EXHIBIT 99-1
CREDIT AGREEMENT
Dated as of November 7, 2001
Among
DTE ENERGY COMPANY,
as Borrower and
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders
and
CITIBANK, N.A.,
as Administrative Agent
and
BANC ONE CAPITAL MARKETS, INC., BARCLAYS BANK PLC,
as Co-Syndication Agent as Co-Syndication Agent
and
THE CHASE MANHATTAN BANK CREDIT SUISSE FIRST BOSTON
as Co-Documentation Agent as Co-Documentation Agent
================================================================================
XXXXXXX XXXXX XXXXXX INC.,
as Lead Arranger and Sole Book Runner
================================================================================
TABLE OF CONTENTS
PAGE
ARTICLE I: DEFINITIONS AND ACCOUNTING TERMS.....................................................................1
SECTION 1.01. Certain Defined Terms......................................................1
SECTION 1.02. Computation of Time Periods...............................................12
SECTION 1.03. Accounting Terms..........................................................13
ARTICLE II: AMOUNTS AND TERMS OF THE REVOLVING CREDIT ADVANCES.................................................13
SECTION 2.01. The Revolving Credit Advances.............................................13
SECTION 2.02. Making the Revolving Credit Advances......................................13
SECTION 2.03. Fees......................................................................14
SECTION 2.04. Termination or Reduction of the Commitments...............................15
SECTION 2.05. Repayment of Revolving Credit Advances....................................15
SECTION 2.06. Interest on Revolving Credit Advances.....................................15
SECTION 2.07. Interest Rate Determination...............................................16
SECTION 2.08. Optional Conversion of Revolving Credit Advances..........................17
SECTION 2.09. Prepayments of Revolving Credit Advances..................................17
SECTION 2.10. Increased Costs...........................................................18
SECTION 2.11. Illegality................................................................19
SECTION 2.12. Payments and Computations.................................................19
SECTION 2.13. Taxes.....................................................................20
SECTION 2.14. Sharing of Payments, Etc..................................................22
SECTION 2.15. Use of Proceeds...........................................................23
SECTION 2.16. Extensions of Revolver Termination Date...................................23
SECTION 2.17. Noteless Agreement; Evidence of Indebtedness..............................23
ARTICLE III: CONDITIONS TO EFFECTIVENESS AND LENDING...........................................................24
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01.....................24
SECTION 3.02. Conditions Precedent to Each Borrowing....................................26
SECTION 3.03. Determinations Under Section 3.01.........................................26
ARTICLE IV: REPRESENTATIONS AND WARRANTIES.....................................................................27
SECTION 4.01. Representations and Warranties of the Borrower............................27
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ARTICLE V: COVENANTS OF THE BORROWER...........................................................................29
SECTION 5.01. Affirmative Covenants.....................................................29
SECTION 5.02. Negative Covenants........................................................31
ARTICLE VI: EVENTS OF DEFAULT.................................................................................32
SECTION 6.01 Events of Default..........................................................32
ARTICLE VII: THE AGENT.........................................................................................35
SECTION 7.01. Authorization and Action..................................................35
SECTION 7.02. Agent's Reliance, Etc.....................................................35
SECTION 7.03. Citibank and Affiliates...................................................35
SECTION 7.04. Lender Credit Decision....................................................36
SECTION 7.05. Indemnification...........................................................36
SECTION 7.06. Successor Agent...........................................................36
ARTICLE VIII: MISCELLANEOUS....................................................................................37
SECTION 8.01. Amendments, Etc...........................................................37
SECTION 8.02. Notices, Etc..............................................................37
SECTION 8.03. No Waiver; Remedies.......................................................38
SECTION 8.04. Costs and Expenses........................................................38
SECTION 8.05. Right of Set-off..........................................................39
SECTION 8.06. Binding Effect............................................................39
SECTION 8.07. Assignments, Designations and Participations..............................40
SECTION 8.08. Confidentiality...........................................................43
SECTION 8.09. Governing Law.............................................................44
SECTION 8.10. Execution in Counterparts.................................................44
SECTION 8.11. Jurisdiction, Etc.........................................................44
SECTION 8.12. Waiver of Jury Trial......................................................44
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SCHEDULES AND EXHIBITS
Schedules
Schedule I - List of Applicable Lending Offices
Pricing Schedule
Exhibits
Exhibit A - Form of Note (If Requested)
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Certificate by Borrower
Exhibit E - Form of Opinion of Counsel to the Borrower
Exhibit F - Form of Compliance Certificate
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CREDIT AGREEMENT dated as of November 7, 2001 among DTE ENERGY
COMPANY, a Michigan corporation (the "Borrower"), the banks, financial
institutions and other institutional lenders (the "Initial Lenders") listed on
the signature pages hereof, and CITIBANK, N.A. ("Citibank"), as Administrative
Agent (the "Agent") and BANC ONE CAPITAL MARKETS, INC., as Co-Syndication Agent,
and BARCLAYS BANK PLC, as Co-Syndication Agent for the Lenders (as hereinafter
defined).
PRELIMINARY STATEMENTS.
The Borrower has requested that the Initial Lenders enter into
this Agreement, and the Initial Lenders have indicated their willingness to
enter into this Agreement upon the terms and conditions stated herein.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements contained herein, the parties hereto hereby
agree, subject to the satisfaction of the conditions set forth in Article III,
as follows:
ARTICLE I: DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 5% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or
otherwise.
"Agent's Account" means the account of the Agent maintained by
the Agent at 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.
"Applicable Margin" means, as of any date, (i) with respect to
all Base Rate Advances, 0.0% per annum, and (ii) with respect to all
Eurodollar Rate Advances, the percentage rate per annum which is
applicable at such time with respect to Eurodollar Rate Advances as set
forth in the Pricing Schedule.
"Applicable Percentage" means, as of any date, the percentage
rate per annum at which Facility Fees are accruing on each Lender's
Commitment (without regard to usage) at such time as set forth in the
Pricing Schedule.
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"Applicable Utilization Fee Rate" means, as of any date, the percentage
rate per annum at which Utilization Fees accrue on all Revolving Credit Advances
at such time as set forth in the Pricing Schedule.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by the Agent, in
substantially the form of Exhibit C hereto.
"Audited Statements" means (i) in the case of the Borrower and DECO,
the Consolidated balance sheets of the Borrower and DECO as at December 31,
2000, and the related Consolidated statements of income and cash flows of the
Borrower and DECO for the fiscal year then ended, accompanied by the opinion
thereon of the Borrower's and DECO's independent public accountants; and (ii) in
the case of MCN and MichCon, the Consolidated balance sheets of MCN and MichCon
as at December 31, 2000, and the related Consolidated statements of income and
cash flows of MCN and MichCon for the fiscal year then ended, accompanied by the
opinion thereon of MCN's and MichCon's independent public accountants
"Base Rate" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the highest
of:
(a) the rate of interest established by 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
(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
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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 2.06(a)(i).
"Borrower" has the meaning specified in the recital of parties to this
Agreement.
"Borrowing" means a borrowing consisting of simultaneous Revolving
Credit Advances of the same Type and (in the case of Eurodollar Rate Advances)
having the same Interest Period, made by each of the Lenders pursuant to Section
2.01.
"Business Day" means a day of the year on which banks are not required
or authorized by law to close in New York City or Chicago, Illinois and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on which
dealings are carried on in the London interbank market.
"Capitalization" means the sum of total net worth plus Consolidated
Debt.
"Commitment" has the meaning specified in Section 2.01.
"Confidential Information" means information that the Borrower
furnishes to the Agent or any Lender in a writing designated as confidential,
but does not include any such information that is or becomes generally available
to the public or that is or becomes available to the Agent or such Lender from a
source other than the Borrower.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Convert", "Conversion" and "Converted" each refers to a conversion of
Revolving Credit Advances of one Type into Revolving Credit Advances of the
other Type pursuant to Section 2.07 or 2.08.
"Debt" of any Person means, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all obligations of such Person for the
deferred purchase price of property or services (other than trade payables not
overdue by more than 60 days incurred in the ordinary course of such Person's
business), (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all obligations of such Person
created or arising under any conditional sale or other title retention agreement
with respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such property), (e) all obligations of
such Person as lessee under leases that have been or should be, in accordance
with GAAP, recorded as capital leases, (f) all obligations, contingent or
otherwise, of such Person in respect of acceptances, letters of credit or
similar extensions of credit, (g) all obligations of such Person in respect of
Hedge Agreements, (h) all Debt of others referred to in clauses (a) through (g)
above or clause (i) below guaranteed directly or indirectly in any manner by
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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 Borrower.
"Default" means any Event of Default or any event that would constitute
an Event of Default but for the requirement that notice be given or time elapse
or both.
"Designating Lender" has the meaning specified in Section 8.07(h).
"Disclosed Litigation" has the meaning specified in Section 3.01(b).
"Domestic Lending Office" means, with respect to any Lender, the office
of such Lender specified as its "Domestic Lending Office" opposite its name on
Schedule I hereto or in the Assignment and Acceptance pursuant to which it
became a Lender, or such other office of such Lender as such Lender may from
time to time specify to the Borrower and the Agent.
"EBITDA" means, for any period, net income (or net loss) plus the sum
of (a) interest expense, (b) income tax expense, (c) depreciation expense and
(d) amortization expense, in each case determined in accordance with GAAP for
such period less the aggregate amount, if any, of securitization bond charges
(or similar charges imposed on customers for the purpose of servicing
Securitization Bonds) collected by or on behalf of the Securitization SPE, to
the extent such charges are included in the calculation of net income (or net
loss).
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a Lender;
(iii) a commercial bank organized under the laws of the United States, or any
State thereof, and having a combined capital and surplus of at least
$250,000,000; (iv) a savings and loan association or savings bank organized
under the laws of the United States, or any State thereof, and having a combined
capital and surplus of at least $250,000,000; (v) a commercial bank organized
under the laws of any other country that is a member of the
4
Organization for Economic Cooperation and Development or has concluded special
lending arrangements with the International Monetary Fund associated with its
General Arrangements to Borrow, or a political subdivision of any such country,
and having a combined capital and surplus of at least $250,000,000, so long as
such bank is acting through a branch or agency located in the United States;
(vi) the central bank of any country that is a member of the Organization for
Economic Cooperation and Development; (vii) a finance company, insurance company
or other financial institution or fund (whether a corporation, partnership,
trust or other entity) that is engaged in making, purchasing or otherwise
investing in commercial loans in the ordinary course of its business and having
a combined capital and surplus of at least $250,000,000; and (viii) any other
Person approved by the Agent and, so long as no Event of Default shall be
continuing, the Borrower, such approval not to be unreasonably withheld or
delayed by either party; provided, however, that neither the Borrower nor an
Affiliate of the Borrower shall qualify as an Eligible Assignee.
"Enterprises" means DTE Enterprises, Inc., a Michigan corporation
wholly-owned by the Borrower.
"Environmental Action" means any action, suit, demand, demand letter,
claim, notice of non-compliance or violation, notice of liability or potential
liability, investigation, proceeding, consent order or consent agreement
relating in any way to any Environmental Law, Environmental Permit or Hazardous
Materials or arising from alleged injury or threat of injury to health, safety
or the environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response, remedial or
other actions or damages and (b) by any governmental or regulatory authority or
any third party for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign statute,
law, ordinance, rule, regulation, code, order, judgment, decree or judicial or
agency interpretation, policy or guidance relating to pollution or protection of
the environment, health, safety or natural resources, including, without
limitation, those relating to the use, handling, transportation, treatment,
storage, disposal, release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the Borrower's controlled group, or under common control
with the Borrower, within the meaning of Section 414 of the Internal Revenue
Code.
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"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.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office" opposite its
name on Schedule I hereto or in the Assignment and Acceptance pursuant to which
it became a Lender (or, if no such office is specified, its Domestic Lending
Office), or such other office of such Lender as such Lender may from time to
time specify to the Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
Rate Advance comprising part of the same Borrowing, an interest rate per annum
equal to the rate per annum obtained by dividing (a) the average (rounded upward
to the nearest whole multiple of 1/16 of 1% per annum, if such average is not
such a multiple) of the rate per annum at which deposits in U.S. dollars are
offered by the principal office of each of the Reference Banks in London,
England to prime banks in the London interbank market at 11:00 A.M. (London
time) two Business Days before the first day of such Interest Period in an
amount approximately equal to such Reference Bank's Eurodollar Rate Advance
comprising part of such Borrowing to be outstanding during such Interest Period
and for a period equal to such Interest Period by (b) a percentage equal to 100%
minus the Eurodollar Rate Reserve Percentage for such Interest Period. The
Eurodollar Rate for any Interest Period for each Eurodollar Rate Advance
comprising part of the same Borrowing shall be determined by the Agent on the
basis of applicable rates furnished to and received by the Agent from the
Reference Banks two Business Days
6
before the first day of such Interest Period, subject, however, to the
provisions of Section 2.07.
"Eurodollar Rate Advance" means a Revolving Credit Advance that bears
interest as provided in Section 2.06(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing means the reserve
percentage applicable two Business Days before the first day of such Interest
Period under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency, supplemental
or other marginal reserve requirement) for a member bank of the Federal Reserve
System in New York 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 is determined) having a term equal to such Interest
Period.
"Events of Default" has the meaning specified in Section 6.01.
"Excluded Hedging Debt" means all Debt arising under any Hedge
Agreement in respect of fluctuations in commodity prices.
"Existing Credit Agreements" means, collectively, (i) that certain
Credit Agreement, dated as of July 11, 2001, among the Borrower, the lenders
parties thereto, Citibank, N.A., as administrative agent, and Bank One, NA and
Barclays Bank PLC, as co-syndication agents, and (ii) that certain Fourth
Amended and Restated Credit Agreement, dated as of January 16, 2001, among the
Borrower (as successor borrower thereunder to DTE Capital Corporation), the
lenders parties thereto and Citibank, N.A., as agent, in each case, as the same
has been amended, restated, supplemented or otherwise modified from time to
time.
"Extending Lenders" has the meaning specified in Section 2.16.
"Facility Fee" has the meaning specified in Section 2.03(a).
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three federal funds brokers of
recognized standing selected by it.
"Financial Officer" of any Person means the chief executive officer,
president, chief financial officer, any vice president, controller, assistant
controller, treasurer or any assistant treasurer of such Person.
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"GAAP" has the meaning specified in Section 1.03.
"Hazardous Materials" means (a) petroleum and petroleum products,
by-products or breakdown products, radioactive materials, asbestos-containing
materials, polychlorinated biphenyls and radon gas and (b) any other chemicals,
materials or substances designated, classified or regulated as hazardous or
toxic or as a pollutant or contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency
future or option contracts and other similar agreements.
"Insufficiency" means, with respect to any Plan, the amount, if any, of
its unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same Borrowing, the period commencing on the date of such Eurodollar
Rate Advance or the date of the Conversion of any Base Rate Advance into such
Eurodollar Rate Advance and ending on the last day of the period selected by the
Borrower pursuant to the provisions below and, thereafter, with respect to
Eurodollar Rate Advances, each subsequent period commencing on the last day of
the immediately preceding Interest Period and ending on the last day of the
period selected by the Borrower pursuant to the provisions below. The duration
of each such Interest Period shall be one, two, three or six months, as the
Borrower may, upon notice received by the Agent not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the first day of such
Interest Period, select; provided, however, that:
(i) the Borrower may not select any Interest Period that ends
after the Revolver Termination Date then in effect;
(ii) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing shall be
of the same duration;
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day, provided, however, that, if such extension would cause
the last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on the
next preceding Business Day; and
(iv) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months in
such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
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"Junior Subordinated Debentures" means subordinated junior deferrable
interest debentures issued by DECO from time to time in an outstanding aggregate
principal amount not to exceed the aggregate principal amount of such debentures
outstanding on the date hereof, and subordinated junior deferrable interest
debentures issued by MCN and the related preferred securities of Subsidiaries of
MCN outstanding as of the date hereof.
"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 Borrowing, a Note, a Commitment or a
related term.
"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 and the Notes.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower and its Subsidiaries taken as a whole,
(b) the rights and remedies of the Agent or any Lender under any Loan Document
or (c) the ability of the Borrower to perform its obligations under any Loan
Document to which it is a party.
"Maximum Facility Amount" means $800,000,000.
"MCN" means MCN Energy Group Inc., a Michigan corporation, which as of
the date hereof, has been merged into Enterprises, with Enterprises as the
survivor of such merger.
"MichCon" means Michigan Consolidated Gas Company, a Michigan
corporation, wholly owned (indirectly) by the Borrower.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Xxxxx'x Rating" is defined in the Pricing Schedule.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate is making or
accruing an obligation to make contributions, or has within any of the preceding
five plan years made or accrued an obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or
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any ERISA Affiliate and at least one Person other than the Borrower and the
ERISA Affiliates or (b) was so maintained and in respect of which the Borrower
or any ERISA Affiliate could have liability under Section 4064 or 4069 of ERISA
in the event such plan has been or were to be terminated.
"Nonrecourse Debt" means Debt of the Borrower or any of its
Subsidiaries in respect of which no recourse may be had by the creditors under
such Debt against the Borrower or such Subsidiary in its individual capacity or
against the assets of the Borrower or such Subsidiary, other than assets which
were purchased by the Borrower or such Subsidiary with the proceeds of such
Debt; it being understood that Securitization Bonds shall constitute Nonrecourse
Debt for all purposes of the Loan Documents, except to the extent (and only to
the extent) of any claims made against DECO in respect of its indemnification
obligations relating to such Securitization Bonds.
"Note" has the meaning specified in Section 2.17.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture, limited liability company or other entity, or a government or any
political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Pricing Schedule" means the Pricing Schedule identifying the
Applicable Margin, the Applicable Percentage and the Applicable Utilization Fee
Rate attached hereto identified as such.
"Reference Banks" means Citibank, N.A., Barclays Bank PLC and Bank One,
NA.
"Register" has the meaning specified in Section 8.07(d).
"Required Lenders" means at any time Lenders owed more than fifty
percent (50%) 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 more than fifty percent (50%) of the Commitments.
"Revolver Termination Date" means the earlier of (a) November 5, 2002
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 2.04 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.
10
"Revolving Credit Advance" means an advance by a Lender to the
Borrower as part of a Borrowing, and refers to a Base Rate Advance or a
Eurodollar Rate Advance (each of which shall be a "Type" of Revolving
Credit Advance).
"S&P" means Standard & Poor's Ratings Group, a division of
XxXxxx-Xxxx, Inc.
"S&P Rating" is defined in the Pricing Schedule.
"SEC Reports" means the following reports and financial statements
of the Borrower, DECO, MCN and MichCon, as the case may be:
(i) the Borrower's and DECO's Annual Reports on Form 10-K for the year
ended December 31, 2000, as filed with or sent to the Securities and
Exchange Commission, including therein the Audited Statements of the
Borrower and DECO;
(ii) MCN's and MichCon's Annual Reports on Form 10-K for the year ended
December 31, 2000, as filed with or sent to the Securities and Exchange
Commission, including therein the Audited Statements of MCN and
MichCon;
(iii) the Borrower's and DECO's Quarterly Reports on Form 10-Q for the
quarter ended June 30, 2001, including therein the Unaudited Statements
of the Borrower and DECO, and the Borrower's and DECO's Current Reports
on Form 8-K, if any, provided to the Lenders prior to the date of this
Agreement; and
(iv) MichCon's Quarterly Report on Form 10-Q for the quarter ended June 30,
2001, including therein the Unaudited Statements of MichCon, and
MichCon's Current Reports on Form 8-K, if any, provided to the Lenders
prior to the date of this Agreement.
"SPV" has the meaning specified in Section 8.07(h).
"Securitization Bonds" means Debt of the Securitization SPE,
issued pursuant to Enrolled Senate Xxxx No. 1253, Public Act 142 of 2000 of
the State of Michigan.
"Securitization SPE" means The Detroit Edison Securitization
Funding LLC, a single-member limited liability company organized under the
laws of the State of Michigan, all of the membership interest in which is
held indirectly by the Borrower.
"Significant Subsidiary" means (i) DECO, Enterprises and MichCon,
and (ii) any other Subsidiary of the Borrower (A) the total assets (after
intercompany eliminations) of which exceed 30% of the total assets of the
Borrower and its Subsidiaries or (B) the net worth of which exceeds 30% of
the Consolidated Net Worth of the Borrower and its Subsidiaries, in each
case as shown on the audited consolidated financial statements of the
Borrower as of the end of the fiscal year immediately preceding the date of
determination.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or
11
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.
"Unaudited Statements" means (i) in the case of the Borrower
and DECO, the unaudited condensed Consolidated balance sheets of the
Borrower and DECO, as at June 30, 2001, and the related condensed
Consolidated statements of income and cash flows of the Borrower and
DECO for the six-month period then ended, duly certified by a Financial
Officer of the Borrower and DECO; and (ii) in the case of MichCon, the
unaudited condensed Consolidated balance sheets of MichCon as at June
30, 2001, and the related condensed Consolidated statements of income
and cash flows of MichCon for the six-month period then ended, duly
certified by a Financial Officer of MichCon.
"Utilization Fee" has the meaning specified in Section
2.03(c).
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the
happening of such a contingency.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(e) ("GAAP").
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ARTICLE II: AMOUNTS AND TERMS OF THE REVOLVING CREDIT 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 Revolver Termination Date in
an aggregate amount not to exceed at any time outstanding the amount set forth
opposite such Lender's name on Schedule 1 hereto or, if such Lender has entered
into any Assignment and Acceptance, set forth for such Lender in the Register
maintained by the Agent pursuant to Section 8.07(d), as such amount may be
reduced pursuant to Section 2.04 (such Lender's "Commitment "). Each Borrowing
shall be in an aggregate amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof and shall consist of Revolving Credit Advances of
the same Type made on the same day by the Lenders ratably according to their
respective Commitments. Within the limits of each Lender's Commitment, the
Borrower may borrow under this Section 2.01, prepay pursuant to Section 2.09 and
reborrow under this Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances. (a) Each
Borrowing shall be made on notice, given not later than 11:00 A.M. (New York
City time) on the third Business Day prior to the date of the proposed Borrowing
in the case of a Borrowing consisting of Eurodollar Rate Advances, or 10:00 A.M.
(New York City time) the Business Day of the proposed Borrowing in the case of a
Borrowing consisting of Base Rate Advances, by the Borrower to the Agent, which
shall give to each Lender prompt notice thereof by telecopier or telex. Each
such notice of a Borrowing (a "Notice of Borrowing") shall be by telephone,
confirmed immediately in writing, or telecopier or telex in substantially the
form of Exhibit B hereto, specifying therein the requested (i) date of such
Borrowing, (ii) Type of Revolving Credit Advances comprising such Borrowing,
(iii) aggregate amount of such Borrowing, and (iv) in the case of a Borrowing
consisting of Eurodollar Rate Advances, initial Interest Period for each such
Revolving Credit Advance. Each Lender shall, before 12:00 noon (New York City
time) on the date of such Borrowing, make available for the account of its
Applicable Lending Office to the Agent at the Agent's Account, in same day
funds, such Lender's ratable portion of such Borrowing. After the Agent's
receipt of such funds and upon fulfillment of the applicable conditions set
forth in Article III, the Agent will make such funds available to the Borrower
at the Agent's address referred to in Section 8.02.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) the Borrower may not select Eurodollar Rate Advances for any Borrowing if
the aggregate amount of such Borrowing is less than $5,000,000 or if the
obligation of the Lenders to make Eurodollar Rate Advances shall then be
suspended pursuant to Section 2.07 or 2.11 and (ii) the Eurodollar Rate Advances
may not be outstanding as part of more than ten separate Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower. In the case of any Borrowing that the related Notice of Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall
indemnify each Lender against any loss, cost or expense incurred by such Lender
as a result of any failure to fulfill on or before the date specified in such
Notice of Borrowing for such Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds
13
acquired by such Lender to fund the Revolving Credit Advance to be made by such
Lender as part of such Borrowing when such Revolving Credit Advance, as a result
of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Lender prior to
the date of any Borrowing that such Lender will not make available to the Agent
such Lender's ratable portion of such Borrowing, the Agent may assume that such
Lender has made such portion available to the Agent on the date of such
Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such ratable portion available to the Agent, such Lender and the
Borrower severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Agent, at (i) in the case of the Borrower, the interest rate
applicable at the time to Revolving Credit Advances comprising such Borrowing
and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender
shall repay to the Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Revolving Credit Advance as part of such Borrowing for
purposes of this Agreement.
(e) The failure of any Lender to make the Revolving Credit Advance to
be made by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Revolving Credit Advance on the date
of such Borrowing, but no Lender shall be responsible for the failure of any
other Lender to make the Revolving Credit Advance to be made by such other
Lender on the date of any Borrowing.
SECTION 2.03. Fees. (a) Facility Fee. The Borrower agrees to
pay to the Agent for the account of each Lender a facility fee (the "Facility
Fee") on the aggregate amount of such Lender's Commitment from the date hereof
in the case of each Initial Lender and from effective date specified in the
Assignment and Acceptance pursuant to which it became a Lender in the case of
each other Lender until all of the Revolving Credit Advances have been paid in
full and the Commitments under this Agreement have been terminated at a rate per
annum equal to the Applicable Percentage in effect from time to time, payable in
arrears quarterly on the last day of each March, June, September and December,
and on the Revolving Loan Termination Date.
(b) Agent's Fees. The Borrower shall pay to the Agent for its own
account such fees as may from time to time be agreed between the Borrower and
the Agent.
(c) Utilization Fee. If the aggregate outstanding amount of all
Revolving Credit Advances hereunder exceeds thirty-three percent (33%) of the
aggregate amount of all Commitments then in effect on such date (or, if the
Commitments have been terminated, the aggregate amount of all Commitments in
effect immediately prior to such termination), the Borrower will pay to the
Agent for the ratable benefit of the Lenders a utilization fee (the "Utilization
Fee") at a per annum rate equal to the Applicable Utilization Fee Rate in effect
from time to time payable on the aggregate outstanding amount of all Revolving
Credit Advances on such date, payable in arrears quarterly on the last day of
each March, June, September and December, and on the Revolving Loan Termination
Date.
14
SECTION 2.04. Termination or Reduction of the Commitments. (a)
The Commitments shall be automatically terminated on the Revolver Termination
Date.
(b) The Borrower shall have the right, upon at least three Business
Days' notice to the Agent, to terminate in whole or reduce ratably in part the
unused portions of the respective Commitments of the Lenders, provided that each
partial reduction shall be in the aggregate amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof. Once terminated, a Commitment or
portion thereof may not be reinstated.
SECTION 2.05. Repayment of Revolving Credit Advances. The
Borrower shall 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.
SECTION 2.06. Interest on Revolving Credit Advances. (a)
Scheduled Interest. The Borrower shall pay interest on the unpaid principal
amount of each Revolving Credit Advance owing to each Lender from the date of
such Revolving Credit Advance until such principal amount shall be paid in full,
at the following rates per annum:
(i) Base Rate Advances. During such periods as such Revolving
Credit Advance is a Base Rate Advance, a rate per annum equal at all
times to the sum of (x) the Base Rate in effect from time to time plus
(y) the Applicable Margin in effect from time to time, payable in
arrears quarterly on the last day of each March, June, September and
December during such periods and on the date such Base Rate Advance
shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Revolving Credit Advance is a Eurodollar Rate Advance, a rate per annum
equal at all times during each Interest Period for such Revolving
Credit Advance to the sum of (x) the Eurodollar Rate for such Interest
Period for such Revolving Credit Advance plus (y) the Applicable Margin
in effect from time to time, payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration of more
than three months, on each day that occurs during such Interest Period
every three months from the first day of such Interest Period and on
the date such Eurodollar Rate Advance shall be Converted or paid in
full.
(b) Default Interest. (i) Upon the occurrence and during the
continuance of an Event of Default, the Borrower shall pay interest on the
unpaid principal amount of each Revolving Credit Advance owing to each Lender,
payable in arrears on the dates referred to in clause (a)(i) or (a)(ii) above,
at a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on such Revolving Credit Advance pursuant to clause (a)(i)
or (a)(ii) above, and (ii) the Borrower shall pay, to the fullest extent
permitted by law, the amount of any interest, fee or other amount payable
hereunder that is not paid when due, from the date such amount shall be due
until such 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.
15
SECTION 2.07. Interest Rate Determination. (a) Each Reference
Bank agrees to furnish to the Agent timely information for the purpose of
determining each Eurodollar Rate. If any one or more of the Reference Banks
shall not furnish such timely information to the Agent for the purpose of
determining any such interest rate, the Agent shall determine such interest rate
on the basis of timely information furnished by the remaining Reference Banks.
The Agent shall give prompt notice to the Borrower and the Lenders of the
applicable interest rate determined by the Agent for purposes of Section
2.06(a)(i) or (ii), and the rate, if any, furnished by each Reference Bank for
the purpose of determining the interest rate under Section 2.06(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the Required
Lenders notify the Agent that the Eurodollar Rate for any Interest Period for
such Eurodollar Rate Advances will not adequately reflect the cost to such
Required Lenders of making, funding or maintaining their respective Eurodollar
Rate Advances for such Interest Period, the Agent shall forthwith so notify the
Borrower and the Lenders, whereupon (i) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance, and (ii) the obligation of the Lenders to
make, or to Convert Revolving Credit Advances into, Eurodollar Rate Advances
shall be suspended until the Agent shall notify the Borrower and the Lenders
that the circumstances causing such suspension no longer exist.
(c) If the Borrower shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the Agent will
forthwith so notify the Borrower and the Lenders and such Eurodollar Rate
Advances will automatically, on the last day of the then existing Interest
Period therefor, Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $5,000,000, such Eurodollar Rate
Advances shall automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of
Default, (i) each Eurodollar Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate Advance and
(ii) the obligation of the Lenders to make, or to Convert Revolving Credit
Advances into, Eurodollar Rate Advances shall be suspended.
(f) If fewer than two Reference Banks furnish timely information to the
Agent for determining the Eurodollar Rate for any Eurodollar Rate Advances:
(i) the Agent shall forthwith notify the Borrower and the
Lenders that the interest rate cannot be determined for such Eurodollar
Rate Advances,
(ii) with respect to Eurodollar Rate Advances, each such
Eurodollar Rate Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance (or
if such Eurodollar Rate Advance is then a Base Rate Advance, will
continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurodollar Rate
Advances or to Convert Revolving Credit Advances into Eurodollar Rate
Advances shall be suspended
16
until the Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 2.08. Optional Conversion of Revolving Credit
Advances. The Borrower may on any Business Day, upon notice given to the Agent
not later than 11:00 A.M. (New York City time) on the third Business Day prior
to the date of the proposed Conversion and subject to the provisions of Sections
2.07 and 2.11, Convert all Revolving Credit Advances of one Type comprising the
same Borrowing into Revolving Credit Advances of the other Type (it being
understood that such Conversion of a Revolving Credit Advance or of its Interest
Period does not constitute a repayment or prepayment of such Revolving Credit
Advance); provided, however, that any Conversion of Eurodollar Rate Advances
into Base Rate Advances shall be made only on the last day of an Interest Period
for such Eurodollar Rate Advances, any Conversion of Base Rate Advances into
Eurodollar Rate Advances shall be in an amount not less than the minimum amount
specified in Section 2.02(b) and no Conversion of any Revolving Credit Advances
shall result in more separate Borrowings than permitted under Section 2.02(b).
Each such notice of a Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Revolving Credit Advances to
be Converted, and (iii) if such Conversion is into Eurodollar Rate Advances, the
duration of the initial Interest Period for each such Eurodollar Rate Advance.
Each notice of Conversion shall be irrevocable and binding on the Borrower.
SECTION 2.09. Prepayments of Revolving Credit Advances. (a)
Optional Prepayment. The Borrower may on any Business Day, upon notice given to
the Agent not later than 11:00 A.M. (New York City time), (i) on the same day
for Base Rate Advances and (ii) on the second Business Day prior to the
prepayment in the case of Eurodollar Rate Advances stating the proposed date and
aggregate principal amount of the prepayment (and if such notice is given the
Borrower shall) prepay the outstanding principal amount of the Revolving Credit
Advances comprising part of the same Borrowing in whole or ratably in part,
together with accrued interest to the date of such prepayment on the principal
amount prepaid; provided, however, that (x) each partial prepayment shall be in
an aggregate principal amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof and (y) in the event of any such prepayment of a
Eurodollar Rate Advance, the Borrower shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 8.04(c).
(b) Mandatory Prepayment. The Borrower shall, upon five
Business Days notice from the Agent given at the request or with the consent of
the Required Lenders, prepay the aggregate 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 Borrower (or other securities
convertible into such Voting Stock) representing 20% or more of the combined
voting power of all Voting Stock of the Borrower; or (ii) any Person or two or
more Persons acting in concert shall have acquired by contract or otherwise, or
shall have entered into a contract or arrangement that, upon consummation, will
result in its or their acquisition of the power to exercise, directly or
indirectly, a controlling influence over the management or policies of the
Borrower.
17
SECTION 2.10. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances (excluding for purposes
of this Section 2.10 any such increased costs resulting from (i) Taxes or Other
Taxes (as to which Section 2.13 shall govern) 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 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 2.10, 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 Revolving Credit Advances
held by such Lender in accordance with Section 8.07, provided, however, that (i)
no Default shall have occurred and be continuing, (ii) the Borrower shall have
satisfied all of its obligations in connection with the Loan Documents with
respect to such Lender, and (iii) if such assignee is not a Lender, (A) such
assignee is acceptable to the Agent and (B) the Borrower shall have paid the
Agent a $3,000 administrative fee.
SECTION 2.11. Illegality. Notwithstanding any other provision
of this Agreement, if any Lender shall notify the Agent that the introduction of
or any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that it is
unlawful, for any Lender or its Eurodollar Lending Office to perform its
obligations hereunder to make Eurodollar Rate Advances or to fund or maintain
Eurodollar Rate Advances hereunder, (i) each Eurodollar Rate Advance will
automatically, upon such demand, Convert into a Base Rate Advance or a Revolving
Credit
18
Advance that bears interest at the rate set forth in Section 2.06(a)(i), as the
case may be, and (ii) the obligation of the Lenders to make Eurodollar Rate
Advances or to Convert Revolving Credit Advances into Eurodollar Rate Advances
shall be suspended until the Agent shall notify the Borrower and the Lenders
that the circumstances causing such suspension no longer exist.
SECTION 2.12. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Notes not later than 11:00 A.M.
(New York City time) on the day when due in U.S. dollars to the Agent at the
Agent's Account in same day funds and without set off, deduction or
counterclaim. The Agent will promptly thereafter cause to be distributed like
funds relating to the payment of principal or interest, facility fees or the
Utilization Fee ratably (other than amounts payable pursuant to Section 2.10,
2.13 or 8.04(c)) to the Lenders 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 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 and the Utilization Fee shall be made by the Agent on
the basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest, facility fees or Utilization Fee are payable. Each
determination by the Agent of an interest rate hereunder shall be conclusive and
binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest, facility fee or the
Utilization Fee, as the case may be; provided, however, that, if such extension
would cause payment of interest on or principal of Eurodollar Rate Advances to
be made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(e) Unless the Agent shall have received notice from the Borrower prior
to the date on which any payment is due to the Lenders hereunder that the
Borrower will not make such payment in full, the Agent may assume that the
Borrower has made such payment in full to the
19
Agent on such date and the Agent may, in reliance upon such assumption, cause to
be distributed to each Lender on such due date an amount equal to the amount
then due such Lender. If and to the extent the Borrower shall not have so made
such payment in full to the Agent, each Lender shall repay to the Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Agent, at the
Federal Funds Rate.
SECTION 2.13. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.12,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the Agent, taxes
imposed on its overall net income, and franchise taxes imposed on it in lieu of
net income taxes, by the jurisdiction under the laws of which such Lender 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 2.13) 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 2.13) imposed on or
paid by such Lender or the Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto. This indemnification shall be made within 30 days from the date such
Lender 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
20
such payment is exempt from Taxes. For purposes of this subsection (d) and
subsection (e), the terms "United States" and "United States person" shall have
the meanings specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender and on the date of the Assignment
and Acceptance pursuant to which it becomes a Lender in the case of each other
Lender, and from time to time thereafter as requested in writing by the Borrower
(but only so long as such Lender remains lawfully able to do so), shall provide
each of the Agent and the Borrower with two original Internal Revenue Service
Form W-8BEW or W-8ECI, as appropriate, or any successor or other form prescribed
by the Internal Revenue Service, certifying that such Lender is exempt from or
entitled to a reduced rate of United States withholding tax on payments pursuant
to this Agreement or the Notes. If the forms provided by a Lender at the time
such Lender first becomes a party to this Agreement indicates a United States
interest withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from Taxes unless and until such Lender provides
the appropriate forms certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from Taxes
for periods governed by such form; provided, however, that, if at the date of
the Assignment and Acceptance pursuant to which a Lender assignee becomes a
party to this Agreement, the Lender assignor was entitled to payments under
subsection (a) in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes shall include
(in addition to withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States withholding tax, if any,
applicable with respect to the Lender assignee on such date. If any form or
document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service Form W8BEW
or W-8ECI, that the Lender reasonably considers to be confidential, the Lender
shall give notice thereof to the Borrower and shall not be obligated to include
in such form or document such confidential information.
(f) For any period with respect to which a Lender has failed to provide
the Borrower with the appropriate form described in Section 2.13(e) (other than
if such failure is due to a change in law occurring subsequent to the date on
which a form originally was required to be provided, or if such form otherwise
is not required under the first sentence of subsection (e) above), such Lender
shall not be entitled to indemnification under Section 2.13(a) or (c) with
respect to Taxes imposed by the United States by reason of such failure;
provided, however, that should a Lender become subject to Taxes because of its
failure to deliver a form required hereunder, the Borrower shall take such steps
as the Lender shall reasonably request to assist the Lender to recover such
Taxes.
(g) In the event that a Lender demands payment from the Borrower for
amounts owing pursuant to subsection (a) or (b) of this Section 2.13, the
Borrower may, upon payment of such amounts and subject to the requirements of
Sections 8.04 and 8.07, substitute for such Lender another financial
institution, which financial institution shall be an Eligible Assignee and shall
assume the Commitments of such Lender and purchase the Revolving Credit Advances
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
21
in connection with the Loan Documents with respect to such Lender, and (iii) if
such assignee not a Lender, (A) such assignee is acceptable to the Agent and (B)
the Borrower shall have paid the Agent a $3,000 administrative fee.
SECTION 2.14. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the Revolving Credit Advances
owing to it (other than pursuant to Section 2.10, 2.13 or 8.04(c)) in excess of
its ratable share of payments on account of the 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 2.14 may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.
SECTION 2.15. Use of Proceeds. The proceeds of the Revolving
Credit Advances shall be available (and the Borrower agrees that it shall use
such proceeds) solely for general corporate purposes, including commercial paper
liquidity, of the Borrower and its Subsidiaries.
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 Revolving Credit 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 them, may offer to increase
their respective Commitments by an aggregate amount up to the aggregate amount
of the Declining Lenders' Commitments and any
22
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 (provided that the $3000 processing and recording fee in respect of
such assignment shall be payable by the Borrower), (ii) such Declining Lender
receives payment in full of the principal amount of all Revolving Credit
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. Noteless Agreement; Evidence of Indebtedness.
(a) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Revolving Credit Advance made by such Lender from time to
time, including the amounts of principal and interest payable and paid to such
Lender from time to time hereunder.
(b) The Agent shall also maintain accounts in which it will record (i)
the date and the amount of each Revolving Credit Advance made hereunder and the
Interest Period, if any, applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder, (iii) the effective date and amount of each Assignment and
Acceptance delivered to and accepted by it and the parties thereto pursuant to
Section 8.07, (iv) the amount of any sum received by the Agent hereunder from
the Borrower and each Lender's share thereof, and (v) all other appropriate
debits and credits as provided in this Agreement, including, without limitation,
all fees, charges, expenses and interest.
(c) The entries maintained in the accounts maintained pursuant to
clauses (a) and (b) above shall be prima facie evidence of the existence and
amounts of the obligations hereunder and under the Notes therein recorded;
provided, however, that the failure of the Agent or any Lender to maintain such
accounts or any error therein shall not in any manner affect the obligation of
the Borrower to repay such obligations in accordance with their terms.
(d) Any Lender may request that its Revolving Credit Advances be
evidenced by a promissory note representing its Revolving Credit Advances
substantially in the form of Exhibit A (each, a "Note"). In such event, the
Borrower shall prepare, execute and deliver to such Lender such Note payable to
the order of such Lender. Thereafter, the Revolving Credit Advances evidenced by
each such Note and interest thereon shall at all times (including after any
23
assignment pursuant to Section 8.07) be represented by one or more Notes payable
to the order of the payee named therein or any assignee pursuant to Section
8.07, except to the extent that any such Lender or assignee subsequently returns
any such Note for cancellation and requests that such Revolving Credit Advances
once again be evidenced as described in clauses (a) and (b) above.
ARTICLE III: CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section
2.01. Section 2.01 of this Agreement shall become effective on and as of the
date hereof (the "Effective Date"), provided that the following conditions
precedent have been satisfied on such date:
(a) There shall have occurred no Material Adverse Change since
June 30, 2001.
(b) There shall exist no action, suit, investigation,
litigation or proceeding affecting the Borrower or any of its
Significant Subsidiaries pending or threatened before any court,
governmental agency or arbitrator that (i) could be reasonably likely
to have a Material Adverse Effect other than the matters disclosed or
contemplated in the SEC Reports (the "Disclosed Litigation") or (ii)
purports to affect the legality, validity or enforceability of any Loan
Document or the consummation of the transactions contemplated hereby
and there shall have been no adverse change in the status, or financial
effect on the Borrower or any of its Significant Subsidiaries of the
Disclosed Litigation from that disclosed or contemplated in the SEC
Reports.
(c) The Lenders shall have been given such access, as such
Lenders have reasonably requested, to the management, records, books of
account, contracts and properties of the Borrower and its Significant
Subsidiaries as they shall have requested.
(d) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall
have been obtained (without the imposition of any conditions that are
not acceptable to the Lenders) and shall remain in effect, and no law
or regulation shall be applicable in the reasonable judgment of the
Lenders that restrains, prevents or imposes materially adverse
conditions upon the transactions contemplated by the Loan Documents.
(e) The Borrower shall have notified each Lender and the Agent
in writing as to the proposed Effective Date.
(f) The Borrower shall have paid all accrued fees and
reasonable expenses of the Agent and the Lenders with respect to this
Agreement for which the Agent shall have made reasonable demand in
accordance with Section 8.04 on or prior to the Effective Date.
(g) On the Effective Date, the following statements shall be
true and the Agent shall have received for the account of each Lender a
certificate signed by a duly authorized officer of the Borrower, dated
the Effective Date, stating that:
24
(i) The representations and warranties contained in
Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that
constitutes a Default.
(iii) The Borrower shall have delivered a
certificate, substantially in form of Exhibit D hereto, signed
on behalf of the Borrower by a Financial Officer of the
Borrower.
(h) The Agent shall have received on or before the Effective
Date the following, each dated such day, in form and substance
satisfactory to the Agent and (except for any Notes requested by the
Lenders) in sufficient copies for each Lender:
(i) Notes, if any, to the order of each Lender
requesting the issuance of a Note as of the Closing Date
pursuant to Section 2.17.
(ii) Certified copies of the resolutions of the Board
of Directors of the Borrower approving each Loan Document to
which it is a party, and of all documents evidencing other
necessary corporate action and governmental approvals, if any,
with respect to each Loan Document to which it is a party.
(iii) A certificate of the Corporate Secretary or an
Assistant Corporate Secretary of the Borrower certifying the
names and true signatures of the officers of the Borrower
authorized to sign each Loan Document to which it is a party
and the other documents to be delivered hereunder or
thereunder.
(iv) Copies of the SEC Reports.
(v) A favorable opinion of X.X. Xxxxxx, the Associate
General Counsel of the Borrower, substantially in the form of
Exhibit E hereto and as to such other matters as any Lender
through the Agent may reasonably request.
(vi) Evidence satisfactory to the Agent that the
Existing Credit Agreements shall have been or shall
simultaneously with the initial Revolving Credit Advance
hereunder be terminated (except for those provisions that
expressly survive the termination thereof) and all loans
outstanding and other amounts owed to the lenders or agents
thereunder shall have been simultaneously with the initial
Revolving Credit Advance hereunder be paid in full.
SECTION 3.02. Conditions Precedent to Each Borrowing. The
obligation of each Lender to make a Revolving Credit Advance on the occasion of
each Borrowing shall be subject to the conditions precedent that the Effective
Date shall have occurred and on the date of such Borrowing (a) the following
statements shall be true (and each of the giving of the applicable Notice of
Borrowing and the acceptance by the Borrower of the proceeds of such Borrowing
shall constitute a representation and warranty by the Borrower that on the date
of such Borrowing such statements are true):
25
(i) the representations and warranties contained in Section
4.01 (other than the representations and warranties contained in the
last sentence of Section 4.01(e) and in Section 4.01(f)) are correct on
and as of the date of such Borrowing, before and after giving effect to
such 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 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. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the Borrower,
by notice to the Lenders, designates as the proposed Effective Date, specifying
its objection thereto. The Agent shall promptly notify the Lenders of the
occurrence of the Effective Date.
ARTICLE IV: REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation.
(b) The execution, delivery and performance by the Borrower of
the Loan Documents to which it is a party, and the consummation of the
transactions contemplated hereby and thereby, are within the Borrower's
corporate powers, have been duly authorized by all necessary corporate
action, and do not contravene (i) the Borrower's charter or by-laws or
(ii) law or any contractual restriction binding on or affecting the
Borrower.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for the due execution, delivery
and performance by the Borrower of this Agreement, the Notes or any
other Loan Document to which it is a party.
(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
26
bankruptcy, insolvency, reorganization, moratorium or similar law
affecting creditors rights generally.
(e) (i) The Audited Statements of the Borrower and DECO and the
Unaudited Statements of the Borrower and DECO, copies of each of which
have been furnished to each Lender, fairly present, subject in the case
of Unaudited Statements to normal year-end audit adjustments, the
Consolidated financial condition, results of operations and cash flows
of the relevant Persons and entities, as at the dates and for the
periods therein indicated, all in accordance with generally accepted
accounting principles consistently applied and (ii) The Audited
Statements of MCN and MichCon and the Unaudited Statements of MichCon,
copies of each of which have been furnished to each Lender, fairly
present, subject in the case of Unaudited Statements to normal year-end
audit adjustments, the Consolidated financial condition, results of
operations and cash flows of the relevant Persons and entities, as at
the dates and for the periods therein indicated, all in accordance with
generally accepted accounting principles consistently applied. Since
June 30, 2001, there has been no Material Adverse Change, except as
shall have been disclosed or contemplated in the SEC Reports.
(f) There is no pending or threatened action, suit, investigation,
litigation or proceeding, including, without limitation, any
Environmental Action, affecting the Borrower or any of the Significant
Subsidiaries before any court, governmental agency or arbitrator that
(i) could be reasonably likely to have a Material Adverse Effect (other
than the Disclosed Litigation) or (ii) purports to affect the legality,
validity or enforceability of this Agreement, any Note or any other
Loan Document or the consummation of the transactions contemplated
hereby and there has been no adverse change in the status of any
Disclosed Litigation, or its financial effect on the Borrower or any of
the Significant Subsidiaries from that disclosed or contemplated in the
SEC Reports.
(g) The operations and properties of the Borrower and each of the
Significant Subsidiaries comply in all material respects with all
applicable Environmental Laws and Environmental Permits, all past
non-compliance with such Environmental Laws and Environmental Permits
has been resolved without ongoing obligations or costs, except as
disclosed or contemplated in the SEC Reports, and no circumstances
exist that could be reasonably likely to (i) form the basis of an
Environmental Action against the Borrower or any of the Significant
Subsidiaries or any of their properties that could have a Material
Adverse Effect or (ii) cause any such property to be subject to any
restrictions on ownership, occupancy, use or transferability under any
Environmental Law that could have a Material Adverse Effect.
(h) No ERISA Event has occurred or is reasonably expected to occur
with respect to any Plan.
(i) Schedule B (Actuarial Information) to the most recent annual
report (Form 5500 Series) for each Plan, copies of which have been
filed with the Internal Revenue Service, is complete and accurate and
fairly presents the funding status of such Plan, and since the date of
such Schedule B there has been no material adverse change in such
funding status.
27
(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 subsections e(i) and e(ii) above, the Borrower and its
Subsidiaries have no material liability with respect to "expected post
retirement benefit obligations" within the meaning of Statement of
Financial Accounting Standards No. 106.
(m) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System), and no proceeds of any Revolving Credit
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; and after applying the proceeds of each Revolving Credit Advance
hereunder, margin stock (within the meaning of Regulation U issued by
the Board of Governors of the Federal Reserve System) constitutes less
than twenty-five percent (25%) of the value of those assets of the
Borrower and its Subsidiaries which are subject to any limitation on
sale or pledge, or any other restriction hereunder.
(n) Neither the Borrower nor any of its Subsidiaries is, or
after the making of any Revolving Credit 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) At all times the Borrower is exempt from being required to
seek approval to perform its obligations under the Loan Documents
pursuant to Rule 2 of the Rules and Regulations promulgated pursuant to
the Public Utility Holding Company Act of 1935, as amended.
ARTICLE V: COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Revolving
Credit 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, regulations and orders, such compliance to include,
without limitation, compliance with ERISA and Environmental Laws.
28
(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 (including customary self-insurance) in
the same general areas in which the Borrower or such Subsidiary
operates.
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain its corporate existence, rights (charter and statutory) and
franchises; provided, however, that the Borrower shall not be required
to preserve any right or franchise if the Board of Directors of the
Borrower or such Subsidiary shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the
Borrower and that the loss thereof is not disadvantageous in any
material respect to the Borrower or the Lenders.
(e) Visitation Rights. At any reasonable time and from time to
time, permit the Agent or any of the Lenders or any agents or
representatives thereof, to examine and make copies of and abstracts
from the records and books of account of, and visit the properties of,
the Borrower and any of the Significant Subsidiaries, and to discuss
the affairs, finances and accounts of the Borrower and any of the
Significant Subsidiaries with any of their officers or directors and
with their independent certified public accountants.
(f) Keeping of Books. Keep, and cause each of its Significant
Subsidiaries to keep, proper books of record and account, in which full
and correct entries shall be made of all financial transactions and the
assets and business of the Borrower and each such Subsidiary in
accordance with generally accepted accounting principles in effect from
time to time.
(g) Maintenance of Properties, Etc. Subject to clause (d)
above, maintain and preserve, and cause each of its Significant
Subsidiaries to maintain and preserve, all of their respective
properties that are used or useful in the conduct of their respective
businesses in good working order and condition, ordinary wear and tear
excepted.
(h) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 45
days after the end of each of the first three quarters of each
fiscal year of the Borrower, Consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of the end of
29
such quarter and Consolidated statements of income and cash
flows of the Borrower and its Subsidiaries for the period
commencing at the end of the previous fiscal year and ending
with the end of such quarter;
(ii) as soon as available and in any event within 90
days after the end of each fiscal year of the Borrower, a copy
of the annual report to Shareholders for such year for the
Borrower and its Consolidated Subsidiaries, containing the
Consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such fiscal year
and Consolidated statements of income and cash flows of the
Borrower and its Subsidiaries for such fiscal year, in each
case accompanied by an opinion by Deloitte & Touche LLP or
other independent public accountants acceptable to the
Required Lenders;
(iii) together with the financial statements required
under clauses (i) or (ii) above, a compliance certificate in
substantially the form of Exhibit F signed by a Financial
Officer of the Borrower showing the then current information
and calculations necessary to determine (i) the Applicable
Margin, the Applicable Percentage and the Applicable
Utilization Fee Rate and compliance with this Agreement and
stating that no Event of Default or Default exists, or if any
Event of Default or Default exists, stating the nature and
status thereof;
(iv) as soon as possible and in any event within five
days after the occurrence of each Default continuing on the
date of such statement, a statement of a Financial Officer of
the Borrower setting forth details of such Default and the
action that the Borrower has taken and proposes to take with
respect thereto;
(v) as soon as possible and in any event within five
days after any change in the Borrower's Xxxxx'x Rating or S&P
Rating, notice thereof;
(vi) promptly after the sending or filing thereof
copies of all reports and registration statements that the
Borrower or any Subsidiary filed with the Securities and
Exchange Commission or any national securities exchange;
(vii) promptly after the commencement thereof, notice
of all actions and proceedings before any court, governmental
agency or arbitrator affecting the Borrower or any of its
Subsidiaries of the type described in Section 4.01(f); and
(viii) such other information respecting the Borrower
or any of its Subsidiaries as any Lender through the Agent may
from time to time reasonably request.
SECTION 5.02. Negative Covenants. At all times on and after
the Effective Date so long as any Revolving Credit 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
Significant Subsidiary to create or suffer to exist, any Lien
on or with respect to any shares of any class
30
of equity securities (including, without limitation, Voting
Stock) of any Significant Subsidiary, whether such shares are
now owned or hereafter acquired.
(b) Debt. Create, incur, assume or suffer to exist any Debt
except Debt that is expressly or effectively pari passu with or
expressly subordinated to the Debt of the Borrower hereunder.
(c) Mergers, Etc. Merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of
its assets (whether now owned or hereafter acquired) to, any Person, or
permit any Significant Subsidiary to do so, except that (i) any
Significant Subsidiary may merge or consolidate with or into any other
Significant Subsidiary, (ii) any Significant Subsidiary may merge into
or dispose of assets to the Borrower, and (iii) the Borrower may merge
or consolidate with or into any other Person so long as the Borrower
shall be the surviving entity and has, after giving effect to such
merger or consolidation, senior unsecured Debt outstanding rated at
least BBB- by S&P and Baa3 by Xxxxx'x; provided, in each case, that no
Default shall have occurred and be continuing at the time of such
proposed transaction or would result therefrom.
(d) Change in Nature of Business. Make, or permit any of its
Significant Subsidiaries (including Enterprises and MichCon) to make,
any material change in the nature of its business as carried on the
date hereof, other than as disclosed or contemplated in the SEC
Reports.
(e) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except as required or permitted by generally
accepted accounting principles.
ARTICLE VI: EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any
Revolving Credit Advance when the same becomes due and payable; or the
Borrower shall fail to pay any interest on any Revolving Credit 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, by the Borrower (or any of its officers) in connection with
this Agreement shall prove to have been incorrect in any material
respect when made; or
(c) (i) The Borrower shall fail to perform or observe any
term, covenant or agreement contained in Section 2.09(b), 5.01(d), (e)
or (h) or 5.02, or (ii) the Borrower shall fail to perform or observe
any other term, covenant or agreement contained in any Loan Document on
its part to be performed or observed if such failure shall remain
31
unremedied for 10 days after written notice thereof shall have been
given to the Borrower by the Agent or any Lender; or
(d) The Borrower or any of its Significant Subsidiaries shall
fail to pay any principal of or premium or interest on any Debt that is
outstanding in a principal or notional amount of at least $25,000,000
in the aggregate (but excluding Debt outstanding hereunder and
Nonrecourse Debt) of the Borrower or such Significant Subsidiary (as
the case may be), when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to
such Debt; or any other event shall occur or condition shall exist
under any agreement or instrument relating to any such Debt and shall
continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such
Debt; or any such Debt shall be declared to be due and payable, or
required to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased, or an offer
to prepay, redeem, purchase or defease such Debt shall be required to
be made, in each case prior to the stated maturity thereof; or
(e) The Borrower or any of its Significant Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding
shall be instituted by or against the Borrower or any of its
Significant Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or
its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order
for relief or the appointment of a receiver, trustee, custodian or
other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it
(but not instituted by it), either such proceeding shall remain
undismissed or unstayed for a period of 30 days, or any of the actions
sought in such proceeding (including, without limitation, the entry of
an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or for any substantial part
of its property) shall occur; or the Borrower or any of its Significant
Subsidiaries shall take any corporate action to authorize any of the
actions set forth above in this subsection (e); or
(f) Any judgment or order for the payment of money,
individually or in the aggregate, in excess of $25,000,000 shall be
rendered against the Borrower or any of its Significant Subsidiaries
and either (i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order or (ii) there shall be any period
of 10 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; or
(g) Any non-monetary judgment or order shall be rendered
against the Borrower or any of its Significant Subsidiaries that could
be reasonably expected to have a Material Adverse Effect, and there
shall be any period of 10 consecutive days during
32
which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(h) The Borrower shall at any time cease to hold 100% of the
Voting Stock of DECO and MichCon; 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 $25,000,000
individually or in the aggregate as a result of one or more of the
following: (i) the occurrence of any ERISA Event; (ii) the partial or
complete withdrawal of the Borrower or any of its ERISA Affiliates from
a Multiemployer Plan; or (iii) the reorganization or termination of a
Multiemployer Plan; or
(j) The Borrower and its Subsidiaries, on a Consolidated
basis, shall at any time cease to:
(i) Maintain a ratio of Consolidated EBITDA to cash
interest payable on all Debt (excluding (A) all Nonrecourse
Debt of the Borrower and its Subsidiaries, (B) Excluded
Hedging Debt and (C) the Junior Subordinated Debentures) of
not less than 2:1 for each twelve-month period ending on the
last day of September, December, March and June of each year,
or
(ii) Maintain a ratio of Consolidated Debt (excluding
(A) all Nonrecourse Debt of the Borrower and its Subsidiaries,
(B) Excluded Hedging Debt and (C) the Junior Subordinated
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 the Borrower, or the Borrower
shall so state in writing;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the
obligation of each Lender to make Revolving Credit 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 Revolving Credit Advances, all interest thereon and all other
amounts payable under this Agreement to be forthwith due and payable, whereupon
the Revolving Credit Advances, 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 Revolving Credit Advances shall
automatically be terminated and (B) the Revolving Credit Advances, 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.
33
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
Revolving Credit Advances), the Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Lenders (or all of the Lenders to the
extent required by the terms of this Agreement), and such instructions shall be
binding upon all Lenders and all holders of Revolving Credit Advances; provided,
however, that the Agent shall not be required to take any action that exposes
the Agent to personal liability or that is contrary to this Agreement or
applicable law. The Agent agrees to give to each Lender prompt notice of each
notice given to it by the Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor any
of its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may treat
the payee in respect of any Revolving Credit Advance as the owner thereof until
the Agent receives and accepts an Assignment and Acceptance entered into by the
Lender that is the payee in respect of such Revolving Credit Advance, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 8.07;
(ii) may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected 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 Revolving Credit Advances made by it and any 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
34
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 agree to indemnify
the Agent (to the extent not reimbursed by the Borrower), ratably according to
the respective principal amounts of their respective Revolving Credit Advances
(or if no Revolving Credit Advances are at the time outstanding or if any
Revolving Credit Advances are owing to Persons that are not Lenders, ratably
according to the respective amounts of their Commitments), from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against the Agent in
any way relating to or arising out of any Loan Document or any action taken or
omitted by the Agent under any Loan Document, provided that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Agent's gross negligence or willful misconduct. Without limitation of
the foregoing, each Lender agrees to reimburse the Agent promptly upon demand
for its ratable share of any out-of-pocket expenses (including counsel fees)
incurred by the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, any Loan Document, to the extent that the
Agent is not reimbursed for such expenses by the Borrower.
SECTION 7.06. Successor Agent. The Agent may resign at any
time by giving written notice thereof to the Lenders and the Borrower and may be
removed at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent, which shall be a commercial bank organized
under the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least $50,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
35
ARTICLE VIII: MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following: (a)
waive any of the conditions specified in Section 3.01, (b) increase the
Commitments of the Lenders or subject the Lenders to any additional obligations,
(c) reduce the principal of, or interest on, the Revolving Credit Advances or
any fees or other amounts payable hereunder, (d) except as provided in Section
2.16, postpone any date fixed for any payment of principal of, or interest on,
the Revolving Credit Advances 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 Advances, 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 0000 0xx Xxxxxx, Xxxxxxx, XX
00000, Attention: Treasurer; if to any Initial Lender, at its Domestic Lending
Office specified opposite its name on Schedule I hereto; if to any other Lender,
at its Domestic Lending Office specified in the Assignment and Acceptance
pursuant to which it became a Lender; and if to the Agent, at its address at Xxx
Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxxxx 00000 Attention: Xxxxxxxxx Xxxxxxxx,
with a copy to J. Xxxxxxxx XxXxx, 000 Xxxxxxxxx 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.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender or the Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to
pay on demand, upon presentation of a statement of account and absent manifest
error, all reasonable
36
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 "workout", restructuring or enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the Notes and
the other documents to be delivered hereunder, including, without limitation,
reasonable fees and expenses of counsel for the Agent 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 Revolving Credit 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 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 Revolving Credit Advances.
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Ad xxxxx is made by the Borrower to or for the account of a Lender other
than on the last day of the Interest Period for such Revolving Credit Advance,
as a result of a payment or Conversion pursuant to Section 2.07(d) or (e), 2.09
or 2.11, acceleration of the maturity of the Revolving Credit Advances pursuant
to Section 6.01, or for any other reason, the Borrower shall, upon demand by
such Lender (with a copy of such demand to the Agent), pay to the Agent for the
account of such Lender any amounts required to compensate such Lender for any
additional losses, costs or
37
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
Revolving Credit Advance.
(d) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
Sections 2.10, 2.13 and 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 Revolving Credit Advances 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 the Borrower against any and all of the obligations of the Borrower now or
hereafter existing under the Loan Documents and any Note held by such Lender,
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 the Borrower after any such set-off and application, provided
that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Lender 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 Section 2.01, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrower and the Agent and when the Agent shall
have been notified by each Initial Lender that such Initial Lender has executed
it and thereafter shall be binding upon and inure to the benefit of the
Borrower, the Agent and each Lender and their respective successors and assigns,
except that the Borrower shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of the Lenders to any
Person.
SECTION 8.07. Assignments, Designations and Participations.
(a) Each Lender may, with the prior consent of the Agent (which consent shall
not be unreasonably withheld) and (for so long as no Default has occurred and is
continuing) the Borrower (which consent shall not be unreasonably withheld)
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 owed to it and any 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, (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
38
(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 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, this Agreement or any
other instrument or document furnished pursuant hereto; (ii) such assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under this Agreement or any
other instrument or document furnished pursuant hereto; (iii) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the financial statements referred to in Section 4.01 and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Agent, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (v) such assignee confirms that it is an
Eligible Assignee; (vi) such assignee appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under this Agreement as are delegated to the Agent by the terms hereof, together
with such powers and discretion as are reasonably incidental thereto; and (vii)
such assignee agrees that it will perform in accordance with their terms all of
the obligations that by the terms of this Agreement are required to be performed
by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Note or Notes subject to such assignment, the Agent shall, if
such Assignment and Acceptance has been completed and is in substantially the
form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record
the information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower. Within five Business Days after the Borrower's receipt
of such
39
notice, if requested by the applicable Lender, the Borrower, at its own expense,
shall execute and deliver to the Agent in exchange for the surrendered Note a
new Note to the order of such Eligible Assignee in an amount equal to the
Commitment assumed by it pursuant to such Assignment and Acceptance and, if the
assigning Lender has retained a Commitment hereunder, if requested by such
assigning Lender, a new Note to the order of the assigning Lender in an amount
equal to the Commitment retained by it hereunder. Such new Note or Notes shall
be in an aggregate principal amount equal to the aggregate principal amount of
such surrendered Note or Notes, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form of
Exhibit A hereto.
(d) The Agent shall maintain at its address referred to in Section 8.02
a copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses and Commitment of, and
principal amount of Revolving Credit 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 treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or other
entities (other than the Borrower or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Revolving Credit Advances
owing to it and any Note or Notes held by it); provided, however, that (i) such
Lender's obligations under this Agreement (including, without limitation, its
Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations, (iii) such Lender shall remain the owner of such Revolving
Credit Advances for all purposes of this Agreement, (iv) the Borrower, the Agent
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and (v) no participant under any such participation shall have any
right to approve any amendment or waiver of any provision of this Agreement or
any Note, or any consent to any departure by the Borrower therefrom, except to
the extent that such amendment, waiver or consent would (A) reduce the principal
of, or interest on, the Revolving Credit Advances or any fees or other amounts
payable hereunder, or (B) increase the Commitments, in each case to the extent
subject to such participation, or postpone any date fixed for any payment of
principal of, or interest on, the Revolving Credit Advances or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation. Each participant shall be entitled to the benefits of Sections
2.10, 2.11 and 2.13 to the same extent as if it were a Lender and had acquired
its interest under this Agreement by an assignment made pursuant to this Section
8.07, provided, however, that in no event shall the Borrower be obligated to
make any payment with respect to such Sections that is greater than the amount
that the Borrower would have otherwise made had no participations been sold
under this Section 8.07(e).
(f) Any Lender may, in connection with any assignment, designation or
participation or proposed assignment, designation or participation pursuant to
this Section 8.07, disclose to the assignee, designee or participant or proposed
assignee, designee or participant, any information
40
relating to the Borrower furnished to such Lender by or on behalf of the
Borrower; provided that, prior to any such disclosure, the assignee, designee or
participant or proposed assignee, designee or participant shall agree to
preserve the confidentiality of any Confidential Information relating to the
Borrower received by it from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time (i) create a security interest in all or a portion of
its rights under this Agreement (including, without limitation, the Revolving
Credit 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 or (ii) with notice to the Agent and the Borrower,
assign all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the
Revolving Credit Advances owed to it and the Note or Notes held by it) to any of
its Affiliates.
(h) Notwithstanding anything to the contrary contained herein, any
Lender (a "DESIGNATING LENDER") may grant to one or more special purpose funding
vehicles (each an "SPV"), identified as such in writing from time to time by the
Designating Lender to the Agent and the Borrower, the option to provide to the
Borrower all or any part of any Revolving Credit Advance that such Designating
Lender would otherwise be obligated to make to the Borrower pursuant to this
Agreement; provided that (i) nothing herein shall constitute a commitment by any
SPV to make any Revolving Credit Advance, (ii) if an SPV elects not to exercise
such option or otherwise fails to provide all or any part of such Revolving
Credit Advance, the Designating Lender shall be obligated to make such Revolving
Credit Advance pursuant to the terms hereof, (iii) the Designating Lender shall
remain liable for any indemnity or other payment obligation with respect to its
Commitment hereunder and (iv) no SPV or Designating Lender shall be entitled to
receive any greater amount under this Agreement than the Designating Lender
would have been entitled to receive had the Designating Lender not otherwise
granted such SPV the option to provide any Revolving Credit Advance to the
Borrower. The making of a Revolving Credit Advance by an SPV hereunder shall
utilize the Commitment of the Designating Lender to the same extent, and as if,
such Revolving Credit Advance were made by such Designating Lender.
(i) Each party hereto hereby acknowledges and agrees that no SPV shall
have the rights of a Lender hereunder, such rights being retained by the
applicable Designating Lender. Accordingly, and without limiting the foregoing,
each party hereby further acknowledges and agrees that no SPV shall have any
voting rights hereunder and that the voting rights attributable to any Revolving
Credit Advance made by an SPV shall be exercised only by the relevant
Designating Lender and that each Designating Lender shall serve as the
administrative agent and attorney-in-fact for its SPV and shall on behalf of its
SPV receive any and all payments made for the benefit of such SPV and take all
actions hereunder to the extent, if any, such SPV shall have any rights
hereunder. No additional Note shall be required to evidence the Revolving Credit
Advances or portion thereof made by an SPV; and the related Designating Lender
shall be deemed to hold its Note or Notes, if any, as administrative agent for
such SPV to the extent of the Revolving Credit Advances or portion thereof
funded by such SPV. In addition, any payments for the account of any SPV shall
be paid to its Designating Lender as administrative agent for such SPV.
41
(j) Each party hereto hereby agrees that no SPV shall be liable for any
indemnity or payment under this Agreement for which a Lender would otherwise be
liable so long as, and to the extent that, the related Designating Lender
provides such indemnity or makes such payment; provided, with respect to such
agreement by the Borrower that the related Designating Lender shall not be in
breach of its obligation to make Revolving Credit Advances to the Borrower
hereunder. In furtherance of the foregoing, each party hereto hereby agrees
(which agreements shall survive the termination of this Agreement) that prior to
the date that is one year and one day after the payment in full of all
outstanding commercial paper or other senior indebtedness of any SPV, it will
not institute against, or join any other person in instituting against, such SPV
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State thereof; provided,
with respect to such agreement by the Borrower that the related Designating
Lender shall not be in breach of its obligation to make Revolving Credit
Advances to the Borrower hereunder. Notwithstanding the foregoing, the
Designating Lender unconditionally agrees to indemnify the Borrower, the Agent
and each Lender against all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be incurred by or asserted against the
Borrower, the Agent or such Lender, as the case may be, in any way relating to
or arising as a consequence of any such forbearance or delay in the initiation
of any such proceeding against its SPV.
(k) In addition, notwithstanding anything to the contrary contained in
subsection 8.07(h), (i), (j) or (k) or otherwise in this Agreement, any SPV may
(i) at any time and without paying any processing fee therefor, assign or
participate all or a portion of its interest in any Revolving Credit Advances to
the Designating Lender or to any financial institutions providing liquidity
and/or credit support to or for the account of such SPV to support the funding
or maintenance of Revolving Credit Advances and (ii) disclose on a confidential
basis any non-public information relating to its Revolving Credit Advances to
any rating agency, commercial paper dealer or provider of any surety, guarantee
or credit or liquidity enhancements to such SPV. Subsection 8.07(h), (i), (j) or
(k) may not be amended without the written consent of any Designating Lender
affected thereby.
SECTION 8.08. Confidentiality. Neither the Agent nor any
Lender shall disclose any Confidential Information to any other Person without
the consent of the Borrower, other than (a) to the Agent's or such Lender's
Affiliates and their officers, directors, employees, agents and advisors and, as
contemplated by Section 8.07(f), to actual or prospective assignees and
participants, and then only on a confidential basis, (b) as required by any law,
rule or regulation or judicial process, (c) to any rating agency when required
by it, provided that, prior to any such disclosure, such rating agency shall
undertake to preserve the confidentiality of any Confidential Information
relating to the Borrower received by it from such Lender 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,
42
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. 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.
REMAINDER OF PAGE INTENTIONALLY BLANK
43
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
DTE ENERGY COMPANY
By: /s/ X.X. Xxxxxx
-----------------------------------
Name: X.X. Xxxxxx
Title: Vice President and Treasurer
Lenders
CITIBANK, N.A., Individually and as
Administrative Agent
By: /s/ Xxxxx Xxxxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxxxx
Title: Vice President
BANC ONE CAPITAL MARKETS, INC., as
Co-Syndication Agent
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Director
BARCLAYS BANK PLC, as Co-Syndication
Agent and as a Lender
By: /s/ Sydney X. Xxxxxx
-----------------------------------
Name: Sydney X. Xxxxxx
Title: Director
BANK ONE, NA (MAIN OFFICE -
CHICAGO), as a Lender
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ X. Xxxx
-----------------------------------
Name: X. Xxxx
Title: Assistant Agent
KEY BANK NATIONAL ASSOCIATION, as a
Lender
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
THE BANK OF NEW YORK, as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
COMERICA BANK, as a Lender
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
CREDIT SUISSE FIRST BOSTON, as a Lender
By: /s/ Xxx Xxxxx
-----------------------------------
Name: Xxx Xxxxx
Title: Director
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK, as a
Lender
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, as a Lender
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title: General Manager
THE FUJI BANK, LIMITED, as a Lender
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President &
Group Head
THE DAI-ICHI KANGYO BANK, LTD., as a
Lender
By: /s/ Novuyasu Fukatsu
-----------------------------------
Name: Novuyasu Fukatsu
Title: General Manager
UNION BANK OF CALIFORNIA, N.A., as a
Lender
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
UBS AG, STAMFORD BRANCH, as a Lender
By: /s/ Xxxxxxx X. Saint
-----------------------------------
Name: Xxxxxxx X. Saint
Title: Associate Director
Banking Products
Services, US
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Associate Director
Banking Products
Services, US
BAYERISCHE LANDESBANK
GIROZENTRALE, CAYMAN ISLANDS
BRANCH, as a Lender
By: /s/ Xxxx Xxxxxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Vice President
By: /s/ Hareward Xxxxxxxx
-----------------------------------
Name: Hareward Xxxxxxxx
Title: Senior Vice President
MELLON BANK, N.A., as a Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: First Vice President
SOCIETE GENERALE, as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Director
COBANK, ACB, as a Lender
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Assistant Corporate
Secretary
CREDIT LYONNAIS NEW YORK BRANCH,
as a Lender
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Senior Vice President
BANK HAPOALIM B.M., as a Lender
By: /s/ Xxxx Xxxx
-----------------------------------
Name: Xxxx Xxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: First Vice President
FIFTH THIRD BANK, EASTERN
MICHIGAN, as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ARAB BANKING CORPORATION, as a
Lender
By: /s/ Xxxxx X. XxXxxxxx
-----------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Vice President
STANDARD FEDERAL BANK, N.A., as a
Lender
By: /s/ Xxxxxxx X. Xxxxxxxx, III
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx, III
Title: Vice President
THE NORTHERN TRUST COMPANY, as a
Lender
By: /s/ Xxxxx XxXxxxxx
-----------------------------------
Name: Xxxxx XxXxxxxx
Title: Second Vice President
FIRST INDEPENDENCE NATIONAL BANK
OF DETROIT, as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
SCHEDULE I
DTE ENERGY COMPANY
APPLICABLE LENDING OFFICES
NAME OF INITIAL LENDER DOMESTIC LENDING OFFICE EURODOLLAR LENDING OFFICE COMMITMENT
===============================================================================================================
Citibank, N.A. 000 Xxxxxxxxx Xxxxxx Same as Domestic Lending $65,714,285.76
00xx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxxx
Telecopier: (000) 000-0000
---------------------------------------------------------------------------------------------------------------
Bank One, NA One Bank One Plaza Same as Domestic Lending $65,714,285.74
Xxxxx 0000 Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxxxx
Telecopier: (000) 000-0000
---------------------------------------------------------------------------------------------------------------
Barclays Bank PLC 000 Xxxxxxxx 000 Xxxxxxxx $65,714,285.74
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx Attention: Xxxx Xxxxxxxx
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
---------------------------------------------------------------------------------------------------------------
The Bank of Nova Scotia 000 Xxxxxxxxx Xxxxxx XX Same as Domestic Lending $46,285,714.28
Xxxxx 0000 Xxxxxx
Xxxxxxx, XX 00000
Attention: Mystro Xxxxxxx
Telecopier: (000) 000-0000
---------------------------------------------------------------------------------------------------------------
Key Bank National 127 Public Square Same as Domestic Lending $46,285,714.28
Association Xxxxxxxxx, XX 00000 Office
Attention: Xxxxx Xxxxxxx
Telecopier: (000) 000-0000
---------------------------------------------------------------------------------------------------------------
The Bank of New York One Wall Street Same as Domestic Lending $46,285,714.28
Xxx Xxxx, XX 00000 Office
Attention: Xxxxx D'Xxxxx
Telecopier: (000) 000-0000
---------------------------------------------------------------------------------------------------------------
Comerica Bank 000 Xxxxxxxx Xxxxxx Same as Domestic Lending $46,285,714.28
XX 0000 Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxx
Telecopier: (000) 000-0000
---------------------------------------------------------------------------------------------------------------
Credit Suisse First Boston 00 Xxxxxxx Xxxxxx Same as Domestic Lending $46,285,714.28
Xxx Xxxx, XX 00000 Office
Attention: Xxxxxx Xxxxxx
Telecopier: (000) 000-0000
---------------------------------------------------------------------------------------------------------------
The Chase Manhattan 000 Xxxx Xxxxxx Same as Domestic Lending $46,285,714.28
Bank 00xx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxx
Telecopier: (000) 000-0000
---------------------------------------------------------------------------------------------------------------
The Fuji Bank, Limited c/o Fuji Bank NJ Data Center Same as Domestic Lending $14,811,428.57
00 Xxxxxxxxxxx Xxxxxxxx Xx. Xxxxxx
Xxxxxx Xxxx, XX 00000
Attention: Xxxx Catapeno
Telecopier: (000) 000-0000
---------------------------------------------------------------------------------------------------------------
NAME OF INITIAL LENDER DOMESTIC LENDING OFFICE EURODOLLAR LENDING OFFICE COMMITMENT
================================================================================================================
The Dai-Ichi Kangyo 95 Xxxxxxxxxxx Xxxxxxxx Dr. Same as Domestic Lending $14,811,428.57
Bank, Ltd. Xxxxxx Xxxx, XX 00000 Office
Attention: Lending Desk
Telecopier: (000) 000-0000
----------------------------------------------------------------------------------------------------------------
The Industrial Bank of The Industrial Bank of Japan, Same as Domestic Lending $16,662,857.14
Japan, Limited Limited Office
New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxxxx
Telecopier: (000) 000-0000
----------------------------------------------------------------------------------------------------------------
Union Bank of California, Energy Capital Services Same as Domestic Lending $46,285,714.28
N.A. 000 X. Xxxxxxxx Xxxxxx, 00xx Xxxxxx
Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telecopier: (000) 000-0000
----------------------------------------------------------------------------------------------------------------
UBS AG, Stamford 000 Xxxxxxxxxx Xxxxxxxxx Same as Domestic Lending $40,285,714.28
Branch Xxxxxxxx, XX 00000 Office
Attention: Xxxxxx Xxxxx
Telecopier: (000) 000-0000
----------------------------------------------------------------------------------------------------------------
Bayerische Landesbank 000 Xxxxxxxxx Xxxxxx Same as Domestic Lending $31,428,571.42
Girozentrale, Cayman 00xx Xxxxx Xxxxxx
Xxxxxxx Xxxxxx Xxx Xxxx, XX 00000
Attention: Xxxx X'Xxxxxxxx
Telecopier: (000) 000-0000
----------------------------------------------------------------------------------------------------------------
Mellon Bank, N.A. 3 Mellon Center - Room 1203 Same as Domestic Lending $31,428,571.42
Xxxxxxxxxx, XX 00000 Office
Attention: Xxxxxx Leiersapf
Telecopier: (000) 000-0000
----------------------------------------------------------------------------------------------------------------
Societe Generale 1221 Avenue of the Americas Same as Domestic Lending $22,857,142.86
Xxx Xxxx, XX 00000 Office
Attention: Gede Antara and/or
Xxx Xxx
Telecopier: (000) 000-0000
----------------------------------------------------------------------------------------------------------------
CoBank, ACB 0000 Xxxxx Xxxxxx Xxxxxx Same as Domestic Lending $22,857,142.86
Xxxxxxxxx Xxxxxxx, XX 00000 Office
Attention: Xxxxx Xxxxx
Telecopier: (000) 000-0000
----------------------------------------------------------------------------------------------------------------
Credit Lyonnais New 1301 Avenue of the Americas Same as Domestic Lending $22,857,142.86
York Branch Xxx Xxxx, XX 00000 Office
Attention: Xxxxx Xxxxx
Telecopier: (000) 000-0000
----------------------------------------------------------------------------------------------------------------
Bank Hapoalim B.M. 1177 Avenue of the Americas Same as Domestic Lending $14,285,714.28
Xxx Xxxx, XX 00000 Office
Attention: Xxxx Xxxx
Telecopier: (000) 000-0000
----------------------------------------------------------------------------------------------------------------
Fifth Third Bank, Eastern c/o Madisonville Operations Same as Domestic Lending $11,428,571.42
Xxxxxxxx Xxxxxx Xxxxxx
XX 0X0X0X
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxxx
Telecopier: (000) 000-0000
----------------------------------------------------------------------------------------------------------------
2
NAME OF INITIAL LENDER DOMESTIC LENDING OFFICE EURODOLLAR LENDING OFFICE COMMITMENT
================================================================================================================
Arab Banking Corporation 000 Xxxx Xxxxxx Same as Domestic Lending $11,428,571.42
00xx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: X. Xxxxxx
Telecopier: (000) 000-0000
----------------------------------------------------------------------------------------------------------------
Standard Federal Bank, 2600 W. Big Beaver Same as Domestic Lending $11,428,571.42
N.A. Xxxx, XX 00000 Office
Attention: Xxxxxx Xxxxx
Telecopier: (000) 000-0000
----------------------------------------------------------------------------------------------------------------
The Northern Trust 00 X. XxXxxxx Xxxxxx Same as Domestic Lending $11,428,571.42
Company Xxxxxxx, XX 00000 Office
Attention: Funding Contact
Telecopier: (000) 000-0000
----------------------------------------------------------------------------------------------------------------
First Independence Bank 00 Xxxxxxxx Xxxxxx Same as Domestic Lending $ 857,142.86
of Detroit Xxxxxxx, XX 00000 Office
Attention: Xxxxxxx X. Xxxxxx
Telecopier: (000) 000-0000
----------------------------------------------------------------------------------------------------------------
Total $ 800,000,000
----------------------------------------------------------------------------------------------------------------
3
PRICING SCHEDULE
LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
STATUS STATUS STATUS STATUS STATUS
===============================================================================================================
Applicable 0.125% 0.150% 0.175% 0.250% 0.400%
Percentage
---------------------------------------------------------------------------------------------------------------
Applicable
Margin
(Eurodollar 0.425% 0.600% 0.700% 0.800% 1.200%
Rate)
---------------------------------------------------------------------------------------------------------------
Applicable 0.125% 0.125% 0.125% 0.125% 0.250%
Utilization
Fee
---------------------------------------------------------------------------------------------------------------
Applicable 0.0% 0.0% 0.0% 0.0% 0.0%
Margin
(Base Rate)
===============================================================================================================
For the purposes of this Schedule, the following terms have
the following meanings, subject to the final paragraph of this Schedule:
"Level I Status" exists at any date if, on such date, the
Borrower's Xxxxx'x Rating is A3 or better or the Borrower's S&P Rating is A- or
better.
"Level II Status" exists at any date if, on such date, (i) the
Borrower has not qualified for Level I Status and (ii) the Borrower's Xxxxx'x
Rating is Baa1 or better or the Borrower's S&P Rating is BBB+ or better.
"Level III Status" exists at any date if, on such date, (i)
the Borrower has not qualified for Level I Status or Level II Status and (ii)
the Borrower's Xxxxx'x Rating is Baa2 or better or the Borrower's S&P Rating is
BBB or better.
"Level IV Status" exists at any date if, on such date, (i) the
Borrower has not qualified for Level I Status, Level II Status or Level III
Status and (ii) the Borrower's Xxxxx'x Rating is Baa3 or better or the
Borrower's S&P Rating is BBB- or better.
"Level V Status" exists at any date if, on such date, the
Borrower has not qualified for Level I Status, Level II Status, Level III or
Level IV Status.
"Xxxxx'x Rating" means, at any time, the rating issued by
Xxxxx'x and then in effect with respect to the Borrower's senior unsecured
long-term debt securities without third-party credit enhancement.
"S&P Rating" means, at any time, the rating issued by S&P and
then in effect with respect to the Borrower's senior unsecured long-term debt
securities without third-party credit enhancement.
4
"Status" means Level I Status, Level II Status, Level III
Status, Level IV Status or Level V Status.
The Applicable Margin, Applicable Utilization Fee and
Applicable Percentage shall be determined in accordance with the foregoing table
based on the Borrower's Status as determined from its then-current Xxxxx'x
Rating and S&P Rating. The credit rating in effect on any date for the purposes
of this Schedule is that in effect at the close of business on such date. If at
any time the Borrower does not have both a Xxxxx'x Rating and an S&P Rating,
Level V Status shall exist.
In the event that a split occurs between the two ratings, then
the Status corresponding to the lower of the two ratings shall apply. However,
if the split is greater than one level, then the pricing shall be based upon the
Status one level above the Status corresponding to the lower of the two ratings.
5
EXHIBIT A - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 2001
FOR VALUE RECEIVED, the undersigned, DTE ENERGY COMPANY, a
Michigan corporation (the " Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender") for the account of its Applicable
Lending Office on the Revolver Termination Date (each as defined in the Credit
Agreement referred to below), the principal sum of U.S.$[amount of the Lender's
Commitment in figures] or, if less, the aggregate principal amount of the
Revolving Credit Advances made by the Lender to the Borrower pursuant to the
Credit Agreement dated as of November 7, 2001 (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.
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.
6
This Promissory Note is one of the Notes referred to in, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of Revolving Credit Advances by
the Lender to the Borrower from time to time in an aggregate amount not to
exceed at any time outstanding the U.S. dollar amount first above mentioned, the
indebtedness of the Borrower resulting from each such Revolving Credit Advance
being evidenced by this Promissory Note, and (ii) contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
and also for prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified.
DTE ENERGY COMPANY
By________________________________
Title:
7
ADVANCES AND PAYMENTS OF PRINCIPAL
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DATE AMOUNT OF AMOUNT OF PRINCIPAL UNPAID NOTATION
ADVANCE PAID OR PREPAID PRINCIPAL MADE BY
BALANCE
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8
EXHIBIT B - FORM OF NOTICE OF
REVOLVING CREDIT BORROWING
Citibank, N.A., as Agent for the Lenders parties
to the Credit Agreement referred to below
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 [Date]
Attention: _______________
Ladies and Gentlemen:
The undersigned, DTE ENERGY COMPANY, refers to the Credit
Agreement, dated as of November 7, 2001 (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 2.02 of the Credit Agreement that the
undersigned hereby requests a Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Borrowing (the
"Proposed Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is
_______________, ____.
(ii) The Type of Advances comprising the Proposed Borrowing is
[Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is
$_______________.
[(iv) The initial Interest Period for each Eurodollar Rate
Advance made as part of the Proposed Borrowing is _____ month[s].]
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Borrowing:
(A) the representations and warranties contained in Section
4.01 of the Credit Agreement are correct, before and after giving
effect to the Proposed Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; and
(B) no event has occurred and is continuing, or would result
from such Proposed Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
Very truly yours,
DTE ENERGY COMPANY
By________________________________
Title:
9
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of November
7, 2001 (as amended or modified from time to time, the "Credit Agreement") among
DTE Energy Company, a Michigan corporation (the "Borrower"), the Lenders (as
defined in 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 equal to the percentage interest specified on Schedule 1 hereto of
all outstanding rights and obligations under the Credit Agreement. After giving
effect to such sale and assignment, the Assignee's Commitment and the amount of
the 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 Note held by the
Assignor, if any, and requests that the Agent exchange such Note for a new Note
payable to the order of the Assignee in an amount equal to the Commitment
assumed by the Assignee pursuant hereto or new Notes payable to the order of the
Assignee in an amount equal to the Commitment assumed by the Assignee pursuant
hereto and the Assignor in an amount equal to the Commitment retained by the
Assignor under the Credit Agreement, respectively, as specified on Schedule 1
hereto.
3. The Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Agent, the Assignor or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under the Credit Agreement as are
delegated to the Agent by the terms thereof, together with such powers and
discretion as are
10
reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations that by the terms of the Credit
Agreement are required to be performed by it as a Lender; and (vi) attaches any
U.S. Internal Revenue Service forms required under Section 2.13 of the Credit
Agreement.
4. Following the execution of this Assignment and Acceptance,
it will be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date") shall
be the date of acceptance hereof by the Agent, unless otherwise specified on
Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and
after the Effective Date, the Agent shall make all payments under the Credit
Agreement and the Notes in respect of the interest assigned hereby (including,
without limitation, all payments of principal, interest, facility fees and the
Utilization Fee with respect thereto) to the Assignee. The Assignor and Assignee
shall make all appropriate adjustments in payments under the Credit Agreement
and the Notes for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed counterpart of
this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
11
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 Advances payable to Assignee: $__________
Principal amount of Revolving Credit Advances 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]
Accepted [and Approved](2) this
__________ day of _______________, ____
_________________________, as Agent
By____________________________
Title:
____________________
(1) This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to the Agent.
(2) Required if the Assignee is an Eligible Assignee solely by reason of
clause (viii) of the definition of "Eligible Assignee".
12
[Approved this __________ day of _______________, ____.]
DTE ENERGY COMPANY
By____________________________]**
Title:
13
EXHIBIT D - FORM OF CERTIFICATE
DTE ENERGY COMPANY
THE DETROIT EDISON COMPANY
MICHIGAN CONSOLIDATED GAS COMPANY
OFFICER'S CERTIFICATE
I, X.X. Xxxxxx, Vice President and Treasurer of DTE ENERGY
COMPANY ("DTE"), THE DETROIT EDISON COMPANY ("DECO") and MICHIGAN CONSOLIDATED
GAS COMPANY ("MichCon"), each a Michigan corporation (each a "Borrower" and
collectively the "Borrowers"), DO HEREBY CERTIFY, pursuant to Section 3.01 of
each of (i) the Credit Agreement, dated as of November 7, 2001, among DTE, the
financial institutions from time to time parties thereto (the "DTE Lenders"),
and Citibank, N.A., as agent for said DTE Lenders (the "DTE Credit Agreement"),
(ii) the Credit Agreement, dated as of November 7, 2001, among DECO, the
financial institutions from time to time parties thereto (the "DECO Lenders")
and Barclays Bank PLC, as agent for said DECO Lenders (the "DECO Credit
Agreement"), and (iii) the Credit Agreement, dated as of November 7, 2001, among
MichCon, the financial institutions from time to time parties thereto (the
"MichCon Lenders", and, together with the DTE Lenders and the DECO Lenders, the
"Lenders") and Bank One, NA, as agent for said Lenders (the "MichCon Credit
Agreement", and together with the DTE Credit Agreement and the DECO Credit
Agreement, the "Credit Agreements"), that the terms defined in the Credit
Agreements are used herein as herein defined and, further, that:
1. The Effective Date shall be November 7, 2001.
2. The representation and warranties contained in Section 4.01 of each
of the Credit Agreements are true and current on and as of the date hereof.
3. No event has occurred and is continuing that constitutes a Default.
4. Each Borrower is a corporation duly organized, validly existing and
in good standing under the laws of the State of Michigan.
5. The execution, delivery and performance by each Borrower of the Loan
Documents to which it is a party, and the consummation of the transactions
contemplated hereby and thereby, are within each Borrower's corporate powers,
have been duly authorized by all necessary corporate action, and do not
contravene (i) each Borrower's charter or by-laws or (ii) law or any contractual
restriction binding on or affecting each Borrower.
6. All governmental and third party consents and approvals necessary in
connection with the transactions contemplated by the Loan Documents to which
each Borrower is a party have been obtained, including in the case of DECO, the
order of the Federal Energy Regulatory Commission (without the imposition of any
conditions that are not acceptable to the Lenders), and remain in effect, and no
law or regulation is applicable that restrains, prevents or imposes materially
adverse conditions upon each Borrower with respect to the transactions
contemplated by the Loan Documents to which it is a party.
14
7. Each of the Loan Documents to which each of the Borrowers is a party
when delivered pursuant to each of the Credit Agreements has been duly executed
and delivered by each Borrower. Each of the other Loan Documents to which each
Borrower is a party when delivered hereunder will be, the legal, valid and
binding obligation of each Borrower enforceable against each Borrower in
accordance with their respective terms, subject to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally.
8. The Consolidated balance sheets of each of DTE, DECO, MCN Energy
Group Inc. ("MCN"), MichCon and their respective Subsidiaries as at December 31,
2000, and the related Consolidated statements of income and cash flows of each
of DTE, DECO, MCN, MichCon, and their respective Subsidiaries for the fiscal
year then ended, accompanied by an opinion of Deloitte & Touche LLP, independent
public accountants, and the condensed Consolidated balance sheets of each of
DTE, DECO, MichCon, and their respective Subsidiaries as at June 30, 2001 and
the related condensed Consolidated statements of income and cash flows of each
of DTE, DECO, MichCon and their respective Subsidiaries for the six months then
ended, copies of which have been furnished to each Lender, attached hereto as
Annex A-1 through A-6 are hereby duly certified by the undersigned, as fairly
presenting, subject in the case of said balance sheet as at June 30, 2001, and
said statements of income and cash flows for the six months then ended, to
year-end audit adjustments, the Consolidated financial condition of each of DTE,
DECO, MCN, MichCon and their respective Subsidiaries, as applicable, as at such
dates and the Consolidated results of the operations of each of DTE, DECO, MCN,
MichCon and their respective Subsidiaries, as applicable, for the periods ended
on such dates, all in accordance with generally accepted accounting principles
consistently applied, and the respective reports in which such financial
statements are contained are hereby designated as the "SEC Reports" for purposes
of the Credit Agreements. Since June 30, 2001 there has been no Material Adverse
Change with respect to any of the Borrowers.
9. None of the Borrowers is a party to an indenture, loan or credit
agreement, lease, guarantee, mortgage, security agreement, bond, note or other
agreement or instrument, and there are no orders, writs, judgments, awards,
injunctions or decrees, that affect or purport to affect each Borrower's right
to borrow money or each Borrower's obligations under the Loan Documents to which
it is a party.
10. The Existing Credit Agreements are terminated (except for those
provisions that expressly survive the termination thereof) upon effectiveness of
the Credit Agreements on the Effective Date; as of the date hereof, there are no
loans outstanding under the Existing Credit Agreements and all amounts owed to
the lender or agents thereunder have been paid in full.
15
IN WITNESS WHEREOF, I have signed this certificate this 7th
day of November, 2001.
____________________________________
X.X. Xxxxxx
Vice President and Treasurer
16
EXHIBIT E - FORM OF OPINION
OF COUNSEL TO THE BORROWER
[Date]
To each of the Lenders set forth
in Schedule A hereto
DTE Energy Company
The Detroit Edison Company
Michigan Consolidated Gas Company
Ladies and Gentlemen:
This opinion is furnished to you pursuant to (i) Section
3.01(h)(v) of the Credit Agreement, dated as of November 7, 2001, among DTE
Energy Company ("DTE"), the financial institutions from time to time parties
thereto (the "DTE Lenders"), and Citibank, N.A., as agent for said DTE Lenders,
Barclays Bank PLC and Banc One Capital Markets, Inc., as Co-Syndication Agents,
and with Xxxxxxx Xxxxx Barney Inc., as Lead Arranger and Sole Book Runner (the
"DTE Credit Agreement"), (ii) Section 3.01(h)(v) of the Credit Agreement, dated
as of November 7, 2001, among The Detroit Edison Company ("DECO"), the financial
institutions parties thereto (the "DECO Lenders") and Barclays Bank PLC, as
agent for said DECO Lenders, Xxxxxxx Xxxxx Xxxxxx Inc. and Banc One Capital
Markets, Inc., as Co-Syndication Agents, and with Barclays Capital and Banc One
Capital Markets, Inc., as Co-Lead Arrangers and Joint Book Runners (the "DECO
Credit Agreement"), and (iii) Section 3.01(h)(v) of the Credit Agreement, dated
as of November 7, 2001, among Michigan Consolidated Gas Company ("MichCon"), the
financial institutions parties thereto (the "MichCon Lenders", and together with
the DTE Lenders and the DECO Lenders, the "Lenders") and Bank One, NA, as agent
for said Lenders, Barclays Bank PLC and Xxxxxxx Xxxxx Barney Inc., as
Co-Syndication Agents, and with Banc One Capital Markets, Inc. and Barclays
Capital, as Co-Lead Arrangers and Joint Book Runners (the "MichCon Credit
Agreement", and together with the DTE Credit Agreement and the DECO Credit
Agreement, the "Credit Agreements"). Terms defined in each Credit Agreement are
used herein as therein defined.
I am the Associate General Counsel of DTE, and the Vice
President and General Counsel of both DECO and MichCon, and have acted as
counsel for each of the Borrowers 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:
(1) Each Loan Document, executed by each of the parties
thereto.
(2) The other documents furnished by each of the Borrowers
pursuant to Article III of each of the Credit Agreements.
17
(3) The Restated Articles of Incorporation of DTE, the
Restated Articles of Incorporation of DECO, and the Restated Articles
of Incorporation of MichCon and all amendments thereto (the
"Charters").
(4) The By-Laws of each of the Borrowers and all amendments
thereto (the "By-Laws").
(5) Certificates from the State of Michigan attesting to the
continued corporate existence and good standing of each of the
Borrowers.
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 of the
Borrowers, dated the date hereof (the "Certificate"), certifying that the
documents listed in such certificate are all of the indentures, loan or credit
agreements, leases, guarantees, mortgages, security agreements, bonds, notes and
other agreements or instruments, and all of the orders, writs, judgments,
awards, injunctions and decrees, that affect or purport to affect each
Borrower's right to borrow money or each Borrower's obligations under the Loan
Documents to which it is party. In addition, I have examined the originals,
copies certified to my satisfaction, of such other corporate records of each
Borrower, certificates of public officials and of officers of each Borrower, 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 each of the Credit Agreements by
the Lenders and the applicable 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 of the Borrowers 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 each of the Borrowers of
the Loan Documents to which it is party, and the consummation of the
transactions contemplated thereby, are within each Borrower's corporate powers,
have been duly authorized by all necessary corporate action, and do not
contravene (i) the Charters or the By-Laws of each Borrower or (ii) any law,
rule or regulation applicable to each of the Borrowers (including, without
limitation, Regulation X of the Board of Governors of the Federal Reserve
System) or (iii) any contractual or legal restriction contained in any document
listed in the Certificate or, to the best of my knowledge (after due inquiry),
contained in any other similar document.
3. No authorization, approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body or any other third
party is required for the due execution, delivery, recordation, filing or
performance by each Borrower of the Loan Documents to which each is a party,
except such as have been obtained, including, in the case of DECO, the order of
the Federal Energy Regulatory Commission dated May 31, 2001.
18
4. Each Loan Document has been duly executed and delivered on behalf of
the Borrower thereto.
5. Except as may have been disclosed to you in the SEC Reports
designated in the Certificate, to the best of my knowledge (after due inquiry)
there are no pending or overtly threatened actions or proceedings affecting each
Borrower or any of its Subsidiaries before any court, governmental agency or
arbitrator that (i) could be reasonably likely to have a Material Adverse Effect
or (ii) purport to affect the legality, validity, binding effect or
enforceability of any Loan Documents or the consummation of the transactions
contemplated thereby.
6. In a properly presented case, a Michigan court or a federal court
sitting in the State of Michigan applying Michigan choice of law rules should
give effect to the choice of law provisions of the Loan Documents and should
hold that such Loan Documents are to be governed by the laws of the State of New
York rather than the laws of the State of Michigan. In rendering the foregoing
opinion, I note that by their terms the Loan Documents expressly select New York
law as the laws governing their interpretation and that the Loan Documents
governed by New York law were delivered by the parties thereto to the Agent in
New York. The choice of law provisions of the Loan Documents are not voidable
under the laws of the State of Michigan.
7. If, despite the provisions of Section 8.09 of each of the Credit
Agreements wherein the parties thereto agree that the Loan Documents shall be
governed by, and construed in accordance with, the laws of the State of New
York, a court of the State of Michigan or a federal court sitting in the State
of Michigan were to hold that the Loan Documents are governed by, and to be
construed in accordance with the laws of the State of Michigan, the respective
Loan Documents would be, under the laws of the State of Michigan, legal, valid
and binding obligations of the applicable Borrower, enforceable against such
Borrower in accordance with their respective terms.
8. Neither the Borrowers nor any of their Subsidiaries is an
"investment company," or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended; DECO is a "public utility company"
and a "subsidiary company" of DTE, which is a "holding company" as such terms
are defined in the Public Utility Holding Company Act of 1935, as amended (the
"1935 Act"), and such "holding company" and DECO are currently exempt from the
provisions of the 1935 Act (except Section 9 thereof); and MichCon is a "public
utility company" and a "subsidiary company" of MichCon Holdings, Inc., which is
a "holding company" and a "subsidiary company" of DTE Enterprises, Inc., which
is a "holding company" and a "subsidiary company" of DTE, as such terms are
defined in the 1935 Act, and such "holding companies" and MichCon are currently
exempt from the provisions of the 1935 Act (except Section 9 thereof);
The opinions set forth above are subject to the following
qualifications:
(a) My opinion in paragraph 7 above as to
enforceability is subject to the effect of any applicable
bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization,
moratorium or similar law affecting creditors' rights
generally.
19
(b) My opinion in paragraph 7 above as to
enforceability is subject to the effect of general principles
of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or
at law).
(c) I express no opinion as to participation and the
effect of the law of any jurisdiction other than the State of
Michigan wherein any Lender may be located or wherein
enforcement of the Loan Documents may be sought that limits
the rates of interest legally chargeable or collectible.
Very truly yours,
20
Schedule A
Each of the Lenders party to the Credit Agreement, dated as of November 7, 2001,
among DTE, Citibank, N.A., as Lender and Agent, and Banc One Capital Markets,
Inc. and Barclays Bank PLC, as Co-Syndication Agents, and with Xxxxxxx Xxxxx
Xxxxxx Inc., as Lead Arranger and Sole Book Runner.
Each of the Lenders party to the Credit Agreement, dated as of November 7, 2001,
among DECO, Barclays Bank PLC, as Lender and Agent, and Xxxxxxx Xxxxx Barney
Inc. and Banc One Capital Markets, Inc., as Co-Syndication Agents, and with
Barclays Capital and Banc One Capital Markets, Inc., as Co-Lead Arrangers and
Joint Book Runners.
Each of the Lenders party to the Credit Agreement, dated as of November 7, 2001,
among MichCon, Bank One, NA, as Lender and Agent, and Barclays Bank PLC and
Xxxxxxx Xxxxx Xxxxxx Inc., as Co-Syndication Agents, and with Banc One Capital
Markets, Inc. and Barclays Capital, as Co-Lead Arrangers and Joint Book Runners.
21
EXHIBIT F - FORM OF
COMPLIANCE CERTIFICATE
COMPLIANCE CERTIFICATE
To: The Lenders parties to the
Credit Agreement Described Below
This Compliance Certificate is furnished pursuant to that certain
Credit Agreement dated as of November 7, 2001 (as amended or modified from time
to time, the "Agreement"; the terms defined therein being used herein as therein
defined) among DTE Energy Company, a Michigan corporation (the "Borrower"), the
lenders parties thereto, and Citibank, N.A., as Agent for the lenders. Unless
otherwise defined herein, capitalized terms used in this Compliance Certificate
have the meanings ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected ______________ of the Borrower;
2. I have reviewed the terms of the Agreement and I have made, or have caused
to be made under my supervision, a detailed review of the transactions and
conditions of the Borrower and its Subsidiaries during the accounting period
covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I have no
knowledge of, the existence of any condition or event which constitutes an
Event of Default or Default during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data and computations
evidencing the Borrower's compliance with certain covenants of the
Agreement, all of which data and computations are true, complete and
correct.
Described below are the exceptions, if any, to paragraph 3 by listing,
in detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, is taking, or proposes to
take with respect to each such condition or event:
The foregoing certifications, together with the computations set forth
in Schedule I hereto and the financial statements delivered with this
Certificate in support hereof, are made and delivered this ___ day of ______ ,
___ .
By: ______________________________
Name:
Title:
22
SCHEDULE 1 TO COMPLIANCE CERTIFICATE
Compliance as of _________, ____ with
Provisions of Section 5.01(h) of
the Agreement
FINANCIAL COVENANTS
Ratio of Consolidated EBITDA to Cash Interest Payable on Debt (Section
6.01(j)(i)).
(A) Numerator: Consolidated EBITDA: $____
(B) Denominator:
(i) Cash Interest Payable on Debt: $_____
(ii) Minus: Cash Interest Payable on all Nonrecourse Debt of the
Borrower and its Subsidiaries: -$____
(iii) Minus: Cash Interest Payable on Excluded Hedging Debt: -$____
(iv) Minus: Cash Interest Payable on Junior Subordinated
Debentures: -$____
(v) Denominator: (B)(i) minus (B)(ii) through (B)(iv): $____
(C) State whether the ratio of (A) to (B)(v) was not less than 2:1 for the
twelve-month period ending on the last day of __________: YES/NO
Ratio of Consolidated Debt to Capitalization (Section 6.01(j)(ii)).
(A) Numerator:
(i) Consolidated Debt: $____
(ii) Minus: Nonrecourse Debt of the Borrower and its
Subsidiaries:
-$____
(iii) Minus: Excluded Hedging Debt: -$____
(iv) Minus: Junior Subordinated Debentures: -$____
(v) Numerator: (A)(i) minus A(ii) through A(iv): $____
(B) Denominator: Capitalization: $____
(C) State whether the ratio of (A)(v) to (B) was not greater than .65:1:
YES/NO
1
