in lawful money of the United States of America on March 1, 2052 (subject to earlier redemption) and interest thereon at the rate of 3.65% per annum, in like lawful money, from February 24, 2022 and after the first payment of interest on bonds of this Series has been made or otherwise provided for, from the most recent date to which interest has been paid or otherwise provided for, semi-annually on March 1 and September 1 of each year (commencing September 1, 2022), until the Company’s obligation with respect to payment of said principal shall have been discharged, all as provided, to the extent and in the manner specified in the Indenture hereinafter mentioned and in the supplemental indenture pursuant to which this bond has been issued. | ||
25
| This bond is one of an authorized issue of bonds of the Company, unlimited as to amount except as provided in the Indenture hereinafter mentioned or any indentures supplemental thereto, and is one of a series of General and Refunding Mortgage Bonds known as 2022 Green Series B, limited to an aggregate principal amount of $400,000,000, except as otherwise provided in the Indenture hereinafter mentioned. This bond and all other bonds of said series are issued and to be issued under, and are all equally and ratably secured (except insofar as any sinking, amortization, improvement or analogous fund, established in accordance with the provisions of the Indenture hereinafter mentioned, may afford additional security for the bonds of any particular series and except as provided in Section 3 of Article VI of said Indenture) by an Indenture, dated as of October 1, 1924, duly executed by the Company to The Bank of New York Mellon Trust Company, N.A., as successor Trustee, to which Indenture and all indentures supplemental thereto (including the Supplemental Indenture dated as of February 1, 2022) reference is hereby made for a description of the properties and franchises mortgaged and conveyed, the nature and extent of the security, the terms and conditions upon which the bonds are issued and under which additional bonds may be issued, and the rights of the holders of the bonds and of the Trustee in respect of such security (which Indenture and all indentures supplemental thereto, including the Supplemental Indenture dated as of February 1, 2022, are hereinafter collectively called the “Indenture”). As provided in the Indenture, said bonds may be for various principal sums and are issuable in series, which may mature at different times, may bear interest at different rates and may otherwise vary as in said Indenture provided. With the consent of the Company and to the extent permitted by and as provided in the Indenture, the rights and obligations of the Company and of the holders of the bonds and the terms and provisions of the Indenture, or of any indenture supplemental thereto, may be modified or altered in certain respects by affirmative vote of at least eighty-five percent (85%) in amount of the bonds then outstanding, and, if the rights of one or more, but less than all, series of bonds then outstanding are to be affected by the action proposed to be taken, then also by affirmative vote of at least eighty-five percent (85%) in amount of the series of bonds so to be affected (excluding in every instance bonds disqualified from voting by reason of the Company’s interest therein as specified in the Indenture); provided, however, that, without the consent of the holder hereof, no such modification or alteration shall, among other things, affect the terms of payment of the principal of or the interest on this bond, which in those respects is unconditional. | ||
| This bond is not subject to repayment at the option of the holder hereof. Except as provided below, this bond is not redeemable by the Company prior to maturity and is not subject to any sinking fund. | ||
| Prior to September 1, 2051 (the “Series B Par Call Date”), the Company may redeem this bond at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of: (1) (a) the sum of the present values of the remaining scheduled payments of principal and interest hereon discounted to the redemption date (assuming this bond matured on the Series B Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 20 basis points less (b) interest accrued to the date of redemption, and (2) 100% of the principal amount of this bond to be redeemed, plus, in either case, accrued and unpaid interest thereon to the redemption date. | ||
| On or after the Series B Par Call Date, the Company may redeem this bond, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of this bond being redeemed plus accrued and unpaid interest thereon to the redemption date. | ||
| “Treasury Rate” means, with respect to any redemption date, the yield determined by the Company in accordance with the following two paragraphs. | ||
26
| The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading). In determining the Treasury Rate, the Company shall select, as applicable:
(1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the Series B Par Call Date (the “Remaining Life”); or
(2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the Series B Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or
(3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date. | ||
| If on the third business day preceding the redemption date H.15 or any successor designation or publication is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, the Series B Par Call Date, as applicable. If there is no United States Treasury security maturing on the Series B Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Series B Par Call Date, one with a maturity date preceding the Series B Par Call Date and one with a maturity date following the Series B Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Series B Par Call Date. If there are two or more United States Treasury securities maturing on the Series B Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places. | ||
| The Company’s actions and determinations in determining the redemption price shall be conclusive and binding for all purposes, absent manifest error. | ||
| Notice of any optional redemption will be mailed at least 30 days but not more than 60 days before the optional redemption date to the holder hereof at its registered address. If notice has been provided in accordance with the Indenture and funds for the redemption of this bond called for redemption have been made available on the redemption date, this bond will cease to bear interest on the date fixed for redemption. Thereafter, the only right of the holder hereof will be to receive payment of the redemption price. | ||
27
| Under the Indenture, funds may be deposited with the Trustee (which shall have become available for payment), in advance of the redemption date of any of the bonds of this series (or portions thereof), in trust for the redemption of such bonds (or portions thereof) and the interest due or to become due thereon, and thereupon all obligations of the Company in respect of such bonds (or portions thereof) so to be redeemed and such interest shall cease and be discharged, and the holders thereof shall thereafter be restricted exclusively to such funds for any and all claims of whatsoever nature on their part under the Indenture or with respect to such bonds (or portions thereof) and interest. | ||
| In case an event of default, as defined in the Indenture, shall occur, the principal of all the bonds issued thereunder may become or be declared due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture. | ||
| The bonds of this series are issuable only in fully registered form without coupons in denominations of $2,000 and any larger amount that is an integral multiple of $1,000. This Global Security is exchangeable for bonds in definitive form only under certain limited circumstances set forth in the Indenture. As provided in the Indenture and subject to certain limitations therein set forth, bonds of this series are exchangeable for a like aggregate principal amount of bonds of this series of a different authorized denomination, as requested by the registered holder surrendering the same. | ||
| This bond is transferable by the registered holder hereof, in person or by his attorney duly authorized in writing, on the books of the Company kept at its office or agency in the Borough of Manhattan, the City and State of New York, upon surrender and cancellation of this bond, and thereupon, a new registered bond of the same series of authorized denominations for a like aggregate principal amount will be issued to the transferee in exchange therefor, and this bond with others in like form may in like manner be exchanged for one or more new bonds of the same series of other authorized denominations, but of the same aggregate principal amount, all as provided and upon the terms and conditions set forth in the Indenture, and upon payment, in any event, of the charges prescribed in the Indenture. | ||
| No recourse shall be had for the payment of the principal of or the interest on this bond, or for any claim based hereon or otherwise in respect hereof or of the Indenture, or of any indenture supplemental thereto, against any incorporator, or against any past, present or future stockholder, director or officer, as such, of the Company, or of any predecessor or successor corporation, either directly or through the Company or any such predecessor or successor corporation, whether for amounts unpaid on stock subscriptions or by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise howsoever; all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released by every holder or owner hereof, as more fully provided in the Indenture. | ||
| This bond shall not be valid or become obligatory for any purpose until The Bank of New York Mellon Trust Company, N.A., the Trustee under the Indenture, or its successor thereunder, shall have signed the form of certificate endorsed hereon. | ||
| IN WITNESS WHEREOF, DTE ELECTRIC COMPANY has caused this instrument to be executed by an authorized officer, with his or her manual or facsimile signatures, and its corporate seal, or a facsimile thereof, to be impressed or imprinted hereon and the same to be attested by its Corporate Secretary or Assistant Corporate Secretary by manual or facsimile signature. | ||
| Dated: _____________ | ||
28
| DTE ELECTRIC COMPANY | ||
| By: | ||
| Name: | ||
| Title: |
| [Corporate Seal] | ||
| Attest:
By: Name: Title: | ||
| [FORM OF TRUSTEE’S CERTIFICATE] | ||
| FORM OF TRUSTEE’S CERTIFICATE. | This bond is one of the bonds, of the series designated therein, described in the within-mentioned Indenture. | |
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee | ||
| By: | ||
| Authorized Representative | ||
| Date: | ||
| PART III. | ||
| RECORDING AND FILING DATA | ||
| RECORDING AND FILING OF ORIGINAL INDENTURE. | The Original Indenture and indentures supplemental thereto have been recorded and/or filed and Certificates of Provision for Payment have been recorded as hereinafter set forth. | |
| The Original Indenture has been recorded as a real estate mortgage and filed as a chattel Mortgage in the offices of the respective Registers of Deeds of certain counties in the State of Michigan as set forth in the Supplemental Indenture dated as of September 1, 1947, has been recorded as a real estate mortgage in the office of the Register of Deeds of Mason County, Michigan as set forth in the Supplemental Indenture dated as of June 15, 1971, has been recorded as a real estate mortgage in the office of the Register of Deeds of Genesee County, Michigan as set forth in the Supplemental Indenture dated as of May 1, 1974, has been recorded as a real estate mortgage in the office of the Register of Deeds of Gratiot County, Michigan on June 18, 2012 at Liber 923 Page 772, has been recorded as a real estate mortgage in the office of the Register of Deeds of Midland County, Michigan on June 18, 2012 at Liber 1555 Page 504, has been recorded as a real estate mortgage in the office of the Register of Deeds of Montcalm County, Michigan on March 6, 2015 at Document Number 2015R-03220, has been filed in the Office of the Secretary of State of Michigan on November 16, 1951 and has been filed and recorded in the office of the Interstate Commerce Commission on December 8, 1969. | ||
29
| RECORDING AND FILING OF SUPPLEMENTAL INDENTURES. | Pursuant to the terms and provisions of the Original Indenture, indentures supplemental thereto heretofore entered into have been Recorded as a real estate mortgage and/or filed as a chattel mortgage or as a financing statement in the offices of the respective Registers of Deeds of certain counties in the State of Michigan, the Office of the Secretary of State of Michigan and the Office of the Interstate Commerce Commission or the Surface Transportation Board, as set forth in supplemental indentures as follows: | |
| SUPPLEMENTAL
INDENTURE |
PURPOSE OF SUPPLEMENTAL INDENTURE |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL INDENTURE DATED AS OF | ||
| June 1, 1925(a)(b) | Series B Bonds | February 1, 1940 | ||
| August 1, 1927(a)(b) | Series C Bonds | February 1, 1940 | ||
| February 1, 1931(a)(b) | Series D Bonds | February 1, 1940 | ||
| June 1, 1931(a)(b) | Subject Properties | February 1, 1940 | ||
| October 1, 1932(a)(b) | Series E Bonds | February 1, 1940 | ||
| September 25, 1935(a)(b) | Series F Bonds | February 1, 1940 | ||
| September 1, 1936(a)(b) | Series G Bonds | February 1, 1940 | ||
| November 1, 1936(a)(b) | Subject Properties | February 1, 1940 | ||
| February 1, 1940(a)(b) | Subject Properties | September 1, 1947 | ||
| December 1, 1940(a)(b) | Series H Bonds and Additional Provisions | September 1, 1947 | ||
| September 1, 1947(a)(b)(c) | Series I Bonds, Subject Properties and Additional Provisions | November 15, 1951 | ||
| March 1, 1950(a)(b)(c) | Series J Bonds and Additional Provisions | November 15, 1951 | ||
| November 15, 1951(a)(b)(c) | Series K Bonds, Additional Provisions and Subject Properties | January 15, 1953 | ||
| January 15, 1953(a)(b) | Series L Bonds | May 1, 1953 | ||
| May 1, 1953(a) | Series M Bonds and Subject Properties | March 15, 1954 | ||
| March 15, 1954(a)(c) | Series N Bonds and Subject Properties | May 15, 1955 | ||
| May 15, 1955(a)(c) | Series O Bonds and Subject Properties | August 15, 1957 | ||
| August 15, 1957(a)(c) | Series P Bonds, Additional Provisions and Subject Properties | June 1, 1959 | ||
| June 1, 1959(a)(c) | Series Q Bonds and Subject Properties | December 1, 1966 | ||
| December 1, 1966(a)(c) | Series R Bonds, Additional Provisions and Subject Properties | October 1, 1968 | ||
| October 1, 1968(a)(c) | Series S Bonds and Subject Properties | December 1, 1969 | ||
| December 1, 1969(a)(c) | Series T Bonds and Subject Properties | July 1, 1970 | ||
| July 1, 1970(c) | Series U Bonds and Subject Properties | December 15, 1970 | ||
| December 15, 1970(c) | Series V Bonds and Series W Bonds | June 15, 1971 | ||
| June 15, 1971(c) | Series X Bonds and Subject Properties | November 15, 1971 | ||
| November 15, 1971(c) | Series Y Bonds and Subject Properties | January 15, 1973 | ||
| January 15, 1973(c) | Series Z Bonds and Subject Properties | May 1, 1974 | ||
| May 1, 1974 | Series AA Bonds and Subject Properties | October 1, 1974 | ||
| October 1, 1974 | Series BB Bonds and Subject Properties | January 15, 1975 | ||
30
| SUPPLEMENTAL INDENTURE DATED AS OF |
PURPOSE OF SUPPLEMENTAL INDENTURE |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL INDENTURE DATED AS OF | ||
| January 15, 1975 | Series CC Bonds and Subject Properties | November 1, 1975 | ||
| November 1, 1975 | Series DDP Nos. 1-9 Bonds and Subject Properties | December 15, 1975 | ||
| December 15, 1975 | Series EE Bonds and Subject Properties | February 1, 1976 | ||
| February 1, 1976 | Series FFR Nos. 1-13 Bonds | June 15, 1976 | ||
| June 15, 1976 | Series GGP Nos. 1-7 Bonds and Subject Properties | July 15, 1976 | ||
| July 15, 1976 | Series HH Bonds and Subject Properties | February 15, 1977 | ||
| February 15, 1977 | Series MMP Bonds and Subject Properties | March 1, 1977 | ||
| March 1, 1977 | Series IIP Nos. 1-7 Bonds, Series JJP Nos. 1-7 Bonds, Series KKP Nos. 1-7 Bonds and Series LLP Nos. 1-7 Bonds | June 15, 1977 | ||
| June 15, 1977 | Series FFR No. 14 Bonds and Subject Properties | July 1, 1977 | ||
| July 1, 1977 | Series NNP Nos. 1-7 Bonds and Subject Properties | October 1, 1977 | ||
| October 1, 1977 | Series GGP Nos. 8-22 Bonds and Series OOP Nos. 1-17 Bonds and Subject Properties | June 1, 1978 | ||
| June 1, 1978 | Series PP Bonds, Series QQP Nos. 1-9 Bonds and Subject Properties | October 15, 1978 | ||
| October 15, 1978 | Series RR Bonds and Subject Properties | March 15, 1979 | ||
| March 15, 1979 | Series SS Bonds and Subject Properties | July 1, 1979 | ||
| July 1, 1979 | Series IIP Nos. 8-22 Bonds, Series NNP Nos. 8-21 Bonds and Series TTP Nos. 1-15 Bonds and Subject Properties | September 1, 1979 | ||
| September 1, 1979 | Series JJP No. 8 Bonds, Series KKP No. 8 Bonds, Series LLP Nos. 8-15 Bonds, Series MMP No. 2 Bonds and Series OOP No. 18 Bonds and Subject Properties | September 15, 1979 | ||
| September 15, 1979 | Series UU Bonds | January 1, 1980 | ||
| January 1, 1980 | 1980 Series A Bonds and Subject Properties | April 1, 1980 | ||
| April 1, 1980 | 1980 Series B Bonds | August 15, 1980 | ||
| August 15, 1980 | Series QQP Nos. 10-19 Bonds, 1980 Series CP Nos. 1-12 Bonds and 1980 Series DP No. 1-11 Bonds and Subject Properties | August 1, 1981 | ||
| August 1, 1981 | 1980 Series CP Nos. 13-25 Bonds and Subject Properties | November 1, 1981 | ||
| November 1, 1981 | 1981 Series AP Nos. 1-12 Bonds | June 30, 1982 | ||
| June 30, 1982 | Article XIV Reconfirmation | August 15, 1982 | ||
| August 15, 1982 | 1981 Series AP Nos. 13-14 Bonds and Subject Properties | June 1, 1983 | ||
31
| SUPPLEMENTAL INDENTURE DATED AS OF |
PURPOSE OF SUPPLEMENTAL INDENTURE |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL INDENTURE DATED AS OF | ||
| June 1, 1983 | 1981 Series AP Nos. 15-16 Bonds and Subject Properties | October 1, 1984 | ||
| October 1, 1984 | 1984 Series AP Bonds and 1984 Series BP Bonds and Subject Properties | May 1, 1985 | ||
| May 1, 1985 | 1985 Series A Bonds | May 15, 1985 | ||
| May 15, 1985 | 1985 Series B Bonds and Subject Properties | October 15, 1985 | ||
| October 15, 1985 | Series KKP No. 9 Bonds and Subject Properties | April 1, 1986 | ||
| April 1, 1986 | 1986 Series A Bonds and Subject Properties | August 15, 1986 | ||
| August 15, 1986 | 1986 Series B Bonds and Subject Properties | November 30, 1986 | ||
| November 30, 1986 | 1986 Series C Bonds | January 31, 1987 | ||
| January 31, 1987 | 1987 Series A Bonds | April 1, 1987 | ||
| April 1, 1987 | 1987 Series B Bonds and 1987 Series C Bonds | August 15, 1987 | ||
| August 15, 1987 | 1987 Series D Bonds, 1987 Series E Bonds and Subject Properties | November 30, 1987 | ||
| November 30, 1987 | 1987 Series F Bonds | June 15, 1989 | ||
| June 15, 1989 | 1989 Series A Bonds | July 15, 1989 | ||
| July 15, 1989 | Series KKP No. 10 Bonds | December 1, 1989 | ||
| December 1, 1989 | Series KKP No. 11 Bonds and 1989 Series BP Bonds | February 15, 1990 | ||
| February 15, 1990 | 1990 Series A Bonds, 1990 Series B Bonds, 1990 Series C Bonds, 1990 Series D Bonds, 1990 Series E Bonds and 1990 Series F Bonds | November 1, 1990 | ||
| November 1, 1990 | Series KKP No. 12 Bonds | April 1, 1991 | ||
| April 1, 1991 | 1991 Series AP Bonds | May 1, 1991 | ||
| May 1, 1991 | 1991 Series BP Bonds and 1991 Series CP Bonds | May 15, 1991 | ||
| May 15, 1991 | 1991 Series DP Bonds | September 1, 1991 | ||
| September 1, 1991 | 1991 Series EP Bonds | November 1, 1991 | ||
| November 1, 1991 | 1991 Series FP Bonds | January 15, 1992 | ||
| January 15, 1992 | 1992 Series BP Bonds | February 29, 1992 and April 15, 1992 | ||
| February 29, 1992 | 1992 Series AP Bonds | April 15, 1992 | ||
| April 15, 1992 | Series KKP No. 13 Bonds | July 15, 1992 | ||
| July 15, 1992 | 1992 Series CP Bonds | November 30, 1992 | ||
| July 31, 1992 | 1992 Series D Bonds | November 30, 1992 | ||
| November 30, 1992 | 1992 Series E Bonds and 1993 Series B Bonds | March 15, 1993 | ||
| December 15, 1992 | Series KKP No. 14 Bonds and 1989 Series BP No. 2 Bonds | March 15, 1993 | ||
| January 1, 1993 | 1993 Series C Bonds | April 1, 1993 | ||
| March 1, 1993 | 1993 Series E Bonds | June 30, 1993 | ||
| March 15, 1993 | 1993 Series D Bonds | September 15, 1993 | ||
| April 1, 1993 | 1993 Series FP Bonds and 1993 Series IP Bonds | September 15, 1993 | ||
| April 26, 1993 | 1993 Series G Bonds and Amendment of Article II, Section 5 | September 15, 1993 | ||
| May 31, 1993 | 1993 Series J Bonds | September 15, 1993 | ||
32
| SUPPLEMENTAL INDENTURE DATED AS OF |
PURPOSE OF SUPPLEMENTAL INDENTURE |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL INDENTURE DATED AS OF | ||
| June 30, 1993 | 1993 Series AP Bonds | (d) | ||
| June 30, 1993 | 1993 Series H Bonds | (d) | ||
| September 15, 1993 | 1993 Series K Bonds | March 1, 1994 | ||
| March 1, 1994 | 1994 Series AP Bonds | June 15, 1994 | ||
| June 15, 1994 | 1994 Series BP Bonds | December 1, 1994 | ||
| August 15, 1994 | 1994 Series C Bonds | December 1, 1994 | ||
| December 1, 1994 | Series KKP No. 15 Bonds and 1994 Series DP Bonds | August 1, 1995 | ||
| August 1, 1995 | 1995 Series AP Bonds and 1995 Series BP Bonds | August 1, 1999 | ||
| August 1, 1999 | 1999 Series AP Bonds, 1999 Series BP Bonds and 1999 Series CP Bonds | (d) | ||
| August 15, 1999 | 1999 Series D Bonds | (d) | ||
| January 1, 2000 | 2000 Series A Bonds | (d) | ||
| April 15, 2000 | Appointment of Successor Trustee | (d) | ||
| August 1, 2000 | 2000 Series BP Bonds | (d) | ||
| March 15, 2001 | 2001 Series AP Bonds | (d) | ||
| May 1, 2001 | 2001 Series BP Bonds | (d) | ||
| August 15, 2001 | 2001 Series CP Bonds | (d) | ||
| September 15, 2001 | 2001 Series D Bonds and 2001 Series E Bonds | (d) | ||
| September 17, 2002 | Amendment of Article XIII, Section 3 and Appointment of Successor Trustee | (d) | ||
| October 15, 2002 | 2002 Series A Bonds and 2002 Series B Bonds | (d) | ||
| December 1, 2002 | 2002 Series C Bonds and 2002 Series D Bonds | (d) | ||
| August 1, 2003 | 2003 Series A Bonds | (d) | ||
| March 15, 2004 | 2004 Series A Bonds and 2004 Series B Bonds | (d) | ||
| July 1, 2004 | 2004 Series D Bonds | (d) | ||
| February 1, 2005 | 2005 Series A Bonds and 2005 Series B Bonds | May 15, 2006 | ||
| April 1, 2005 | 2005 Series AR Bonds and 2005 Series BR Bonds | May 15, 2006 | ||
| August 1, 2005 | 2005 Series DT Bonds | May 15, 2006 | ||
| September 15, 2005 | 2005 Series C Bonds | May 15, 2006 | ||
| September 30, 2005 | 2005 Series E Bonds | May 15, 2006 | ||
| May 15, 2006 | 2006 Series A Bonds | December 1, 2006 | ||
| December 1, 2006 | 2006 Series CT Bonds | December 1, 2007 | ||
| December 1, 2007 | 2007 Series A Bonds | April 1, 2008 | ||
| April 1, 2008 | 2008 Series DT Bonds | May 1, 2008 | ||
| May 1, 2008 | 2008 Series ET Bonds | July 1, 2008 | ||
| June 1, 2008 | 2008 Series G Bonds | October 1, 2008 | ||
| July 1, 2008 | 2008 Series KT Bonds | October 1, 2008 | ||
| October 1, 2008 | 2008 Series J Bonds | December 1, 2008 | ||
| December 1, 2008 | 2008 Series LT Bonds | March 15, 2009 | ||
| March 15, 2009 | 2009 Series BT Bonds | November 1, 2009 | ||
| November 1, 2009 | 2009 Series CT Bonds | August 1, 2010 | ||
| August 1, 2010 | 2010 Series B Bonds | December 1, 2010 | ||
| September 1, 2010 | 2010 Series A Bonds | December 1, 2010 | ||
| December 1, 2010 | 2010 Series CT Bonds | March 1, 2011 | ||
33
| SUPPLEMENTAL INDENTURE DATED AS OF |
PURPOSE OF SUPPLEMENTAL INDENTURE |
RECORDED AND/OR FILED AS SET FORTH IN SUPPLEMENTAL INDENTURE DATED AS OF | ||
| March 1, 2011 | 2011 Series AT Bonds | May 15, 2011 | ||
| May 15, 2011 | 2011 Series B Bonds | August 1, 2011 | ||
| August 1, 2011 | 2011 Series GT Bonds | June 20, 2012 | ||
| August 15, 2011 | 2011 Series D, 2011 Series E and 2011 Series F Bonds | June 20, 2012 | ||
| September 1, 2011 | 2011 Series H Bonds | June 20, 2012 | ||
| June 20, 2012 | 2012 Series A and B Bonds | March 15, 2013 | ||
| March 15, 2013 | 2013 Series A Bonds | August 1, 2013 | ||
| August 1, 2013 | 2013 Series B Bonds | June 1, 2014 | ||
| June 1, 2014 | 2014 Series A and B Bonds | July 1, 2014 | ||
| July 1, 2014 | 2014 Series D and E Bonds | March 1, 2015 | ||
| March 1, 2015 | 2015 Series A Bonds | May 1, 2016 | ||
| May 1, 2016 | 2016 Series A Bonds | August 1, 2017 | ||
| August 1, 2017 | 2017 Series B Bonds | May 1, 2018 | ||
| May 1, 2018 | 2018 Series A Bonds | February 1, 2019 | ||
| February 1, 2019 | 2019 Series A and B Bonds | February 1, 2020 | ||
| February 1, 2020 | 2020 Series A and B Bonds | March 1, 2021 | ||
| April 1, 2020 | 2020 Series C Bonds | March 1, 2021 | ||
| (a) | See Supplemental Indenture dated as of July 1, 1970 for Interstate Commerce Commission filing and recordation information. |
| (b) | See Supplemental Indenture dated as of May 1, 1953 for Secretary of State of Michigan filing information. |
| (c) | See Supplemental Indenture dated as of May 1, 1974 for County of Genesee, Michigan recording and filing information. |
| (d) | Recording and filing information for this Supplemental Indenture has not been set forth in a subsequent Supplemental Indenture. |
| RECORDING AND FILING OF SUPPLEMENTAL INDENTURE DATED AS OF MARCH 1, 2021. | Further, pursuant to the terms and provisions of the Original Indenture, a Supplemental Indenture dated as of March 1, 2021 providing for the terms of bonds to be issued thereunder of 2021 Green Series A and Green Series B has heretofore been entered into between the Company and the Trustee and has been filed in the Office of the Secretary of State of Michigan as a financing statement on April 8, 2021 (Filing No. 20210408000577-2), has been filed and recorded in the Office of the Surface Transportation Board on April 7, 2021 (Recordation No. 40184), and has been recorded as a real estate mortgage in the offices of the respective Register of Deeds of certain counties in the State of Michigan, as follows: |
| COUNTY |
RECORDED | LIBER/ INSTRUMENT NO. |
PAGE | |||
| Genesee County Michigan |
4/7/2021 | 202104070036377 | — | |||
| Gratiot County Michigan |
4/8/2021 | 01078 | 00401 – 00441 | |||
34
| Huron County Michigan |
4/8/2021 | 1740 | 418 | |||
| Ingham County Michigan |
4/7/2021 | 2021-015657 | — | |||
| Lapeer County Michigan |
4/7/2021 | 3190 | 247 | |||
| Lenawee County Michigan |
4/7/2021 | 2617 | 0008 | |||
| Livingston County Michigan |
4/8/2020 | 2021R-015935 | — | |||
| Macomb County Michigan |
4/22/2020 | 26657 | 927 | |||
| Mason County Michigan |
4/8/2021 | 2021R02637 | — | |||
| Midland County Michigan |
4/7/2021 | 01644 | 00743 | |||
| Monroe County Michigan |
4/7/2021 | 2021R08907 | — | |||
| Montcalm County Michigan |
4/8/2021 | 2021R-05468 | — | |||
| Oakland County Michigan |
4/8/2021 | 56033 | 266 | |||
| Sanilac County Michigan |
4/8/2021 | 1479 | 449 | |||
| St. Clair County Michigan |
4/8/2021 | 5348 | 109 | |||
| Tuscola County Michigan |
4/8/2021 | 01474 | 01409-01449 | |||
| Washtenaw County Michigan |
4/8/2021 | 5416 | 656 | |||
| Wayne County Michigan |
4/7/2021 | 56625 | 22 | |||
| RECORDING OF CERTIFICATES OF PROVISION FOR PAYMENT. | Certificates of Provision for Payment have been recorded in the offices of the respective Registers of Deeds of certain counties in the State of Michigan, with respect to all bonds of Series A, B, C, D, E, F, G, H, K, L, M, O, W, BB, CC, DDP Nos. 1 and 2, FFR Nos. 1-3, GGP Nos. 1 and 2, IIP No. 1, JJP No. 1, KKP No. 1, LLP No. 1 and GGP No. 8. | |
|
PART IV.
| ||
| THE TRUSTEE.
| ||
| TERMS AND CONDITIONS OF ACCEPTANCE OF TRUST BY TRUSTEE. | The Trustee hereby accepts the trust hereby declared and provided, and agrees to perform the same upon the terms and conditions in the Original Indenture, as amended to date and as supplemented by this Supplemental Indenture, and in this Supplemental Indenture set forth, and upon the following terms and conditions: | |
| The Trustee shall not be responsible in any manner whatsoever for and in respect of the validity or sufficiency of this Supplemental Indenture or the due execution hereof by the Company or for or in respect of the recitals contained herein, all of which recitals are made by the Company solely. | ||
|
PART V.
| ||
| MISCELLANEOUS.
| ||
| CONFIRMATION OF SECTION 318(c) OF TRUST INDENTURE ACT. | Except to the extent specifically provided therein, no provision of this Supplemental Indenture or any future supplemental indenture is intended to modify, and the parties do hereby adopt and confirm, the provisions of Section 318(c) of the Trust Indenture Act which amend and supersede provisions of the Indenture in effect prior to November 15, 1990. | |
| EXECUTION IN COUNTERPARTS. | THIS SUPPLEMENTAL INDENTURE MAY BE SIMULTANEOUSLY EXECUTED IN ANY NUMBER OF COUNTERPARTS, EACH OF WHICH WHEN SO EXECUTED SHALL BE DEEMED TO BE AN ORIGINAL; BUT SUCH COUNTERPARTS SHALL TOGETHER CONSTITUTE BUT ONE AND THE SAME INSTRUMENT. | |
35
| TESTIMONIUM. | IN WITNESS WHEREOF, DTE ELECTRIC COMPANY AND THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. HAVE CAUSED THESE PRESENTS TO BE SIGNED IN THEIR RESPECTIVE CORPORATE NAMES BY THEIR RESPECTIVE CHAIRMEN OF THE BOARD, PRESIDENTS, VICE PRESIDENTS, ASSISTANT VICE PRESIDENTS, TREASURERS OR ASSISTANT TREASURERS, ATTESTED BY THEIR RESPECTIVE SECRETARIES OR ASSISTANT SECRETARIES, ALL AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN. |
36
[This page intentionally left blank]
37
| EXECUTION BY COMPANY. |
DTE ELECTRIC COMPANY | |||
|
|
By: /s/ Christopher J. Allen | |||
| Name: Christopher J. Allen | ||||
| Title: Vice President and Treasurer | ||||
Attest:
| By: |
/s/ Sarah M. Bellow |
| Name: |
Sarah M. Bello | |
| Title: |
Assistant Corporate Secretary |
Signed and delivered by
DTE ELECTRIC COMPANY
in the presence of:
| /s/ Daniel T. Richards |
| Name: Daniel T. Richards |
| /s/ Melissa Kemmerle |
| Name: Melissa Kemmerle |
38
| STATE OF MICHIGAN | ) | |
| ) SS | ||
| COUNTY OF WAYNE | ) | |
| ACKNOWLEDGMENT OF EXECUTION BY COMPANY. |
On this 18th day of February 2022, before me, the subscriber, a Notary Public within and for the County of Wayne, in the State of Michigan, acting in the County of Wayne, personally appeared Christopher J. Allen, to me personally known, who, being by me duly sworn, did say that he does business at One Energy Plaza, Detroit, Michigan 48226 and is the Vice President and Treasurer of DTE ELECTRIC COMPANY, one of the corporations described in and which executed the foregoing instrument; and that said instrument was signed in behalf of said corporation by authority of its Board of Directors and that he subscribed his name thereto by like authority; and said Christopher J. Allen acknowledged said instrument to be the free act and deed of said corporation. | |
| (Notarial Seal) |
/s/ Katie S. Glover Katie S. Glover Notary Public, Wayne County, MI Acting in Wayne My Commission Expires: May 4, 2025 | |
39
| EXECUTION BY TRUSTEE. |
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. | |||
|
|
By: /s/ Mary Jo Wagener | |||
| Name: Mary Jo Wagener | ||||
| Title: Vice President | ||||
| Attest: |
||||||||
| By: | /s/ Letha Glover |
| Name: | Letha Glover | |
| Title: | Vice President |
40
| STATE OF TEXAS | ) | |
| ) SS | ||
| COUNTY OF HARRIS | ) | |
| ACKNOWLEDGMENT OF EXECUTION BY TRUSTEE. |
On this 22nd day of February 2022, before me, the subscriber, a Notary Public within and for the State of Illinois, personally appeared Mary Jo Wagener to me personally known, or proved to me on the basis of satisfactory identification and who, being by me duly sworn, did say that her business office is located at 601 Travis Street, 16th Floor, Houston, Texas 77002, and she is an Authorized Officer of THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., one of the corporations described in and which executed the foregoing instrument; and that said instrument was signed in behalf of said corporation by authority of its Board of Directors and that he subscribed his name thereto by like authority; and said Vice President acknowledged said instrument to be the free act and deed of said corporation. | |
| (Notarial Seal) |
/s/ Daniel Stage Daniel Stage My Commission Expires: 05/29/2024 ID No 132500211 Notary Public State of Texans Acting in Harris County | |
41
| STATE OF MICHIGAN | ) | |
| ) SS | ||
| COUNTY OF WAYNE | ) | |
| AFFIDAVIT AS TO CONSIDERATION AND GOOD FAITH. |
Christopher J. Allen, being duly sworn, says: that he is the Vice President and Treasurer of DTE ELECTRIC COMPANY, the Mortgagor named in the foregoing instrument, and that he has knowledge of the facts in regard to the making of said instrument and of the consideration therefor; that the consideration for said instrument was and is actual and adequate, and that the same was given in good faith for the purposes in such instrument set forth. | |
| /s/ Christopher J. Allen | ||
|
|
Name: Christopher J. Allen | |
| Title: Vice President and Treasurer | ||
| DTE Electric Company | ||
| Sworn to before me this 18th day of February 2022 | ||
| (Notarial Seal) |
||
| /s/ Katie S. Glover | ||
|
|
Katie S. Glover | |
| Notary Public, Wayne County, MI | ||
| Acting in Wayne | ||
| My Commission Expires: May 4, 2025 | ||
42
This instrument was drafted by:
Daniel T. Richards, Esq.
One Energy Plaza
1610 WCB
Detroit, Michigan 48226
When recorded return to:
Daniel T. Richards, Esq.
One Energy Plaza
1610 WCB
Detroit, Michigan 48226
43
Exhibit 5.1
April 8, 2022
DTE Energy Company
One Energy Plaza
Detroit, Michigan 48226
Ladies and Gentlemen:
Reference is made to the Registration Statement on Form S-3 (the “Registration Statement”) filed by DTE Energy Company, a Michigan corporation (the “Company”), with the Securities and Exchange Commission for the purpose of registering under the Securities Act of 1933, as amended (the “Securities Act”) (a) shares of common stock, without par value (the “Common Stock”), of the Company; (b) debt securities (“Debt Securities”) of the Company, which may be convertible into shares of Common Stock or exchangeable into other securities; and (c) stock purchase contracts (“Stock Purchase Contracts”) and stock purchase units (“Stock Purchase Units”).
The Debt Securities will be issued under an Amended and Restated Indenture dated as of April 9, 2001, as amended, supplemented or modified from time to time, between the Company and The Bank of New York Mellon Trust Company, N.A., as successor trustee (the “Indenture”).
The Stock Purchase Contracts will be issued pursuant to a Purchase Contract Agreement to be entered into among the Company, a trustee and a purchase contract agent.
The Stock Purchase Units will be comprised of a Stock Purchase Contract and beneficial interests in the Company’s debt securities or debt obligations of third parties, including U.S. treasury securities, securing the holders’ obligations to purchase stock under the Stock Purchase Contract.
I, as Senior Vice President and Chief Legal Officer of the Company, in conjunction with an attorney or attorneys under my general supervision, have examined such certificates, instruments and documents (collectively, “Documents”) and reviewed such questions of law as I have considered necessary or appropriate for the purposes of this opinion. In rendering this opinion, I have assumed, without independent verification, that: (i) all signatures are genuine; (ii) all Documents submitted to me as originals are authentic; and (iii) all Documents submitted to me as copies conform to the originals of such Documents. My review has been limited to examining the Documents and applicable law.
Based upon the foregoing examination and review, it is my opinion that:
| 1. | The Company is duly incorporated and validly existing as a corporation under the laws of the State of Michigan. |
| 2. | The issuance of shares of Common Stock has been duly authorized by all requisite action (corporate or otherwise) of the Company, and when such shares of Common Stock shall have been duly issued and delivered by the Company against payment of the consideration therefor and in accordance with such corporate action, such Common Stock will be validly issued, fully paid and non-assessable. |
| 3. | The issuance of Debt Securities has been duly authorized by all requisite action (corporate or otherwise) of the Company, and when (i) the Registration Statement has become effective under the Securities Act, (ii) the applicable supplemental indenture, supplementing the Indenture, pursuant to which the Debt Securities are to be issued shall have been duly executed and delivered, and (iii) the Debt Securities are authenticated by the applicable trustee in accordance with the Indenture and delivered against payment therefor, the Debt Securities will be validly issued and binding obligations of the Company (except to the extent enforceability may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization or other laws of general applicability relating to or affecting creditors’ rights and general equity principles, regardless of whether enforceability is considered in a proceeding at law or equity). |
| 4. | The issuance of Stock Purchase Contracts and Stock Purchase Units has been duly authorized by all requisite action (corporate or otherwise) of the Company, and when (i) the Registration Statement has become effective under the Securities Act, (ii) the terms of such Stock Purchase Contracts or Stock Purchase Units have been established in conformity with the requisite action authorizing their issuance, (iii) such Stock Purchase Contracts or Stock Purchase Units have been issued and sold as contemplated by the Registration Statement, the Prospectus and the applicable supplement to such Prospectus, (iv) the Company has received the consideration provided for in the applicable supplement to the Prospectus and any applicable definitive purchase, underwriting or similar agreement and (v) the Stock Purchase Contracts or Stock Purchase Units have been authenticated or countersigned in accordance with the provisions of the Purchase Contract Agreement or other purchase agreement, the Stock Purchase Contracts or Stock Purchase Units will be validly issued and binding obligations of the Company (except to the extent enforceability may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization or other laws of general applicability relating to or affecting creditors’ rights and general equity principles, regardless of whether enforceability is considered in a proceeding at law or equity). |
I hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement and to the reference to me under the caption “Legal Matters” in the Prospectus which is a part of the Registration Statement. In giving this consent, I do not admit that I am within the category of persons whose consent is required by Section 7 of the Securities Act or the rules and regulations promulgated thereunder by the Commission. I do not undertake to advise you of any changes in the opinions expressed herein from matters that might hereafter arise or be brought to my attention.
Very truly yours,
/s/ JoAnn Chávez
JoAnn Chávez
Senior Vice President and Chief Legal Officer
DTE Energy Company
Exhibit 5.2
April 8, 2022
DTE Electric Company
One Energy Plaza
Detroit, Michigan 48226
Ladies and Gentlemen:
Reference is made to the Registration Statement on Form S-3 (the “Registration Statement”) filed by DTE Electric Company, a Michigan corporation (the “Company”), with the Securities and Exchange Commission (the “Commission”) for the purpose of registering under the Securities Act of 1933, as amended (the “Securities Act”), debt securities (the “Debt Securities”) of the Company.
The Debt Securities will be issued under (i) a Collateral Trust Indenture, dated as of June 30, 1993, as amended, supplemented or modified from time to time, between the Company and The Bank of New York Mellon Trust Company, N.A., as successor trustee (the “Indenture”), or (ii) a Mortgage and Deed of Trust dated October 1, 1924, as amended, supplemented or modified from time to time between the Company and The Bank of New York Mellon Trust Company, N.A., as successor trustee (the “Mortgage”).
I, as General Counsel of the Company, in conjunction with the members of the Legal Department of the Company, have examined such certificates, instruments and documents (collectively, the “Documents”) and reviewed such questions of law as I have considered necessary or appropriate for the purposes of this opinion. In rendering this opinion, I have assumed without independent verification that (i) all signatures are genuine, (ii) all Documents submitted to me as originals are authentic, (iii) all Documents submitted to me as copies conform to the originals of such Documents, and (iv) all Documents were duly authorized, executed and delivered by all parties and are valid, binding and enforceable (other than the authorization, execution and delivery of Documents by the Company and the validity, binding effect and enforceability thereof upon the Company). My review has been limited to examining the Documents and applicable law.
Based on the foregoing examination and review, it is my opinion that:
| 1. | The Company is duly incorporated, validly existing and in good standing as a corporation under the laws of the State of Michigan. |
| 2. | The issuance of Debt Securities has been duly authorized by all requisite action (corporate or otherwise) of the Company, and when (i) the Registration Statement has become effective under the Securities Act, |
| (ii) the issuance and sale of the Debt Securities has been authorized by order of the Federal Energy Regulatory Commission or the Michigan Public Service Commission, (iii) the applicable supplemental indenture, supplementing the Indenture and/or Mortgage, pursuant to which the Debt Securities are to be issued shall have been duly executed and delivered and (iv) the Debt Securities are authenticated by the applicable trustee in accordance with the Indenture and/or the Mortgage and delivered against payment therefor, the Debt Securities will be validly issued and binding obligations of the Company (except to the extent enforceability may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization or other laws of general applicability relating to or affecting creditors’ rights and general equity principles, regardless of whether enforceability is considered in a proceeding at law or equity). |
I am licensed to practice law in the State of Michigan.
I hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement and to the reference to me under the caption in “Legal Matters” in the Prospectus of the Company which is a part of the Registration Statement. In giving this consent, I do not admit that I am within the category of persons whose consent is required by Section 7 of the Securities Act or the rules and regulations promulgated thereunder by the Commission. I do not undertake to advise you of any changes in the opinions expressed herein from matters that might hereafter arise or be brought to my attention.
Very truly yours,
/s/ Michael J. Solo
Michael J. Solo
General Counsel
DTE Electric Company
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of DTE Energy Company of our report dated February 10, 2022 relating to the financial statements, financial statement schedule and the effectiveness of internal control over financial reporting, which appears in DTE Energy Company’s Annual Report on Form 10-K for the year ended December 31, 2021. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
Detroit, Michigan
April 8, 2022
Exhibit 23.3
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of DTE Electric Company of our report dated February 10, 2022 relating to the financial statements and financial statement schedule, which appears in DTE Electric Company’s Annual Report on Form 10-K for the year ended December 31, 2021. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
Detroit, Michigan
April 8, 2022
Exhibit 24.1
DTE ENERGY COMPANY
DIRECTORS’ POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS:
That each of the undersigned does hereby severally make, constitute and appoint, David Ruud, JoAnn Chávez, Lisa A. Muschong, Timothy J. Lepczyk, Sarah M. Bello, and Timothy E. Kraepel, and each of them, his or her true and lawful attorneys-in-fact to sign and execute for him or her and on his or her behalf, as a director of DTE Energy Company (the “Company”), the Company’s Registration Statement to be filed on Form S-3 and any amendments or supplements thereto (including any post-effective amendments) with all exhibits and any and all documents required to be filed with respect thereto with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended, in such form(s) as they, or any of them, may approve, with respect to issues of the Company’s securities.
This Power of Attorney may be executed simultaneously in one or more counterparts, each of which shall be deemed an original, but all of which constitute but one and the same instrument.
IN WITNESS WHEREOF, this Power of Attorney has been signed by the undersigned as of this 18th day of March, 2022.
| /s/ Gerard M. Anderson Gerard M. Anderson, Director |
/s/ Ruth G. Shaw Ruth G. Shaw, Director | |||
| /s/ David A. Brandon David A. Brandon, Director |
/s/ Robert C. Skaggs, Jr. Robert C. Skaggs, Jr., Director | |||
| /s/ Charles G. McClure, Jr. Charles G. McClure, Jr., Director |
/s/ David A. Thomas David A. Thomas, Director | |||
| /s/ Gail J. McGovern Gail J. McGovern, Director |
/s/ Gary Torgow Gary Torgow, Director | |||
| /s/ Mark A. Murray Mark A. Murray, Director |
/s/ James H. Vandenberghe James H. Vandenberghe, Director | |||
| /s/ Gerardo Norcia Gerardo Norcia, Director |
/s/ Valerie M. Williams Valerie M. Williams, Director | |||
Exhibit 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ☐ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.
(Exact name of trustee as specified in its charter)
| 95-3571558 | ||
| (Jurisdiction of incorporation if not a U.S. national bank) |
(I.R.S. employer identification no.) | |
| 333 South Hope Street Los Angeles, California |
90071 | |
| (Address of principal executive offices) | (Zip code) | |
DTE Energy Company
(Exact name of obligor as specified in its charter)
| Michigan | 38-3217752 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) | |
| One Energy Plaza Detroit, Michgan |
48226-1279 | |
| (Address of principal executive offices) | (Zip code) | |
Debt Securities
(Title of the indenture securities)
| 1. | General information. Furnish the following information as to the trustee: |
| (a) | Name and address of each examining or supervising authority to which it is subject. |
| Name |
Address | |
| Comptroller of the Currency United States Department of the Treasury |
Washington, DC 20219 | |
| Federal Reserve Bank | San Francisco, CA 94105 | |
| Federal Deposit Insurance Corporation |
Washington, DC 20429 | |
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
| 2. | Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
| 16. | List of Exhibits. |
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the “Act”).
| 1. | A copy of the articles of association of The Bank of New York Mellon Trust Company, N.A., formerly known as The Bank of New York Trust Company, N.A. (Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121948 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152875). |
| 2. | A copy of certificate of authority of the trustee to commence business. (Exhibit 2 to Form T-1 filed with Registration Statement No.333-121948). |
| 3. | A copy of the authorization of the trustee to exercise corporate trust powers (Exhibit 3 to Form T-1 filed with Registration Statement No.333-152875). |
- 2 -
| 4. | A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-229762). |
| 6. | The consent of the trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152875). |
| 7. | A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. |
- 3 -
SIGNATURE
Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon Trust Company, N.A., a banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago, and State of Illinois, on the 31st day of March, 2022.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. | ||||
| By: | /s/ | Ann Dolezal | ||
| Name: | Ann Dolezal | |||
| Title: | Vice President | |||
- 4 -
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
of 333 South Hope Street, Suite 2525, Los Angeles, CA 90071
At the close of business December 31, 2021, published in accordance with Federal regulatory authority instructions.
| Dollar amounts in thousands |
||||
| ASSETS |
||||
| Cash and balances due from depository institutions: |
||||
| Noninterest-bearing balances and currency and coin |
1,603 | |||
| Interest-bearing balances |
397,503 | |||
| Securities: |
||||
| Held-to-maturity securities |
0 | |||
| Available-for-sale debt securities |
51,107 | |||
| Equity securities with readily determinable fair values not held for trading |
0 | |||
| Federal funds sold and securities purchased under agreements to resell: |
||||
| Federal funds sold in domestic offices |
0 | |||
| Securities purchased under agreements to resell |
0 | |||
| Loans and lease financing receivables: |
||||
| Loans and leases held for sale |
0 | |||
| Loans and leases, held for investment |
0 | |||
| LESS: Allowance for loan and lease losses |
0 | |||
| Loans and leases held for investment, net of allowance |
0 | |||
| Trading assets |
0 | |||
| Premises and fixed assets (including capitalized leases) |
19,483 | |||
| Other real estate owned |
0 | |||
| Investments in unconsolidated subsidiaries and associated companies |
0 | |||
| Direct and indirect investments in real estate ventures |
0 | |||
| Intangible assets |
856,313 | |||
| Other assets |
90,124 | |||
|
|
|
|||
| Total assets |
$ | 1,416,133 | ||
|
|
|
|||
| LIABILITIES |
||||
| Deposits: |
||||
| In domestic offices |
876 | |||
| Noninterest-bearing |
876 | |||
| Interest-bearing . |
0 | |||
| Federal funds purchased and securities sold under agreements to repurchase: |
||||
| Federal funds purchased in domestic offices |
0 | |||
| Securities sold under agreements to repurchase |
0 | |||
| Trading liabilities |
0 | |||
| Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases) |
0 | |||
| Not applicable |
||||
| Not applicable |
||||
| Subordinated notes and debentures |
0 | |||
| Other liabilities |
275,893 | |||
| Total liabilities |
276,769 | |||
| Not applicable |
||||
| EQUITY CAPITAL |
||||
| Perpetual preferred stock and related surplus |
.0 | |||
| Common stock |
1,000 | |||
| Surplus (exclude all surplus related to preferred stock) |
324,786 | |||
| Not available |
||||
| Retained earnings |
813,129 | |||
| Accumulated other comprehensive income |
449 | |||
| Other equity capital components |
0 | |||
| Not available |
||||
| Total bank equity capital |
1,139,364 | |||
| Noncontrolling (minority) interests in consolidated subsidiaries |
0 | |||
| Total equity capital |
1,139,364 | |||
|
|
|
|||
| Total liabilities and equity capital |
1,416,133 | |||
|
|
|
|||
I, Matthew J. McNulty, CFO of the above-named bank do hereby declare that the Reports of Condition and Income (including the supporting schedules) for this report date have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true to the best of my knowledge and belief.
| Matthew J. McNulty | ) | CFO |
We, the undersigned directors (trustees), attest to the correctness of the Report of Condition (including the supporting schedules) for this report date and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.
| Antonio I. Portuondo, President | ) | |||||
| Michael P. Scott, Managing Director | ) | Directors (Trustees) | ||||
| Kevin P. Caffrey, Managing Director | ) |
Exhibit 25.2
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ☐ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.
(Exact name of trustee as specified in its charter)
| 95-3571558 | ||
| (Jurisdiction of incorporation if not a U.S. national bank) |
(I.R.S. employer identification no.) | |
| 333 South Hope Street Los Angeles, California |
90071 | |
| (Address of principal executive offices) | (Zip code) | |
DTE Electric Company
(Exact name of obligor as specified in its charter)
| Michigan | 38-0478650 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) | |
| One Energy Plaza Detroit, Michgan |
48226-1279 | |
| (Address of principal executive offices) | (Zip code) | |
General and Refunding Mortgage Bonds
(Title of the indenture securities)
| 1. | General information. Furnish the following information as to the trustee: |
| (a) | Name and address of each examining or supervising authority to which it is subject. |
| Name |
Address | |
| Comptroller of the Currency United States Department of the Treasury |
Washington, DC 20219 | |
| Federal Reserve Bank | San Francisco, CA 94105 | |
| Federal Deposit Insurance Corporation |
Washington, DC 20429 | |
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
| 2. | Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
| 16. | List of Exhibits. |
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the “Act”).
| 1. | A copy of the articles of association of The Bank of New York Mellon Trust Company, N.A., formerly known as The Bank of New York Trust Company, N.A. (Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121948 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152875). |
| 2. | A copy of certificate of authority of the trustee to commence business. (Exhibit 2 to Form T-1 filed with Registration Statement No.333-121948). |
| 3. | A copy of the authorization of the trustee to exercise corporate trust powers (Exhibit 3 to Form T-1 filed with Registration Statement No.333-152875). |
- 2 -
| 4. | A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-229762). |
| 6. | The consent of the trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152875). |
| 7. | A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. |
- 3 -
SIGNATURE
Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon Trust Company, N.A., a banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago, and State of Illinois, on the 31st day of March, 2022.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. | ||||
| By: | /s/ | Ann Dolezal | ||
| Name: | Ann Dolezal | |||
| Title: | Vice President | |||
- 4 -
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
of 333 South Hope Street, Suite 2525, Los Angeles, CA 90071
At the close of business December 31, 2021, published in accordance with Federal regulatory authority instructions.
| Dollar amounts in thousands |
||||
| ASSETS |
||||
| Cash and balances due from depository institutions: |
||||
| Noninterest-bearing balances and currency and coin |
1,603 | |||
| Interest-bearing balances |
397,503 | |||
| Securities: |
||||
| Held-to-maturity securities |
0 | |||
| Available-for-sale debt securities |
51,107 | |||
| Equity securities with readily determinable fair values not held for trading |
0 | |||
| Federal funds sold and securities purchased under agreements to resell: |
||||
| Federal funds sold in domestic offices |
0 | |||
| Securities purchased under agreements to resell |
0 | |||
| Loans and lease financing receivables: |
||||
| Loans and leases held for sale |
0 | |||
| Loans and leases, held for investment |
0 | |||
| LESS: Allowance for loan and lease losses |
0 | |||
| Loans and leases held for investment, net of allowance |
0 | |||
| Trading assets |
0 | |||
| Premises and fixed assets (including capitalized leases) |
19,483 | |||
| Other real estate owned |
0 | |||
| Investments in unconsolidated subsidiaries and associated companies |
0 | |||
| Direct and indirect investments in real estate ventures |
0 | |||
| Intangible assets |
856,313 | |||
| Other assets |
90,124 | |||
|
|
|
|||
| Total assets |
$ | 1,416,133 | ||
|
|
|
|||
| LIABILITIES |
||||
| Deposits: |
||||
| In domestic offices |
876 | |||
| Noninterest-bearing |
876 | |||
| Interest-bearing . |
0 | |||
| Federal funds purchased and securities sold under agreements to repurchase: |
||||
| Federal funds purchased in domestic offices |
0 | |||
| Securities sold under agreements to repurchase |
0 | |||
| Trading liabilities |
0 | |||
| Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases) |
0 | |||
| Not applicable |
||||
| Not applicable |
||||
| Subordinated notes and debentures |
0 | |||
| Other liabilities |
275,893 | |||
| Total liabilities |
276,769 | |||
| Not applicable |
||||
| EQUITY CAPITAL |
||||
| Perpetual preferred stock and related surplus |
.0 | |||
| Common stock |
1,000 | |||
| Surplus (exclude all surplus related to preferred stock) |
324,786 | |||
| Not available |
||||
| Retained earnings |
813,129 | |||
| Accumulated other comprehensive income |
449 | |||
| Other equity capital components |
0 | |||
| Not available |
||||
| Total bank equity capital |
1,139,364 | |||
| Noncontrolling (minority) interests in consolidated subsidiaries |
0 | |||
| Total equity capital |
1,139,364 | |||
|
|
|
|||
| Total liabilities and equity capital |
1,416,133 | |||
|
|
|
|||
I, Matthew J. McNulty, CFO of the above-named bank do hereby declare that the Reports of Condition and Income (including the supporting schedules) for this report date have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true to the best of my knowledge and belief.
| Matthew J. McNulty | ) | CFO |
We, the undersigned directors (trustees), attest to the correctness of the Report of Condition (including the supporting schedules) for this report date and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.
| Antonio I. Portuondo, President | ) | |||||
| Michael P. Scott, Managing Director | ) | Directors (Trustees) | ||||
| Kevin P. Caffrey, Managing Director | ) |
Exhibit 25.3
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ☐ | CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.
(Exact name of trustee as specified in its charter)
| 95-3571558 | ||
| (Jurisdiction of incorporation if not a U.S. national bank) |
(I.R.S. employer identification no.) | |
| 333 South Hope Street Los Angeles, California |
90071 | |
| (Address of principal executive offices) | (Zip code) | |
DTE Electric Company
(Exact name of obligor as specified in its charter)
| Michigan | 38-0478650 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. employer identification no.) | |
| One Energy Plaza Detroit, Michgan |
48226-1279 | |
| (Address of principal executive offices) | (Zip code) | |
Debt Securities
(Title of the indenture securities)
| 1. | General information. Furnish the following information as to the trustee: |
| (a) | Name and address of each examining or supervising authority to which it is subject. |
| Name |
Address | |
| Comptroller of the Currency United States Department of the Treasury |
Washington, DC 20219 | |
| Federal Reserve Bank | San Francisco, CA 94105 | |
| Federal Deposit Insurance Corporation |
Washington, DC 20429 | |
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
| 2. | Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
| 16. | List of Exhibits. |
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the “Act”).
| 1. | A copy of the articles of association of The Bank of New York Mellon Trust Company, N.A., formerly known as The Bank of New York Trust Company, N.A. (Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121948 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152875). |
| 2. | A copy of certificate of authority of the trustee to commence business. (Exhibit 2 to Form T-1 filed with Registration Statement No.333-121948). |
| 3. | A copy of the authorization of the trustee to exercise corporate trust powers (Exhibit 3 to Form T-1 filed with Registration Statement No.333-152875). |
- 2 -
| 4. | A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-229762). |
| 6. | The consent of the trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152875). |
| 7. | A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. |
- 3 -
SIGNATURE
Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon Trust Company, N.A., a banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago, and State of Illinois, on the 31st day of March, 2022.
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. | ||||
| By: | /s/ | Ann Dolezal | ||
| Name: | Ann Dolezal | |||
| Title: | Vice President | |||
- 4 -
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
of 333 South Hope Street, Suite 2525, Los Angeles, CA 90071
At the close of business December 31, 2021, published in accordance with Federal regulatory authority instructions.
| Dollar amounts in thousands |
||||
| ASSETS |
||||
| Cash and balances due from depository institutions: |
||||
| Noninterest-bearing balances and currency and coin |
1,603 | |||
| Interest-bearing balances |
397,503 | |||
| Securities: |
||||
| Held-to-maturity securities |
0 | |||
| Available-for-sale debt securities |
51,107 | |||
| Equity securities with readily determinable fair values not held for trading |
0 | |||
| Federal funds sold and securities purchased under agreements to resell: |
||||
| Federal funds sold in domestic offices |
0 | |||
| Securities purchased under agreements to resell |
0 | |||
| Loans and lease financing receivables: |
||||
| Loans and leases held for sale |
0 | |||
| Loans and leases, held for investment |
0 | |||
| LESS: Allowance for loan and lease losses |
0 | |||
| Loans and leases held for investment, net of allowance |
0 | |||
| Trading assets |
0 | |||
| Premises and fixed assets (including capitalized leases) |
19,483 | |||
| Other real estate owned |
0 | |||
| Investments in unconsolidated subsidiaries and associated companies |
0 | |||
| Direct and indirect investments in real estate ventures |
0 | |||
| Intangible assets |
856,313 | |||
| Other assets |
90,124 | |||
|
|
|
|||
| Total assets |
$ | 1,416,133 | ||
|
|
|
|||
| LIABILITIES |
||||
| Deposits: |
||||
| In domestic offices |
876 | |||
| Noninterest-bearing |
876 | |||
| Interest-bearing . |
0 | |||
| Federal funds purchased and securities sold under agreements to repurchase: |
||||
| Federal funds purchased in domestic offices |
0 | |||
| Securities sold under agreements to repurchase |
0 | |||
| Trading liabilities |
0 | |||
| Other borrowed money: |
||||
| (includes mortgage indebtedness and obligations under capitalized leases) |
0 | |||
| Not applicable |
||||
| Not applicable |
||||
| Subordinated notes and debentures |
0 | |||
| Other liabilities |
275,893 | |||
| Total liabilities |
276,769 | |||
| Not applicable |
||||
| EQUITY CAPITAL |
||||
| Perpetual preferred stock and related surplus |
.0 | |||
| Common stock |
1,000 | |||
| Surplus (exclude all surplus related to preferred stock) |
324,786 | |||
| Not available |
||||
| Retained earnings |
813,129 | |||
| Accumulated other comprehensive income |
449 | |||
| Other equity capital components |
0 | |||
| Not available |
||||
| Total bank equity capital |
1,139,364 | |||
| Noncontrolling (minority) interests in consolidated subsidiaries |
0 | |||
| Total equity capital |
1,139,364 | |||
|
|
|
|||
| Total liabilities and equity capital |
1,416,133 | |||
|
|
|
|||
I, Matthew J. McNulty, CFO of the above-named bank do hereby declare that the Reports of Condition and Income (including the supporting schedules) for this report date have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true to the best of my knowledge and belief.
| Matthew J. McNulty | ) | CFO |
We, the undersigned directors (trustees), attest to the correctness of the Report of Condition (including the supporting schedules) for this report date and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.
| Antonio I. Portuondo, President | ) | |||||
| Michael P. Scott, Managing Director | ) | Directors (Trustees) | ||||
| Kevin P. Caffrey, Managing Director | ) |