EXHIBIT 4(s)
EXECUTION COPY
TWO-YEAR
CREDIT AGREEMENT
Dated as of May 7, 2004
Among
DTE ENERGY COMPANY,
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders
and
BARCLAYS BANK PLC,
as Administrative Agent
and
BARCLAYS BANK PLC, CITIGROUP GLOBAL MARKETS INC.,
as Co-Syndication Agent as Co-Syndication Agent
and
BNP PARIBAS, KEYBANK NATIONAL THE BANK OF
ASSOCIATION, NOVA SCOTIA,
as Co-Documentation Agents
BARCLAYS CAPITAL AND CITIGROUP GLOBAL MARKETS INC.,
as Co-Lead Arrangers and Joint Book Runners
TABLE OF CONTENTS
PAGE
ARTICLE I: DEFINITIONS AND ACCOUNTING TERMS................................... 1
SECTION 1.01. Certain Defined Terms...................................... 1
SECTION 1.02. Computation of Time Periods................................ 13
SECTION 1.03. Accounting Terms........................................... 13
ARTICLE II: AMOUNTS AND TERMS OF THE REVOLVING CREDIT ADVANCES
AND THE FACILITY LCs............................................... 13
SECTION 2.01. Commitment.................................................. 13
SECTION 2.02. Making the Revolving Credit Advances........................ 14
SECTION 2.03. Fees........................................................ 15
SECTION 2.04. Termination or Reduction of the Commitments................. 16
SECTION 2.05. Repayment of Credit Extensions.............................. 16
SECTION 2.06. Interest on Revolving Credit Advances....................... 16
SECTION 2.07. Interest Rate Determination................................. 17
SECTION 2.08. Optional Conversion of Revolving Credit Advances............ 18
SECTION 2.09. Prepayments of Revolving Credit Advances.................... 18
SECTION 2.10. Increased Costs............................................. 19
SECTION 2.11. Illegality.................................................. 20
SECTION 2.12. Payments and Computations................................... 20
SECTION 2.13. Taxes....................................................... 21
SECTION 2.14. Sharing of Payments, Etc.................................... 23
SECTION 2.15. Use of Proceeds............................................. 24
SECTION 2.16. Facility LCs................................................ 24
SECTION 2.17. Noteless Agreement; Evidence of Indebtedness................ 27
ARTICLE III:CONDITIONS TO EFFECTIVENESS AND LENDING............................ 28
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01....... 28
SECTION 3.02. Conditions Precedent to Each Credit Extension............... 29
SECTION 3.03. Determinations Under Section 3.01........................... 30
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ARTICLE IV: REPRESENTATIONS AND WARRANTIES..................................... 30
SECTION 4.01. Representations and Warranties of the Borrower.............. 30
ARTICLE V: COVENANTS OF THE BORROWER.......................................... 32
SECTION 5.01. Affirmative Covenants....................................... 32
SECTION 5.02. Negative Covenants.......................................... 34
ARTICLE VI: EVENTS OF DEFAULT.................................................. 35
SECTION 6.01. Events of Default........................................... 35
ARTICLE VII: THE AGENT......................................................... 38
SECTION 7.01. Authorization and Action.................................... 38
SECTION 7.02. Agent's Reliance, Etc....................................... 38
SECTION 7.03. Barclays and Affiliates..................................... 39
SECTION 7.04. Lender Credit Decision...................................... 39
SECTION 7.05. Indemnification............................................. 39
SECTION 7.06. Successor Agent............................................. 40
ARTICLE VIII: MISCELLANEOUS.................................................... 40
SECTION 8.01. Amendments, Etc............................................. 40
SECTION 8.02. Notices, Etc................................................ 41
SECTION 8.03. No Waiver; Remedies......................................... 41
SECTION 8.04. Costs and Expenses.......................................... 41
SECTION 8.05. Right of Set-off............................................ 43
SECTION 8.06. Binding Effect.............................................. 43
SECTION 8.07. Assignments, Designations and Participations................ 43
SECTION 8.08. Confidentiality............................................. 47
SECTION 8.09. Governing Law............................................... 48
SECTION 8.10. Execution in Counterparts................................... 48
SECTION 8.11. Jurisdiction, Etc........................................... 48
SECTION 8.12. Waiver of Jury Trial........................................ 48
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SCHEDULES AND EXHIBITS
Schedules
Schedule I - List of Applicable Lending Offices
Schedule II - Letters of Credit
Pricing Schedule
Exhibits
Exhibit A - Form of Note (If Requested)
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Certificate by Borrower
Exhibit E - Form of Opinion of Counsel to the Borrower
Exhibit F - Form of Compliance Certificate
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TWO-YEAR CREDIT AGREEMENT (this "Agreement") dated as of May 7, 2004
among DTE ENERGY COMPANY, a Michigan corporation (the "Borrower"), the banks,
financial institutions and other institutional lenders (the "Initial Lenders")
listed on the signature pages hereof, and BARCLAYS BANK PLC ("Barclays"), as
Administrative Agent (the "Agent") and BARCLAYS BANK PLC, as Co-Syndication
Agent, and CITIGROUP GLOBAL MARKETS INC., as Co-Syndication Agent for the
Lenders (as hereinafter defined).
PRELIMINARY STATEMENTS.
The Borrower has requested that the Initial Lenders enter into this
Agreement, and the Initial Lenders have indicated their willingness to enter
into this Agreement upon the terms and conditions stated herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, the parties hereto hereby agree,
subject to the satisfaction of the conditions set forth in Article III, as
follows:
ARTICLE I: DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 5% or more of the
Voting Stock of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
Voting Stock, by contract or otherwise.
"Agent's Account" means the account of the Agent maintained by the
Agent at Barclays with its office at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Account No. ▇▇▇-▇▇▇-▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇.
"Agents" means the Agent and each Co-Syndication Agent,
collectively.
"Aggregate Outstanding Credit Exposures" means, at any time, the
aggregate of the Outstanding Credit Exposures of all the Lenders.
"Applicable LC Fee Rate" means, as of any date, the percentage rate
per annum which is applicable at such time with respect to Facility LCs as
set forth in the Pricing Schedule.
"Applicable Lending Office" means, with respect to each Lender or
any LC Issuer, such Lender's or LC Issuer's Domestic Lending Office in the
case of a Base Rate
Advance or the issuance of any Facility LC and such Lender's Eurodollar
Lending Office in the case of a Eurodollar Rate Advance.
"Applicable Margin" means, as of any date, (i) with respect to all
Base Rate Advances, 0.0% per annum, and (ii) with respect to all
Eurodollar Rate Advances, the percentage rate per annum which is
applicable at such time with respect to Eurodollar Rate Advances as set
forth in the Pricing Schedule.
"Applicable Percentage" means, as of any date, the percentage rate
per annum at which Facility Fees are accruing on each Lender's Commitment
(without regard to usage) at such time as set forth in the Pricing
Schedule.
"Applicable Utilization Fee Rate" means, as of any date, the
percentage rate per annum at which Utilization Fees accrue on all the
Aggregate Outstanding Credit Exposures at such time as set forth in the
Pricing Schedule.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"Audited Statements" means the Consolidated balance sheets of the
Borrower, DECO and MichCon as at December 31, 2003, and the related
Consolidated statements of income and cash flows of the Borrower, DECO and
MichCon for the fiscal year then ended, accompanied by the opinion thereon
of the Borrower's, DECO's and MichCon's independent public accountants.
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
highest of:
(a) the rate of interest established by Barclays in New York,
New York, from time to time, as Barclays' base rate;
(b) the sum (adjusted to the nearest 1/16 of 1% or, if there
is no nearest 1/16 of 1%, to the next higher 1/16 of 1%) of (i) 1/2
of 1% per annum, plus (ii) the rate obtained by dividing (A) the
latest three-week moving average of secondary market morning
offering rates in the United States for three-month certificates of
deposit of major United States money market banks, such three-week
moving average (adjusted to the basis of a year of 360 days) being
determined weekly on each Monday (or, if such day is not a Business
Day, on the next succeeding Business Day) for the three-week period
ending on the previous Friday by Barclays on the basis of such rates
reported by certificate of deposit dealers to and published by the
Federal Reserve Bank of New York or, if such publication shall be
suspended or terminated, on the basis of quotations for such rates
received by Barclays from three New York certificate of deposit
dealers of recognized standing selected by Barclays, by (B) a
percentage equal to 100% minus the average of the daily percentages
specified during such three-week
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period by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including, but
not limited to, any emergency, supplemental or other marginal reserve
requirement) for Barclays with respect to liabilities consisting of or
including (among other liabilities) three-month U.S. dollar non-personal
time deposits in the United States, plus (iii) the average during such
three-week period of the annual assessment rates estimated by Barclays for
determining the then current annual assessment payable by Barclays to the
Federal Deposit Insurance Corporation (or any successor) for insuring U.S.
dollar deposits of Barclays in the United States; and
(c) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance that bears interest
as provided in Section 2.06(a)(i).
"Borrower" has the meaning specified in the recital of parties to this
Agreement.
"Borrowing" means a borrowing consisting of simultaneous Revolving Credit
Advances of the same Type and (in the case of Eurodollar Rate Advances) having
the same Interest Period, made by each of the Lenders pursuant to Section 2.01.
"Business Day" means a day of the year on which banks are not required or
authorized by law to close in New York City and, if the applicable Business Day
relates to any Eurodollar Rate Advances, on which dealings are carried on in the
London interbank market.
"Capitalization" means the sum of total net worth plus Consolidated Debt.
"Collateral Shortfall Amount" has the meaning specified in Section 6.01.
"Commitment" means, for each Lender, the obligation of such Lender to make
Loans to, and participate in Facility LCs issued upon the application of, the
Borrower in an aggregate amount not exceeding the amount set forth opposite such
Lender's name on Schedule 1 hereto or if such Lender has entered into any
Assignment and Acceptance, set forth for such Lender in the Register maintained
by the Agent pursuant to Section 8.07(d), as such amount may be modified from
time to time pursuant to the terms hereof.
"Confidential Information" means information that the Borrower furnishes
to the Agent or any Lender in a writing designated as confidential, but does not
include any such information that is or becomes generally available to the
public or that is or becomes available to the Agent or such Lender from a source
other than the Borrower.
"Consolidated" refers to the consolidation of accounts in accordance with
GAAP.
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"Convert", "Conversion" and "Converted" each refers to a conversion
of Revolving Credit Advances of one Type into Revolving Credit Advances of
the other Type pursuant to Section 2.07 or 2.08.
"Credit Extension" means the making of a Revolving Credit Advance or
the issuance of a Facility LC hereunder.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services (other
than trade payables not overdue by more than 60 days incurred in the
ordinary course of such Person's business), (c) all obligations of such
Person evidenced by notes, bonds, debentures or other similar instruments,
(d) all obligations of such Person created or arising under any
conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of
the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (e) all obligations of
such Person as lessee under leases that have been or should be, in
accordance with GAAP, recorded as capital leases, (f) all obligations,
contingent or otherwise, of such Person in respect of acceptances, letters
of credit or similar extensions of credit, (g) all obligations of such
Person in respect of Hedge Agreements, (h) all Debt of others referred to
in clauses (a) through (g) above or clause (i) below guaranteed directly
or indirectly in any manner by such Person, or in effect guaranteed
directly or indirectly by such Person through an agreement (1) to pay or
purchase such Debt or to advance or supply funds for the payment or
purchase of such Debt, (2) to purchase, sell or lease (as lessee or
lessor) property, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of such Debt or to assure
the holder of such Debt against loss, (3) to supply funds to or in any
other manner invest in the debtor (including any agreement to pay for
property or services irrespective of whether such property is received or
such services are rendered) or (4) otherwise to assure a creditor against
loss, and (i) all Debt referred to in clauses (a) through (h) above
secured by (or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable for
the payment of such Debt. See the definition of "Nonrecourse Debt" below.
"DECO" means The Detroit Edison Company, a Michigan corporation
wholly owned by the Borrower.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Designating Lender" has the meaning specified in Section 8.07(h).
"Disclosed Litigation" has the meaning specified in Section 3.01(b).
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"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
to which it became a Lender, or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the Agent.
"EBITDA" means, for any period, net income (or net loss) plus the
sum of (a) interest expense, (b) income tax expense, (c) depreciation
expense and (d) amortization expense, in each case determined in
accordance with GAAP for such period less the aggregate amount, if any, of
securitization bond charges (or similar charges imposed on customers for
the purpose of servicing Securitization Bonds) collected by or on behalf
of a Securitization SPE, to the extent such charges are included in the
calculation of net income (or net loss).
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; (iii) a commercial bank organized under the laws of the United
States, or any State thereof, and having a combined capital and surplus of
at least $250,000,000; (iv) a savings and loan association or savings bank
organized under the laws of the United States, or any State thereof, and
having a combined capital and surplus of at least $250,000,000; (v) a
commercial bank organized under the laws of any other country that is a
member of the Organization for Economic Cooperation and Development or has
concluded special lending arrangements with the International Monetary
Fund associated with its General Arrangements to Borrow, or a political
subdivision of any such country, and having a combined capital and surplus
of at least $250,000,000, so long as such bank is acting through a branch
or agency located in the United States; (vi) the central bank of any
country that is a member of the Organization for Economic Cooperation and
Development; (vii) a finance company, insurance company or other financial
institution or fund (whether a corporation, partnership, trust or other
entity) that is engaged in making, purchasing or otherwise investing in
commercial loans in the ordinary course of its business and having a
combined capital and surplus of at least $250,000,000; and (viii) any
other Person approved by the Agent and, so long as no Event of Default
shall be continuing, the Borrower, such approval not to be unreasonably
withheld or delayed by either party; provided, however, that neither the
Borrower nor an Affiliate of the Borrower shall qualify as an Eligible
Assignee.
"Enterprises" means DTE Enterprises, Inc., a Michigan corporation
wholly-owned by the Borrower.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of liability
or potential liability, investigation, proceeding, consent order or
consent agreement relating in any way to any Environmental Law,
Environmental Permit or Hazardous Materials or arising from alleged injury
or threat of injury to health, safety or the environment, including,
without limitation, (a) by any governmental or regulatory authority for
enforcement, cleanup,
5
removal, response, remedial or other actions or damages and (b) by any
governmental or regulatory authority or any third party for damages,
contribution, indemnification, cost recovery, compensation or injunctive
relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment, decree
or judicial or agency interpretation, policy or guidance relating to
pollution or protection of the environment, health, safety or natural
resources, including, without limitation, those relating to the use,
handling, transportation, treatment, storage, disposal, release or
discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the Borrower's controlled group, or under common
control with the Borrower, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC, or (ii) the requirements of subsection (1) of Section
4043(b) of ERISA (without regard to subsection (2) of such Section) are
met with respect to a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9),
(10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably
expected to occur with respect to such Plan within the following 30 days;
(b) the application for a minimum funding waiver with respect to a Plan;
(c) the provision by the administrator of any Plan of a notice of intent
to terminate such Plan pursuant to Section 4041(a)(2) of ERISA (including
any such notice with respect to a plan amendment referred to in Section
4041(e) of ERISA); (d) the cessation of operations at a facility of the
Borrower or any ERISA Affiliate in the circumstances described in Section
4062(e) of ERISA; (e) the withdrawal by the Borrower or any ERISA
Affiliate from a Multiple Employer Plan during a plan year for which it
was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (f)
the conditions for the imposition of a lien under Section 302(f) of ERISA
shall have been met with respect to any Plan; (g) the adoption of an
amendment to a Plan requiring the provision of security to such Plan
pursuant to Section 307 of ERISA; or (h) the institution by the PBGC of
proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA
that constitutes grounds for the termination of, or the appointment of a
trustee to administer, a Plan.
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"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender (or, if no such office is specified,
its Domestic Lending Office), or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
Rate Advance comprising part of the same Borrowing, an interest rate per
annum equal to the rate per annum obtained by dividing (a) the average
(rounded upward to the nearest whole multiple of 1/16 of 1% per annum, if
such average is not such a multiple) of the rate per annum at which
deposits in U.S. dollars are offered by the principal office of each of
the Reference Banks in London, England to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days before the
first day of such Interest Period in an amount approximately equal to such
Reference Bank's Eurodollar Rate Advance comprising part of such Borrowing
to be outstanding during such Interest Period and for a period equal to
such Interest Period by (b) a percentage equal to 100% minus the
Eurodollar Rate Reserve Percentage for such Interest Period. The
Eurodollar Rate for any Interest Period for each Eurodollar Rate Advance
comprising part of the same Borrowing shall be determined by the Agent on
the basis of applicable rates furnished to and received by the Agent from
the Reference Banks two Business Days before the first day of such
Interest Period, subject, however, to the provisions of Section 2.07.
"Eurodollar Rate Advance" means a Revolving Credit Advance that
bears interest as provided in Section 2.06(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing means the
reserve percentage applicable two Business Days before the first day of
such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in New York
with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest rate
on Eurodollar Rate Advances is determined) having a term equal to such
Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Excluded Hedging Debt" means all Debt arising under any Hedge
Agreement in respect of fluctuations in commodity prices.
"Facility Fee" has the meaning specified in Section 2.03(a).
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"Facility LC" has the meaning specified in Section 2.16(a).
"Facility LC Application" has the meaning specified in Section
2.16(c).
"Facility LC Collateral Account" has the meaning specified in
Section 2.16(i).
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight federal funds transactions with members
of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the
next preceding Business Day) by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day that is a Business Day, the
average of the quotations for such day on such transactions received by
the Agent from three federal funds brokers of recognized standing selected
by it.
"Financial Officer" of any Person means the chief executive officer,
president, chief financial officer, any vice president, controller,
assistant controller, treasurer or any assistant treasurer of such Person.
"GAAP" has the meaning specified in Section 1.03.
"Hazardous Materials" means (a) petroleum and petroleum products,
by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas and
(b) any other chemicals, materials or substances designated, classified or
regulated as hazardous or toxic or as a pollutant or contaminant under any
Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Insufficiency" means, with respect to any Plan, the amount, if any,
of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of
ERISA.
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same Borrowing, the period commencing on the date of such
Eurodollar Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurodollar Rate Advance and ending on the last day of
the period selected by the Borrower pursuant to the provisions below and,
thereafter, with respect to Eurodollar Rate Advances, each subsequent
period commencing on the last day of the immediately preceding Interest
Period and ending on the last day of the period selected by the Borrower
pursuant to the provisions below. The duration of each such Interest
Period shall be one, two, three or six months, as the Borrower may, upon
notice received by the Agent not later than 11:00 A.M. (New York City
time) on the third Business Day prior to the first day of such Interest
Period, select; provided, however, that:
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(i) the Borrower may not select any Interest Period that ends
after the Revolver Termination Date then in effect;
(ii) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing shall
be of the same duration;
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next
succeeding Business Day, provided, however, that, if such extension
would cause the last day of such Interest Period to occur in the
next following calendar month, the last day of such Interest Period
shall occur on the next preceding Business Day; and
(iv) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Junior Subordinated Debt" means (a) subordinated junior deferrable
interest debentures of the Borrower, DECO, Enterprises or MichCon, (b) the
related preferred securities, if applicable, of Subsidiaries of the
Borrower and (c) the related subordinated guarantees, if applicable, of
the Borrower, DECO, Enterprises or MichCon, in each case, from time to
time outstanding.
"LC Fee" has the meaning specified in Section 2.03(d).
"LC Issuer" means Barclays Bank PLC or any other Lender (or, in each
case, any subsidiary or affiliate thereof designated thereby) in its
capacity as issuer of Facility LCs hereunder.
"LC Obligations" means, at any time, the sum, without duplication,
of (i) the aggregate undrawn stated amount under all Facility LCs
outstanding at such time plus (ii) the aggregate unpaid amount at such
time of all Reimbursement Obligations.
"LC Payment Date" has the meaning specified in Section 2.16(d).
"Lenders" means the Initial Lenders and each Person that shall
become a party hereto pursuant to Section 8.07(a), (b) and (c).
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on
title to real property.
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"Loan Documents" means this Agreement, the Facility LC Applications
and the Notes, in each case as amended, restated, supplemented or
otherwise modified from time to time.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower and its Subsidiaries taken as a
whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower and its Subsidiaries taken as a
whole, (b) the rights and remedies of the Agent, any LC Issuer or any
Lender under any Loan Document or (c) the ability of the Borrower to
perform its obligations under any Loan Document to which it is a party.
"Maximum Facility Amount" means $375,000,000.
"MichCon" means Michigan Consolidated Gas Company, a Michigan
corporation, wholly owned (indirectly) by the Borrower.
"Modify" and "Modification" have the respective meanings specified
in Section 2.16(a).
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"▇▇▇▇▇'▇ Rating" is defined in the Pricing Schedule.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate
is making or accruing an obligation to make contributions, or has within
any of the preceding five plan years made or accrued an obligation to make
contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any ERISA Affiliate and at least one Person other than the
Borrower and the ERISA Affiliates or (b) was so maintained and in respect
of which the Borrower or any ERISA Affiliate could have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or were to
be terminated.
"Nonrecourse Debt" means Debt of the Borrower or any of its
Subsidiaries in respect of which no recourse may be had by the creditors
under such Debt against the Borrower or such Subsidiary in its individual
capacity or against the assets of the Borrower or such Subsidiary, other
than assets which were purchased by the Borrower or such Subsidiary with
the proceeds of such Debt; it being understood that Securitization Bonds
shall constitute Nonrecourse Debt for all purposes of the Loan Documents,
except to the extent (and only to the extent) of any claims made against
DECO in respect of its indemnification obligations relating to such
Securitization Bonds.
10
"Note" has the meaning specified in Section 2.17.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Obligations" means all unpaid principal of and accrued and unpaid
interest on Revolving Credit Advances, all Reimbursement Obligations, all
accrued and unpaid fees and all expenses, reimbursements, indemnities and
other obligations of the Borrower to the Lenders or to any Lender, the
Agent, any LC Issuer or any indemnified party arising under the Loan
Documents.
"Outstanding Credit Exposure" means, as to any Lender at any time,
the sum of (i) the aggregate principal amount of its Revolving Credit
Advances outstanding at such time, plus (ii) an amount equal to its Pro
Rata Share of the LC Obligations at such time.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture, limited liability company or other entity, or a government
or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Pricing Schedule" means the Pricing Schedule identifying the
Applicable Margin, the Applicable Percentage, the Applicable LC Fee Rate
and the Applicable Utilization Fee Rate attached hereto identified as
such.
"Pro Rata Share" means, with respect to a Lender, a portion equal to
a fraction the numerator of which is such Lender's Commitment and the
denominator of which is the aggregate of all the Lenders' Commitments.
"Reference Banks" means Barclays Bank PLC and Citibank, N.A.
"Register" has the meaning specified in Section 8.07(d).
"Reimbursement Obligations" means, at any time, the aggregate of all
obligations of the Borrower then outstanding under Section 2.16 to
reimburse the applicable LC Issuer for amounts paid by such LC Issuer in
respect of any one or more drawings under Facility LCs issued by such LC
Issuer.
"Required Lenders" means at any time Lenders owed more than fifty
percent (50%) of the Aggregate Outstanding Credit Exposures at such time,
or, if the Aggregate Outstanding Credit Exposures are zero, Lenders having
more than fifty percent (50%) of the Commitments.
"Revolver Termination Date" means the earlier of (a) May 5, 2006,
and (b) the date of termination in whole of the Commitments pursuant to
Section 2.04 or 6.01.
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"Revolving Credit Advance" means an advance by a Lender to the
Borrower as part of a Borrowing, and refers to a Base Rate Advance or a
Eurodollar Rate Advance (each of which shall be a "Type" of Revolving
Credit Advance).
"S&P" means Standard & Poor's Ratings Services, a division of the
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"S&P Rating" is defined in the Pricing Schedule.
"SEC Reports" means the following reports and financial statements
of the Borrower, DECO and MichCon, as the case may be:
(i) the Borrower's, DECO's and MichCon's Annual Reports on Form 10-K
for the year ended December 31, 2003, as filed with or sent to the
Securities and Exchange Commission, including therein the Audited
Statements of the Borrower, DECO and MichCon; and
(ii) the Borrower's, DECO's and MichCon's Current Reports on Form
8-K, if any, provided to the Lenders prior to the date of this Agreement.
"SPV" has the meaning specified in Section 8.07(h).
"Securitization Bonds" means Debt of one or more Securitization
SPEs, issued pursuant to The Customer Choice and Electricity Reliability
Act, No. 142, Public Acts of Michigan, 2000, as the same may be amended
from time to time.
"Securitization SPE" means an entity established or to be
established directly or indirectly by the Borrower for the purpose of
issuing Securitization Bonds and includes The Detroit Edison
Securitization Funding LLC, a limited liability company organized under
the laws of the State of Michigan.
"Significant Subsidiary" means (i) DECO, Enterprises and MichCon,
and (ii) any other Subsidiary of the Borrower (A) the total assets (after
intercompany eliminations) of which exceed 30% of the total assets of the
Borrower and its Subsidiaries or (B) the net worth of which exceeds 30% of
the Consolidated Net Worth of the Borrower and its Subsidiaries, in each
case as shown on the audited consolidated financial statements of the
Borrower as of the end of the fiscal year immediately preceding the date
of determination.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any ERISA Affiliate and no Person other than the Borrower and
the ERISA Affiliates or (b) was so maintained and in respect of which the
Borrower or any ERISA Affiliate could have liability under Section 4069 of
ERISA in the event such plan has been or were to be terminated.
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"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the Board of Directors of
such corporation (irrespective of whether at the time capital stock of any
other class or classes of such corporation shall or might have voting
power upon the occurrence of any contingency), (b) the interest in the
capital or profits of such limited liability company, partnership or joint
venture or (c) the beneficial interest in such trust or estate is at the
time directly owned or controlled by such Person, by such Person and one
or more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries.
"Utilization Fee" has the meaning specified in Section 2.03(c).
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening
of such a contingency.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(e) ("GAAP").
ARTICLE II: AMOUNTS AND TERMS OF THE REVOLVING CREDIT ADVANCES AND THE
FACILITY LCs
SECTION 2.01. Commitment. Each Lender severally agrees, on the terms
and conditions hereinafter set forth, to (i) make Revolving Credit Advances to
the Borrower from time to time on any Business Day during the period from the
Effective Date until the Revolver Termination Date and (ii) participate in
Facility LCs issued upon the request of the Borrower from time to time, provided
that, after giving effect to the making of each such Revolving Credit Advance
and the issuance of each such Facility LC, such Lender's Outstanding Credit
Exposure shall not exceed its Commitment. Each Borrowing shall be in an
aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof and shall consist of Revolving Credit Advances of the same Type made on
the same day by the Lenders ratably according to their respective Commitments.
Within the limits of each Lender's Commitment, the Borrower may borrow under
this Section 2.01, prepay pursuant to Section 2.09 and reborrow under this
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Section 2.01. Any LC Issuer will issue Facility LCs hereunder on the terms and
conditions set forth in Section 2.16.
SECTION 2.02. Making the Revolving Credit Advances. (a) Each
Borrowing shall be made on notice, given not later than 11:00 A.M. (New York
City time) on the third Business Day prior to the date of the proposed Borrowing
in the case of a Borrowing consisting of Eurodollar Rate Advances, or 10:00 A.M.
(New York City time) on the Business Day of the proposed Borrowing in the case
of a Borrowing consisting of Base Rate Advances, by the Borrower to the Agent,
which shall give to each Lender prompt notice thereof by telecopier or telex.
Each such notice of a Borrowing (a "Notice of Borrowing") shall be by telephone,
confirmed immediately in writing, telecopier or telex in substantially the form
of Exhibit B hereto, specifying therein the requested (i) date of such
Borrowing, (ii) Type of Revolving Credit Advances comprising such Borrowing,
(iii) aggregate amount of such Borrowing, and (iv) in the case of a Borrowing
consisting of Eurodollar Rate Advances, initial Interest Period for each such
Revolving Credit Advance. Each Lender shall, before 12:00 noon (New York City
time) on the date of such Borrowing, make available for the account of its
Applicable Lending Office to the Agent at the Agent's Account, in same day
funds, such Lender's ratable portion of such Borrowing. After the Agent's
receipt of such funds and upon fulfillment of the applicable conditions set
forth in Article III, the Agent will make such funds available to the Borrower
at the Agent's address referred to in Section 8.02.
(b) Anything in subsection (a) above to the contrary notwithstanding, (i)
the Borrower may not select Eurodollar Rate Advances for any Borrowing if the
aggregate amount of such Borrowing is less than $5,000,000 or if the obligation
of the Lenders to make Eurodollar Rate Advances shall then be suspended pursuant
to Section 2.07 or 2.11 and (ii) at no time shall the sum of all Borrowings
comprising Eurodollar Rate Advances outstanding hereunder be greater than ten.
(c) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower. In the case of any Borrowing that the related Notice of Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall
indemnify each Lender against any loss, cost or expense incurred by such Lender
as a result of any failure to fulfill on or before the date specified in such
Notice of Borrowing for such Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Revolving Credit Advance to be made by such Lender as part of such Borrowing
when such Revolving Credit Advance, as a result of such failure, is not made on
such date.
(d) Unless the Agent shall have received notice from a Lender prior to the
date of any Borrowing that such Lender will not make available to the Agent such
Lender's ratable portion of such Borrowing, the Agent may assume that such
Lender has made such portion available to the Agent on the date of such
Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such
14
ratable portion available to the Agent, such Lender and the Borrower severally
agree to repay to the Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the Agent, at
(i) in the case of the Borrower, the interest rate applicable at the time to
Revolving Credit Advances comprising such Borrowing and (ii) in the case of such
Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such
corresponding amount, such amount so repaid shall constitute such Lender's
Revolving Credit Advance as part of such Borrowing for purposes of this
Agreement.
(e) The failure of any Lender to make the Revolving Credit Advance to be
made by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Revolving Credit Advance on the date
of such Borrowing, but no Lender shall be responsible for the failure of any
other Lender to make the Revolving Credit Advance to be made by such other
Lender on the date of any Borrowing.
SECTION 2.03. Fees. (a) Facility Fee. The Borrower agrees to pay to
the Agent for the account of each Lender a facility fee (the "Facility Fee") on
the aggregate amount of such Lender's Commitment from the date hereof in the
case of each Initial Lender and from effective date specified in the Assignment
and Acceptance pursuant to which it became a Lender in the case of each other
Lender until all of the Obligations have been paid in full and the Commitments
under this Agreement have been terminated at a rate per annum equal to the
Applicable Percentage in effect from time to time, payable in arrears quarterly
on the last day of each March, June, September and December, and on the Revolver
Termination Date.
(b) Agent's Fees. The Borrower shall pay to the Agent for its own
account such fees as may from time to time be agreed between the Borrower and
the Agent.
(c) Utilization Fee. If the aggregate outstanding amount of the
Aggregate Outstanding Credit Exposures hereunder exceeds thirty-three percent
(33%) of the aggregate amount of all Commitments hereunder then in effect on
such date (or, if any of the Commitments have been terminated, the aggregate
amount of all Commitments in effect immediately prior to such termination), the
Borrower will pay to the Agent for the ratable benefit of the Lenders a
utilization fee (the "Utilization Fee") at a per annum rate equal to the
Applicable Utilization Fee Rate in effect from time to time payable on the
Aggregate Outstanding Credit Exposures on such date, payable in arrears
quarterly on the last day of each March, June, September and December, and on
the Revolver Termination Date.
(d) LC Fees. The Borrower shall pay to the Agent, for the account of
the Lenders ratably in accordance with their respective Pro Rata Shares, a per
annum letter of credit fee equal to the Applicable LC Fee Rate multiplied by the
average daily undrawn stated amount under such Facility LC, such fee to be
payable in arrears quarterly on the last day of each March, June, September and
December, and on the Revolver Termination Date (each such fee described in this
sentence an "LC Fee"). The Borrower shall also pay to the applicable LC Issuer
for its own account (x) at the time of issuance of each Facility LC and on each
anniversary of the issuance thereof, an annual fronting fee in an amount to be
agreed upon between such LC Issuer and the Borrower, and (y) documentary and
processing charges in connection with the issuance
15
or Modification of and draws under Facility LCs in accordance with such LC
Issuer's standard schedule for such charges as in effect from time to time.
SECTION 2.04. Termination or Reduction of the Commitments. (a) The
Commitments shall be automatically terminated on the Revolver Termination Date.
(b) The Borrower shall have the right, upon at least three Business
Days' notice to the Agent, to terminate in whole or reduce ratably in part the
unused portions of the respective Commitments of the Lenders, provided that each
partial reduction shall be in the aggregate amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof. Once terminated, a Commitment or
portion thereof may not be reinstated.
SECTION 2.05. Repayment of Credit Extensions. The Borrower shall
repay to the Agent for the ratable account of the Lenders on the Revolver
Termination Date the Aggregate Outstanding Credit Exposures and all other unpaid
Obligations.
SECTION 2.06. Interest on Revolving Credit Advances. (a) Scheduled
Interest. The Borrower shall pay interest on the unpaid principal amount of each
Revolving Credit Advance owing to each Lender from the date of such Revolving
Credit Advance until such principal amount shall be paid in full, at the
following rates per annum:
(i) Base Rate Advances. During such periods as such Revolving Credit
Advance is a Base Rate Advance, a rate per annum equal at all times to the
sum of (x) the Base Rate in effect from time to time plus (y) the
Applicable Margin in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December
during such periods and on the date such Base Rate Advance shall be
Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such Revolving
Credit Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Revolving Credit Advance to the
sum of (x) the Eurodollar Rate for such Interest Period for such Revolving
Credit Advance plus (y) the Applicable Margin in effect from time to time,
payable in arrears on the last day of such Interest Period and, if such
Interest Period has a duration of more than three months, on each day that
occurs during such Interest Period every three months from the first day
of such Interest Period and on the date such Eurodollar Rate Advance shall
be Converted or paid in full.
(b) Default Interest. (i) Upon the occurrence and during the
continuance of an Event of Default, (x) the Borrower shall pay interest on the
unpaid principal amount of each Revolving Credit Advance owing to each Lender,
payable in arrears on the dates referred to in clause (a)(i) or (a)(ii) above,
at a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on such Revolving Credit Advance pursuant to clause (a)(i)
or (a)(ii) above and (y) the LC Fee shall be increased by 2% per annum, and (ii)
the Borrower shall pay, to the fullest extent permitted by law, the amount of
any interest, fee or other amount payable hereunder that is not paid when due,
from the date such amount shall be due until such
16
amount shall be paid in full, payable in arrears on the date such amount shall
be paid in full and on demand, at a rate per annum equal at all times to 2% per
annum above the rate per annum required to be paid on Base Rate Advances
pursuant to clause (a)(i) above.
SECTION 2.07. Interest Rate Determination. (a) Each Reference Bank
agrees to furnish to the Agent timely information for the purpose of determining
each Eurodollar Rate. If any one or more of the Reference Banks shall not
furnish such timely information to the Agent for the purpose of determining any
such interest rate, the Agent shall determine such interest rate on the basis of
timely information furnished by the remaining Reference Banks. The Agent shall
give prompt notice to the Borrower and the Lenders of the applicable interest
rate determined by the Agent for purposes of Section 2.06(a)(i) or (ii), and the
rate, if any, furnished by each Reference Bank for the purpose of determining
the interest rate under Section 2.06(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the Required
Lenders notify the Agent that the Eurodollar Rate for any Interest Period for
such Eurodollar Rate Advances will not adequately reflect the cost to such
Required Lenders of making, funding or maintaining their respective Eurodollar
Rate Advances for such Interest Period, the Agent shall forthwith so notify the
Borrower and the Lenders, whereupon (i) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance, and (ii) the obligation of the Lenders to
make, or to Convert Revolving Credit Advances into, Eurodollar Rate Advances
shall be suspended until the Agent shall notify the Borrower and the Lenders
that the circumstances causing such suspension no longer exist.
(c) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Agent will forthwith so notify the Borrower and the Lenders and such Eurodollar
Rate Advances will automatically, on the last day of the then existing Interest
Period therefor, Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $5,000,000, such Eurodollar Rate
Advances shall automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of
Default, (i) each Eurodollar Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate Advance and
(ii) the obligation of the Lenders to make, or to Convert Revolving Credit
Advances into, Eurodollar Rate Advances shall be suspended.
(f) If fewer than two Reference Banks furnish timely information to
the Agent for determining the Eurodollar Rate for any Eurodollar Rate Advances:
(i) the Agent shall forthwith notify the Borrower and the Lenders
that the interest rate cannot be determined for such Eurodollar Rate
Advances,
17
(ii) with respect to Eurodollar Rate Advances, each such Eurodollar
Rate Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance (or if such
Eurodollar Rate Advance is then a Base Rate Advance, will continue as a
Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurodollar Rate Advances
or to Convert Revolving Credit Advances into Eurodollar Rate Advances
shall be suspended until the Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer exist.
SECTION 2.08. Optional Conversion of Revolving Credit Advances. The
Borrower may on any Business Day, upon notice given to the Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Conversion and subject to the provisions of Sections 2.07 and 2.11,
Convert all Revolving Credit Advances of one Type comprising the same Borrowing
into Revolving Credit Advances of the other Type (it being understood that such
Conversion of a Revolving Credit Advance or of its Interest Period does not
constitute a repayment or prepayment of such Revolving Credit Advance);
provided, however, that any Conversion of Eurodollar Rate Advances into Base
Rate Advances shall be made only on the last day of an Interest Period for such
Eurodollar Rate Advances, any Conversion of Base Rate Advances into Eurodollar
Rate Advances shall be in an amount not less than the minimum amount specified
in Section 2.02(b) and no Conversion of any Revolving Credit Advances shall
result in more separate Borrowings than permitted under Section 2.02(b). Each
such notice of a Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Revolving Credit Advances to
be Converted, and (iii) if such Conversion is into Eurodollar Rate Advances, the
duration of the initial Interest Period for each such Eurodollar Rate Advance.
Each notice of Conversion shall be irrevocable and binding on the Borrower.
SECTION 2.09. Prepayments of Revolving Credit Advances. (a) Optional
Prepayment. The Borrower may on any Business Day, upon notice given to the Agent
not later than 11:00 A.M. (New York City time), (i) on the same day for Base
Rate Advances and (ii) on the second Business Day prior to the prepayment in the
case of Eurodollar Rate Advances stating the proposed date and aggregate
principal amount of the prepayment (and if such notice is given the Borrower
shall) prepay the outstanding principal amount of the Revolving Credit Advances
comprising part of the same Borrowing in whole or ratably in part, together with
accrued interest to the date of such prepayment on the principal amount prepaid;
provided, however, that (x) each partial prepayment shall be in an aggregate
principal amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof and (y) in the event of any such prepayment of a Eurodollar Rate
Advance, the Borrower shall be obligated to reimburse the Lenders in respect
thereof pursuant to Section 8.04(c).
(b) Mandatory Prepayment. The Borrower shall, upon five Business
Days notice from the Agent given at the request or with the consent of the
Required Lenders, prepay the Aggregate Outstanding Credit Exposures plus all
interest thereon and all other amounts payable hereunder or under the Notes, in
the event that: (i) any Person or two or more Persons acting in concert shall
have acquired beneficial ownership (within the meaning of Rule 13d-3 of
18
the Securities and Exchange Commission under the Securities Exchange Act of
1934), directly or indirectly, of Voting Stock of the Borrower (or other
securities convertible into such Voting Stock) representing 20% or more of the
combined voting power of all Voting Stock of the Borrower; or (ii) any Person or
two or more Persons acting in concert shall have acquired by contract or
otherwise, or shall have entered into a contract or arrangement that, upon
consummation, will result in its or their acquisition of the power to exercise,
directly or indirectly, a controlling influence over the management or policies
of the Borrower.
SECTION 2.10. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances (excluding for purposes
of this Section 2.10 any such increased costs resulting from (i) Taxes or Other
Taxes (as to which Section 2.13 shall govern) or participating in any Facility
LC or to any LC Issuer of agreeing to issue any Facility LC hereunder and (ii)
changes in the basis of taxation of overall net income or overall gross income
by the United States or by the foreign jurisdiction or state under the laws of
which such Lender or such LC Issuer is organized or has its Applicable Lending
Office or any political subdivision thereof), then the Borrower shall from time
to time, upon demand by such Lender or such LC Issuer (with a copy of such
demand to the Agent), pay to the Agent for the account of such Lender or such LC
Issuer, as applicable, additional amounts sufficient to compensate such Lender
or such LC Issuer, as applicable, for such increased cost. A certificate as to
the amount of such increased cost, submitted to the Borrower and the Agent by
such Lender or such LC Issuer, as applicable, shall be conclusive and binding
for all purposes, absent manifest error.
(b) If any Lender or LC Issuer determines that compliance with any
law or regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender or such LC Issuer or any corporation controlling such Lender or such LC
Issuer, as applicable, and that the amount of such capital is increased by or
based upon the existence of such Lender's commitment to lend hereunder or to
participate in Facility LCs hereunder and other commitments of this type or such
LC Issuer's issuance of Facility LCs hereunder, then, upon demand by such Lender
or such LC Issuer, as applicable, (with a copy of such demand to the Agent), the
Borrower shall pay to the Agent for the account of such Lender or such LC
Issuer, as applicable, from time to time as specified by such Lender or such LC
Issuer, as applicable, additional amounts sufficient to compensate such Lender
or such LC Issuer, as applicable, or such corporation in the light of such
circumstances, to the extent that such Lender or such LC Issuer, as applicable,
reasonably determines such increase in capital to be allocable to the existence
of such Lender's commitment to lend hereunder or to participate in Facility LCs
hereunder or such LC Issuer's issuance of Facility LCs hereunder. A certificate
as to such amounts submitted to the Borrower and the Agent by such Lender or
such LC Issuer, as applicable, shall be conclusive and binding for all purposes,
absent manifest error.
(c) In the event that a Lender demands payment from the Borrower for
amounts owing pursuant to subsection (a) or (b) of this Section 2.10, the
Borrower may, upon
19
payment of such amounts and subject to the requirements of Sections 8.04 and
8.07, substitute for such Lender another financial institution, which financial
institution shall be an Eligible Assignee and shall assume the Commitments of
such Lender and purchase the Outstanding Credit Exposures held by such Lender in
accordance with Section 8.07, provided, however, that (i) no Default shall have
occurred and be continuing, (ii) the Borrower shall have satisfied all of its
obligations in connection with the Loan Documents with respect to such Lender,
and (iii) if such assignee is not a Lender, (A) such assignee is acceptable to
the Agent and (B) the Borrower shall have paid the Agent a $3,000 administrative
fee.
SECTION 2.11. Illegality. Notwithstanding any other provision of
this Agreement, if any Lender shall notify the Agent that the introduction of or
any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that it is
unlawful, for any Lender or its Eurodollar Lending Office to perform its
obligations hereunder to make Eurodollar Rate Advances or to fund or maintain
Eurodollar Rate Advances hereunder, (i) each Eurodollar Rate Advance will
automatically, upon such demand, Convert into a Base Rate Advance or a Revolving
Credit Advance that bears interest at the rate set forth in Section 2.06(a)(i),
as the case may be, and (ii) the obligation of the Lenders to make Eurodollar
Rate Advances or to Convert Revolving Credit Advances into Eurodollar Rate
Advances shall be suspended until the Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer exist.
SECTION 2.12. Payments and Computations. (a) The Borrower shall make
each payment hereunder and under the Notes not later than 11:00 A.M. (New York
City time) on the day when due in U.S. dollars to the Agent at the Agent's
Account in same day funds and without set off, deduction or counterclaim. The
Agent will promptly thereafter cause to be distributed like funds relating to
the payment of principal or interest, facility fees or the Utilization Fee
ratably (other than amounts payable pursuant to Section 2.10, 2.13 or 8.04(c))
to the Lenders and the LC Issuers, as applicable, for the account of their
respective Applicable Lending Offices, and like funds relating to the payment of
any other amount payable to any Lender or LC Issuer to such Lender or LC Issuer
for the account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 8.07(c), from and after the effective date
specified in such Assignment and Acceptance, the Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to the
Lender assignee thereunder, and the parties to such Assignment and Acceptance
shall make all appropriate adjustments in such payments for periods prior to
such effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender and each LC Issuer,
if and to the extent payment owed to such Lender or LC Issuer is not made when
due hereunder or under the Note held by such Lender or LC Issuer, to charge from
time to time against any or all of the Borrower's accounts with such Lender or
LC Issuer any amount so due.
(c) All computations of interest based on the Base Rate shall be
made by the Agent on the basis of a year of 365 or 366 days, as the case may be,
and all computations of interest based on the Eurodollar Rate or the Federal
Funds Rate and of facility fees, the LC Fee
20
and the Utilization Fee shall be made by the Agent on the basis of a year of 360
days, in each case for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest,
facility fees, the LC Fee or Utilization Fee are payable. Each determination by
the Agent of an interest rate hereunder shall be conclusive and binding for all
purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest, facility fee, the LC
Fee or the Utilization Fee, as the case may be; provided, however, that, if such
extension would cause payment of interest on or principal of Eurodollar Rate
Advances to be made in the next following calendar month, such payment shall be
made on the next preceding Business Day.
(e) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Lenders hereunder that the
Borrower will not make such payment in full, the Agent may assume that the
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the Agent,
each Lender shall repay to the Agent forthwith on demand such amount distributed
to such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Agent, at the Federal Funds Rate.
SECTION 2.13. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.12,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender. each LC Issuer and the
Agent, taxes imposed on its overall net income, and franchise taxes imposed on
it in lieu of net income taxes, by the jurisdiction under the laws of which such
Lender, such LC Issuer or the Agent (as the case may be) is organized or any
political subdivision thereof and, in the case of each Lender, taxes imposed on
its overall net income, and franchise taxes imposed on it in lieu of net income
taxes, by the jurisdiction of such Lender's or such LC Issuer's Applicable
Lending Office or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities in
respect of payments hereunder or under the Notes being hereinafter referred to
as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder or under any Note to any Lender, any
LC Issuer or the Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.13) such Lender, such
LC Issuer or the Agent (as the case may be) receives an amount equal to the sum
it would have received had no such deductions been made, (ii) the Borrower shall
make such deductions and (iii) the Borrower shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
applicable law.
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(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or under the Notes or
from the execution, delivery or registration of, performing under, or otherwise
with respect to, this Agreement or the Notes (hereinafter referred to as "Other
Taxes").
(c) The Borrower shall indemnify each Lender, each LC Issuer and the
Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any taxes imposed by any jurisdiction on amounts payable under this
Section 2.13) imposed on or paid by such Lender or the Agent (as the case may
be) and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto. This indemnification shall be made within 30
days from the date such Lender, such LC Issuer or the Agent (as the case may be)
makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Agent, at its address referred to in Section 8.02,
the original or a certified copy of a receipt evidencing payment thereof. In the
case of any payment hereunder or under the Notes by or on behalf of the Borrower
through an account or branch outside the United States or by or on behalf of the
Borrower by a payor that is not a United States person, if the Borrower
determines that no Taxes are payable in respect thereof, the Borrower shall
furnish, or shall cause such payor to furnish, to the Agent, at such address, an
opinion of counsel acceptable to the Agent stating that such payment is exempt
from Taxes. For purposes of this subsection (d) and subsection (e), the terms
"United States" and "United States person" shall have the meanings specified in
Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender and on the date of the Assignment
and Acceptance pursuant to which it becomes a Lender in the case of each other
Lender, and from time to time thereafter as requested in writing by the Borrower
(but only so long as such Lender remains lawfully able to do so), shall provide
each of the Agent and the Borrower with two original Internal Revenue Service
Form W-8BEN or W-8ECI, as appropriate, or any successor or other form prescribed
by the Internal Revenue Service, certifying that such Lender is exempt from or
entitled to a reduced rate of United States withholding tax on payments pursuant
to this Agreement or the Notes. If the forms provided by a Lender at the time
such Lender first becomes a party to this Agreement indicates a United States
interest withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from Taxes unless and until such Lender provides
the appropriate forms certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from Taxes
for periods governed by such form; provided, however, that, if at the date of
the Assignment and Acceptance pursuant to which a Lender assignee becomes a
party to this Agreement, the Lender assignor was entitled to payments under
subsection (a) in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes shall include
(in addition to withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States withholding tax, if any,
applicable with respect to the Lender assignee on such date. If any form or
document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to
22
compute the tax payable and information required on the date hereof by Internal
Revenue Service Form W-8BEN or W-8ECI, that the Lender reasonably considers to
be confidential, the Lender shall give notice thereof to the Borrower and shall
not be obligated to include in such form or document such confidential
information.
(f) For any period with respect to which a Lender has failed to
provide the Borrower with the appropriate form described in Section 2.13(e)
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such form
otherwise is not required under the first sentence of subsection (e) above),
such Lender shall not be entitled to indemnification under Section 2.13(a) or
(c) with respect to Taxes imposed by the United States by reason of such
failure; provided, however, that should a Lender become subject to Taxes because
of its failure to deliver a form required hereunder, the Borrower shall take
such steps as the Lender shall reasonably request to assist the Lender to
recover such Taxes.
(g) In the event that a Lender demands payment from the Borrower for
amounts owing pursuant to subsection (a) or (b) of this Section 2.13, the
Borrower may, upon payment of such amounts and subject to the requirements of
Sections 8.04 and 8.07, substitute for such Lender another financial
institution, which financial institution shall be an Eligible Assignee and shall
assume the Commitments of such Lender and purchase the Outstanding Credit
Exposures held by such Lender in accordance with Section 8.07, provided,
however, that (i) no Default shall have occurred and be continuing, (ii) the
Borrower shall have satisfied all of its obligations in connection with the Loan
Documents with respect to such Lender, and (iii) if such assignee is not a
Lender, (A) such assignee is acceptable to the Agent and (B) the Borrower shall
have paid the Agent a $3,000 administrative fee.
SECTION 2.14. Sharing of Payments, Etc. If any Lender shall obtain
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) on account of the Outstanding Credit Exposures owing
to it (other than pursuant to Section 2.10, 2.13 or 8.04(c)) in excess of its
ratable share of payments on account of the Outstanding Credit Exposures
obtained by all the Lenders, such Lender shall forthwith purchase from the other
Lenders such participations in the Aggregate Outstanding Credit Exposures owing
to them as shall be necessary to cause such purchasing Lender to share the
excess payment ratably with each of them; provided, however, that if all or any
portion of such excess payment is thereafter recovered from such purchasing
Lender, such purchase from each Lender shall be rescinded and such Lender shall
repay to the purchasing Lender the purchase price to the extent of such recovery
together with an amount equal to such Lender's ratable share (according to the
proportion of (i) the amount of such Lender's required repayment to (ii) the
total amount so recovered from the purchasing Lender) of any interest or other
amount paid or payable by the purchasing Lender in respect of the total amount
so recovered. The Borrower agrees that any Lender so purchasing a participation
from another Lender pursuant to this Section 2.14 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Lender were the
direct creditor of the Borrower in the amount of such participation.
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SECTION 2.15. Use of Proceeds. The proceeds of the Revolving Credit
Advances shall be available and Facility LCs shall be issued hereunder (and the
Borrower agrees that it shall use such proceeds and Facility LCs) solely for
general corporate purposes, including commercial paper liquidity, of the
Borrower and its Subsidiaries.
SECTION 2.16. Facility LCs. (a) Issuance. Each LC Issuer hereby
agrees, on the terms and conditions set forth in this Agreement, to issue
standby letters of credit (each, a "Facility LC") and to renew, extend,
increase, decrease or otherwise modify each Facility LC ("Modify", and each such
action a "Modification"), from time to time from and including the date of this
Agreement and prior to the Revolver Termination Date upon the request of the
Borrower; provided that immediately after each such Facility LC is issued or
Modified, (i) the aggregate amount of the outstanding LC Obligations shall not
exceed $375,000,000 and (ii) the Aggregate Outstanding Credit Exposures shall
not exceed the aggregate of all the Commitments. No Facility LC shall have an
expiry date later than the earlier of (x) the fifth Business Day prior to the
Revolver Termination Date and (y) one year after its issuance; provided that any
Facility LC with a one-year term may provide for the renewal thereof for
additional one-year periods (which shall in no event extend beyond the date
referenced in clause (x) above). Subject to the terms and conditions hereof
(other than the notice required pursuant to Section 2.16(c) below, which shall
be deemed satisfied by the attached Schedule II), from and after the Effective
Date, each of the letters of credit identified in Schedule II hereto and issued
for the account of the Borrower shall be deemed to be Facility LCs issued
pursuant to this Agreement, and any reference in this Agreement to the
"issuance" of a Facility LC (or "issue" or other references to forms of such
verb in this context) shall include the deemed issuance provided hereby.
(b) Participations. Upon the issuance or Modification by any LC
Issuer of a Facility LC in accordance with this Section 2.16 (including, from
and after the Effective Date, each of the letters of credit identified in
Schedule II and deemed to be Facility LCs issued pursuant to this Agreement),
any LC Issuer shall be deemed, without further action by any party hereto, to
have unconditionally and irrevocably sold to each Lender, and each Lender shall
be deemed, without further action by any party hereto, to have unconditionally
and irrevocably purchased from any LC Issuer, a participation in such Facility
LC (and each Modification thereof) and the related LC Obligations in proportion
to its Pro Rata Share.
(c) Notice. Subject to Section 2.16(a), the Borrower shall give any
LC Issuer notice prior to 11:00 a.m. (New York City time) at least five Business
Days prior to the proposed date of issuance or Modification of each Facility LC,
specifying the beneficiary, the proposed date of issuance (or Modification) and
the expiry date of such Facility LC, and describing the proposed terms of such
Facility LC and the nature of the transactions proposed to be supported thereby.
Upon receipt of such notice, any LC Issuer shall promptly notify the Agent, and
the Agent shall promptly notify each Lender, of the contents thereof and of the
amount of such Lender's participation in such proposed Facility LC. The issuance
or Modification by the LC Issuer of any Facility LC shall, in addition to the
conditions precedent set forth in Article III (the satisfaction of which the LC
Issuer shall have no duty to ascertain), be subject to the conditions precedent
that such Facility LC shall be satisfactory to the LC Issuer and that the
Borrower shall have executed and delivered such application agreement and/or
such other instruments and agreements relating to such Facility LC as the LC
Issuer shall have reasonably requested (each, a
24
"Facility LC Application"). In the event of any conflict between the terms of
this Agreement and the terms of any Facility LC Application, the terms of this
Agreement shall control.
(d) Administration; Reimbursement by Lenders. Upon receipt from the
beneficiary of any Facility LC of any demand for payment under such Facility LC,
the LC Issuer shall notify the Agent and the Agent shall promptly notify the
Borrower and each other Lender as to the amount to be paid by any LC Issuer as a
result of such demand and the proposed payment date (the "LC Payment Date"). The
responsibility of the LC Issuer to the Borrower and each Lender shall be only to
determine that the documents (including each demand for payment) delivered under
each Facility LC in connection with such presentment shall be in conformity in
all material respects with such Facility LC. The LC Issuer shall endeavor to
exercise the same care in the issuance and administration of the Facility LCs as
it does with respect to letters of credit in which no participations are
granted, it being understood that in the absence of any gross negligence or
willful misconduct by the LC Issuer, each Lender shall be unconditionally and
irrevocably liable without regard to the occurrence of any Default or any
condition precedent whatsoever, to reimburse the LC Issuer on demand for (i)
such Lender's Pro Rata Share of the amount of each payment made by the LC Issuer
under each Facility LC to the extent such amount is not reimbursed by the
Borrower pursuant to Section 2.16 (e) below, plus (ii) interest on the foregoing
amount to be reimbursed by such Lender, for each day from the date of the LC
Issuer's demand for such reimbursement (or, if such demand is made after 11:00
a.m. (New York City time) on such date, from the next succeeding Business Day)
to the date on which such Lender pays the amount to be reimbursed by it, at a
rate of interest per annum equal to the Federal Funds Rate for the first three
days and, thereafter, at a rate of interest equal to the rate applicable to
Eurodollar Rate Advances.
(e) Reimbursement by Borrower. The Borrower shall be irrevocably and
unconditionally obligated to reimburse the LC Issuer on or before the applicable
LC Payment Date for any amounts to be paid by the LC Issuer upon any drawing
under any Facility LC, without presentment, demand, protest or other formalities
of any kind; provided that neither the Borrower nor any Lender shall hereby be
precluded from asserting any claim for direct (but not consequential) damages
suffered by the Borrower or such Lender to the extent, but only to the extent,
caused by (i) the willful misconduct or gross negligence of the LC Issuer in
determining whether a request presented under any Facility LC issued by it
complied with the terms of such Facility LC or (ii) the LC Issuer's failure to
pay under any Facility LC issued by it after the presentation to it of a request
strictly complying with the terms and conditions of such Facility LC. All such
amounts paid by the LC Issuer and remaining unpaid by the Borrower shall bear
interest, payable on demand, for each day until paid at a rate per annum equal
to (x) the rate applicable to Base Rate Advances for such day if such day falls
on or before the applicable LC Payment Date and (y) the sum of 2% plus the rate
applicable to Base Rate Advances for such day if such day falls after such LC
Payment Date. The LC Issuer will pay to each Lender ratably in accordance with
its Pro Rata Share all amounts received by it from the Borrower for application
in payment, in whole or in part, of the Reimbursement Obligation in respect of
any Facility LC issued by the LC Issuer, but only to the extent such Lender has
made payment to the LC Issuer in respect of such Facility LC pursuant to Section
2.16(d). Subject to the terms and conditions of this Agreement (including
without limitation the submission of a Notice of Borrowing in
25
compliance with Section 2.02(a) and the satisfaction of the applicable
conditions precedent set forth in Section 3.02), the Borrower may request a
Revolving Credit Advance hereunder for the purpose of satisfying any
Reimbursement Obligation.
(f) Obligations Absolute. The Borrower's obligations under this
Section 2.16 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which the
Borrower may have or have had against the LC Issuer, any Lender or any
beneficiary of a Facility LC. The Borrower further agrees with the LC Issuer and
the Lenders that the LC Issuer and the Lenders shall not be responsible for, and
the Borrower's Reimbursement Obligation in respect of any Facility LC shall not
be affected by, among other things, the validity or genuineness of documents or
of any endorsements thereon, even if such documents should in fact prove to be
in any or all respects invalid, fraudulent or forged, or any dispute between or
among the Borrower, any of its Affiliates, the beneficiary of any Facility LC or
any financing institution or other party to whom any Facility LC may be
transferred or any claims or defenses whatsoever of the Borrower or of any of
its Affiliates against the beneficiary of any Facility LC or any such
transferee. The LC Issuer shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Facility LC. The Borrower
agrees that any action taken or omitted by the LC Issuer or any Lender under or
in connection with each Facility LC and the related drafts and documents, if
done without gross negligence or willful misconduct, shall be binding upon the
Borrower and shall not put the LC Issuer or any Lender under any liability to
the Borrower. Nothing in this Section 2.16(f) is intended to limit the right of
the Borrower to make a claim against any LC Issuer for damages as contemplated
by the proviso to the first sentence of Section 2.16(e).
(g) Actions of LC Issuer. The LC Issuer shall be entitled to rely,
and shall be fully protected in relying, upon any Facility LC, draft, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document believed by it to be genuine and correct and to have been signed, sent
or made by the proper Person or Persons, and upon advice and statements of legal
counsel, independent accountants and other experts selected by the LC Issuer.
The LC Issuer shall be fully justified in failing or refusing to take any action
under this Agreement unless it shall first have received such advice or
concurrence of the Required Lenders as it reasonably deems appropriate or it
shall first be indemnified to its reasonable satisfaction by the Lenders against
any and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action. Notwithstanding any other
provision of this Section 2.16, the LC Issuer shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement in
accordance with a request of the Required Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon the
Lenders and any future holders of a participation in any Facility LC.
(h) Lenders' Indemnification. Each Lender shall, ratably in
accordance with its Pro Rata Share, indemnify the LC Issuer, its affiliates and
their respective directors, officers, agents and employees (to the extent not
reimbursed by the Borrower) against any cost, expense (including reasonable
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from such indemnitees' gross negligence or willful
misconduct or the LC
26
Issuer's failure to pay under any Facility LC after the presentation to it of a
request strictly complying with the terms and conditions of the Facility LC)
that such indemnitees may suffer or incur in connection with this Section 2.16
or any action taken or omitted by such indemnitees hereunder.
(i) Facility LC Collateral Account. The Borrower agrees that it
will, upon the request of the Agent or the Required Lenders and until the final
expiration date of any Facility LC and thereafter as long as any amount is
payable to any LC Issuer or the Lenders in respect of any Facility LC, maintain
a special collateral account pursuant to arrangements satisfactory to the Agent
(the "Facility LC Collateral Account") at the Agent's office at the address
specified pursuant to Section 8.02, in the name of the Borrower but under the
sole dominion and control of the Agent, for the benefit of the Lenders and in
which the Borrower shall have no interest other than as set forth in Section
6.01. The Borrower hereby pledges, assigns and grants to the Agent, on behalf of
and for the ratable benefit of the Lenders and any LC Issuer, a security
interest in all of the Borrower's right, title and interest in and to all funds
which may from time to time be on deposit in the Facility LC Collateral Account
to secure the prompt and complete payment and performance of the Obligations.
The Agent will invest any funds on deposit from time to time in the Facility LC
Collateral Account in certificates of deposit of the Agent having a maturity not
exceeding 30 days. Nothing in this Section 2.16(i) shall either obligate the
Agent to require the Borrower to deposit any funds in the Facility LC Collateral
Account or limit the right of the Agent to release any funds held in the
Facility LC Collateral Account in each case other than as required by Section
6.01.
(j) Rights as a Lender. In its capacity as a Lender, each LC Issuer
shall have the same rights and obligations as any other Lender.
SECTION 2.17. Noteless Agreement; Evidence of Indebtedness.
(a) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Credit Extension made by such Lender from time to
time, including the amounts of principal and interest payable and paid to such
Lender from time to time hereunder.
(b) The Agent shall also maintain accounts in which it will record
(i) the date and the amount of each Credit Extension made hereunder and the
Interest Period, if any, applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder, (iii) the effective date and amount of each Assignment and
Acceptance delivered to and accepted by it and the parties thereto pursuant to
Section 8.07, (iv) the amount of any sum received by the Agent hereunder from
the Borrower and each Lender's share thereof, (v) the original stated amount of
each Facility LC and the amount of LC Obligations outstanding at any time, and
(vi) all other appropriate debits and credits as provided in this Agreement,
including, without limitation, all fees, charges, expenses and interest.
(c) The entries maintained in the accounts maintained pursuant to
clauses (a) and (b) above shall be prima facie evidence of the existence and
amounts of the Obligations
27
hereunder and under the Notes therein recorded; provided, however, that the
failure of the Agent or any Lender to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
such Obligations in accordance with their terms.
(d) Any Lender may request that its Revolving Credit Advances be
evidenced by a promissory note representing its Revolving Credit Advances
substantially in the form of Exhibit A (each, a "Note"). In such event, the
Borrower shall prepare, execute and deliver to such Lender such Note payable to
the order of such Lender. Thereafter, the Revolving Credit Advances evidenced by
each such Note and interest thereon shall at all times (including after any
assignment pursuant to Section 8.07) be represented by one or more Notes payable
to the order of the payee named therein or any assignee pursuant to Section
8.07, except to the extent that any such Lender or assignee subsequently returns
any such Note for cancellation and requests that such Revolving Credit Advances
once again be evidenced as described in clauses (a) and (b) above.
ARTICLE III: CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01.
Section 2.01 of this Agreement shall become effective on and as of the date
hereof (the "Effective Date"), provided that the following conditions precedent
have been satisfied on such date:
(a) There shall have occurred no Material Adverse Change since
December 31, 2003.
(b) There shall exist no action, suit, investigation, litigation or
proceeding affecting the Borrower or any of its Significant Subsidiaries pending
or threatened before any court, governmental agency or arbitrator that (i) could
be reasonably likely to have a Material Adverse Effect other than the matters
disclosed or contemplated in the SEC Reports (the "Disclosed Litigation") or
(ii) purports to affect the legality, validity or enforceability of any Loan
Document or the consummation of the transactions contemplated hereby and there
shall have been no adverse change in the status, or financial effect on the
Borrower or any of its Significant Subsidiaries of the Disclosed Litigation from
that disclosed or contemplated in the SEC Reports.
(c) The Lenders shall have been given such access, as such Lenders
have reasonably requested, to the management, records, books of account,
contracts and properties of the Borrower and its Significant Subsidiaries as
they shall have requested.
(d) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall have
been obtained (without the imposition of any conditions that are not acceptable
to the Lenders) and shall remain in effect, and no law or regulation shall be
applicable in the reasonable judgment of the Lenders that restrains, prevents or
imposes materially adverse conditions upon the transactions contemplated by the
Loan Documents.
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(e) The Borrower shall have notified each Lender and the Agent in
writing as to the proposed Effective Date.
(f) The Borrower shall have paid all accrued fees and reasonable
expenses of the Agent and the Lenders with respect to this Agreement for which
the Agent shall have made reasonable demand in accordance with Section 8.04 on
or prior to the Effective Date.
(g) On the Effective Date, the following statements shall be true
and the Agent shall have received for the account of each Lender a certificate
signed by a duly authorized officer of the Borrower, dated the Effective Date,
stating that:
(i) The representations and warranties contained in Section
4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes
a Default.
(iii) The Borrower shall have delivered a certificate,
substantially in the form of Exhibit D hereto, signed on behalf of
the Borrower by a Financial Officer of the Borrower.
(h) The Agent shall have received on or before the Effective Date
the following, each dated such day, in form and substance satisfactory to the
Agent and (except for any Notes requested by the Lenders) in sufficient copies
for each Lender:
(i) Notes, if any, to the order of each Lender requesting the
issuance of a Note as of the Closing Date pursuant to Section 2.17.
(ii) Certified copies of the resolutions of the Board of
Directors of the Borrower approving each Loan Document to which it
is a party, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to
each Loan Document to which it is a party.
(iii) A certificate of the Corporate Secretary or an Assistant
Corporate Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to sign each
Loan Document to which it is a party and the other documents to be
delivered hereunder or thereunder.
(iv) Copies of the SEC Reports.
(v) A favorable opinion of ▇.▇. ▇▇▇▇▇▇, the Associate General
Counsel of the Borrower, substantially in the form of Exhibit E
hereto and as to such other matters as any Lender through the Agent
may reasonably request.
SECTION 3.02. Conditions Precedent to Each Credit Extension. The
obligation of each Lender to make a Revolving Credit Advance on the occasion of
each Borrowing or any LC Issuer to issue a Facility LC shall be subject to the
conditions precedent that the Effective Date shall have occurred and on the date
of such Borrowing or issuance of such
29
Facility LC (a) the following statements shall be true (and each of the giving
of the applicable Notice of Borrowing and the acceptance by the Borrower of the
proceeds of such Borrowing or the request for the issuance of any Facility LC
hereunder shall constitute a representation and warranty by the Borrower that on
the date of such Borrowing or issuance of such Facility LC such statements are
true):
(i) the representations and warranties contained in Section
4.01 are correct on and as of the date of such Credit Extension,
before and after giving effect to such Credit Extension and to the
application of the proceeds therefrom, as though made on and as of
such date, and
(ii) no event has occurred and is continuing, or would result
from such Credit Extension or from the application of the proceeds
therefrom, that constitutes a Default;
and (b) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
SECTION 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the Borrower,
by notice to the Lenders, designates as the proposed Effective Date, specifying
its objection thereto. The Agent shall promptly notify the Lenders of the
occurrence of the Effective Date.
ARTICLE IV: REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation.
(b) The execution, delivery and performance by the Borrower of the
Loan Documents to which it is a party, and the consummation of the transactions
contemplated hereby and thereby, are within the Borrower's corporate powers,
have been duly authorized by all necessary corporate action, and do not
contravene (i) the Borrower's charter or by-laws or (ii) law or any contractual
restriction binding on or affecting the Borrower.
(c) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body or any other
third party is required for the due execution, delivery and performance by the
Borrower of this Agreement, the Notes or any other Loan Document to which it is
a party.
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(d) This Agreement has been, and each of the Notes and each of the
other Loan Documents to which it is a party when delivered hereunder will have
been, duly executed and delivered by the Borrower. This Agreement is, and each
of the Notes and each of the other Loan Documents to which it is a party when
delivered hereunder will be, the legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with their respective
terms, subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors rights generally.
(e) The Audited Statements of the Borrower, DECO and MichCon, copies
of each of which have been furnished to each Lender, fairly present the
Consolidated financial condition, results of operations and cash flows of the
relevant Persons and entities, as at the dates and for the periods therein
indicated, all in accordance with generally accepted accounting principles
consistently applied. Since December 31, 2003, there has been no Material
Adverse Change, except as shall have been disclosed or contemplated in the SEC
Reports.
(f) There is no pending or threatened action, suit, investigation,
litigation or proceeding, including, without limitation, any Environmental
Action, affecting the Borrower or any of the Significant Subsidiaries before any
court, governmental agency or arbitrator that (i) could be reasonably likely to
have a Material Adverse Effect (other than the Disclosed Litigation) or (ii)
purports to affect the legality, validity or enforceability of this Agreement,
any Note or any other Loan Document or the consummation of the transactions
contemplated hereby and there has been no adverse change in the status of any
Disclosed Litigation, or its financial effect on the Borrower or any of the
Significant Subsidiaries from that disclosed or contemplated in the SEC Reports
that could be reasonably likely to have a Material Adverse Effect.
(g) The operations and properties of the Borrower and each of the
Significant Subsidiaries comply in all material respects with all applicable
Environmental Laws and Environmental Permits, all past non-compliance with such
Environmental Laws and Environmental Permits has been resolved without ongoing
obligations or costs, except as disclosed or contemplated in the SEC Reports,
and no circumstances exist that could be reasonably likely to (i) form the basis
of an Environmental Action against the Borrower or any of the Significant
Subsidiaries or any of their properties that could have a Material Adverse
Effect or (ii) cause any such property to be subject to any restrictions on
ownership, occupancy, use or transferability under any Environmental Law that
could have a Material Adverse Effect.
(h) No ERISA Event has occurred or is reasonably expected to occur
with respect to any Plan.
(i) Schedule B (Actuarial Information) to the most recent annual
report (Form 5500 Series) for each Plan, copies of which have been filed with
the Internal Revenue Service, is complete and accurate and fairly presents the
funding status of such Plan, and since the date of such Schedule B there has
been no material adverse change in such funding status.
(j) Neither the Borrower nor any ERISA Affiliate has incurred or is
reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan.
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(k) Neither the Borrower nor any ERISA Affiliate has been notified
by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or has been terminated, within the meaning of Title IV of ERISA,
and no such Multiemployer Plan is reasonably expected to be in reorganization or
to be terminated, within the meaning of Title IV of ERISA.
(l) Except as set forth in the financial statements referred to in
subsection (e) above, the Borrower and its Subsidiaries have no material
liability with respect to "expected post retirement benefit obligations" within
the meaning of Statement of Financial Accounting Standards No. 106.
(m) The Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve System),
and no proceeds of any Credit Extension will be used to purchase or carry any
margin stock or to extend credit to others for the purpose of purchasing or
carrying any margin stock; and after applying the proceeds of each Credit
Extension hereunder, margin stock (within the meaning of Regulation U issued by
the Board of Governors of the Federal Reserve System) constitutes less than
twenty-five percent (25%) of the value of those assets of the Borrower and its
Subsidiaries which are subject to any limitation on sale or pledge, or any other
restriction hereunder.
(n) Neither the Borrower nor any of its Subsidiaries is, or after
the making of any Credit Extension or the application of the proceeds or
repayment thereof, or the consummation of any of the other transactions
contemplated hereby, will be, an "investment company", or an "affiliated person"
of, or "promoter" or "principal underwriter" for, an "investment company"
(within the meaning of the Investment Company Act of 1940, as amended).
(o) At all times the Borrower is exempt from being required to seek
approval to perform its obligations under the Loan Documents pursuant to Rule 2
of the Rules and Regulations promulgated pursuant to the Public Utility Holding
Company Act of 1935, as amended.
ARTICLE V: COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Outstanding
Credit Exposure shall remain unpaid or any Lender shall have any Commitment
hereunder, the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable laws,
rules, regulations and orders, such compliance to include, without limitation,
compliance with ERISA and Environmental Laws.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent, (i)
all taxes, assessments and governmental charges or levies imposed upon it or
upon its property and (ii) all
32
lawful claims that, if unpaid, might by law become a Lien upon its property;
provided, however, that neither the Borrower nor any of its Subsidiaries shall
be required to pay or discharge any such tax, assessment, charge or claim that
is being contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained, unless and until any Lien resulting
therefrom attaches to its property and becomes enforceable against its other
creditors.
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar properties
(including customary self-insurance) in the same general areas in which the
Borrower or such Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve and maintain
its corporate existence, rights (charter and statutory) and franchises;
provided, however, that the Borrower shall not be required to preserve any right
or franchise if the Board of Directors of the Borrower or such Subsidiary shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Borrower and that the loss thereof is not disadvantageous in
any material respect to the Borrower or the Lenders.
(e) Visitation Rights. At any reasonable time and from time to time,
permit the Agent or any of the Lenders or any agents or representatives thereof,
to examine and make copies of and abstracts from the records and books of
account of, and visit the properties of, the Borrower and any of the Significant
Subsidiaries, and to discuss the affairs, finances and accounts of the Borrower
and any of the Significant Subsidiaries with any of their officers or directors
and with their independent certified public accountants.
(f) Keeping of Books. Keep, and cause each of its Significant
Subsidiaries to keep, proper books of record and account, in which full and
correct entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary in accordance with generally
accepted accounting principles in effect from time to time.
(g) Maintenance of Properties, Etc. Subject to clause (d) above,
maintain and preserve, and cause each of its Significant Subsidiaries to
maintain and preserve, all of their respective properties that are used or
useful in the conduct of their respective businesses in good working order and
condition, ordinary wear and tear excepted.
(h) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 65 days after
the end of each of the first three quarters of each fiscal year of
the Borrower, Consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such quarter and
Consolidated statements of income and cash flows of the Borrower and
its Subsidiaries for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter;
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(ii) as soon as available and in any event within 115 days
after the end of each fiscal year of the Borrower, a copy of the
annual report to Shareholders for such year for the Borrower and its
Consolidated Subsidiaries, containing the Consolidated balance sheet
of the Borrower and its Consolidated Subsidiaries as of the end of
such fiscal year and Consolidated statements of income and cash
flows of the Borrower and its Subsidiaries for such fiscal year, in
each case accompanied by an opinion by Deloitte & Touche LLP or
other independent public accountants acceptable to the Required
Lenders;
(iii) together with the financial statements required under
clauses (i) or (ii) above, a compliance certificate in substantially
the form of Exhibit F signed by a Financial Officer of the Borrower
showing the then current information and calculations necessary to
determine the Applicable Margin, the Applicable Percentage and the
Applicable Utilization Fee Rate and compliance with this Agreement
and stating that no Event of Default or Default exists, or if any
Event of Default or Default exists, stating the nature and status
thereof;
(iv) as soon as possible and in any event within five days
after the occurrence of each Default continuing on the date of such
statement, a statement of a Financial Officer of the Borrower
setting forth details of such Default and the action that the
Borrower has taken and proposes to take with respect thereto;
(v) as soon as possible and in any event within five days
after any change in the Borrower's ▇▇▇▇▇'▇ Rating or S&P Rating,
notice thereof;
(vi) reasonably promptly after the sending or filing thereof
copies of all reports and registration statements that the Borrower
or any Subsidiary filed with the Securities and Exchange Commission
or any national securities exchange;
(vii) promptly after the commencement thereof, notice of all
actions and proceedings before any court, governmental agency or
arbitrator affecting the Borrower or any of its Subsidiaries of the
type described in Section 4.01(f); and
(viii) such other information respecting the Borrower or any
of its Subsidiaries as any Lender through the Agent may from time to
time reasonably request.
SECTION 5.02. Negative Covenants. At all times on and after the
Effective Date so long as any Outstanding Credit Exposure shall remain unpaid or
any Lender shall have any Commitment hereunder, the Borrower will not:
(a) Liens, Etc. Create or suffer to exist, or permit any Significant
Subsidiary to create or suffer to exist, any Lien on or with respect to any
shares of any class of equity securities (including, without limitation, Voting
Stock) of any Significant Subsidiary, whether such shares are now owned or
hereafter acquired.
34
(b) Debt. Create, incur, assume or suffer to exist any Debt except
Debt that is expressly or effectively pari passu with or expressly subordinated
to the Debt of the Borrower hereunder.
(c) Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to, any Person, or permit any Significant
Subsidiary to do so, except that (i) any Significant Subsidiary may merge or
consolidate with or into any other Significant Subsidiary, (ii) any Significant
Subsidiary may merge into or dispose of assets to the Borrower, and (iii) the
Borrower may merge or consolidate with or into any other Person so long as the
Borrower shall be the surviving entity and has, after giving effect to such
merger or consolidation, senior unsecured Debt outstanding rated at least BBB-
by S&P and Baa3 by ▇▇▇▇▇'▇; provided, in each case, that no Default shall have
occurred and be continuing at the time of such proposed transaction or would
result therefrom.
(d) Change in Nature of Business. Make, or permit any of its
Significant Subsidiaries (including Enterprises and MichCon) to make, any
material change in the nature of its business as carried on the date hereof,
other than as disclosed or contemplated in the SEC Reports.
(e) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or reporting
practices, except as required or permitted by generally accepted accounting
principles.
ARTICLE VI: EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Revolving
Credit Advance when the same becomes due and payable; or the Borrower shall fail
to pay any Reimbursement Obligation within one Business Day after the same
becomes due and payable; or the Borrower shall fail to pay any interest on any
Outstanding Credit Exposure or make any other payment of fees or other amounts
payable under this Agreement or any Note within three Business Days after the
same becomes due and payable; or
(b) Any representation or warranty made by the Borrower herein, by
the Borrower (or any of its officers) in connection with this Agreement shall
prove to have been incorrect in any material respect when made; or
(c) (i) The Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 2.09(b), 5.01(d), (e) or (h) or 5.02,
or (ii) the Borrower shall fail to perform or observe any other term, covenant
or agreement contained in any Loan Document on its part to be performed or
observed if such failure shall remain unremedied for 10 days after written
notice thereof shall have been given to the Borrower by the Agent or any Lender;
or
35
(d) The Borrower or any of its Significant Subsidiaries shall fail
to pay any principal of or premium or interest on any Debt that is outstanding
in a principal or notional amount of at least $25,000,000 in the aggregate (but
excluding Debt outstanding hereunder and Nonrecourse Debt) of the Borrower or
such Significant Subsidiary (as the case may be), when the same becomes due and
payable (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such Debt;
or any other event shall occur or condition shall exist under any agreement or
instrument relating to any such Debt and shall continue after the applicable
grace period, if any, specified in such agreement or instrument, if the effect
of such event or condition is to accelerate, or to permit the acceleration of,
the maturity of such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid or redeemed (other than by a regularly
scheduled required prepayment or redemption), purchased or defeased, or an offer
to prepay, redeem, purchase or defease such Debt shall be required to be made,
in each case prior to the stated maturity thereof; or
(e) The Borrower or any of its Significant Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general assignment for
the benefit of creditors; or any proceeding shall be instituted by or against
the Borrower or any of its Significant Subsidiaries seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for it or for any
substantial part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it), either such proceeding shall
remain undismissed or unstayed for a period of 30 days, or any of the actions
sought in such proceeding (including, without limitation, the entry of an order
for relief against, or the appointment of a receiver, trustee, custodian or
other similar official for, it or for any substantial part of its property)
shall occur; or the Borrower or any of its Significant Subsidiaries shall take
any corporate action to authorize any of the actions set forth above in this
subsection (e); or
(f) Any judgment or order for the payment of money, individually or
in the aggregate, in excess of $25,000,000 shall be rendered against the
Borrower or any of its Significant Subsidiaries and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order or (ii) there shall be any period of 10 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(g) Any non-monetary judgment or order shall be rendered against the
Borrower or any of its Significant Subsidiaries that could be reasonably
expected to have a Material Adverse Effect, and there shall be any period of 10
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or
(h) The Borrower shall at any time cease to hold directly or
indirectly 100% of the Voting Stock of DECO and MichCon; or
36
(i) The Borrower or any of its ERISA Affiliates shall incur, or, in
the reasonable opinion of the Required Lenders, shall be reasonably likely to
incur liability in excess of $25,000,000 individually or in the aggregate as a
result of one or more of the following: (i) the occurrence of any ERISA Event;
(ii) the partial or complete withdrawal of the Borrower or any of its ERISA
Affiliates from a Multiemployer Plan; or (iii) the reorganization or termination
of a Multiemployer Plan; or
(j) The Borrower and its Subsidiaries, on a Consolidated basis,
shall at any time cease to:
(i) Maintain a ratio of Consolidated EBITDA to interest
expense on all Debt (excluding (A) all Nonrecourse Debt of the
Borrower and its Subsidiaries, (B) Excluded Hedging Debt and (C) the
Junior Subordinated Debt) of not less than 2:1 for each twelve-month
period ending on the last day of September, December, March and June
of each year, or
(ii) Maintain a ratio of Consolidated Debt (excluding (A) all
Nonrecourse Debt of the Borrower and its Subsidiaries, (B) Excluded
Hedging Debt and (C) the Junior Subordinated Debt) to Capitalization
of not greater than .65:1; or
(k) any provision of any of the Loan Documents after delivery
thereof pursuant to Section 3.01 shall for any reason cease to be valid and
binding on or enforceable against the Borrower, or the Borrower shall so state
in writing;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the
obligation of each Lender and each LC Issuer to make Credit Extensions to be
terminated, whereupon the same shall forthwith terminate, (ii) shall at the
request, or may with the consent, of the Required Lenders, by notice to the
Borrower, declare the Aggregate Outstanding Credit Exposures, all interest
thereon and all other amounts payable under this Agreement to be forthwith due
and payable, whereupon the Aggregate Outstanding Credit Exposures, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower and (iii) shall at the request, or
may with the consent, of the Required Lenders upon notice to the Borrower and in
addition to the continuing right to demand payment of all amounts payable under
this Agreement, make demand on the Borrower to pay, and the Borrower will,
forthwith upon such demand and without any further notice or act, pay to the
Agent the Collateral Shortfall Amount (as defined below), which funds shall be
deposited in the Facility LC Collateral Account; provided, however, that in the
event of an actual or deemed entry of an order for relief with respect to the
Borrower under the Federal Bankruptcy Code, (A) the obligation of each Lender
and each LC Issuer to make Credit Extensions shall automatically be terminated,
(B) the Aggregate Outstanding Credit Exposures, all such interest and all such
amounts shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly
waived by the Borrower, and (C) the Borrower shall pay to the Agent an amount in
immediately available funds, which funds shall be held in the Facility LC
Collateral Account,
37
equal to the difference of (x) the amount of LC Obligations at such time, less
(y) the amount on deposit in the Facility LC Collateral Account at such time
which is free and clear of all rights and claims of third parties and has not
been applied against the Obligations (such difference, the "Collateral Shortfall
Amount"). If at any time while any Default is continuing, the Agent determines
that the Collateral Shortfall Amount at such time is greater than zero, the
Agent may make demand on the Borrower to pay, and the Borrower will, forthwith
upon such demand and without any further notice or act, pay to the Agent the
Collateral Shortfall Amount, which funds shall be deposited in the Facility LC
Collateral Account. The Agent may at any time or from time to time after funds
are deposited in the Facility LC Collateral Account, apply such funds to the
payment of the Obligations and any other amounts as shall from time to time have
become due and payable by the Borrower to the Lenders or the LC Issuer under the
Loan Documents. At any time while any Default is continuing, neither the
Borrower nor any Person claiming on behalf of or through the Borrower shall have
any right to withdraw any of the funds held in the Facility LC Collateral
Account. After all of the Obligations have been indefeasibly paid in full and
the aggregate Commitments have been terminated, any funds remaining in the
Facility LC Collateral Account shall be returned by the Agent to the Borrower or
paid to whomever may be legally entitled thereto at such time.
ARTICLE VII: THE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement as are delegated to the
Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement or collection of the
Outstanding Credit Exposures), the Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Lenders (or all of the Lenders to the
extent required by the terms of this Agreement), and such instructions shall be
binding upon all Lenders and all holders of Outstanding Credit Exposures;
provided, however, that the Agent shall not be required to take any action that
exposes the Agent to personal liability or that is contrary to this Agreement or
applicable law. The Agent agrees to give to each Lender prompt notice of each
notice given to it by the Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor any of
its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may treat
the payee in respect of any Outstanding Credit Exposure as the owner thereof
until the Agent receives and accepts an Assignment and Acceptance entered into
by the Lender that is the payee in respect of such Outstanding Credit Exposure,
as assignor, and an Eligible Assignee, as assignee, as provided in Section 8.07;
(ii) may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected
38
by it and shall not be liable for any action taken or omitted to be taken in
good faith by it in accordance with the advice of such counsel, accountants or
experts; (iii) makes no warranty or representation to any Lender and shall not
be responsible to any Lender for any statements, warranties or representations
(whether written or oral) made in or in connection with this Agreement; (iv)
shall not have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of this Agreement on the
part of the Borrower or to inspect the property (including the books and
records) of the Borrower; (v) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of, or the perfection or priority of any lien or security interest created or
purported to be created under or in connection with, any Loan Document or any
other instrument or document furnished pursuant hereto; and (vi) shall incur no
liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier,
telegram or telex) believed by it to be genuine and signed or sent by the proper
party or parties.
SECTION 7.03. Barclays and Affiliates. With respect to its
Commitment, the Credit Extensions made by it and any Note issued to it, Barclays
shall have the same rights and powers under this Agreement as any other Lender
and may exercise the same as though it were not the Agent; and the term "Lender"
or "Lenders" shall, unless otherwise expressly indicated, include Barclays in
its individual capacity. Barclays and its Affiliates may accept deposits from,
lend money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, the
Borrower, any of its Subsidiaries and any Person who may do business with or own
securities of the Borrower or any such Subsidiary, all as if Barclays were not
the Agent and without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that
it has, independently and without reliance upon the Agent or any other Lender
and based on the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to indemnify the
Agent (to the extent not reimbursed by the Borrower), ratably according to the
respective principal amounts of their respective Outstanding Credit Exposures
(or if the Aggregate Outstanding Credit Exposures are zero or if any Credit
Extensions are owing to Persons that are not Lenders, ratably according to the
respective amounts of their Commitments), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the Agent in any way relating to or
arising out of any Loan Document or any action taken or omitted by the Agent
under any Loan Document, provided that no Lender shall be liable for any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the Agent's
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gross negligence or willful misconduct. Without limitation of the foregoing,
each Lender agrees to reimburse the Agent promptly upon demand for its ratable
share of any out-of-pocket expenses (including counsel fees) incurred by the
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, any Loan Document, to the extent that the Agent is not
reimbursed for such expenses by the Borrower.
SECTION 7.06. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrower and may be removed
at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent, which shall be a commercial bank organized
under the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least $50,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
ARTICLE VIII: MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following: (a)
waive any of the conditions specified in Section 3.01, (b) increase the
Commitments of the Lenders or subject the Lenders to any additional obligations,
(c) reduce the principal of, or interest on, the Outstanding Credit Exposures or
any fees or other amounts payable hereunder, (d) postpone any date fixed for any
payment of principal of, or interest on, the Outstanding Credit Exposures or any
fees or other amounts payable hereunder, (e) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Outstanding
Credit Exposures, or the number of Lenders, that shall be required for the
Lenders or any of them to take any action hereunder, (f) extend the expiry date
of any Facility LC to a date after the Revolver Termination Date or forgive all
or any portion of any Reimbursement Obligation, (g) alter the manner in which
payments or prepayments of principal, interest or other amounts hereunder shall
be applied or shared as among the Lenders or Types of Revolving Credit Advances,
or (h) amend this Section 8.01; and provided further that no
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amendment, waiver or consent shall, unless in writing and signed by the Agent in
addition to the Lenders required above to take such action, affect the rights or
duties of the Agent under this Agreement or any Note; and provided further that
no amendment, waiver or consent shall, unless in writing and signed by the
applicable LC Issuer in addition to the Lenders required above to take such
action, affect the rights and duties of such LC Issuer under this Agreement or
any Facility LC.
SECTION 8.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic or
telex communication) and mailed, telecopied, telegraphed, telexed or delivered,
if to the Borrower, at its address at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Treasurer; if to any Initial Lender, at its Domestic Lending Office
specified opposite its name on Schedule I hereto; if to any other Lender, at its
Domestic Lending Office specified in the Assignment and Acceptance pursuant to
which it became a Lender; and if to the Agent, at its address at ▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇; or, as to the
Borrower or the Agent, at such other address as shall be designated by such
party in a written notice to the other parties and, as to each other party, at
such other address as shall be designated by such party in a written notice to
the Borrower and the Agent. All such notices and communications shall, when
mailed, telecopied, telegraphed or telexed, be effective when deposited in the
mails, telecopied, delivered to the telegraph company or confirmed by telex
answerback, respectively, except that notices and communications to the Agent
pursuant to Article II, III or VII shall not be effective until received by the
Agent. Delivery by telecopier of an executed counterpart of any amendment or
waiver of any provision of this Agreement or the Notes or of any Exhibit hereto
to be executed and delivered hereunder shall be effective as delivery of a
manually executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any
Lender or the Agent to exercise, and no delay in exercising, any right hereunder
or under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to pay on
demand, upon presentation of a statement of account and absent manifest error,
all reasonable costs and reasonable expenses of the Agent in connection with the
preparation, execution, delivery, administration, modification and amendment of
this Agreement, the Notes, each other Loan Document and the other documents to
be delivered hereunder and thereunder, including, without limitation, (A) all
due diligence, syndication (including printing, distribution and bank meetings),
transportation, computer, duplication, appraisal, consultant, and audit expenses
and (B) the reasonable fees and reasonable expenses of counsel for the Agent
with respect thereto and with respect to advising the Agent as to its rights and
responsibilities under the Loan Documents. The Borrower further agrees to pay on
demand all reasonable costs and reasonable expenses of the Agent, each LC Issuer
and the Lenders, if any (including, without limitation, reasonable internal and
external counsel fees and expenses, provided such fees and expenses are not
duplicative), in connection with the "workout", restructuring or enforcement
(whether through negotiations, legal proceedings or otherwise) of this
Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, reasonable fees and expenses of counsel for the
Agent, each LC Issuer and each Lender in connection with the enforcement of
rights under this Section 8.04(a).
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(b) The Borrower agrees to indemnify, to the extent legally
permissible, and hold harmless the Agent, each LC Issuer and each Lender and
each of their Affiliates and their officers, directors, employees, agents and
advisors (each, an "Indemnified Party") from and against any and all claims,
damages, losses, liabilities and expenses (including, without limitation,
reasonable fees and expenses of counsel) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of, or in connection with the preparation for a
defense of, any investigation, litigation or proceeding arising out of, related
to or in connection with (i) the Notes, this Agreement, the other Loan
Documents, any Facility LC, any of the transactions contemplated herein or
therein or the actual or proposed use of the proceeds of the Credit Extensions
or (ii) the actual or alleged presence of Hazardous Materials on any property of
the Borrower or any of its Subsidiaries or any Environmental Action relating in
any way to the Borrower or any of its Subsidiaries, in each case whether or not
such investigation, litigation or proceeding is brought by the Borrower, its
directors, shareholders or creditors or an Indemnified Party or any other Person
or any Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated, except to the extent such
claim, damage, loss, liability or expense is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct; provided that the
Borrower shall not be required to indemnify the LC Issuer or the Agent for any
claims, damages, losses, liabilities or expenses to the extent, but only to the
extent, caused by (x) the willful misconduct or gross negligence of the LC
Issuer in determining whether a request presented under any Facility LC complied
with the terms of such Facility LC or (y) the LC Issuer's failure to pay under
any Facility LC after the presentation to it of a request strictly complying
with the terms and conditions of such Facility LC. The Borrower also agrees not
to assert any claim against the Agent, any LC Issuer, any Lender, any of their
Affiliates, or any of their respective directors, officers, employees, attorneys
and agents, on any theory of liability, for special, indirect, consequential or
punitive damages arising out of or otherwise relating to the Notes, this
Agreement, the other Loan Documents, any Facility LC, any of the transactions
contemplated herein or therein or the actual or proposed use of the proceeds of
the Credit Extensions.
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made by the Borrower to or for the account of a Lender other
than on the last day of the Interest Period for such Revolving Credit Advance,
as a result of a payment or Conversion pursuant to Section 2.07(d) or (e), 2.09
or 2.11, acceleration of the maturity of the Revolving Credit Advances pursuant
to Section 6.01, or for any other reason, the Borrower shall, upon demand by
such Lender (with a copy of such demand to the Agent), pay to the Agent for the
account of such Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses that it may reasonably incur as a result of
such payment or Conversion, including, without limitation, any loss (including
loss of anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by any Lender to
fund or maintain such Credit Extension.
(d) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
Sections 2.10, 2.13 and
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8.04 shall survive the payment in full of principal, interest and all other
amounts payable hereunder and under the Notes.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and during
the continuance of any Event of Default and (ii) the making of the request or
the granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Aggregate Outstanding Credit Exposures due and payable pursuant to
the provisions of Section 6.01, each Lender, each LC Issuer and each of its
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender, such LC Issuer or such
Affiliate to or for the credit or the account of the Borrower against any and
all of the obligations of the Borrower now or hereafter existing under the Loan
Documents and any Note held by such Lender or such LC Issuer, whether or not
such Lender or such LC Issuer shall have made any demand under this Agreement or
such Note and although such obligations may be unmatured. Each Lender and each
LC Issuer agrees promptly to notify the Borrower after any such set-off and
application, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Lender, each LC
Issuer and their respective Affiliates under this Section are in addition to
other rights and remedies (including, without limitation, other rights of
set-off) that such Lender, such LC Issuer and their respective Affiliates may
have.
SECTION 8.06. Binding Effect. This Agreement shall become effective
(other than Section 2.01, which shall only become effective upon satisfaction of
the conditions precedent set forth in Section 3.01) when it shall have been
executed by the Borrower and the Agent and when the Agent shall have been
notified by each Initial Lender that such Initial Lender has executed it and
thereafter shall be binding upon and inure to the benefit of the Borrower, the
Agent, each LC Issuer and each Lender and their respective successors and
assigns, except that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
Lenders to any Person.
SECTION 8.06. Assignments, Designations and Participations. (a) Each
Lender may (i) with the prior consent of the Agent (which consent shall not be
unreasonably withheld), (ii) for so long as no Default has occurred and is
continuing, with the consent of the Borrower (which consent shall not be
unreasonably withheld), and (iii) with the prior consent of the LC Issuer (which
consent may be given or withheld in the sole discretion of the LC Issuer),
assign to one or more Persons all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment, the Outstanding Credit Exposures owed to it and any Note or Notes
held by it); provided, however, that (A) no consent of the LC Issuer shall be
required if no amounts remain available to be drawn under any Facility LC and
the assigning Lender has made all payments required to be made by it to the LC
Issuer pursuant to Section 2.16 hereof, and that the LC Issuer may not assign
its direct obligations under the Facility LC, (B) each such assignment shall be
of a constant, and not a varying, percentage of all rights and obligations under
this Agreement, (C) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an assignment of all of a
Lender's rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment
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(determined as of the date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than $10,000,000 or an integral multiple
of $1,000,000 in excess thereof, (D) each such assignment shall be to an
Eligible Assignee, and (E) the parties to each such assignment shall execute and
deliver to the Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Note subject to such assignment and
a processing and recordation fee of $3,000. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each
Assignment and Acceptance, (1) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned to
it pursuant to such Assignment and Acceptance, have the rights and obligations
of a Lender hereunder and (2) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it pursuant
to such Assignment and Acceptance, relinquish its rights and be released from
its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of, or the perfection or priority of any lien or security interest created
or purported to be created under or in connection with, this Agreement or any
other instrument or document furnished pursuant hereto; (ii) such assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under this Agreement or any
other instrument or document furnished pursuant hereto; (iii) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the financial statements referred to in Section 4.01 and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Agent, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (v) such assignee confirms that it is an
Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under this Agreement as are delegated to the Agent by the terms hereof, together
with such powers and discretion as are reasonably incidental thereto; and (vii)
such assignee agrees that it will perform in accordance with their terms all of
the obligations that by the terms of this Agreement are required to be performed
by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Note or Notes subject to such assignment, the Agent shall, if
such Assignment and Acceptance has been completed and is in substantially the
form of Exhibit C hereto, (i) accept such
44
Assignment and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower. Within five
Business Days after the Borrower's receipt of such notice, if requested by the
applicable Lender, the Borrower, at its own expense, shall execute and deliver
to the Agent in exchange for the surrendered Note a new Note to the order of
such Eligible Assignee in an amount equal to the Commitment assumed by it
pursuant to such Assignment and Acceptance and, if the assigning Lender has
retained a Commitment hereunder, if requested by such assigning Lender, a new
Note to the order of the assigning Lender in an amount equal to the Commitment
retained by it hereunder. Such new Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Note or Notes, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of Exhibit A hereto.
(d) The Agent shall maintain at its address referred to in Section
8.02 a copy of each Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of the names and addresses and Commitment of,
and principal amount of Outstanding Credit Exposure owing to, each Lender from
time to time (the "Register"). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and the Borrower, the Agent
and the Lenders may treat each Person whose name is recorded in the Register as
a Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or
other entities (other than the Borrower or any of its Affiliates) in or to all
or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Outstanding Credit
Exposure owing to it and any Note or Notes held by it); provided, however, that
(i) such Lender's obligations under this Agreement (including, without
limitation, its Commitment to the Borrower hereunder) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) such Lender shall remain the owner of
such Credit Extensions for all purposes of this Agreement, (iv) the Borrower,
the Agent and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Agreement and (v) no participant under any such participation shall have any
right to approve any amendment or waiver of any provision of this Agreement or
any Note, or any consent to any departure by the Borrower therefrom, except to
the extent that such amendment, waiver or consent would (A) reduce the principal
of, or interest on, the Credit Extensions or any fees or other amounts payable
hereunder, or (B) increase the Commitments, in each case to the extent subject
to such participation, or postpone any date fixed for any payment of principal
of, or interest on, the Aggregate Outstanding Credit Exposures or any fees or
other amounts payable hereunder, in each case to the extent subject to such
participation. Each participant shall be entitled to the benefits of Sections
2.10, 2.11 and 2.13 to the same extent as if it were a Lender and had acquired
its interest under this Agreement by an assignment made pursuant to this Section
8.07, provided, however, that in no event shall the Borrower be obligated to
make any payment with respect to such Sections that is greater than the amount
that the Borrower would have otherwise made had no participations been sold
under this Section 8.07(e).
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(f) Any Lender may, in connection with any assignment, designation
or participation or proposed assignment, designation or participation pursuant
to this Section 8.07, disclose to the assignee, designee or participant or
proposed assignee, designee or participant, any information relating to the
Borrower furnished to such Lender by or on behalf of the Borrower; provided
that, prior to any such disclosure, the assignee, designee or participant or
proposed assignee, designee or participant shall agree to preserve the
confidentiality of any Confidential Information relating to the Borrower
received by it from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time (i) create a security interest in all or a portion of
its rights under this Agreement (including, without limitation, the Outstanding
Credit Exposure owing to it and the Note or Notes held by it) in favor of any
Federal Reserve Bank in accordance with Regulation A of the Board of Governors
of the Federal Reserve System or (ii) with notice to the Agent and the Borrower,
assign all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the
Outstanding Credit Exposure owed to it and the Note or Notes held by it) to any
of its Affiliates.
(h) Notwithstanding anything to the contrary contained herein, any
Lender (a "Designating Lender") may grant to one or more special purpose funding
vehicles (each an "SPV"), identified as such in writing from time to time by the
Designating Lender to the Agent and the Borrower, the option to provide to the
Borrower all or any part of any Revolving Credit Advance that such Designating
Lender would otherwise be obligated to make to the Borrower or to participate in
any Facility LC pursuant to this Agreement; provided that (i) nothing herein
shall constitute a commitment by any SPV to make any Revolving Credit Advance or
to participate in any Facility LC issued hereunder , (ii) if an SPV elects not
to exercise such option or otherwise fails to provide all or any part of such
Revolving Credit Advance, the Designating Lender shall be obligated to make such
Revolving Credit Advance pursuant to the terms hereof, (iii) the Designating
Lender shall remain liable for any indemnity or other payment obligation with
respect to its Commitment hereunder and (iv) no SPV or Designating Lender shall
be entitled to receive any greater amount under this Agreement than the
Designating Lender would have been entitled to receive had the Designating
Lender not otherwise granted such SPV the option to provide any Revolving Credit
Advance to the Borrower. The making of a Revolving Credit Advance by an SPV
hereunder and the participation of an SPV in any Facility LC issued hereunder
shall utilize the Commitment of the Designating Lender to the same extent, and
as if, such Revolving Credit Advance or participation in such Facility LC were
made by such Designating Lender.
(i) Each party hereto hereby acknowledges and agrees that no SPV
shall have the rights of a Lender hereunder, such rights being retained by the
applicable Designating Lender. Accordingly, and without limiting the foregoing,
each party hereby further acknowledges and agrees that no SPV shall have any
voting rights hereunder and that the voting rights attributable to any Credit
Extension made by an SPV shall be exercised only by the relevant Designating
Lender and that each Designating Lender shall serve as the administrative agent
and attorney-in-fact for its SPV and shall on behalf of its SPV receive any and
all payments made for the benefit of such SPV and take all actions hereunder to
the extent, if any, such SPV shall have any rights hereunder. No additional Note
shall be required to evidence the
46
Credit Extensions or portion thereof made by an SPV; and the related Designating
Lender shall be deemed to hold its Note or Notes, if any, as administrative
agent for such SPV to the extent of the Credit Extensions or portion thereof
funded by such SPV. In addition, any payments for the account of any SPV shall
be paid to its Designating Lender as administrative agent for such SPV.
(j) Each party hereto hereby agrees that no SPV shall be liable for
any indemnity or payment under this Agreement for which a Lender would otherwise
be liable so long as, and to the extent that, the related Designating Lender
provides such indemnity or makes such payment; provided, with respect to such
agreement by the Borrower that the related Designating Lender shall not be in
breach of its obligation to make Credit Extensions to the Borrower hereunder. In
furtherance of the foregoing, each party hereto hereby agrees (which agreements
shall survive the termination of this Agreement) that prior to the date that is
one year and one day after the payment in full of all outstanding commercial
paper or other senior indebtedness of any SPV, it will not institute against, or
join any other person in instituting against, such SPV any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under the
laws of the United States or any State thereof; provided, with respect to such
agreement by the Borrower that the related Designating Lender shall not be in
breach of its obligation to make Credit Extensions to the Borrower hereunder.
Notwithstanding the foregoing, the Designating Lender unconditionally agrees to
indemnify the Borrower, the Agent and each Lender against all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be incurred
by or asserted against the Borrower, the Agent or such Lender, as the case may
be, in any way relating to or arising as a consequence of any such forbearance
or delay in the initiation of any such proceeding against its SPV.
(k) In addition, notwithstanding anything to the contrary contained
in subsection 8.07(h), (i), (j) or (k) or otherwise in this Agreement, any SPV
may (i) at any time and without paying any processing fee therefor, assign or
participate all or a portion of its interest in any Outstanding Credit Exposure
to the Designating Lender or to any financial institutions providing liquidity
and/or credit support to or for the account of such SPV to support the funding
or maintenance of Outstanding Credit Exposure and (ii) disclose on a
confidential basis any non-public information relating to its Outstanding Credit
Exposure to any rating agency, commercial paper dealer or provider of any
surety, guarantee or credit or liquidity enhancements to such SPV. Subsection
8.07(h), (i), (j) or (k) may not be amended without the written consent of any
Designating Lender affected thereby.
SECTION 8.08. Confidentiality. Neither the Agent nor any Lender
shall disclose any Confidential Information to any other Person without the
consent of the Borrower, other than (a) to the Agent's or such Lender's
Affiliates and their officers, directors, employees, agents and advisors and, as
contemplated by Section 8.07(f), to actual or prospective assignees and
participants, and then only on a confidential basis, (b) as required by any law,
rule or regulation or judicial process, (c) to any rating agency when required
by it, provided that, prior to any such disclosure, such rating agency shall
undertake to preserve the confidentiality of any Confidential Information
relating to the Borrower received by it from such Lender, (d) as requested or
required by any state, federal or foreign authority or examiner regulating banks
or banking and (e) on a confidential basis, to any Lender's direct or indirect
contractual
47
counterparties in swap agreements or to legal counsel, accountants and other
professional advisors to such counterparties. Notwithstanding anything herein to
the contrary, Confidential Information shall not include, and each party hereto
(and each employee, representative or other agent of any party hereto) may
disclose to any and all persons, without limitation of any kind, the U.S.
federal income tax treatment and U.S. federal income tax structure of the
transactions contemplated hereby and all materials of any kind (including
opinions or other tax analyses) that are or have been provided to such party
relating to such tax treatment or tax structure, and it is hereby confirmed that
each party hereto has been authorized to make such disclosures since the
commencement of discussions regarding the transactions contemplated hereby.
SECTION 8.09. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 8.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or federal court of
the United States of America sitting in New York, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent permitted by law,
in such federal court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law. Nothing in this Agreement shall affect any right that any party may
otherwise have to bring any action or proceeding relating to this Agreement or
the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
in any New York State or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
SECTION 8.12. Waiver of Jury Trial. Each of the Borrower, the Agent,
the LC Issuers and the Lenders hereby irrevocably waives all right to trial by
jury in any action, proceeding or counterclaim (whether based on contract, tort
or otherwise) arising out of or relating to this Agreement or the Notes or the
actions of the Agent, any LC Issuer or any Lender in the negotiation,
administration, performance or enforcement thereof.
48
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
DTE ENERGY COMPANY
By /s/ ▇. ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇
Title: Assistant Treasurer
Lenders
BARCLAYS BANK PLC, Individually, as
Administrative Agent, as Co-Syndication
Agent, as LC Issuer and as a Lender
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Director
CITIBANK, N.A., Individually, as
Co-Syndication Agent and as a Lender
By /s/ J. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: J. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
BNP PARIBAS, as a Lender
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
SIGNATURE PAGE TO DTE ENERGY COMPANY TWO-YEAR CREDIT AGREEMENT
KEYBANK NATIONAL ASSOCIATION, as a Lender
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE BANK OF NOVA SCOTIA, as a Lender
By /s/ ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: Managing Director
SUMITOMO MITSUI BANKING CORPORATION,
as a Lender
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
COMMERZBANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES, as a Lender
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
SIGNATURE PAGE TO DTE ENERGY COMPANY TWO-YEAR CREDIT AGREEMENT
THE UFJ BANK LIMITED, as a Lender
By /s/ ▇▇▇▇▇ ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
ALLIED IRISH BANK PLC, as a Lender
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
MIZUHO CORPORATE BANK, LTD., as a Lender
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION, as a Lender
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
UNION BANK OF CALIFORNIA, N.A., as a Lender
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
SIGNATURE PAGE TO DTE ENERGY COMPANY TWO-YEAR CREDIT AGREEMENT
SCHEDULE I
DTE ENERGY COMPANY
APPLICABLE LENDING OFFICES
NAME OF INITIAL LENDER DOMESTIC LENDING OFFICE EURODOLLAR LENDING OFFICE COMMITMENT
----------------------------- ----------------------------- ------------------------- ---------------
Barclays Bank PLC ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Same as Domestic Lending $50,000,000.00
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Office
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇/
▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Citibank, N.A. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Same as Domestic Lending $50,000,000.00
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
BNP Paribas ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Same as Domestic Lending $45,000,000.00
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Office
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
KeyBank National Association ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Same as Domestic Lending $45,000,000.00
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Office
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
The Bank of Nova Scotia ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ Same as Domestic Lending $45,000,000.00
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mystro ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Sumitomo Mitsui Banking ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ Same as Domestic Lending $30,000,000.00
Corporation ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Office
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Commerzbank, New York and 2 World Financial Center Same as Domestic Lending $25,000,000.00
Grand ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Office
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
The UFJ Bank Limited UFJ Bank, New York Branch Same as Domestic Lending $25,000,000.00
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Allied Irish Bank PLC Allied Irish Bank Same as Domestic Lending $15,000,000.00
Corporate Operations ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier: ▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
NAME OF INITIAL LENDER DOMESTIC LENDING OFFICE EURODOLLAR LENDING OFFICE COMMITMENT
----------------------------- ----------------------------- ------------------------- ---------------
Mizuho Corporate Bank, Ltd. 1251 Avenue of the Americas Same as Domestic Lending $ 15,000,000.00
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Office
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier: 282-4488
PNC Bank PNC Bank, National Same as Domestic Lending $ 15,000,000.00
Association ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Union Bank of California, N.A. Energy Capital Services Same as Domestic Lending $ 15,000,000.00
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
---------------
Total $375,000,000.00
---------------
SCHEDULE II
LC NO. ACCOUNT PARTY AMOUNT EXPIRY BENEFICIARY ISSUED UNDER
------ ------------- ------ ------ ----------- ------------
SB00276 DTE Energy Company $ 5,000,000.00 05/31/04 Liberty Mutual 3-Year*
[Coenergy Trading Co.] Insurance Company
SB00277 DTE Energy Company $14,000,000.00 12/15/04 ▇. ▇▇▇▇ & Co. 3-Year*
[Coenergy Trading Co.]
SB00278 DTE Energy Company $ 6,000,000.00 12/15/04 ▇. ▇▇▇▇ & Co. 3-Year*
[Coenergy Trading Co.]
SB00279 DTE Energy Company $ 9,000,000.00 12/16/04 BNP Paribas 3-Year*
[Coenergy Trading Co.]
SB00216 DTE Energy Company $21,000,000.00 12/18/04 Select Energy, Inc. Bilateral
[Coenergy Trading Co.]
$55,000,000.00
------------
* Three-Year Credit Agreement, dated as of October 24, 2003, among DTE Energy
Company, as Borrower, Citibank, N.A., as Administrative Agent, and the lenders
party thereto.
PRICING SCHEDULE
LEVEL I LEVEL III
STATUS LEVEL II STATUS STATUS LEVEL IV STATUS LEVEL V STATUS LEVEL VI STATUS
-------- --------------- --------- ---------------- --------------- ---------------
Applicable 0.125% 0.150% 0.175% 0.250% 0.300% 0.425%
Percentage
Applicable Margin
(Eurodollar Rate) 0.625% 0.725% 0.825% 1.000% 1.050% 1.575%
Applicable LC Fee 0.625% 0.725% 0.825% 1.000% 1.050% 1.575%
Rate
Applicable 0.125% 0.125% 0.125% 0.125% 0.250% 0.250%
Utilization Fee
Applicable Margin 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
(Base Rate)
For the purposes of this Schedule, the following terms have the
following meanings, subject to the final paragraph of this Schedule:
"Level I Status" exists at any date if, on such date, the Borrower's
▇▇▇▇▇'▇ Rating is A3 or better or the Borrower's S&P Rating is A- or better.
"Level II Status" exists at any date if, on such date, (i) the
Borrower has not qualified for Level I Status and (ii) the Borrower's ▇▇▇▇▇'▇
Rating is Baa1 or better or the Borrower's S&P Rating is BBB+ or better.
"Level III Status" exists at any date if, on such date, (i) the
Borrower has not qualified for Level I Status or Level II Status and (ii) the
Borrower's ▇▇▇▇▇'▇ Rating is Baa2 or better or the Borrower's S&P Rating is BBB
or better.
"Level IV Status" exists at any date if, on such date, (i) the
Borrower has not qualified for Level I Status, Level II Status or Level III
Status and (ii) the Borrower's ▇▇▇▇▇'▇ Rating is Baa3 or better and the
Borrower's S&P Rating is BBB- or better.
"Level V Status" exists at any date if, on such date, (i) the
Borrower has not qualified for Level I Status, Level II Status, Level III Status
or Level IV Status and (ii) (a) the Borrower's ▇▇▇▇▇'▇ Rating is Baa3 or better
and the Borrower's S&P Rating is BB+ or better or (b) the Borrower's ▇▇▇▇▇'▇
Rating is Ba1 or better and the Borrower's S&P Rating is BBB- or better.
"Level VI Status" exists at any date if, on such date, the Borrower
has not qualified for Level I Status, Level II Status, Level III, Level IV or
Level V Status.
"▇▇▇▇▇'▇ Rating" means, at any time, the rating issued by ▇▇▇▇▇'▇
and then in effect with respect to the Borrower's senior unsecured long-term
debt securities without third-party credit enhancement.
"S&P Rating" means, at any time, the rating issued by S&P and then
in effect with respect to the Borrower's senior unsecured long-term debt
securities without third-party credit enhancement.
"Status" means Level I Status, Level II Status, Level III Status,
Level IV Status Level V Status or Level VI Status.
The Applicable Margin, Applicable Utilization Fee, the Applicable LC
Fee Rate and Applicable Percentage shall be determined in accordance with the
foregoing table based on the Borrower's Status as determined from its
then-current ▇▇▇▇▇'▇ Rating and S&P Rating. The credit rating in effect on any
date for the purposes of this Schedule is that in effect at the close of
business on such date. If at any time the Borrower does not have both a ▇▇▇▇▇'▇
Rating and an S&P Rating, Level VI Status shall exist.
Except as specifically provided above in the Schedule, in the event
that a split occurs between the two ratings, then the Status corresponding to
the lower of the two ratings shall apply. However, if the split is greater than
one level, then the pricing shall be based upon the Status one level above the
Status corresponding to the lower of the two ratings.
EXHIBIT A - FORM OF
PROMISSORY NOTE
U.S.$ _____________________________ Dated: _________________________, 2004
FOR VALUE RECEIVED, the undersigned, DTE ENERGY COMPANY, a Michigan
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender") for the account of its Applicable
Lending Office on the Revolver Termination Date (each as defined in the Credit
Agreement referred to below), the principal sum of U.S.$[amount of the Lender's
Commitment in figures] or, if less, the aggregate principal amount of the
Revolving Credit Advances made by the Lender to the Borrower pursuant to the
Two-Year Credit Agreement dated as of May 7, 2004 (as amended or modified from
time to time, the "Credit Agreement"; the terms defined therein being used
herein as therein defined) among the Borrower, the Lender and certain other
lenders parties thereto, and Barclays Bank PLC, as Agent for the Lender and such
other lenders outstanding on the Revolver Loan Termination Date.
The Borrower promises to pay interest on the unpaid principal amount
of each Revolving Credit Advance from the date of such Revolving Credit Advance
until such principal amount is paid in full, at such interest rates, and payable
at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Barclays Bank PLC, as Agent, at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, Account No. ▇▇▇-▇▇▇-▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇,
in same day funds. Each Revolving Credit Advance owing to the Lender by the
Borrower pursuant to the Credit Agreement, and all payments made on account of
principal thereof, shall be recorded by the Lender and, prior to any transfer
hereof, endorsed on the grid attached hereto which is part of this Promissory
Note.
This Promissory Note is one of the Notes referred to in, and is
entitled to the benefits of, the Credit Agreement. The Credit Agreement, among
other things, (i) provides for the making of Revolving Credit Advances by the
Lender to the Borrower from time to time in an aggregate amount not to exceed at
any time outstanding the U.S. dollar amount first above mentioned, the
indebtedness of the Borrower resulting from each such Revolving Credit Advance
being evidenced by this Promissory Note, and (ii) contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
and also for prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified.
DTE ENERGY COMPANY
By __________________________
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
AMOUNT OF AMOUNT OF PRINCIPAL UNPAID PRINCIPAL
DATE ADVANCE PAID OR PREPAID BALANCE NOTATION MADE BY
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EXHIBIT B - FORM OF NOTICE OF
REVOLVING CREDIT BORROWING
Barclays Bank PLC, as Agent for the Lenders parties
to the Credit Agreement referred to below
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇ [Date]
Ladies and Gentlemen:
The undersigned, DTE ENERGY COMPANY, refers to the Two-Year Credit
Agreement, dated as of May 7, 2004 (as amended or modified from time to time,
the "Credit Agreement"; the terms defined therein being used herein as therein
defined), among the undersigned, certain Lenders parties thereto and Barclays
Bank PLC, as Agent for said Lenders, and hereby gives you notice, irrevocably,
pursuant to Section 2.02 of the Credit Agreement that the undersigned hereby
requests a Borrowing under the Credit Agreement, and in that connection sets
forth below the information relating to such Borrowing (the "Proposed
Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is _______________,
____.
(j) The Type of Advances comprising the Proposed Borrowing is [Base
Rate Advances] [Eurodollar Rate Advances].
(k) The aggregate amount of the Proposed Borrowing is
$_______________.
(l) [(iv) The initial Interest Period for each Eurodollar Rate
Advance made as part of the Proposed Borrowing is _____ month[s].]
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in Section 4.01 of
the Credit Agreement are correct, before and after giving effect to the
Proposed Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date; and
(B) no event has occurred and is continuing, or would result from
such Proposed Borrowing or from the application of the proceeds therefrom,
that constitutes a Default.
Very truly yours,
By _______________________________________
Title:
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Two-Year Credit Agreement dated as of May
7, 2004 (as amended or modified from time to time, the "Credit Agreement") among
DTE Energy Company, a Michigan corporation (the "Borrower"), the Lenders (as
defined in each of the Credit Agreements) and Barclays Bank PLC, as agent for
the Lenders (the "Agent"). Terms defined in the Credit Agreement are used herein
with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1 hereto
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, an interest in and to
the Assignor's rights and obligations under the Credit Agreement as of the date
hereof equal to the percentage interest specified on Schedule 1 hereto of all
outstanding rights and obligations under the Credit Agreement. After giving
effect to such sale and assignment, the Assignee's Commitment and the amount of
the Outstanding Credit Exposures under the Credit Agreement owing to the
Assignee will be as set forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant thereto;
and (iv) attaches the Note or Notes held by the Assignor, if any, and requests
that the Agent exchange such Note or Notes for a new Note or Notes payable to
the order of the Assignee in an amount equal to the Commitment assumed by the
Assignee pursuant hereto and the Credit Agreement or new Notes payable to the
order of the Assignee in an amount equal to the Commitment assumed by the
Assignee pursuant hereto and the Credit Agreement and the Assignor in an amount
equal to the Commitment retained by the Assignor under the Credit Agreement,
respectively, as specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Agent, the Assignor or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under the Credit Agreement as are
delegated to the Agent by the terms thereof, together with such powers and
discretion as are
reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations that by the terms of the Credit
Agreement are required to be performed by it as a Lender; and (vi) attaches any
U.S. Internal Revenue Service forms required under Section 2.13 of the Credit
Agreement.
4. Following the execution of this Assignment and Acceptance, it
will be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date") shall
be the date of acceptance hereof by the Agent, unless otherwise specified on
Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after
the Effective Date, the Agent shall make all payments under the Credit Agreement
and the Notes in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest, facility fees, LC Fees and the
Utilization Fee with respect thereto) to the Assignee. The Assignor and Assignee
shall make all appropriate adjustments in payments under the Credit Agreement
and the Notes for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
Schedule 1
to
Assignment and Acceptance
Credit
Agreement
----------------
Percentage interest assigned: _______________%
Assignee's Commitment: $_______________
Aggregate Outstanding Credit Exposures assigned: $_______________
Principal amount of Outstanding Credit Exposures payable to Assignee: $_______________
Principal amount of Outstanding Credit Exposures payable to Assignor: $_______________
Effective Date(1): $_______________
[NAME OF ASSIGNOR], as Assignor
By ___________________________________________
Title:
Dated:
[NAME OF ASSIGNEE], as Assignee
By ___________________________________________
Title:
Dated:
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
--------
(1) This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Agent.
Accepted [and Approved](2) this
day of
___________________________________________, As Agent
By _________________________________________________
Title:
[Approved this [ ] day of ___________________________
DTE ENERGY COMPANY
By _________________________________________________
Title: ](3)
----------------------
(2) Required if the Assignee is an Eligible Assignee solely by reason of
clause (viii) of the definition of "Eligible Assignee".
(3) To be added only if the consent of the Borrower is required by the terms
of the Credit Agreement.
EXHIBIT D - FORM OF CERTIFICATE
DTE ENERGY COMPANY
OFFICER'S CERTIFICATE
I, ▇.▇. ▇▇▇▇▇▇, Assistant Treasurer of DTE ENERGY COMPANY, a
Michigan corporation (the "Borrower"), DO HEREBY CERTIFY, pursuant to Section
3.01 of the Two-Year Credit Agreement, dated as of May 7, 2004, among the
Borrower, the financial institutions from time to time parties thereto (the
"Lenders"), and Barclays Bank PLC, as agent for said Lenders (the "Credit
Agreement"), that the terms defined in the Credit Agreement are used herein as
herein defined and, further, that:
1. The Effective Date shall be May 7, 2004.
2. The representation and warranties contained in Section 4.01 of
the Credit Agreement are true and current on and as of the date hereof.
3. No event has occurred and is continuing that constitutes a
Default.
4. The Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the State of Michigan.
5. The execution, delivery and performance by the Borrower of the
Loan Documents to which it is a party, and the consummation of the transactions
contemplated hereby and thereby, are within the Borrower's corporate powers,
have been duly authorized by all necessary corporate action, and do not
contravene (i) the Borrower's charter or by-laws or (ii) law or any contractual
restriction binding on or affecting the Borrower.
6. All governmental and third party consents and approvals necessary
in connection with the transactions contemplated by the Loan Documents to which
the Borrower is a party have been obtained and permit the transactions
contemplated by the Loan Documents (without the imposition of any conditions
that are not acceptable to the Lenders), and no law or regulation is applicable
that restrains, prevents or imposes materially adverse conditions upon the
Borrower with respect to the transactions contemplated by the Loan Documents to
which it is a party.
7. Each of the Loan Documents to which the Borrower is a party when
delivered pursuant to the Credit Agreement has been duly executed and delivered
by the Borrower. Each of the Loan Documents to which the Borrower is a party
when delivered thereunder will be the legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with their respective
terms, subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors' rights generally.
8. The Consolidated balance sheets of each of the Borrower, The
Detroit Edison Company ("DECO"), Michigan Consolidated Gas Company ("MichCon")
and their respective Subsidiaries as at December 31, 2003, and the related
Consolidated statements of
income and cash flows of each of the Borrower, DECO, MichCon and their
respective Subsidiaries for the fiscal year then ended, accompanied by an
opinion of Deloitte & Touche LLP, independent public accountants, copies of
which have been furnished to each Lender, attached hereto as Annex A-1 through
A-3 are hereby duly certified by the undersigned, as fairly presenting the
Consolidated financial condition of each of the Borrower, DECO, MichCon and
their respective Subsidiaries, as applicable, as at such date and the
Consolidated results of the operations of each of the Borrower, DECO, MichCon
and their respective Subsidiaries, as applicable, for the period ended on such
date, all in accordance with generally accepted accounting principles
consistently applied, and the respective reports in which such financial
statements are contained are hereby designated as the "SEC Reports" for purposes
of the Credit Agreement. Since December 31, 2003 there has been no Material
Adverse Change with respect to the Borrower.
9. The Borrower is not a party to an indenture, loan or credit
agreement, lease, guarantee, mortgage, security agreement, bond, note or other
agreement or instrument, and there are no orders, writs, judgments, awards,
injunctions or decrees, that affect or purport to affect the Borrower's right to
borrow money or the Borrower's obligations under the Loan Documents to which it
is a party.
Dated as of the 7th day of May, 2004.
DTE ENERGY COMPANY
By________________________________________
Name: ▇.▇. ▇▇▇▇▇▇
Title: Assistant Treasurer
EXHIBIT E - FORM OF
OPINION OF COUNSEL TO THE BORROWER
[Date]
To each of the Lenders set forth
in Schedule A hereto
DTE Energy Company
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(h)(v) of
the Two-Year Credit Agreement, dated as of May 7, 2004, among DTE Energy Company
(the "Borrower"), the financial institutions from time to time parties thereto
(the "Lenders"), and Barclays Bank PLC, as agent for said Lenders, Barclays Bank
PLC and Citigroup Global Markets Inc., as Co-Syndication Agents, and with
Barclays Capital and Citigroup Global Markets Inc., as Co-Lead Arrangers and
Joint Book Runners (the "Credit Agreement"). Terms defined in the Credit
Agreement are used herein as therein defined.
I am the Associate General Counsel of the Borrower, and have acted
as counsel for the Borrower in connection with the preparation, execution and
delivery of the Loan Documents.
In that connection, I, in conjunction with the members of my staff,
have examined:
(i) Each Loan Document, executed by each of the parties thereto.
(ii) The other documents furnished by the Borrower pursuant to
Article III of the Credit Agreement.
(iii) The Restated Articles of Incorporation of the Borrower and all
amendments thereto (the "Charter").
(iv) The By-Laws of the Borrower and all amendments thereto (the
"By-Laws").
(v) A certificate from the State of Michigan attesting to the
continued corporate existence and good standing of the Borrower.
I have also examined the originals, or copies certified to my satisfaction, of
the documents listed in a certificate of a Financial Officer of the Borrower,
dated the date hereof (the "Certificate"), certifying that the documents listed
in such certificate are all of the indentures, loan or credit agreements,
leases, guarantees, mortgages, security agreements, bonds, notes and other
agreements or instruments, and all of the orders, writs, judgments, awards,
injunctions and decrees, that affect or purport to affect the Borrower's right
to borrow money or the Borrower's obligations under the Loan Documents to which
it is party. In addition, I have examined the
originals, copies certified to my satisfaction, of such other corporate records
of the Borrower, certificates of public officials and of officers of the
Borrower, and agreements, instruments and other documents, as I have deemed
necessary as a basis for the opinions expressed below. As to questions of fact
material to such opinions, I have, when relevant facts were not independently
established by me, relied upon certificates of public officials. I have assumed
the due execution and delivery, pursuant to due authorization, of the Credit
Agreement by the Lenders and the Agent.
My opinions expressed below are limited to the law of the State of
Michigan and the federal law of the United States.
Based upon the foregoing and upon such investigation as I have
deemed necessary, I am of the following opinion:
1. The Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the State of Michigan.
2. The execution, delivery and performance by the Borrower of the
Loan Documents to which it is party, and the consummation of the transactions
contemplated thereby, are within the Borrower's corporate powers, have been duly
authorized by all necessary corporate action, and do not contravene (i) the
Charters or the By-Laws of the Borrower or (ii) any law, rule or regulation
applicable to the Borrower (including, without limitation, Regulation X of the
Board of Governors of the Federal Reserve System) or (iii) any contractual or
legal restriction contained in any document listed in the Certificate or, to the
best of my knowledge (after due inquiry), contained in any other similar
document.
3. No authorization, approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other third
party is required for the due execution, delivery, recordation, filing or
performance by the Borrower of the Loan Documents to which it is a party, except
such as have been obtained.
4. Each Loan Document has been duly executed and delivered on behalf
of the Borrower.
5. Except as may have been disclosed to you in the SEC Reports
designated in the Certificate, to the best of my knowledge (after due inquiry)
there are no pending or overtly threatened actions or proceedings affecting the
Borrower or any of its Subsidiaries before any court, governmental agency or
arbitrator that (i) could be reasonably likely to have a Material Adverse Effect
or (ii) purport to affect the legality, validity, binding effect or
enforceability of any Loan Documents or the consummation of the transactions
contemplated thereby.
6. In a properly presented case, a Michigan court or a federal court
sitting in the State of Michigan applying Michigan choice of law rules should
give effect to the choice of law provisions of the Loan Documents and should
hold that such Loan Documents are to be governed by the laws of the State of New
York rather than the laws of the State of Michigan. In rendering the foregoing
opinion, I note that by their terms the Loan Documents expressly select New York
law as the laws governing their interpretation and that the Loan Documents
governed
by New York law were delivered by the parties thereto to the Agent in New York.
The choice of law provisions of the Loan Documents are not voidable under the
laws of the State of Michigan.
7. If, despite the provisions of Section 8.09 of the Credit
Agreement wherein the parties thereto agree that the Loan Documents shall be
governed by, and construed in accordance with, the laws of the State of New
York, a court of the State of Michigan or a federal court sitting in the State
of Michigan were to hold that the Loan Documents are governed by, and to be
construed in accordance with the laws of the State of Michigan, the respective
Loan Documents would be, under the laws of the State of Michigan, legal, valid
and binding obligations of the Borrower, enforceable against the Borrower in
accordance with their respective terms.
8. Neither the Borrower nor any of its Subsidiaries is an
"investment company," or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended; DECO is a "public utility company"
and a "subsidiary company" of the Borrower, which is a "holding company" as such
terms are defined in the Public Utility Holding Company Act of 1935, as amended
(the "1935 Act"), and such "holding company" and The Detroit Edison Company are
currently exempt from the provisions of the 1935 Act (except Section 9 thereof);
and Michigan Consolidated Gas Company is a "public utility company" and a
"subsidiary company" of MichCon Holdings, Inc., which is a "holding company" and
a "subsidiary company" of DTE Enterprises, Inc., which is a "holding company"
and a "subsidiary company" of the Borrower, as such terms are defined in the
1935 Act, and such "holding companies" and Michigan Consolidated Gas Company are
currently exempt from the provisions of the 1935 Act (except Section 9 thereof);
The opinions set forth above are subject to the following
qualifications:
(a) My opinion in paragraph 7 above as to enforceability is
subject to the effect of any applicable bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar law affecting
creditors' rights generally.
(b) My opinion in paragraph 7 above as to enforceability is
subject to the effect of general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether considered in a
proceeding in equity or at law).
(c) I express no opinion as to participation and the effect of
the law of any jurisdiction other than the State of Michigan wherein
any Lender may be located or wherein enforcement of the Loan
Documents may be sought that limits the rates of interest legally
chargeable or collectible.
Very truly yours,
Schedule A
Each of the Lenders party to the Two-Year Credit Agreement, dated as of May 7,
2004, among the Borrower, Barclays Bank PLC, as Lender and Agent, and Barclays
Bank PLC and Citigroup Global Markets Inc., as Co-Syndication Agents, and with
Barclays Capital and Citigroup Global Markets Inc., as Co-Lead Arrangers and
Joint Book Runners.
EXHIBIT F - FORM OF
COMPLIANCE CERTIFICATE
COMPLIANCE CERTIFICATE
To: The Lenders parties to the
Credit Agreement Described Below
This Compliance Certificate is furnished pursuant to that certain
Two-Year Credit Agreement dated as of May 7, 2004 (as amended or modified from
time to time, the "Agreement"; the terms defined therein being used herein as
therein defined) among DTE Energy Company, a Michigan corporation (the
"Borrower"), the lenders parties thereto, and Barclays Bank PLC, as Agent for
the lenders. Unless otherwise defined herein, capitalized terms used in this
Compliance Certificate have the meanings ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected _______________ of the Borrower;
2. I have reviewed the terms of the Agreement and I have made, or
have caused to be made under my supervision, a detailed review of the
transactions and conditions of the Borrower and its Subsidiaries during the
accounting period covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which constitutes
an Event of Default or Default during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data and
computations evidencing the Borrower's compliance with certain covenants of the
Agreement, all of which data and computations are true, complete and correct.
Described below are the exceptions, if any, to paragraph 3 by
listing, in detail, the nature of the condition or event, the period during
which it has existed and the action which the Borrower has taken, is taking, or
proposes to take with respect to each such condition or event:
The foregoing certifications, together with the computations set
forth in Schedule I hereto and the financial statements delivered with this
Certificate in support hereof, are made and delivered this ___________ day of
___________, ________.
DTE ENERGY COMPANY
By_______________________________________
Name:
Title:
SCHEDULE 1 TO COMPLIANCE CERTIFICATE
Compliance as of _________, ____ with
Provisions of Section 5.01(h) of
the Agreement
FINANCIAL COVENANTS
Ratio of Consolidated EBITDA to Interest Expense on Debt (Section 6.01(j)(i)).
(A) Numerator: Consolidated EBITDA: $________________
(B) Denominator:
(i) Interest Expense on Debt: $________________
(ii) Minus: Interest Expense on all Nonrecourse Debt of -$________________
the Borrower and its Subsidiaries:
(iii) Minus: Interest Expense on Excluded Hedging Debt: -$________________
(iv) Minus: Interest Expense on Junior Subordinated -$________________
Debt:
(v) Denominator: (B)(i) minus (B)(ii) through (B)(iv): $________________
(C) State whether the ratio of (A) to (B)(v) was not less than 2:1 for the YES/NO
twelve-month period ending on the last day of __________:
Ratio of Consolidated Debt to Capitalization (Section 6.01(j)(ii)).
(A) Numerator:
(i) Consolidated Debt: $________________
(ii) Minus: Nonrecourse Debt of the Borrower and its -$________________
Subsidiaries:
(iii) Minus: Excluded Hedging Debt: -$________________
(iv) Minus: Junior Subordinated Debt: -$________________
(v) Numerator: (A)(i) minus A(ii) through A(iv): $________________
(B) Denominator: Capitalization: $________________
(C) State whether the ratio of (A)(v) to (B) was not greater than .65:1: YES/NO