EXHIBIT 99.1
EXECUTION COPY
CREDIT AGREEMENT
Dated as of November 7, 2001
Among
MICHIGAN CONSOLIDATED GAS COMPANY,
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders
and
BANK ONE, NA
(MAIN OFFICE - CHICAGO),
as Administrative Agent
and
BARCLAYS BANK PLC, SALOMON SMITH BARNEY INC.,
as Co-Syndication Agent as Co-Syndication Agent
and
THE BANK OF NEW YORK COMERICA BANK
as Co-Documentation Agent as Co-Documentation Agent
================================================================================
BANC ONE CAPITAL MARKETS, INC. BARCLAYS CAPITAL
as Co-Lead Arrangers and Joint Book Runners
================================================================================
TABLE OF CONTENTS
PAGE
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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 ............................................................12
ARTICLE II: AMOUNTS AND TERMS OF THE REVOLVING CREDIT ADVANCES .......................................12
SECTION 2.01. The Revolving Credit Advances ...............................................12
SECTION 2.02. Making the Revolving Credit Advances ........................................12
SECTION 2.03. Fees ........................................................................14
SECTION 2.04. Termination or Reduction of the Commitments .................................14
SECTION 2.05. Repayment of Revolving Credit Advances ......................................14
SECTION 2.06. Interest on Revolving Credit Advances .......................................14
SECTION 2.07. Interest Rate Determination .................................................15
SECTION 2.08. Optional Conversion of Revolving Credit Advances ............................16
SECTION 2.09. Prepayments of Revolving Credit Advances ....................................17
SECTION 2.10. Increased Costs .............................................................17
SECTION 2.11. Illegality ..................................................................18
SECTION 2.12. Payments and Computations ...................................................18
SECTION 2.13. Taxes .......................................................................19
SECTION 2.14. Sharing of Payments, Etc ....................................................21
SECTION 2.15. Use of Proceeds .............................................................22
SECTION 2.16. Extensions of Revolver Termination Date .....................................22
SECTION 2.17. Noteless Agreement; Evidence of Indebtedness ................................23
ARTICLE III: CONDITIONS TO EFFECTIVENESS AND LENDING .................................................23
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01 .......................23
SECTION 3.02. Conditions Precedent to Each Borrowing ......................................25
SECTION 3.03. Determinations Under Section 3.01 ...........................................25
ARTICLE IV: REPRESENTATIONS AND WARRANTIES ...........................................................26
SECTION 4.01. Representations and Warranties of the Borrower ..............................26
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ARTICLE V: COVENANTS OF THE BORROWER .................................................................28
SECTION 5.01. Affirmative Covenants .......................................................28
SECTION 5.02. Negative Covenants ..........................................................30
ARTICLE VI: EVENTS OF DEFAULT ........................................................................31
SECTION 6.01. Events of Default ...........................................................31
ARTICLE VII: THE AGENT ...............................................................................34
SECTION 7.01. Authorization and Action ....................................................34
SECTION 7.02. Agent's Reliance, Etc .......................................................34
SECTION 7.03. Bank One and Affiliates .....................................................35
SECTION 7.04. Lender Credit Decision ......................................................35
SECTION 7.05. Indemnification .............................................................35
SECTION 7.06. Successor Agent .............................................................36
ARTICLE VIII: MISCELLANEOUS ..........................................................................36
SECTION 8.01. Amendments, Etc .............................................................36
SECTION 8.02. Notices, Etc ................................................................36
SECTION 8.03. No Waiver; Remedies .........................................................37
SECTION 8.04. Costs and Expenses ..........................................................37
SECTION 8.05. Right of Set-off ............................................................38
SECTION 8.06. Binding Effect ..............................................................38
SECTION 8.07. Assignments, Designations and Participations ................................39
SECTION 8.08. Confidentiality .............................................................43
SECTION 8.09. Governing Law ...............................................................43
SECTION 8.10. Execution in Counterparts ...................................................43
SECTION 8.11. Jurisdiction, Etc ...........................................................43
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 MICHIGAN
CONSOLIDATED GAS COMPANY, a Michigan corporation (the "Borrower"), the banks,
financial institutions and other institutional lenders (the "Initial Lenders")
listed on the signature pages hereof, and BANK ONE, NA (Main Office - Chicago)
("Bank One"), as Administrative Agent (the "Agent") and BARCLAYS BANK PLC, as
Co-Syndication Agent, and SALOMON SMITH BARNEY INC., as Co-Syndication Agent for
the Lenders (as hereinafter defined).
PRELIMINARY STATEMENTS.
The Borrower has requested that the Initial Lenders enter into
this Agreement, and the Initial Lenders have indicated their willingness to
enter into this Agreement upon the terms and conditions stated herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, the parties hereto hereby agree,
subject to the satisfaction of the conditions set forth in Article III, as
follows:
ARTICLE I: DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person. For
purposes of this definition, the term "control" (including the terms
"controlling", "controlled by" and "under common control with") of a
Person means the possession, direct or indirect, of the power to vote 5%
or more of the Voting Stock of such Person or to direct or cause the
direction of the management and policies of such Person, whether through
the ownership of Voting Stock, by contract or otherwise.
"Agent's Account" means the account of the Agent maintained by
the Agent at Bank One with its office at One Bank One Plaza, Suite 0634,
Chicago, IL 60670, Account No. 4811-5286-0000, Attention: Gloria
Steinbrenner.
"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 the Consolidated balance sheets of
the Borrower as at December 31, 2000, and the related Consolidated
statements of income and cash flows of the Borrower for the fiscal year
then ended, accompanied by the opinion thereon of the Borrower'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 Bank One in
New York, New York, from time to time, as Bank One'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 Bank One 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 Bank One from three New York certificate of
deposit dealers of recognized standing selected by Bank One, 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 Bank One 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 Bank One for determining
the then current annual assessment payable by Bank One to the
Federal Deposit Insurance Corporation (or any successor) for
insuring U.S. dollar deposits of Bank One in the United States;
and
(c) 1/2 of one percent per annum above the Federal
Funds Rate.
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"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 (a) total net worth plus (b)
Consolidated Debt (other than Debt outstanding pursuant to the issuance
of Debt with maturities of no more than 365 days) plus (c) an amount
equal to the restructuring charges relating to the merger of MCN Energy
Group Inc. with and into Enterprises.
"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 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
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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 DTE Energy.
"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.
"DTE Energy" means DTE Energy Company, a Michigan corporation.
"EBITDA" means, for any period, net income (or net loss) plus
the sum of (a) interest expense, (b) income tax expense, (c)
depreciation expense and (d) amortization expense, in each case
determined in accordance with GAAP for such period.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; (iii) a commercial bank organized under the laws of the United
States, or any State thereof, and having a combined capital and surplus
of at least $250,000,000; (iv) a savings and loan association or savings
bank organized under the laws of the United States, or any State
thereof, and having a combined capital and surplus of at least
$250,000,000; (v) a commercial bank organized under the laws of any
other country that is a member of the Organization for Economic
Cooperation and Development or has concluded special lending
arrangements with the International Monetary Fund associated with its
General Arrangements to Borrow, or a political subdivision of any such
country, and having a
4
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 DTE Energy.
"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.
"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
5
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 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).
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"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 Agreement" means that certain Credit Agreement,
dated as of July 11, 2001, among the Borrower, the lenders parties
thereto, and Bank One, NA, as administrative agent, 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.
"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.
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"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 10:00 A.M. (Chicago 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.
"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
8
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 $300,000,000.
"Moody's" means Moody's Investors Service, Inc.
"Moody's Rating" is defined in the Pricing Schedule.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any ERISA Affiliate and at least one Person
other than the Borrower and the ERISA Affiliates or (b) was so
maintained and in respect of which the Borrower or any ERISA Affiliate
could have liability under Section 4064 or 4069 of ERISA in the event
such plan has been or were to be terminated.
"Nonrecourse Debt" means Debt of the Borrower or any of its
Subsidiaries in respect of which no recourse may be had by the creditors
under such Debt against the Borrower or such Subsidiary in its
individual capacity or against the assets of the Borrower or such
Subsidiary, other than assets which were purchased by the Borrower or
such Subsidiary with the proceeds of such Debt.
"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
9
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.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other
assets owned by such Person.
"Receivables Purchase Documents" means those documents entered
into in connection with any series of receivables purchase or sale
agreements generally consistent with terms contained in comparable
structured finance transactions pursuant to which the Borrower or any of
its Subsidiaries, in their respective capacities as sellers or
transferors of any receivables, sell or transfer to SPCs all of their
respective rights, title and interest in and to certain receivables for
further sale or transfer to other purchasers of or investors in such
assets (and the other documents, instruments and agreements executed in
connection therewith), as any such agreements may be amended, restated,
supplemented or otherwise modified from time to time, or any replacement
or substitution therefor
"Receivables Purchase Facility" means any securitization
facility made available to the Borrower or any of its Subsidiaries,
pursuant to which receivables of the Borrower or any of its Subsidiaries
are transferred to one or more SPCs, and thereafter to certain
investors, pursuant to the terms and conditions of the Receivables
Purchase Documents
"Reference Banks" means Citibank, N.A., Barclays Bank PLC and
Bank One, NA (Main Office - Chicago).
"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.
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"Revolving Credit Advance" means an advance by a Lender to the
Borrower as part of a Borrowing, and refers to a Base Rate Advance or a
Eurodollar Rate Advance (each of which shall be a "Type" of Revolving
Credit Advance).
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw-Hill, Inc.
"S&P Rating" is defined in the Pricing Schedule.
"SEC Reports" means the following reports and financial
statements of the Borrower:
(i) the Borrower's Annual Report 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
(ii) the Borrower's Quarterly Report on Form 10-Q for the quarter ended
June 30, 2001, including therein the Unaudited Statements of the
Borrower, and the Borrower's Current Reports on Form 8-K, if any,
provided to the Lenders prior to the date of this Agreement.
"SPC" means any special purpose entity established for the
purpose of purchasing receivables in connection with a receivables
securitization transaction permitted under the terms of this Agreement
"SPV" has the meaning specified in Section 8.07(h).
"Significant Subsidiary" means any Subsidiary of the Borrower
(A) the total assets (after intercompany eliminations) of which exceed
30% of the total assets of the Borrower and its Subsidiaries or (B) the
net worth of which exceeds 30% of the Consolidated Net Worth of the
Borrower and its Subsidiaries, in each case as shown on the audited
consolidated financial statements of the Borrower as of the end of the
fiscal year immediately preceding the date of determination.
"Single Employer Plan" means a single employer plan, as defined
in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of
the Borrower or any ERISA Affiliate and no Person other than the
Borrower and the ERISA Affiliates or (b) was so maintained and in
respect of which the Borrower or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan has been or
were to be terminated.
"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
11
and one or more of its other Subsidiaries or by one or more of such
Person's other Subsidiaries.
"Unaudited Statements" means the unaudited condensed
Consolidated balance sheets of the Borrower, as at June 30, 2001, and
the related condensed Consolidated statements of income and cash flows
of the Borrower for the six-month period then ended, duly certified by a
Financial Officer of the Borrower.
"Utilization Fee" has the meaning specified in Section 2.03(c).
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening
of such a contingency.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(e) ("GAAP").
ARTICLE II: AMOUNTS AND TERMS OF THE REVOLVING CREDIT ADVANCES
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 10:00 A.M. (Chicago
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 9:00 A.M.
(Chicago time) the Business Day of the proposed
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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 11:00 A.M.
(Chicago 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 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.
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(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.
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
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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.
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.
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(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 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 10:00 A.M. (Chicago 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
16
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 10:00 A.M. (Chicago 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 (other
than DTE Energy or any of its Subsidiaries) 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 (other than DTE Energy or any of its Subsidiaries) shall have
acquired by contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation, will result in its or their acquisition of
the power to exercise, directly or indirectly, a controlling influence over the
management or policies of the Borrower.
SECTION 2.10. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances (excluding for purposes
of this Section 2.10 any such increased costs resulting from (i) Taxes or Other
Taxes (as to which Section 2.13 shall govern) 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
17
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 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 10:00 A.M.
(Chicago 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
18
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 the 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 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
19
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 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
20
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 in connection with the Loan Documents with
respect to such Lender, and (iii) if such assignee is not a Lender, (A) such
assignee is acceptable to the Agent and (B) the Borrower shall have paid the
Agent a $3,000 administrative fee.
SECTION 2.14. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the 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
21
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 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
22
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 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.
23
(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:
(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.
24
(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 T.A. Hughes, the 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 Agreement 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):
(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
25
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 bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors rights generally.
(e) The Audited Statements of the Borrower and the Unaudited
Statements of the Borrower, 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
26
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.
(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 subsection (e) above, the Borrower and its Subsidiaries have no
material liability with respect to "expected post retirement benefit
obligations" within the meaning of Statement of Financial Accounting
Standards No. 106.
(m) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System), and no proceeds of any 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
27
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) The Borrower is a "public utility company" and a
"subsidiary company" of MichCon Holdings, Inc., which is a "holding
company" and a "subsidiary company" of Enterprises, which is a "holding
company" and "subsidiary company" of DTE Energy, 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 companies"
and the Borrower are currently exempt from the provisions of the 1935
Act (except Section 9 thereof).
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.
(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
28
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 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 on Form 10-K for such year for the Borrower
and its Consolidated Subsidiaries, as filed with or sent to the
Securities and Exchange Commission, 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
29
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 Moody's 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, incur, or suffer to exist any Lien
in, of or on the Property of the Borrower or any of its
Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges or
levies on its Property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are
being contested in good faith and by appropriate proceedings and
for which adequate reserves in accordance with GAAP shall have
been set aside on its books;
(ii) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the ordinary
course of business which secure payment of obligations not more
than sixty (60) days past due or which are being contested in
good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on
its books;
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or
other social security or retirement benefits, or similar
legislation;
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature
generally existing with respect to
30
properties of a similar character and which do not in any
material way affect the marketability of the same or interfere
with the use thereof in the business of the Borrower or its
Subsidiaries;
(v) Liens described in the SEC Reports;
(vi) Liens pursuant to the Borrower's Indenture of Mortgage and
Deed of Trust, dated as of March 1, 1944, as restated as of July
15, 1989, as supplemented, as described therein;
(vii) Liens pursuant to the Borrower's Senior Indenture, dated
as of June 1, 1998, as supplemented, as described therein, in
connection with the issuance of debt securities secured by
mortgage bonds; and
(viii) Liens, including, without limitation, Liens arising in
connection with a Receivables Purchase Facility, securing Debt
of the Borrower (other than Debt of the Borrower owed to any
Subsidiary) and/or securing Debt of the Borrower's Subsidiaries
(other than Debt of any Subsidiary owed to the Borrower or any
other Subsidiary), in an aggregate outstanding amount not to
exceed ten percent (10%) of the consolidated assets of the
Borrower and its Subsidiaries at any time.
(b) Mergers, Etc. Merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of
its assets (whether now owned or hereafter acquired) to, any Person, or
permit any 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 (a) DECO, so long as the Borrower shall be the
surviving entity or DECO shall expressly assume the obligations under
this Agreement or (b) 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 Moody's; provided, in each case, that no Default shall
have occurred and be continuing at the time of such proposed transaction
or would result therefrom.
(c) Change in Nature of Business. Make, or permit any of its
Significant Subsidiaries 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.
(d) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except as required or permitted by generally
accepted accounting principles.
ARTICLE VI: EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
31
(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
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
32
Borrower or any of its Significant Subsidiaries shall take any corporate
action to authorize any of the actions set forth above in this
subsection (e); or
(f) Any judgment or order for the payment of money,
individually or in the aggregate, in excess of $25,000,000 shall be
rendered against the Borrower or any of its Significant Subsidiaries and
either (i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order or (ii) there shall be any period
of 10 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not
be in effect; or
(g) Any non-monetary judgment or order shall be rendered
against the Borrower or any of its Significant Subsidiaries that could
be reasonably expected to have a Material Adverse Effect, and there
shall be any period of 10 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(h) (i) any Person or "group" (within the meaning of Section
13(d) or 14(d) of the Securities Exchange Act of 1934, as amended) shall
either (A) acquire beneficial ownership of more than 25% of any
outstanding class of common stock of DTE Energy having ordinary voting
power in the election of directors of DTE Energy, or (B) obtain the
power (whether or not exercised) to elect a majority of DTE Energy's
directors, or (ii) DTE Energy shall at any time cease to hold 100% of
the Voting Stock of the Borrower; 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, and (B) Excluded Hedging
Debt) of not less than 2:1 for each twelve-month period ending
on the last day of September, December, March and June of each
year, or
(ii) Maintain a ratio of Consolidated Debt (excluding
(A) Debt outstanding pursuant to the issuance of Debt with
maturities of no more than 365 days, (B) all Nonrecourse Debt of
the Borrower and its Subsidiaries, and (C) Excluded Hedging
Debt) to Capitalization of not greater than .55:1; 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;
33
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.
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
34
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. Bank One and Affiliates. With respect to its
Commitment, the Revolving Credit Advances made by it and any Note issued to it,
Bank One 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 Bank
One in its individual capacity. Bank One and its Affiliates may accept deposits
from, lend money to, act as trustee under indentures of, accept investment
banking engagements from and generally engage in any kind of business with, the
Borrower, any of its Subsidiaries and any Person who may do business with or own
securities of the Borrower or any such Subsidiary, all as if Bank One 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.
35
SECTION 7.06. Successor Agent. The Agent may resign at any
time by giving written notice thereof to the Lenders and the Borrower and may be
removed at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent, which shall be a commercial bank organized
under the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least $50,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
ARTICLE VIII: MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following: (a)
waive any of the conditions specified in Section 3.01, (b) increase the
Commitments of the Lenders or subject the Lenders to any additional obligations,
(c) reduce the principal of, or interest on, the 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 2000 2nd Avenue, Detroit, MI
48226, 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 One
Bank One Plaza, Chicago Illinois, 60670, Attention: Dawn Lawler; 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,
36
telegraphed or telexed, be effective when deposited in the mails, telecopied,
delivered to the telegraph company or confirmed by telex answerback,
respectively, except that notices and communications to the Agent pursuant to
Article II, III or VII shall not be effective until received by the Agent.
Delivery by telecopier of an executed counterpart of any amendment or waiver of
any provision of this Agreement or the Notes or of any Exhibit hereto to be
executed and delivered hereunder shall be effective as delivery of a manually
executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender or the Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to
pay on demand, upon presentation of a statement of account and absent manifest
error, all reasonable costs and reasonable expenses of the Agent in connection
with the preparation, execution, delivery, administration, modification and
amendment of this Agreement, the Notes, each other Loan Document and the other
documents to be delivered hereunder and thereunder, including, without
limitation, (A) all due diligence, syndication (including printing, distribution
and bank meetings), transportation, computer, duplication, appraisal,
consultant, and audit expenses and (B) the reasonable fees and reasonable
expenses of counsel for the Agent with respect thereto and with respect to
advising the Agent as to its rights and responsibilities under the Loan
Documents. The Borrower further agrees to pay on demand all reasonable costs and
reasonable expenses of the Agent 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
37
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 Advance is made by the Borrower to or for the account of a Lender other
than on the last day of the Interest Period for such Revolving Credit Advance,
as a result of a payment or Conversion pursuant to Section 2.07(d) or (e), 2.09
or 2.11, acceleration of the maturity of the Revolving Credit Advances pursuant
to Section 6.01, or for any other reason, the Borrower shall, upon demand by
such Lender (with a copy of such demand to the Agent), pay to the Agent for the
account of such Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses that it may reasonably incur as a result of
such payment or Conversion, including, without limitation, any loss (including
loss of anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by any Lender to
fund or maintain such 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
38
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 (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
39
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 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
40
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 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.
41
(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.
(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.
42
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, 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.
43
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
44
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.
MICHIGAN CONSOLIDATED GAS
COMPANY
By: /s/ N.A. KHOURI
----------------------------
Name: N.A. Khouri
Title: Vice President and Treasurer
Lenders
BANK ONE, NA (MAIN OFFICE-CHICAGO),
Individually and as Administrative
Agent
By: /s/ DAWN M. LAWLER
----------------------------
Name: DAWN M. LAWLER
Title: Vice President
BARCLAYS BANK PLC, as Co-Syndication
Agent and as a Lender
By: /s/ SYDNEY G. DENNIS
----------------------------
Name: Sydney G. Dennis
Title: Director
SALOMON SMITH BARNEY INC., as
Co-Syndication Agent
By: /s/ ANITA J. BRICKELL
----------------------------
Name: Anita J. Brickell
Title: Attorney-in-Fact
CITIBANK, N.A., as a Lender
By: /s/ DHAYA RANGANATHAN
----------------------------
Name: Dhaya Ranganathan
Title: Vice President
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ N. BELL
----------------------------
Name: N. BELL
Title: ASSISTANT AGENT
KEY BANK NATIONAL ASSOCIATION, as a
Lender
By: /s/ SHERRIE I. MANSON
---------------------------
Name: Sherrie I. Manson
Title: Vice President
THE BANK OF NEW YORK, as a Lender
By: /s/ CYNTHIA D. HOWELLS
---------------------------
Name: Cynthia D. Howells
Title: Assistant Vice President
COMERICA BANK, as a Lender
By: /s/ DAVID C. BIRD
---------------------------
Name: David C. Bird
Title: Vice President
CREDIT SUISSE FIRST BOSTON, as a
Lender
By: /s/ JAY CHALL
---------------------------
Name: Jay Chall
Title: Director
By: /s/ JEFFREY BERNSTEIN
---------------------------
Name: JEFFREY BERNSTEIN
Title: VICE PRESIDENT
THE CHASE MANHATTAN BANK, as a Lender
By: /s/ PETER M. LING
---------------------------
Name: Peter M. Ling
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
as a Lender
By: /s/ MASASHI SAKAI
---------------------------
Name: Masashi Sakai
Title: General Manager
THE FUJI BANK, LIMITED, as a Lender
By: /s/ PETER L. CHINNICI
---------------------------
Name: Peter L. Chinnici
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/ ROBERT J. OLSON
---------------------------
Name: Robert J. Olson
Title: Vice President
UBS AG, STAMFORD BRANCH, as a Lender
By: /s/ WILFRED V. SAINT
---------------------------
Name: Wilfred V. Saint
Title: Associate Director
Banking Products Services,
US
By: /s/ SUSAN BRUNNER
---------------------------
Name: Susan Brunner
Title: Associate Director
Banking Products Services,
US
BAYERISCHE LANDESBANK
GIROZENTRALE, CAYMAN ISLANDS BRANCH,
as a Lender
By: /s/ PAUL SZCZEPANSKI
---------------------------
Name: Paul Szczepanski
Title: Vice President
By: /s/ HAREWARD DRUMMOND
---------------------------
Name: Hareward Drummond
Title: Senior Vice President
MELLON BANK, N.A., as a Lender
By: /s/ RICHARD A. MATTHEWS
---------------------------
Name: Richard A. Matthews
Title: First Vice President
SOCIETE GENERALE, as a Lender
By: /s/ MICHAEL O. LINCOLN
---------------------------
Name: MICHAEL O. LINCOLN
Title: DIRECTOR
COBANK, ACB, as a Lender
By: /s/ TERESA L. FOUNTAIN
---------------------------
Name: Teresa L. Fountain
Title: Assistant Corporate Secretary
CREDIT LYONNAIS NEW YORK BRANCH,
as a Lender
By: /s/ BERNARD WEYMULLER
---------------------------
Name: Bernard Weymuller
Title: Senior Vice President
BANK HAPOALIM B.M., as a Lender
By: /s/ MARC BOSC
---------------------------
Name: MARC BOSC
Title: VICE PRESIDENT
By: /s/ CONRAD WAGNER
---------------------------
Name: Conrad Wagner
Title: First Vice President
FIFTH THIRD BANK, EASTERN MICHIGAN, as a
Lender
By: /s/ MICHAEL E. DOLSON
---------------------------
Name: Michael E. Dolson
Title: Vice President
ARAB BANKING CORPORATION, as a Lender
By: /s/ GRANT E. McDONALD
---------------------------
Name: GRANT E. McDONALD
Title: VICE PRESIDENT
STANDARD FEDERAL BANK, N.A., as a
Lender
By: /s/ RICHARD C. NORTHRUP, III
----------------------------
Name: Richard C. Northrup, III
Title: Vice President
THE NORTHERN TRUST COMPANY, as a Lender
By: /s/ ROGER McDOUGAL
---------------------------
Name: Roger McDougal
Title: Second Vice President
FIRST INDEPENDENCE NATIONAL BANK OF
DETROIT, as a Lender
By: /s/ BARBARA W. WORDEN
---------------------------
Name: Barbara W. Worden
Title: Senior Vice President
SCHEDULE I
MICHIGAN CONSOLIDATED GAS COMPANY
APPLICABLE LENDING OFFICES
- ------------------------------------------------------------------------------------------------------------------------
NAME OF INITIAL LENDER DOMESTIC LENDING OFFICE EURODOLLAR LENDING OFFICE COMMITMENT
- ------------------------------------------------------------------------------------------------------------------------
Citibank, N.A. 388 Greenwich Street Same as Domestic Lending $24,642,857.12
21st Floor Office
New York, NY 10003
Attention: Dhaya Ransanathan
Telecopier: (212) 816-8098
- ------------------------------------------------------------------------------------------------------------------------
Bank One, NA One Bank One Plaza Same as Domestic Lending $24,642,857.14
Suite 0634 Office
Chicago, IL 60670
Attention: Gloria Steinbrenner
Telecopier: (312) 732-4840
- ------------------------------------------------------------------------------------------------------------------------
Barclays Bank PLC 222 Broadway 222 Broadway $24,642,857.12
New York, NY 10038 New York, NY 10038
Attention: Jeff Pannullo Attention: Jeff Pannullo
Telecopier: (212) 412-5306 Telecopier: (212) 412-5306
- ------------------------------------------------------------------------------------------------------------------------
The Bank of Nova Scotia 600 Peachtree Street NE Same as Domestic Lending $17,357,142.86
Suite 2700 Office
Atlanta, GA 30308
Attention: Mystro Whatley
Telecopier: (404) 888-8998
- ------------------------------------------------------------------------------------------------------------------------
Key Bank National 127 Public Square Same as Domestic Lending $17,357,142.86
Association Cleveland, OH 44114 Office
Attention: Laura Binkley
Telecopier: (216)689-4981
- ------------------------------------------------------------------------------------------------------------------------
The Bank of New York One Wall Street Same as Domestic Lending $17,357,142.86
New York, NY 10286 Office
Attention: Kathy D'Elena
Telecopier: (212) 635-7923
- ------------------------------------------------------------------------------------------------------------------------
Comerica Bank 500 Woodward Avenue Same as Domestic Lending $17,357,142.86
MC 3268 Office
Detroit, MI 48226
Attention: David C. Bird
Telecopier: (313) 222-9514
- ------------------------------------------------------------------------------------------------------------------------
Credit Suisse First Boston 11 Madison Avenue Same as Domestic Lending $17,357,142.86
New York, NY 10010 Office
Attention: Andrea Shkane
Telecopier: (212) 325-8309
- ------------------------------------------------------------------------------------------------------------------------
The Chase Manhattan 270 Park Avenue Same as Domestic Lending $17,357,142.86
Bank 23rd Floor Office
New York, NY 10017
Attention: Lynette Lang
Telecopier: (212) 552-5777
- ------------------------------------------------------------------------------------------------------------------------
The Fuji Bank, Limited c/o Fuji Bank NJ Data Center Same as Domestic Lending $ 5,554,285.72
95 Christopher Columbus Dr. Office
Jersey City, NJ 07302
Attention: Tina Catapeno
Telecopier: (201) 432-6803
- ------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------
NAME OF INITIAL LENDER DOMESTIC LENDING OFFICE EURODOLLAR LENDING OFFICE COMMITMENT
- ------------------------------------------------------------------------------------------------------------------------
The Dai-Ichi Kangyo 95 Christopher Columbus Dr. Same as Domestic Lending $5,554,285.71
Bank, Ltd. Jersey City, NJ 07302 Office
Attention: Lending Desk
Telecopier: (201) 432-6803
- ------------------------------------------------------------------------------------------------------------------------
The Industrial Bank of The Industrial Bank of Japan, Same as Domestic Lending $6,248,571.43
Japan, Limited Limited Office
New York Branch
1251 Avenue of the Americas
New York, NY 10020-1104
Attention: Lydia Mistretta
Telecopier: (212) 282-4480
- ------------------------------------------------------------------------------------------------------------------------
Union Bank of California, Energy Capital Services Same as Domestic Lending $17,357,142.86
N.A. 445 S. Figueroa Street, 15th Office
Floor
Los Angeles, CA 90017
Attention: Dennis Blank
Telecopier: (213) 236-4096
- ------------------------------------------------------------------------------------------------------------------------
UBS AG, Stamford 577 Washington Boulevard Same as Domestic Lending $15,107,142.86
Branch Stamford, CT 06901 Office
Attention: Denise Conzo
Telecopier: (203) 719-3853
- ------------------------------------------------------------------------------------------------------------------------
Bayerische Landesbank 560 Lexington Avenue Same as Domestic Lending $11,785,714.29
Girozentrale, Cayman 17th Floor Office
Islands Branch New York, NY 10022
Attention: Sean O'Sullivan
Telecopier: (212) 310-9868
- ------------------------------------------------------------------------------------------------------------------------
Mellon Bank, N.A. 3 Mellon Center - Room 1203 Same as Domestic Lending $11,785,714.29
Pittsburgh, PA 15259 Office
Attention: Brenda Leiersapf
Telecopier: (412) 209-6146
- ------------------------------------------------------------------------------------------------------------------------
Societe Generale 1221 Avenue of the Americas Same as Domestic Lending $ 8,571,428.57
New York, NY 10020 Office
Attention: Gede Antara and/or
Soo Lee
Telecopier: (212) 278-7343
- ------------------------------------------------------------------------------------------------------------------------
CoBank, ACB 5500 South Quebec Street Same as Domestic Lending $ 8,571,428.57
Greenwood Village, CO 80111 Office
Attention: Darla Moran
Telecopier: (303) 740-4021
- ------------------------------------------------------------------------------------------------------------------------
Credit Lyonnais New 1301 Avenue of the Americas Same as Domestic Lending $ 8,571,428.57
York Branch New York, NY 10019 Office
Attention: Bindu Menon
Telecopier: (917) 849-5540
- ------------------------------------------------------------------------------------------------------------------------
Bank Hapoalim B.M. 1177 Avenue of the Americas Same as Domestic Lending $ 5,357,142.86
New York, NY 10036 Office
Attention: Marc Bosc
Telecopier: (212) 782-2382
- ------------------------------------------------------------------------------------------------------------------------
Fifth Third Bank, Eastern c/o Madisonville Operations Same as Domestic Lending $ 4,285,714.29
Michigan Center Office
MD 1M0C2B
Cincinnati, OH 45263-5300
Attention: Gina Schmidt
Telecopier: (513) 358-0221
- ------------------------------------------------------------------------------------------------------------------------
2
- ------------------------------------------------------------------------------------------------------------------------
NAME OF INITIAL LENDER DOMESTIC LENDING OFFICE EURODOLLAR LENDING OFFICE COMMITMENT
- ------------------------------------------------------------------------------------------------------------------------
Arab Banking Corporation 277 Park Avenue Same as Domestic Lending $ 4,285,714.29
32nd Floor Office
New York, NY 10172
Attention: R. Hassan
Telecopier: (212) 583-0932
- ------------------------------------------------------------------------------------------------------------------------
Standard Federal Bank, 2600 W. Big Beaver Same as Domestic Lending $ 4,285,714.29
N.A. Troy, MI 48084 Office
Attention: Yvonne Hicks
Telecopier: (248) 637-5003
- ------------------------------------------------------------------------------------------------------------------------
The Northern Trust 50 S. LaSalle Street Same as Domestic Lending $ 4,285,714.29
Company Chicago, IL 60675 Office
Attention: Funding Contact
Telecopier: (312) 444-5055
- ------------------------------------------------------------------------------------------------------------------------
First Independence Bank 44 Michigan Avenue Same as Domestic Lending $ 321,428.57
of Detroit Detroit, MI 48226 Office
Attention: Barbara W. Worden
Telecopier: (313) 256-8444
- ------------------------------------------------------------------------------------------------------------------------
Total: $ 300,000,000
- ------------------------------------------------------------------------------------------------------------------------
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 0.425% 0.600% 0.700% 0.800% 1.200%
(Eurodollar
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 Moody's Rating is A3 or better or the Borrower's S&P Rating is A- or
better.
"Level II Status" exists at any date if, on such date, (i) the
Borrower has not qualified for Level I Status and (ii) the Borrower's Moody's
Rating is Baa1 or better or the Borrower's S&P Rating is BBB+ or better.
"Level III Status" exists at any date if, on such date, (i) the
Borrower has not qualified for Level I Status or Level II Status and (ii) the
Borrower's Moody's Rating is Baa2 or better or the Borrower's S&P Rating is BBB
or better.
"Level IV Status" exists at any date if, on such date, (i) the
Borrower has not qualified for Level I Status, Level II Status or Level III
Status and (ii) the Borrower's Moody's 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.
"Moody's Rating" means, at any time, the rating that is one
level below the rating issued by Moody's and then in effect with respect to the
Borrower's senior secured long-term debt securities without third-party credit
enhancement.
"S&P Rating" means, at any time, the rating that is one level
below the rating issued by S&P and then in effect with respect to the Borrower's
senior secured 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 Moody's 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 Moody's 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.$___________ Dated: ______________, 2001
FOR VALUE RECEIVED, the undersigned, MICHIGAN CONSOLIDATED GAS
COMPANY, a Michigan corporation (the "Borrower"), HEREBY PROMISES TO PAY to the
order of _______________ (the "Lender") for the account of its Applicable
Lending Office on the Revolver Termination Date (each as defined in the Credit
Agreement referred to below), the principal sum of U.S.$ [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 Bank One, NA (Main Office - Chicago), 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 Bank One, NA (Main Office - Chicago), as Agent, at
One Bank One Plaza, Chicago Illinois, 60670, Account No.4811-5286-0000,
Attention: Gloria Steinbrenner, 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.
MICHIGAN CONSOLIDATED GAS
COMPANY
By
-----------------------
Title:
7
ADVANCES AND PAYMENTS OF PRINCIPAL
===========================================================================
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
Bank One, NA (Main Office - Chicago), as Agent for
the Lenders parties to the Credit Agreement referred to below
One Bank One Plaza
Chicago, Illinois 60670 [Date]
Attention: Dawn Lawler
Ladies and Gentlemen:
The undersigned, MICHIGAN CONSOLIDATED GAS 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 Bank One, NA (Main Office - Chicago), 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,
9
MICHIGAN CONSOLIDATED GAS
COMPANY
By
---------------------------
Title:
10
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
Michigan Consolidated Gas Company, a Michigan corporation (the "Borrower"), the
Lenders (as defined in the Credit Agreement) and Bank One, NA (Main Office -
Chicago), 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
11
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.
12
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".
13
[Approved this ________ day of _____________, ____.]
MICHIGAN CONSOLIDATED GAS COMPANY
By __________________________] **
Title:
14
EXHIBIT D - FORM OF CERTIFICATE
DTE ENERGY COMPANY
THE DETROIT EDISON COMPANY
MICHIGAN CONSOLIDATED GAS COMPANY
OFFICER'S CERTIFICATE
I, N.A. Khouri, 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.
15
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.
16
IN WITNESS WHEREOF, I have signed this certificate this [____]
day of November, 2001.
-----------------------------------
N.A. Khouri
Vice President and Treasurer
17
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 Salomon Smith 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, Salomon Smith 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 (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 Salomon Smith 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.
18
(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.
19
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.
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.
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.
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.
20
(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,
21
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 Salomon Smith Barney 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 Salomon Smith 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
Salomon Smith Barney Inc., as Co-
Syndication Agents, and with Banc One
Capital Markets, Inc. and Barclays
Capital, as Co-Lead Arrangers and Joint
Book Runners.
22
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 Michigan Consolidated Gas Company, a Michigan corporation (the
"Borrower"), the lenders parties thereto, and Bank One, NA (Main Office
Chicago), 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:
23
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) Denominator: (B)(i) minus (B)(ii) through (B)(iii): $_____
(C) State whether the ratio of (A) to (B)(iv) 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: -$_____
(iv) Minus: Debt outstanding pursuant to the issuance of Debt with maturities
of not more than 365 days: -$_____
(v) Numerator: (A)(i) minus (A)(ii) through (A)(iv): $_____
(B) Denominator:
(i) Total Net Worth: $_____
(ii) Plus: Consolidated Debt (other than Debt outstanding pursuant to the
issuance of Debt with maturities of not more than 365 days): $_____
1
(iii) Plus: Restructuring Charges Relating to the Merger of MCN Energy
Group Inc. with and into DTE Enterprises, Inc.: $_____
(iv) Denominator: Sum of (B)(i) through (B)(iii): $_____
(A) State whether the ratio of (A)(v) to (B)(iv) was not greater than .55:1: YES/NO
2