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EXHIBIT 99-29
[FORM OF SPURS ]
, dated as of __________, ____ (the "SPURS
"), among:
THE DETROIT EDISON COMPANY, a Michigan corporation (the
"Company");
and
________________ ("_________________" and, in its capacity as the
remarketing agent hereunder, the "SPURS Agent").
WHEREAS, the Company has issued $_______________ aggregate
principal amount of its Remarketed Notes, Series __ due ____ (the "Notes")
pursuant to an Indenture, dated as of June 30, 1993 (the "Original Indenture"),
between the Company and Bankers Trust Company, as trustee (in such capacity, the
"Trustee") and a _____ Supplemental Indenture, dated as of __, 1998 between the
Company and the Trustee (together with the Original Indenture, as further
amended or supplemented, the "Indenture");
WHEREAS, the Notes are being sold initially pursuant to a
distribution agreement, dated __________ _, ____ (the "Distribution Agreement"),
between the Company and __________________;
WHEREAS, the Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No. 333- )
under the Securities Act of 1933, as amended (the "Securities Act"), in
connection with the offering of Debt Securities, including the Notes, which
registration statement was declared effective by order of the Commission on ,
and has filed such amendments thereto and such amended prospectuses as may have
been required to the date hereof, and will file such additional amendments
thereto and such additional amended prospectuses as may hereafter be required;
WHEREAS, the Company may elect to remarket the Notes in different
Interest Rate Modes, including the SPURS Mode, and the Company and certain
agents have entered into a , dated as of ____________ __,
____ (the "") to set forth certain understanding and
procedures with respect to Notes remarketed in the Commercial Paper Term Mode or
the Long Term Rate Mode; and
WHEREAS, _____________ is prepared to act as the SPURS Agent with
respect to the remarketing of the Notes on _____________ (the "SPURS Remarketing
Date") pursuant to the terms of, but subject to the conditions set forth in,
this Agreement;
NOW, THEREFORE, for and in consideration of the covenants herein
made and subject to the conditions herein set forth, the parties hereto agree as
follows:
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Section 1. Definitions. Capitalized terms used and not defined in
this Agreement shall have the meanings assigned to them in the Indenture
(including in the form of the Notes issued thereunder).
Section 2. Representations and Warranties.
(a) The Company represents and warrants to the SPURS Agent as
of the date hereof, the Notification Date (as defined below), the Determination
Date (as defined below), the SPURS Remarketing Date and each date thereafter, if
any, of delivery of Notes by the SPURS Agent (each of the foregoing dates being
hereinafter referred to as a "Representation Date"), that (i) no consent,
approval, authorization, order or decree of any court or governmental agency or
body, including as to an effective registration statement under the Securities
Act with respect to the Notes, is required in connection with the remarketing of
Notes pursuant hereto, and (ii) the representations and warranties contained in
the Purchase Agreement are true and correct with the same force and effect as
though expressly made at and as of the date hereof.
(b) The Company further represents and warrants to the SPURS
Agent as of each Representation Date as follows:
(i) All of the required filings with the Commission made by
the Company have been made on or before the relevant Representation
Date under the Exchange Act and the rules and regulations of the
Commission thereunder (the "Exchange Act Regulations") (collectively,
the "Exchange Act Documents"), comply in all material respects with
the requirements of the Exchange Act and Exchange Act Regulations,
and each Exchange Act Document did not at the time of filing with the
Commission, and as of each Representation Date will not, include an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading. The accountants who certified the
financial statements and supporting schedules included or
incorporated by reference in the Exchange Act Documents are
independent public accountants as required by the Securities Act and
the regulations of the Commission thereunder (the "Securities Act
Regulations").
(ii) The financial statements included or incorporated by
reference in the Exchange Act Documents, together with the related
schedules and notes, present fairly the financial condition and
results of operations of the Company and its consolidated subsidiaries
at the dates and for the periods indicated and comply with the
applicable accounting requirements of the Exchange Act; said financial
statements have been prepared in conformity with the generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules included or
incorporated by reference in the Exchange Act Documents, if any,
present fairly in accordance with GAAP the information required to be
stated therein.
(iii) Since the respective dates as of which information is
given in the Exchange Act Documents, except as otherwise stated
therein, there has not been any material adverse change, or any
development which could reasonably be expected to result in a
prospective material adverse change, in the financial condition, or in
the
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earnings, business, operations or business prospects of the
Company and its subsidiaries taken as a whole (a "Material Adverse
Effect").
(iv) This Agreement has been duly authorized, executed and
delivered by the Company.
(v) The Notes are rated at least ["____"] by ▇▇▇▇▇'▇ Investors
Service, Inc., at least ["____"] by Standard & Poor's Ratings
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or, in each
case, such other rating as to which the Company shall have most
recently notified the SPURS Agent pursuant to Section 3(a) hereof. The
Indenture has been validly authorized, executed and delivered by the
Company and the Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act")), and, assuming
that the Indenture has been duly executed and delivered by the
Trustee, constitutes the legally binding obligation of the Company.
(vi) The Notes have been validly authorized and executed by the
Company and authenticated, issued and delivered in the manner provided
for in the Indenture and delivered against payment of the purchase
price therefor as provided in the Distribution Agreement, and
constitute legally binding obligations of the Company entitled to the
benefits of the Indenture.
(vii) Neither the Company nor any of its subsidiaries is in
violation of its corporate charter or by-laws or in default under any
agreement, indenture or instrument, except for such defaults that
would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement, the Indenture and the
Notes and the consummation of the transactions contemplated herein and
in the prospectus relating to the initial issuance of the Notes
(including the issuance and sale of the Notes and the use of the
proceeds from the sale thereof as described under the caption "Use of
Proceeds") have been duly authorized by all necessary corporate action
on the part of the Company and do not and will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, any
material agreement, indenture or instrument to which the Company or
any such subsidiary is a party or by which it is bound or to which any
of its property or assets is subject, nor will such action result in a
material violation of the charter or by-laws of the Company or any
such subsidiary or any order, rule or regulation in effect on the
relevant Representation Date of any court or governmental agency
having jurisdiction over the Company or any such subsidiary or its
property.
(viii) There is no material action, suit or proceeding before any
court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened, against or
affecting the Company or any of its subsidiaries, which is required to
be disclosed in the Exchange Act Documents (other than as disclosed
therein), or which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the properties or assets thereof, or
the consummation of the transactions contemplated in this Agreement or
the performance by the Company of its obligations hereunder.
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(ix) No consent, authorization or order of, or filing or
registration with, any court or governmental agency is required on the
relevant Representation Date for the execution, delivery and
performance by the Company of this Agreement or the Indenture or the
consummation of the transactions contemplated hereby and thereby,
except such as have been already obtained.
(x) The Company and its subsidiaries possess adequate
certificates, authorities, licenses or permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them, except to the
extent that the failure to possess any such certificate, authority,
license or permit, singly or in the aggregate, could not reasonably be
expected to adversely affect the financial condition, stockholders'
equity, results of operations, business or prospects of the Company
and its subsidiaries considered as one enterprise. Neither the Company
nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority, license or permit that, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect.
(xi) The Company and each of its subsidiaries has title or
rights to all real and personal property necessary for the conduct of
the business of the Company or such subsidiary, except to the extent
the failure to have such title or rights could not reasonably be
expected to have a Material Adverse Effect.
(xii) The Michigan Public Service Commission has authorized the
issuance and sale of the Notes and the issuance and pledge of the
Pledged Bond; and, other than approvals that may be required under
state securities laws, no other approval of any regulatory public
body, state or federal, is necessary in connection with the issuance
and sale of the Notes or the issuance and pledge of the Pledged Bond.
(xiii) The Company is not a "holding company" but is an
"affiliate" of a "holding company" (within the meaning of the Public
Utility Holding Company Act of 1935, as amended (the "1935 Act")),
which holding company is exempt from the provisions of the 1935 Act,
other than Section 9(a)(2) thereof, pursuant to Section 3(a)(2)
thereof.
(c) Any certificate signed by any director or officer of the
Company or DTE Energy and delivered to the SPURS Agent or to counsel for the
SPURS Agent in connection with the remarketing of the Notes shall be deemed a
representation and warranty by the Company or DTE Energy, as the case may be, to
the SPURS Agent as to the matters covered thereby.
Section 3. Covenants. The Company covenants with the SPURS Agent
as follows:
(a) The Company will provide prompt notice by telephone,
confirmed in writing (which may include facsimile or other electronic
transmission), to the SPURS Agent of (i) any notification or announcement by a
"nationally recognized statistical rating organization
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(as defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act) with regard to the ratings of any securities of the Company,
including, without limitation, notification of a downgrade in or withdrawal of
the rating of any security of the Company or notification or announcement of the
placement of any rating of any securities of the Company under surveillance or
review, including placement on Credit Watch or on Watch List with negative
implications, or (ii) the occurrence at any time of any event set forth in
Section 9(d) of this Agreement.
(b) The Company will furnish to the SPURS Agent:
(i) if required as provided in paragraph (e) below for
purposes of the remarketing, a then currently
effective registration statement under the
Securities Act and a then current prospectus
relating to the Notes to be used by the SPURS
Agent for remarketing and resale of the Notes
(such registration statement (whether consisting
of the registration statement relating to the
initial issuance of the Notes, or any amendment
thereto or a new registration statement) and any
amendments thereto, including any such prospectus
(whether consisting of the prospectus relating to
the initial issuance of the Notes or any amendment
or supplement thereto or a new prospectus)
relating to the Notes constituting a part thereof,
and all documents incorporated therein by
reference, as from time to time amended or
supplemented pursuant to the Exchange Act, the
Securities Act, or otherwise, are referred to
herein as the "Registration Statement" and the
"Prospectus," respectively, except that if any
revised prospectus shall be provided to the SPURS
Agent by the Company for use in connection with
the remarketing of the Notes which differs from
the Prospectus on file at the Commission at the
time the Registration Statement becomes effective,
the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first
provided to the SPURS Agent for such use);
(ii) each Exchange Act Document filed after the date
hereof; and
(iii) in connection with the remarketing of Notes, such
other information as the SPURS Agent may
reasonably request from time to time.
The Company agrees to provide the SPURS Agent with as many copies
of the foregoing written materials and other Company approved information as the
SPURS Agent may reasonably request for use in connection with the remarketing of
Notes and consents to the use thereof for such purpose.
(c) If, at any time during which the SPURS Agent would be
obligated to take any action under this Agreement, any event or condition known
to the Company relating to or affecting the Company, any subsidiary thereof or
the Notes shall occur which could reasonably
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be expected to cause any of the reports, documents, materials or information
referred to in paragraph (b) above or any document incorporated therein by
reference (collectively, the "Remarketing Materials") to contain an untrue
statement of a material fact or omit to state a material fact, the Company shall
promptly notify the SPURS Agent in writing of the circumstances and details of
such event or condition.
(d) So long as the Notes are outstanding, the Company will
file all documents required to be filed with the Commission pursuant to the
Exchange Act within the time periods required by the Exchange Act and the
Exchange Act Regulations.
(e) The Company will comply with the Securities Act and the
Securities Act Regulations, the Exchange Act and the Exchange Act Regulations
and the 1939 Act and the rules and regulations of the Commission thereunder so
as to permit the completion of the remarketing of the Notes as freely
transferable securities, as contemplated in this Agreement and in the prospectus
relating to the initial issuance of the Notes. In furtherance of the foregoing,
if it shall be necessary, in the opinion of counsel for the SPURS Agent or for
the Company to have a Registration Statement and a Prospectus in order to comply
with the requirements of the Securities Act or the Securities Act Regulations
and the Commission's interpretations of the Securities Act and the Securities
Act Regulations, or if at any time when a Prospectus is required by the
Securities Act to be delivered in connection with remarketing and resales of the
Notes, any event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the SPURS Agent or for the Company, to
amend the Registration Statement or amend or supplement the Prospectus in order
that the Prospectus will not include any untrue statements of a material fact or
omit to state a material fact necessary in order to make the statements therein
not misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, the Company, at its expense, will promptly (i) prepare
and file with the Commission such Registration Statement and Prospectus, or such
amendment or supplement as may be necessary to correct such statement or
omission as referred to above or to make the Registration Statement or the
Prospectus comply with such requirements as referred to above, (ii) furnish to
the SPURS Agent such number of copies of such Registration Statement and
Prospectus or such amendment, supplement or other document as the SPURS Agent
may reasonably request and (iii) furnish to the SPURS Agent an officers'
certificate, an opinion (including a statement as to the absence of material
misstatements in or omissions from the Registration Statement and Prospectus, as
amended or supplemented) of counsel for the Company satisfactory to the SPURS
Agent and a "comfort letter" from the Company's independent accountants, in each
case in form and substance satisfactory to the SPURS Agent, of the same tenor as
the officers' certificate, opinion and comfort letter, respectively, delivered
pursuant to the Distribution Agreement, but modified to relate to the
Registration Statement and Prospectus as amended or supplemented to the date
thereof.
(f) The Company agrees that neither it nor any of its
subsidiaries or affiliates shall defease, purchase or otherwise acquire, or
enter into any agreement to defease, purchase or otherwise acquire, any of the
Notes prior to the remarketing thereof by the SPURS Agent, other than pursuant
to Section 4(g) or 4(h) of this Agreement.
(g) Notwithstanding any provision to the contrary set forth in
the Indenture, the Company shall (i) use its best efforts to maintain the Notes
in book-entry form with The
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Depository Trust Company ("DTC") or any successor thereto and to appoint a
successor depositary to the extent necessary to maintain the Notes in book-entry
form, and (ii) waive any discretionary right it otherwise has under the
Indenture to cause the Notes to be issued in certificated form.
(h) To the extent that a Registration Statement and a
Prospectus are required as contemplated in paragraph (e) above, the Company
will comply with covenants of the same tenor as those set forth in the
Distribution Agreement, but modified to relate to the Registration Statement
and Prospectus.
Section 4. Appointment and Obligations of the SPURS Agent.
(a) Unless this Agreement is otherwise terminated in
accordance with Section 12. hereof, in accordance with the terms, but subject
to the conditions, of this Agreement, the Company hereby appoints ____________
and _____________ hereby accepts such appointment, as the exclusive SPURS Agent
with respect to $_______________ aggregate principal amount of Notes, subject
further to repurchase of the Notes in accordance with clause (h) of this
Section 4. or redemption of the Notes in accordance with clause (h) of this
Section 4.
(b) It is expressly understood and agreed by the parties
hereto that the obligations of the SPURS Agent hereunder with respect to the
Notes to be remarketed on the SPURS Remarketing Date are conditioned on (i) the
issuance and delivery of such Notes pursuant to the terms and conditions of the
Purchase Agreement and (ii) the SPURS Agent's election on the Notification Date
to purchase the Notes for remarketing on the SPURS Remarketing Date. It is
further expressly understood and agreed by and between the parties hereto that,
if the SPURS Agent has elected to remarket the Notes pursuant to clause (c)
below, the SPURS Agent shall not be obligated to set the SPURS Interest Rate
(as defined below) on any Notes, to remarket any Notes or to perform any of the
other duties set forth herein at any time after the Notification Date in the
event that (i) any of the conditions set forth in clauses (a), (b) or (c) of
Section 9 hereof shall not have been fully and completely met to the
satisfaction of the SPURS Agent, or (ii) any of the events set forth in clause
(d) of Section 9 hereof shall have occurred.
(c) On a Business Date not later than ten days prior to the
SPURS Remarketing Date, the SPURS Agent will notify the Company and the Trustee
as to whether it elects to purchase the Notes on the SPURS Remarketing Date
(the "Notification Date"). If, and only if, the Remarketing Agent so elects,
the Notes shall be subject to mandatory tender to the SPURS Agent for purchase
and remarketing on the SPURS Remarketing Date, upon the terms and subject to
the conditions described herein, including the Company's right to either
convert the Notes to a new Interest Rate Mode on the SPURS Remarketing Date
pursuant to the terms of clause (g) below or to redeem the Notes from the SPURS
Agent in the manner described in clause (h) below. The purchase price of such
tendered Notes shall be equal to 100% of the aggregate principal amount
thereof. If the SPURS Agent for any reason does not purchase all tendered Notes
on the SPURS Remarketing Date or if the SPURS Agent gives notice of its
intention to remarket the Notes but for any reason does not purchase all
tendered Notes on the SPURS Remarketing Date, then as of such date the Notes
will cease to be in the SPURS Mode
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and the Notes will be subject to remarketing on such date by an agent
appointed by the Company pursuant to the terms of the .
(d) Subject to the SPURS Agent's election to remarket the
Notes as provided in clause (c) above by 3:30 p.m., New York City time, on the
third Business Day immediately preceding the SPURS Remarketing Date (the
"Determination Date"), the SPURS Agent shall determine the SPURS Interest Rate
to the nearest one hundred-thousandth (0.00001) of one percent per annum. The
"SPURS Interest Rate" shall be equal to the sum of _________% (the "Base
Rate"), established by the SPURS Agent after consultation with the Company, and
the Applicable Spread (as defined below), which will be based on the Dollar
Price (as defined below) of the Notes. The SPURS Interest Rate announced by the
SPURS Agent, absent manifest error, shall be binding and conclusive upon the
actual purchasers of the Notes ("Beneficial Owners") and Holders of the Notes,
the Company and the Trustee.
The "Applicable Spread" shall be the lowest bid indication,
expressed as a spread (in the form of a percentage or in basis points)
above the Base Rate, obtained by the SPURS Agent on the Determination
Date from the bids quoted by up to five Reference Corporate Dealers
(as defined below) for the full aggregate principal amount of the
Notes at the Dollar Price, but assuming (i) an issue date equal to the
SPURS Remarketing Date, with settlement on such date without accrued
interest, (ii) a maturity date equal to the next succeeding Interest
Rate Adjustment Date of the Notes and (iii) a stated annual interest
rate, payable semiannually on each Interest Payment Date, equal to the
Base Rate plus the spread bid by the applicable Reference Corporate
Dealer. If fewer than five Reference Corporate Dealers bid as
described above, then the Applicable Spread shall be the lowest of
such bid indications obtained as described above.
"Comparable Treasury Issues" means the United States Treasury
security or securities selected by the SPURS Agent as having an actual
or interpolated maturity or maturities comparable or applicable to the
remaining term to the succeeding Interest Rate Adjustment Date of the
Notes being purchased.
"Comparable Treasury Price" means, with respect to the SPURS
Remarketing Date, (a) the offer prices of the Comparable Treasury
Issues (expressed in each case as a percentage of its principal
amount) on the Determination Date, as set forth on "Telerate Page 500"
(or such other page as may replace Telerate Page 500), or (b) if such
page (or any successor page) is not displayed or does not contain such
offer prices on the Determination Date, (i) the average of the
Reference Treasury Dealer Quotations (as defined below) for the SPURS
Remarketing Date, after excluding the highest and lowest such
Reference Treasury Dealer Quotations, or (ii) if the SPURS Agent
obtains fewer than four such Reference Treasury Dealer Quotations, the
average of all such Reference Treasury Dealer Quotations. "Telerate
Page 500" means the display designated as "Telerate Page 500" on
BridgeTelerate, Inc. (or such other page as may replace Telerate Page
500 on such service) or such other service displaying the offer prices
specified in (a) above as may replace BridgeTelerate, Inc.
"Dollar Price" means, with respect to the Notes, the present
value determined by the SPURS Agent, as of the SPURS Remarketing Date,
of the Remaining Scheduled
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Payments (as defined below) discounted to the SPURS Remarketing
Date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate (as defined below).
"Reference Corporate Dealers" means such Reference Corporate
Dealers as shall be appointed by the SPURS Agent after consultation
with the Company.
"Reference Treasury Dealer" means such Reference Treasury Dealers
as shall be appointed by the SPURS Agent after consultation with the
Company.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and the SPURS Remarketing Date, the
offer prices for the Comparable Treasury Issues (expressed in each
case as a percentage of its principal amount) quoted in writing to the
SPURS Agent by such Reference Treasury Dealer by such Reference
Treasury Dealer by 3:30 p.m., on the Determination Date.
"Remaining Scheduled Payments" means, with respect to the Notes,
the remaining scheduled payments of the principal thereof and interest
thereon, calculated at the Base Rate only, that would be due after the
SPURS Remarketing Date to and including the next succeeding Interest
Rate Adjustment Date, as determined by the SPURS Agent.
"Treasury Rate" means, with respect to the SPURS Remarketing
Date, the rate per annum equal to the semi-annual equivalent yield to
maturity or interpolated (on a day count basis) yield to maturity of
the Comparable Treasury Issues, assuming a price for the Comparable
Treasury Issues (expressed as a percentage of its principal amount),
equal to the Comparable Treasury Price for the SPURS Remarketing Date.
(e) Subject to the SPURS Agent's election to remarket the
Notes as provided in clause (c) above, the SPURS Agent shall notify the
Company, the Trustee and The Depository Trust Company ("DTC") by telephone,
confirmed in writing (which may include facsimile or other electronic
transmission), by 4:00 p.m., New York City time, on the Determination Date of
the SPURS Interest Rate applicable to the Notes effective from and including
the SPURS Remarketing Date.
(f) In the event that the SPURS Agent purchases the tendered
Notes on the SPURS Remarketing Date, the SPURS Agent shall make or cause the
Trustee to make, payment to the DTC participant of each tendering Beneficial
Owner of Notes subject to remarketing, by book-entry through DTC by the close of
business on the SPURS Remarketing Date against delivery through DTC of such
Beneficial Owner's tendered Notes, of the purchase price for such tendered Notes
shall be equal to 100% of the aggregate principal amount thereof. The Company
shall make, or cause the Trustee to make, payment of interest to each Beneficial
Owner of Notes due on the SPURS Remarketing Date by book-entry through DTC by
the close of business on the SPURS Remarketing Date.
(g) If the SPURS Agent elects to remarket the Notes as
provided in clause (c) above, then not later than the Business Day immediately
preceding the Determination Date, the Company shall notify the SPURS Agent and
the Trustee if the Company irrevocably elects to exercise its right to convert
the Notes, in whole but not in part, to a new Interest Rate Mode. In
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such case, the Company shall pay to the SPURS Agent the excess of the Dollar
Price of the Notes over 100% of the principal amount on the Notes in same-day
funds by wire transfer to an account designated by the SPURS Agent on the SPURS
Remarketing Date. If the Company elects to convert the Notes, then as of the
SPURS Remarketing Date the Notes will cease to be in the SPURS Mode, the SPURS
Remarketing Date will constitute an Interest Rate Adjustment Date, and the Notes
will be subject to remarketing on such date by a Remarketing Agent appointed by
the Company in the Commercial Paper Term Mode or the Long Term Rate Mode or a
new SPURS Mode.
(h) If the SPURS Agent elects to remarket the Notes as
provided in clause (c) above, then not later than the Business Day immediately
preceding the Determination Date, the Company shall notify the SPURS Agent and
the Trustee if the Company irrevocably elects to exercise its right to redeem
the Notes, in whole but not in part, from the SPURS Agent on the SPURS
Remarketing Date at the Optional Redemption Price. The "Optional Redemption
Price" shall be the greater of (i) 100% of the aggregate principal amount of
the Notes and (ii) the Dollar Price, plus in either case accrued and unpaid
interest from the SPURS Remarketing Date on the principal amount being redeemed
to the date of redemption. If the Company elects to redeem the Notes, it shall
pay the redemption price therefor in same-day funds by wire transfer to an
account designated by the SPURS Agent on the SPURS Remarketing Date.
(i) In accordance with the terms and provisions of the Notes,
the tender and settlement procedures set forth in this Section 4, including
provisions for payment by purchasers of Notes in the remarketing or for payment
to selling Beneficial Owners of tendered Notes, shall be subject to
modification, notwithstanding any provision to the contrary set forth in the
Indenture, to the extent required by DTC or, if the book-entry system is no
longer available for the Notes at the time of the remarketing, to the extent
required to facilitate the tendering and remarketing of Notes in certificated
from. In addition, the SPURS Agent may, notwithstanding anything to the contrary
contained in the Indenture, modify the settlement procedures set forth in the
Indenture and/or the Notes in order to facilitate the settlement process. If the
Company fails to redeem the Notes from the SPURS Agent following any such
election, the [SPURS Agent will be deemed to have elected not to remarket the
Notes], subject to the obligation of the Company to pay the Calculation Amount
to the SPURS Agent as provided in Section 12(e) of this Agreement.
(j) In accordance with the terms and provisions of the Notes,
the Company hereby agrees that at all times, notwithstanding any provision to
the contrary set forth in the Indenture, (i) it will use its best efforts to
maintain the Notes in book-entry form with DTC or any successor thereto and to
appoint a successor depository to the extent necessary to maintain the Notes in
book-entry form and (ii) it will waive any discretionary right it otherwise may
have under the Indenture to cause the Notes to be issued in certificated form.
Section 5. Fees and Expenses. Subject to Section 12 of this
Agreement, for its services in performing its duties set forth herein, the SPURS
Agent will not receive any fees or reimbursement of expenses from the Company.
Section 6. Resignation of the SPURS Agent. The SPURS Agent may
resign and be discharged from its duties and obligations hereunder at any time,
such resignation to be
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effective 10 days after delivery of a written notice to the Company and the
Trustee of such resignation. The SPURS Agent also may resign and be discharged
from its duties and obligations hereunder at any time, such resignation to be
effective immediately, upon termination of this Agreement in accordance with
Section 12(b) hereof. It shall be the sole obligation of the Company to appoint
a successor SPURS Agent.
Section 7. Dealing in the Notes; Purchase of Notes by the
Company.
(a) ________________, when acting as the SPURS Agent or in its
individual or any other capacity, and its affiliates may, to the extent
permitted by law, buy, sell, hold and deal in any of the Notes.
_________________, as Holder or Beneficial Owner of the Notes, and its
affiliates may exercise any vote or join as a Holder or Beneficial Owner, as the
case may be, in any action which any Holder or Beneficial Owner of the Notes may
be entitled to exercise or take pursuant to the Indenture with like effect as if
___________________ did not act in any capacity hereunder. The SPURS Agent, in
its capacity, either as principal or agent, and its affiliates may also engage
in or have an interest in any financial or other transaction with the Company as
freely as if the SPURS Agent did not act in any capacity hereunder.
(b) The Company may purchase Notes in the remarketing,
provided that the SPURS Interest Rate established with respect to Notes in the
remarketing is not different from the SPURS Interest Rate that would have been
established if the Company had not purchased such Notes.
Section 8. Information.
(a) The Company agrees to furnish to the SPURS Agent (i)
notice of the occurrence of any of the events set forth in Section 9 hereof and
(ii) in connection with the remarketing, promptly following any request
therefor, such other information including, but not limited to, the operations,
business affairs and financial condition of the Company, DTE Energy or any
material subsidiary thereof, or compliance with the terms of this Agreement, as
the SPURS Agent may reasonably request. The Company agrees to provide the SPURS
Agent with as many copies of the foregoing materials and information as the
SPURS Agent may reasonably request for use in connection with the remarketing
and consents to the use thereof for such purpose.
(b) If, at any time during the term of this Agreement, any
event or condition known to the Company relating to or affecting the Company,
DTE Energy or any subsidiary thereof or the Notes shall occur which might cause
(i) any of the Exchange Act Documents, (ii) any materials or information
referred to in clause (i) of paragraph (a) above or (iii) any document
incorporated therein by reference (collectively, the "Remarketing Materials")
to include an untrue statement of a material fact or omit to state a material
fact, the Company shall promptly notify the SPURS Agent in writing of the
circumstances and details of such event or condition.
Section 9. Conditions to SPURS Agent's Obligations. The
obligations of the SPURS Agent under this Agreement have been undertaken in
reliance on, and shall be subject to, (a) the due performance in all material
respects by the Company of its respective obligations and agreements as set
forth in this Agreement and the accuracy of the representations and warranties
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in this Agreement and any certificate delivered pursuant hereto, (b) the due
performance in all material respects by the Company of its obligations and
agreements set forth in, and the accuracy as of the dates specified therein of
the representations and warranties contained in, the Distribution Agreement, (c)
the submission of a bid by a Reference Corporate Dealer on the Determination
Date to purchase the full aggregate principal amount of the Notes at the Dollar
Price and (d) the further condition that none of the following events shall have
occurred after the SPURS Agent elects on the Notification Date to remarket the
Notes:
(i) the rating of any securities of the Company shall have
been down graded or put under surveillance or review with negative
implications, including being put on what is commonly termed a "watch
list," or withdrawn by a nationally recognized statistical rating
organization;
(ii) without the prior written consent of the SPURS Agent, the
Indenture (including the Notes) shall have been amended in any manner,
or otherwise contain any provision not contained therein as of the
date hereof, that in either case in the reasonable judgment of the
SPURS Agent materially changes the nature of the Notes or the
remarketing procedures (it being understood that, notwithstanding the
provisions of this clause (ii), the Company shall not be prohibited
from amending the Indenture);
(iii) trading in any securities of the Company shall have been
suspended or materially limited by the Commission, or if trading
generally on the American Stock Exchange or the New York Stock
Exchange or in the Nasdaq National Market shall have been suspended or
materially limited, or minimum or maximum prices for trading shall
have been fixed, or maximum ranges for prices shall have been
required, by any of said exchanges or by such system or by order of
the Commission, the National Association of Securities Agents, Inc. or
any other governmental authority, or if a banking moratorium shall
have been declared by either Federal, New York or Michigan
authorities.
(iv) there shall have occurred any material adverse change in
the financial markets in the United States, any outbreak of
hostilities or escalation thereof, or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each
case the effect of which is such as to make it, in the reasonable
judgment of the SPURS Agent, impracticable to remarket the Notes or to
enforce contracts for the sale of the Notes;
(v) an Event of Default, or any event which, with the giving
of notice or passage of time, or both, would constitute an Event of
Default, with respect to the Notes shall have occurred and be
continuing.
(vi) any material adverse change, or any development which
could reasonably be expected to result in a prospective material
adverse change, in the financial condition, or in the earnings,
business or operations or business prospects, of the Company and
its subsidiaries taken as a whole, the effect of which is such as to
make it, in the reasonable judgment of the SPURS Agent, impracticable
to remarket the Notes or to enforce contracts for the sale of the
Notes, shall have occurred since the Notification Date or
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since the respective dates as of which information is given in the
Exchange Act Documents; or
(vii) the Notes are not maintained in book-entry form with DTC
or any successor thereto; provided, that the SPURS Agent, in its sole
discretion and subject to receipt of an opinion of counsel for the
Company reasonably satisfactory to the SPURS Agent, may waive the
foregoing condition if in the SPURS Agent's judgment the Indenture and
the Notes can be amended, and they are amended, so as to permit the
remarketing of the Notes in certificated form and otherwise as
contemplated herein.
(e) In furtherance of the foregoing, the effectiveness of the
SPURS Agent's election on the Notification Date to remarket the Notes shall be
subject to the condition that the SPURS Agent shall have received a certificate
of the Chairman of the Board, the President, the Chief Financial Officer or a
Vice President of the Company, and the Treasurer or an Assistant Treasurer of
the Company, dated as of the Notification Date, to the effect that (i) the
Company has, prior to the SPURS Agent's election on the Notification Date to
remarket the Notes, provided the SPURS Agent with notice of all events as
required under Section 3(a) of this Agreement, (ii) the representations and
warranties in this Agreement are true and correct at and as of the Notification
Date and (iii) the Company has complied in all material respects with all
agreements and satisfied in all material respects all conditions on its part to
be performed or satisfied at or prior to the Notification Date. Such certificate
shall be delivered by the Company to the SPURS Agent as soon as practicable
following notification by the SPURS Agent to the Company on the Notification
Date of its election to remarket the Notes and in any event prior to the
Determination Date.
In the event of the failure of any of the foregoing conditions,
the SPURS Agent may terminate its obligations under this Agreement or determine
the SPURS Interest Rate as provided in Section 12.
Section 10. Indemnification.
(a) The Company agrees to indemnify and hold harmless the
SPURS Agent and its officers, directors and employees and each person, if any,
who controls the SPURS Agent within the meaning of Section 20 of the Exchange
Act as follows:
(i) against any loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of (A) any untrue statement or
alleged untrue statement of a material fact contained in any of the
Remarketing Materials (including any incorporated documents), or (B)
the omission or alleged omission therefrom of a material fact
necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading, or (C) any
violation by the Company of, or any failure by the Company to perform
any of its respective obligations under this Agreement, or (D) the
acts or omissions of the SPURS Agent in connection with its duties and
obligations hereunder except to the extent due to its gross negligence
or willful misconduct;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent to the aggregate amount
paid in settlement of any litigation, or
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investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever arising out of, or
based upon, any of items (A) through (D) in clause (i) above; provided
that (subject to clause (d) below) such settlement is effected with
the written consent of the Company, which consent shall not be
unreasonably withheld; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the SPURS
Agent), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever arising out of, or based upon, any of items (A) through (D)
in clause (i) above to the extent that any such expense is not paid
under (i) or (ii) above; provided that the foregoing indemnity shall
not apply to any losses, liabilities, claims, damages and expenses to
the extent arising out of any untrue statement or omission made in
reliance upon and in conformity with written information furnished to
the Company by the SPURS Agent expressly for use in the Remarketing
Materials.
(b) The SPURS Agent agrees to indemnify and hold harmless the
Company and its officers, directors and employees and each person, if any, who
controls the Company within the meaning of Section 20 of the Exchange Act as
follows:
(i) against any loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statements or
omissions made in the Remarketing Materials in reliance upon and in
conformity with information furnished to the Company in writing by the
SPURS Agent expressly for use in such Remarketing Materials;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding
by any governmental agency or body, commenced or threatened, or of any
claim whatsoever arising out of, or based upon, clause (i) above;
provided that (subject to clause (d) below) such settlement is
effected with the written consent of the SPURS Agent, which consent
shall not be unreasonably withheld; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Company), reasonably incurred in investigating preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever arising out of, or based upon, clause (i) above to the
extent that any such expense is not paid under (i) or (ii) above.
(c) Promptly after receipt by any indemnified party under
Section 10(a) or Section 10(b) hereof of notice of any claim or the
commencement of any action, the indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party pursuant to Section 10(a)
or Section 10(b) hereof, notify the indemnifying party in writing of the claim
or the commencement of that action; provided however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 10 except to the extent that it has been materially
prejudiced (through the forfeiture of substantive rights or
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defenses) by such failure; and provided further that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 10. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 10 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided however, that an
indemnified party will have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (1)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnified party, (2) the indemnified party has reasonably
concluded (based upon advice of counsel to the indemnified party) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party, (3)
a conflict or potential conflict exists (based upon advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm of attorneys (in
addition to any local counsel) at any one time for all such indemnified party or
parties. Each indemnified party, as a condition of the indemnity agreements
contained in Section 10(a) and Section 10 (b) hereof, shall use all reasonable
efforts to cooperate with the indemnifying party in the defense of any such
action or claim. No indemnifying party shall be liable for any settlement of any
such action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment of the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by clause (a)(ii) or (b)(ii) effected
without its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such
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settlement being entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request prior to the
date of such settlement.
(e) The indemnity agreements contained in this Section 10
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the SPURS Agent, and shall survive the
termination or cancellation of this Agreement and the remarketing of any Notes
hereunder.
Section 11. Contribution. If the indemnification provided for in
Section 10 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the SPURS Agent on the other hand from the
remarketing of the Notes pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and of the
SPURS Agent on the other hand in connection with the acts, failures to act,
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and
the SPURS Agent on the other hand in connection with the remarketing of the
Notes pursuant to this Agreement shall be deemed to be in the same respective
proportions as (i) the aggregate principal amount of the Notes, and (iii) the
aggregate positive difference, if any, between the price paid by the SPURS Agent
for the Notes tendered on the SPURS Remarketing Date and the price at which the
Notes are sold by the SPURS Agent in the remarketing.
The relative fault of the Company on the one hand the SPURS Agent
on the other hand shall be determined by reference to, among other things, the
responsibility hereunder of the applicable party for any act or failure to act
relating to the losses, liabilities, claims, damages or expenses incurred or, in
the case of any losses, liabilities, claims, damages or expenses arising out of
any untrue or alleged untrue statement of a material fact contained in any of
the Remarketing Materials.
Section 12. Termination of or
Redetermination of the SPURS Interest Rate.
(a) This Agreement shall terminate as to the SPURS Agent on
the effective date of the resignation of the SPURS Agent pursuant to Section 6
hereof or the repurchase of the Notes by the Company pursuant to Section 4(h)
hereof or the redemption of the Notes by the Company pursuant to Section 4(h)
hereof.
(b) In addition, the SPURS Agent may terminate all of its
obligations under this Agreement by notifying the Company and the Trustee of its
election to do so, at any time on or before the SPURS Remarketing Date, in the
event that: (i) any of the conditions referred to or
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set forth in Section 9(a), (b) or (c) hereof have not been met or satisfied in
full or (ii) any of the events set forth in Section 9(d) shall have occurred
after the SPURS Agent elects to remarket the Notes.
(c) Notwithstanding any provision herein to the contrary, in
lieu of terminating this Agreement pursuant to Section 12(b) above, upon the
occurrence of any of the events set forth therein, the SPURS Agent, in its sole
discretion at any time between the Determination Date and 3:30 p.m., New York
City time, on the Business Day immediately preceding the SPURS Remarketing Date,
may elect to purchase the Notes for remarketing and determine a new SPURS
Interest Rate in the manner provided in Section 4(d) of this Agreement, except
that for purposes of determining the new SPURS Interest Rate pursuant to this
paragraph the Determination Date referred to therein shall be the date of such
election and redetermination. The SPURS Agent shall notify the Company, the
Trustee and DTC by telephone, confirmed in writing (which may include facsimile
or other electronic transmission), by 4:00 p.m., New York City time, on the date
of such election, of the new SPURS Interest Rate applicable to the Notes.
Thereupon, such new SPURS Interest Rate shall supersede and replace any SPURS
Interest Rate previously determined by the SPURS Agent and, absent manifest
error, shall be binding and conclusive upon the Beneficial Owners and Holders of
the Notes on and after the SPURS Remarketing Date, the Company and the Trustee;
provided that the SPURS Agent, by redetermining the SPURS Interest Rate upon the
occurrence of any event set forth in Section 12(b) as set forth above, shall not
thereby be deemed to have waived its right to determine a new SPURS Interest
Rate or terminate this Agreement upon the occurrence of any other event set
forth in Section 12(b).
(d) If this Agreement is terminated pursuant to this Section
12, such termination shall be without liability of any party to any other party,
except that, in the case of termination pursuant to Section 12(b) of this
Agreement, the Company shall reimburse the SPURS Agent for all of its reasonable
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the SPURS Agent, and except further as set forth in Section 12(e)
below. Section 1, Section 10, Section 11, Section 12(d) and Section 12(e) shall
survive such termination and remain in full force and effect.
(e) In the case of either (i) termination of this Agreement
pursuant to Section 12(b), (ii) the occurrence, prior to the SPURS Agent's
election on the Notification Date to remarket the Notes, of any event set forth
in Section 9(d)(ii), (v) or (vii), (iii) after the SPURS Agent's election to
remarket the Notes, no bid is submitted by a Reference Corporate Agent to the
SPURS Agent on the Determination Date to purchase the full aggregate principal
amount of the Notes at the Dollar Price or (iv) any failure by the Company to
redeem the Notes from the SPURS Agent following any election by the Company to
effect such redemption as specified in Section 4(h) (each a "Calculation
Event"), the Company shall immediately following the Calculation Amount
Determination Date (as defined below) pay the SPURS Agent, in same-day funds by
wire transfer to an account designated by the SPURS Agent, the fair market
value, calculated as set forth below, of the SPURS Agent's right to purchase and
remarket the Notes pursuant to this Agreement (the "Calculation Amount").
The Calculation Amount will be determined by the SPURS Agent in
good faith and on a commercially reasonable basis and will be equal to an
amount, if any, that would be
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paid by the SPURS Agent in consideration of an agreement between the SPURS Agent
and a Reference Corporate Agent (other than the SPURS Agent) to enter into a
transaction that would have the effect of preserving for the SPURS Agent the
economic equivalent of any payment or delivery (whether the underlying
obligation was absolute or contingent) by the SPURS Agent and the Beneficial
Owners that would, but for the occurrence of the Calculation Event, have been
required on the SPURS Remarketing Date; provided that, if the Calculation Amount
is being determined with respect to a Calculation Event occurring on or after
the SPURS Agent's election on the Notification Date to remarket the Notes, the
Calculation Amount will be equal to the excess, if any, of (a) the Dollar Price
over (b) the aggregate principal amount of the Notes then outstanding. In
determining the Calculation Amount, the SPURS Agent will be entitled to assume
that the Notes are obligations issued by the United States Department of the
Treasury backed by the full faith and credit of the United States of America.
The SPURS Agent shall determine the applicable Calculation Amount as soon as
practicable after the occurrence of any of the events as described in (i)
through (iii) in the preceding paragraph (the "Calculation Amount Determination
Date"). The SPURS Agent shall promptly notify the Company of the Calculation
Amount by telephone, confirmed in writing (which may include facsimile or other
electronic transmission). The Calculation Amount, absent manifest error, shall
be binding and conclusive upon the parties hereto.
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(f) This Agreement shall not be subject to termination by the
Company.
Section 13. SPURS Agent's Performance; Duty of Care. The duties
and obligations of the SPURS Agent shall be determined solely by the express
provisions of this Agreement and the Indenture. No implied covenants or
obligations of or against the SPURS Agent shall be read into this Agreement or
the Indenture. In the absence of bad faith on the part of the SPURS Agent, the
SPURS Agent may conclusively rely upon any document furnished to it, which
purports to confirm to the requirements of this Agreement and the Indenture, as
to the truth of the statements expressed in any of such documents. The SPURS
Agent shall be protected in acting upon any document or communication reasonably
believed by it to have been signed, presented or made by the proper party or
parties. The SPURS Agent shall incur no liability to the Company or to any
Beneficial Owner to Holder of Notes in its individual capacity or as SPURS Agent
for any action or failure to act in connection with the remarketing or
otherwise, except as a result of gross negligence or willful misconduct on its
part.
Section 14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE.
Section 15. Terms of Agreement. Unless otherwise terminated in
accordance with the provision hereof, this Agreement shall remain in full force
and effect from the date hereof until the earlier of the first day thereafter on
which no Notes are outstanding or the completion of the remarketing of the
Notes. Regardless of any termination of this Agreement pursuant to any of the
provisions hereof, the obligations of the Company pursuant to Section 10,
Section 11 and Section 12 hereof shall remain operative and in full force and
effect until fully satisfied.
Section 16. Successors and Assigns. The rights and obligations of
the Company hereunder may not be assigned or delegated to any other person
without the prior written consent of the SPURS Agent. The rights and obligations
of the SPURS Agent hereunder may not be assigned or delegated to any other
person without the prior written consent of the Company, except that the SPURS
Agent may assign and delegate all or any portion of its rights and obligations
hereunder to _____________________________ (or any other affiliate of
____________________ registered as a broker-dealer under the Exchange Act) and
that any such delegation will relieve the SPURS Agent of the obligations so
delegated. This Agreement shall inure to the benefit of and be binding upon the
Company and the SPURS Agent and their respective successors and permitted
assigns, and will not confer any benefit upon any other person, partnership,
association or corporation other than persons, if any, controlling the SPURS
Agent within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, or any indemnified party to the extent provided in Section 10
hereof, or any person entitled to contribution to the extent provided in Section
11 hereof. The terms "successors" and "assigns" shall not include any purchaser
or any Notes merely because of such purchase.
Section 17. Headings. Section headings have been inserted in this
Agreement as a matter of convenience of reference only, and it is agreed that
such section headings are not a
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part of this Agreement and will not be used in the interpretation of any
provisions of this Agreement.
Section 18. Severability. If any person of this Agreement shall
be held or deemed to be or shall, in fact, be invalid, inoperative or
unenforceable as applied in any particular case in any or all jurisdictions
because it conflicts with any provision of any constitution, statute, rule or
public policy or for any other reason, such circumstances shall not have the
effect of rendering the provision in question invalid, unenforceable in any
other case, circumstance or jurisdiction, or of rendering any other provision or
provisions of this Agreement invalid, inoperative or unenforceable to any extent
whatsoever.
Section 19. Counterparts. This Agreement may be executed in
several counterparts, each of which shall be regarded as an original and all of
which shall constitute one and the same document.
Section 20. Amendments. This Agreement may be amended by any
instrument in writing signed by each of the parties hereto so long as this
Agreement as amended is not inconsistent with the Indenture in effect as of the
date of any such amendment.
Section 21. Notices. Unless otherwise specified, any notices,
requests, consents, waivers or other communications given or made hereunder or
pursuant hereto shall be made in writing (which may include facsimile or other
electronic transmission) and shall be deemed to have been validly given or made
when delivered or mailed, registered or certified mail, return receipt requested
and postage prepaid, addressed as follows:
(a) to the Company:
The Detroit Edison Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone:
Facsimile:
Attention:
(b) to _______________________:
or to such other address as the Company or the SPURS Agent shall specify in
writing.
IN WITNESS WHEREOF, each of the Company and the SPURS Agent has
caused this to be executed in its name and on its behalf
by one of its duly authorized officers as of the date first above written.
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THE DETROIT EDISON COMPANY
By:__________________________________
Title
[ ]
By:__________________________________
Title:
21
