1
EXHIBIT 99-28
SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of January 19,
1999 among DTE CAPITAL CORPORATION, a Michigan corporation (the "Borrower")
which is wholly owned by DTE Energy Company, a Michigan corporation (the
"Parent"), the banks, financial institutions and other institutional lenders
(the "Initial Lenders") listed on the signature pages hereof, and CITIBANK, N.A.
("Citibank"), as agent (the "Agent") and ABN AMRO BANK N.V., BARCLAYS BANK PLC,
BAYERISCHE LANDESBANK GIROZENTRALE, CAYMAN ISLANDS BRANCH, COMERICA BANK and DEN
DANSKE BANK AKTIESELSKAB, as co-agents, for the Lenders (as hereinafter
defined).
PRELIMINARY STATEMENTS.
(1) The Borrower has entered into an Amended and Restated Credit
Agreement dated as of January 21, 1998, as amended as of October 21, 1998 and as
of January 18, 1999 (as so amended, the "Original Credit Agreement") with the
Agent and certain lenders, financial institutions and other institutional
lenders named therein or a party thereto immediately prior to the effectiveness
of this Agreement (collectively, the "Existing Lenders").
(2) The Borrower has requested that the Initial Lenders enter into this
Agreement to amend and restate the Original Credit Agreement as set forth
herein. The Initial Lenders have indicated their willingness to amend and
restate the Original Credit 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 that,
subject to the satisfaction of the conditions set forth in Article III, the
Original Credit Agreement is amended and restated in its entirety to read 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):
"Advance" means a Revolving Credit Advance or a Competitive Bid
Advance.
"Affiliate" means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such
2
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 Citibank with its office at Xxx Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx,
Xxxxxxxx, 00000, Account No. 00000000, Attention: Xxxxxxxxx Xxxxxxxx.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and such
Lender's Eurodollar Lending Office in the case of a Eurodollar Rate Advance
and, in the case of a Competitive Bid Advance, the office of such Lender
notified by such Lender to the Agent as its Applicable Lending Office with
respect to such Competitive Bid Advance.
"Applicable Margin" means, as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date as
set forth below:
==============================================================================================================
Public Debt Rating Applicable Margin for Applicable Margin for
S&P/Xxxxx'x Base Rate Advances Eurodollar Rate Advances
==============================================================================================================
Level 1
A- / A3 or above 0% .400%
--------------------------------------------------------------------------------------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0, but at least
BBB+ / Baa1 or above 0% .500%
--------------------------------------------------------------------------------------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0, but at least
BBB / Baa2 or above 0% .600%
--------------------------------------------------------------------------------------------------------------
Level 4
Lower than Xxxxx 0, xxx xx xxxxx
XXX- / Xxx0 or above 0% .800%
--------------------------------------------------------------------------------------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0, or
no Public Debt Rating in Effect 0% 1.600%
==============================================================================================================
At any time more than 50% of the Commitments are utilized, the Applicable
Margin will increase by (i) .125% at Xxxxxx 0, 0, 0 xxx 0 xxx (xx) .250% at
Level 5.
3
"Applicable Percentage" means, as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date as
set forth below:
======================================================================
Public Debt Rating Applicable
S&P/Xxxxx'x Percentage
======================================================================
Xxxxx 0
X- / X0 or above .100%
----------------------------------------------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0, but at least BBB+
/ Baa1 or above .125%
----------------------------------------------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0, but at least
BBB / Baa2 or above .150%
----------------------------------------------------------------------
Level 4
Lower than Xxxxx 0, xxx xx xxxxx XXX-
/ Xxx0 or above .200%
----------------------------------------------------------------------
Xxxxx 0
Xxxxx xxxx Xxxxx 0, or
no Public Debt Rating in Effect .400%
======================================================================
"Assigned Rights" means the rights of the Borrower under Sections 1, 2,
3 and 4 of the Support Agreement and all other rights that are intended to
secure the obligations of the Borrower under this Agreement.
"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.
"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 announced publicly by Citibank in New
York, New York, from time to time, as Citibank's 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
4
(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 Citibank 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
Citibank from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a percentage equal to
100% minus the average of the daily percentages specified during such
three-week 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 Citibank 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 Citibank for determining the then
current annual assessment payable by Citibank to the Federal Deposit
Insurance Corporation (or any successor) for insuring U.S. dollar
deposits of Citibank 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 2.07(a)(i).
"Borrower" has the meaning specified in the recital of parties to this
Agreement.
"Borrowing" means a Revolving Credit Borrowing or a Competitive Bid
Borrowing.
"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 tangible net worth plus Consolidated
Debt.
"Collateral Assignment Agreement" has the meaning specified in Section
3.01(h)(vi).
5
"Commitment" has the meaning specified in Section 2.01.
"Competitive Bid Advance" means an advance by a Lender to the Borrower
as part of a Competitive Bid Borrowing resulting from the competitive
bidding procedure described in Section 2.03 and refers to a Fixed Rate
Advance or a LIBO Rate Advance.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose offer
to make one or more Competitive Bid Advances as part of such borrowing has
been accepted under the competitive bidding procedure described in Section
2.03.
"Competitive Bid Note" means a promissory note of the Borrower payable
to the order of any Lender, in substantially the form of Exhibit A-2 hereto,
evidencing the indebtedness of the Borrower to such Lender resulting from a
Competitive Bid Advance made by such Lender.
"Competitive Bid Reduction" has the meaning specified in Section 2.01.
"Confidential Information" means information that a Loan Party
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 a Loan Party.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"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 2.08 or 2.09.
"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
6
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.
"Declining Lender" has the meaning specified in Section 2.16.
"DECO" means The Detroit Edison Company, a Michigan corporation wholly
owned by the Parent.
"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.
"Designated Bidder" means (a) an Eligible Assignee or (b) a special
purpose corporation that is engaged in making, purchasing or otherwise
investing in commercial loans in the ordinary course of its business and
that issues (or the parent of which issues) commercial paper rated at least
"Prime-1" (or the then equivalent grade) by Xxxxx'x or "A-1" (or the then
equivalent grade) by S&P that, in the case of either clause (a) or (b), (i)
is organized under the laws of the United States or any State thereof, (ii)
shall have become a party hereto pursuant to Section 8.07(d), (e) and (f)
and (iii) is not otherwise a Lender.
"Designation Agreement" means a designation agreement entered into by a
Lender (other than a Designated Bidder) and a Designated Bidder, and
accepted by the Agent, in substantially the form of Exhibit D hereto.
"Disclosed Litigation" has the meaning specified in Section 3.01(b).
7
"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.
"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
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.
"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, 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.
8
"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 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.
9
"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 Revolving Credit 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 substantially equal to such
Reference Bank's Eurodollar Rate Advance comprising part of such Revolving
Credit 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 Revolving Credit 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 2.08.
"Eurodollar Rate Advance" means a Revolving Credit Advance that bears
interest as provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for all
Eurodollar Rate Advances or LIBO 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
City 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 or LIBO Rate Advances is determined) having a
term equal to such Interest Period.
10
"Events of Default" has the meaning specified in Section 6.01.
"Existing Commitment" means, for each Existing Lender, all of such
Existing Lender's rights in and to, and all of its obligations under, the
Commitment (as defined in the Original Credit Agreement) held by it under
the Original Credit Agreement as of the Effective Date.
"Existing Lenders" has the meaning specified in the Preliminary
Statements hereto.
"Existing Notes" means the Notes as defined in, and issued pursuant to,
the Original Credit Agreement.
"Extending Lenders" has the meaning specified in Section 2.16.
"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, controller, treasurer or any assistant
treasurer of such Person.
"Fixed Rate Advances" has the meaning specified in Section 2.03(a)(i).
"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.
11
"Information Memorandum" means the information memorandum dated
December 1998 used by the Agent and Xxxxxxx Xxxxx Xxxxxx Inc., as arranger
in connection with the syndication of the Commitments. "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 Revolving Credit Borrowing and each LIBO Rate Advance
comprising part of the same Competitive Bid Borrowing, the period commencing
on the date of such Eurodollar Rate Advance or LIBO 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:
(i) the Borrower may not select any Interest Period that ends
after the Revolver Termination Date then in effect or, if the
Advances have been converted to a term loan pursuant to Section
2.06 prior to such selection, which ends after the Maturity Date;
(ii) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Revolving
Credit Borrowing or for LIBO Rate Advances comprising part of the
same Competitive Bid 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.
12
"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 Debentures" means subordinated junior
deferrable interest debentures issued by DECO from time to time.
"Lenders" means the Initial Lenders and each Person that shall
become a party hereto pursuant to Section 8.07(a), (b) and (c) and,
except when used in reference to a Revolving Credit Advance, a
Revolving Credit Borrowing, a Revolving Credit Note, a Commitment or a
related term, each Designated Bidder.
"LIBO Rate" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid 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 substantially equal to the amount that would be the Reference
Banks' respective ratable shares of such Borrowing if such Borrowing
were to be a Revolving Credit 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 LIBO Rate for any Interest Period for
each LIBO Rate Advance comprising part of the same Competitive Bid
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 2.08.
"LIBO Rate Advances" has the meaning specified in Section
2.03(a)(i).
"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.
"Loan Documents" means this Agreement, the Notes, the Support
Agreement and the Collateral Assignment Agreement.
"Loan Parties" means the Borrower and the Parent.
13
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance,
properties or prospects of either Loan Party 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 either Loan Party or either
Loan Party and its Subsidiaries taken as a whole, (b) the rights and
remedies of the Agent or any Lender under any Loan Document or (c) the
ability of either Loan Party to perform its obligations under any Loan
Document to which it is a party.
"Maturity Date" means the earlier of (a) the one year anniversary
of the Term Loan Conversion Date and (b) the date of the termination in
whole of the aggregate Commitments pursuant to Section 2.05 or 6.01.
"Moody's" means Xxxxx'x Investors Service, Inc.
"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 either Loan Party or any of their
Subsidiaries in respect of which no recourse may be had by the
creditors under such Debt against such Loan Party or such Subsidiary in
its individual capacity or against the assets of such Loan Party or
such Subsidiary, other than assets which were purchased by such Loan
Party or such Subsidiary with the proceeds of such Debt.
"Note" means a Revolving Credit Note or a Competitive Bid Note.
"Notice of Competitive Bid Borrowing" has the meaning specified in
Section 2.03(a)(i).
"Notice of Revolving Credit Borrowing" has the meaning specified
in Section 2.02(a).
14
"Original Credit Agreement" has the meaning specified in the
Preliminary Statement hereto. "Parent" has the meaning specified in the
recital by the parties to this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced: (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid
under Section 5.01(b) hereof; (b) Liens imposed by law, such as
materialmen's, mechanics', carriers', workmen's and repairmen's Liens
and other similar Liens arising in the ordinary course of business
securing obligations that are not overdue for a period of more than 30
days; (c) pledges or deposits to secure obligations under workers'
compensation laws or similar legislation or to secure public or
statutory obligations; and (d) easements, rights of way and other
encumbrances on title to real property that do not render title to the
property encumbered thereby unmarketable or materially adversely affect
the use of such property for its present purposes.
"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.
"Public Debt Rating" means, as of any date, the lowest rating that
has been most recently announced by either S&P or Moody's, as the case
may be, for any class of non-credit enhanced senior unsecured Debt
issued by the Borrower. For purposes of the foregoing, (a) if only one
of S&P and Moody's shall have in effect a Public Debt Rating, the
Applicable Margin and the Applicable Percentage shall be determined by
reference to the available rating; (b) if neither S&P nor Moody's shall
have in effect a Public Debt Rating, the Applicable Margin and the
Applicable Percentage will be set in accordance with Level 5 under the
definition of "Applicable Margin" or "Applicable Percentage", as the
case may be; (c) if the ratings established by S&P and Moody's shall
fall within different levels, the Applicable Margin and the Applicable
Percentage shall be based upon the lower rating; (d) if any rating
established by S&P or Moody's shall be changed, such change shall be
effective as of the date on which such change is first announced
publicly by the rating agency making such change; and (e) if S&P or
Moody's shall change the basis on which ratings are established, each
reference to the Public Debt Rating
15
announced by S&P or Moody's, as the case may be, shall refer to the
then equivalent rating by S&P or Moody's, as the case may be.
"Reference Banks" means Citibank, N.A., Barclays Bank PLC and The
First National Bank of Chicago.
"Register" has the meaning specified in Section 8.07(g).
"Required Lenders" means at any time Lenders owed at least 66-2/3%
of the then aggregate unpaid principal amount of the Revolving Credit
Advances owing to Lenders, or, if no such principal amount is then
outstanding, Lenders having at least 66-2/3% of the Commitments.
"Revolver Termination Date" means the earlier of (a) January 18,
2000 or, if extended pursuant to Section 2.16, the date that is 364
days after the Revolver Termination Date then in effect, and (b) the
date of termination in whole of the Commitments pursuant to Section
2.05 or 6.01; provided, however, that the Revolver Termination Date of
any Lender that is a Declining Lender to any requested extension
pursuant to Section 2.16 shall be the Revolver Termination Date in
effect immediately prior to the date on which such extension was
granted, for all purposes of this Agreement.
"Revolving Credit Advance" means an advance by a Lender to the
Borrower as part of a Revolving Credit Borrowing and, if the Borrower
has made the Term Loan Election in accordance with Section 2.06,
includes each such advance that remains outstanding after the Term Loan
Conversion Date, and refers to a Base Rate Advance or a Eurodollar Rate
Advance (each of which shall be a "Type" of Revolving Credit Advance).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each of
the Lenders pursuant to Section 2.01.
"Revolving Credit Note" means a promissory note of the Borrower
payable to the order of any Lender, in substantially the form of
Exhibit A-1 hereto, evidencing the aggregate indebtedness of the
Borrower to such Lender resulting from the Revolving Credit Advances
made by such Lender.
"S&P" means Standard & Poor's Ratings Group, a division of
XxXxxx-Xxxx, Inc.
"SEC Reports" means the following reports filed with or sent to
the Securities and Exchange Commission by the Parent or DECO, as the
case may be:
16
(a) the Form 10K of DECO for the year ended December
31, 1997,
(b) the Forms 10Q of DECO for the quarters ended March
31, 1998, June 30, 1998 and September 30, 1998, and
(c) the Audited Consolidated Financial Statements of the
Parent for the year ended December 31, 1997, together with the
notes thereto, as contained in the Parent's 1997 annual report to
Shareholders.
"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.
"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.
"Support Agreement" has the meaning specified in Section
3.01(h)(v).
"Term Loan Conversion Date" has the meaning specified in Section
2.06.
"Term Loan Election" has the meaning specified in Section 2.06.
"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.
17
"Year 2000 Problem" shall mean that the computer hardware,
software or equipment containing embedded microchips of the Parent or
any of its Subsidiaries which is essential to its business or
operations will, as a result of processing dates or time periods
occurring after December 31, 1999, malfunction causing a system failure
or miscalculations resulting in disruptions of operations or inability
to engage in normal business activities.
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").
18
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. Each Lender severally
agrees, on the terms and conditions hereinafter set forth, to make Revolving
Credit Advances to the Borrower from time to time on any Business Day during the
period from the Effective Date until the earlier of the Revolver Termination
Date and the Term Loan Conversion Date in an aggregate amount not to exceed at
any time outstanding the amount set forth opposite such Lender's name on the
signature pages hereof 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(g), as such amount may be reduced pursuant to Section
2.05 (such Lender's "Commitment"), provided that the aggregate amount of the
Commitments of the Lenders shall be deemed used from time to time to the extent
of the aggregate amount of the Competitive Bid Advances then outstanding and
such deemed use of the aggregate amount of the Commitments shall be allocated
among the Lenders ratably according to their respective Commitments (such deemed
use of the aggregate amount of the Commitments being a "Competitive Bid
Reduction"). Each Revolving Credit Borrowing shall be in an aggregate amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof (or, if less,
an aggregate amount equal to the amount by which the aggregate amount of a
proposed Competitive Bid Borrowing requested by the Borrower exceeds the
aggregate amount of Competitive Bid Advances offered to be made by the Lenders
and accepted by the Borrower in respect of such Competitive Bid Borrowing, if
such Competitive Bid Borrowing is made on the same date as such Revolving Credit
Borrowing) 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 2.10 and reborrow
under this Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances. (a) Each
Revolving Credit 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 Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Eurodollar Rate Advances, or 9:00 A.M. (New York City time) the
Business Day of the proposed Revolving Credit Borrowing in the case of a
Revolving Credit 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 Revolving Credit Borrowing (a "Notice of
Revolving Credit Borrowing") shall be by telephone, confirmed immediately in
writing, or telecopier or telex in substantially the form of Exhibit B-1 hereto,
specifying therein the requested (i) date of such Revolving Credit Borrowing,
(ii) Type of Advances comprising such Revolving Credit Borrowing, (iii)
aggregate amount of such Revolving Credit Borrowing, and (iv) in the case of a
Revolving Credit Borrowing consisting of Eurodollar Rate Advances, initial
Interest Period for each such Revolving Credit Advance. Each Lender shall,
before
19
11:00 A.M. (New York City time) on the date of such Revolving Credit 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
Revolving Credit 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 Revolving
Credit Borrowing if the aggregate amount of such Revolving Credit 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 2.08 or 2.12 and (ii) the
Eurodollar Rate Advances may not be outstanding as part of more than ten
separate Revolving Credit Borrowings.
(c) Each Notice of Revolving Credit Borrowing shall be irrevocable and
binding on the Borrower. In the case of any Revolving Credit Borrowing that the
related Notice of Revolving Credit 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 Revolving Credit
Borrowing for such Revolving Credit 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 Revolving
Credit 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 Revolving Credit Borrowing that such Lender will not make
available to the Agent such Lender's ratable portion of such Revolving Credit
Borrowing, the Agent may assume that such Lender has made such portion available
to the Agent on the date of such Revolving Credit 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 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 Revolving Credit 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 Revolving Credit Borrowing for purposes
of this Agreement.
20
(e) The failure of any Lender to make the Revolving Credit Advance to
be made by it as part of any Revolving Credit Borrowing shall not relieve any
other Lender of its obligation, if any, hereunder to make its Revolving Credit
Advance on the date of such Revolving Credit 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 Revolving Credit
Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender
severally agrees that the Borrower may make Competitive Bid Borrowings under
this Section 2.03 from time to time on any Business Day during the period from
the date hereof until the date occurring 30 days prior to the earlier of the
Revolver Termination Date and the Term Loan Conversion Date in the manner set
forth below; provided that, following the making of each Competitive Bid
Borrowing, the aggregate amount of the Advances then outstanding shall not
exceed the aggregate amount of the Commitments of the Lenders (computed without
regard to any Competitive Bid Reduction).
(i) The Borrower may request a Competitive Bid Borrowing under
this Section 2.03 by delivering to the Agent, by telecopier or telex, a
notice of a Competitive Bid Borrowing (a "Notice of Competitive Bid
Borrowing"), in substantially the form of Exhibit B-2 hereto,
specifying therein the requested (v) date of such proposed Competitive
Bid Borrowing, (w) aggregate amount of such proposed Competitive Bid
Borrowing, (x) in the case of a Competitive Bid Borrowing consisting of
LIBO Rate Advances, Interest Period, or in the case of a Competitive
Bid Borrowing consisting of Fixed Rate Advances, maturity date for
repayment of each Fixed Rate Advance to be made as part of such
Competitive Bid Borrowing (which maturity date may not be earlier than
the date occurring 7 days after the date of such Competitive Bid
Borrowing or later than the earlier of (I) 180 days after the date of
such Competitive Bid Borrowing and (II) the earlier of the Revolver
Termination Date and the Term Loan Conversion Date), (y) interest
payment date or dates relating thereto, and (z) other terms (if any) to
be applicable to such Competitive Bid Borrowing, not later than 10:00
A.M. (New York City time) (A) at least one Business Day prior to the
date of the proposed Competitive Bid Borrowing, if the Borrower shall
specify in the Notice of Competitive Bid Borrowing that the rates of
interest to be offered by the Lenders shall be fixed rates per annum
(the Advances comprising any such Competitive Bid Borrowing being
referred to herein as "Fixed Rate Advances") and (B) at least five
Business Days prior to the date of the proposed Competitive Bid
Borrowing, if the Borrower shall instead specify in the Notice of
Competitive Bid Borrowing that the rates of interest be offered by the
Lenders are to be based on the LIBO Rate (the Advances comprising such
Competitive Bid Borrowing being referred to herein as "LIBO Rate
Advances"). Each Notice of Competitive Bid Borrowing shall be
irrevocable and binding on the Borrower. The Agent shall in turn
promptly notify each Lender of each request for a Competitive Bid
Borrowing received by it from the Borrower by
21
sending such Lender a copy of the related Notice of Competitive Bid
Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to do
so, irrevocably offer to make one or more Competitive Bid Advances to
the Borrower as part of such proposed Competitive Bid Borrowing at a
rate or rates of interest specified by such Lender in its sole
discretion, by notifying the Agent (which shall give prompt notice
thereof to the Borrower), before 9:30 A.M. (New York City time) on the
date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances and before
10:00 A.M. (New York City time) three Business Days before the date of
such proposed Competitive Bid Borrowing, in the case of a Competitive
Bid Borrowing consisting of LIBO Rate Advances, of the minimum amount
and maximum amount of each Competitive Bid Advance which such Lender
would be willing to make as part of such proposed Competitive Bid
Borrowing (which amounts may, subject to the proviso to the first
sentence of this Section 2.03(a), exceed such Lender's Commitment, if
any), the rate or rates of interest therefor and such Lender's
Applicable Lending Office with respect to such Competitive Bid Advance;
provided that if the Agent in its capacity as a Lender shall, in its
sole discretion, elect to make any such offer, it shall notify the
Borrower of such offer at least 30 minutes before the time and on the
date on which notice of such election is to be given to the Agent by
the other Lenders. If any Lender shall elect not to make such an offer,
such Lender shall so notify the Agent, before 10:00 A.M. (New York City
time) on the date on which notice of such election is to be given to
the Agent by the other Lenders, and such Lender shall not be obligated
to, and shall not, make any Competitive Bid Advance as part of such
Competitive Bid Borrowing; provided that the failure by any Lender to
give such notice shall not cause such Lender to be obligated to make
any Competitive Bid Advance as part of such proposed Competitive Bid
Borrowing. (iii) The Borrower shall, in turn, before 10:30 A.M. (New
York City time) on the date of such proposed Competitive Bid Borrowing,
in the case of a Competitive Bid Borrowing consisting of Fixed Rate
Advances and before 11:00 A.M. (New York City time) three Business Days
before the date of such proposed Competitive Bid Borrowing, in the case
of a Competitive Bid Borrowing consisting of LIBO Rate Advances,
either:
(x) cancel such Competitive Bid Borrowing by giving the Agent
notice to that effect, or
(y) accept one or more of the offers made by any Lender or
Lenders pursuant to paragraph (ii) above, in its sole discretion,
by giving notice to the Agent of the amount of each Competitive
Bid Advance (which amount shall be equal to or greater than the
minimum amount, and equal to or less than the maximum amount,
notified to the Borrower by the Agent on behalf of such Lender for
such Competitive Bid
22
Advance pursuant to paragraph (ii) above) to be made by each
Lender as part of such Competitive Bid Borrowing, and reject any
remaining offers made by Lenders pursuant to paragraph (ii) above
by giving the Agent notice to that effect. The Borrower shall
accept the offers made by any Lender or Lenders to make
Competitive Bid Advances in order of the lowest to the highest
rates of interest offered by such Lenders. If two or more Lenders
have offered the same interest rate, the amount to be borrowed at
such interest rate will be allocated among such Lenders in
proportion to the amount that each such Lender offered at such
interest rate.
(iv) If the Borrower notifies the Agent that such Competitive Bid
Borrowing is cancelled pursuant to paragraph (iii)(x) above, the Agent
shall give prompt notice thereof to the Lenders and such Competitive
Bid Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by any
Lender or Lenders pursuant to paragraph (iii)(y) above, the Agent shall
in turn promptly notify (A) each Lender that has made an offer as
described in paragraph (ii) above, of the date and aggregate amount of
such Competitive Bid Borrowing and whether or not any offer or offers
made by such Lender pursuant to paragraph (ii) above have been accepted
by the Borrower, (B) each Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing, of the amount of
each Competitive Bid Advance to be made by such Lender as part of such
Competitive Bid Borrowing, and (C) each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid Borrowing, upon
receipt, that the Agent has received forms of documents appearing to
fulfill the applicable conditions set forth in Article III. Each Lender
that is to make a Competitive Bid Advance as part of such Competitive
Bid Borrowing shall, before 12:00 noon (New York City time) on the date
of such Competitive Bid Borrowing specified in the notice received from
the Agent pursuant to clause (A) of the preceding sentence or any later
time when such Lender shall have received notice from the Agent
pursuant to clause (C) of the preceding sentence, 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 portion of such
Competitive Bid Borrowing. Upon fulfillment of the applicable
conditions set forth in Article III and after receipt by the Agent of
such funds, the Agent will make such funds available to the Borrower at
the Agent's address referred to in Section 8.02. Promptly after each
Competitive Bid Borrowing the Agent will notify each Lender of the
amount of the Competitive Bid Borrowing, the consequent Competitive Bid
Reduction and the dates upon which such Competitive Bid Reduction
commenced and will terminate.
(vi) If the Borrower notifies the Agent that it accepts one or
more of the offers made by any Lender or Lenders pursuant to paragraph
(iii)(y) above,
23
such notice of acceptance shall be irrevocable and binding on the
Borrower. 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 the related Notice of
Competitive Bid Borrowing for such Competitive Bid 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 Competitive
Bid Advance to be made by such Lender as part of such Competitive Bid
Borrowing when such Competitive Bid Advance, as a result of such
failure, is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof and,
following the making of each Competitive Bid Borrowing, the Borrower and each
Lender shall be in compliance with the limitations set forth in the proviso to
the first sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in this Section
2.03, the Borrower may from time to time borrow under this Section 2.03, repay
or prepay pursuant to subsection (d) below, and reborrow under this Section
2.03, provided that a Competitive Bid Borrowing shall not be made within three
Business Days of the date of any other Competitive Bid Borrowing.
(d) The Borrower shall repay to the Agent for the account of each
Lender that has made a Competitive Bid Advance, on the maturity date of each
Competitive Bid Advance (such maturity date being that specified by the Borrower
for repayment of such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above and
provided in the Competitive Bid Note evidencing such Competitive Bid Advance),
the then unpaid principal amount of such Competitive Bid Advance. The Borrower
shall have no right to prepay any principal amount of any Competitive Bid
Advance unless, and then only on the terms, specified by the Borrower for such
Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above and set forth in the Competitive
Bid Note evidencing such Competitive Bid Advance.
(e) The Borrower shall pay interest on the unpaid principal amount of
each Competitive Bid Advance from the date of such Competitive Bid Advance to
the date the principal amount of such Competitive Bid Advance is repaid in full,
at the rate of interest for such Competitive Bid Advance specified by the Lender
making such Competitive Bid Advance in its notice with respect thereto delivered
pursuant to subsection (a)(ii) above, payable on the interest payment date or
dates specified by the Borrower for such Competitive Bid Advance in the related
Notice of Competitive Bid Borrowing delivered pursuant to subsection (a)(i)
above, as provided in the Competitive Bid Note evidencing such Competitive Bid
Advance. Upon the occurrence and during
24
the continuance of an Event of Default, the Borrower shall pay interest on the
amount of unpaid principal of and interest on each Competitive Bid Advance owing
to a Lender, payable in arrears on the date or dates interest is payable
thereon, at a rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid on such Competitive Bid Advance under the terms of
the Competitive Bid Note evidencing such Competitive Bid Advance unless
otherwise agreed in such Competitive Bid Note.
(f) The indebtedness of the Borrower resulting from each Competitive
Bid Advance made to the Borrower as part of a Competitive Bid Borrowing shall be
evidenced by a separate Competitive Bid Note of the Borrower payable to the
order of the Lender making such Competitive Bid Advance.
(g) Upon delivery of each Notice of Competitive Bid Borrowing, the
Borrower shall pay a non-refundable fee of $3,000 to the Agent for its own
account.
SECTION 2.04. Fees. (a) Facility Fee. The Borrower agrees to pay
to the Agent for the account of each Lender (other than the Designated Bidders)
a 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 the Maturity Date 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 Maturity
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.
SECTION 2.05. Termination or Reduction of the Commitments. (a) If
the Borrower has not made the Term Loan Election at least 15 days prior to the
Revolver Termination Date, the Commitments shall be automatically terminated on
the Revolver Termination Date. If the Borrower has made the Term Loan Election
in accordance with Section 2.06, from time to time after the Term Loan
Conversion Date upon each prepayment of the Revolving Credit Advances, the
aggregate Commitments of the Lenders under this Agreement shall be automatically
and permanently reduced on a pro rata basis by an amount equal to the amount by
which the aggregate Commitments of the Lenders under this Agreement immediately
prior to such reduction exceeds the aggregate unpaid principal amount of the
Revolving Credit Advances outstanding at such time.
(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 and provided further that the aggregate
amount of the Commitments of
25
the Lenders shall not be reduced to an amount that is less than the aggregate
principal amount of the Competitive Bid Advances then outstanding.
SECTION 2.06. Repayment of Revolving Credit Advances; Term Loan
Election. (a) The Borrower shall, subject to the next succeeding sentence, repay
to the Agent for the ratable account of the Lenders on the Revolver Termination
Date the aggregate principal amount of the Revolving Credit Advances then
outstanding.
(b) The Borrower may, at any time prior to the Revolver Termination
Date and upon not less than 15 days' notice to the Agent, elect (the "Term Loan
Election") to convert all of the Revolving Credit Advances outstanding on the
date specified in such notice (the "Term Loan Conversion Date") into a term loan
which the Borrower shall repay in full to the Agent for the ratable account of
the Lenders on the Maturity Date; provided that no Default has occurred and is
continuing on the date of notice of the Term Loan Election or on the Term Loan
Conversion Date.
SECTION 2.07. 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. Upon the occurrence and during the continuance of
an Event of Default, the Borrower shall pay interest on (i) 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
26
Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) 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 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 2.08. Interest Rate Determination. (a) Each Reference Bank
agrees to furnish to the Agent timely information for the purpose of determining
each Eurodollar Rate and each LIBO 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
2.07(a)(i) or (ii), and the rate, if any, furnished by each Reference Bank for
the purpose of determining the interest rate under Section 2.07(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 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 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 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 Advances into,
Eurodollar Rate Advances shall be suspended.
27
(f) If fewer than two Reference Banks furnish timely information to the
Agent for determining the Eurodollar Rate or LIBO Rate for any Eurodollar Rate
Advances or LIBO Rate Advances, as the case may be,
(i) the Agent shall forthwith notify the Borrower and the Lenders
that the interest rate cannot be determined for such Eurodollar Rate
Advances or LIBO Rate Advances, as the case may be,
(ii) with respect to Eurodollar Rate Advances, each such Advance
will automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance (or if such 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 LIBO 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 2.09. 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 2.08 and
2.12, Convert all Revolving Credit Advances of one Type comprising the same
Borrowing into Revolving Credit Advances of the other Type; 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 Revolving Credit 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 Advance. Each notice of
Conversion shall be irrevocable and binding on the Borrower.
SECTION 2.10. 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., (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 Revolving Credit Borrowing in whole or ratably in part,
together with accrued interest to the date of such
28
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 principal amount outstanding 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 the
Securities and Exchange Commission under the Securities Exchange Act of 1934),
directly or indirectly, of Voting Stock of the Parent (or other securities
convertible into such Voting Stock) representing 20% or more of the combined
voting power of all Voting Stock of the Parent; 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
Parent.
SECTION 2.11. 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 or LIBO Rate Advances
(excluding for purposes of this Section 2.11 any such increased costs resulting
from (i) Taxes or Other Taxes (as to which Section 2.14 shall govern) 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 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 (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender additional amounts sufficient to compensate
such Lender for such increased cost. A certificate as to the amount of such
increased cost, submitted to the Borrower and the Agent by such Lender, shall be
conclusive and binding for all purposes, absent manifest error.
(b) If any Lender 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 any
corporation controlling such Lender and that the amount of such capital is
increased by or based upon the existence of such Lender's commitment to lend
hereunder and other commitments of this type, then, upon demand by such Lender
(with a copy of such demand to the
29
Agent), the Borrower shall pay to the Agent for the account of such Lender, from
time to time as specified by such Lender, additional amounts sufficient to
compensate such Lender or such corporation in the light of such circumstances,
to the extent that such Lender reasonably determines such increase in capital to
be allocable to the existence of such Lender's commitment to lend hereunder. A
certificate as to such amounts submitted to the Borrower and the Agent by such
Lender 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 2.11, 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 Notes 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 2.12. 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 LIBO Rate Advances or
to fund or maintain Eurodollar Rate Advances or LIBO Rate Advances hereunder,
(i) each Eurodollar Rate Advance or LIBO Rate Advance, as the case may be, will
automatically, upon such demand, Convert into a Base Rate Advance or an Advance
that bears interest at the rate set forth in Section 2.07(a)(i), as the case may
be, and (ii) the obligation of the Lenders to make Eurodollar Rate Advances or
LIBO 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 2.13. 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. The Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or interest or
facility fees ratably (other than amounts payable pursuant to Section 2.03,
2.11, 2.14 or 8.04(c)) to the Lenders for the account of their respective
Applicable Lending Offices, and like funds relating to the payment of any other
amount payable to any Lender to such Lender 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
30
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, if and to the extent
payment owed to such Lender is not made when due hereunder or under the Note
held by such Lender, to charge from time to time against any or all of the
Borrower's accounts with such Lender 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 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 or
facility fees 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 or facility fee, as the case
may be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances or LIBO 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 2.14. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.13,
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 and the Agent, taxes
imposed on its overall net income, and
31
franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction
under the laws of which such Lender 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 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 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 2.14) such Lender 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.
(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 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 2.14) 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 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
32
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 forms 1001 or
4224, 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 compute the tax payable and
information required on the date hereof by Internal Revenue Service form 1001 or
4224, 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 2.14(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 2.14(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 2.14, 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 Notes held by such Lender
in accordance with Section 8.07, provided, however, that (i) no Default shall
have occurred and be continuing, (ii) the
33
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 2.15. 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 Revolving Credit Advances owing to
it (other than pursuant to Section 2.11, 2.14 or 8.04(c)) in excess of its
ratable share of payments on account of the Revolving Credit Advances obtained
by all the Lenders, such Lender shall forthwith purchase from the other Lenders
such participations in the Revolving Credit Advances 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 2.15 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.
SECTION 2.16. Extensions of Revolver Termination Date. No earlier
than 45 days and no later than 30 days prior to the Revolver Termination Date in
effect at any time, the Borrower may, by written notice to the Agent, request
that such Revolver Termination Date be extended for a period of 364 days. Such
request shall be irrevocable and binding upon the Borrower. The Agent shall
promptly notify each Lender of such request. If a Lender agrees, in its
individual and sole discretion, to so extend its Commitment (an "Extending
Lender"), it shall deliver to the Agent a written notice of its agreement to do
so no earlier than 30 days and no later than 20 days prior to such Revolver
Termination Date and the Agent shall notify the Borrower of such Extending
Lender's agreement to extend its Commitment no later than 15 days prior to such
Revolver Termination Date. The Commitment of any Lender that fails to accept or
respond to the Borrower's request for extension of the Revolver Termination Date
(a "Declining Lender") shall be terminated on the Revolver Termination Date
originally in effect (without regard to any extension by other Lenders) and on
such Revolver Termination Date the Borrower shall pay in full the principal
amount of all Advances owing to such Declining Lender, together with accrued
interest thereon to the date of such payment of principal and all other amounts
payable to such Declining Lender under this Agreement. The Agent shall promptly
notify each Extending Lender of the aggregate Commitments of the Declining
Lenders. The Extending Lenders, or any of
34
them, may offer to increase their respective Commitments by an aggregate amount
up to the aggregate amount of the Declining Lenders' Commitments and any such
Extending Lender shall deliver to the Agent a notice of its offer to so increase
its Commitment no later than 15 days prior to such Revolver Termination Date. To
the extent of any shortfall in the aggregate amount of extended Commitments, the
Borrower shall have the right to require any Declining Lender to assign in full
its rights and obligations under this Agreement to an Eligible Assignee
designated by the Borrower and acceptable to the Agent, that agrees to accept
all of such rights and obligations (a "Replacement Lender"), provided that (i)
such increase and/or such assignment is otherwise in compliance with Section
8.07, (ii) such Declining Lender receives payment in full of the principal
amount of all Advances owing to such Declining Lender, together with accrued
interest thereon to the date of such payment of principal and all other amounts
payable to such Declining Lender under this Agreement, and (iii) any such
increase shall be effective on the Revolver Termination Date in effect at the
time the Borrower requests such extension and any such assignment shall be
effective on the date specified by the Borrower and agreed to by the Replacement
Lender and the Agent. If Extending Lenders and Replacement Lenders provide
Commitments in an aggregate amount at least equal to 51% of the aggregate amount
of the Commitments outstanding 30 days prior to the Revolver Termination Date in
effect at the time the Borrower requests such extension, the Revolver
Termination Date shall be extended by 364 days for such Extending Lenders.
SECTION 2.17. Use of Proceeds. The proceeds of the Advances shall
be available (and the Borrower agrees that it shall use such proceeds) solely
for general corporate purposes of the Borrower and its Subsidiaries.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections
2.01 and 2.03. Sections 2.01 and 2.03 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, 1997.
(b) There shall exist no action, suit, investigation, litigation
or proceeding affecting either Loan Party or any of its 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 described in the SEC Reports (the
"Disclosed Litigation") or (ii) purports to affect the legality,
validity or enforceability of any Loan Document or the
35
consummation of the transactions contemplated hereby and there shall
have been no adverse change in the status, or financial effect on any
Loan Party or any of its Subsidiaries of the Disclosed Litigation from
that described in the SEC Reports.
(c) Nothing shall have come to the attention of the Lenders during
the course of their due diligence investigation to lead them to believe
that the Information Memorandum was or has become misleading, incorrect
or incomplete in any material respect; without limiting the generality
of the foregoing, 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 each Loan Party and its
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.
(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 (i) all accrued fees and expenses
of the Agent and the Lenders with respect to this Agreement, including
fees contemplated in the Information Memorandum, and (ii) all facility
fees accrued under the Original Credit Agreement as of 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 Parent shall have delivered a certificate,
substantially in form of Exhibit E hereto, signed on behalf of the
Parent by a Financial Officer of the Parent.
36
(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 the Revolving Credit Notes) in sufficient
copies for each Lender:
(i) The Revolving Credit Notes to the order of the Lenders,
respectively.
(ii) Certified copies of the resolutions of the Board of
Directors of each Loan Party 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 Secretary or an Assistant
Secretary of each Loan Party certifying the names and true
signatures of the officers of each Loan Party authorized to sign
each Loan Document to which it is a party and the other documents
to be delivered hereunder or thereunder.
(iv) An audited Consolidated balance sheet of the Borrower
and its Subsidiaries and the related statements of income and cash
flows of the Borrower and its Subsidiaries, as of December 31,
1997.
(v) A support agreement in substantially the form of Exhibit
F (as amended, supplemented or otherwise modified from time to
time in accordance with its terms, the "Support Agreement"), duly
executed by each Loan Party.
(vi) A collateral assignment agreement in substantially the
form of Exhibit G (as amended, supplemented or otherwise modified
from time to time in accordance with its terms, the "Collateral
Assignment Agreement"), duly executed by the Borrower, together
with:
(A) acknowledgment copies or stamped receipt copies of
proper financing statements (or amendments to financing
statements), duly filed on or before the Effective Date under
the Uniform Commercial Code of all jurisdictions that the
Agent may deem necessary or desirable in order to perfect and
protect the first priority liens and security interests
created under the Support Agreement and the Collateral
Assignment Agreement, covering the Assigned Rights described
in the Support Agreement and the Collateral Assignment
Agreement, and
(B) completed requests for information, dated on or
before the Effective Date, listing the financing statements
referred to in clause (A) above and all other effective
financing statements
37
filed in the jurisdictions referred to in clause (A) above
that name the Borrower as debtor, together with copies of
such other financing statements.
(vii) A favorable opinion of X.X. Xxxx, General Counsel of
the Parent and the Borrower, substantially in the form of Exhibit
H hereto and as to such other matters as any Lender through the
Agent may reasonably request.
(viii) A favorable opinion of King & Spalding, counsel for
the Agent, in form and substance satisfactory to the Agent.
SECTION 3.02. Conditions Precedent to Each Revolving Credit
Borrowing. The obligation of each Lender to make a Revolving Credit Advance on
the occasion of each Revolving Credit Borrowing shall be subject to the
conditions precedent that the Effective Date shall have occurred and on the date
of such Revolving Credit Borrowing (a) the following statements shall be true
(and each of the giving of the applicable Notice of Revolving Credit Borrowing
and the acceptance by the Borrower of the proceeds of such Revolving Credit
Borrowing shall constitute a representation and warranty by the Borrower that on
the date of such Borrowing such statements are true):
(i) the representations and warranties contained in Section 4.01
are correct on and as of the date of such Revolving Credit Borrowing,
before and after giving effect to such Revolving Credit Borrowing 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 Revolving Credit Borrowing 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. Conditions Precedent to Each Competitive Bid
Borrowing. The obligation of each Lender that is to make a Competitive Bid
Advance on the occasion of a Competitive Bid Borrowing to make such Competitive
Bid Advance as part of such Competitive Bid Borrowing is subject to the
conditions precedent that (i) the Agent shall have received the written
confirmatory Notice of Competitive Bid Borrowing with respect thereto, (ii) on
or before the date of such Competitive Bid Borrowing, but prior to such
Competitive Bid Borrowing, the Agent shall have received a Competitive Bid Note
payable to the order of such Lender for each of the one or more Competitive Bid
Advances to be made by such Lender as part of such Competitive Bid Borrowing, in
a principal amount equal to the principal
38
amount of the Competitive Bid Advance to be evidenced thereby and otherwise on
such terms as were agreed to for such Competitive Bid Advance in accordance with
Section 2.03, and (iii) on the date of such Competitive Bid Borrowing the
following statements shall be true (and each of the giving of the applicable
Notice of Competitive Bid Borrowing and the acceptance by the Borrower of the
proceeds of such Competitive Bid Borrowing shall constitute a representation and
warranty by the Borrower that on the date of such Competitive Bid Borrowing such
statements are true):
(a) the representations and warranties contained in Section 4.01
are correct on and as of the date of such Competitive Bid Borrowing,
before and after giving effect to such Competitive Bid Borrowing and to
the application of the proceeds therefrom, as though made on and as of
such date,
(b) no event has occurred and is continuing, or would result from
such Competitive Bid Borrowing or from the application of the proceeds
therefrom, that constitutes a Default, and
(c) no event has occurred and no circumstance exists as a result
of which the information concerning either Loan Party that has been
provided to the Agent and each Lender by either Loan Party in
connection herewith would include an untrue statement of a material
fact or omit to state any material fact or any fact necessary to make
the statements contained therein, in the light of the circumstances
under which they were made, not misleading.
SECTION 3.04. 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 State of Michigan.
39
(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 such Loan
Party'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.
(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 Consolidated balance sheets of the Parent and its
Subsidiaries and of the Borrower and its Subsidiaries as at December
31, 1997, and the related Consolidated statements of income and cash
flows of the Parent and its Subsidiaries and of the Borrower and its
Subsidiaries for the fiscal year then ended, accompanied by opinions of
Deloitte & Touche LLP, independent public accountants, and the
Consolidated balance sheets of the Parent and its Subsidiaries and of
the Borrower and its Subsidiaries as at September 30, 1998, and the
related Consolidated statements of income and cash flows of the Parent
and its Subsidiaries and of the Borrower and its Subsidiaries for the
nine months then ended, duly certified by a Financial Officer of the
Parent, or the Borrower, as the case may be, copies of each of which
have been furnished to each Lender, fairly present, subject in the case
of said balance sheets as at September 30, 1998 and said statements of
income and cash flows for the nine months then ended, to year-end audit
adjustments, the Consolidated financial condition of the Parent and its
Subsidiaries and of the Borrower and its Subsidiaries, as the case may
be, as at such dates all in accordance with generally accepted
accounting principles consistently applied. Since December 31, 1997,
there has been no Material Adverse Change, except as shall have been
disclosed 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 its Subsidiaries
before any court,
40
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 any Loan Party or any of its Subsidiaries
from that described in the SEC Reports.
(g) The operations and properties of the Borrower and each of its
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, and no circumstances
exist that could be reasonably likely to (i) form the basis of an
Environmental Action against the Borrower or any of its 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.
(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
this Section 4.01, 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
41
Regulation U issued by the Board of Governors of the Federal
Reserve System), and no proceeds of any Advance 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.
(n) Neither the Borrower nor any of its Subsidiaries is, or after
the making of any Advance 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) The Borrower is a "subsidiary company" of a "holding company"
(within the meaning of the Public Utility Holding Company Act of 1935,
as amended) which holding company 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.
(p) The Support Agreement (as it may be amended, supplemented,
terminated or otherwise modified in accordance with its terms) is in
full force and effect and enforceable in accordance with its terms.
(q) The Parent is reviewing its operations and those of its
Subsidiaries with a view to assessing whether its businesses, or the
business of any of its Subsidiaries, (i) will be vulnerable to a Year
2000 Problem or (ii) will be vulnerable to the effects of a Year 2000
Problem suffered by the Parent's or any of its Subsidiaries' major
counterparties, in the case of clause (ii), as described in the
Parent's Quarterly Report on Form 10-Q for the quarter ended September
30, 1998. The Borrower represents and warrants that it does not believe
that any Year 2000 Problem will impair the Borrower's ability to pay
principal or interest on the Notes in accordance with their terms.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance 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,
42
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 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 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 may consummate any
merger or consolidation permitted under Section 5.02(b) and provided
further 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 its Subsidiaries, and to discuss the affairs,
finances and accounts of the Borrower and any of its 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 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.
43
(g) Maintenance of Properties, Etc. Subject to clause (d) above,
maintain and preserve, all of its properties that are used or useful in
the conduct of its business 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 45 days
after the end of each of the first three quarters of each fiscal
year of the Parent, Consolidated balance sheet of the Parent and
its Consolidated Subsidiaries as of the end of such quarter and
Consolidated statements of income and cash flows of the Parent and
its Subsidiaries for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter;
(ii) as soon as available and in any event within 90 days
after the end of each fiscal year of the Parent, a copy of the
annual report to Shareholders for such year for the Parent and its
Consolidated Subsidiaries, containing the Consolidated balance
sheet of the Parent and its Consolidated Subsidiaries as of the
end of such fiscal year and Consolidated statements of income and
cash flows of the Parent and its Subsidiaries for such fiscal
year, in each case accompanied by (A) an opinion by Deloitte &
Touche LLP or other independent public accountants acceptable to
the Required Lenders and (B) the report by the Parent filed with
the Securities and Exchange Commission on Form U-3A-2 for such
fiscal year, containing the Consolidating balance sheet of the
Borrower and its Subsidiaries as of the end of such fiscal year
and Consolidating statements of income and Consolidating
statements of retained earnings of the Borrower and its
Subsidiaries for such fiscal year, in each case, having been
prepared in accordance with generally accepted accounting
principles consistent with those applied in the preparation of the
financial statements referred to in Section 4.01;
(iii) as soon as available and in any event within 45 days
after the end of each of the first three quarters of each fiscal
year of the Borrower, unaudited Consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of the end of such
quarter and unaudited 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, in each case duly certified (subject to
year-end audit adjustments) by a Financial Officer of the Borrower
as having been prepared in accordance with generally accepted
accounting principles consistent with those applied in the
preparation of the financial statements referred to in Section
4.01;
44
(iv) as soon as available and in any event within 90 days
after the end of each fiscal year of the Borrower, 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;
(v) 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;
(vi) promptly after the sending or filing thereof copies of
all reports and registration statements that the Borrower or any
Subsidiary files 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);
(viii) promptly upon becoming aware of any fact or
circumstance affecting the Parent or any of its Subsidiaries that
would at any time render the Borrower unable to make the
representation and warranty contained in Section 4.01(q) on such
date, a statement of a duly authorized officer of the Borrower
setting forth the details of such fact or circumstance and what
action the Parent or such Subsidiary, as the case may be, has
taken and proposes to take with respect thereto; and
(ix) 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. So long as any Advance 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 of its
Subsidiaries to create or suffer to exist, any Lien on or with respect
to any of its properties, whether now owned or hereafter acquired, or
assign, or permit any of its Subsidiaries to assign, any right to
receive income, other than:
45
(i) Permitted Liens,
(ii) purchase money Liens upon or in any real property or
equipment acquired or held by the Borrower or any Subsidiary in
the ordinary course of business to secure the purchase price of
such property or equipment or to secure Debt incurred solely for
the purpose of financing the acquisition of such property or
equipment, or Liens existing on such property or equipment at the
time of its acquisition (other than any such Liens created in
contemplation of such acquisition that were not incurred to
finance the acquisition of such property) or extensions, renewals
or replacements of any of the foregoing for the same or a lesser
amount, provided, however, that no such Lien shall extend to or
cover any properties of any character other than the real property
or equipment being acquired, and no such extension, renewal or
replacement shall extend to or cover any properties not
theretofore subject to the Lien being extended, renewed or
replaced, provided further that the aggregate principal amount of
the indebtedness secured by the Liens referred to in this clause
(ii) shall not exceed $20,000,000 at any time outstanding,
(iii) the Liens existing on the Effective Date and described
on Schedule 5.02(a) hereto,
(iv) Liens on property of a Person existing at the time such
Person is merged into or consolidated with the Borrower or any
Subsidiary of the Borrower or becomes a Subsidiary of the
Borrower; provided that such Liens were not created in
contemplation of such merger, consolidation or acquisition and do
not extend to any assets other than those of the Person so merged
into or consolidated with the Borrower or such Subsidiary or
acquired by the Borrower or such Subsidiary,
(v) other Liens securing Debt in an aggregate principal
amount not to exceed $20,000,000 at any time outstanding, and
(vi) Liens on the rights of the Borrower under one or more
agreements between the Parent and the Borrower, whereby the Parent
agrees to provide to the Borrower financial support (in the form
of cash or liquid assets) in an aggregate amount no greater than
$1,200,000,000, to the extent that the Borrower is unable to make
timely payment of interest, principal or premium (or expenses or
other obligations related thereto) on any Debt of the Borrower
(other than the Debt hereunder), provided that such Liens are
granted in favor of one or more creditors under such Debt in order
to secure the obligations of the Borrower thereunder, and
46
(vii) the replacement, extension or renewal of any Lien
permitted by clause (iii), (iv) or (vi) above upon or in the same
property theretofore subject thereto or the replacement, extension
or renewal (without increase in the amount or change in any direct
or contingent obligor) of the Debt secured thereby.
(b) 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
of its Subsidiaries to do so, except that any Subsidiary of the
Borrower may merge or consolidate with or into any other Subsidiary of
the Borrower, and except that any Subsidiary of the Borrower may merge
into or dispose of assets to the Borrower, provided, in each case, that
no Default shall have occurred and be continuing at the time of such
proposed transaction or would result therefrom.
(c) Change in Nature of Business. Make any material change in the
nature of its business as carried on at the date hereof.
(d) 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 Advance
when the same becomes due and payable; or the Borrower shall fail to
pay any interest on any Advance 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 or
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 2.10(b), 5.01(d), (e) or (h)
or 5.02 or in the Collateral Assignment Agreement, (ii) the Parent
shall fail to perform
47
or observe any term, covenant or agreement contained in the Support
Agreement, or (iii) 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
(d) Either Loan Party or any of its 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 $10,000,000 in the
aggregate (but excluding Debt outstanding hereunder and Nonrecourse
Debt) of such Loan Party or such 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) Either Loan Party or DECO 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
either Loan Party or any of its 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 either Loan Party or
any of its Subsidiaries shall take any corporate action to authorize
any of the actions set forth above in this subsection (e); or
48
(f) Any judgment or order for the payment of money in excess of
$10,000,000 shall be rendered against either Loan Party or any of its
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
either Loan Party or any of its 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 Parent shall at any time cease to hold 100% of the Voting
Stock of the Borrower or DECO; or
(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 $10,000,000 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 Parent and its Subsidiaries, on a Consolidated basis,
shall at any time cease to:
(i) Maintain a ratio of Consolidated EBITDA to cash interest
payable on all Debt (excluding, (A) such Nonrecourse Debt of their
own and of their Subsidiaries and Affiliates as would be listed as
such in the financial statements of the Parent of the kind
delivered pursuant to Section 5.01(h)(ii) and (iii) and (B) the
Junior Subordinated Debentures) of not less than 2:1 for each
period of four consecutive fiscal quarters ending on the last day
of September, December, March and June of each year, or
(ii) Maintain a ratio of Consolidated Debt (excluding, (A)
such Nonrecourse Debt of their own and of their Subsidiaries as
would be listed in the financial statements of the Parent and (B)
the Junior Subordinated Debentures) 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 any Loan Party to it, or any such
Loan Party shall so state in writing;
49
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 to make Advances to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the Notes,
all interest thereon and all other amounts payable under this Agreement to be
forthwith due and payable, whereupon the Notes, 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; 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 to make Advances
shall automatically be terminated and (B) the Notes, 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.
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
Notes), 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, and such instructions shall be binding upon all Lenders
and all holders of Notes; 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 of any Note as the holder thereof until the Agent receives and accepts
an Assignment and Acceptance entered into by the Lender that is the payee of
such Note, 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
50
selected 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. Citibank and Affiliates. With respect to its
Commitment, the Advances made by it and the Note issued to it, Citibank 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 Citibank in its
individual capacity. Citibank 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 Citibank 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 (other than the
Designated Bidders) agree to indemnify the Agent (to the extent not reimbursed
by the Borrower), ratably according to the respective principal amounts of the
Revolving Credit Notes then held by each of them (or if no Revolving Credit
Notes are at the time outstanding or if any Revolving Credit Notes are held by
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
51
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 gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender (other than
the Designated Bidders) 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.
52
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Revolving Credit 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 (other than
the Designated Bidders), 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 Revolving Credit Notes or any fees or other
amounts payable hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the Revolving Credit Notes or any fees or other
amounts payable hereunder, (e) change the percentage of the Commitments or of
the aggregate unpaid principal amount of the Revolving Credit Notes, or the
number of Lenders, that shall be required for the Lenders or any of them to take
any action hereunder or (f) amend this Section 8.01; and provided further that
no 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.
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 000 Xxxxxx Xxxxxx, Xxxxxxx, XX 00000,
Attention: Xxxxxxxxxxx X. Xxxxxx; 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 Xxx Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxxxx 00000 Attention:
Xxxxxxxxx Xxxxxxxx, with a copy to J. Xxxxxxxx XxXxx, 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000; 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.
53
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 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 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
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 and each Lender in connection with the enforcement of rights under this
Section 8.04(a).
(b) The Borrower agrees to indemnify, to the extent legally
permissible, and hold harmless the Agent 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 of
the transactions contemplated herein or therein or the actual or proposed use of
the proceeds of the Advances 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
54
or willful misconduct. The Borrower also agrees not to assert any claim against
the Agent, 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 of the transactions contemplated herein or therein or the actual or proposed
use of the proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance or LIBO 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 Advance,
as a result of a payment or Conversion pursuant to Section 2.08(d) or (e), 2.10
or 2.12, acceleration of the maturity of the Notes 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 Advance.
(d) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of each Loan Party contained
in Sections 2.11, 2.14 and 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 Notes due and payable pursuant to the provisions of Section 6.01,
each Lender 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 or such
Affiliate to or for the credit or the account of either Loan Party against any
and all of the obligations of either Loan Party now or hereafter existing under
the Loan Documents Agreement and the Note held by such Lender, whether or not
such Lender shall have made any demand under this Agreement or such Note and
although such obligations may be unmatured. Each Lender agrees promptly to
notify such Loan Party 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 and its Affiliates under this Section are
in addition to other rights and remedies (including, without limitation, other
rights of set-off) that such Lender and its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective (other than Sections 2.01 and 2.03, which shall only become effective
upon
55
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 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.
SECTION 8.07. Assignments, Designations and Participations. (a)
Each Lender (other than the Designated Bidders) may 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
Revolving Credit Advances owing to it and the Revolving Credit Note or Notes
held by it); provided, however, that (i) each such assignment shall be of a
constant, and not a varying, percentage of all rights and obligations under this
Agreement (other than any right to make Competitive Bid Advances, Competitive
Bid Advances owing to it and Competitive Bid Notes), (ii) 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 (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, (iii) each
such assignment shall be to an Eligible Assignee, and (iv) 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
Revolving Credit 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, (x) 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 (y) 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,
56
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 Revolving Credit 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 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 its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Agent in exchange for the surrendered Revolving
Credit 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, a new Revolving
Credit Note to the order of the assigning Lender in an amount equal to the
Commitment retained by it hereunder. Such new Revolving Credit Note or Notes
shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Revolving Credit 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-1 hereto.
(d) Each Lender (other than the Designated Bidders) may designate one
or more banks or other entities to have a right to make Competitive Bid Advances
as a Lender pursuant to Section 2.03; provided, however, that (i) no such Lender
shall be entitled to make more than two such designations, (ii) each such Lender
making one or more of such designations shall retain the right to make
Competitive Bid Advances as a Lender pursuant to Section 2.03, (iii) each such
designation shall be to a Designated Bidder and (iv) the parties to each such
designation shall execute and deliver to the Agent, for its acceptance and
recording in the Register, a Designation Agreement.
57
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Designation Agreement, the designee thereunder
shall be a party hereto with a right to make Competitive Bid Advances as a
Lender pursuant to Section 2.03 and the obligations related thereto.
(e) By executing and delivering a Designation Agreement, the Lender
making the designation thereunder and its designee thereunder confirm and agree
with each other and the other parties hereto as follows: (i) such 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 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 designee
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 Designation Agreement; (iv) such designee will,
independently and without reliance upon the Agent, such designating 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 designee confirms that it is a
Designated Bidder; (vi) such designee 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 designee agrees that it will perform in accordance with their terms all of
the obligations which by the terms of this Agreement are required to be
performed by it as a Lender.
(f) Upon its receipt of a Designation Agreement executed by a
designating Lender and a designee representing that it is a Designated Bidder,
the Agent shall, if such Designation Agreement has been completed and is
substantially in the form of Exhibit D hereto, (i) accept such Designation
Agreement, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower.
(g) The Agent shall maintain at its address referred to in Section 8.02
a copy of each Assignment and Acceptance and each Designation Agreement
delivered to and accepted by it and a register for the recordation of the names
and addresses of the Lenders and, with respect to Lenders other than Designated
Bidders, the Commitment of, and principal amount of the Advances 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
58
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.
(h) 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 Advances owing to it and the
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 holder of any such Note 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 reduce the principal of, or interest on, the Notes or
any fees or other amounts payable hereunder, 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 Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation.
(i) 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.
(j) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
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.
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(i), to actual or prospective assignees and
participants, and then only on a
59
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 either Loan Party
received by it from such Lender and (d) as requested or required by any state,
federal or foreign authority or examiner regulating banks or banking.
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 City, 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. Effective Date. As of the Effective Date, (i) the
Original Credit Agreement is amended and restated in full as set forth in this
Agreement, (ii) the Commitments (including the Existing Commitments) are
restated as set forth in the signature pages hereof, (iii) the Existing Notes
are cancelled and
60
replaced by the Notes, and (iv) all obligations which, by the terms of the
Original Credit Agreement, are evidenced by the Existing Notes are evidenced by
the Notes.
SECTION 8.13. Waiver of Jury Trial. Each of the Borrower, the
Agent 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 or any Lender in the negotiation, administration,
performance or enforcement thereof.
61
SIGNATURE PAGE TO CREDIT AGREEMENT
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 CAPITAL CORPORATION
By /s/ X.X. Xxxxxx
-------------------------------------
Assistant Treasurer
62
Commitment Lenders
-----------------------------------------------
$30,000,000 CITIBANK, N.A.
By /s/ Xxxxx Xxxxxxxx
-------------------
Managing Director
SIGNATURE PAGE TO CREDIT AGREEMENT
63
$26,250,000 ABN AMRO BANK N.V.
By /s/ Xxxx X. Xxxxx
------------------
Group Vice President
By /s/ Xxxxxx X. Xxx XX
---------------------
Assistant Vice President
SIGNATURE PAGE TO CREDIT AGREEMENT
64
$26,250,000 BARCLAYS BANK PLC
By /s/
---
Name:
Title:
SIGNATURE PAGE TO CREDIT AGREEMENT
65
$26,250,000 BAYERISCHE LANDESBANK
GIROZENTRALE, CAYMAN
ISLANDS BRANCH
By
---------------------------------------
Name:
Title:
By
---------------------------------------
Name:
Title:
SIGNATURE PAGE TO CREDIT AGREEMENT
66
$26,250,000 COMERICA BANK
By
---------------------------------------
Name:
Title:
SIGNATURE PAGE TO CREDIT AGREEMENT
67
$26,250,000 DEN DANSKE BANK AKTIESELSKAB
By
---------------------------------------
Name:
Title:
By
---------------------------------------
Name:
Title:
SIGNATURE PAGE TO CREDIT AGREEMENT
68
$26,250,000 THE FIRST NATIONAL BANK OF
By
---------------------------------------
Name:
Title:
SIGNATURE PAGE TO CREDIT AGREEMENT
69
$20,000,000 THE BANK OF NEW YORK
By
---------------------------------------
Name:
Title:
SIGNATURE PAGE TO CREDIT AGREEMENT
70
$20,000,000 THE BANK OF NOVA SCOTIA
By
---------------------------------------
Name:
Title:
SIGNATURE PAGE TO CREDIT AGREEMENT
71
$20,000,000 THE CHASE MANHATTAN BANK
By
---------------------------------------
Name:
Title:
SIGNATURE PAGE TO CREDIT AGREEMENT
72
$20,000,000 SOCIETE GENERALE, CHICAGO
BRANCH
By
---------------------------------------
Name:
Title:
SIGNATURE PAGE TO CREDIT AGREEMENT
73
$15,250,000 BW CAPITAL MARKETS, INC.
By
---------------------------------------
Name:
Title:
By
---------------------------------------
Name:
Title:
74
$15,250,000 BANK HAPOALIM B.N.
By
---------------------------------------
Name:
Title:
By
---------------------------------------
Name:
Title:
75
$12,000,000 THE INDUSTRIAL BANK OF JAPAN,
By
---------------------------------------
Name:
Title:
76
$12,000,000 MELLON BANK, N.A.
By
---------------------------------------
Name:
Title:
77
$12,000,000 MICHIGAN NATIONAL BANK
By
---------------------------------------
Name:
Title:
78
$12,000,000 PARIBAS
By
---------------------------------------
Name:
Title:
By
---------------------------------------
Name:
Title:
79
$12,000,000 THE SANWA BANK, LIMITED, CHICAGO
BRANCH
By
---------------------------------------
Name:
Title:
80
$12,000,000 UNION BANK OF CALIFORNIA, N.A.
By
----------------------------
Name:
Title:
81
$10,000,000 CIBC, INC.
By
---------------------------------------
Name:
Title:
82
$10,000,000 THE DAI-ICHI KANGYO BANK, LTD.
By
---------------------------------------
Name:
Title:
83
$10,000,000 KEYBANK NATIONAL ASSOCIATION
By
---------------------------------------
Name:
Title:
By
---------------------------------------
Name:
Title:
84
SCHEDULE I
DTE CAPITAL CORPORATION
APPLICABLE LENDING OFFICES
------------------------------------------------------------------------------------------------------------------
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
------------------------------------------------------------------------------------------------------------------
Citibank, N.A. Two Penns Way, Suite 200 Same as Domestic Xxxxxxx Xxxxxx
Xxx Xxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxxxx
Telecopier: (000) 000-0000
------------------------------------------------------------------------------------------------------------------
ABN AMRO Bank N.V. 000 Xxxxx XxXxxxx, Xxxxx 0000 Same as Domestic Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Loan Administration
Telecopier: (000) 000-0000
------------------------------------------------------------------------------------------------------------------
Bank Hapoalim B.N. 1177 Avenue of the Americas Same as Domestic Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telecopier: (000) 000-0000
------------------------------------------------------------------------------------------------------------------
The Bank of New York One Wall Street Same as Domestic Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telecopier: (000) 000-0000
------------------------------------------------------------------------------------------------------------------
The Bank of Nova Scotia 000 Xxxxxxxxx Xx. X.X., Xxxxx 0000 Same as Domestic Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Telecopier: (000) 000-0000
------------------------------------------------------------------------------------------------------------------
Xxxxxxxx Xxxx XXX 00 Xxxx Xxxxxx 000 Xxxxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxxxx Attention: Xxxx Xxxxxxxx
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
------------------------------------------------------------------------------------------------------------------
Bayerische Landesbank 000 Xxxxxxxxx Xxxxxx Same as Domestic Xxxxxxx Xxxxxx
Xxxxxxxxxxxx Xxx Xxxx, XX 00000
Attention: Xxxx X'Xxxxxxxx
Telecopier: (000) 000-0000
------------------------------------------------------------------------------------------------------------------
BW Capital Markets, Inc. 000 Xxxxx Xxxxxx Same as Domestic Lending Xxxxxx
Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxx
Telecopier: (000) 000-0000
------------------------------------------------------------------------------------------------------------------
The Chase Manhattan Bank One Chase Manhattan Plaza Same as Domestic Xxxxxxx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxx
Telecopier: (000) 000-0000
------------------------------------------------------------------------------------------------------------------
CIBC, Inc. Two Paces West Same as Domestic Lending Xxxxxx
0000 Xxxxx Xxxxx Xxxx, Xxxxx 0000
Xxxxxxx, XX 00000
SIGNATURE PAGE TO CREDIT AGREEMENT
85
------------------------------------------------------------------------------------------------------------------
Attention: Xxxxxx Xxxxxxx
Telecopier: (000) 000-0000
------------------------------------------------------------------------------------------------------------------
Comerica Bank 000 Xxxxxxxx Xxxxxx, XX 0000 Same as Domestic Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxxxx
Telecopier: (000) 000-0000
------------------------------------------------------------------------------------------------------------------
The Dai-Ichi Kangyo 00 X. Xxxxxx Xxxxx, Xxxxx 0000 10 X. Xxxxxx Drive, Suite 2600
Bank, Ltd. Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx Attention: X. Xxxxxxxx
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
------------------------------------------------------------------------------------------------------------------
Den Xxxxxx Xxxx 000 Xxxx Xxxxxx, 0xx Xxxxx Same as Domestic Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Loan Administration
Telecopier: (000) 000-0000
------------------------------------------------------------------------------------------------------------------
The First National Bank One First National Plaza Same as Domestic Xxxxxxx Xxxxxx
xx Xxxxxxx Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telecopier: (000) 000-0000
------------------------------------------------------------------------------------------------------------------
The Industrial Bank of Japan, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000 Same as Domestic Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telecopier: (000) 000-0000
------------------------------------------------------------------------------------------------------------------
KeyBank National Association 000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx Attention: Xxxxx Xxxxxxx
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
------------------------------------------------------------------------------------------------------------------
Mellon Bank, N.A. Three Mellon Bank Center, Rm 2332 Same as Domestic Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxx
Telecopier: (000) 000-0000
------------------------------------------------------------------------------------------------------------------
Michigan National Bank 00000 Xxxxxxx Xxxx Same as Domestic Xxxxxxx Xxxxxx
Xxxx. 00-00
Xxxxxxxxxx Xxxxx, XX 00000-0000
Attention: Xxxxx Xxxxx
Telecopier: (000) 000-0000
------------------------------------------------------------------------------------------------------------------
Paribas 000 Xxxxxxx Xxxxxx Same as Domestic Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telecopier: (000) 000-0000
------------------------------------------------------------------------------------------------------------------
The Sanwa Bank 00 Xxxxx Xxxxxx Xxxxx Same as Domestic Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxx
Telecopier: (000) 000-0000
------------------------------------------------------------------------------------------------------------------
Societe Generale 000 Xxxx Xxxxxxx, Xxxxx 0000 000 Xxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attention: R. Xxxx Xxxxxx Attention: Xxxxxx Tune
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
SIGNATURE PAGE TO CREDIT AGREEMENT
86
------------------------------------------------------------------------------------------------------------------
Union Bank of Energy Capital Services Same as Domestic Lending Office
California, N.A. 000 X. Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxxx
Telecopier: (000) 000-0000
------------------------------------------------------------------------------------------------------------------
SIGNATURE PAGE TO CREDIT AGREEMENT
87
Schedule 5.02(a)
Existing Liens
None.
SIGNATURE PAGE TO CREDIT AGREEMENT
88
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 199
FOR VALUE RECEIVED, the undersigned, DTE CAPITAL CORPORATION, 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) or, if the Borrower makes a Term Loan Election, on
the Maturity 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 Second Amended and Restated Credit
Agreement dated as of January 19, 1999 (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 Citibank, N.A., as Agent for the Lender and such other
lenders outstanding on the Revolver Termination Date or Maturity Date, as
applicable.
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 Citibank, N.A., as Agent, at Xxx Xxxxx Xxx, Xxxxx 000, Xxx
Xxxxxx, Xxxxxxxx 00000, Account No. 00000000, Attention: Xxxxxxxxx Xxxxxxxx, 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 Revolving Credit 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 CAPITAL CORPORATION
By
------------------------------------------
Title:
SIGNATURE PAGE TO CREDIT AGREEMENT
89
ADVANCES AND PAYMENTS OF PRINCIPAL
==============================================================================================================================
Amount of Amount of Principal Unpaid Notation
Date Advance Paid or Prepaid Principal Made By
Balance
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
==============================================================================================================================
SIGNATURE PAGE TO CREDIT AGREEMENT
90
EXHIBIT A-2 - FORM OF
COMPETITIVE BID
PROMISSORY NOTE
U.S.$_______________
Dated: _______________, ____
FOR VALUE RECEIVED, the undersigned, DTE CAPITAL CORPORATION, a
Michigan corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender") for the account of its Applicable
Lending Office (as defined in the Second Amended and Restated Credit Agreement
dated as of January 19, 1999 (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 Citibank, N.A., as Agent for the Lender and such other lenders), on
_______________, ____ the principal amount of $U.S. ______________.
The Borrower promises to pay interest on the unpaid principal amount
hereof from the date hereof until such principal amount is paid in full, at the
interest rate and payable on the interest payment date or dates provided below:
Interest Rate: _____% per annum (calculated on the basis of a year of
_____ days for the actual number of days elapsed).
Both principal and interest are payable in lawful money of the United
States of America to _________________________ for the account of the Lender at
the office of _________________________, at _________________________ in same
day funds.
This Promissory Note is one of the Competitive Bid Notes referred to
in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and notice of
any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of New York.
DTE CAPITAL CORPORATION
By
---------------------------------------
Title:
SIGNATURE PAGE TO CREDIT AGREEMENT
91
EXHIBIT B-1 - FORM OF NOTICE OF
REVOLVING CREDIT BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 [Date]
Attention: _______________
Ladies and Gentlemen:
The undersigned, DTE Capital Corporation, refers to the Second
Amended and Restated Credit Agreement, dated as of January 19, 1999 (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 ____________________, 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 Revolving Credit Borrowing under the
Credit Agreement, and in that connection sets forth below the information
relating to such Revolving Credit Borrowing (the "Proposed Revolving Credit
Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Revolving Credit Borrowing is
_______________, ____.
(ii) The Type of Advances comprising the Proposed Revolving Credit
Borrowing is [Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Revolving Credit
Borrowing is $_______________.
[(iv) The initial Interest Period for each Eurodollar Rate Advance
made as part of the Proposed Revolving Credit 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 Revolving
Credit 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 Revolving Credit Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date; and
SIGNATURE PAGE TO CREDIT AGREEMENT
92
(B) no event has occurred and is continuing, or would result from
such Proposed Revolving Credit Borrowing or from the application of the
proceeds therefrom, that constitutes a Default.
Very truly yours,
DTE CAPITAL CORPORATION
By
----------------------------------------
Title:
SIGNATURE PAGE TO CREDIT AGREEMENT
93
EXHIBIT B-2 - FORM OF NOTICE OF
COMPETITIVE BID BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 [Date]
Attention: _______________
Ladies and Gentlemen:
The undersigned, DTE Capital Corporation, refers to the Second
Amended and Restated Credit Agreement, dated as of January 19, 1999 (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 Citibank, N.A., as Agent for said Lenders, and hereby gives
you notice, irrevocably, pursuant to Section 2.03 of the Credit Agreement that
the undersigned hereby requests a Competitive Bid Borrowing under the Credit
Agreement, and in that connection sets forth the terms on which such Competitive
Bid Borrowing (the "Proposed Competitive Bid Borrowing") is requested to be
made:
(A) Date of Competitive Bid Borrowing ________________________
(B) Amount of Competitive Bid Borrowing ________________________
(C) [Maturity Date] [Interest Period] ________________________
(D) Interest Rate Basis ________________________
(E) Interest Payment Date(s) ________________________
(F) ___________________ ________________________
(G) ___________________ ________________________
(H) ___________________ ________________________
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Competitive Bid 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 Competitive Bid Borrowing and to the application
of the proceeds therefrom, as though made on and as of such date;
SIGNATURE PAGE TO CREDIT AGREEMENT
94
(b) no event has occurred and is continuing, or would result
from the Proposed Competitive Bid Borrowing or from the application of
the proceeds therefrom, that constitutes a Default;
(c) no event has occurred and no circumstance exists as a
result of which the information concerning the undersigned that has
been provided to the Agent and each Lender as of the date hereof by the
undersigned in connection with the Credit Agreement would include an
untrue statement of a material fact or omit to state any material fact
or any fact necessary to make the statements contained therein, in the
light of the circumstances under which they were made, not misleading;
and
(d) the aggregate amount of the Proposed Competitive Bid
Borrowing and all other Borrowings to be made on the same day under the
Credit Agreement is within the aggregate amount of the unused
Commitments of the Lenders.
The undersigned hereby confirms that the Proposed Competitive
Bid Borrowing is to be made available to it in accordance with Section
2.03(a)(v) of the Credit Agreement.
Very truly yours,
DTE CAPITAL CORPORATION
By
--------------------------------
Title:
SIGNATURE PAGE TO CREDIT AGREEMENT
95
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Second Amended and Restated Credit Agreement
dated as of January 19, 1999 (as amended or modified from time to time, the
"Credit Agreement") among DTE Capital Corporation, a Michigan corporation (the
"Borrower"), the Lenders (as defined in the Credit Agreement) and Citibank,
N.A., 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 I 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 (other than in respect of Competitive Bid Advances and Competitive Bid
Notes) equal to the percentage interest specified on Schedule 1 hereto of all
outstanding rights and obligations under the Credit Agreement (other than in
respect of Competitive Bid Advances and Competitive Bid Notes). After giving
effect to such sale and assignment, the Assignee's Commitment and the amount of
the Revolving Credit Advances 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 Revolving Credit Note held by the Assignor and requests
that the Agent exchange such Revolving Credit Note for a new Revolving Credit
Note payable to the order of the Assignee in an amount equal to the Commitment
assumed by the Assignee pursuant hereto or new Revolving Credit Notes payable to
the order of the Assignee in an amount equal to the Commitment assumed by the
Assignee pursuant hereto 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
SIGNATURE PAGE TO CREDIT AGREEMENT
96
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 2.14 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 Revolving Credit Notes in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest and facility
fees with respect thereto) to the Assignee. The Assignor and Assignee shall make
all appropriate adjustments in payments under the Credit Agreement and the
Revolving Credit 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.
SIGNATURE PAGE TO CREDIT AGREEMENT
97
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.
SIGNATURE PAGE TO CREDIT AGREEMENT
98
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
Assignee's Commitment: $__________
Aggregate outstanding principal amount of Revolving Credit Advances assigned: $__________
Principal amount of Revolving Credit Note payable to Assignee: $__________
Principal amount of Revolving Credit Note 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.
SIGNATURE PAGE TO CREDIT AGREEMENT
99
Accepted [and Approved](2) this
__________ day of _______________, ____
_________________________, as Agent
By____________________________
Title:
[Approved this __________ day of _______________, ____.]
[NAME OF BORROWER]
By____________________________]**
Title:
(2) Required if the Asignee is an Eligible Asignee solely by reason of clause
(viii) of the definition of "Eligible Asignee".
SIGNATURE PAGE TO CREDIT AGREEMENT
100
EXHIBIT D - FORM OF
DESIGNATION AGREEMENT
Dated _______________, ____
Reference is made to the Second Amended and Restated Credit Agreement
dated as of January 19, 1999 (as amended or modified from time to time, the
"Credit Agreement") among DTE Capital Corporation, a Michigan corporation (the
"Borrower"), the Lenders (as defined in the Credit Agreement) and Citibank,
N.A., as agent for the Lenders (the "Agent"). Terms defined in the Credit
Agreement are used herein with the same meaning.
_________________________ (the "Designor") and _______________________
(the "Designee") agree as follows:
1. The Designor hereby designates the Designee, and the Designee hereby
accepts such designation, to have a right to make Competitive Bid Advances
pursuant to Section 2.03 of the Credit Agreement.
2. The Designor makes no representation or warranty and assumes no
responsibility with respect to (i) 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, 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 thereto and (ii) 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.
3. The Designee (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
Designation Agreement; (ii) agrees that it will, independently and without
reliance upon the Agent, the Designor 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 a Designated Bidder; (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; and (v) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender.
4. Following the execution of this Designation Agreement by the
Designor and its Designee, it will be delivered to the Agent for acceptance and
SIGNATURE PAGE TO CREDIT AGREEMENT
101
recording by the Agent. The effective date for this Designation Agreement (the
"Effective Date") shall be the date of acceptance hereof by the Agent, unless
otherwise specified on the signature page hereto.
5. Upon such acceptance and recording by the Agent, as of the Effective
Date, the Designee shall be a party to the Credit Agreement with a right to make
Competitive Bid Advances as a Lender pursuant to Section 2.03 of the Credit
Agreement and the rights and obligations of a Lender related thereto.
6. This Designation Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
7. This Designation 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 Designation Agreement by telecopier
shall be effective as delivery of a manually executed counterpart of this
Designation Agreement.
IN WITNESS WHEREOF, the Designor and the Designee have caused this
Designation Agreement to be executed by their officers thereunto duly authorized
as of the date first above written.
Effective Date(3): _______________, _____
[NAME OF DESIGNOR],
as Designor
By________________________________________
Title:
[NAME OF DESIGNEE],
as Designee
By________________________________________
Title:
Applicable Lending Office (and address for notices):
[Address]
(3) This date should be no earlier than five Business Days after the delivery
of this Designation Agreement to the Agent.
SIGNATURE PAGE TO CREDIT AGREEMENT
102
Accepted this ____ day
of _______________, ____
_________________________, as Agent
By____________________________
Title:
SIGNATURE PAGE TO CREDIT AGREEMENT
103
EXHIBIT E - FORM OF CERTIFICATE
BY DTE ENERGY COMPANY
DTE ENERGY COMPANY
OFFICER'S CERTIFICATE
I, _________________________, [Insert title of Financial Officer (as
defined in the Credit Agreement)] of DTE ENERGY COMPANY, a Michigan corporation
(the "Parent"), DO HEREBY CERTIFY, in connection with a Borrowing on this date
under the Second Amended and Restated Credit Agreement dated as of January 19,
1999 among DTE Capital Corporation, the Banks parties thereto, Citibank, N.A.,
as agent for said Banks (the "Credit Agreement", the terms defined therein being
used herein as therein defined), that:
1. The Parent 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 Parent of the Support
Agreement, and the consummation of the transactions contemplated hereby and
thereby, are within the Parent's corporate powers, have been duly
authorized by all necessary corporate action, and do not contravene (i) the
Parent's charter or by-laws or (ii) law or any contractual restriction
binding on or affecting the Parent.
3. All governmental and third party consents and approvals necessary in
connection with the transactions contemplated by the Support Agreement and
the other Loan Documents to which the Parent is a party 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 that restrains, prevents or imposes materially adverse
conditions upon the Parent with respect to the transactions contemplated by
the Loan Documents to which it is a party.
4. The Support Agreement has been, and each of the other Loan Documents
to which the Parent is a party when delivered pursuant to the Credit
Agreement will have been, duly executed and delivered by the Parent. The
Support Agreement is, 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 Parent enforceable against the Parent in accordance with
their respective terms, subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar law affecting creditors
rights generally.
5. The Consolidated balance sheet of the Parent and its Subsidiaries as
at December 31, 1997, and the related Consolidated statements of income and
cash flows of the Parent and its Subsidiaries for the fiscal year then
ended,
SIGNATURE PAGE TO CREDIT AGREEMENT
104
accompanied by an opinion of Deloitte & Touche LLP, independent public
accountants, and the Consolidated balance sheet of the Parent and its
Subsidiaries as at September 30, 1998 and the related Consolidated
statements of income and cash flows of the Parent and its Subsidiaries for
the nine months then ended, copies of which have been furnished to each
Lender, attached hereto as Annex A are hereby duly certified by [Insert
title of Financial Officer], as fairly presenting, subject in the case of
said balance sheet as at September 30, 1998, and said statements of income
and cash flows for the nine months then ended, to year-end audit
adjustments, the Consolidated financial condition of the Parent and its
Subsidiaries as at such dates and the Consolidated results of the
operations of the Parent and its Subsidiaries for the periods ended on such
dates, all in accordance with generally accepted accounting principles
consistently applied. Since December 31, 1997 there has been no Material
Adverse Change with respect to the Parent.
IN WITNESS WHEREOF, I have signed this certificate this 19th day of
January, 1999.
------------------------------------
[Title:]
SIGNATURE PAGE TO CREDIT AGREEMENT
105
EXHIBIT F - FORM OF SUPPORT
AGREEMENT BETWEEN DTE
COMPANY AND DTE CAPITAL
CORPORATION
THIS SUPPORT AGREEMENT, dated as of January 19, 1999, is between DTE
ENERGY COMPANY, a Michigan corporation ("PARENT"), and DTE CAPITAL CORPORATION,
a Michigan corporation ("SUBSIDIARY").
WHEREAS, Parent is the owner of 100% of the outstanding common stock of
Subsidiary;
WHEREAS, Subsidiary intends from time to time to make borrowings from
the lenders party to the Second Amended and Restated $400,000,000 Credit
Agreement (such agreement as it may be amended and in effect from time to time,
the "CREDIT AGREEMENT"), dated as of January 19, 1999 among the Subsidiary, the
lenders party thereto and Citibank, N.A. as Administrative Agent (such lenders
and the Administrative Agent being hereinafter collectively referred to as the
"LENDERS"), and to issue debt securities to the Lenders pursuant to the Credit
Agreement (such borrowings and debt securities, including without limitation all
interest, fees, expenses and other amounts payable in accordance with the
documentation relating to such borrowings and debt securities being hereinafter
collectively referred to as "DEBT");
WHEREAS, Parent and Subsidiary desire to take certain actions to
enhance and maintain the financial condition of Subsidiary as hereinafter set
forth in order to enable Subsidiary and its subsidiaries to incur indebtedness
on more advantageous and reasonable terms; and
WHEREAS, the Lenders will rely upon this Agreement in making loans or
extending credit to Subsidiary;
NOW, THEREFORE, in consideration of the premises, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. SECTION STOCK OWNERSHIP. During the term of this Agreement, Parent
will own all of the voting common stock of Subsidiary and The Detroit Edison
Company ("DECO") now or hereafter issued and outstanding.
1. SECTION NEGATIVE PLEDGE. During the term of this Agreement, Parent
will not create or suffer to exist any lien, security interest or other charge
of encumbrance, upon or with respect to any voting common stock of DECO from
time to time owned by Parent or any capital stock of Subsidiary from time to
time owned by Parent, provided, however, that any restriction on the payment of
dividends by DECO or Subsidiary contained in any subordinated debt instrument,
preferred stock or preference stock of
SIGNATURE PAGE TO CREDIT AGREEMENT
106
DECO or Subsidiary shall not constitute a lien, security interest or other
charge or encumbrance.
1. SECTION LIQUIDITY PROVISION. If, during the term of this
Agreement, Subsidiary is unable to make timely payment of interest, principal or
premium, if any, on any Debt owing to any Lender by Subsidiary, Parent promptly
shall provide to Subsidiary, at its request, such funds (in the form of cash or
liquid assets) in an amount sufficient to permit Subsidiary to make timely
payment in respect of such Debt as equity or as a loan, as Parent shall
determine in its sole discretion. If such funds are advanced to Subsidiary as a
loan, such loan shall be on such terms and conditions, including maturity and
rate of interest, as Parent and Subsidiary shall agree. Notwithstanding the
foregoing, any such loan shall be subordinated to any and all Debt of Subsidiary
owing to any Lender to the extent and in the manner set forth in Section 7
below. Each of the parties hereto acknowledges that Parent's obligations
hereunder do not constitute a guarantee by Parent of Debt of the Subsidiary.
1. SECTION WAIVERS. Parent hereby waives any failure or delay on the
part of Subsidiary in asserting or enforcing any of its rights or in making any
claims or demands hereunder. Subsidiary or any Lender may at any time, without
Parent's consent, without notice to Parent and without affecting or impairing
Subsidiary's or such Lender's rights or Parent's obligations hereunder, do any
of the following with respect to any Debt: (a) make changes modifications,
amendments or alterations, by operation of law or otherwise, including, without
limitation, any increase in the principal amount of such Debt or the rate of
interest payable thereon or any changes in the method of calculating the rate of
interest payable thereon, (b) grant renewals and extensions and extensions of
time, for payment or otherwise, (c) accept new or additional documents,
instruments or agreements relating to or in substitution of said Debt, or (d)
otherwise handle the enforcement of their respective rights and remedies in
accordance with their business judgment.
1. SECTION AMENDMENT, SUSPENSION. This Agreement may be amended or
terminated at any time by written amendment or agreement signed by both parties;
provided, however, that except as set forth in the next succeeding sentence, no
amendment to the Agreement which adversely affects the rights of Subsidiary or
any Lender and no termination of this Agreement shall be effective as to
Subsidiary or any Lender until such time as all Debt owing to such Lender by
Subsidiary on the date of such amendment or termination shall have been paid in
full and such Lender's Commitment (as defined in the Credit Agreement) shall
have been terminated, unless such Lender shall consent in writing to the
contrary. Notwithstanding the foregoing, Parent's obligations under this
Agreement shall be suspended and shall be of no force and effect as to the
parties hereto and as to all Lenders if and for so long as (i) Subsidiary shall
have (A) a long-term debt rating of not less than "A-" from Standard & Poor's
Corporation or its successor ("S&P) or a long-term debt rating of not less than
"A3" from Xxxxx'x Investors Service or its successor ("XXXXX'X") or (B) a
short-term debt rating of not less that "A-2" from S&P or a short-term debt
rating of not less than "Prime-2" from
SIGNATURE PAGE TO CREDIT AGREEMENT
107
Moody's and (ii) Parent shall have submitted a written request to the Subsidiary
that its obligations under this Agreement be so suspended (with a copy to the
Administrative Agent) and shall not have revoked such request in writing. Parent
covenants that it will revoke any such request to the extent that the suspension
of Parent's obligations under this Agreement has an adverse effect on any debt
rating of Subsidiary. For purposes of this Section 5, ratings shall be based
upon unsecured non-credit enhanced debt of Subsidiary.
1. SECTION RIGHTS OF LENDER. Subsidiary hereby assigns and pledges to
the Lenders, for the ratable benefit of each Lender, Subsidiary's rights under
Sections 1, 2, 3 and 4 of this Agreement, and, if Subsidiary fails or refuses to
take timely action to enforce its rights under Section 1, 2, 3 or 4 of this
Agreement, any Lender may enforce such rights on behalf of Subsidiary directly
against Parent. Parent hereby consents to such assignment and pledge. This
assignment and pledge secures all obligations of Subsidiary under the Credit
Agreement and the Notes (as defined in the Credit Agreement). Subsidiary and
Parent agree, for the benefit of the Lenders, to execute and deliver all further
instruments and documents, and take all further action, that Lenders may request
in order to perfect and protect any security interest purported to be granted
hereby or to enable the Lenders to enforce their rights and remedies hereunder.
1. SECTION SUBORDINATION. All loans made by Parent to Subsidiary
pursuant to Section 3 hereof (the "SUBORDINATED LOANS") shall be subordinate and
junior in right of payment to the prior payment in full of all Debt from time to
time outstanding owing to ally Lender, to the extent and in the manner provided
below:
a) Unless and until all Debt owing to the Lenders shall have
been paid in full and the Commitments shall have been terminated:
(1) Parent will not sell, assign or otherwise transfer any claim
against Subsidiary in respect of any Subordinated Loan unless such transfer is
made expressly subject to this Agreement and the transferee shall execute an
instrument whereby the transferee agrees to be bound by the provisions of this
Section 7;
(1) Subsidiary will not make, and Parent will not demand, accept
or receive, any direct or indirect payment (in cash, property, by set-off or
otherwise) of or on account of any Subordinated Loan, and no such payment shall
be due, except that nothing contained in this Section 7(a) shall prevent
Subsidiary from making, or Parent from accepting and receiving, any payment on
account of Subordinated Loans, if there is not then in existence a default by
Subsidiary under the Credit Agreement or the Notes (as defined in the Credit
Agreement) or a default by Parent under this Agreement.
a) In the event of (x) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition or other similar
proceeding relative to Subsidiary or its creditors of its property, or (y) any
proceeding for the voluntary liquidation, dissolution or other winding up of
subsidiary, whether or not
SIGNATURE PAGE TO CREDIT AGREEMENT
108
involving insolvency or bankruptcy proceedings, or (z) any assignment for the
benefit of creditors or other marshalling of the assets of Subsidiary, then and
in any such event:
(1) all Debt owing to the Lenders shall be paid in full before
any payment or distribution of any character (whether in cash, securities or
other property) shall be made in respect of any Subordinated Loans;
(1) any payment or distribution of any character (whether in
cash, securities or other property) which would otherwise (but for the
provisions of this Section 7) be payable or deliverable in respect of any
Subordinated Loan shall be paid or delivered directly to the Lenders until all
Debt owing to the Lenders shall have been paid in full;
(1) Parent irrevocably authorizes and empowers the Lenders to
demand, xxx for, collect and receive any such payment or distribution and to
receipt therefor and to file all such claims and take all such other action, in
the name of Parent or the Lenders or otherwise, as the Lenders may determine to
be necessary or appropriate for the enforcement of the provisions of this
Section 7 (Parent hereby agreeing to execute and deliver to the Lenders such
further instruments confirming such authorization and such powers of attorney,
proofs of claim, assignments of claim and other instruments as may be requested
by the Lenders in order to enable them to enforce any and all claims with
respect to any Subordinated Loans); and
(1) in case any payment or distribution shall, despite the
foregoing provisions, be paid or delivered to Parent before all Debt owing to
the Lenders shall have been paid in full, such payment or distribution shall be
held in trust for, and shall be paid and delivered to, the Lenders until all
Debt owing to the Lenders shall have been paid in full.
a) Until all Debt shall be paid in full, Parent hereby defers
all rights of subrogation in respect of any payment of Debt made by Parent. Upon
payments in full of Debt owing to Lenders, Parent shall be subrogated to the
rights of Lenders to receive any further payment or distributions in respect of
Debt, provided, however, that nothing in this Section 7(c) will prohibit the
Parent from receiving any payments permitted under Section 7(a)(ii).
a) Notwithstanding anything contained in this Section 7, the
Parent shall have the right to loan up to $1,200,000,000 to the Subsidiary
pursuant to one or more "make-well", "keep-well" or support agreements, which
loans may be pari passu in right of payment with the payment in full of all Debt
from time to time outstanding owing to any Lender.
2. SECTION NOTICES. Any notice, instruction, request, consent, demand
or other communication required or contemplated by this Agreement shall be in
writing, shall be given or made by United States first class mail, telex,
facsimile transmission or hand delivery, addressed as follows:
SIGNATURE PAGE TO CREDIT AGREEMENT
109
If to Parent: 0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Assistant Treasurer-Banking
If to Subsidiary: 0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Assistant Treasurer
1. SECTION SUCCESSORS. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and is also intended
for the benefit of Lenders, and, notwithstanding that such Lenders are not
parties hereto, each Lender shall be entitled to the full benefits of this
Agreement and to enforce the covenants and agreements contained herein as set
forth in Section 6. This Agreement is not intended for the benefit of any person
other than Lenders and shall not confer or be deemed to confer upon any such
person any benefits, rights or remedies hereunder.
1. SECTION GOVERNING LAW. This Agreement shall be governed by the
laws of the State of New York.
DTE ENERGY COMPANY
By
-------------------------------------
Title:
DTE CAPITAL CORPORATION
By
-------------------------------------
Title:
SIGNATURE PAGE TO CREDIT AGREEMENT
110
EXHIBIT G-FORM OF COLLATERAL
ASSIGNMENT AGREEMENT
COLLATERAL ASSIGNMENT AGREEMENT dated as of January 19, 1999, made by
DTE CAPITAL CORPORATION, a Michigan corporation (the "GRANTOR"), to CITIBANK,
N.A. ("CITIBANK"), as agent (the "AGENT") for the banks (the "LENDERS") parties
to the Credit Agreement (as hereinafter defined).
PRELIMINARY STATEMENTS
(1) The Lenders and the Agent have entered into a Second Amended and
Restated Credit Agreement dated as of January 19, 1999 (said Agreement, as it
may hereafter be amended or otherwise modified from time to time, being the
"CREDIT AGREEMENT") with the Grantor, as borrower and Xxxxxxx Xxxxx Xxxxxx Inc.,
as arranger. Terms defined in the Credit Agreement and not otherwise defined
herein are used herein as therein defined.
(2) It is a condition precedent to the making of Advances by the
Lenders under the Credit Agreement that the Grantor shall have granted the
assignment and security interest contemplated by this Agreement.
NOW, THEREFORE, in consideration of the premises and in order to induce
the Lenders to make Advances under the Credit Agreement, the Grantor hereby
agrees with the Agent for its benefit and the ratable benefit of the Lenders as
follows:
1. SECTION COLLATERAL ASSIGNMENT. The Grantor hereby assigns to the
Agent for its benefit and the ratable benefit of the Lenders, and hereby grants
to the Agent for its benefit and the ratable benefit of the Lenders a security
interest in, all of the Grantor's right, title and interest in and to the
following (the "COLLATERAL"): the Support Agreement as it may be amended or
otherwise modified from time to time (the "ASSIGNED AGREEMENT"), including,
without limitation, (i) all rights of the Grantor to receive moneys due and to
become due under or pursuant to the Assigned Agreement, (ii) all rights of the
Grantor to receive proceeds of any insurance, indemnity, warranty or guaranty
with respect to the Assigned Agreement, (iii) claims of the Grantor for damages
arising out of or for breach of or default under the Assigned Agreement, (iv)
the right of the Grantor to terminate the Assigned Agreement, to perform
thereunder and to compel performance and otherwise exercise all remedies
thereunder, and (iv) all proceeds of any and all of the foregoing Collateral.
1. SECTION SECURITY FOR OBLIGATIONS. This Agreement secures the
payment of all obligations of the Borrower now or hereafter existing under the
Credit Agreement and the Notes, whether for principal, interest, fees, expenses
or otherwise, and all obligations of the Grantor now or hereafter existing under
this Agreement (all such obligations of the Borrower and the Grantor being the
"OBLIGATIONS"). Without limiting the generality of the foregoing, this Agreement
secures the payment of all amounts which constitute part of the Obligations and
SIGNATURE PAGE TO CREDIT AGREEMENT
111
would be owed by the Borrower to the Agent or the Lenders under the Credit
Agreement and the Notes but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving the Borrower.
1. SECTION GRANTOR REMAINS LIABLE. Anything herein to the contrary
notwithstanding, (a) the Grantor shall remain liable under the contracts and
agreements included in the Collateral to the extent set forth therein to perform
all of its duties and obligations thereunder to the same extent as if this
Agreement had not been executed, (b) the exercise by the Agent of any of the
rights hereunder shall not release the Grantor from any of its duties or
obligations under the contracts and agreements included in the Collateral, and
(c) neither the Agent nor any Bank shall have any obligation or liability under
the contracts and agreements included in the Collateral by reason of this
Agreement, nor shall the Agent or any Bank be obligated to perform any of the
obligations or duties of the Grantor thereunder or to take any action to collect
or enforce any claim for payment assigned hereunder.
1. SECTION REPRESENTATIONS AND WARRANTIES. The Grantor represents and
warrants as follows:
a) The Assigned Agreement, a true and complete copy of which has
been furnished to each Bank, has been duly authorized, executed and delivered by
all parties thereto, has not been amended or otherwise modified except as
permitted by Section 7, is in full force and effect and is binding upon and
enforceable against all parties thereto in accordance with its terms. There
exists no default under the Assigned Agreement by any party thereto.
a) The chief place of business and chief executive office of the
Grantor and the office where the Grantor keeps its records concerning the
Collateral are located at its address specified in Section 15. None of the
Collateral is evidenced by a promissory note or other instrument (it being
understood that the Assigned Agreement does not constitute a promissory note or
other instrument).
a) The Grantor is the legal and beneficial owner of the
Collateral free and clear of any lien, security interest, option or other charge
or encumbrance except for the security interest created by this Agreement. No
effective financing statement or other document similar in effect covering all
or any part of the Collateral is on file in any recording office, except such as
may have been filed in favor of the Agent relating to this Agreement. The
Grantor has no trade names.
a) This Agreement creates a valid and perfected first priority
security interest in the Collateral, securing the payment of the Obligations,
and all filings and other actions necessary or desirable to perfect and protect
such security interest have been duly taken.
SIGNATURE PAGE TO CREDIT AGREEMENT
112
a) No consent of any other person or entity and no
authorization, approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body is required (i) for the grant by the
Grantor of the assignment and security interest granted hereby or for the
execution, delivery or performance of this Agreement by the Grantor, (ii) for
the perfection or maintenance of the assignment and security interest created
hereby (including the first priority nature of such assignment and security
interest) or (iii) for the exercise by the Agent of its rights and remedies
hereunder.
a) There are no conditions precedent to the effectiveness of
this Agreement that have not been satisfied or waived.
a) The Grantor has, independently and without reliance upon the
Agent or any Bank and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement.
a) SECTION FURTHER ASSURANCES. The Grantor agrees that from time
to time, at the expense of the Grantor, the Grantor will promptly execute and
deliver all further instruments and documents, and take all further action, that
may be necessary or desirable, or that the Agent may reasonably request, in
order to perfect and protect the assignment and security interest granted or
purported to be granted hereby or to enable the Agent to exercise and enforce
its rights and remedies hereunder with respect to any Collateral. Without
limiting the generality of the foregoing, the Grantor will execute and file such
financing or continuation statements, or amendments thereto, and such other
instruments or notices, as may be necessary or desirable, or as the Agent may
reasonably request, in order to perfect and preserve the assignment and security
interest granted or purported to be granted hereby.
a) The Grantor hereby authorizes the Agent to file one or more
financing or continuation statements, and amendments thereto, relating to all or
any part of the Collateral without the signature of the Grantor where permitted
by law. A photocopy or other reproduction of this Agreement or any financing
statement covering the Collateral or any part thereof shall be sufficient as a
financing statement where permitted by law.
1. SECTION PLACE OF PERFECTION; RECORDS. The Grantor shall keep its
chief place of business and chief executive office and the office where it keeps
its records concerning the Collateral at the location therefor specified in
Section 4(b) or, upon 30 days' prior written notice to the Agent, at any other
locations in a jurisdiction where all action required by Section 5 shall have
been taken with respect to the Collateral. The Grantor will hold and preserve
such records and will permit representatives of the Agent at any time during
normal business hours to inspect and make abstracts from such records.
SIGNATURE PAGE TO CREDIT AGREEMENT
113
a) SECTION AS TO THE ASSIGNED AGREEMENT. The Grantor shall at its
expense:
(1) perform and observe all the terms and provisions of the
Assigned Agreement to be performed or observed by it, maintain the Assigned
Agreement in full force and effect, enforce the Assigned Agreement in accordance
with its terms, and take all such action to such end as may be from time to time
reasonably requested by the Agent.
(1) furnish to the Agent promptly upon receipt thereof copies of
all notices, requests and other documents received by the Grantor under or
pursuant to the Assigned Agreement, and from time to time (A) furnish to the
Agent such information and reports regarding the Collateral as the Agent may
reasonably request and (B) upon request of the Agent make to any other party to
the Assigned Agreement such demands and requests for information and reports or
for action as the Grantor is entitled to make thereunder.
a) The Grantor shall not:
(1) sell, assign (by operation of law or otherwise) or otherwise
dispose of, or grant any option with respect to, any of the Collateral, or
create or permit to exist any lien, security interest, option or other charge or
encumbrance upon or with respect to any of the Collateral, except for the
assignment and security interest under this Agreement;
(1) cancel or terminate the Assigned Agreement or consent to or
accept any cancellation or termination thereof;
(1) amend or otherwise modify the Assigned Agreement or give any
consent, waiver or approval thereunder; or
(1) waive any default under or breach of the Assigned Agreement;
or
(1) take any other action in connection with the Assigned
Agreement which would impair the value of the interest or rights of the Grantor
thereunder or which would impair the interest or rights of the Agent.
a) SECTION PAYMENTS UNDER THE ASSIGNED AGREEMENT. The Grantor agrees,
and has effectively so instructed the Parent that upon the occurrence and during
the continuance of an Event of Default, all payments due or to become due under
or in connection with the Assigned Agreement shall be made directly to the Agent
at its address set forth in Section 15.
SIGNATURE PAGE TO CREDIT AGREEMENT
114
a) Except as set forth in Section 12, all moneys received or
collected pursuant to subsection (a) above shall be applied to all or any part
of the Obligations as the Agent may elect.
1. SECTION AGENT APPOINTED ATTORNEY-IN-FACT. The Grantor hereby
appoints the Agent the Grantor's attorney-in-fact, with full authority in the
place and stead of the Grantor and in the name of the Grantor or otherwise, from
time to time in the Agent's discretion to take any action and to execute any
instrument which the Agent may deem necessary or advisable to accomplish the
purposes of this Agreement, including, without limitation:
a) to ask, demand, collect, xxx for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become due under
or in connection with the Collateral,
a) to receive, indorse and collect any drafts or other
instruments or documents in connection therewith, and
a) to file any claims or take any action or institute any
proceedings which the Agent may deem necessary or desirable for the collection
of any of the Collateral or otherwise to enforce compliance with the terms and
conditions of the Assigned Agreement or the rights of the Agent with respect to
any of the Collateral.
1. SECTION AGENT MAY PERFORM. If the Grantor fails to perform any
agreement contained herein, the Agent may itself perform, or cause performance
of, such agreement, and the expenses of the Agent incurred in connection
therewith shall be payable by the Grantor under Section 13(b).
1. SECTION THE AGENT'S DUTIES. The powers conferred on the Agent
hereunder are solely to protect its interest in the Collateral and shall not
impose any duty upon it to exercise any such powers. Except for the safe custody
of any Collateral in its possession and the accounting for moneys actually
received by it hereunder, the Agent shall have no duty as to any Collateral or
as to the taking of any necessary steps to preserve rights against any parties
or any other rights pertaining to any Collateral. The Agent shall be deemed to
have exercised reasonable care in the custody and preservation of any Collateral
in its possession if such Collateral is accorded treatment substantially equal
to that which Citibank accords its own property.
SIGNATURE PAGE TO CREDIT AGREEMENT
115
1. SECTION REMEDIES. If any Event of Default shall have occurred and
be continuing:
a) The Agent may exercise any and all rights and remedies of the
Grantor under or in connection with the Assigned Agreement or otherwise in
respect of the Collateral, including, without limitation, any and all rights of
the Grantor to demand or otherwise require payment of any amount under, or
performance of any provision of, the Assigned Agreement.
a) All payments received by the Grantor under or in connection
with the Assigned Agreement or otherwise in respect of the Collateral shall be
received in trust for the benefit of the Agent, shall be segregated from other
funds of the Grantor and shall be forthwith paid over to the Agent in the same
form as so received (with any necessary indorsement).
a) All payments made under or in connection with the Assigned
Agreement or otherwise in respect of the Collateral, and all cash proceeds in
respect of any sale of, collection from, or other realization upon all or any
part of the Collateral, received by the Agent may, in the discretion of the
Agent, be held by the Agent as collateral for, and/or then or at any time
thereafter applied (after payment of any amounts payable to the Agent pursuant
to Section 13) in whole or in part by the Agent for the ratable benefit of the
Lenders against, all or any part of the Obligations in such order as the Agent
shall elect. Any surplus of such payments or cash proceeds held by the Agent and
remaining after payment in full of all the Obligations shall be paid over to the
Grantor or to whomsoever may be lawfully entitled to receive such surplus.
a) The Agent may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein or otherwise available
to it, all the rights and remedies of a secured party on default under the
Uniform Commercial Code in effect in the State of New York at that time (the
"CODE") (whether or not the Code applies to the affected Collateral).
a) SECTION INDEMNITY AND EXPENSES. The Grantor agrees to indemnify
the Agent from and against any and all claims, losses and liabilities (including
reasonable attorneys' fees) growing out of or resulting from this Agreement
(including, without limitation, enforcement of this Agreement), except claims,
losses or liabilities resulting from the Agent's gross negligence or willful
misconduct.
a) The Grantor will upon demand pay to the Agent the amount of
any and all reasonable expenses, including the reasonable fees and expenses of
its counsel and of any experts and agents, which the Agent may incur in
connection with (i) the administration of this Agreement, (ii) the custody or
preservation of, or the sale of, collection from or other realization upon, any
of the Collateral, (iii) the exercise or
SIGNATURE PAGE TO CREDIT AGREEMENT
116
enforcement of any of the rights of the Agent or the Lenders hereunder or (iv)
the failure by the Grantor to perform or observe any of the provisions hereof.
1. SECTION AMENDMENTS; ETC. No amendment or waiver of any provision
of this Agreement, and no consent to any departure by the Grantor herefrom shall
in any event be effective unless the same shall be in writing and signed by the
Agent, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
1. SECTION ADDRESSES FOR NOTICES. All notices and other
communications provided for hereunder shall be in writing (including telecopier,
telegraphic, telex or cable communication) and mailed, telecopied, telegraphed,
telexed, cabled or delivered to it, if to the Grantor, at its address at 0000
Xxxxxx Xxxxxx, Xxxxxxx, XX 00000, Attention: Xxxxxxxxxxx Xxxxxx, and if to the
Agent, at its address specified in the Credit Agreement, or, as to either party,
at such other address as shall be designated by such party in a written notice
to the other party. All such notices and other communications shall, when
mailed, telecopied, telegraphed, telexed or cabled, be effective when deposited
in the mails, telecopied, delivered to the telegraph company, confirmed by telex
answerback or delivered to the cable company, respectively.
1. SECTION CONTINUING ASSIGNMENT AND SECURITY INTEREST; ASSIGNMENTS
UNDER CREDIT AGREEMENT. This Agreement shall create a continuing assignment of
and security interest in the Collateral and shall (i) remain in full force and
effect until the later of (x) the payment in full of the Obligations and all
other amounts payable under this Agreement and (y) the expiration or termination
of the Commitments, (ii) be binding upon the Grantor, its successors and
assigns, and (iii) inure, together with the rights and remedies of the Agent
hereunder, to the benefit of the Agent, the Lenders and their respective
successors, transferees and assigns. Without limiting the generality of the
foregoing clause (iii), any Bank may assign or otherwise transfer all or any
portion of its rights and obligations under the Credit Agreement (including,
without limitation, all or any portion of its Commitment, the Advances owing to
it and any Note held by it) held by it to any other person or entity, and such
other person or entity shall thereupon become vested with all the benefits in
respect thereof granted to such Bank herein or otherwise, subject, however, to
the provisions of Article VI (concerning the Agent) of the Credit Agreement.
Upon the later of the payment in full of the Obligations and all other amounts
payable under this Agreement and the expiration or termination of the
Commitments, the security interest granted hereby shall terminate and all rights
to the Collateral shall revert to the Grantor. Upon any such termination, the
Agent will, at the Grantor's expense, execute and deliver to the Grantor such
documents as the Grantor shall reasonably request to evidence such termination.
1. SECTION GOVERNING LAW; TERMS. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York, except to
the extent that the validity or perfection of the assignment and security
interest hereunder, or remedies hereunder, in respect of any particular
Collateral are governed by the laws
SIGNATURE PAGE TO CREDIT AGREEMENT
117
of a jurisdiction other than the State of New York. Unless otherwise defined
herein or in the Credit Agreement, terms used in Article 9 of the Code are used
herein as therein defined.
IN WITNESS WHEREOF, the Grantor has caused this Agreement to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
DTE CAPITAL CORPORATION
By
------------------------------------------
Name:
Title:
SIGNATURE PAGE TO CREDIT AGREEMENT
118
EXHIBIT H - FORM OF
OPINION OF COUNSEL TO THE LOAN PARTIES
[Date]
To each of the Lenders parties
to the Second Amended and
Restated Credit Agreement
dated as of January __, 1999
among DTE Capital Corporation,
said Lenders and Citibank, N.A.
as Agent, with Xxxxxxx Xxxxx Barney
Inc. as Arranger
DTE Capital Corporation
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(h)(vii) of
the Second Amended and Restated Credit Agreement, dated as of January __, 1999
(the "CREDIT AGREEMENT"), among DTE Capital Corporation (the "BORROWER"), the
Lenders parties thereto and Citibank, N.A., as Agent for said Lenders, with
Xxxxxxx Xxxxx Xxxxxx Inc. as Arranger. Terms defined in the Credit Agreement are
used herein as therein defined.
I am General Counsel for each Loan Party, and have acted in that
capacity 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.
(i) The other documents furnished by the Borrower pursuant to
Article III of the Credit Agreement.
(i) The Articles of Incorporation of each Loan Party and all
amendments thereto (the "CHARTERS").
(i) The By-Laws of each Loan Party and all amendments thereto
(the "BY-LAWS").
SIGNATURE PAGE TO CREDIT AGREEMENT
119
(i) Certificates from the State of Michigan attesting to the
continued corporate existence and good standing of each Loan Party in that
State.
SIGNATURE PAGE TO CREDIT AGREEMENT
120
To each of the Lenders parties
to the Second Amended and
Restated Credit Agreement
dated as of January __, 1999
among DTE Capital Corporation,
said Lenders and Citibank, N.A.
as Agent, with Xxxxxxx Xxxxx Barney
Inc. as Arranger
(ii) Acknowledgment copies or stamped receipt copies of the UCC-1
financial statement filed by the Agent in connection with the Original Credit
Agreement and any amendments thereto (the "UCC FILINGS") under the Uniform
Commercial Code as in effect the State of Michigan (the "UCC"), naming the
Borrower as debtor and the Agent as secured party, which UCC Filings have been
filed in the filing offices listed in Schedule 1 hereto.
I have also examined the originals, or copies certified to my satisfaction, of
the documents listed in a certificate of a Financial Officer of each Loan Party,
dated the date hereof (the "CERTIFICATES"), 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 any Loan Party'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 each Loan Party,
certificates of public officials and of officers of each Loan Party, and
agreements, instruments and other documents, as we 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
Initial 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. Each Loan Party is a corporation duly organized, validly
existing and in good standing under the laws of the State of Michigan.
1. The execution, delivery and performance by each Loan Party of
the Loan Documents to which it is party, and the consummation of the
transactions contemplated thereby, are within such Loan Party's corporate
powers, have been duly authorized by all necessary corporate action, and do not
contravene (i) the Charters or the By-Laws of such Loan Party or (ii) any law,
rule or regulation applicable to such Loan Party (including, without limitation,
Regulation X of the Board of Governors of
SIGNATURE PAGE TO CREDIT AGREEMENT
121
To each of the Lenders parties
to the Second Amended and
Restated Credit Agreement
dated as of January __, 1999
among DTE Capital Corporation,
said Lenders and Citibank, N.A.
as Agent, with Xxxxxxx Xxxxx Xxxxxx
Inc. as Arranger
the Federal Reserve System) or (iii) any contractual or legal restriction
contained in any document listed in the Certificates or, to the best of my
knowledge (after due inquiry), contained in any other similar document.
1. 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 (i) the due execution, delivery, recordation, filing
or performance by the Loan Parties of the Loan Documents to which each is a
party, and (ii) the grant by the Borrower of the security interest granted by it
pursuant to the Assignment Agreement.
1. Each Loan Document has been duly executed and delivered on
behalf of each Loan Party thereto.
1. Except as may have been disclosed to you in the SEC Reports,
to the best of my knowledge (after due inquiry) there are no pending or overtly
threatened actions or proceedings affecting any Loan Party or any of their
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.
1. If, despite the provisions of Section 8.09 of the Credit
Agreement, Section 17 of the Collateral Assignment Agreement and Section 10 of
the Support 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 Loan
Documents would be, under the laws of the State of Michigan, legal, valid and
binding obligations of each Loan Party thereto enforceable against such Loan
Party in accordance with their respective terms.
1. The Collateral Assignment Agreement creates a valid first
priority security interest in the Assigned Rights, securing the payment of the
Obligations. The UCC Filings are in appropriate form and have been filed
pursuant to the UCC, resulting in the perfection of such security interest in
the Assigned Rights.
1. Neither the Borrower nor any of its Subsidiaries is an
"investment company," or an "affiliated person" of, or "promoter" or "principal
SIGNATURE PAGE TO CREDIT AGREEMENT
122
To each of the Lenders parties
to the Second Amended and
Restated Credit Agreement
dated as of January __, 1999
among DTE Capital Corporation,
said Lenders and Citibank, N.A.
as Agent, with Xxxxxxx Xxxxx Xxxxxx
Inc. as Arranger
underwriter" for, an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended; the Parent is an exempt holding
company pursuant to the provisions of Rule 2 of the rules and regulations
promulgated pursuant to the Public Utility Holding Company Act of 1935, as
amended.
The opinions set forth above are subject to the following
qualifications:
a) Our opinion in paragraph 6 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.
a) Our opinion in paragraph 6 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).
a) We 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,
SIGNATURE PAGE TO CREDIT AGREEMENT
123
EXECUTION COPY
COLLATERAL ASSIGNMENT AGREEMENT
COLLATERAL ASSIGNMENT AGREEMENT dated as of January 19, 1999, made by
DTE CAPITAL CORPORATION, a Michigan corporation (the "GRANTOR"), to CITIBANK,
N.A. ("CITIBANK"), as agent (the "AGENT") for the banks (the "LENDERS") parties
to the Credit Agreement (as hereinafter defined).
PRELIMINARY STATEMENTS
(1) The Lenders and the Agent have entered into a Second Amended and
Restated Credit Agreement dated as of January 19, 1999 (said Agreement, as it
may hereafter be amended or otherwise modified from time to time, being the
"CREDIT AGREEMENT") with the Grantor, as borrower and Xxxxxxx Xxxxx Barney Inc.,
as arranger. Terms defined in the Credit Agreement and not otherwise defined
herein are used herein as therein defined.
(2) It is a condition precedent to the making of Advances by the
Lenders under the Credit Agreement that the Grantor shall have granted the
assignment and security interest contemplated by this Agreement.
NOW, THEREFORE, in consideration of the premises and in order to induce
the Lenders to make Advances under the Credit Agreement, the Grantor hereby
agrees with the Agent for its benefit and the ratable benefit of the Lenders as
follows:
SECTION . COLLATERAL ASSIGNMENT. The Grantor hereby assigns to the
Agent for its benefit and the ratable benefit of the Lenders, and hereby grants
to the Agent for its benefit and the ratable benefit of the Lenders a security
interest in, all of the Grantor's right, title and interest in and to the
following (the "COLLATERAL"): the Support Agreement as it may be amended or
otherwise modified from time to time (the "ASSIGNED AGREEMENT"), including,
without limitation, (i) all rights of the Grantor to receive moneys due and to
become due under or pursuant to the Assigned Agreement, (ii) all rights of the
Grantor to receive proceeds of any insurance, indemnity, warranty or guaranty
with respect to the Assigned Agreement, (iii) claims of the Grantor for damages
arising out of or for breach of or default under the Assigned Agreement, (iv)
the right of the Grantor to terminate the Assigned Agreement, to perform
thereunder and to compel performance and otherwise exercise all remedies
thereunder, and (iv) all proceeds of any and all of the foregoing Collateral.
SECTION . SECURITY FOR OBLIGATIONS. This Agreement secures the payment
of all obligations of the Borrower now or hereafter existing under the Credit
Agreement and the Notes, whether for principal, interest, fees, expenses or
otherwise, and all obligations of the Grantor now or hereafter existing under
this Agreement (all such obligations of the Borrower and the Grantor being the
"OBLIGATIONS"). Without limiting the generality of the foregoing, this Agreement
secures the payment of all amounts which constitute part of the Obligations and
would be owed by the Borrower to the Agent or the Lenders under the Credit
Agreement and the Notes but for the fact that
124
they are unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Borrower.
SECTION . GRANTOR REMAINS LIABLE. Anything herein to the contrary
notwithstanding, (a) the Grantor shall remain liable under the contracts and
agreements included in the Collateral to the extent set forth therein to perform
all of its duties and obligations thereunder to the same extent as if this
Agreement had not been executed, (b) the exercise by the Agent of any of the
rights hereunder shall not release the Grantor from any of its duties or
obligations under the contracts and agreements included in the Collateral, and
(c) neither the Agent nor any Bank shall have any obligation or liability under
the contracts and agreements included in the Collateral by reason of this
Agreement, nor shall the Agent or any Bank be obligated to perform any of the
obligations or duties of the Grantor thereunder or to take any action to collect
or enforce any claim for payment assigned hereunder.
SECTION . REPRESENTATIONS AND WARRANTIES. The Grantor represents and
warrants as follows:
() The Assigned Agreement, a true and complete copy of which
has been furnished to each Bank, has been duly authorized, executed and
delivered by all parties thereto, has not been amended or otherwise
modified except as permitted by Section 7, is in full force and effect
and is binding upon and enforceable against all parties thereto in
accordance with its terms. There exists no default under the Assigned
Agreement by any party thereto.
() The chief place of business and chief executive office of
the Grantor and the office where the Grantor keeps its records
concerning the Collateral are located at its address specified in
Section 15. None of the Collateral is evidenced by a promissory note or
other instrument (it being understood that the Assigned Agreement does
not constitute a promissory note or other instrument).
() The Grantor is the legal and beneficial owner of the
Collateral free and clear of any lien, security interest, option or
other charge or encumbrance except for the security interest created by
this Agreement. No effective financing statement or other document
similar in effect covering all or any part of the Collateral is on file
in any recording office, except such as may have been filed in favor of
the Agent relating to this Agreement. The Grantor has no trade names.
() This Agreement creates a valid and perfected first priority
security interest in the Collateral, securing the payment of the
Obligations, and all filings and other actions necessary or desirable
to perfect and protect such security interest have been duly taken.
() No consent of any other person or entity and no
authorization, approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body is required () for
the grant by the Grantor of the assignment and security interest
granted hereby or for the execution, delivery or performance of this
Agreement by the Grantor, () for the
125
perfection or maintenance of the assignment and security interest
created hereby (including the first priority nature of such assignment
and security interest) or () for the exercise by the Agent of its
rights and remedies hereunder.
() There are no conditions precedent to the effectiveness of
this Agreement that have not been satisfied or waived.
() The Grantor has, independently and without reliance upon
the Agent or any Bank and based on such documents and information as it
has deemed appropriate, made its own credit analysis and decision to
enter into this Agreement.
SECTION . FURTHER ASSURANCES. () The Grantor agrees that from time to
time, at the expense of the Grantor, the Grantor will promptly execute and
deliver all further instruments and documents, and take all further action, that
may be necessary or desirable, or that the Agent may reasonably request, in
order to perfect and protect the assignment and security interest granted or
purported to be granted hereby or to enable the Agent to exercise and enforce
its rights and remedies hereunder with respect to any Collateral. Without
limiting the generality of the foregoing, the Grantor will execute and file such
financing or continuation statements, or amendments thereto, and such other
instruments or notices, as may be necessary or desirable, or as the Agent may
reasonably request, in order to perfect and preserve the assignment and security
interest granted or purported to be granted hereby.
() The Grantor hereby authorizes the Agent to file one or more
financing or continuation statements, and amendments thereto, relating to all or
any part of the Collateral without the signature of the Grantor where permitted
by law. A photocopy or other reproduction of this Agreement or any financing
statement covering the Collateral or any part thereof shall be sufficient as a
financing statement where permitted by law.
SECTION . PLACE OF PERFECTION; RECORDS. The Grantor shall keep its
chief place of business and chief executive office and the office where it keeps
its records concerning the Collateral at the location therefor specified in
Section 4(b) or, upon 30 days' prior written notice to the Agent, at any other
locations in a jurisdiction where all action required by Section 5 shall have
been taken with respect to the Collateral. The Grantor will hold and preserve
such records and will permit representatives of the Agent at any time during
normal business hours to inspect and make abstracts from such records.
SECTION . AS TO THE ASSIGNED AGREEMENT. () The Grantor shall at its
expense:
() perform and observe all the terms and provisions of the
Assigned Agreement to be performed or observed by it, maintain the
Assigned Agreement in full force and effect, enforce the Assigned
Agreement in accordance with its terms, and take all such action to
such end as may be from time to time reasonably requested by the Agent.
126
() furnish to the Agent promptly upon receipt thereof copies
of all notices, requests and other documents received by the Grantor
under or pursuant to the Assigned Agreement, and from time to time (A)
furnish to the Agent such information and reports regarding the
Collateral as the Agent may reasonably request and (B) upon request of
the Agent make to any other party to the Assigned Agreement such
demands and requests for information and reports or for action as the
Grantor is entitled to make thereunder.
() The Grantor shall not:
() sell, assign (by operation of law or otherwise) or
otherwise dispose of, or grant any option with respect to, any of the
Collateral, or create or permit to exist any lien, security interest,
option or other charge or encumbrance upon or with respect to any of
the Collateral, except for the assignment and security interest under
this Agreement;
() cancel or terminate the Assigned Agreement or consent to or
accept any cancellation or termination thereof;
() amend or otherwise modify the Assigned Agreement or give
any consent, waiver or approval thereunder; or
() waive any default under or breach of the Assigned
Agreement; or
() take any other action in connection with the Assigned
Agreement which would impair the value of the interest or rights of the
Grantor thereunder or which would impair the interest or rights of the
Agent.
SECTION . PAYMENTS UNDER THE ASSIGNED AGREEMENT. () The Grantor agrees,
and has effectively so instructed the Parent that upon the occurrence and during
the continuance of an Event of Default, all payments due or to become due under
or in connection with the Assigned Agreement shall be made directly to the Agent
at its address set forth in Section 15.
() Except as set forth in Section 12, all moneys received or collected
pursuant to subsection (a) above shall be applied to all or any part of the
Obligations as the Agent may elect.
SECTION . AGENT APPOINTED ATTORNEY-IN-FACT. The Grantor hereby appoints
the Agent the Grantor's attorney-in-fact, with full authority in the place and
stead of the Grantor and in the name of the Grantor or otherwise, from time to
time in the Agent's discretion to take any action and to execute any instrument
which the Agent may deem necessary or advisable to accomplish the purposes of
this Agreement, including, without limitation:
() to ask, demand, collect, xxx for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become
due under or in connection with the Collateral,
() to receive, indorse and collect any drafts or other
instruments or documents in connection therewith, and
127
() to file any claims or take any action or institute any
proceedings which the Agent may deem necessary or desirable for the
collection of any of the Collateral or otherwise to enforce compliance
with the terms and conditions of the Assigned Agreement or the rights
of the Agent with respect to any of the Collateral.
SECTION . AGENT MAY PERFORM. If the Grantor fails to perform any
agreement contained herein, the Agent may itself perform, or cause performance
of, such agreement, and the expenses of the Agent incurred in connection
therewith shall be payable by the Grantor under Section 13(b).
SECTION . THE AGENT'S DUTIES. The powers conferred on the Agent
hereunder are solely to protect its interest in the Collateral and shall not
impose any duty upon it to exercise any such powers. Except for the safe custody
of any Collateral in its possession and the accounting for moneys actually
received by it hereunder, the Agent shall have no duty as to any Collateral or
as to the taking of any necessary steps to preserve rights against any parties
or any other rights pertaining to any Collateral. The Agent shall be deemed to
have exercised reasonable care in the custody and preservation of any Collateral
in its possession if such Collateral is accorded treatment substantially equal
to that which Citibank accords its own property.
SECTION . REMEDIES. If any Event of Default shall have occurred and be
continuing:
() The Agent may exercise any and all rights and remedies of
the Grantor under or in connection with the Assigned Agreement or
otherwise in respect of the Collateral, including, without limitation,
any and all rights of the Grantor to demand or otherwise require
payment of any amount under, or performance of any provision of, the
Assigned Agreement.
() All payments received by the Grantor under or in connection
with the Assigned Agreement or otherwise in respect of the Collateral
shall be received in trust for the benefit of the Agent, shall be
segregated from other funds of the Grantor and shall be forthwith paid
over to the Agent in the same form as so received (with any necessary
indorsement).
() All payments made under or in connection with the Assigned
Agreement or otherwise in respect of the Collateral, and all cash
proceeds in respect of any sale of, collection from, or other
realization upon all or any part of the Collateral, received by the
Agent may, in the discretion of the Agent, be held by the Agent as
collateral for, and/or then or at any time thereafter applied (after
payment of any amounts payable to the Agent pursuant to Section 13) in
whole or in part by the Agent for the ratable benefit of the Lenders
against, all or any part of the Obligations in such order as the Agent
shall elect. Any surplus of such payments or cash proceeds held by the
Agent and remaining after payment in full of all the Obligations shall
be paid over to the Grantor or to whomsoever may be lawfully entitled
to receive such surplus.
() The Agent may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein or otherwise
available to it, all the rights and remedies of a secured party on
default under the Uniform Commercial Code in effect in the State of New
York at that time (the "CODE") (whether or not the Code applies to the
affected Collateral).
128
SECTION . INDEMNITY AND EXPENSES. () The Grantor agrees to indemnify
the Agent from and against any and all claims, losses and liabilities (including
reasonable attorneys' fees) growing out of or resulting from this Agreement
(including, without limitation, enforcement of this Agreement), except claims,
losses or liabilities resulting from the Agent's gross negligence or willful
misconduct.
() The Grantor will upon demand pay to the Agent the amount of any and
all reasonable expenses, including the reasonable fees and expenses of its
counsel and of any experts and agents, which the Agent may incur in connection
with () the administration of this Agreement, () the custody or preservation of,
or the sale of, collection from or other realization upon, any of the
Collateral, () the exercise or enforcement of any of the rights of the Agent or
the Lenders hereunder or () the failure by the Grantor to perform or observe any
of the provisions hereof.
SECTION . AMENDMENTS; ETC. No amendment or waiver of any provision of
this Agreement, and no consent to any departure by the Grantor herefrom shall in
any event be effective unless the same shall be in writing and signed by the
Agent, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION . ADDRESSES FOR NOTICES. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic,
telex or cable communication) and mailed, telecopied, telegraphed, telexed,
cabled or delivered to it, if to the Grantor, at its address at 0000 Xxxxxx
Xxxxxx, Xxxxxxx, XX 00000, Attention: Xxxxxxxxxxx Xxxxxx, and if to the Agent,
at its address specified in the Credit Agreement, or, as to either party, at
such other address as shall be designated by such party in a written notice to
the other party. All such notices and other communications shall, when mailed,
telecopied, telegraphed, telexed or cabled, be effective when deposited in the
mails, telecopied, delivered to the telegraph company, confirmed by telex
answerback or delivered to the cable company, respectively.
SECTION . CONTINUING ASSIGNMENT AND SECURITY INTEREST; ASSIGNMENTS
UNDER CREDIT AGREEMENT. This Agreement shall create a continuing assignment of
and security interest in the Collateral and shall () remain in full force and
effect until the later of (x) the payment in full of the Obligations and all
other amounts payable under this Agreement and (y) the expiration or termination
of the Commitments, () be binding upon the Grantor, its successors and assigns,
and () inure, together with the rights and remedies of the Agent hereunder, to
the benefit of the Agent, the Lenders and their respective successors,
transferees and assigns. Without limiting the generality of the foregoing clause
(iii), any Bank may assign or otherwise transfer all or any portion of its
rights and obligations under the Credit Agreement (including, without
limitation, all or any portion of its Commitment, the Advances owing to it and
any Note held by it) held by it to any other person or entity, and such other
person or entity shall thereupon become vested with all the benefits in respect
thereof granted to such Bank herein or otherwise, subject, however, to the
provisions of Article VI (concerning the Agent) of the Credit Agreement. Upon
the later of the payment in full of the Obligations and all other amounts
payable under this Agreement and the expiration or termination of the
Commitments, the security interest granted hereby shall terminate and all rights
to the Collateral shall revert to the Grantor. Upon any such termination, the
Agent
129
will, at the Grantor's expense, execute and deliver to the Grantor such
documents as the Grantor shall reasonably request to evidence such termination.
SECTION . GOVERNING LAW; TERMS. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, except to the
extent that the validity or perfection of the assignment and security interest
hereunder, or remedies hereunder, in respect of any particular Collateral are
governed by the laws of a jurisdiction other than the State of New York. Unless
otherwise defined herein or in the Credit Agreement, terms used in Article 9 of
the Code are used herein as therein defined.
IN WITNESS WHEREOF, the Grantor has caused this Agreement to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
DTE CAPITAL CORPORATION
By /s/ X.X. Xxxxxx
--------------------------
Assistant Treasurer
