Exhibit 4.13
================================================================================
FORM OF
PREFERRED SECURITIES GUARANTEE AGREEMENT
DTE Energy Trust III
Dated as of
================================================================================
CROSS REFERENCE TABLE (1)
Section of Trust Section of
Indenture Act of 1939, Preferred Securities
as amended Guarantee Agreement
---------------------- --------------------
310(a) 4.1(a)
310(b) 2.8
310(c) Inapplicable
311(a) 2.2
311(b) 2.2
311(c) Inapplicable
312(a) 2.2
312(b) 2.2
312(c) Inapplicable
313(a) 2.3
313(b) 2.3
313(c) 2.3
313(d) 2.3
314(a) 2.4
314(b) Inapplicable
314(c) 2.5
314(d) Inapplicable
314(e) 2.5
314(f) Inapplicable
315(a) 3.1(d); 3.2(a)
315(b) 2.7(a)
315(c) 3.1(c)
315(d) 3.1(d)
316(a) 2.6; 5.4(a)
317(a) 3.1(b)
318(a) 2.1(b)
----------
(1) This Cross-Reference Table does not constitute part of the Preferred
Securities Guarantee Agreement and shall not have any bearing upon the
interpretation of any of its terms or provisions.
TABLE OF CONTENTS
PAGE
----
ARTICLE I
DEFINITIONS AND INTERPRETATIONS
SECTION 1.1 Definitions and Interpretations............................ 1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act: Application.......................... 5
SECTION 2.2 List of Holders of Securities.............................. 5
SECTION 2.3 Reports by the Preferred Securities Guarantee Trustee...... 6
SECTION 2.4 Periodic Reports to Preferred Securities Guarantee
Trustee.................................................... 6
SECTION 2.5 Evidence of Compliance with Conditions Precedent........... 6
SECTION 2.6 Events of Default; Waiver.................................. 6
SECTION 2.7 Event of Default; Notice................................... 6
SECTION 2.8 Conflicting Interests...................................... 7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Securities Guarantee
Trustee.................................................... 7
SECTION 3.2 Certain Rights of Preferred Securities Guarantee Trustee... 9
SECTION 3.3 Not Responsible for Recitals or Issuance of Guarantee...... 12
ARTICLE IV
PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Preferred Securities Guarantee Trustee; Eligibility........ 12
SECTION 4.2 Appointment, Removal and Resignation of Preferred
Securities Guarantee Trustee............................... 12
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee.................................................. 13
SECTION 5.2 Waiver of Notice and Demand................................ 14
SECTION 5.3 Obligations Not Affected................................... 14
SECTION 5.4 Rights of Holders.......................................... 15
SECTION 5.5 Guarantee of Payment....................................... 15
SECTION 5.6 Subrogation................................................ 15
SECTION 5.7 Independent Obligations.................................... 16
ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1 Limitation of Transactions................................. 16
SECTION 6.2 Ranking.................................................... 17
ARTICLE VII
TERMINATION
SECTION 7.1 Termination................................................ 17
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation................................................ 17
SECTION 8.2 Indemnification............................................ 18
SECTION 8.3 Compensation............................................... 18
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns..................................... 19
SECTION 9.2 Amendments................................................. 19
SECTION 9.3 Notices.................................................... 19
SECTION 9.4 Benefit.................................................... 20
SECTION 9.5 Governing Law.............................................. 20
SECTION 9.6 Counterparts............................................... 20
PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Preferred Securities Guarantee"), dated as
of , is executed and delivered by DTE Energy
Company, a Michigan corporation (the "Guarantor"), and [The Bank of New York
Trust Company, N.A.], as trustee (the "Preferred Securities Guarantee Trustee"),
for the benefit of the Holders (as defined herein) from time to time of the
Preferred Securities (as defined herein) of DTE Energy Trust III, a Delaware
statutory trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Agreement"), dated as of , among the trustees of
the Issuer named therein, the Guarantor, as sponsor, and the holders from time
to time of undivided beneficial interests in the assets of the Issuer, the
Issuer is issuing on the date hereof up to preferred
securities, liquidation amount $ per preferred security, having an
aggregate liquidation amount of $ designated the %
preferred securities (the "Preferred Securities");
WHEREAS, as incentive for the Holders to purchase the Preferred Securities,
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth in this Preferred Securities Guarantee, to pay to the Holders the
Guarantee Payments (as defined herein) and to make certain other payments and
fulfill certain other obligations on the terms and conditions set forth herein;
and
WHEREAS, the Guarantor is concurrently herewith executing and delivering a
guarantee agreement (the "Common Securities Guarantee") with substantially
identical terms to this Preferred Securities Guarantee for the benefit of the
holders of the Common Securities (as defined herein), except that if an Event of
Default (as defined in the Agreement), has occurred and is continuing, the
rights of holders of the Common Securities to receive Guarantee Payments under
the Common Securities Guarantee are subordinated to the rights of Holders to
receive Guarantee Payments under this Preferred Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder, which
purchase the Guarantor hereby agrees shall benefit the Guarantor, the Guarantor
executes and delivers this Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATIONS
SECTION 1.1 Definitions and Interpretations
In this Preferred Securities Guarantee, unless the context otherwise
requires or otherwise specifies:
(a) capitalized terms used in this Preferred Securities Guarantee but not
defined in the preamble above have the respective meanings assigned to them in
this Section 1.1;
1
(b) terms defined in the Agreement as at the date of execution of this
Preferred Securities Guarantee have the same meaning when used in this Preferred
Securities Guarantee unless otherwise defined in this Preferred Securities
Guarantee;
(c) a term defined anywhere in this Preferred Securities Guarantee,
including the recitals, has the same meaning throughout;
(d) all references to "the Preferred Securities Guarantee" or "this
Preferred Securities Guarantee" are to this Preferred Securities Guarantee as
modified, supplemented or amended from time to time;
(e) all references in this Preferred Securities Guarantee to an Article,
Section or other subdivision are to an Article, Section or other subdivision of
this Preferred Securities Guarantee;
(f) a term defined in the Trust Indenture Act has the same meaning when
used in this Preferred Securities Guarantee, unless otherwise defined in this
Preferred Securities Guarantee;
(g) a reference to the singular includes the plural and vice versa;
(h) the words "include," "includes" and "including" shall be deemed to be
followed by the phrase "without limitation; and
(i) the words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular Article or
Section or other subdivision.
"Affiliate" has the same meaning given to that term in Rule 405 of the
Securities Act of 1933, as amended, or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Business Day" means any day other than Saturday, Sunday or any day on
which banking institutions in The City of New York are permitted or required by
any applicable law or executive order to close.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer.
"Corporate Trust Office" means the office of the Preferred Securities
Guarantee Trustee at which the corporate trust business of the Preferred
Securities Guarantee Trustee shall, at any particular time, be principally
administered, which office at the date of execution of this Guarantee is located
at [700 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx].
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
2
"Debentures" means the series of debt securities of the Guarantor issued
under the Indenture (as defined in the Agreement) held by the Property Trustee
(as defined in the Agreement) on behalf of the Issuer.
"Direction" by a person means a written direction signed: (i) if the Person
is a natural person, by that Person; or (ii) in any other case in the name of
such Person by one or more Authorized Officers of that Person.
"Event of Default" means a default by the Guarantor on any of its payment
or other obligations under this Preferred Securities Guarantee.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Preferred Securities, to the extent not paid or
made by the Issuer:
(i) any accumulated and unpaid Distributions (as defined in the
Agreement) that are required to be paid on such Preferred Securities to the
extent the Issuer shall have funds available therefor,
(ii) the redemption or repayment price, if any, specified in the
Agreement, including all accumulated and unpaid distributions to the date
of redemption or repayment (the "Redemption or Repayment Price") with
respect to Preferred Securities called or submitted for redemption or
repayment, to the extent the Issuer has funds available therefor, and
(iii) upon a voluntary or involuntary dissolution, winding-up or
termination of the Issuer (other than in connection with the distribution
of Debentures to the Holders in exchange for Preferred Securities if so
provided in the Agreement), the lesser of (A) the aggregate of the
liquidation amount and all accrued and unpaid Distributions on the
Preferred Securities to the date of payment, to the extent the Issuer shall
have funds available therefor, and (B) the amount of assets of the Issuer
remaining available for distribution to Holders in liquidation of the
Issuer (in either case, the "Liquidation Distribution").
"Holder" shall mean any holder, as registered on the books and records of
the Issuer, of any Preferred Securities; provided, however, that, in determining
whether the Holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Preferred Securities Guarantee Trustee,
including in its individual capacity, any Affiliate of the Preferred Securities
Guarantee Trustee, or any officers, directors, shareholders, members, partners,
employees, representatives, nominees, custodians or agents of the Preferred
Securities Guarantee Trustee.
3
"Officers' Certificate" means, with respect to (A) the Guarantor, a
certificate signed by the Chairman of the Board, a Vice Chairman, the President
or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant Secretary of
the Guarantor and (B) any other Person, a certificate signed by any two
Authorized Officers of such Person. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Preferred Securities Guarantee shall include:
(i) a statement that the individuals signing the Officers' Certificate
have read the covenant or condition and the definitions relating thereto;
(ii) a brief statement of the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
Officers' Certificate are based;
(iii) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as, in such individual's
opinion, is necessary to enable such individual to express an informed
opinion as to whether or not such covenant or condition has been complied
with; and
(iv) a statement as to whether, in the opinion of such individuals,
such condition or covenant has been complied with.
["Other Document" means any instrument or agreement constituting Trust
Property, other than the Debentures, specified in the Agreement.]
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association or government or any agency
or political subdivision thereof, or any other entity of whatever nature.
"Property Trustee" means [The Bank of New York Trust Company, N.A.].
"Preferred Securities Guarantee Trustee" means [The Bank of New York Trust
Company, N.A.], until a Successor Preferred Securities Guarantee Trustee has
been appointed and has accepted such appointment pursuant to the terms of this
Preferred Securities Guarantee and thereafter means each such Successor
Preferred Securities Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred Securities
Guarantee Trustee, any officer within the Corporate Trust Office of the
Preferred Securities Guarantee Trustee with direct responsibility for the
Preferred Securities Guarantee Trustee's obligations under this Preferred
Securities Guarantee and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of that
Officer's knowledge of and familiarity with the particular subject.
4
"Successor Preferred Securities Guarantee Trustee" means a successor
Preferred Securities Guarantee Trustee possessing the qualifications to act as
Preferred Securities Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act: Application
(a) This Preferred Securities Guarantee is subject to the provisions of the
Trust Indenture Act that are required to be part of this Preferred Securities
Guarantee and shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Preferred Securities
Guarantee limits, qualifies or conflicts with the duties imposed by Sections 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
SECTION 2.2 List of Holders of Securities
In accordance with Section 312(a) of the Trust Indenture Act, the Guarantor
shall provide to the Preferred Securities Guarantee Trustee:
(a) within 14 days after each of the dates as are determined for the
Property Trustee pursuant to Section 2.2(a)(i) of the Agreement, a list, in such
form as the Preferred Securities Guarantee Trustee may reasonably require, of
the names and addresses of the Holders ("List of Holders") as of such date,
provided that the Guarantor shall not be obligated to provide such List of
Holders if the Preferred Securities Guarantee Trustee is the Registrar or at any
time the List of Holders does not differ from the most recent List of Holders
given to the Preferred Securities Guarantee Trustee by the Guarantor; and
(b) at any other time, within 30 days of receipt by the Guarantor of a
written request by the Preferred Securities Guarantee Trustee for a List of
Holders as of a date no more than 14 days before such List of Holders is given
to the Preferred Securities Guarantee Trustee. The Preferred Securities
Guarantee Trustee shall preserve, in as current a form as is reasonably
practicable, all information contained in the List of Holders given to it or
which it receives in its capacity as paying agent or registrar (if acting in
such capacity), provided that the Preferred Securities Guarantee Trustee may
destroy any List of Holders previously given to it on receipt of a new List of
Holders.
The Preferred Securities Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
5
SECTION 2.3 Reports by the Preferred Securities Guarantee Trustee
Within 60 days after [ 15] of each year, commencing with
the [ 15] that first occurs following the issuance of the
Preferred Securities, the Preferred Securities Guarantee Trustee shall provide
to the Holders such reports as are required by Section 313 of the Trust
Indenture Act, if any, in the form and in the manner provided by Section 313 of
the Trust Indenture Act. The Preferred Securities Guarantee Trustee shall also
comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Preferred Securities Guarantee Trustee
The Guarantor shall provide to the Preferred Securities Guarantee Trustee
such documents, reports and information as required by Section 314 (if any) and
the compliance certificate required by Section 314 of the Trust Indenture Act in
the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Preferred Securities Guarantee Trustee
such evidence of compliance with any conditions precedent, if any, provided for
in this Preferred Securities Guarantee that relate to any of the matters set
forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1) may be given in
the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver
The Holders of not less than a majority in liquidation amount of Preferred
Securities may, by vote or written consent, on behalf of all Holders, waive any
past Event of Default and its consequences. Upon such waiver, any such Event of
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured, for every purpose of this Preferred Securities
Guarantee, but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.
SECTION 2.7 Event of Default; Notice
(a) The Preferred Securities Guarantee Trustee shall, within 90 days after
a Responsible Officer of the Preferred Securities Guarantee Trustee obtains
actual knowledge of the occurrence of an Event of Default, transmit by mail,
first class postage prepaid, to the Holders, notices of all such Events of
Default actually known to such Responsible Officer of the Preferred Securities
Guarantee Trustee, unless such defaults have been cured before the giving of
such notice, provided, that, except in the case of default in the payment of any
Guarantee Payment or, if applicable, in the delivery of any cash, securities or
other property in exchange for or upon conversion or redemption of or otherwise
in accordance with the terms of, any Debenture [or Other Document] or the
Preferred Securities, the Preferred Securities Guarantee Trustee shall be
protected in withholding such notice if and so long as a Responsible Officer of
the Preferred
6
Securities Guarantee Trustee in good faith determines that the withholding of
such notice is in the interests of the Holders.
(b) The Preferred Securities Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default except:
(i) a default in the payment of any Guarantee Payment;
(ii) any failure to deliver any cash, securities or other property in
exchange for or upon conversion or redemption of or otherwise in accordance
with the terms of any Debenture [or Other Document] or the Preferred
Securities, if applicable; and
(iii) any default as to which the Preferred Securities Guarantee
Trustee shall have received written notice or of which a Responsible
Officer of the Preferred Securities Guarantee Trustee charged with the
administration of this Preferred Securities Guarantee shall have actual
knowledge.
(c) The Guarantor shall file annually within 30 days after [ 15]
of each year, commencing with the [ 15] that first occurs following
the issuance of the Preferred Securities, with the Preferred Securities
Guarantee Trustee in accordance with Section 314(a)(4) of the Trust Indenture
Act a certification as to whether or not it is in compliance with all the
conditions applicable to it under this Preferred Securities Guarantee Agreement.
SECTION 2.8 Conflicting Interests
(a) If the Preferred Securities Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Securities Guarantee Trustee shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act.
(b) The Agreement and the Indenture shall be deemed to be specifically
described in this Preferred Securities Guarantee for the purposes of clause (i)
of the first proviso contained in Section 310(b) of the Trust Indenture Act.
[Describe others if applicable]
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Securities Guarantee Trustee
(a) This Preferred Securities Guarantee shall be held by the Preferred
Securities Guarantee Trustee for the benefit of the Holders, and the Preferred
Securities Guarantee Trustee shall not transfer this Preferred Securities
Guarantee to any Person except a Holder exercising his or her rights pursuant to
Section 5.4(b) or to a Successor
7
Preferred Securities Guarantee Trustee on acceptance by such Successor Preferred
Securities Guarantee Trustee of its appointment to act as Successor Preferred
Securities Guarantee Trustee. The right, title and interest of the Preferred
Securities Guarantee Trustee shall automatically vest in any Successor Preferred
Securities Guarantee Trustee, and such vesting and succession of title shall be
effective whether or not conveyancing documents have been executed and delivered
pursuant to the appointment of such Successor Preferred Securities Guarantee
Trustee.
(b) If an Event of Default actually known to a Responsible Officer of the
Preferred Securities Guarantee Trustee has occurred and is continuing, the
Preferred Securities Guarantee Trustee shall enforce this Preferred Securities
Guarantee for the benefit of the Holders.
(c) The Preferred Securities Guarantee Trustee, before the occurrence of
any Event of Default and after the curing or waiver of all Events of Default
that may have occurred, shall undertake to perform only such duties as are
specifically set forth in this Preferred Securities Guarantee, and no implied
covenants or obligations shall be read into this Preferred Securities Guarantee
against the Preferred Securities Guarantee Trustee. In case an Event of Default
has occurred (that has not been cured or waived pursuant to Section 2.6) and is
actually known to a Responsible Officer of the Preferred Securities Guarantee
Trustee, the Preferred Securities Guarantee Trustee shall exercise such of the
rights and powers vested in it by this Preferred Securities Guarantee, and use
the same degree of care and skill in its exercise thereof, as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Preferred Securities Guarantee shall be construed
to relieve the Preferred Securities Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act, its own bad faith or its own
willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of such Events of Default that may have occurred:
(A) the duties and obligations of the Preferred Securities
Guarantee Trustee shall be determined solely by the express provisions
of this Preferred Securities Guarantee, and the Preferred Securities
Guarantee Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this
Preferred Securities Guarantee, and no implied covenants or
obligations shall be read into this Preferred Securities Guarantee
against the Preferred Securities Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Preferred
Securities Guarantee Trustee, the Preferred Securities Guarantee
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions
8
furnished to the Preferred Securities Guarantee Trustee and conforming
to the requirements of this Preferred Securities Guarantee; but in the
case of any such certificates or opinions that by any provision hereof
are specifically required to be furnished to the Preferred Securities
Guarantee Trustee, the Preferred Securities Guarantee Trustee shall be
under a duty to examine the same to determine whether or not they
conform to the requirements of this Preferred Securities Guarantee;
(ii) the Preferred Securities Guarantee Trustee shall not be liable
for any error of judgment made in good faith by a Responsible Officer of
the Preferred Securities Guarantee Trustee, unless it shall be proved that
the Preferred Securities Guarantee Trustee was negligent in ascertaining
the pertinent facts;
(iii) the Preferred Securities Guarantee Trustee shall not be liable
with respect to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of not less than a majority
in liquidation amount of the Preferred Securities relating to the time,
method and place of conducting any proceeding for any remedy available to
the Preferred Securities Guarantee Trustee, or exercising any trust or
power conferred upon the Preferred Securities Guarantee Trustee under this
Preferred Securities Guarantee; and
(iv) no provision of this Preferred Securities Guarantee shall require
the Preferred Securities Guarantee Trustee to expend or risk its own funds
or otherwise incur personal financial liability in the performance of any
of its duties or in the exercise of any of its rights or powers, if the
Preferred Securities Guarantee Trustee shall have reasonable grounds for
believing that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Preferred Securities Guarantee or if
indemnity reasonably satisfactory to the Preferred Securities Guarantee
Trustee against such risk or liability is not reasonably assured to it.
SECTION 3.2 Certain Rights of Preferred Securities Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) the Preferred Securities Guarantee Trustee may conclusively rely,
and shall be fully protected in acting or refraining from acting upon, any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document believed by it to be genuine and
to have been signed, sent or presented by the proper party or parties;
(ii) any direction or act of the Guarantor contemplated by this
Preferred Securities Guarantee shall be sufficiently evidenced by a
Direction or an Officers' Certificate;
9
(iii) whenever, in the administration of this Preferred Securities
Guarantee, the Preferred Securities Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking, suffering
or omitting any action hereunder, the Preferred Securities Guarantee
Trustee (unless other evidence is herein specifically prescribed) may, in
the absence of negligence, bad faith or willful misconduct on its part,
request and conclusively rely upon an Officers' Certificate which, upon
receipt of such request, shall be promptly delivered by the Guarantor;
(iv) the Preferred Securities Guarantee Trustee shall have no duty to
see to any recording, filing or registration of any instrument (or any
rerecording, refiling or reregistration thereof);
(v) the Preferred Securities Guarantee Trustee may consult with
competent legal counsel or other experts, and the advice or written opinion
of such counsel and experts with respect to legal matters or advice within
the scope of such legal counsel's or expert's area of expertise shall be
full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in accordance
with such advice or opinion. Such counsel may be counsel to the Guarantor
or any of its Affiliates and may include any of its employees. The
Preferred Securities Guarantee Trustee shall have the right at any time to
seek instructions concerning the administration of this Preferred
Securities Guarantee from any court of competent jurisdiction;
(vi) the Preferred Securities Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Preferred Securities Guarantee at the request or direction of any Holder,
unless such Holder shall have provided to the Preferred Securities
Guarantee Trustee such security and indemnity, reasonably satisfactory to
the Preferred Securities Guarantee Trustee, against the reasonable costs,
expenses (including reasonable attorneys' fees and reasonable expenses and
the expenses of the Preferred Securities Guarantee Trustee, agents,
nominees or custodians) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable
advances as may be requested by the Preferred Securities Guarantee Trustee;
provided that, nothing contained in this Section 3.2(a)(vi) shall be taken
to relieve the Preferred Securities Guarantee Trustee, upon the occurrence
of an Event of Default, of its obligation to exercise the rights and powers
vested in it by this Preferred Securities Guarantee;
(vii) the Preferred Securities Guarantee Trustee shall not be bound to
conduct an investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document, but the Preferred Securities
Guarantee Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
10
(viii) the Preferred Securities Guarantee Trustee may execute any of
the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, nominees, custodians or attorneys, and
the Preferred Securities Guarantee Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
(ix) any action taken by the Preferred Securities Guarantee Trustee or
its agents hereunder shall bind the Holders, and the signature of the
Preferred Securities Guarantee Trustee or its agents alone shall be
sufficient and effective to perform any such action, and no third party
shall be required to inquire as to the authority of the Preferred
Securities Guarantee Trustee to so act or as to its compliance with any of
the terms and provisions of this Preferred Securities Guarantee, both of
which shall be conclusively evidenced by the Preferred Securities Guarantee
Trustee's or its agent's taking such action;
(x) whenever in the administration of this Preferred Securities
Guarantee the Preferred Securities Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy or
right or taking any other action hereunder, the Preferred Securities
Guarantee Trustee (A) may request instructions from the Holders of a
majority in liquidation amount of the Preferred Securities, (B) may refrain
from enforcing such remedy or right or taking such other action until such
instructions are received, and (C) shall be protected in conclusively
relying on or acting in accordance with such instructions;
(xi) except as otherwise expressly provided by this Preferred
Securities Guarantee, the Preferred Securities Guarantee Trustee shall not
be under any obligation to take any action that is discretionary under the
provisions of this Preferred Securities Guarantee; and
(xii) the Preferred Securities Guarantee Trustee shall not be liable
for any action taken, suffered, or omitted to be taken by it in good faith,
without negligence, and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Preferred Securities Guarantee.
(b) No provision of this Preferred Securities Guarantee shall be deemed to
impose any duty or obligation on the Preferred Securities Guarantee Trustee to
perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall be illegal, or
in which the Preferred Securities Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or acts
or to exercise any such right, power, duty or obligation. No permissive power or
authority available to the Preferred Securities Guarantee Trustee shall be
construed to be a duty.
11
SECTION 3.3 Not Responsible for Recitals or Issuance of Guarantee
The recitals contained in this Guarantee shall be taken as the statements
of the Guarantor, and the Preferred Securities Guarantee Trustee does not assume
any responsibility for their correctness. The Preferred Securities Guarantee
Trustee makes no representation as to the validity or sufficiency of this
Preferred Securities Guarantee.
ARTICLE IV
PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Preferred Securities Guarantee Trustee; Eligibility
(a) There shall at all times be a Preferred Securities Guarantee Trustee
which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least Fifty
Million U.S. Dollars ($50,000,000), and subject to supervision or
examination by Federal, State, Territorial or District of Columbia
authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the supervising or
examining authority referred to above, then, for the purposes of this
Section 4.1(a)(ii), the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published.
(b) If at any time the Preferred Securities Guarantee Trustee shall cease
to be eligible to so act under Section 4.1(a), the Preferred Securities
Guarantee Trustee shall immediately resign in the manner and with the effect set
out in Section 4.2(c).
SECTION 4.2 Appointment, Removal and Resignation of Preferred Securities
Guarantee Trustee
(a) Subject to Section 4.2(b), the Preferred Securities Guarantee Trustee
may be appointed or removed without cause at any time:
(i) until the issuance of any Preferred Securities, by written
instrument executed by the Guarantor;
(ii) unless an Event of Default shall have occurred and be continuing,
after the issuance of any Securities, by the Guarantor; and
12
(iii) if an Event of Default shall have occurred and be continuing,
after the issuance of the Preferred Securities, by vote or written consent
of the Holders of a majority in liquidation amount of the Preferred
Securities.
(b) The Preferred Securities Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Preferred Securities Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Preferred Securities Guarantee Trustee and
delivered to the Guarantor.
(c) The Preferred Securities Guarantee Trustee appointed to office shall
hold office until a Successor Preferred Securities Guarantee Trustee shall have
been appointed or until its removal or resignation. The Preferred Securities
Guarantee Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Preferred Securities
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Preferred Securities Guarantee Trustee has been
appointed and has accepted such appointment by instrument in writing executed by
such Successor Preferred Securities Guarantee Trustee and delivered to the
Guarantor and the resigning Preferred Securities Guarantee Trustee.
(d) If no Successor Preferred Securities Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2 within 60
days after delivery to the Guarantor of an instrument of removal or resignation,
the Preferred Securities Guarantee Trustee resigning or being removed may
petition any court of competent jurisdiction for appointment of a Successor
Preferred Securities Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor
Preferred Securities Guarantee Trustee.
(e) No Preferred Securities Guarantee Trustee shall be liable for the acts
or omissions to act of any Successor Preferred Securities Guarantee Trustee.
(f) Upon termination of this Preferred Securities Guarantee or removal or
resignation of the Preferred Securities Guarantee Trustee pursuant to this
Section 4.2, the Guarantor shall pay to the Preferred Securities Guarantee
Trustee all amounts due to the Preferred Securities Guarantee Trustee accrued to
the date of such termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Holders the Guarantee Payments (without duplication of amounts theretofore paid
by the Issuer), as and when due, regardless of any defense, right of set-off or
counterclaim that the Issuer may have or assert. The Guarantor's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Issuer to pay such
amounts to the Holders.
13
In addition, the Guarantor irrevocably and unconditionally agrees to cause
the Issuer to deliver to the Holders such securities and other property as may
be deliverable to them in accordance with the terms of the Preferred Securities,
including as a result of any conversion, exchange, redemption, liquidation or
other provision of the Debentures, [the Other Documents] or the Preferred
Securities.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Preferred
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the Guarantor under
this Preferred Securities Guarantee shall in no way be affected or impaired by
reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion any sums payable or the performance by the Issuer of any other
obligation under, arising out of, or in connection with, the Preferred
Securities (other than an extension of time permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of the
Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Preferred Securities, or
any action on the part of the Issuer granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that
14
the obligations of the Guarantor hereunder shall be absolute and unconditional
under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
the consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 Rights of Holders
(a) The Holders of a majority in liquidation amount of the Preferred
Securities have the right to direct the time, method and place of conducting of
any proceeding for any remedy available to the Preferred Securities Guarantee
Trustee in respect of this Preferred Securities Guarantee or exercising any
trust or power conferred upon the Preferred Securities Guarantee Trustee under
this Preferred Securities Guarantee.
(b) If the Preferred Securities Guarantee Trustee fails to enforce this
Preferred Securities Guarantee, any Holder may institute a legal proceeding
directly against the Guarantor to enforce its rights under this Preferred
Securities Guarantee, without first instituting a legal proceeding against the
Issuer, the Preferred Securities Guarantee Trustee or any other Person.
Notwithstanding the foregoing, if the Guarantor has failed to make a Guarantee
Payment or to perform any of its other obligations under Section 5.1, a Holder
may directly institute a proceeding in the Holder's own name against the
Guarantor for enforcement of this Preferred Securities Guarantee for the portion
of such Guarantee Payment or the performance of such other obligation to which
such Holder is entitled. The Guarantor waives any right or remedy to require
that any action on this Preferred Securities Guarantee be brought first against
the Issuer or any other person or entity before proceeding directly against the
Guarantor.
SECTION 5.5 Guarantee of Payment
This Preferred Securities Guarantee creates a guarantee of payment and not
of collection. This Preferred Securities Guarantee will not be discharged except
by payment of the Guarantee Payments in full (to the extent not paid by the
Issuer) or upon distribution of Debentures to Holders as provided in the
Agreement.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all rights, if any, of the Holders
against the Issuer in respect of any amounts paid to such Holders by the
Guarantor under this Preferred Securities Guarantee; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any right that it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Preferred Securities Guarantee, if, at the time
of any such payment, any amounts are due and unpaid under this Preferred
Securities Guarantee. If any amount shall be paid or property delivered to the
Guarantor in violation of the preceding sentence, the Guarantor agrees to hold
such amount or property in trust for the Holders and to pay over such amount or
deliver such property to the Holders entitled thereto.
15
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Issuer with respect to the Preferred Securities, and
that the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Preferred Securities Guarantee
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1 Limitation of Transactions
So long as any Preferred Securities remain outstanding, the Guarantor shall
not:
(a) declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of the Guarantor's
capital stock (which includes common and preferred stock);
(b) make any payment of principal, interest or premium, if any, on or repay
or repurchase or redeem any debt securities of the Guarantor that rank pari
passu with or junior in right of payment to the Debentures; or
(c) make any guarantee payments with respect to any guarantee by the
Guarantor of the debt securities of any subsidiary thereof or any other party if
such guarantee ranks pari passu or junior in right of payment to the Debentures
(other than (A) dividends or distributions in shares of, or options, warrants or
rights to subscribe for or purchase shares of, common stock of the Guarantor,
(B) any declaration of a dividend in connection with the implementation of a
stockholders' rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto, (C)
payments under the Preferred Securities Guarantee and any Other Documents, (D)
as a result of a reclassification of the Guarantor's capital stock or the
exchange or the conversion of one class or series of the Guarantor's capital
stock for another class or series of the Guarantor's capital stock, (E) the
purchase of fractional interests in shares of the Guarantor's capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged, and (F) purchases of common stock related
to the issuance of common stock or rights under any of the Guarantor's benefit
plans for its directors, officers or employees or any of the Guarantor's
dividend reinvestment plans) if at such time (i) there shall have occurred any
event of which the Guarantor has actual knowledge that is, or with the giving of
notice or the lapse of time, or both, would be an Event of Default, (ii) the
Guarantor shall be in default with respect to its payment or other obligations
under Section 5.1 of this Preferred Securities Guarantee or (iii) , if the terms
of the Debentures provide for the deferral of the obligation of the Guarantor,
as issuer of the Debenture, to pay interest thereon, whether at the option of
the Guarantor or another Person or otherwise, a notice of deferral has been
given and not rescinded or any interest deferral
16
period shall have commenced and be continuing. [insert or modify the foregoing
provision as appropriate]
SECTION 6.2 Ranking
This Preferred Securities Guarantee will constitute an unsecured obligation
of the Guarantor and will rank [insert applicable ranking, i.e., equal to
Debentures, subordinate, senior or otherwise]
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Preferred Securities Guarantee shall terminate upon (a) full payment
of the Redemption or Repayment Price of all Preferred Securities, (b) the
conversion or exchange of all the Preferred Securities and the full payment of
any related amounts or (c) full payment of the amounts payable or delivery of
securities or other property deliverable upon liquidation of the Issuer, in each
case, in accordance with the terms of the Agreement. Notwithstanding the
foregoing, this Preferred Securities Guarantee will continue to be effective or
will be reinstated, as the case may be, if at any time any Holder must restore
payment of any sums paid or other property distributed under the Preferred
Securities or under this Preferred Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Guarantor or any Covered Person for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith in accordance with this Preferred Securities
Guarantee and in a manner that such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified Person by this
Preferred Securities Guarantee or by law, except that an Indemnified Person
shall be liable for any such loss, damage or claim incurred by reason of such
Indemnified Person's negligence, bad faith or willful misconduct with respect to
such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good faith
upon the records of the Guarantor and upon such information, opinions, reports
or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders might properly be paid.
17
SECTION 8.2 Indemnification
(a) To the fullest extent permitted by applicable law, the Guarantor agrees
to indemnify and hold harmless each Indemnified Person from and against any
loss, damage or claim incurred by such Indemnified Person by reason of any act
or omission performed or omitted by such Indemnified Person in good faith in
accordance with this Preferred Securities Guarantee and in a manner such
Indemnified Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person by this Preferred Securities Guarantee,
except that no Indemnified Person shall be entitled to be indemnified in respect
of any loss, damage or claim incurred by such Indemnified Person by reason of
negligence, bad faith or willful misconduct with respect to such acts or
omissions.
(b) To the fullest extent permitted by applicable law, reasonable
out-of-pocket expenses (including reasonable legal fees) incurred by an
Indemnified Person in defending any claim, demand, action, suit or proceeding
shall, from time to time, be advanced by the Guarantor prior to the final
disposition of such claim, demand, action, suit or proceeding upon receipt by
the Guarantor of an undertaking by or on behalf of the Indemnified Person to
repay such amount if it shall be determined that the Indemnified Person is not
entitled to be indemnified as authorized in Section 8.2(a).
(c) The provisions set forth in this Section 8.2 shall survive the
termination of the Preferred Securities Guarantee and any resignation or removal
of the Preferred Securities Guarantee Trustee.
SECTION 8.3 Compensation
The Guarantor agrees:
(a) to pay to the Preferred Securities Guarantee Trustee from time to time
such compensation as shall be agreed in writing between the Guarantor and the
Preferred Securities Guarantee Trustee for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust); and
(b) to reimburse the Preferred Securities Guarantee Trustee upon its
request for reasonable expenses, disbursements and advances incurred or made by
the Preferred Securities Guarantee Trustee in accordance with any provision of
this Preferred Securities Guarantee (including the reasonable compensation and
the expenses and advances of its agents and counsel), except any such expense or
advance as may be attributable to its negligence, willful misconduct or bad
faith.
18
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
All guarantees and agreements contained in this Preferred Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Preferred Securities then outstanding.
SECTION 9.2 Amendments
Except with respect to any changes that do not adversely affect the rights
of Holders (in which case no consent of Holders will be required), this
Preferred Securities Guarantee may only be amended while any Preferred
Securities are outstanding with the prior approval of the Holders of at least a
majority in liquidation amount (including the stated amount that would be paid
on redemption, liquidation or otherwise, plus accrued and unpaid Distributions
to the date upon which the voting percentages are determined) of all the
outstanding Preferred Securities covered by the Preferred Securities Guarantee.
The provisions of Section 12.2 of the Agreement with respect to meetings of
Holders apply to the giving of such approval.
SECTION 9.3 Notices
All notices provided for in this Preferred Securities Guarantee shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by registered or certified mail, as follows:
(a) If given to the Preferred Securities Guarantee Trustee, at the
Preferred Securities Guarantee Trustee's mailing address set forth below (or
such other address as the Preferred Securities Guarantee Trustee may give notice
of to the Holders of the Preferred Securities):
[The Bank of New York Trust Company, N.A.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx
Attention: ]
(b) If given to the Guarantor, at the Guarantor's mailing address set forth
below (or such other address as the Guarantor may give notice of to the
Holders):
DTE Energy Company
0000 0xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention:
19
(c) If given to any Holder, at the address set forth on the books and
records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 9.4 Benefit
This Preferred Securities Guarantee is solely for the benefit of the
Holders and, subject to Section 3.1(a), is not separately transferable from the
Preferred Securities.
SECTION 9.5 Governing Law
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
SECTION 9.6 Counterparts.
The parties may sign any number of copies of this Preferred Securities
Guarantee. Each signed copy shall be an original, but all of them together
represent the same agreement. Any signed copy shall be sufficient proof of this
Preferred Securities Guarantee.
20
THIS PREFERRED SECURITIES GUARANTEE is executed as of the day and year
first above written.
DTE ENERGY COMPANY
as Guarantor
By: _________________________________
Name:
Title:
[THE BANK OF NEW YORK TRUST COMPANY,
N.A.]
as Preferred Securities Guarantee
Trustee
By: _________________________________
Name:
Title:
21
