EXHIBIT 4.17
FORM OF
FORM OF , dated as of ________ __, _____
(the "") by and between DTE Energy Company, a Michigan
corporation (the "Company"), and [ ] not individually but solely as Purchase
Contract Agent and as attorney-in-fact of the holders of Purchase Contracts
(each as defined in the Purchase Contract Agreement (as defined herein)), and [
], [ ] (the "Remarketing Agent").
WITNESSETH:
WHEREAS, the Company will issue an aggregate Stated Amount
$[ ] of its Units (the "Units") under the Purchase Contract Agreement,
dated as of [ ] [ ], [ ], by and between the Purchase Contract
Agent and the Company (the "Purchase Contract Agreement"); and
WHEREAS, the Units will initially consist of [ ] units
referred to as "Normal Units," each such security consisting of a [Title of
Securities] due ____________ issued by the Company in the principal amount of
$______ (a "Debt Security") and a Purchase Contract issued by the Company
("Purchase Contract") pursuant to the Purchase Contract Agreement and _________
units referred to as "Stripped Units," each such security consisting of certain
U.S. Treasury Securities and a Purchase Contract.
WHEREAS, the Debt Securities will be pledged pursuant to the
Pledge Agreement (the "Pledge Agreement"), dated as of [ ] [ ], [ ],
by and between the Company, [ ], as Collateral Agent, Securities Intermediary
and Custodial Agent (the "Collateral Agent") and the Purchase Contract Agent, to
secure a Normal Unit holder's obligations under the related Purchase Contract on
the Purchase Contract Settlement Date; and
WHEREAS, the Debt Securities of such holders electing to have
their Debt Securities that are not pledged pursuant to the Pledge Agreement
remarketed, or of such Normal Unit holders who have elected not to settle the
Purchase Contracts related to their Normal Unit from the proceeds of a Cash
Settlement and who have not early settled their Purchase Contracts, will be
remarketed by the Remarketing Agent on the third Business Day immediately
preceding the Purchase Contract Settlement Date; and
WHEREAS, the applicable interest rate on the Debt Securities
that remain outstanding on and after the Purchase Contract Settlement Date will
be reset on the third Business Day immediately preceding the Purchase Contract
Settlement Date, to the Reset Rate to be determined by the Reset Agent as the
rate that such Debt Securities should bear in order to have an approximate
market value of [-] of the aggregate principal amount of the Debt Securities on
the third Business Day immediately preceding the Purchase Contract Settlement
Date, [provided that in the determination of such Reset Rate, the Company may
limit the Reset Spread (a component of the Reset Rate) to be no higher than [-]
basis points[(-%)]]; and
WHEREAS, the Company has requested [ ] ("[ ]") to
act as the Reset Agent and as the Remarketing Agent and as such to perform the
services described herein; and
WHEREAS, [ ] is willing to act as Reset Agent and
Remarketing Agent and as such to perform 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 Purchase
Contract Agreement or, if not therein stated, the Pledge Agreement.
Section 2. Appointment and Obligations of Reset Agent and
Remarketing Agent. The Company hereby appoints [ ], and [ ]
hereby accepts such appointment, (i) as the Reset Agent to determine, and in
consultation with the Company and in the manner provided for in the Indenture,
the Reset Rate, that in the opinion of the Reset Agent, will, when applied to
the Debt Securities, enable the Debt Securities, to have an approximate market
value of approximately [-] of the aggregate principal amount of such Debt
Securities, [provided that the Company may limit such Reset Rate to be no higher
than the rate on the Two-Year Benchmark Treasury plus [-] basis points [(-%)]],
and (ii) as the exclusive Remarketing Agent to remarket the Debt Securities (a)
of Debt Securities holders electing to have their Debt Securities remarketed, or
(b) of Normal Unit holders who have not early settled the related Purchase
Contracts and have failed to notify the Purchase Contract Agent, on or prior to
the fifth Business Day immediately preceding the Purchase Contract Settlement
Date, of their intention to settle the related Purchase Contracts through Cash
Settlement, for settlement on the Purchase Contract Settlement Date, pursuant to
the Remarketing Underwriting Agreement attached hereto as Exhibit A, among the
Company, the Purchase Contract Agent and the Remarketing Agent (with such
changes as the Company, the Purchase Contract Agent and the Remarketing Agent
may agree upon, it being understood that changes may be necessary in the
representations, warranties, covenants and other provisions of the Remarketing
Underwriting Agreement due to changes in law or facts and circumstances).
Pursuant to the Remarketing Underwriting Agreement, the Remarketing Agent,
either as the sole remarketing underwriter or as the representative of a
syndicate including the Remarketing Agent and one or more other remarketing
underwriters designated by the Remarketing Agent, will agree, subject to the
terms and conditions set forth therein, that the Remarketing Agent and any such
other remarketing underwriters will purchase, severally, the Debt Securities to
be sold by the holder or holders of Debt Securities or Normal Units on the third
Business Day immediately preceding the Purchase Contract Settlement Date and
will use their reasonable efforts to remarket such Debt Securities (such
purchase and remarketing being hereinafter referred to as the "Remarketing"), at
a price of approximately [-] of the aggregate principal amount of such Debt
Securities plus any accrued and unpaid interest (including any deferred
interest). Notwithstanding the preceding sentence, the Remarketing Agent shall
not remarket any Debt Securities for a price less than [-] of the aggregate
principal amount of such Debt Securities, plus accrued and unpaid interest and
shall not be required to purchase any Debt Securities not remarketed. The
proceeds of such remarketing shall be paid to the Collateral Agent in accordance
with Section 4.6 of the Pledge
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Agreement and Section 5.2 of the Purchase Contract Agreement (both of which
Sections are incorporated herein by reference).
Section 3. Fees. With respect to the Remarketing, the
Remarketing Agent shall retain as Remarketing Fee an amount not exceeding [-]
basis points [(-%)], of the aggregate principal amount of the remarketed
securities from any amount received in connection with such Remarketing in
excess of aggregate principal amount of such remarketed Debt Securities plus any
accrued and unpaid interest (including any deferred interest). In addition, the
Reset Agent shall receive from the Company a reasonable and customary fee for
acting as the Reset Agent (the "Reset Agent Fee"); provided, however, that if
the Remarketing Agent shall also act as the Reset Agent, then the Reset Agent
shall not be entitled to receive any such Reset Agent Fee. Payment of such Reset
Agent Fee shall be made by the Company on the third Business Day immediately
preceding the Purchase Contract Settlement Date in immediately available funds
or, upon the instructions of the Reset Agent, by certified or official bank
check or checks or by wire transfer.
Section 4. Replacement and Resignation of Remarketing Agent
and Reset Agent. (a) The Company may in its absolute discretion replace [ ] as
the Remarketing Agent and/or as the Reset Agent in its capacity hereunder by
giving notice prior to 3:00 p.m., New York City time, on the eleventh Business
Day immediately prior to the Purchase Contract Settlement Date. Any such
replacement shall become effective upon the Company's appointment of a successor
to perform the services that would otherwise be performed hereunder by the
Remarketing Agent and/or the Reset Agent. Upon providing such notice, the
Company shall use all reasonable efforts to appoint such a successor and to
enter into a with such successor as soon as reasonably
practicable.
(b) _____________ may resign at any time and be discharged
from its duties and obligations hereunder as the Remarketing Agent and/or as the
Reset Agent by giving notice prior to 3:00 p.m., New York City time, on the
eleventh Business Day immediately prior to the Purchase Contract Settlement
Date. Any such resignation shall become effective upon the Company's appointment
of a successor to perform the services that would otherwise be performed
hereunder by the Remarketing Agent and/or the Reset Agent. Upon receiving notice
from the Remarketing Agent and/or the Reset Agent that it wishes to resign
hereunder, the Company shall appoint such a successor and enter into a
with it as soon as reasonably practicable.
Section 5. Dealing in the Securities. The Remarketing Agent,
when acting hereunder or under the Remarketing Underwriting Agreement or acting
in its individual or any other capacity, may, to the extent permitted by law,
buy, sell, hold or deal in any of the Debt Securities. With respect to any Debt
Securities owned by it, the Remarketing Agent may exercise any vote or join in
any action with like effect as if it did not act in any capacity hereunder. The
Remarketing Agent, in its individual 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.
Section 6. Registration Statement and Prospectus. In
connection with the Remarketing, if and to the extent required (in the opinion
of counsel for either the Remarketing
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Agent or the Company) by applicable law, regulations or interpretations in
effect at the time of such Remarketing, the Company shall use its reasonable
efforts to have a registration statement relating to the Debt Securities
effective under the Securities Act of 1933 by the third Business Day immediately
preceding the Purchase Contract Settlement Date, shall furnish a current
prospectus and/or prospectus supplement to be used in such Remarketing by the
remarketing underwriter or underwriters under the Remarketing Underwriting
Agreement, and shall pay all expenses relating thereto.
Section 7. Conditions to the Remarketing Agent's Obligations.
(a) The obligations of the Remarketing Agent and any other remarketing
underwriters to purchase and remarket the Debt Securities, as the case may be,
shall be subject to the terms and conditions of the Remarketing Underwriting
Agreement.
(b) If at any time during the term of this Agreement, any
Event of Default (as defined therein) under the Indenture, or event that with
the passage of time or the giving of notice or both would become an Event of
Default under the Indenture, has occurred and is continuing, then the
obligations and duties of the Remarketing Agent under this Agreement shall be
suspended until such default or event has been cured. The Company will cause the
Trustee to give the Remarketing Agent notice of all such defaults and events of
which the Trustee is aware.
Section 8. Termination of . This
Agreement shall terminate as to the Remarketing Agent on the effective date of
its replacement pursuant to Section 4(a) hereof or pursuant to Section 4(b)
hereof. Notwithstanding any such termination, the obligations set forth in
Section 3 hereof shall survive and remain in full force and effect until all
amounts payable under said Section 3 shall have been paid in full.
Section 9. Remarketing Agent's Performance; Duty of Care. The
duties and obligations of the Remarketing Agent hereunder shall be determined
solely by the express provisions of this Agreement and the Remarketing
Underwriting Agreement.
Section 10. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
Section 11. Term of Agreement. Unless otherwise terminated in
accordance with the provisions hereof and except as otherwise provided herein,
this Agreement shall remain in full force and effect from the date hereof until
the first day thereafter on which no Debt Securities are outstanding.
Section 12. 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 _____________ as the Remarketing Agent and
the Purchase Contract Agent. The rights and obligations of _____________ as the
Remarketing Agent and/or as the Reset Agent 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
_____________ as the Remarketing Agent and/or as the Reset Agent and their
respective successors and assigns. The terms "successors" and "assigns" shall
not include any purchaser of Securities merely because of such purchase.
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Section 13. 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 provision of this Agreement.
Section 14. 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 provisions 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, circumstances or jurisdiction, or of rendering
any other provision or provisions of this Agreement invalid, inoperative or
unenforceable to any extent whatsoever.
Section 15. Counterparts. This Agreement may be executed in
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
Section 16. Amendments. This Agreement may be amended by any
instrument in writing signed by the parties hereto.
Section 17. Notices. Unless otherwise specified, any notices,
requests, consents or other communications given or made hereunder or pursuant
hereto shall be made in writing or transmitted by any standard form of
telecommunication, including telephone, telegraph or telecopy, and confirmed in
writing. All written notices and confirmations of notices by telecommunication
shall be deemed to have been validly given or made when delivered or mailed,
registered or certified mail, return receipt requested and postage prepaid. All
such notices, requests, consents or other communications shall be addressed as
follows: if to the Company, to DTE Energy Company, 0000 0xx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000, Attention: [Treasurer]; if to the Remarketing Agent or Reset
Agent, ________________________________; and if to the Purchase Contract Agent,
______________________________, or to such other address as any of the above
shall specify to the other in writing.
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IN WITNESS WHEREOF, each of the Company, the Remarketing Agent
and the Purchase Contract Agent 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.
DTE ENERGY COMPANY
By: _________________________________
Name:
Title:
CONFIRMED AND ACCEPTED:
___________________________________
___________________________________
By: _______________________________
Authorized Signatory
______________________________________________
not individually but solely as Purchase
Contract Agent and as attorney-in-fact
for the holders of the Purchase Contracts
By: ___________________________________
Name:
Title:
Exhibit A to
FORM OF REMARKETING UNDERWRITING AGREEMENT
______________________________________________________ (the
"Remarketing Underwriter") hereby agrees, subject to the terms and conditions
herein set forth or incorporated herein, to purchase the Debt Securities as set
forth in Schedule I hereto, that have been tendered by the holders of the Normal
Units for sale on ______________.
1. Definitions. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the purchase contract
agreement (the "Purchase Contract Agreement"), the pledge agreement (the "Pledge
Agreement"), the underwriting agreement, dated ______________, between the
Company and ______________, as underwriters with respect to the issuance and
sale of the Securities (the "Underwriting Agreement"), and the Indenture, dated
___________, between _______________________ and the Company (the "Indenture").
2. Registration Statement and Prospectus. If required (in the opinion of counsel
to either the Remarketing Underwriter or the Company) by applicable law, the
Company has filed with the Securities and Exchange Commission, and there has
become effective, registration statements on Form S-3 (Nos. 333-58834 and
333-_____), including a prospectus, relating to the Debt Securities and other
securities. Such registration statement, as amended to the date of this
Agreement, is hereinafter referred to as the "Registration Statement", the
prospectus included in the Registration Statement is hereinafter referred to as
the "Basic Prospectus" and the Basic Prospectus, as amended or supplemented to
the date of this Agreement to relate to the Debt Securities and to the
remarketing of the Debt Securities, is hereinafter referred to as the "Final
Prospectus" (including in each case all documents incorporated by reference).
3. Provisions Incorporated by Reference.
(a) Subject to Section 3(b), the provisions of Sections ____ and
____ of the Underwriting Agreement shall be incorporated, as applicable into
this Agreement and made applicable to the obligations of the Remarketing
Underwriter, except as explicitly amended hereby.
(b) With respect to the provisions of the Underwriting Agreement
incorporated herein, for the purposes hereof, (i) all references therein to the
"Underwriter" or "Underwriters" or the "Representative" or "Representatives", as
the case may be, shall be deemed to refer to the Remarketing Underwriter; (ii)
all references therein to the "Securities" which are the subject thereof shall
be deemed to refer to the Debt Securities as defined herein; (iii) all
references therein to the "Closing Date" shall be deemed to refer to the
Remarketing Closing Date specified in Schedule I hereto (the "Remarketing
Closing Date"); (iv) all references therein to the "Registration Statement", the
"Basic Prospectus" and the "Final Prospectus" shall be deemed to refer to the
Registration Statement, the Basic Prospectus and the Final Prospectus,
respectively, as defined herein.
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4. Purchase and Sale; Remarketing Underwriting Fee. Subject to the
terms and conditions and in reliance upon the representations and warranties
herein set forth or incorporated herein, the Remarketing Underwriter agrees to
purchase from the registered holder or holders thereof in the manner specified
in Section 5 hereof, the principal amount of remarketed Debt Securities set
forth in Schedule I hereto at a purchase price not less than [-] of the
aggregate principal amount of such Debt Securities, plus any accrued and unpaid
interest thereon. In connection therewith, the registered holder or holders
thereof agree, in the manner specified in Section 5 hereof, to pay to the
Remarketing Underwriter a Remarketing Underwriting Fee equal to an amount not
exceeding [-] basis points [-] of the aggregate principal amount of the
remarketed Debt Securities, from any amount received from such Remarketing in
excess of the aggregate principal amount of such remarketed Debt Securities,
plus any accrued and unpaid interest.
5. Delivery and Payment. Delivery of payment for the remarketed Debt
Securities and payment of the Remarketing Underwriting Fee shall be made on the
Remarketing Closing Date at the location and time specified in Schedule I hereto
(or such later date not later than five business days after such date as the
Remarketing representatives shall designate), which date and time may be
postponed by agreement between the Remarketing Underwriter, the Company, and the
registered holder or holders thereof. Delivery of the remarketed Debt Securities
and payment of the Remarketing Underwriting Fee shall be made to the Remarketing
Underwriter [to or upon the order of the [registered holder or holders of the
remarketed Debt Securities] by certified or official bank check or checks drawn
on or by a New York Clearing House bank and payable in immediately available
funds] [in immediately available funds by wire transfer to an account or
accounts designated by the [Company] [registered holder or holders of the
remarketed Debt Securities]] or, if the remarketed Debt Securities are
represented by a Global Security, by any method of transfer agreed upon by the
Remarketing Underwriter and the Depositary for the Debt Securities under the
Indenture.
[It is understood that any registered holder or, if the Debt Securities
are represented by a Global Security, any beneficial owner, that has an account
at the Remarketing Underwriter and tenders its Debt Securities through such
account will not be required to pay any fee or commission to the Remarketing
Underwriter.]
If the Debt Securities are not represented by a Global Security,
certificates for the Debt Securities shall be registered in such names and
denominations as the Remarketing Underwriter may request not less than three
full business days in advance of the Remarketing Closing Date, and the Company,
and the [registered holder or holders thereof] agree to have such certificates
available for inspection, packaging and checking by the Remarketing Underwriter
in New York, New York not later than 1:00 p.m. on the Business Day prior to the
Remarketing Closing Date.
6. Notices. Unless otherwise specified, any notices, requests,
consents or other communications given or made hereunder or pursuant hereto
shall be made in writing or transmitted by any standard form of
telecommunication, including telephone, telegraph or telecopy, and confirmed in
writing. All written notices and confirmations of notices by telecommunication
shall be deemed to have been validly given or made when delivered or mailed,
registered or certified mail, return receipt requested and postage prepaid. All
such notices, requests, consents or other communications shall be addressed as
follows: if to the
A-2
Company, to DTE Energy Company, 0000 0xx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: [Treasurer]; if to the Remarketing Agent or Reset Agent, to
_________________________; and if to the Purchase Contract Agent, to
_________________________, or to such other address as any of the above shall
specify to the other in writing.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Remarketing Underwriters.
Very truly yours,
DTE ENERGY COMPANY
By:____________________________
Name:
Title:
CONFIRMED AND ACCEPTED:
________________________________
________________________________
________________________________
By:
-
Authorized Signatory
__________________________________ not individually but solely as Purchase
Contract Agent and as attorney-in-fact for the holders of the Purchase Contracts
By:
____________________________
Name:
Title:
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SCHEDULE I
Title of Securities:
Principal Amount of Securities: $
Underwriting Agreement, dated as of _________ __, ____, between the Company and
____________________________________________
Remarketing [Underwriting] Fee: _____ % ($_____)
Remarketing Closing Date, Time and Location: _______________________
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