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EXHIBIT 99-28
, dated as of (the ""), among The Detroit Edison Company, a Michigan corporation (the
"Company"), and ( the "Remarketing Agents" and
individually, a "Remarketing Agent").
WHEREAS, the Company has issued $ aggregate principal amount of its
Remarketed Secured Notes, Series Due (the "Notes"), pursuant to
an Indenture, dated as of June 30, 1993, as supplemented and as further
supplemented by the Supplemental Indenture, dated as of
(the "Indenture"), between the Company and Bankers Trust Company, as trustee
(the "Trustee"), secured by bonds (the "Pledged Bond") issued from time to time
under a Mortgage and Deed of Trust, dated as of October 1, 1924, as amended and
supplemented by various supplemental indentures (the "Mortgage"), pledged by the
Company to the Trustee under the Indenture; 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 "1933 Act"), in connection
with the offering of Debt Securities, including the Notes, and the Special
Mandatory Repurchase Right, which registration statement was declared effective
by order of the Commission on and, has filed such amendments thereto,
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 (such registration statement and any amendments
thereto including any prospectus relating to the offering of Notes by the
Company constituting a part thereof, and all documents incorporated therein by
reference, as from time to time amended or supplemented pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), the 1933 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 Remarketing Agents 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 became effective (whether or
not such revised prospectus is required to be filed by the Company pursuant to
Rule 424(b) of the rules and regulationsunder the 1933 Act (the "Regulations")),
the term "Prospectus" shall refer to such revised prospectus from and after the
time it is first provided to the Remarketing Agents for such use; and
WHEREAS, the Company has requested each of to act as its Remarketing
Agent with respect to the Notes and as such from time to time under this
Agreement for the purpose of (i) setting the interest rate or rates and the
Spread (if any) and/or Spread Multiplier (if any) for such Notes, (ii) setting
the Interest Rate Period in certain circumstances, (iii) remarketing such Notes
from time to time on behalf of the Beneficial Owners thereof and (iv) accepting
tendered Notes for remarketing and receiving payment of the purchase price for
Notes subject to remarketing and paying Beneficial Owners on whose behalf such
Notes were remarketed; and
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WHEREAS, each of the Remarketing Agents is willing to assume such
duties on the terms and conditions expressly set forth herein;
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:
Section 1. Definitions. Capitalized terms used and not defined
in this Agreement shall have the meanings assigned to them in the Indenture.
Section 2. Representations and Warranties. The Company represents
and warrants to each of the Remarketing Agents as of the date hereof, and as of
each date that a prospectus is required to be delivered with respect to a
remarketing (each such date being hereinafter referred to as a "Representation
Date"), as follows:
(a) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective and as of the applicable Representation
Date, complied in all material respects with the requirements of the 1933 Act
and the Regulations. The Registration Statement, at the time the Registration
Statement became effective, did not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus, at the
time the Registration Statement became effective, as of the date hereof and as
of the applicable Representation Date (unless the term "Prospectus" refers to a
prospectus which has been provided to the Remarketing Agents by the Company for
use in connection with the offering or the remarketing of Notes which differs
from the Prospectus on file at the Commission at the time the Registration
Statement became effective, in which case at the time it is first provided to
the Remarketing Agents for such use), did not and will not contain an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or omissions from
the Registration Statement or Prospectus made in reliance upon and in conformity
with information furnished to the Company in writing by any Remarketing Agent
expressly for use in the Registration Statement or Prospectus.
(b) The consolidated financial statements included or incorporated by
reference in the Registration Statement and Prospectus present fairly the
consolidated financial position of the Company and its consolidated subsidiaries
as at the dates indicated and the results of their operations for the periods
specified; said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis during
the periods involved, except as indicated therein; and the supporting schedules
included or incorporated by reference in the Registration Statement present
fairly the information required to be stated therein.
(c) The documents incorporated by reference in the Prospectus, at the
time they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1934 Act and the
rules and regulations thereunder, and, when read together with the other
information in the Prospectus, at the time the Registration Statement and any
amendments thereto became or become effective, did not and will not contain
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an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they are made, not misleading.
(d) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated therein or
contemplated thereby, there has been no material adverse change in the
condition, financial or otherwise, of the Company and its subsidiaries
considered as one enterprise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business.
(e) 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.
(f) 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..
Section 3. Covenants of the Company. The Company covenants with
each of the Remarketing Agents as follows:
(a) If at any time when the Prospectus is required by the 1933 Act to
be delivered in connection with remarketings of any of the Notes any event shall
occur or condition exist as a result of which it is necessary, in the view of
the applicable Remarketing Agent or counsel for the Company, to further amend or
supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein not misleading in the light of circumstances
existing at the time it is delivered to a purchaser or if it shall be necessary,
in the view of such counsel or the applicable Remarketing Agent, at any such
time to amend or supplement the Registration Statement or the Prospectus in
order to comply with the requirements of the 1933 Act or the Regulations, the
Company will promptly prepare and file with the Commission such amendment or
supplement, whether by filing documents pursuant to the 1934 Act or otherwise,
as may be necessary to correct such untrue statement or omission or to make the
Registration Statement comply with such requirements.
(b) If a Prospectus is required by the 1933 Act to be delivered in
connection with a remarketing, the Company will make generally available to its
security holders as soon as practicable thereafter, but not later than 90 days
after the close of the period covered thereby, earning statements (in form
complying with the provisions of Rule 158 under the 0000 Xxx) covering twelve
month periods beginning, in each case, not later than the first day of the
Company's fiscal quarter next following the "effective date" (as defined in Rule
158) of the Registration Statement relating to the Notes.
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(c) The Company will give each of the Remarketing Agents notice
immediately upon the filing of any amendment to the Registration Statement
(including any post-effective amendment) or any amendment or supplement to the
Prospectus (excluding any pricing supplement or prospectus supplement prepared
solely for and used in connection with the offer and sale of notes or other
securities other than the Notes sold by, through or to the Remarketing Agents,
but otherwise including any revised prospectus which the Company proposes for
use by the Remarketing Agents 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, whether or not such revised prospectus
is required to be filed pursuant to Rule 424(b) of the Regulations), whether
pursuant to the 1934 Act, the 1933 Act or otherwise, will furnish the
Remarketing Agents with copies of any such amendment or supplement or other
documents as soon as practicable after any such filing and a reasonable time in
advance of any such use.
(d) The Company will notify each of the Remarketing Agents immediately
(i) of the effectiveness of any amendment to the Registration Statement
(excluding any pricing supplement or prospectus supplement prepared solely for
and used in connection with the offer and sale of notes or other securities
other than the Notes sold by, through or to the Remarketing Agents), (ii) of the
mailing or the delivery to the Commission for filing of any supplement to the
Prospectus (excluding any pricing supplement or prospectus supplement prepared
solely for and used in connection with the offer and sale of notes or other
securities other than the Notes sold by, through or to the Remarketing Agents)
or any document to be filed pursuant to the 1934 Act, (iii) of the receipt of
any comments from the Commission with respect to the Registration Statement or
the Prospectus (excluding any pricing supplement or prospectus supplement
prepared solely for and used in connection with the offer and sale of notes or
other securities other than the Notes sold by, through or to the Remarketing
Agents), (iv) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (v) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(e) The Company will deliver to each of the Remarketing Agents one
signed and as many conformed copies of each amendment to the Registration
Statement relating to the Notes as originally filed with the Commission
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as each of the
Remarketing Agents may reasonably request.
(f) The Company will endeavor, in cooperation with the Remarketing
Agents, to maintain the qualification of the Notes for offering and sale under
the applicable securities laws of such states and other jurisdictions of the
United States as the Remarketing Agents have designated, and will maintain such
qualifications in effect for as long as may be required for remarketings of the
Notes. The Company will file such statements and reports as may be required by
the laws of each jurisdiction in which the Notes have been qualified as above
provided.
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(g) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act, will file promptly all documents required to be
filed with the Commission pursuant to Section 13 or 14 of the 1934 Act.
(h) Each time that a Prospectus is required to be delivered under the
1933 Act in c onnection with a remarketing, the Company shall cause , or such
other nationally recognized accounting firm acting as accountants for the
Company, forthwith to furnish the applicable Remarketing Agent a letter in form
satisfactory to such Remarketing Agent and consistent with applicable auditing
standards with respect to the financial information set forth therein.
(i) Each time that the Company is required to provide a Remarketing
Agent with the letter referred to in Section 3(h) hereof, the Company shall
furnish or cause to be furnished to such Remarketing Agent forthwith (i) a
certificate in form satisfactory to such Remarketing Agent to the effect that
the representations and warranties contained in this Agreement are true and
correct at the time such letter is provided, as though made at and as of such
time and (ii) opinions of counsel in the form delivered pursuant to the
Distribution Agreement (as defined below).
(j) The Company will provide notice to the applicable Remarketing
Agent of any change in Interest Rate Modes, as provided in the Indenture.
(k) The Company will provide prompt notice to the Remarketing Agents
of any notification by a rating agency with regard to the ratings of any
securities of the Company.
(l) The Company will provide the applicable Remarketing Agent not less
than ten (10) days prior notice (which may be waived by the applicable
Remarketing Agent) of (i) the conversion from one Interest Rate Mode to any
other Interest Rate Mode or (ii) the establishment of a Long Term Rate Period.
Section 4. Appointment and Obligations of the Remarketing Agents. (a)
The Company hereby appoints each of _________________, _________________ and
______________________, and _______________, _____________ and _____________
hereby accept their respective appointments, as the exclusive Remarketing Agents
with respect to $_______________, $____________ and $________________ principal
amount of the Notes, respectively, for the purpose of (i) setting the interest
rate or rates and the Spread (if any) and/or Spread Multiplier (if any) for such
Notes, (ii) setting the Interest Rate Period in certain circumstances, (iii)
remarketing such Notes from time to time on behalf of the Beneficial Owners
thereof and (iv) accepting such tendered Notes for remarketing and receiving
payment of the purchase price for such Notes subject to remarketing and paying
Beneficial Owners on whose behalf such Notes were remarketed. In addition, for
purposes of facilitating the remarketing arrangements provided for herein, each
Remarketing Agent hereby agrees to act as standby Remarketing Agent for the
other Remarketing Agents (each, a "Standby Remarketing Agent"). In the event
that a Remarketing Agent is not able to remarket Notes on any Interest Rate
Adjustment Date, then each applicable Standby Remarketing Agent shall use its
best efforts to assist in the remarketing of such Notes. Any duty to provide
notification by a Remarketing Agent to the Company, the Trustee or the Liquidity
Provider hereunder shall be solely the
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responsibility of such Remarketing Agent and not that of any Standby Remarketing
Agent. The Company reserves the right to appoint or replace any Standby
Remarketing Agent at any time. Unless otherwise specified herein, each Standby
Remarketing Agent shall have all of the rights, privileges and benefits of a
Remarketing Agent as fully as though named as such herein for the period it is
acting as such Standby Remarketing Agent.
(b) The applicable Remarketing Agent agrees to (i) use its reasonable
efforts to set the interest rate and the Spread (if any) and/or the Spread
Multiplier (if any) for each Note in the Interest Rate Mode selected by the
Company, which rate shall be the lowest rate necessary in the judgment of such
Remarketing Agent to remarket such Note on such date of determination at a price
equal to 100% of the principal amount thereof, (ii) notify the Company and the
Trustee promptly of such interest rate and the Spread (if any) and the Spread
Multiplier (if any) for such Note and, the next Interest Rate Period for such
Note, (iii) use its reasonable efforts to remarket each Note tendered to such
Remarketing Agent in remarketings held from time to time and (iv) accept
tendered Notes for remarketing and receive payment of the purchase price for
Notes subject to remarketing and pay Beneficial Owners on whose behalf such
Notes were remarketed. Each Remarketing Agent will advise the Company of
indicative rates from time to time, or at any time upon the request of the
Company, prior to determining the interest rate, Spread or Spread Multiplier, as
the case may be.
(c) It is expressly understood and agreed by the parties hereto that
the obligations of each Remarketing Agent hereunder with respect to the Notes to
be remarketed by such Remarketing Agent are conditioned on the issuance and
delivery of such Notes pursuant to the terms and conditions of the Distribution
Agreement, dated (the "Distribution Agreement"),
between the Company and . It is further expressly understood and agreed by and
between the parties hereto that a Remarketing Agent shall not be obligated to
set the interest rate or the Spread or Spread Multiplier on any Notes or to
remarket any Notes or perform any of the other duties set forth herein at any
time that any of the conditions set forth in clause (a) or (b) of Section 9
hereof shall not have been fully and completely met to the satisfaction of such
Remarketing Agent or at any time any of the events set forth in clause (c) of
Section 9 hereof shall have occurred.
(d) By 11:00 a.m., New York City time (or 9:30 a.m., New York City
time, in the case of any Note in the Daily Interest Rate Mode), on the Interest
Rate Adjustment Date for any Notes, the applicable Remarketing Agent will
determine the interest rate for such Notes being remarketed to the nearest one
hundred-thousandth (0.00001) of one percent per annum for the next Interest Rate
Period; provided, that between 11:00 a.m., New York City time and 11:50 a.m.,
New York City time, the Remarketing Agent and Standby Remarketing Agents shall
use their reasonable efforts to determine the interest rate for any Notes not
successfully remarketed as of 11:00 a.m., New York City time. For such purpose,
any Standby Remarketing Agent shall immediately notify such Remarketing Agent of
the principal amount of Notes that such Standby Remarketing Agent is able to
remarket at a price equal to 100% of the principal amount thereof plus accrued
interest, if any, on such date. In determining the applicable interest rate for
such Notes and other terms, such Remarketing Agent and, if applicable, the
Standby Remarketing Agents will, after taking into account market conditions as
reflected in the prevailing yields on fixed and variable rate taxable debt
securities, (i) consider the principal amount of the Notes
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tendered or to be tendered on such date and the principal amount of such Notes
prospective purchasers are or may be willing to purchase and (ii) contact, by
telephone or otherwise, prospective purchasers and ascertain the interest rates
or the Spread or Spread Multiplier therefor at which they would be willing to
hold or purchase such Notes.
(e) By 12:30 p.m., New York City time, on the Interest Rate Adjustment
Date for a Note, the applicable Remarketing Agent will notify the Company and
the Trustee in writing (which may include facsimile or other electronic
transmission), of (i) the interest rate or, in the case of a floating interest
rate, the initial interest rate, the Spread (if any) and Spread Multiplier (if
any) and the Initial Interest Reset Date applicable to such Note and all other
Notes for which such Remarketing Agent is responsible hereunder, subject to
remarketing for the next Interest Rate Period, (ii) the Interest Rate Adjustment
Date, (iii) the Interest Payment Dates, for any Notes in the Commercial Paper
Term Mode (if other than the Interest Rate Adjustment Date) the Long Term Rate
Mode or the SPURS Mode, (iv) the optional redemption terms, if any, and early
remarketing terms, if any, in the case of a remarketing into a Long Term Rate
Period, (v) the aggregate principal amount of all tendered Notes for which such
Remarketing Agent is responsible hereunder on such date, and (vi) the aggregate
principal amount of tendered Notes that such Remarketing Agent and the
applicable Standby Remarketing Agent or Agents were able to remarket, at a price
equal to 100% of the principal amount thereof plus accrued interest, if any. The
Trustee has agreed in the Indenture to transmit such information to DTC
immediately after receiving such notice, and, in any case, not later than 1:30
p.m. New York City time.
(f) By telephone at approximately 1:00 p.m., New York City time, on
such Interest Rate Adjustment Date, the applicable Remarketing Agent will advise
each purchaser of Notes remarketed on such date (or the DTC Participant of each
such purchaser who it is expected in turn will advise such purchaser) of the
principal amount of Notes that such purchaser is to purchase.
(g) The applicable Remarketing Agent will make, or cause the Trustee
to make, payment to the DTC Participant of each tendering Beneficial Owner of
Notes subject to a remarketing, by book entry through DTC by the close of
business on the Interest Rate Adjustment Date against delivery through DTC of
such Beneficial Owner's tendered Notes, of the purchase price for such tendered
Notes that have been sold in the remarketing. If any such Notes were subject to
purchase as provided in clause (h) of this Section 4, subject to receipt of
funds from the Company or the Liquidity Provider, as the case may be, the
Trustee has agreed to make such payment of the purchase price of such Notes plus
accrued interest, if any, to such date.
(h) By 12:00 o'clock noon, New York City time, on any Interest Rate
Adjustment Date, the applicable Remarketing Agent shall notify the Liquidity
Provider (as hereinafter defined), if any, the Company and the Trustee, by
telephone or facsimile, confirmed in writing, of the principal amount of Notes
that such Remarketing Agent and the applicable Standby Remarketing Agent or
Agents were unable to remarket at a price equal to 100% of the principal amount
thereof plus accrued interest, if any, on such date. In the event that the
Company has entered into a Standby Note Purchase Agreement (as hereinafter
defined) which is in effect on such date, such notice will constitute a demand
for the benefit of the Company to the Liquidity Provider to purchase such
unremarketed Notes at a price equal to the outstanding
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principal amount thereof pursuant to the terms of such Standby Note Purchase
Agreement. If a Standby Note Purchase Agreement is not in effect on such date,
or if the Liquidity Provider fails to advance funds pursuant thereto for
whatever reason, the Company will be obligated under the terms of the Indenture
to purchase such unremarketed Notes. The Liquidity Provider or the Company, as
the case may be, will deposit same-day funds with the Trustee by 3:00 p.m., New
York City time, on such Interest Rate Adjustment Date, in an amount equal to the
principal amount of such unremarketed Notes. In each such case, the Company will
deposit same-day funds in the account of the Trustee (or such other account
meeting the requirements of DTC's procedures as in effect from time to time) by
3:00 p.m., New York City time, on such date in an amount equal to the accrued
and unpaid interest, if any, on such unremarketed Notes to such date.
Notwithstanding any other provision of this to the
contrary, no Remarketing Agent shall utilize any funds advanced by a Liquidity
Provider for the purchase of unremarketed Notes for which the Company shall not
have deposited accrued and unpaid interest in accordance with the preceding
sentence. As used herein, the term "Liquidity Provider" means any bank or banks
or other credit provider whose obligations such as those under the Standby Note
Purchase Agreement are exempt from registration under the 1933 Act, with long
term senior debt ratings from Standard & Poor's Ratings Services and Xxxxx'x
Investors Service, Inc. at least equal to those of the Company as of the date of
the Standby Note Purchase Agreement, and a minimum combined capital and surplus
of at least $50,000,000, that has entered into a Standby Note Purchase Agreement
with the Company for the purpose of purchasing unremarketed Notes on any
Interest Rate Adjustment Date, provided that, for purposes of any notices to be
given hereunder, the term "Liquidity Provider" means the Administrative Agent
(as defined in the Standby Note Purchase Agreement), if any, and the term
"Standby Note Purchase Agreement" means the agreement which the Company may, at
its option, enter into from time to time with a Liquidity Provider for the
purpose of purchasing such unremarketed Notes.
(i) Upon satisfaction of all conditions precedent in the Standby Note
Purchase Agreement, Notes purchased by the Liquidity Provider or the Company as
contemplated under clause (h) of this Section 4 shall, subject to compliance
with applicable securities laws, be subject to remarketing on each Interest Rate
Adjustment Date therefor, but the Remarketing Agents shall be under no duty to
remarket such Notes after the expiration of the Standby Note Purchase Agreement.
The applicable Remarketing Agent will promptly notify the Liquidity Provider
upon a successful remarketing of Notes at a price equal to 100% of the principal
amount thereof plus accrued interest, if any, purchased by the Liquidity
Provider.
(j) The applicable Remarketing Agent shall supply to any Beneficial
Owner upon request information regarding the interest rate, Spread (if any),
Spread Multiplier (if any), Interest Rate Mode, Interest Rate Period and next
Interest Rate Adjustment Date applicable to such Beneficial Owner's Notes.
(k) The Remarketing Agents may, in accordance with the Indenture,
modify the settlement and remarketing procedures set forth in the Indenture in
order to facilitate the settlement and remarketing process.
Section 5. Fees and Expenses. For its services in performing its
duties set forth under Section 4(a) hereof and in determining the interest rate
and remarketing Notes, each Remarketing Agent will receive from the Company a
fee which, except as described below, shall
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be payable quarterly in arrears on , ,
, and , commencing on
and shall be equal to . % per annum of the
principal amount of Notes for which such Remarketing Agent is responsible
hereunder outstanding at the beginning of such quarterly payment period (or, in
the case of the quarter ending , % per
annum of the principal amount of such Notes pro rated from
), so long as the interest rate on the Notes
shall be in the Commercial Paper Term Mode or the Daily or Weekly Interest Rate
Mode; provided that, if all of such Notes shall have been redeemed during any
such quarterly period, such fee shall be payable on the redemption date. In the
event that any Interest Rate Period is to be a Long Term Rate Period or in the
SPURS Mode for any Notes, the Company shall pay to the applicable Remarketing
Agent a fee for such Notes to be determined by mutual agreement of the Company
and such Remarketing Agent. A Remarketing Agent may pay to selected
broker-dealers a portion of any fees described above, reflecting Notes sold
through such broker-dealers to purchasers in remarketings and shall pay to the
applicable Standby Remarketing Agent or Agents a portion of the fees described
above, reflecting Notes remarketed by such Standby Remarketing Agent or Agents,
equal to . % per annum of the principal amount of such Notes pro rated
for the period commencing on the date of such remarketing and ending on the next
succeeding Interest Rate Adjustment Date for such Notes (in the case of Notes in
the Commercial Paper Term Mode, and otherwise in accordance with the rate paid
by the Company to the Remarketing Agent). In addition to its obligations under
Section 10 hereof, the Company shall, from time to time upon the request of a
Remarketing Agent, pay the reasonable fees and expenses of counsel incurred by
such Remarketing Agent in connection with the performance of its duties
hereunder. The obligations of the Company to make the payments required by this
Section 5 shall survive the termination of this Agreement and remain in full
force and effect until all such payments shall have been made in full.
Section 6. Resignation and Removal of the Remarketing Agents. (a) A
Remarketing Agent may resign and be discharged from its duties and obligations
hereunder at any time, such resignation to be effective 30 days after delivery
of notice to the Company, the Trustee and the other Remarketing Agents of such
resignation; provided, however, that if (i) such resigning Remarketing Agent
shall then be the sole Remarketing Agent or (ii) the other Remarketing Agents
elect to resign or are removed within one week of delivery of such notice, then
no such resignation shall become effective until the Company shall have
appointed at least one nationally recognized broker-dealer as successor
Remarketing Agent and such successor Remarketing Agent shall have entered into a
with the Company in which it shall have agreed to conduct
remarketings in accordance with the terms and conditions of the Indenture. In
such case, the Company will use its best efforts to appoint a successor
Remarketing Agent and enter into such a with such person
as soon as reasonably practicable. It shall be the sole obligation of the
Company to appoint a successor Remarketing Agent.
(b) The Company may in its absolute discretion remove a Remarketing
Agent by giving at least 30 days' prior notice to such Remarketing Agent, the
Trustee and the other Remarketing Agents; provided, however, that if (i) such
removed Remarketing Agent shall then be the sole Remarketing Agent or (ii) the
other Remarketing Agents elect to resign or is removed within one week of
delivery of such notice, then no such removal shall become effective until the
Company shall have appointed a nationally recognized broker-dealer as successor
Remarketing
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Agent and such successor Remarketing Agent shall have entered into a with the Company in which it shall have agreed to conduct remarketings
in accordance with the terms and conditions of the Indenture. In such case, the
Company will use its best efforts to appoint a successor Remarketing Agent and
enter into such a with such person as soon as reasonably
practicable.
(c) If, as a result of a resignation or removal or any other reason,
there shall be only one Remarketing Agent, such Remarketing Agent shall conduct
the remarketings alone and all references herein to Remarketing Agents shall be
deemed to refer to such Remarketing Agent alone.
Section 7. Dealing in the Notes; Redemption of Remarketing Agents'
Notes. (a) Each Remarketing Agent, when acting as a Remarketing Agent, a Standby
Remarketing Agent or in its individual or any other capacity, may, to the extent
permitted by law, buy, sell, hold and deal in any of the Notes. Notwithstanding
the foregoing, no Remarketing Agent or Standby Remarketing Agent is obligated to
purchase any Notes that would otherwise remain unsold in a remarketing. If a
Remarketing Agent or Standby Remarketing Agent holds any Notes immediately prior
to a remarketing of such Notes and if all other Notes tendered for sale by
Beneficial Owners other than such Remarketing Agent or Standby Remarketing Agent
have been sold in such remarketing, then such Remarketing Agent may sell such
number of its Notes or those of the Standby Remarketing Agent in such
remarketing as there are outstanding orders to purchase that have not been
filled by Notes tendered for sale by Beneficial Owners other than the
Remarketing Agent and the Standby Remarketing Agent. Each Remarketing Agent, as
Holder of the Notes, may exercise any vote or join as a Holder in any action
which any Holder of Notes may be entitled to exercise or take pursuant to the
Indenture with like effect as if it did not act in any capacity hereunder. Each
Remarketing Agent, in its capacity either as principal or agent, may also engage
in or have an interest in any financial or other transaction with the Company as
freely as if it did not act in any capacity hereunder.
(b) The Company may purchase Notes in a remarketing, provided that the
interest rate established with respect to Notes in such remarketing is not
different from the 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 each of
the Remarketing Agents: (i) copies of each report or other document mailed or
filed by the Company with the Commission including the Registration Statement
and the Prospectus relating to the Notes (including in each case any documents
incorporated therein by reference), (ii) notice of the occurrence of any of the
events set forth in clause (c) of Section 9 hereof, and (iii) in connection with
each remarketing of Notes, such other information as each of such Remarketing
Agents may reasonably request from time to time, in such form as the Remarketing
Agents may reasonably request, including but not limited to the financial
condition of the Company or any material subsidiary thereof. The Company agrees
to provide each of the Remarketing Agents with as many copies of the foregoing
materials and information as the Remarketing Agents may reasonably request for
use in connection with each remarketing of Notes and consents to the use thereof
for such purpose.
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(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, any
subsidiary thereof or the Notes or the Pledged Bond shall occur which might
affect the accuracy or completeness of any statement of a material fact
contained in any of the reports, documents, materials or information referred to
in subparagraph (i) of paragraph (a) above or any document incorporated therein
by reference (collectively, the "Remarketing Materials"), the Company shall
promptly notify each of the Remarketing Agents in writing of the circumstances
and details of such event or condition.
Section 9. Conditions to Remarketing Agents' Obligations. The
obligations of each of the Remarketing Agents 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 obligations and agreements as set
forth in this Agreement and the accuracy of the representations and warranties
in this Agreement, (b) the due performance in all material respects by the
Company of its obligations and agreements set forth in, and the accuracy in all
material respects as of the dates specified therein of the representations and
warranties contained in, the Distribution Agreement and the Standby Note
Purchase Agreement, if any, and (c) the further condition that none of the
following events shall have occurred:
(i) the rating of the Notes shall have been downgraded or put on
CreditWatch or Watch List with negative implications or withdrawn by a
national rating service after the date hereof, the effect of which, in
the opinion of the applicable Remarketing Agent, is to affect
materially and adversely the market price of the Notes or the
Remarketing Agent's ability to remarket the Notes;
(ii) all of the Notes for which such Remarketing Agent is
responsible hereunder shall have been called for redemption or
purchased pursuant to a Special Mandatory Purchase or converted to a
Fixed Interest Rate Mode;
(iii) without the prior written consent of the applicable Remarketing
Agent, the Indenture, the Mortgage, the Pledged Bond or the Standby
Note Purchase Agreement shall have been amended in any manner, or
otherwise contain any provision contained therein as of the date
hereof, that in either case in the reasonable opinion of such
Remarketing Agent materially changes the nature of the Notes or the
remarketing procedures (a "Material Change") (it being understood that
notwithstanding the provisions of this clause (iii) the Company shall
not be prohibited from amending such documents);
(iv) a suspension or material limitation in trading in securities
generally on either the American Stock Exchange or the New York Stock
Exchange or the suspension of trading of the Company's securities on
any exchange shall have occurred or a banking moratorium shall have
been declared by federal, New York or Michigan authorities;
(v) any outbreak or escalation of major hostilities, any
declaration of war by Congress or any other substantial calamity or
emergency shall have occurred; or
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(vi) a material adverse change or any development involving a
prospective material adverse change in the financial condition or
otherwise of the Company shall have occurred.
In the event of the failure of any of such conditions, the applicable
Remarketing Agent may terminate its obligations under this Agreement as provided
in Section 12(b).
Section 10. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Remarketing Agent and its respective officers, directors and
employees (collectively the "Indemnified Persons" and individually an
"Indemnified Person") from and against any losses, claims, damages, liabilities
and expenses, as incurred, to which any Indemnified Person may become subject
insofar as such losses, claims, damages, liabilities and expenses (or actions in
respect thereof) arise out of, or are based upon, (i) the failure to satisfy the
prospectus delivery requirements of the 1933 Act because the Company failed to
notify such Remarketing Agent of such delivery requirement or failed to provide
such Remarketing Agent with an updated Prospectus for delivery, or (ii) any
untrue statement or alleged untrue statement of a material fact contained in any
of the Remarketing Materials (including any incorporated documents), or (iii)
the omission or alleged omission to state a material fact required to be stated
in the Remarketing Materials or any revision thereof or necessary to make the
statements therein, in the light of the circumstances in which they were made,
not misleading, or (iv) any violation by the Company of, or any failure by the
Company to perform any of its obligations under, this Agreement, or (v) the
duties such Remarketing Agent performs hereunder except due to its gross
negligence or willful misconduct. The Company agrees promptly to reimburse each
Indemnified Person for any legal or other expenses reasonably incurred by such
Indemnified Person in investigating, defending or preparing to defend any such
action or claim (including reasonable costs of counsel); provided, however, that
the foregoing indemnity shall not inure to the benefit of a Remarketing Agent,
or an officer or director of such Remarketing Agent, if such losses, claims,
damages, liabilities and expenses arose from the use by such Remarketing Agent,
or any officer or director of such Remarketing Agent, of written information it
provides to the Company expressly for use in the Remarketing Materials. The
indemnity agreement in this paragraph shall be in addition to any liability or
obligation which the Company may otherwise have to any Indemnified Person and
shall extend upon the same terms and conditions to each person, if any, who
controls any Indemnified Person within the meaning of the 1934 Act.
(b) Each Remarketing Agent severally agrees to indemnify and hold
harmless the Company, its directors and each of its officers who signed the
Registration Statement, against any and all losses, claims, damages, liabilities
and expenses, as incurred, but only with respect to untrue statements or
omissions made in the Remarketing Materials in reliance upon and in conformity
with information furnished to the Company in writing by such Remarketing Agent
expressly for use in such Remarketing Materials. The indemnity agreement in this
paragraph shall extend upon the same terms and conditions to each person, if
any, who controls the Company within the meaning of the 1934 Act.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure so
to notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have otherwise than on account
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of this indemnity agreement. No settlement or compromise of any such action
shall be made without the consent of the indemnifying party, which consent shall
not be unreasonably withheld. An indemnifying or indemnified party may
participate at its own expense in the defense of such action. In no event shall
an indemnifying party be liable for fees and expenses of more than one counsel
(the selection of which the indemnifying party shall not reasonably object to)
separate from its own counsel for all indemnified parties in connection with any
one action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. The Remarketing
Agents or any controlling person referenced in paragraph (a) of this Section 10
shall have the right to employ separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be borne by the Remarketing Agents or such controlling person unless (i)
the employment thereof has been specifically authorized by the Company in
writing, (ii) the Company has failed to assume the defense and employ counsel or
(iii) the named parties to any such action (including any impleaded parties)
include both the Remarketing Agent or Agents, as the case may be, or such
controlling person and the Company and the Remarketing Agent or Agents, as the
case may be, or such controlling person shall have been advised by counsel that
representation of such indemnified party and the indemnifying party by the same
counsel would be inappropriate (whether or not such representation by the same
counsel has been proposed) under applicable standards of professional conduct
due to actual or potential differing interests between them (in which case the
Company shall not have the right to assume the defense of such action on behalf
of the Remarketing Agents or such controlling person, it being understood,
however, that the Company shall, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of only one separate firm of attorneys at any time
for the Remarketing Agents or such controlling person, which firm shall be
designated in writing by the Remarketing Agents and reasonably satisfactory to
the Company, unless a Remarketing Agent shall have been advised by counsel that
representation of such Remarketing Agent by the same counsel as the other
Remarketing Agent would be inappropriate under applicable standards of
professional conduct due to actual or potential differing interests between
them, in which case the Company shall be liable for the reasonable fees and
expenses of a firm of attorneys for each Remarketing Agent).
(d) The indemnity agreements contained in paragraphs (a), (b) and
(c) of this Section 10 shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Remarketing Agents,
and shall survive the termination or cancellation of this Agreement and the
remarketing of any Notes hereunder.
Section 11. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 10 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and each
Remarketing Agent in each remarketing of any Notes sold by, through or to such
Remarketing Agent shall contribute to the aggregate losses, claims, damages,
liabilities and expenses, as incurred, of the nature contemplated by said
indemnity agreement incurred by the Company and such Remarketing Agent in
respect of such remarketing (i) in such proportions as will reflect the relative
benefits from the remarketing of such Notes received by the Company on the one
hand and by such Remarketing Agent on the other hand, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable
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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 such Remarketing Agent on the other hand; provided
that the relative benefits from such remarketing shall be deemed to be such that
the Remarketing Agent shall be responsible for that portion of the aggregate
losses, claims, damages, liabilities and expenses represented by the percentage
that the commissions and fees paid to such Remarketing Agent in connection with
such remarketing bears to the aggregate principal amount of such Notes
outstanding at the time of such remarketing and the Company shall be responsible
for the balance; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any, who
controls a Remarketing Agent within the meaning of the 1934 Act shall have the
same rights to contribution as such Remarketing Agent, and each director of the
Company, each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of the 1934 Act
shall have the same rights to contribution as the Company. The relative fault of
the Company on the one hand and the relevant Remarketing Agent on the other hand
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or by
such Remarketing Agent and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
Section 12. Termination of . (a) This
Agreement shall terminate as to each Remarketing Agent on the effective date
of the resignation or removal of such Remarketing Agent pursuant to Section 6
hereof.
(b) In addition, either Remarketing Agent may terminate all of its
obligations under this Agreement by notifying the Securities Depository and the
other Remarketing Agent of its election to do so, if any of the conditions
referred to or set forth in Section 9 hereof have not been met or satisfied in
full and such failure shall have continued for a period of 30 days after such
Remarketing Agent has given notice thereof to the Company and the other
Remarketing Agent specifying the condition which has not been met and requiring
it to be met; provided, however, that termination of this Agreement by a
Remarketing Agent after giving the required notices shall be immediate in the
event of the occurrence and continuation of any event set forth in Section 9(c)
hereof, or in the event such Remarketing Agent determines, in its sole
discretion, after consultation with the Company, that it shall not have received
all of the information, whether or not specifically referenced herein, necessary
to fulfill its obligations under this Agreement.
Section 13. Remarketing Agents' Performance; Duty of Care. The duties
and obligations of each of the Remarketing Agents shall be determined solely by
the express provisions of this and the Indenture. No
Remarketing Agent shall be responsible for the acts or omissions of the other
Remarketing Agents pursuant to this Agreement. No implied covenants or
obligations of or against the Remarketing Agents shall be read into this
Remarketing Agreement or the Indenture. In the absence of bad faith on the part
of a Remarketing Agent, such Remarketing Agent may conclusively rely upon any
document furnished to it, which purports to conform to the requirements of this
Remarketing Agreement or
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the Indenture, as to the truth of the statements expressed in any of such
documents. Each Remarketing 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. Each Remarketing Agent shall incur no
liability to the Company or to any Beneficial Owner or Holder of Notes in its
individual capacity or as Remarketing Agent for any action or failure to act in
connection with a remarketing or otherwise, except as a result of gross
negligence or willful misconduct on its part.
Section 14. GOVERNING LAW. THIS REMARKETING 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. Term of Agreement. Unless otherwise terminated in
accordance with the provisions hereof, this Agreement shall remain in full force
and effect from the date hereof until the first day thereafter on which no Notes
are outstanding. Regardless of any termination of this Agreement pursuant to any
of the provisions hereof, or any person entitled to contribution to the extent
provided in Section 11 hereof, the obligations of the Company pursuant to
Sections 5, 10 and 11 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 each of the Remarketing Agents. The rights and
obligations of the Remarketing Agents hereunder may not be assigned or delegated
to any other person without the prior written consent of the Company. This
Agreement shall inure to the benefit of and be binding upon the Company and each
of the Remarketing Agents and their respective successors and assigns, and will
not confer any benefit upon any other person, partnership, association or
corporation other than persons, if any, controlling any Remarketing Agent within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, or any
Indemnified Person 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 of 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 part of this Agreement and will not be used in
the interpretation of any provisions of this Agreement.
Section 18. Severability. If any provision 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, inoperative or 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.
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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. Remarketing Agents Not Acting as Underwriters. It is
understood and agreed by the parties hereto that each Remarketing Agent's only
obligations hereunder are as set forth in Sections 4, 6, 7, 10, 11 and 20 of
this Agreement. When engaged in remarketing any tendered Notes, each of the
Remarketing Agents shall act only as agent for and on behalf of each Beneficial
Owner of such Notes so tendered. None of the Remarketing Agents shall act as
underwriters for the tendered Notes or shall in any way be obligated to advance
its own funds to purchase any tendered Notes (except if in their respective
individual capacities as purchaser of those Notes any of them shall elect, in
accordance with Section 7 hereof, to purchase, in their sole discretion) or to
otherwise expend or risk its own funds or incur or become exposed to financial
liability in the performance of its duties hereunder.
Section 21. Amendments. This Agreement may be amended by any
instrument in writing signed by all 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 22. Notices. Unless otherwise specified, any notices,
requests, consents or other communications given or made hereunder or pursuant
hereto shall be made in writing 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
0000 Xxxxxx Xxxxxx
821 W.C.B.
Xxxxxxx, Xxxxxxxx 00000
Attention: Assistant Treasurer
(b) to :
(c) to :
(d) to :
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or to such other address as the Company or the Remarketing Agents shall specify
in writing.
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IN WITNESS WHEREOF, each of the Company and each of the Remarketing
Agents has caused this Agreement to be executed in its name and on its behalf by
one of its duly authorized officers as of the date first above written.
THE DETROIT EDISON COMPANY
By
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Name:
Title:
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By
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Authorized Signatory
[ ]
By
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Authorized Signatory
[ ]
By
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Authorized Signatory
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