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Execution Copy
EXHIBIT 99-13
364-DAY
CREDIT AGREEMENT
Dated as of October 24, 2003
Among
DTE ENERGY COMPANY,
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders
and
CITIBANK, N.A.,
as Administrative Agent
and
BANC ONE CAPITAL MARKETS, INC., BARCLAYS BANK PLC,
as Co-Syndication Agent as Co-Syndication Agent
and
UBS AG (STAMFORD BRANCH) KEYBANK NATIONAL ASSOCIATION
as Co-Documentation Agent as Co-Documentation Agent
CITIGROUP GLOBAL MARKETS INC.,
as Lead Arranger and Sole Book Runner
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TABLE OF CONTENTS
PAGE
ARTICLE I: DEFINITIONS AND ACCOUNTING TERMS............................................................. 1
SECTION 1.01. Certain Defined Terms............................................... 1
SECTION 1.02. Computation of Time Periods......................................... 12
SECTION 1.03. Accounting Terms.................................................... 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................................ 13
SECTION 2.03. Fees................................................................ 14
SECTION 2.04. Termination or Reduction of the Commitments......................... 14
SECTION 2.05. Repayment of Revolving Credit Advances.............................. 15
SECTION 2.06. Interest on Revolving Credit Advances............................... 15
SECTION 2.07. Interest Rate Determination......................................... 15
SECTION 2.08. Optional Conversion of Revolving Credit Advances.................... 17
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........................................... 19
SECTION 2.13. Taxes............................................................... 20
SECTION 2.14. Sharing of Payments, Etc............................................ 22
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.................................................... 24
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01............... 24
SECTION 3.02. Conditions Precedent to Each Borrowing.............................. 25
SECTION 3.03. Determinations Under Section 3.01................................... 26
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ARTICLE IV: REPRESENTATIONS AND WARRANTIES.............................................................. 26
SECTION 4.01. Representations and Warranties of the Borrower...................... 26
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.................................................................................. 33
SECTION 7.01. Authorization and Action............................................ 33
SECTION 7.02. Agent's Reliance, Etc............................................... 33
SECTION 7.03. Citibank and Affiliates............................................. 34
SECTION 7.04. Lender Credit Decision.............................................. 34
SECTION 7.05. Indemnification..................................................... 34
SECTION 7.06. Successor Agent..................................................... 35
ARTICLE VIII: MISCELLANEOUS............................................................................. 35
SECTION 8.01. Amendments, Etc..................................................... 35
SECTION 8.02. Notices, Etc........................................................ 35
SECTION 8.03. No Waiver; Remedies................................................. 36
SECTION 8.04. Costs and Expenses.................................................. 36
SECTION 8.05. Right of Set-off.................................................... 37
SECTION 8.06. Binding Effect...................................................... 38
SECTION 8.07. Assignments, Designations and Participations........................ 38
SECTION 8.08. Confidentiality..................................................... 42
SECTION 8.09. Governing Law....................................................... 42
SECTION 8.10. Execution in Counterparts........................................... 42
SECTION 8.11. Jurisdiction, Etc................................................... 42
SECTION 8.12. Waiver of Jury Trial................................................ 43
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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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364-DAY CREDIT AGREEMENT (this "Agreement") dated as of
October 24, 2003 among DTE ENERGY COMPANY, a Michigan corporation (the
"Borrower"), the banks, financial institutions and other institutional lenders
(the "Initial Lenders") listed on the signature pages hereof, and CITIBANK, N.A.
("Citibank"), as Administrative Agent (the "Agent") and BANC ONE CAPITAL
MARKETS, INC., as Co-Syndication Agent, and BARCLAYS BANK PLC, as Co-Syndication
Agent for the Lenders (as hereinafter defined).
PRELIMINARY STATEMENTS.
The Borrower has requested that the Initial Lenders enter into
this Agreement, and the Initial Lenders have indicated their willingness to
enter into this Agreement upon the terms and conditions stated herein.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements contained herein, the parties hereto hereby
agree, subject to the satisfaction of the conditions set forth in Article III,
as follows:
ARTICLE I: DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 Certain Defined Terms. As used in this Agreement,
the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 5% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or
otherwise.
"Agent's Account" means the account of the Agent maintained by
the Agent at Citibank with its office at Two Penns Way, Suite 200, New
Castle, Delaware 19720, Account No. 36852248, Attention: Christian
Laughton.
"Agents" means the Agent and each Co-Syndication Agent,
collectively.
"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.
"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, DECO and MichCon as at December 31, 2002, and the related
Consolidated statements of income and cash flows of the Borrower, DECO
and MichCon for the fiscal year then ended, accompanied by the opinion
thereon of the Borrower's, DECO's and MichCon's independent public
accountants.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest established by Citibank
in New York, New York, from time to time, as Citibank's base
rate;
(b) the sum (adjusted to the nearest 1/16 of 1%
or, if there is no nearest 1/16 of 1%, to the next higher 1/16
of 1%) of (i) 1/2 of 1% per annum, plus (ii) the rate obtained
by dividing (A) the latest three-week moving average of
secondary market morning offering rates in the United States
for three-month certificates of deposit of major United States
money market banks, such three-week moving average (adjusted
to the basis of a year of 360 days) being determined weekly on
each Monday (or, if such day is not a Business Day, on the
next succeeding Business Day) for the three-week period ending
on the previous Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publication
shall be suspended or terminated, on the basis of quotations
for such rates received by Citibank from three New York
certificate of deposit dealers of recognized standing selected
by Citibank, by (B) a percentage equal to 100% minus the
average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement)
for Citibank with respect to liabilities consisting of or
including (among other liabilities) three-month U.S. dollar
non-personal time deposits in the United States, plus (iii)
the average during such three-week period of the annual
assessment rates estimated by Citibank for determining the
then current annual assessment payable by Citibank to the
Federal Deposit Insurance Corporation (or
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any successor) for insuring U.S. dollar deposits of Citibank
in the United States; and
(c) 1/2 of one percent per annum above the
Federal Funds Rate.
"Base Rate Advance" means a Revolving Credit Advance that
bears interest as provided in Section 2.06(a)(i).
"Borrower" has the meaning specified in the recital of parties
to this Agreement.
"Borrowing" means a borrowing consisting of simultaneous
Revolving Credit Advances of the same Type and (in the case of
Eurodollar Rate Advances) having the same Interest Period, made by each
of the Lenders pursuant to Section 2.01.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City or Chicago,
Illinois and, if the applicable Business Day relates to any Eurodollar
Rate Advances, on which dealings are carried on in the London interbank
market.
"Capitalization" means the sum of total net worth plus
Consolidated Debt.
"Commitment" has the meaning specified in Section 2.01.
"Confidential Information" means information that the Borrower
furnishes to the Agent or any Lender in a writing designated as
confidential, but does not include any such information that is or
becomes generally available to the public or that is or becomes
available to the Agent or such Lender from a source other than the
Borrower.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Revolving Credit Advances of one Type into Revolving
Credit Advances of the other Type pursuant to Section 2.07 or 2.08.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services
(other than trade payables not overdue by more than 60 days incurred in
the ordinary course of such Person's business), (c) all obligations of
such Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all obligations of such Person created or arising
under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (e) all
obligations of such Person as lessee under leases that have been or
should be, in accordance with GAAP, recorded as capital leases, (f) all
obligations, contingent or otherwise, of such Person in respect of
acceptances, letters of credit or similar extensions of credit, (g) all
obligations of such Person in respect of Hedge Agreements, (h) all Debt
of others referred to in clauses (a) through (g) above or clause (i)
below guaranteed directly or indirectly in any manner by
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such Person, or in effect guaranteed directly or indirectly by such
Person through an agreement (1) to pay or purchase such Debt or to
advance or supply funds for the payment or purchase of such Debt, (2)
to purchase, sell or lease (as lessee or lessor) property, or to
purchase or sell services, primarily for the purpose of enabling the
debtor to make payment of such Debt or to assure the holder of such
Debt against loss, (3) to supply funds to or in any other manner invest
in the debtor (including any agreement to pay for property or services
irrespective of whether such property is received or such services are
rendered) or (4) otherwise to assure a creditor against loss, and (i)
all Debt referred to in clauses (a) through (h) above secured by (or
for which the holder of such Debt has an existing right, contingent or
otherwise, to be secured by) any Lien on property (including, without
limitation, accounts and contract rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of
such Debt. See the definition of "Nonrecourse Debt" below.
"Declining Lender" has the meaning specified in Section 2.16.
"DECO" means The Detroit Edison Company, a Michigan
corporation wholly owned by the Borrower.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Designating Lender" has the meaning specified in Section
8.07(h).
"Disclosed Litigation" has the meaning specified in Section
3.01(b).
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office
of such Lender as such Lender may from time to time specify to the
Borrower and the Agent.
"EBITDA" means, for any period, net income (or net loss) plus
the sum of (a) interest expense, (b) income tax expense, (c)
depreciation expense and (d) amortization expense, in each case
determined in accordance with GAAP for such period less the aggregate
amount, if any, of securitization bond charges (or similar charges
imposed on customers for the purpose of servicing Securitization Bonds)
collected by or on behalf of a Securitization SPE, to the extent such
charges are included in the calculation of net income (or net loss).
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; (iii) a commercial bank organized under the laws of the United
States, or any State thereof, and having a combined capital and surplus
of at least $250,000,000; (iv) a savings and loan association or
savings bank organized under the laws of the United States, or any
State thereof, and having a combined capital and surplus of at least
$250,000,000; (v) a
4
commercial bank organized under the laws of any other country that is a
member of the Organization for Economic Cooperation and Development or
has concluded special lending arrangements with the International
Monetary Fund associated with its General Arrangements to Borrow, or a
political subdivision of any such country, and having a combined
capital and surplus of at least $250,000,000, so long as such bank is
acting through a branch or agency located in the United States; (vi)
the central bank of any country that is a member of the Organization
for Economic Cooperation and Development; (vii) a finance company,
insurance company or other financial institution or fund (whether a
corporation, partnership, trust or other entity) that is engaged in
making, purchasing or otherwise investing in commercial loans in the
ordinary course of its business and having a combined capital and
surplus of at least $250,000,000; and (viii) any other Person approved
by the Agent and, so long as no Event of Default shall be continuing,
the Borrower, such approval not to be unreasonably withheld or delayed
by either party; provided, however, that neither the Borrower nor an
Affiliate of the Borrower shall qualify as an Eligible Assignee.
"Enterprises" means DTE Enterprises, Inc., a Michigan
corporation wholly-owned by the Borrower.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the
environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, 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.
5
"ERISA Event" means (a) (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event
has been waived by the PBGC, or (ii) the requirements of subsection (1)
of Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with respect to a contributing sponsor, as defined in
Section 4001(a)(13) of ERISA, of a Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to such Plan within the
following 30 days; (b) the application for a minimum funding waiver
with respect to a Plan; (c) the provision by the administrator of any
Plan of a notice of intent to terminate such Plan pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan
amendment referred to in Section 4041(e) of ERISA); (d) the cessation
of operations at a facility of the Borrower or any ERISA Affiliate in
the circumstances described in Section 4062(e) of ERISA; (e) the
withdrawal by the Borrower or any ERISA Affiliate from a Multiple
Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions
for the imposition of a lien under Section 302(f) of ERISA shall have
been met with respect to any Plan; (g) the adoption of an amendment to
a Plan requiring the provision of security to such Plan pursuant to
Section 307 of ERISA; or (h) the institution by the PBGC of proceedings
to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA
that constitutes grounds for the termination of, or the appointment of
a trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office
is specified, its Domestic Lending Office), or such other office of
such Lender as such Lender may from time to time specify to the
Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the average (rounded upward to the nearest whole multiple
of 1/16 of 1% per annum, if such average is not such a multiple) of the
rate per annum at which deposits in U.S. dollars are offered by the
principal office of each of the Reference Banks in London, England to
prime banks in the London interbank market at 11:00 A.M. (London time)
two Business Days before the first day of such Interest Period in an
amount approximately equal to such Reference Bank's Eurodollar Rate
Advance comprising part of such Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period by (b) a
percentage equal to 100% minus the Eurodollar Rate Reserve Percentage
for such Interest Period. The Eurodollar Rate for any Interest Period
for each Eurodollar Rate Advance comprising part of the same Borrowing
shall be determined by the Agent on the basis of applicable rates
furnished to and received by the Agent from the Reference Banks two
Business Days
6
before the first day of such Interest Period, subject, however, to the
provisions of Section 2.07.
"Eurodollar Rate Advance" means a Revolving Credit Advance
that bears interest as provided in Section 2.06(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period
for all Eurodollar Rate Advances comprising part of the same Borrowing
means the reserve percentage applicable two Business Days before the
first day of such Interest Period under regulations issued from time to
time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal
reserve requirement) for a member bank of the Federal Reserve System in
New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference to which
the interest rate on Eurodollar Rate Advances is determined) having a
term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Excluded Hedging Debt" means all Debt arising under any Hedge
Agreement in respect of fluctuations in commodity prices.
"Existing Credit Agreement" means that certain Credit
Agreement, dated as of October 25, 2002, among the Borrower, the
lenders parties thereto, Citibank, N.A., as administrative agent, and
Banc One Capital Markets, Inc. and Barclays Bank PLC, as co-syndication
agents, 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.
7
"Hazardous Materials" means (a) petroleum and petroleum
products, by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Insufficiency" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or the date of the Conversion of
any Base Rate Advance into such Eurodollar Rate Advance and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below and, thereafter, with respect to Eurodollar Rate
Advances, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by the Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six
months, as the Borrower may, upon notice received by the Agent not
later than 11:00 A.M. (New York City time) on the third Business Day
prior to the first day of such Interest Period, select; provided,
however, that:
(i) the Borrower may not select any Interest
Period that ends after the Revolver Termination Date then in
effect;
(ii) Interest Periods commencing on the same date
for Eurodollar Rate Advances comprising part of the same
Borrowing shall be of the same duration;
(iii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next preceding
Business Day; and
(iv) whenever the first day of any Interest
Period occurs on a day of an initial calendar month for which
there is no numerically corresponding day in the calendar
month that succeeds such initial calendar month by the number
of months equal to the number of months in such Interest
Period, such Interest Period shall end on the last Business
Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
8
"Junior Subordinated Debt" means (a) subordinated junior
deferrable interest debentures of the Borrower, DECO, Enterprises or
MichCon, (b) the related preferred securities, if applicable, of
Subsidiaries of the Borrower and (c) the related subordinated
guarantees, if applicable, of the Borrower, DECO, Enterprises or
MichCon, in each case, from time to time outstanding.
"Lenders" means the Initial Lenders and each Person that shall
become a party hereto pursuant to Section 8.07(a), (b) and (c).
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance
on title to real property.
"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 $350,000,000.
"MichCon" means Michigan Consolidated Gas Company, a Michigan
corporation, wholly owned (indirectly) by the Borrower.
"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.
9
"Nonrecourse Debt" means Debt of the Borrower or any of its
Subsidiaries in respect of which no recourse may be had by the
creditors under such Debt against the Borrower or such Subsidiary in
its individual capacity or against the assets of the Borrower or such
Subsidiary, other than assets which were purchased by the Borrower or
such Subsidiary with the proceeds of such Debt; it being understood
that Securitization Bonds shall constitute Nonrecourse Debt for all
purposes of the Loan Documents, except to the extent (and only to the
extent) of any claims made against DECO in respect of its
indemnification obligations relating to such Securitization Bonds.
"Note" has the meaning specified in Section 2.17.
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability company or
other entity, or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Pricing Schedule" means the Pricing Schedule identifying the
Applicable Margin, the Applicable Percentage and the Applicable
Utilization Fee Rate attached hereto identified as such.
"Reference Banks" means Citibank, N.A., Barclays Bank PLC and
Bank One, NA.
"Register" has the meaning specified in Section 8.07(d).
"Required Lenders" means at any time Lenders owed more than
fifty percent (50%) of the then aggregate unpaid principal amount of
the Revolving Credit Advances owing to Lenders, or, if no such
principal amount is then outstanding, Lenders having more than fifty
percent (50%) of the Commitments.
"Revolver Termination Date" means the earlier of (a) October
21, 2004 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.
"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).
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"S&P" means Standard & Poor's Ratings Services, a division of
the McGraw-Hill Companies, Inc.
"S&P Rating" is defined in the Pricing Schedule.
"SEC Reports" means the following reports and financial
statements of the Borrower, DECO and MichCon, as the case may be:
(i) the Borrower's and DECO's Annual Reports on Form 10-K
for the year ended December 31, 2002, as filed with or sent to the
Securities and Exchange Commission, including therein the Audited
Statements of the Borrower, as updated in a Current Report on Form 8-K
dated July 14, 2003 as filed with or sent to the Securities and
Exchange Commission, and DECO;
(ii) MichCon's Annual Report on Form 10-K for the year
ended December 31, 2002, as filed with or sent to the Securities and
Exchange Commission, including therein the Audited Statements of
MichCon; and
(iii) the Borrower's, DECO's and MichCon's Quarterly
Reports on Form 10-Q for the quarter ended June 30, 2003, including
therein the Unaudited Statements of the Borrower, DECO and MichCon, and
the Borrower's, DECO's and MichCon's Current Reports on Form 8-K, if
any, provided to the Lenders prior to the date of this Agreement.
"SPV" has the meaning specified in Section 8.07(h).
"Securitization Bonds" means Debt of one or more
Securitization SPEs, issued pursuant to The Customer Choice and
Electricity Reliability Act, Act No. 142, Public Acts of Michigan,
2000, as the same may be amended from time to time.
"Securitization SPE" means an entity established or to be
established directly or indirectly by the Borrower for the purpose of
issuing Securitization Bonds and includes The Detroit Edison
Securitization Funding LLC, a limited liability company organized under
the laws of the State of Michigan.
"Significant Subsidiary" means (i) DECO, Enterprises and
MichCon, and (ii) any other Subsidiary of the Borrower (A) the total
assets (after intercompany eliminations) of which exceed 30% of the
total assets of the Borrower and its Subsidiaries or (B) the net worth
of which exceeds 30% of the Consolidated Net Worth of the Borrower and
its Subsidiaries, in each case as shown on the audited consolidated
financial statements of the Borrower as of the end of the fiscal year
immediately preceding the date of determination.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any ERISA Affiliate and no Person other
than the Borrower and the ERISA Affiliates or (b) was so maintained and
in respect of which the Borrower or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan has been
or were to be terminated.
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"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b)
the interest in the capital or profits of such limited liability
company, partnership or joint venture or (c) the beneficial interest in
such trust or estate is at the time directly owned or controlled by
such Person, by such Person and one or more of its other Subsidiaries
or by one or more of such Person's other Subsidiaries.
"Three-Year Agreement" means that certain $350,000,000
three-year credit agreement dated as of October 24, 2003, by and among
the Borrower, the Lenders and the Agents, as the same may be amended,
restated, supplemented or otherwise modified from time to time.
"Unaudited Statements" means the unaudited condensed
Consolidated balance sheets of the Borrower, DECO and MichCon, as at
June 30, 2003, and the related condensed Consolidated statements of
income and cash flows of the Borrower, DECO and MichCon for the
six-month period then ended, duly certified by a Financial Officer of
the Borrower, DECO and MichCon.
"Utilization Fee" has the meaning specified in Section
2.03(c).
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the
happening of such a contingency.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(e) ("GAAP").
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
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until the Revolver Termination Date in an aggregate amount not to exceed at any
time outstanding the amount set forth opposite such Lender's name on Schedule 1
hereto or, if such Lender has entered into any Assignment and Acceptance, set
forth for such Lender in the Register maintained by the Agent pursuant to
Section 8.07(d), as such amount may be reduced pursuant to Section 2.04 (such
Lender's "Commitment"). Each Borrowing shall be in an aggregate amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof and shall
consist of Revolving Credit Advances of the same Type made on the same day by
the Lenders ratably according to their respective Commitments. Within the limits
of each Lender's Commitment, the Borrower may borrow under this Section 2.01,
prepay pursuant to Section 2.09 and reborrow under this Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances. (a) Each
Borrowing shall be made on notice, given not later than 11:00 A.M. (New York
City time) on the third Business Day prior to the date of the proposed Borrowing
in the case of a Borrowing consisting of Eurodollar Rate Advances, or 10:00 A.M.
(New York City time) on the Business Day of the proposed Borrowing in the case
of a Borrowing consisting of Base Rate Advances, by the Borrower to the Agent,
which shall give to each Lender prompt notice thereof by telecopier or telex.
Each such notice of a Borrowing (a "Notice of Borrowing") shall be by telephone,
confirmed immediately in writing, telecopier or telex in substantially the form
of Exhibit B hereto, specifying therein the requested (i) date of such
Borrowing, (ii) Type of Revolving Credit Advances comprising such Borrowing,
(iii) aggregate amount of such Borrowing, and (iv) in the case of a Borrowing
consisting of Eurodollar Rate Advances, initial Interest Period for each such
Revolving Credit Advance. Each Lender shall, before 12:00 noon (New York City
time) on the date of such Borrowing, make available for the account of its
Applicable Lending Office to the Agent at the Agent's Account, in same day
funds, such Lender's ratable portion of such Borrowing. After the Agent's
receipt of such funds and upon fulfillment of the applicable conditions set
forth in Article III, the Agent will make such funds available to the Borrower
at the Agent's address referred to in Section 8.02.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for
any Borrowing if the aggregate amount of such Borrowing is less than $5,000,000
or if the obligation of the Lenders to make Eurodollar Rate Advances shall then
be suspended pursuant to Section 2.07 or 2.11 and (ii) at no time shall the sum
of (x) all Borrowings comprising Eurodollar Rate Advances outstanding hereunder
and (y) all "Borrowings" comprising "Eurodollar Rate Advances" outstanding
under, and as such terms are defined in, the Three-Year Agreement, be greater
than ten.
(c) Each Notice of Borrowing shall be irrevocable and binding on
the Borrower. In the case of any Borrowing that the related Notice of Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall
indemnify each Lender against any loss, cost or expense incurred by such Lender
as a result of any failure to fulfill on or before the date specified in such
Notice of Borrowing for such Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Revolving Credit Advance to be made by such Lender as part of such Borrowing
when such Revolving Credit Advance, as a result of such failure, is not made on
such date.
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(d) Unless the Agent shall have received notice from a Lender
prior to the date of any Borrowing that such Lender will not make available to
the Agent such Lender's ratable portion of such Borrowing, the Agent may assume
that such Lender has made such portion available to the Agent on the date of
such Borrowing in accordance with subsection (a) of this Section 2.02 and the
Agent may, in reliance upon such assumption, make available to the Borrower on
such date a corresponding amount. If and to the extent that such Lender shall
not have so made such ratable portion available to the Agent, such Lender and
the Borrower severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Agent, at (i) in the case of the Borrower, the interest rate
applicable at the time to Revolving Credit Advances comprising such Borrowing
and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender
shall repay to the Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Revolving Credit Advance as part of such Borrowing for
purposes of this Agreement.
(e) The failure of any Lender to make the Revolving Credit Advance
to be made by it as part of any Borrowing shall not relieve any other Lender of
its obligation, if any, hereunder to make its Revolving Credit Advance on the
date of such Borrowing, but no Lender shall be responsible for the failure of
any other Lender to make the Revolving Credit Advance to be made by such other
Lender on the date of any Borrowing.
SECTION 2.03. Fees. (a) Facility Fee. The Borrower agrees to
pay to the Agent for the account of each Lender a facility fee (the "Facility
Fee") on the aggregate amount of such Lender's Commitment from the date hereof
in the case of each Initial Lender and from effective date specified in the
Assignment and Acceptance pursuant to which it became a Lender in the case of
each other Lender until all of the Revolving Credit Advances have been paid in
full and the Commitments under this Agreement have been terminated at a rate per
annum equal to the Applicable Percentage in effect from time to time, payable in
arrears quarterly on the last day of each March, June, September and December,
and on the Revolver Termination Date.
(b) Agent's Fees. The Borrower shall pay to the Agent for its own
account such fees as may from time to time be agreed between the Borrower and
the Agent.
(c) Utilization Fee. If the aggregate outstanding amount of (i)
all Revolving Credit Advances hereunder and (ii) the "Aggregate Outstanding
Credit Exposure" under (and as defined in) the Three-Year Agreement exceeds
thirty-three percent (33%) of the aggregate amount of (x) all Commitments
hereunder and (y) all "Commitments" under (and as defined in) the Three-Year
Agreement then in effect on such date (or, if any of the Commitments or
"Commitments" have been terminated, the aggregate amount of all Commitments and
"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 Revolver
Termination Date.
SECTION 2.04. Termination or Reduction of the Commitments. (a)
The Commitments shall be automatically terminated on the Revolver Termination
Date.
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(b) The Borrower shall have the right, upon at least three
Business Days' notice to the Agent, to terminate in whole or reduce ratably in
part the unused portions of the respective Commitments of the Lenders, provided
that each partial reduction shall be in the aggregate amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof. Once terminated, a Commitment
or portion thereof may not be reinstated.
SECTION 2.05. Repayment of Revolving Credit Advances. The
Borrower shall repay to the Agent for the ratable account of the Lenders on the
Revolver Termination Date the aggregate principal amount of the Revolving Credit
Advances then outstanding.
SECTION 2.06. Interest on Revolving Credit Advances. (a)
Scheduled Interest. The Borrower shall pay interest on the unpaid principal
amount of each Revolving Credit Advance owing to each Lender from the date of
such Revolving Credit Advance until such principal amount shall be paid in full,
at the following rates per annum:
(i) Base Rate Advances. During such periods as such
Revolving Credit Advance is a Base Rate Advance, a rate per annum equal
at all times to the sum of (x) the Base Rate in effect from time to
time plus (y) the Applicable Margin in effect from time to time,
payable in arrears quarterly on the last day of each March, June,
September and December during such periods and on the date such Base
Rate Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Revolving Credit Advance is a Eurodollar Rate Advance, a rate per annum
equal at all times during each Interest Period for such Revolving
Credit Advance to the sum of (x) the Eurodollar Rate for such Interest
Period for such Revolving Credit Advance plus (y) the Applicable Margin
in effect from time to time, payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration of more
than three months, on each day that occurs during such Interest Period
every three months from the first day of such Interest Period and on
the date such Eurodollar Rate Advance shall be Converted or paid in
full.
(b) Default Interest. (i) Upon the occurrence and during the
continuance of an Event of Default, the Borrower shall pay interest on the
unpaid principal amount of each Revolving Credit Advance owing to each Lender,
payable in arrears on the dates referred to in clause (a)(i) or (a)(ii) above,
at a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on such Revolving Credit Advance pursuant to clause (a)(i)
or (a)(ii) above, and (ii) the Borrower shall pay, to the fullest extent
permitted by law, the amount of any interest, fee or other amount payable
hereunder that is not paid when due, from the date such amount shall be due
until such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid on Base Rate
Advances pursuant to clause (a)(i) above.
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
15
Agent for the purpose of determining any such interest rate, the Agent shall
determine such interest rate on the basis of timely information furnished by the
remaining Reference Banks. The Agent shall give prompt notice to the Borrower
and the Lenders of the applicable interest rate determined by the Agent for
purposes of Section 2.06(a)(i) or (ii), and the rate, if any, furnished by each
Reference Bank for the purpose of determining the interest rate under Section
2.06(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the Required
Lenders notify the Agent that the Eurodollar Rate for any Interest Period for
such Eurodollar Rate Advances will not adequately reflect the cost to such
Required Lenders of making, funding or maintaining their respective Eurodollar
Rate Advances for such Interest Period, the Agent shall forthwith so notify the
Borrower and the Lenders, whereupon (i) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance, and (ii) the obligation of the Lenders to
make, or to Convert Revolving Credit Advances into, Eurodollar Rate Advances
shall be suspended until the Agent shall notify the Borrower and the Lenders
that the circumstances causing such suspension no longer exist.
(c) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Agent will forthwith so notify the Borrower and the Lenders and such Eurodollar
Rate Advances will automatically, on the last day of the then existing Interest
Period therefor, Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $5,000,000, such Eurodollar Rate
Advances shall automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of
Default, (i) each Eurodollar Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate Advance and
(ii) the obligation of the Lenders to make, or to Convert Revolving Credit
Advances into, Eurodollar Rate Advances shall be suspended.
(f) If fewer than two Reference Banks furnish timely information
to the Agent for determining the Eurodollar Rate for any Eurodollar Rate
Advances:
(i) the Agent shall forthwith notify the Borrower and the
Lenders that the interest rate cannot be determined for such Eurodollar
Rate Advances,
(ii) with respect to Eurodollar Rate Advances, each such
Eurodollar Rate Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance (or
if such Eurodollar Rate Advance is then a Base Rate Advance, will
continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurodollar Rate
Advances or to Convert Revolving Credit Advances into Eurodollar Rate
Advances shall be suspended until the Agent shall notify the Borrower
and the Lenders that the circumstances causing such suspension no
longer exist.
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SECTION 2.08. Optional Conversion of Revolving Credit
Advances. The Borrower may on any Business Day, upon notice given to the Agent
not later than 11:00 A.M. (New York City time) on the third Business Day prior
to the date of the proposed Conversion and subject to the provisions of Sections
2.07 and 2.11, Convert all Revolving Credit Advances of one Type comprising the
same Borrowing into Revolving Credit Advances of the other Type (it being
understood that such Conversion of a Revolving Credit Advance or of its Interest
Period does not constitute a repayment or prepayment of such Revolving Credit
Advance); provided, however, that any Conversion of Eurodollar Rate Advances
into Base Rate Advances shall be made only on the last day of an Interest Period
for such Eurodollar Rate Advances, any Conversion of Base Rate Advances into
Eurodollar Rate Advances shall be in an amount not less than the minimum amount
specified in Section 2.02(b) and no Conversion of any Revolving Credit Advances
shall result in more separate Borrowings than permitted under Section 2.02(b).
Each such notice of a Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Revolving Credit Advances to
be Converted, and (iii) if such Conversion is into Eurodollar Rate Advances, the
duration of the initial Interest Period for each such Eurodollar Rate Advance.
Each notice of Conversion shall be irrevocable and binding on the Borrower.
SECTION 2.09. Prepayments of Revolving Credit Advances. (a)
Optional Prepayment. The Borrower may on any Business Day, upon notice given to
the Agent not later than 11:00 A.M. (New York City time), (i) on the same day
for Base Rate Advances and (ii) on the second Business Day prior to the
prepayment in the case of Eurodollar Rate Advances stating the proposed date and
aggregate principal amount of the prepayment (and if such notice is given the
Borrower shall) prepay the outstanding principal amount of the Revolving Credit
Advances comprising part of the same Borrowing in whole or ratably in part,
together with accrued interest to the date of such prepayment on the principal
amount prepaid; provided, however, that (x) each partial prepayment shall be in
an aggregate principal amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof and (y) in the event of any such prepayment of a
Eurodollar Rate Advance, the Borrower shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 8.04(c).
(b) Mandatory Prepayment. The Borrower shall, upon five Business
Days notice from the Agent given at the request or with the consent of the
Required Lenders, prepay the aggregate principal amount outstanding plus all
interest thereon and all other amounts payable hereunder or under the Notes, in
the event that: (i) any Person or two or more Persons acting in concert shall
have acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of 1934),
directly or indirectly, of Voting Stock of the Borrower (or other securities
convertible into such Voting Stock) representing 20% or more of the combined
voting power of all Voting Stock of the Borrower; or (ii) any Person or two or
more Persons acting in concert shall have acquired by contract or otherwise, or
shall have entered into a contract or arrangement that, upon consummation, will
result in its or their acquisition of the power to exercise, directly or
indirectly, a controlling influence over the management or policies of the
Borrower.
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
17
having the force of law), there shall be any increase in the cost to any Lender
of agreeing to make or making, funding or maintaining Eurodollar Rate Advances
(excluding for purposes of this Section 2.10 any such increased costs resulting
from (i) Taxes or Other Taxes (as to which Section 2.13 shall govern) and (ii)
changes in the basis of taxation of overall net income or overall gross income
by the United States or by the foreign jurisdiction or state under the laws of
which such Lender is organized or has its Applicable Lending Office or any
political subdivision thereof), then the Borrower shall from time to time, upon
demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender additional amounts sufficient to compensate
such Lender for such increased cost. A certificate as to the amount of such
increased cost, submitted to the Borrower and the Agent by such Lender, shall be
conclusive and binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that the amount of such
capital is increased by or based upon the existence of such Lender's commitment
to lend hereunder and other commitments of this type, then, upon demand by such
Lender (with a copy of such demand to the Agent), the Borrower shall pay to the
Agent for the account of such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender or such
corporation in the light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to the existence
of such Lender's commitment to lend hereunder. A certificate as to such amounts
submitted to the Borrower and the Agent by such Lender shall be conclusive and
binding for all purposes, absent manifest error.
(c) In the event that a Lender demands payment from the Borrower
for amounts owing pursuant to subsection (a) or (b) of this Section 2.10, the
Borrower may, upon payment of such amounts and subject to the requirements of
Sections 8.04 and 8.07, substitute for such Lender another financial
institution, which financial institution shall be an Eligible Assignee and shall
assume the Commitments of such Lender and purchase the Revolving Credit Advances
held by such Lender in accordance with Section 8.07, provided, however, that (i)
no Default shall have occurred and be continuing, (ii) the Borrower shall have
satisfied all of its obligations in connection with the Loan Documents with
respect to such Lender, and (iii) if such assignee is not a Lender, (A) such
assignee is acceptable to the Agent and (B) the Borrower shall have paid the
Agent a $3,000 administrative fee.
SECTION 2.11. Illegality. Notwithstanding any other provision
of this Agreement, if any Lender shall notify the Agent that the introduction of
or any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that it is
unlawful, for any Lender or its Eurodollar Lending Office to perform its
obligations hereunder to make Eurodollar Rate Advances or to fund or maintain
Eurodollar Rate Advances hereunder, (i) each Eurodollar Rate Advance will
automatically, upon such demand, Convert into a Base Rate Advance or a Revolving
Credit 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
18
Credit Advances into Eurodollar Rate Advances shall be suspended until the Agent
shall notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION 2.12. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Notes not later than 11:00 A.M.
(New York City time) on the day when due in U.S. dollars to the Agent at the
Agent's Account in same day funds and without set off, deduction or
counterclaim. The Agent will promptly thereafter cause to be distributed like
funds relating to the payment of principal or interest, facility fees or the
Utilization Fee ratably (other than amounts payable pursuant to Section 2.10,
2.13 or 8.04(c)) to the Lenders for the account of their respective Applicable
Lending Offices, and like funds relating to the payment of any other amount
payable to any Lender to such Lender for the account of its Applicable Lending
Office, in each case to be applied in accordance with the terms of this
Agreement. Upon its acceptance of an Assignment and Acceptance and recording of
the information contained therein in the Register pursuant to Section 8.07(c),
from and after the effective date specified in such Assignment and Acceptance,
the Agent shall make all payments hereunder and under the Notes in respect of
the interest assigned thereby to the Lender assignee thereunder, and the parties
to such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made when due hereunder or under the
Note held by such Lender, to charge from time to time against any or all of the
Borrower's accounts with such Lender any amount so due.
(c) All computations of interest based on the Base Rate shall be
made by the Agent on the basis of a year of 365 or 366 days, as the case may be,
and all computations of interest based on the Eurodollar Rate or the Federal
Funds Rate and of facility fees and the Utilization Fee shall be made by the
Agent on the basis of a year of 360 days, in each case for the actual number of
days (including the first day but excluding the last day) occurring in the
period for which such interest, facility fees or Utilization Fee are payable.
Each determination by the Agent of an interest rate hereunder shall be
conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest, facility fee or the
Utilization Fee, as the case may be; provided, however, that, if such extension
would cause payment of interest on or principal of Eurodollar Rate Advances to
be made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(e) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Lenders hereunder that the
Borrower will not make such payment in full, the Agent may assume that the
Borrower has made such payment in full to the 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
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the extent the Borrower shall not have so made such payment in full to the
Agent, each Lender shall repay to the Agent forthwith on demand such amount
distributed to such Lender together with interest thereon, for each day from the
date such amount is distributed to such Lender until the date such Lender repays
such amount to the Agent, at the Federal Funds Rate.
SECTION 2.13. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.12,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and the Agent, taxes
imposed on its overall net income, and franchise taxes imposed on it in lieu of
net income taxes, by the jurisdiction under the laws of which such Lender or the
Agent (as the case may be) is organized or any political subdivision thereof
and, in the case of each Lender, taxes imposed on its overall net income, and
franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction
of such Lender's Applicable Lending Office or any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities in respect of payments hereunder or under the Notes being
hereinafter referred to as "Taxes"). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any
Note to any Lender or the Agent, (i) the sum payable shall be increased as may
be necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.13) such Lender or
the Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or under the Notes or
from the execution, delivery or registration of, performing under, or otherwise
with respect to, this Agreement or the Notes (hereinafter referred to as "Other
Taxes").
(c) The Borrower shall indemnify each Lender and the Agent for the
full amount of Taxes or Other Taxes (including, without limitation, any taxes
imposed by any jurisdiction on amounts payable under this Section 2.13) imposed
on or paid by such Lender or the Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto. This indemnification shall be made within 30 days from the date such
Lender or the Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Agent, at its address referred to in Section 8.02,
the original or a certified copy of a receipt evidencing payment thereof. In the
case of any payment hereunder or under the Notes by or on behalf of the Borrower
through an account or branch outside the United States or by or on behalf of the
Borrower by a payor that is not a United States person, if the Borrower
determines that no Taxes are payable in respect thereof, the Borrower shall
furnish, or shall cause such payor to furnish, to the Agent, at such address, an
opinion of counsel acceptable to the Agent stating that such payment is exempt
from Taxes. For purposes of this subsection (d) and subsection (e), the
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terms "United States" and "United States person" shall have the meanings
specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender and on the date of the Assignment
and Acceptance pursuant to which it becomes a Lender in the case of each other
Lender, and from time to time thereafter as requested in writing by the Borrower
(but only so long as such Lender remains lawfully able to do so), shall provide
each of the Agent and the Borrower with two original Internal Revenue Service
Form W-8BEN or W-8ECI, as appropriate, or any successor or other form prescribed
by the Internal Revenue Service, certifying that such Lender is exempt from or
entitled to a reduced rate of United States withholding tax on payments pursuant
to this Agreement or the Notes. If the forms provided by a Lender at the time
such Lender first becomes a party to this Agreement indicates a United States
interest withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from Taxes unless and until such Lender provides
the appropriate forms certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from Taxes
for periods governed by such form; provided, however, that, if at the date of
the Assignment and Acceptance pursuant to which a Lender assignee becomes a
party to this Agreement, the Lender assignor was entitled to payments under
subsection (a) in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes shall include
(in addition to withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States withholding tax, if any,
applicable with respect to the Lender assignee on such date. If any form or
document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service Form W-8BEN
or W-8ECI, that the Lender reasonably considers to be confidential, the Lender
shall give notice thereof to the Borrower and shall not be obligated to include
in such form or document such confidential information.
(f) For any period with respect to which a Lender has failed to
provide the Borrower with the appropriate form described in Section 2.13(e)
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such form
otherwise is not required under the first sentence of subsection (e) above),
such Lender shall not be entitled to indemnification under Section 2.13(a) or
(c) with respect to Taxes imposed by the United States by reason of such
failure; provided, however, that should a Lender become subject to Taxes because
of its failure to deliver a form required hereunder, the Borrower shall take
such steps as the Lender shall reasonably request to assist the Lender to
recover such Taxes.
(g) In the event that a Lender demands payment from the Borrower
for amounts owing pursuant to subsection (a) or (b) of this Section 2.13, the
Borrower may, upon payment of such amounts and subject to the requirements of
Sections 8.04 and 8.07, substitute for such Lender another financial
institution, which financial institution shall be an Eligible Assignee and shall
assume the Commitments of such Lender and purchase the 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
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a Lender, (A) such assignee is acceptable to the Agent and (B) the Borrower
shall have paid the Agent a $3,000 administrative fee.
SECTION 2.14. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the Revolving Credit Advances
owing to it (other than pursuant to Section 2.10, 2.13 or 8.04(c)) in excess of
its ratable share of payments on account of the Revolving Credit Advances
obtained by all the Lenders, such Lender shall forthwith purchase from the other
Lenders such participations in the Revolving Credit Advances owing to them as
shall be necessary to cause such purchasing Lender to share the excess payment
ratably with each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender, such
purchase from each Lender shall be rescinded and such Lender shall repay to the
purchasing Lender the purchase price to the extent of such recovery together
with an amount equal to such Lender's ratable share (according to the proportion
of (i) the amount of such Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
The Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.14 may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.
SECTION 2.15. Use of Proceeds. The proceeds of the Revolving
Credit Advances shall be available (and the Borrower agrees that it shall use
such proceeds) solely for general corporate purposes, including commercial paper
liquidity, of the Borrower and its Subsidiaries.
SECTION 2.16. Extensions of Revolver Termination Date. No
earlier than 45 days and no later than 30 days prior to the Revolver Termination
Date in effect at any time, the Borrower may, by written notice to the Agent,
request that such Revolver Termination Date be extended for a period of 364
days. Such request shall be irrevocable and binding upon the Borrower. The Agent
shall promptly notify each Lender of such request. If a Lender agrees, in its
individual and sole discretion, to so extend its Commitment (an "Extending
Lender"), it shall deliver to the Agent a written notice of its agreement to do
so no earlier than 30 days and no later than 20 days prior to such Revolver
Termination Date and the Agent shall notify the Borrower of such Extending
Lender's agreement to extend its Commitment no later than 15 days prior to such
Revolver Termination Date. The Commitment of any Lender that fails to accept or
respond to the Borrower's request for extension of the Revolver Termination Date
(a "Declining Lender") shall be terminated on the Revolver Termination Date
originally in effect (without regard to any extension by other Lenders) and on
such Revolver Termination Date the Borrower shall pay in full the principal
amount of all Revolving Credit Advances owing to such Declining Lender, together
with accrued interest thereon to the date of such payment of principal and all
other amounts payable to such Declining Lender under this Agreement. The Agent
shall promptly notify each Extending Lender of the aggregate Commitments of the
Declining Lenders. The Extending Lenders, or any of them, may offer to increase
their respective Commitments by an aggregate amount up to the aggregate amount
of the Declining Lenders' Commitments and any such Extending Lender shall
deliver to the Agent a notice of its offer to so increase its
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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 $3,000 processing and recording fee in respect of such
assignment shall be payable by the Borrower), (ii) such Declining Lender
receives payment in full of the principal amount of all Revolving Credit
Advances owing to such Declining Lender, together with accrued interest thereon
to the date of such payment of principal and all other amounts payable to such
Declining Lender under this Agreement, and (iii) any such increase shall be
effective on the Revolver Termination Date in effect at the time the Borrower
requests such extension and any such assignment shall be effective on the date
specified by the Borrower and agreed to by the Replacement Lender and the Agent.
If Extending Lenders and Replacement Lenders provide Commitments in an aggregate
amount at least equal to 51% of the aggregate amount of the Commitments
outstanding 30 days prior to the Revolver Termination Date in effect at the time
the Borrower requests such extension, the Revolver Termination Date shall be
extended by 364 days for such Extending Lenders.
SECTION 2.17. Noteless Agreement; Evidence of Indebtedness.
(a) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Revolving Credit Advance made by such Lender
from time to time, including the amounts of principal and interest payable and
paid to such Lender from time to time hereunder.
(b) The Agent shall also maintain accounts in which it will record
(i) the date and the amount of each Revolving Credit Advance made hereunder and
the Interest Period, if any, applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder, (iii) the effective date and amount of each
Assignment and Acceptance delivered to and accepted by it and the parties
thereto pursuant to Section 8.07, (iv) the amount of any sum received by the
Agent hereunder from the Borrower and each Lender's share thereof, and (v) all
other appropriate debits and credits as provided in this Agreement, including,
without limitation, all fees, charges, expenses and interest.
(c) The entries maintained in the accounts maintained pursuant to
clauses (a) and (b) above shall be prima facie evidence of the existence and
amounts of the obligations hereunder and under the Notes therein recorded;
provided, however, that the failure of the Agent or any Lender to maintain such
accounts or any error therein shall not in any manner affect the obligation of
the Borrower to repay such obligations in accordance with their terms.
(d) Any Lender may request that its Revolving Credit Advances be
evidenced by a promissory note representing its Revolving Credit Advances
substantially in the form of Exhibit A (each, a "Note"). In such event, the
Borrower shall prepare, execute and deliver to such Lender such Note payable to
the order of such Lender. Thereafter, the Revolving Credit Advances evidenced by
each such Note and interest thereon shall at all times (including after any
assignment pursuant to Section 8.07) be represented by one or more Notes payable
to the order
23
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, 2003, except as may be set forth in or contemplated by the Borrower's
Current Report on Form 8-K dated August 27, 2003.
(b) There shall exist no action, suit, investigation, litigation
or proceeding affecting the Borrower or any of its Significant Subsidiaries
pending or threatened before any court, governmental agency or arbitrator that
(i) could be reasonably likely to have a Material Adverse Effect other than the
matters disclosed or contemplated in the SEC Reports (the "Disclosed
Litigation") or (ii) purports to affect the legality, validity or enforceability
of any Loan Document or the consummation of the transactions contemplated hereby
and there shall have been no adverse change in the status, or financial effect
on the Borrower or any of its Significant Subsidiaries of the Disclosed
Litigation from that disclosed or contemplated in the SEC Reports.
(c) The Lenders shall have been given such access, as such Lenders
have reasonably requested, to the management, records, books of account,
contracts and properties of the Borrower and its Significant Subsidiaries as
they shall have requested.
(d) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall have
been obtained (without the imposition of any conditions that are not acceptable
to the Lenders) and shall remain in effect, and no law or regulation shall be
applicable in the reasonable judgment of the Lenders that restrains, prevents or
imposes materially adverse conditions upon the transactions contemplated by the
Loan Documents.
(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:
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(i) The representations and warranties contained in
Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that
constitutes a Default.
(iii) The Borrower shall have delivered a certificate,
substantially in the form of Exhibit D hereto, signed on behalf of the
Borrower by a Financial Officer of the Borrower.
(h) The Agent shall have received on or before the Effective Date
the following, each dated such day, in form and substance satisfactory to the
Agent and (except for any Notes requested by the Lenders) in sufficient copies
for each Lender:
(i) Notes, if any, to the order of each Lender requesting
the issuance of a Note as of the Closing Date pursuant to Section 2.17.
(ii) Certified copies of the resolutions of the Board of
Directors of the Borrower approving each Loan Document to which it is a
party, and of all documents evidencing other necessary corporate action
and governmental approvals, if any, with respect to each Loan Document
to which it is a party.
(iii) A certificate of the Corporate Secretary or an
Assistant Corporate Secretary of the Borrower certifying the names and
true signatures of the officers of the Borrower authorized to sign each
Loan Document to which it is a party and the other documents to be
delivered hereunder or thereunder.
(iv) Copies of the SEC Reports.
(v) A favorable opinion of T.A. Hughes, the Associate
General Counsel of the Borrower, substantially in the form of Exhibit E
hereto and as to such other matters as any Lender through the Agent may
reasonably request.
(vi) Evidence satisfactory to the Agent that the Existing
Credit 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.
(i) The Three-Year Agreement shall have been duly executed by all
parties thereto.
SECTION 3.02. Conditions Precedent to Each Borrowing. The
obligation of each Lender to make a Revolving Credit Advance on the occasion of
each Borrowing shall be subject to the conditions precedent that the Effective
Date shall have occurred and on the date of such Borrowing (a) the following
statements shall be true (and each of the giving of the applicable Notice of
Borrowing and the acceptance by the Borrower of the proceeds of such Borrowing
shall constitute a representation and warranty by the Borrower that on the date
of such Borrowing such statements are true):
25
(i) the representations and warranties contained in
Section 4.01 are correct on and as of the date of such Borrowing,
before and after giving effect to such Borrowing and to the application
of the proceeds therefrom, as though made on and as of such date, and
(ii) no event has occurred and is continuing, or would
result from such Borrowing or from the application of the proceeds
therefrom, that constitutes a Default;
and (b) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
SECTION 3.03. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the Borrower,
by notice to the Lenders, designates as the proposed Effective Date, specifying
its objection thereto. The Agent shall promptly notify the Lenders of the
occurrence of the Effective Date.
ARTICLE IV: REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation.
(b) The execution, delivery and performance by the Borrower of the
Loan Documents to which it is a party, and the consummation of the transactions
contemplated hereby and thereby, are within the Borrower's corporate powers,
have been duly authorized by all necessary corporate action, and do not
contravene (i) the Borrower's charter or by-laws or (ii) law or any contractual
restriction binding on or affecting the Borrower.
(c) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body or any other
third party is required for the due execution, delivery and performance by the
Borrower of this Agreement, the Notes or any other Loan Document to which it is
a party.
(d) This Agreement has been, and each of the Notes and each of the
other Loan Documents to which it is a party when delivered hereunder will have
been, duly executed and delivered by the Borrower. This Agreement is, and each
of the Notes and each of the other Loan Documents to which it is a party when
delivered hereunder will be, the legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with their respective
terms, subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditors rights generally.
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(e) The Audited Statements of the Borrower, DECO and MichCon and
the Unaudited Statements of the Borrower, DECO and MichCon, copies of each of
which have been furnished to each Lender, fairly present, subject in the case of
Unaudited Statements to normal year-end audit adjustments, the Consolidated
financial condition, results of operations and cash flows of the relevant
Persons and entities, as at the dates and for the periods therein indicated, all
in accordance with generally accepted accounting principles consistently
applied. Since June 30, 2003, there has been no Material Adverse Change, except
as shall have been disclosed or contemplated in the SEC Reports, including the
Borrower's Current Report on Form 8-K dated August 27, 2003.
(f) There is no pending or threatened action, suit, investigation,
litigation or proceeding, including, without limitation, any Environmental
Action, affecting the Borrower or any of the Significant Subsidiaries before any
court, governmental agency or arbitrator that (i) could be reasonably likely to
have a Material Adverse Effect (other than the Disclosed Litigation) or (ii)
purports to affect the legality, validity or enforceability of this Agreement,
any Note or any other Loan Document or the consummation of the transactions
contemplated hereby and there has been no adverse change in the status of any
Disclosed Litigation, or its financial effect on the Borrower or any of the
Significant Subsidiaries from that disclosed or contemplated in the SEC Reports
that could be reasonably likely to have a Material Adverse Effect.
(g) The operations and properties of the Borrower and each of the
Significant Subsidiaries comply in all material respects with all applicable
Environmental Laws and Environmental Permits, all past non-compliance with such
Environmental Laws and Environmental Permits has been resolved without ongoing
obligations or costs, except as disclosed or contemplated in the SEC Reports,
and no circumstances exist that could be reasonably likely to (i) form the basis
of an Environmental Action against the Borrower or any of the Significant
Subsidiaries or any of their properties that could have a Material Adverse
Effect or (ii) cause any such property to be subject to any restrictions on
ownership, occupancy, use or transferability under any Environmental Law that
could have a Material Adverse Effect.
(h) No ERISA Event has occurred or is reasonably expected to occur
with respect to any Plan.
(i) Schedule B (Actuarial Information) to the most recent annual
report (Form 5500 Series) for each Plan, copies of which have been filed with
the Internal Revenue Service, is complete and accurate and fairly presents the
funding status of such Plan, and since the date of such Schedule B there has
been no material adverse change in such funding status.
(j) Neither the Borrower nor any ERISA Affiliate has incurred or
is reasonably expected to incur any Withdrawal Liability to any Multiemployer
Plan.
(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.
27
(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 assets of
the Borrower and its Subsidiaries which are subject to any limitation on sale or
pledge, or any other restriction hereunder.
(n) Neither the Borrower nor any of its Subsidiaries is, or after
the making of any Revolving Credit Advance or the application of the proceeds or
repayment thereof, or the consummation of any of the other transactions
contemplated hereby, will be, an "investment company", or an "affiliated person"
of, or "promoter" or "principal underwriter" for, an "investment company"
(within the meaning of the Investment Company Act of 1940, as amended).
(o) At all times the Borrower is exempt from being required to
seek approval to perform its obligations under the Loan Documents pursuant to
Rule 2 of the Rules and Regulations promulgated pursuant to the Public Utility
Holding Company Act of 1935, as amended.
ARTICLE V: COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Revolving
Credit Advance shall remain unpaid or any Lender shall have any Commitment
hereunder, the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable laws,
rules, regulations and orders, such compliance to include, without limitation,
compliance with ERISA and Environmental Laws.
(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.
28
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar properties
(including customary self-insurance) in the same general areas in which the
Borrower or such Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain its corporate existence, rights (charter and statutory) and franchises;
provided, however, that the Borrower shall not be required to preserve any right
or franchise if the Board of Directors of the Borrower or such Subsidiary shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Borrower and that the loss thereof is not disadvantageous in
any material respect to the Borrower or the Lenders.
(e) Visitation Rights. At any reasonable time and from time to
time, permit the Agent or any of the Lenders or any agents or representatives
thereof, to examine and make copies of and abstracts from the records and books
of account of, and visit the properties of, the Borrower and any of the
Significant Subsidiaries, and to discuss the affairs, finances and accounts of
the Borrower and any of the Significant Subsidiaries with any of their officers
or directors and with their independent certified public accountants.
(f) Keeping of Books. Keep, and cause each of its Significant
Subsidiaries to keep, proper books of record and account, in which full and
correct entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary in accordance with generally
accepted accounting principles in effect from time to time.
(g) Maintenance of Properties, Etc. Subject to clause (d) above,
maintain and preserve, and cause each of its Significant Subsidiaries to
maintain and preserve, all of their respective properties that are used or
useful in the conduct of their respective businesses in good working order and
condition, ordinary wear and tear excepted.
(h) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 65 days
after the end of each of the first three quarters of each fiscal year
of the Borrower, Consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such quarter and
Consolidated statements of income and cash flows of the Borrower and
its Subsidiaries for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter;
(ii) as soon as available and in any event within 115 days
after the end of each fiscal year of the Borrower, a copy of the annual
report to Shareholders for such year for the Borrower and its
Consolidated Subsidiaries, containing the Consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries as of the end of such
fiscal year and Consolidated statements of income and cash flows of the
Borrower and its Subsidiaries for such fiscal year, in each case
accompanied by an opinion by Deloitte & Touche LLP or other independent
public accountants acceptable to the Required Lenders;
29
(iii) together with the financial statements required under
clauses (i) or (ii) above, a compliance certificate in substantially
the form of Exhibit F signed by a Financial Officer of the Borrower
showing the then current information and calculations necessary to
determine the Applicable Margin, the Applicable Percentage and the
Applicable Utilization Fee Rate and compliance with this Agreement and
stating that no Event of Default or Default exists, or if any Event of
Default or Default exists, stating the nature and status thereof;
(iv) as soon as possible and in any event within five days
after the occurrence of each Default continuing on the date of such
statement, a statement of a Financial Officer of the Borrower setting
forth details of such Default and the action that the Borrower has
taken and proposes to take with respect thereto;
(v) as soon as possible and in any event within five days
after any change in the Borrower's Moody's Rating or S&P Rating, notice
thereof;
(vi) reasonably promptly after the sending or filing
thereof copies of all reports and registration statements that the
Borrower or any Subsidiary filed with the Securities and Exchange
Commission or any national securities exchange;
(vii) promptly after the commencement thereof, notice of
all actions and proceedings before any court, governmental agency or
arbitrator affecting the Borrower or any of its Subsidiaries of the
type described in Section 4.01(f); and
(viii) such other information respecting the Borrower or any
of its Subsidiaries as any Lender through the Agent may from time to
time reasonably request.
SECTION 5.02. Negative Covenants. At all times on and after
the Effective Date so long as any Revolving Credit Advance shall remain unpaid
or any Lender shall have any Commitment hereunder, the Borrower will not:
(a) Liens, Etc. Create or suffer to exist, or permit any
Significant Subsidiary to create or suffer to exist, any Lien on or with respect
to any shares of any class of equity securities (including, without limitation,
Voting Stock) of any Significant Subsidiary, whether such shares are now owned
or hereafter acquired.
(b) Debt. Create, incur, assume or suffer to exist any Debt except
Debt that is expressly or effectively pari passu with or expressly subordinated
to the Debt of the Borrower hereunder.
(c) Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to, any Person, or permit any Significant
Subsidiary to do so, except that (i) any Significant Subsidiary may merge or
consolidate with or into any other Significant Subsidiary, (ii) any Significant
Subsidiary may merge into or dispose of assets to the Borrower, and (iii) the
Borrower may merge or consolidate with or into any other Person so long as the
Borrower shall be the surviving entity and has, after
30
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.
(d) Change in Nature of Business. Make, or permit any of its
Significant Subsidiaries (including Enterprises and MichCon) to make, any
material change in the nature of its business as carried on the date hereof,
other than as disclosed or contemplated in the SEC Reports.
(e) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or reporting
practices, except as required or permitted by generally accepted accounting
principles.
ARTICLE VI: EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Revolving
Credit Advance when the same becomes due and payable; or the Borrower shall fail
to pay any interest on any Revolving Credit Advance or make any other payment of
fees or other amounts payable under this Agreement or any Note within three
Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by the Borrower herein, by
the Borrower (or any of its officers) in connection with this Agreement shall
prove to have been incorrect in any material respect when made; or
(c) (i) The Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 2.09(b), 5.01(d), (e) or (h) or 5.02,
or (ii) the Borrower shall fail to perform or observe any other term, covenant
or agreement contained in any Loan Document on its part to be performed or
observed if such failure shall remain 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
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(e) The Borrower or any of its Significant Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general assignment for
the benefit of creditors; or any proceeding shall be instituted by or against
the Borrower or any of its Significant Subsidiaries seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for it or for any
substantial part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it), either such proceeding shall
remain undismissed or unstayed for a period of 30 days, or any of the actions
sought in such proceeding (including, without limitation, the entry of an order
for relief against, or the appointment of a receiver, trustee, custodian or
other similar official for, it or for any substantial part of its property)
shall occur; or the Borrower or any of its Significant Subsidiaries shall take
any corporate action to authorize any of the actions set forth above in this
subsection (e); or
(f) Any judgment or order for the payment of money, individually
or in the aggregate, in excess of $25,000,000 shall be rendered against the
Borrower or any of its Significant Subsidiaries and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order or (ii) there shall be any period of 10 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(g) Any non-monetary judgment or order shall be rendered against
the Borrower or any of its Significant Subsidiaries that could be reasonably
expected to have a Material Adverse Effect, and there shall be any period of 10
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or
(h) The Borrower shall at any time cease to hold directly or
indirectly 100% of the Voting Stock of DECO and MichCon; or
(i) The Borrower or any of its ERISA Affiliates shall incur, or,
in the reasonable opinion of the Required Lenders, shall be reasonably likely to
incur liability in excess of $25,000,000 individually or in the aggregate as a
result of one or more of the following: (i) the occurrence of any ERISA Event;
(ii) the partial or complete withdrawal of the Borrower or any of its ERISA
Affiliates from a Multiemployer Plan; or (iii) the reorganization or termination
of a Multiemployer Plan; or
(j) The Borrower and its Subsidiaries, on a Consolidated basis,
shall at any time cease to:
(i) Maintain a ratio of Consolidated EBITDA to interest
expense on all Debt (excluding (A) all Nonrecourse Debt of the Borrower
and its Subsidiaries, (B) Excluded Hedging Debt and (C) the Junior
Subordinated Debt) of not less than 2:1 for each twelve-month period
ending on the last day of September, December, March and June of each
year, or
32
(ii) Maintain a ratio of Consolidated Debt (excluding (A)
all Nonrecourse Debt of the Borrower and its Subsidiaries, (B) Excluded
Hedging Debt and (C) the Junior Subordinated Debt) to Capitalization of
not greater than .65:1; or
(k) any provision of any of the Loan Documents after delivery
thereof pursuant to Section 3.01 shall for any reason cease to be valid and
binding on or enforceable against the Borrower, or the Borrower shall so state
in writing;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the
obligation of each Lender 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
33
counsel for the Borrower), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement; (iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement on the part of the Borrower or to inspect the property (including the
books and records) of the Borrower; (v) shall not be responsible to any Lender
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with, any
Loan Document or any other instrument or document furnished pursuant hereto; and
(vi) shall incur no liability under or in respect of this Agreement by acting
upon any notice, consent, certificate or other instrument or writing (which may
be by telecopier, telegram or telex) believed by it to be genuine and signed or
sent by the proper party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its
Commitment, the Revolving Credit Advances made by it and any Note issued to it,
Citibank shall have the same rights and powers under this Agreement as any other
Lender and may exercise the same as though it were not the Agent; and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include
Citibank in its individual capacity. Citibank and its Affiliates may accept
deposits from, lend money to, act as trustee under indentures of, accept
investment banking engagements from and generally engage in any kind of business
with, the Borrower, any of its Subsidiaries and any Person who may do business
with or own securities of the Borrower or any such Subsidiary, all as if
Citibank were not the Agent and without any duty to account therefor to the
Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Agent or any other
Lender and based on the financial statements referred to in Section 4.01 and
such other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 7.05. Indemnification. The Lenders agree to indemnify
the Agent (to the extent not reimbursed by the Borrower), ratably according to
the respective principal amounts of their respective Revolving Credit Advances
(or if no Revolving Credit Advances are at the time outstanding or if any
Revolving Credit Advances are owing to Persons that are not Lenders, ratably
according to the respective amounts of their Commitments), from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against the Agent in
any way relating to or arising out of any Loan Document or any action taken or
omitted by the Agent under any Loan Document, provided that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Agent's gross negligence or willful misconduct. Without limitation of
the foregoing, each Lender agrees to reimburse the
34
Agent promptly upon demand for its ratable share of any out-of-pocket expenses
(including counsel fees) incurred by the Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, any Loan
Document, to the extent that the Agent is not reimbursed for such expenses by
the Borrower.
SECTION 7.06. Successor Agent. The Agent may resign at any
time by giving written notice thereof to the Lenders and the Borrower and may be
removed at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent, which shall be a commercial bank organized
under the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least $50,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
ARTICLE VIII: MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following: (a)
waive any of the conditions specified in Section 3.01, (b) increase the
Commitments of the Lenders or subject the Lenders to any additional obligations,
(c) reduce the principal of, or interest on, the 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
35
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 Two Penns Way, Suite 200, New Castle, Delaware 19720 Attention:
Christian Laughton, with a copy to J. Nicholas McKee, 388 Greenwich Street, New
York, New York 10013; or, as to the Borrower or the Agent, at such other address
as shall be designated by such party in a written notice to the other parties
and, as to each other party, at such other address as shall be designated by
such party in a written notice to the Borrower and the Agent. All such notices
and communications shall, when mailed, telecopied, telegraphed or telexed, be
effective when deposited in the mails, telecopied, delivered to the telegraph
company or confirmed by telex answerback, respectively, except that notices and
communications to the Agent pursuant to Article II, III or VII shall not be
effective until received by the Agent. Delivery by telecopier of an executed
counterpart of any amendment or waiver of any provision of this Agreement or the
Notes or of any Exhibit hereto to be executed and delivered hereunder shall be
effective as delivery of a manually executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender or the Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to
pay on demand, upon presentation of a statement of account and absent manifest
error, all reasonable costs and reasonable expenses of the Agent in connection
with the preparation, execution, delivery, administration, modification and
amendment of this Agreement, the Notes, each other Loan Document and the other
documents to be delivered hereunder and thereunder, including, without
limitation, (A) all due diligence, syndication (including printing, distribution
and bank meetings), transportation, computer, duplication, appraisal,
consultant, and audit expenses and (B) the reasonable fees and reasonable
expenses of counsel for the Agent with respect thereto and with respect to
advising the Agent as to its rights and responsibilities under the Loan
Documents. The Borrower further agrees to pay on demand all reasonable costs and
reasonable expenses of the Agent 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
36
transactions contemplated herein or therein or the actual or proposed use of
the proceeds of the Revolving Credit Advances or (ii) the actual or alleged
presence of Hazardous Materials on any property of the Borrower or any of its
Subsidiaries or any Environmental Action relating in any way to the Borrower or
any of its Subsidiaries, in each case whether or not such investigation,
litigation or proceeding is brought by the Borrower, its directors, shareholders
or creditors or an Indemnified Party or any other Person or any Indemnified
Party is otherwise a party thereto and whether or not the transactions
contemplated hereby are consummated, except to the extent such claim, damage,
loss, liability or expense is found in a final, non-appealable judgment by a
court of competent jurisdiction to have resulted from such Indemnified Party's
gross negligence or willful misconduct. The Borrower also agrees not to assert
any claim against the Agent, any Lender, any of their Affiliates, or any of
their respective directors, officers, employees, attorneys and agents, on any
theory of liability, for special, indirect, consequential or punitive damages
arising out of or otherwise relating to the Notes, this Agreement, the other
Loan Documents any of the transactions contemplated herein or therein or the
actual or proposed use of the proceeds of the Revolving Credit Advances.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate 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
37
(including, without limitation, other rights of set-off) that such Lender and
its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective (other than Section 2.01, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrower and the Agent and when the Agent shall
have been notified by each Initial Lender that such Initial Lender has executed
it and thereafter shall be binding upon and inure to the benefit of the
Borrower, the Agent and each Lender and their respective successors and assigns,
except that the Borrower shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of the Lenders to any
Person.
SECTION 8.07. Assignments, Designations and Participations.
(a) Each Lender may, with the prior consent of the Agent (which consent shall
not be unreasonably withheld) and (for so long as no Default has occurred and is
continuing) the Borrower (which consent shall not be unreasonably withheld)
assign to one or more Persons all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment, the Revolving Credit Advances owed to it and any Note or Notes held
by it); provided, however, that (i) each such assignment shall be of a constant,
and not a varying, percentage of all rights and obligations under this Agreement
and, for so long as no Default has occurred and is continuing, shall be made
concurrently with an assignment in a ratable amount of such Lender's rights and
obligations under the Three-Year Agreement (including, without limitation, all
or a portion of its "Commitment", "Outstanding Credit Exposures" owed to it and
any "Note" or "Notes" held by it under (and as each such term is defined in) the
Three-Year 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
38
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with, this
Agreement or any other instrument or document furnished pursuant hereto; (ii)
such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under this
Agreement or any other instrument or document furnished pursuant hereto; (iii)
such assignee confirms that it has received a copy of this Agreement, together
with copies of the financial statements referred to in Section 4.01 and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance; (iv)
such assignee will, independently and without reliance upon the Agent, such
assigning Lender or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement; (v) such assignee
confirms that it is an Eligible Assignee; (vi) such assignee appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by
an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Note or Notes subject to such assignment, the Agent
shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower. Within five Business Days
after the Borrower's receipt of such 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.
39
(e) Each Lender may sell participations to one or more banks or
other entities (other than the Borrower or any of its Affiliates) in or to all
or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Revolving Credit
Advances owing to it and any Note or Notes held by it); provided, however, that
(i) such Lender's obligations under this Agreement (including, without
limitation, its Commitment to the Borrower hereunder) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) such Lender shall remain the owner of
such Revolving Credit Advances for all purposes of this Agreement, (iv) the
Borrower, the Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of this Agreement or any Note, or any consent to any departure by the
Borrower therefrom, except to the extent that such amendment, waiver or consent
would (A) reduce the principal of, or interest on, the Revolving Credit Advances
or any fees or other amounts payable hereunder, or (B) increase the Commitments,
in each case to the extent subject to such participation, or postpone any date
fixed for any payment of principal of, or interest on, the Revolving Credit
Advances or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation. Each participant shall be entitled to the
benefits of Sections 2.10, 2.11 and 2.13 to the same extent as if it were a
Lender and had acquired its interest under this Agreement by an assignment made
pursuant to this Section 8.07, provided, however, that in no event shall the
Borrower be obligated to make any payment with respect to such Sections that is
greater than the amount that the Borrower would have otherwise made had no
participations been sold under this Section 8.07(e).
(f) Any Lender may, in connection with any assignment, designation
or participation or proposed assignment, designation or participation pursuant
to this Section 8.07, disclose to the assignee, designee or participant or
proposed assignee, designee or participant, any information 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
40
any SPV to make any Revolving Credit Advance, (ii) if an SPV elects not to
exercise such option or otherwise fails to provide all or any part of such
Revolving Credit Advance, the Designating Lender shall be obligated to make such
Revolving Credit Advance pursuant to the terms hereof, (iii) the Designating
Lender shall remain liable for any indemnity or other payment obligation with
respect to its Commitment hereunder and (iv) no SPV or Designating Lender shall
be entitled to receive any greater amount under this Agreement than the
Designating Lender would have been entitled to receive had the Designating
Lender not otherwise granted such SPV the option to provide any Revolving Credit
Advance to the Borrower. The making of a Revolving Credit Advance by an SPV
hereunder shall utilize the Commitment of the Designating Lender to the same
extent, and as if, such Revolving Credit Advance were made by such Designating
Lender.
(i) Each party hereto hereby acknowledges and agrees that no SPV
shall have the rights of a Lender hereunder, such rights being retained by the
applicable Designating Lender. Accordingly, and without limiting the foregoing,
each party hereby further acknowledges and agrees that no SPV shall have any
voting rights hereunder and that the voting rights attributable to any Revolving
Credit Advance made by an SPV shall be exercised only by the relevant
Designating Lender and that each Designating Lender shall serve as the
administrative agent and attorney-in-fact for its SPV and shall on behalf of its
SPV receive any and all payments made for the benefit of such SPV and take all
actions hereunder to the extent, if any, such SPV shall have any rights
hereunder. No additional Note shall be required to evidence the Revolving Credit
Advances or portion thereof made by an SPV; and the related Designating Lender
shall be deemed to hold its Note or Notes, if any, as administrative agent for
such SPV to the extent of the Revolving Credit Advances or portion thereof
funded by such SPV. In addition, any payments for the account of any SPV shall
be paid to its Designating Lender as administrative agent for such SPV.
(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.
41
(k) In addition, notwithstanding anything to the contrary
contained in subsection 8.07(h), (i), (j) or (k) or otherwise in this Agreement,
any SPV may (i) at any time and without paying any processing fee therefor,
assign or participate all or a portion of its interest in any Revolving Credit
Advances to the Designating Lender or to any financial institutions providing
liquidity and/or credit support to or for the account of such SPV to support the
funding or maintenance of Revolving Credit Advances and (ii) disclose on a
confidential basis any non-public information relating to its Revolving Credit
Advances to any rating agency, commercial paper dealer or provider of any
surety, guarantee or credit or liquidity enhancements to such SPV. Subsection
8.07(h), (i), (j) or (k) may not be amended without the written consent of any
Designating Lender affected thereby.
SECTION 8.08. Confidentiality. Neither the Agent nor any
Lender shall disclose any Confidential Information to any other Person without
the consent of the Borrower, other than (a) to the Agent's or such Lender's
Affiliates and their officers, directors, employees, agents and advisors and, as
contemplated by Section 8.07(f), to actual or prospective assignees and
participants, and then only on a confidential basis, (b) as required by any law,
rule or regulation or judicial process, (c) to any rating agency when required
by it, provided that, prior to any such disclosure, such rating agency shall
undertake to preserve the confidentiality of any Confidential Information
relating to the Borrower received by it from such Lender, (d) as requested or
required by any state, federal or foreign authority or examiner regulating banks
or banking, and (e) on a confidential basis to any Lender's direct or indirect
contractual counterparties in swap agreements or to legal counsel, accountants
and other professional advisors to such counterparties. Notwithstanding anything
herein to the contrary, Confidential Information shall not include, and each
party hereto (and each employee, representative or other agent of any party
hereto) may disclose to any and all persons, without limitation of any kind, the
U.S. federal income tax treatment and U.S. federal income tax structure of the
transactions contemplated hereby and all materials of any kind (including
opinions or other tax analyses) that are or have been provided to such party
relating to such tax treatment or tax structure, and it is hereby confirmed that
each party hereto has been authorized to make such disclosures since the
commencement of discussions regarding the transactions contemplated hereby.
SECTION 8.09. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State
of New York.
SECTION 8.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
federal court of the United States of America sitting in New York 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
42
claims in respect of any such action or proceeding may be heard and determined
in any such New York State court or, to the extent permitted by law, in such
federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that any party may otherwise
have to bring any action or proceeding relating to this Agreement or the Notes
in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
in any New York State or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
SECTION 8.12. Waiver of Jury Trial. Each of the Borrower, the
Agent and the Lenders hereby irrevocably waives all right to trial by jury in
any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement or the Notes or the
actions of the Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
REMAINDER OF PAGE INTENTIONALLY BLANK
43
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
DTE ENERGY COMPANY
By /s/ D.R. Murphy
---------------
Name: D.R. Murphy
Title: Assistant Treasurer
Lenders
CITIBANK, N.A., Individually and as
Administrative Agent
By /s/ Anita J. Brickell
---------------------
Name: Anita J. Brickell
Title: Vice President
BANC ONE CAPITAL MARKETS, INC., as
Co-Syndication Agent
By /s/ Robert G. Bussa
-------------------
Name: Robert G. Bussa
Title: Managing Director, Capital Markets
BARCLAYS BANK PLC, as Co-Syndication
Agent and as a Lender
By /s/ Sydney G. Dennis
--------------------
Name: Sydney G. Dennis
Title: Director
BANK ONE, NA (MAIN OFFICE -
CHICAGO), as a Lender
By /s/ Jane Bek Keil
-----------------
Name: Jane Bek Keil
Title: Director
UBS LOAN FINANCE LLC, as a Lender
By /s/ Barbara Ezell-McMichael
---------------------------
Name: Barbara Ezell-McMichael
Title: Associate Director, Banking Products
Services, US
By /s/ Wilfred V. Saint
--------------------
Name: Wilfred V. Saint
Title: Associate Director, Banking Products
Services, US
KEY BANK NATIONAL ASSOCIATION, as a Lender
By /s/ Lawrence A. Mack
--------------------
Name: Lawrence A. Mack
Title: Senior Vice President
THE BANK OF NEW YORK, as a Lender
By /s/ Cynthia D. Howells
----------------------
Name: Cynthia D. Howells
Title: Vice President
COMERICA BANK, as a Lender
By /s/ David C. Bird
-----------------
Name: David C. Bird
Title: Vice President
THE BANK OF NOVA SCOTIA, as a Lender
By /s/ Denis P. O'Meara
--------------------
Name: Denis P. O'Meara
Title: Managing Director
BNP PARIBAS, as a Lender
By /s/ Francis DeLaney
-------------------
Name: Francis DeLaney
Title: Director
By /s/ Mark Renaud
---------------
Name: Mark Renaud
Title: Managing Director
CREDIT SUISSE FIRST BOSTON, acting
through its Cayman Islands Branch, as a Lender
By /s/ Sarah Wu
------------
Name: Sarah Wu
Title: Vice President
By /s/ Joseph Adipietro
--------------------
Name: Joseph Adipietro
Title: Director
UNION BANK OF CALIFORNIA, N.A., as
a Lender
By /s/ Kevin M. Zitar
------------------
Name: Kevin M. Zitar
Title: Vice President
DEUTSCHE BANK AG, NEW YORK
BRANCH, as a Lender
By /s/ Richard Henshall
--------------------
Name: Richard Henshall
Title: Director
By /s/ Joel Makowsky
-----------------
Name: Joel Makowsky
Title: Director
MELLON BANK, N.A., as a Lender
By /s/ Scott Hennessee
-------------------
Name: Scott Hennessee
Title: Vice President
MORGAN STANLEY BANK, as a Lender
By Jaap L. Tonckens
----------------
Name: Jaap L. Tonckens
Title: Vice President
JPMORGAN CHASE BANK, as a Lender
By /s/ Thomas T. Hou
-----------------
Name: Thomas T. Hou
Title: Vice President
FIFTH THIRD BANK, EASTERN MICHIGAN, as a Lender
By /s/ Michael Dolson
------------------
Name: Michael Dolson
Title: Vice President
LEHMAN BROTHERS BANK, FSB, as a Lender
By /s/ Gary T. Taylor
------------------
Name: Gary T. Taylor
Title: Vice President
STANDARD FEDERAL BANK, N.A., as a Lender
By /s/ Richard C. Northrup, III
----------------------------
Name: Richard C. Northrup, III
Title: First Vice President
THE NORTHERN TRUST COMPANY, as a Lender
By /s/ Timothy J. Dunning
----------------------------
Name: Timothy J. Dunning
Title: Vice President - Credit
FIRST INDEPENDENCE NATIONAL BANK
OF DETROIT, as a Lender
By /s/ James Nowicki
-----------------
Name: James Nowicki
Title: Vice President
SCHEDULE I
DTE ENERGY COMPANY
APPLICABLE LENDING OFFICES
NAME OF INITIAL LENDER DOMESTIC LENDING OFFICE EURODOLLAR LENDING OFFICE COMMITMENT
- -----------------------------------------------------------------------------------------------------------------------
Citibank, N.A. 388 Greenwich Street Same as Domestic $30,961,538.45
21st Floor Lending Office
New York, NY 10003
Attention: Dhaya Ranganathan
Telecopier: (212) 816-8098
- -----------------------------------------------------------------------------------------------------------------------
Barclays Bank PLC 200 Park Avenue Same as Domestic $30,961,538.46
New York, NY 10166 Lending Office
Attention: Sydney Dennis/
Mark Griffin
Telecopier: (212) 412-7680
- -----------------------------------------------------------------------------------------------------------------------
Bank One, NA One Bank One Plaza Same as Domestic $30,961,538.46
Suite 0634 Lending Office
Chicago, IL 60670
Attention: Gloria
Steinbrenner
Telecopier: (312) 732-4840
- -----------------------------------------------------------------------------------------------------------------------
UBS Loan Finance LLC 577 Washington Boulevard Same as Domestic $30,961,538.46
Stamford, CT 06901 Lending Office
Attention: Denise Conzo
Telecopier: (203) 719-3853
- -----------------------------------------------------------------------------------------------------------------------
Key Bank National Association 127 Public Square Same as Domestic $25,173,076.92
Cleveland, OH 44114 Lending Office
Attention: Laura Binkley
Telecopier: (216) 689-4981
- -----------------------------------------------------------------------------------------------------------------------
The Bank of New York One Wall Street Same as Domestic $21,538,461.54
New York, NY 10286 Lending Office
Attention: Kathy D'Elena
Telecopier: (212) 635-7923
- -----------------------------------------------------------------------------------------------------------------------
Comerica Bank 500 Woodward Avenue Same as Domestic $21,538,461.54
MC 3268 Lending Office
Detroit, MI 48226
Attention: David C. Bird
Telecopier: (313) 222-9514
- -----------------------------------------------------------------------------------------------------------------------
The Bank of Nova Scotia 600 Peachtree Street NE Same as Domestic $21,538,461.54
Suite 2700 Lending Office
Atlanta, GA 30308
Attention: Mystro Whatley
Telecopier: (404) 888-8998
- -----------------------------------------------------------------------------------------------------------------------
BNP Paribas 787 Seventh Avenue Same as Domestic $21,538,461.54
New York, NY 10019 Lending Office
Attention: Tecla Hurley
Telecopier: (212) 841-2555
NAME OF INITIAL LENDER DOMESTIC LENDING OFFICE EURODOLLAR LENDING OFFICE COMMITMENT
- -----------------------------------------------------------------------------------------------------------------------
Credit Suisse First Boston, 11 Madison Avenue Same as Domestic $21,538,461.54
acting through its Cayman New York, NY 10010 Lending Office
Islands Branch Attention: Andrea Shkane
Telecopier: (212) 325-8309
- -----------------------------------------------------------------------------------------------------------------------
Union Bank of California, Capital Services Same as Domestic $17,500,000.00
N.A. 445 S. Figueroa Street, Lending Office
15th Floor
Los Angeles, CA 90017
Attention: Dennis Blank
Telecopier: (213) 236-4096
- -----------------------------------------------------------------------------------------------------------------------
Deutsche Bank AG, New York Branch 60 Wall Street $12,115,384.62
11th Floor
New York, NY 10005
Attention: Joel Makowsky
Telecopier: (212) 797-4346
- -----------------------------------------------------------------------------------------------------------------------
Mellon Bank, N.A. 3 Mellon Center - Room 1203 Same as Domestic $12,115,384.62
Pittsburgh, PA 15259 Lending Office
Attention: Brenda Leiersapf
Telecopier: (412) 209-6146
- -----------------------------------------------------------------------------------------------------------------------
Morgan Stanley Bank 2500 Lake Park Boulevard Same as Domestic $12,115,384.62
Suite 300 C Lending Office
West Valley City, UT 84120
Attention: Larry Benison
Telecopier: (212) 537-1866
- -----------------------------------------------------------------------------------------------------------------------
JPMorgan Chase Bank 270 Park Avenue Same as Domestic $12,115,384.62
4th Floor Lending Office
New York, NY 10017
Attention: Thomas L. Casey
Telecopier: (212)270-3089
- -----------------------------------------------------------------------------------------------------------------------
Fifth Third Bank, Eastern Michigan c/o Madisonville Operations Same as Domestic $10,769,230.77
Center Lending Office
MD 1M0C2B
Cincinnati, OH 45263-5300
Attention: Gina Schmidt
Telecopier: (513) 358-0221
- -----------------------------------------------------------------------------------------------------------------------
Lehman Brothers Bank, FSB 745 Seventh Avenue $6,730,769.23
6th Floor
New York, NY 10019
Attention: Jane Gillard
Telecopier: (646) 758-2538
- -----------------------------------------------------------------------------------------------------------------------
Standard Federal Bank, N.A. 2600 W. Big Beaver Same as Domestic $5,384,615.38
Troy, MI 48084 Lending Office
Attention: Yvonne Hicks
Telecopier: (248) 637-5003
- -----------------------------------------------------------------------------------------------------------------------
The Northern Trust Company 50 S. LaSalle Street Same as Domestic $4,038,461.54
Chicago, IL 60675 Lending Office
Attention: Funding Contact
Telecopier: (312) 444-5055
- -----------------------------------------------------------------------------------------------------------------------
NAME OF INITIAL LENDER DOMESTIC LENDING OFFICE EURODOLLAR LENDING OFFICE COMMITMENT
- ------------------------------------------------------------------------------------------------------------------------
First Independence 44 Michigan Avenue Same as Domestic Lending $ 403,846.15
National Bank of Detroit Detroit, MI 48226 Office
Attention: Barbara W. Worden
Telecopier: (313) 256-8444
- ------------------------------------------------------------------------------------------------------------------------
Total $350,000,000.00
- ------------------------------------------------------------------------------------------------------------------------
PRICING SCHEDULE
LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V
STATUS STATUS STATUS STATUS STATUS
- --------------------------------------------------------------------------------
Applicable
Percentage 0.125% 0.150% 0.175% 0.250% 0.400%
- --------------------------------------------------------------------------------
Applicable
Margin
(Eurodollar
Rate) 0.750% 0.850% 0.950% 1.125% 1.975%
- --------------------------------------------------------------------------------
Applicable
Utilization
Fee 0.125% 0.125% 0.125% 0.125% 0.250%
- --------------------------------------------------------------------------------
Applicable
Margin 0.0% 0.0% 0.0% 0.0% 0.0%
(Base Rate)
- --------------------------------------------------------------------------------
For the purposes of this Schedule, the following terms have
the following meanings, subject to the final paragraph of this Schedule:
"Level I Status" exists at any date if, on such date, the
Borrower's 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 issued by
Moody's and then in effect with respect to the Borrower's senior unsecured
long-term debt securities without third-party credit enhancement.
"S&P Rating" means, at any time, the rating issued by S&P and
then in effect with respect to the Borrower's senior unsecured long-term debt
securities without third-party credit enhancement.
"Status" means Level I Status, Level II Status, Level III
Status, Level IV Status 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.
EXHIBIT A - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
U.S.$___________________________________ Dated: _______________________, 2003
FOR VALUE RECEIVED, the undersigned, DTE ENERGY COMPANY, a
Michigan corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender") for the account of its Applicable
Lending Office on the Revolver Termination Date (each as defined in the Credit
Agreement referred to below), the principal sum of U.S.$[amount of the Lender's
Commitment in figures] or, if less, the aggregate principal amount of the
Revolving Credit Advances made by the Lender to the Borrower pursuant to the
364-Day Credit Agreement dated as of October 24, 2003 (as amended or modified
from time to time, the "Credit Agreement"; the terms defined therein being used
herein as therein defined) among the Borrower, the Lender and certain other
lenders parties thereto, and Citibank, N.A., as Agent for the Lender and such
other lenders outstanding on the Revolver Termination Date.
The Borrower promises to pay interest on the unpaid principal
amount of each Revolving Credit Advance from the date of such Revolving Credit
Advance until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citibank, N.A., as Agent, at Two Penns Way, Suite
200, New Castle, Delaware 19720, Account No. 36852248, Attention: Christian
Laughton, in same day funds. Each Revolving Credit Advance owing to the Lender
by the Borrower pursuant to the Credit Agreement, and all payments made on
account of principal thereof, shall be recorded by the Lender and, prior to any
transfer hereof, endorsed on the grid attached hereto which is part of this
Promissory Note.
This Promissory Note is one of the Notes referred to in, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of Revolving Credit Advances by
the Lender to the Borrower from time to time in an aggregate amount not to
exceed at any time outstanding the U.S. dollar amount first above mentioned, the
indebtedness of the Borrower resulting from each such Revolving Credit Advance
being evidenced by this Promissory Note, and (ii) contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
and also for prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified.
DTE ENERGY COMPANY
By ____________________________________
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
UNPAID
AMOUNT OF AMOUNT OF PRINCIPAL PRINCIPAL
DATE ADVANCE PAID OR PREPAID BALANCE NOTATION MADE BY
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EXHIBIT B - FORM OF NOTICE OF
REVOLVING CREDIT BORROWING
Citibank, N.A., as Agent for the Lenders parties
to the Credit Agreement referred to below
388 Greenwich Street
New York, NY 10013
Attention: _______________ [Date]
Ladies and Gentlemen:
The undersigned, DTE ENERGY COMPANY, refers to the 364-Day
Credit Agreement, dated as of October 24, 2003 (as amended or modified from time
to time, the "Credit Agreement"; the terms defined therein being used herein as
therein defined), among the undersigned, certain Lenders parties thereto and
Citibank, N.A., as Agent for said Lenders, and hereby gives you notice,
irrevocably, pursuant to Section 2.02 of the Credit Agreement that the
undersigned hereby requests a Borrowing under the Credit Agreement, and in that
connection sets forth below the information relating to such Borrowing (the
"Proposed Borrowing") as required by Section 2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is
_______________, ____.
(ii) The Type of Advances comprising the Proposed Borrowing is
[Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is
$_______________.
(iv) [(iv) The initial Interest Period for each Eurodollar
Rate Advance made as part of the Proposed Borrowing is _____ month[s].]
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Borrowing:
(A) the representations and warranties contained in Section
4.01 of the Credit Agreement are correct, before and after giving
effect to the Proposed Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; and
(B) no event has occurred and is continuing, or would result
from such Proposed Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
Very truly yours,
By ____________________________________
Title:
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the 364-Day Credit Agreement dated as of
October 24, 2003 (as amended or modified from time to time, the "364-Day Credit
Agreement") and to the Three-Year Credit Agreement dated October 24, 2003 (as
amended or modified from time to time, the "Three-Year Credit Agreement", and
together with the 364-Day Credit Agreement, the "Credit Agreements") each among
DTE Energy Company, a Michigan corporation (the "Borrower"), the Lenders (as
defined in each of the Credit Agreements) and Citibank, N.A., as agent for the
Lenders (the "Agent"). Terms defined in each of the Credit Agreements are used
herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1
hereto agree as follows:
1. The Assignor hereby sells and assigns to the Assignee,
and the Assignee hereby purchases and assumes from the Assignor, (a) an interest
in and to the Assignor's rights and obligations under the 364-Day 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 364-Day
Credit Agreement, and (b) an interest in and to the Assignor's rights and
obligations under the Three-Year 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 Three-Year Credit Agreement. After giving effect to
such sale and assignment, the Assignee's Commitment and the amount of the
Revolving Credit Advances under the 364-Day Credit Agreement and the Outstanding
Credit Exposures under the Three-Year Credit Agreement owing to the Assignee
will be as set forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with each of
the Credit Agreements or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of each of the Credit Agreements 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 each of the Credit Agreements or any other
instrument or document furnished pursuant thereto; and (iv) attaches the Note or
Notes held by the Assignor, if any, and requests that the Agent exchange such
Note or Notes for a new Note or Notes payable to the order of the Assignee in an
amount equal to the Commitment assumed by the Assignee pursuant hereto and the
applicable Credit Agreement or new Notes payable to the order of the Assignee in
an amount equal to the Commitment assumed by the Assignee pursuant hereto and
the applicable Credit Agreement and the Assignor in an amount equal to the
Commitment retained by the Assignor under the applicable Credit Agreement,
respectively, as specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of
each of the Credit Agreements, together with copies of the financial statements
referred to in each 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 each of the Credit Agreements; (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 each of the
Credit Agreements as are delegated to the Agent by the terms thereof, together
with such powers and discretion as are reasonably incidental thereto; (v) agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of each of the Credit Agreements 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 each of the Credit Agreements.
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 each of the Credit
Agreements 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 each of the Credit Agreements.
6. Upon such acceptance and recording by the Agent, from
and after the Effective Date, the Agent shall make all payments under each of
the Credit Agreements and the Notes in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest, facility
fees, LC Fees and the Utilization Fee with respect thereto) to the Assignee. The
Assignor and Assignee shall make all appropriate adjustments in payments under
each of the Credit Agreements and the Notes for periods prior to the Effective
Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed counterpart of
this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
Schedule 1
to
Assignment and Acceptance
364-Day
Credit
Agreement
-----------------
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): $________________
Three-Year
Credit
Agreement
-----------------
Percentage interest assigned: ________________%
Assignee's Commitment: $________________
Aggregate Outstanding Credit Exposures assigned: $________________
Principal amount of Outstanding Credit Exposures
payable to Assignee: $________________
Principal amount of Outstanding Credit Exposures
payable to Assignor: $________________
Effective Date(2): $________________
[NAME OF ASSIGNOR], as Assignor
By __________________________________________
Title:
Dated:
[NAME OF ASSIGNEE], as Assignee
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(1) This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to the Agent.
(2) This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to the Agent.
By __________________________________________
Title:
Dated:
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
Accepted [and Approved](3) this
day of
______________________________________________, As Agent
By ____________________________________________________
Title:
[Approved this [ ] day of ____________________________
DTE ENERGY COMPANY
By ____________________________________________________
Title: ](4)
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(3) Required if the Assignee is an Eligible Assignee solely by reason of
clause (viii) of the definition of "Eligible Assignee".
(4) To be added only if the consent of the Borrower is required by the
terms of the Credit Agreement.
EXHIBIT D - FORM OF CERTIFICATE
DTE ENERGY COMPANY
THE DETROIT EDISON COMPANY
MICHIGAN CONSOLIDATED GAS COMPANY
OFFICER'S CERTIFICATE
I, D.R. Murphy, Assistant 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 364-Day and Three-Year Credit Agreements, dated as of October
24, 2003, 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 Agreements"), (ii) the 364-Day and Three-Year Credit
Agreements, dated as of October 24, 2003, 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 Agreements"), and (iii) the
364-Day and Three-Year Credit Agreements, dated as of October 24, 2003, 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
Agreements", and together with the DTE Credit Agreements and the DECO Credit
Agreements, 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 October 24, 2003.
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 and permit the
transactions contemplated by the Loan Documents, including in the case of DECO,
the orders of the Federal Energy Regulatory Commission and the Michigan Public
Service Commission (without the imposition of any conditions that are not
acceptable to the Lenders), and no law or regulation is applicable that
restrains, prevents or imposes materially adverse conditions upon each Borrower
with respect to the transactions contemplated by the Loan Documents to which it
is a party.
7. Each of the Loan Documents to which 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,
MichCon and their respective Subsidiaries as at December 31, 2002, and the
related Consolidated statements of income and cash flows of each of DTE, DECO,
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, 2003 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, 2003, 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,
MichCon and their respective Subsidiaries, as applicable, as at such dates and
the Consolidated results of the operations of each of DTE, DECO, 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, together with DTE's Current Reports on Form 8-K dated
July 14, 2003 and August 27, 2003 and DECO's Current Report on Form 8-K dated
August 27, 2003, are hereby designated as the "SEC Reports" for purposes of the
Credit Agreements. Since June 30, 2003, except as may be set forth in or
contemplated by DTE's and DECO's Current Reports on Form 8-K dated August 27,
2003, 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. Each of the Existing Credit Agreements is 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 any of the Existing Credit
Agreements and all amounts owed to the lender or agents thereunder have been
paid in full.
Dated as of the 24th day of October, 2003.
DTE ENERGY COMPANY
THE DETROIT EDISON COMPANY
MICHIGAN CONSOLIDATED GAS COMPANY
By _______________________________
Name: D.R. Murphy
Title: Assistant Treasurer
EXHIBIT E - FORM OF
OPINION OF COUNSEL TO THE BORROWER
[Date]
To each of the Lenders set forth
in Schedule A hereto
DTE Energy Company
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 each of the 364-Day and Three-Year Credit Agreements, dated as of
October 24, 2003, 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 Citigroup Global Markets Inc., as Lead
Arranger and Sole Book Runner (the "DTE Credit Agreements"), (ii) Section
3.01(h)(v) of each of the 364-Day and Three-Year Credit Agreements, dated as of
October 24, 2003, among The Detroit Edison Company ("DECO"), the financial
institutions parties thereto (the "DECO Lenders") and Barclays Bank PLC, as
agent for said DECO Lenders, Citigroup Global Markets 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 Agreements"), and (iii) Section 3.01(h)(v) of each of the 364-Day and
Three-Year Credit Agreements, dated as of October 24, 2003, 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 Citigroup Global Markets 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
Agreements and the DECO Credit Agreements, 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:
(i) Each Loan Document, executed by each of the parties
thereto.
(ii) The other documents furnished by each of the Borrowers
pursuant to Article III of each of the Credit Agreements.
(iii) 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").
(iv) The By-Laws of each of the Borrowers and all amendments
thereto (the "By-Laws").
(v) 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 orders of the Federal Energy Regulatory
Commission and the Michigan Public Service Commission.
4. Each Loan Document has been duly executed and delivered
on behalf of the Borrower thereto.
5. Except as may have been disclosed to you in the SEC
Reports designated in the Certificate, to the best of my knowledge (after due
inquiry) there are no pending or overtly threatened actions or proceedings
affecting each Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator that (i) could be reasonably likely to have a
Material Adverse Effect or (ii) purport to affect the legality, validity,
binding effect or enforceability of any Loan Documents or the consummation of
the transactions contemplated thereby.
6. In a properly presented case, a Michigan court or a
federal court sitting in the State of Michigan applying Michigan choice of law
rules should give effect to the choice of law provisions of the Loan Documents
and should hold that such Loan Documents are to be governed by the laws of the
State of New York rather than the laws of the State of Michigan. In rendering
the foregoing opinion, I note that by their terms the Loan Documents expressly
select New York law as the laws governing their interpretation and that the
Loan Documents governed by New York law were delivered by the parties thereto
to the Agent in New York. The choice of law provisions of the Loan Documents
are not voidable under the laws of the State of Michigan.
7. If, despite the provisions of Section 8.09 of each of
the Credit Agreements wherein the parties thereto agree that the Loan Documents
shall be governed by, and construed in accordance with, the laws of the State
of New York, a court of the State of Michigan or a federal court sitting in the
State of Michigan were to hold that the Loan Documents are governed by, and to
be construed in accordance with the laws of the State of Michigan, the
respective Loan Documents would be, under the laws of the State of Michigan,
legal, valid and binding obligations of the applicable Borrower, enforceable
against such Borrower in accordance with their respective terms.
8. Neither the Borrowers nor any of their Subsidiaries is
an "investment company," or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms are defined
in the Investment Company Act of 1940, as amended; DECO is a "public utility
company" and a "subsidiary company" of DTE, which is a "holding company" as
such terms are defined in the Public Utility Holding Company Act of 1935, as
amended (the "1935 Act"), and such "holding company" and DECO are currently
exempt from the provisions of the 1935 Act (except Section 9 thereof); and
MichCon is a "public utility company" and a "subsidiary company" of MichCon
Holdings, Inc., which is a "holding company" and a "subsidiary company" of DTE
Enterprises, Inc., which is a "holding company" and a "subsidiary company" of
DTE, as such terms are defined in the 1935 Act, and such "holding companies"
and MichCon are currently exempt from the provisions of the 1935 Act (except
Section 9 thereof);
The opinions set forth above are subject to the following
qualifications:
(a) My opinion in paragraph 7 above as to enforceability
is subject to the effect of any applicable bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar law affecting
creditors' rights generally.
(b) My opinion in paragraph 7 above as to enforceability
is subject to the effect of general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good faith
and fair dealing (regardless of whether considered in a proceeding in
equity or at law).
(c) I express no opinion as to participation and the
effect of the law of any jurisdiction other than the State of Michigan
wherein any Lender may be located or wherein enforcement of the Loan
Documents may be sought that limits the rates of interest legally
chargeable or collectible.
Very truly yours,
Schedule A
Each of the Lenders party to the 364- Day Credit Agreement, dated as of October
24, 2003, 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
Citigroup Global Markets Inc., as Lead Arranger and Sole Book Runner.
Each of the Lenders party to the Three- Year Credit Agreement, dated as of
October 24, 2003, 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
Citigroup Global Markets Inc., as Lead Arranger and Sole Book Runner.
Each of the Lenders party to the 364- Day Credit Agreement, dated as of October
24, 2003, among DECO, Barclays Bank PLC, as Lender and Agent, and Citigroup
Global Markets 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 Three- Year Credit Agreement, dated as of
October 24, 2003, among DECO, Barclays Bank PLC, as Lender and Agent, and
Citigroup Global Markets 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 364-Day Credit Agreement, dated as of October
24, 2003, among MichCon, Bank One, NA, as Lender and Agent, and Barclays Bank
PLC and Citigroup Global Markets Inc., as Co- Syndication Agents, and with Banc
One Capital Markets, Inc. and Barclays Capital, as Co- Lead Arrangers and Joint
Book Runners.
Each of the Lenders party to the Three-Year Credit Agreement, dated as of
October 24, 2003, among MichCon, Bank One, NA, as Lender and Agent, and Barclays
Bank PLC and Citigroup Global Markets Inc., as Co- Syndication Agents, and with
Banc One Capital Markets, Inc. and Barclays Capital, as Co- Lead Arrangers and
Joint Book Runners.
EXHIBIT F - FORM OF
COMPLIANCE CERTIFICATE
COMPLIANCE CERTIFICATE
To: The Lenders parties to the
Credit Agreement Described Below
This Compliance Certificate is furnished pursuant to that
certain 364-Day Credit Agreement dated as of October 24, 2003 (as amended or
modified from time to time, the "Agreement"; the terms defined therein being
used herein as therein defined) among DTE Energy Company, a Michigan corporation
(the "Borrower"), the lenders parties thereto, and Citibank, N.A., as Agent for
the lenders. Unless otherwise defined herein, capitalized terms used in this
Compliance Certificate have the meanings ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected ______________ of the Borrower;
2. I have reviewed the terms of the Agreement and I have
made, or have caused to be made under my supervision, a detailed review of the
transactions and conditions of the Borrower and its Subsidiaries during the
accounting period covered by the attached financial statements;
3. The examinations described in paragraph 2 did not
disclose, and I have no knowledge of, the existence of any condition or event
which constitutes an Event of Default or Default during or at the end of the
accounting period covered by the attached financial statements or as of the date
of this Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data
and computations evidencing the Borrower's compliance with certain covenants of
the Agreement, all of which data and computations are true, complete and
correct.
Described below are the exceptions, if any, to paragraph 3 by
listing, in detail, the nature of the condition or event, the period during
which it has existed and the action which the Borrower has taken, is taking, or
proposes to take with respect to each such condition or event:
The foregoing certifications, together with the computations
set forth in Schedule I hereto and the financial statements delivered with this
Certificate in support hereof, are made and delivered this ___ day of ___, ___ .
DTE ENERGY COMPANY
By _____________________________________
Name:
Title:
SCHEDULE 1 TO COMPLIANCE CERTIFICATE
Compliance as of _________, ____ with
Provisions of Section 5.01(h) of
the Agreement
FINANCIAL COVENANTS
Ratio of Consolidated EBITDA to Interest Expense on Debt (Section 6.01(j)(i)).
(A) Numerator: Consolidated EBITDA: $_________________
(B) Denominator:
(i) Interest Expense on Debt: $_________________
(ii) Minus: Interest Expense on all Nonrecourse Debt of -$_________________
the Borrower and its Subsidiaries:
(iii) Minus: Interest Expense on Excluded Hedging Debt: -$_________________
(iv) Minus: Interest Expense on Junior Subordinated -$_________________
Debt:
(v) Denominator: (B)(i) minus (B)(ii) through (B)(iv): $_________________
(C) State whether the ratio of (A) to (B)(v) was not less than 2:1 for the YES/NO
twelve-month period ending on the last day of __________:
Ratio of Consolidated Debt to Capitalization (Section 6.01(j)(ii)).
(A) Numerator:
(i) Consolidated Debt: $_________________
(ii) Minus: Nonrecourse Debt of the Borrower and its -$_________________
Subsidiaries:
(iii) Minus: Excluded Hedging Debt: -$_________________
(iv) Minus: Junior Subordinated Debt: -$_________________
(v) Numerator: (A)(i) minus A(ii) through A(iv): $_________________
(B) Denominator: Capitalization: $_________________
(C) State whether the ratio of (A)(v) to (B) was not greater than .65:1: YES/NO