EXHIBIT 4.227
GUARANTEE AGREEMENT
BETWEEN
DTE ENERGY COMPANY
AND
DTE ENTERPRISES, INC.
Agreement dated as of December 13, 2001 (this "Agreement"), made by and
between DTE Energy Company (the "Parent"), a corporation incorporated under the
laws of the State of Michigan, and DTE Enterprises, Inc. (the "Subsidiary"), a
corporation incorporated under the laws of the State of Michigan.
WHEREAS, on May 31, 2001, the Parent completed the acquisition of MCN
Energy Group Inc. ("MCN"), and thereafter merged MCN into the Subsidiary with
the Subsidiary being the surviving company; and
WHEREAS, the Parent is the direct parent and owner of 100% of the
outstanding common stock of the Subsidiary; and
WHEREAS, MCN, prior to the merger, had issued the debentures listed in
Attachment A hereto, (the "Debt Securities"); and
WHEREAS, MCN Financing I, MCN Financing II, MCN Financing III, and MCN
Michigan Ltd. Partnership, as special purpose financing vehicles (the "Financing
Companies") sponsored by MCN, had issued, prior to the merger, the preferred
securities and common securities, if any, together with MCN's guarantees of such
preferred and common securities listed in Attachment B hereto (the guarantees of
such preferred and common securities, hereinafter "Securities Guarantees"); and
WHEREAS, under the Securities Guarantees, MCN irrevocably and
unconditionally agreed, to the extent set forth in such agreements, to guarantee
the obligations of the Financing Companies to the holders of their securities on
the terms and conditions set forth in such guarantee agreements; and
WHEREAS, by operation of law the Subsidiary succeeded to and assumed
all of the rights, duties and obligations of MCN; and
WHEREAS, the Parent desires irrevocably and unconditionally to agree,
to the extent set forth in this Agreement, to support, on a joint and several
basis with the Subsidiary (i) the obligations of Subsidiary under the terms of
the Debt Securities and (ii) the obligations under the preferred securities and
common securities of the Financing Companies to the extent set forth in the
Securities Guarantees (Debt Securities and Securities Guarantees, collectively
"Securities");
NOW THEREFORE, in consideration of the foregoing premises, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parent
hereby agrees as follows (a reference to the singular includes the plural and
vice versa, and capitalized terms used in this Agreement but not defined in the
preamble above have the respective meanings assigned to them in this Agreement):
Section 1. Payment Provision. If, during the term of this Agreement,
the Subsidiary fails to make any scheduled payment of interest, principal or
premium, if any, or any other payment under the terms and provisions of the
Securities, Parent shall be obligated, to the fullest extent permitted by law to
either make, or cause Subsidiary to make, the scheduled payment immediately
following notice of such failure (the obligations set forth in this Section 1
being herein called the "Supported Obligations"). The obligation hereunder is
full and unconditional.
Section 2. Remedies. The Parent agrees that if Subsidiary defaults
in the timely payment of any Supported Obligations when due, the holder of a
Security may proceed directly against Parent to obtain payment of such defaulted
Supported Obligation owed to such holder.
Section 3. Payment on Demand. The Parent shall make payment of the
amount of the Supported Obligations and all other amounts payable by it to the
holder of the Security after demand therefor is made in writing to it. Such
demand shall be deemed to have been effectively made when either an envelope
containing such demand is addressed to Parent at ▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ for the attention of the Treasurer, or is personally delivered to
such address, or a facsimile transmission containing such demand is sent to
Parent, for the attention of the Treasurer, at the following fax number: (313)
▇▇▇-▇▇▇▇.
Section 4. Subrogation. Upon receipt by a holder of any payment or
payments on account of liability under this Agreement, the Parent shall not be
entitled to claim repayment against the Subsidiary until the claims of the
holders against the Subsidiary in respect of the defaulted Supported Obligations
have been repaid in full. If any amount shall be paid to the Parent on account
of any subrogation rights at any time when all the defaulted Supported
Obligations shall not have been paid in full, such amount shall be held in trust
for the benefit of the holders of the defaulted Security and shall be paid to
the holders of the defaulted Security.
Section 5. Waivers. The Parent hereby waives any failure or delay on
the part of Subsidiary in asserting or enforcing any of its rights or in making
any claims or demands hereunder. Subsidiary, any holder of a Security, or any
trustee of a Security, may at any time, without Parent's consent, without notice
to Parent and without affecting or impairing Subsidiary's or such holders or
trustee's rights or Parent's obligations hereunder, do any of the following with
respect to the Securities: (a) make changes, modifications, amendments or
alterations, by operation of law or otherwise, (b) grant renewals and extensions
of time, for payment or otherwise, (c) accept new or additional documents,
instruments or agreements relating to or in substitution of the Securities, or
(d) otherwise handle the enforcement of their respective rights and remedies in
accordance with their business judgment.
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Section 6. Amendment.
(a) With the written consent of the holders of a majority in
principal amount of the outstanding Securities, this Agreement
may be amended to add any provisions or change or eliminate
any provisions of this Agreement, or modify in each case in
any manner, the rights of the holders of the Securities under
this Agreement. The holders of a majority in principal amount
of the outstanding Securities affected by such waiver, by
notice to the trustee of the applicable Securities, may waive
compliance by the Parent with any provision of this Agreement;
provided, however, without the consent of each holder of
Securities affected, an amendment or waiver may not (i) reduce
the amount of Securities whose holders must consent to an
amendment or waiver or (ii) make any changes in Section 1; and
(b) Notwithstanding the provisions of Section 6(a), the Parent may
amend this Agreement to cure any ambiguity, defect or
inconsistency herein or to make any other change; provided,
however, no such action shall adversely affect the rights of
any holder of Securities.
Section 7. Reinstatement. This Agreement shall continue to be
effective or be reinstated, as the case may be, if at any time any payment of
any of the Supported Obligations is rescinded or must otherwise be refunded by
the holders of Securities upon the insolvency, bankruptcy or reorganization of
the Subsidiary or otherwise, regardless of whether the holders of Securities
contested the order requiring the return of such payment, all as though such
payment had not been made.
Section 8. No Recourse. Any right of subrogation acquired by the
Parent by reason of payment under or pursuant to this Agreement shall not be
exercised until the Supported Obligations and other amounts due to the holders
of Securities hereunder have been paid or repaid in full and shall be no greater
than the right held by the holders of Securities, and the Parent shall have no
recourse against the holders of Securities for any irregularity or defect in the
manner or procedure by which the holders of Securities make demand or pursue any
rights or remedies they may have.
Section 9. Representations and Warranties. The Parent represents and
warrants that:
a) Organization and Qualification. It is a corporation duly
incorporated and validly existing under the laws of the State
of Michigan.
b) Corporate Power. It has full corporate right, power and
authority to own its property and assets and to carry on its
business as now conducted and as contemplated to be conducted
and to enter into and perform this Agreement.
c) Conflict with Other Instruments. Neither the execution and
delivery of this Agreement nor the consummation of the
transactions herein contemplated nor compliance with the
terms, conditions and provisions hereof (i) conflicts with or
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results in a breach of any of the terms, conditions or
provisions of (A) its charter documents or by-laws; (B) any
material law, rule or regulation having the force of law; (C)
any material contractual restriction binding on or affecting
it or its properties; or (D) any material judgment,
injunction, determination or award which is binding on it; or
(ii) results in, or requires the creation or imposition of any
lien upon or security interest in or with respect to the
properties now owned or hereafter acquired by it under any
contractual provision binding on or affecting it.
d) Authorization, Governmental Approvals, etc. The execution and
delivery of this Agreement and the consummation by it of the
transactions herein contemplated have been duly authorized by
all necessary corporate action and no authorization, consent,
approval, license or exemption under any applicable law, rule
or regulation having the force of law, and no registration,
qualification, designation, declaration, recording, or filing
with any official body, is or was necessary therefor or to
perfect the same or to preserve the benefit thereof to the
holders of the Securities, except such as are in full force
and effect at the date hereof.
e) Execution and Binding Obligation. This Agreement has been duly
executed and delivered by it, and constitutes the legal, valid
and binding obligation of it enforceable against it in
accordance with its terms, subject to the effect of any
applicable bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium or similar laws affecting
creditors' rights generally and the effect of general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
f) Actions. There is no pending or threatened action or
proceeding affecting it before any court, governmental agency
or arbitrator, which may materially adversely affect its
financial condition or operations or impair the ability of the
Parent to perform its obligations under this Agreement. The
Parent is not in default with respect to any order of any
court, governmental authority or arbitrator, the effect of
which would have a material adverse effect on the Parent and
its subsidiaries on a consolidated basis.
g) Shares. The Parent is the registered and beneficial holder of
100% of the issued and outstanding shares of common stock of
the Subsidiary.
Section 10. Governing Law. (a) This Agreement shall be governed by and
construed in accordance with the laws of the State of Michigan.
Section 11. Headings, Etc. The division of this Agreement into sections
and the insertion of headings are for convenience of reference only and shall
not affect the interpretation hereof.
Section 12. Severability. Any provision of this Agreement which is
invalid or not enforceable shall not affect any other provision and shall be
deemed to be severable.
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Section 13. Successors and Assigns. This Agreement shall extend to and
inure to the benefit of the trustee of the Securities and the holders of the
Securities and their respective successors and assigns.
IN WITNESS WHEREOF, the Parent has duly executed this Agreement as of
the day and year first above written.
DTE ENERGY COMPANY
By: ____________________________
Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President and
Treasurer
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ATTACHMENT A
DTE ENTERPRISES OUTSTANDING SUBORDINATED DEBT
8 5/8% Junior Subordinated Debentures due 2036
8 5/8% Junior Subordinated Deferrable Interest Debentures due November 15, 2038
7 1/4% Junior Subordinated Debentures due 2002
Series A Subordinated Deferrable Interest Debt Securities
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ATTACHMENT B
GUARANTIES OF FINANCING COMPANY COMMON AND PREFERRED SECURITIES
Preferred Securities Guarantee Agreement dated as of July 26, 1996 relating to
the 8 5/8% Trust Originated Preferred Securities of MCN Financing I and Common
Securities Guarantee Agreement dated as of July 26, 1996 relating to the Common
Securities of MCN Financing I
Preferred Securities Guarantee Agreement dated as of November 18, 1998 relating
to the 8 5/8% Trust Preferred Securities of MCN Financing II and Common
Securities Guarantee Agreement dated as of November 18, 1998 relating to the
Common Securities of MCN Financing II
Preferred Securities Guarantee Agreement dated as of March 19, 1997 relating to
the 7.25% Preferred Securities of MCN Financing III and the Common Securities
Guarantee Agreement dated as of March 25, 1997 relating to the Common Securities
of MCN Financing III
Payment and Guarantee Agreement dated October 26, 1994 relating to the 9 3/8%
Redeemable Cumulative Preferred Securities, Series A of MCN Michigan Ltd.
Partnership
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