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EXHIBIT 4-176
SUPPORT AGREEMENT BETWEEN
DTE ENERGY COMPANY
AND
DTE CAPITAL CORPORATION
THIS SUPPORT AGREEMENT, dated as of March 8, 1996, is between
DTE ENERGY COMPANY, a Michigan corporation ("Parent"), and DTE CAPITAL
CORPORATION, a Michigan corporation ("Subsidiary").
WHEREAS, Parent is the owner of 100% of the outstanding common
stock of Subsidiary;
WHEREAS, Subsidiary intends from time to time to make
borrowings from the lenders party to the $200,000,000 Credit Agreement (such
agreement as it may be amended and in effect from time to time, the "Credit
Agreement"), dated on or about March 1, 1996 among the Subsidiary, the lenders
party thereto and Citibank, N.A. as Administrative Agent (such lenders and the
Administrative Agent being hereinafter collectively referred to as the
"Lenders"), and to issue debt securities to the Lenders pursuant to the Credit
Agreement (such borrowings and debt securities, including without limitation
all interest, fees, expenses and other amounts payable in accordance with the
documentation relating to such borrowings and debt securities being hereinafter
collectively referred to as "Debt");
WHEREAS, Parent and Subsidiary desire to take certain actions
to enhance and maintain the financial condition of Subsidiary as hereinafter
set forth in order to enable Subsidiary and its subsidiaries to incur
indebtedness on more advantageous and reasonable terms; and
WHEREAS, the Lenders will rely upon this Agreement in making
loans or extending credit to Subsidiary;
NOW, THEREFORE, in consideration of the premises, and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Stock Ownership. During the term of this Agreement,
Parent will own all of the voting common stock of Subsidiary and The Detroit
Edison Company ("DECO") now or hereafter issued and outstanding.
2. Negative Pledge. During the term of this Agreement,
Parent will not create or suffer to exist any lien, security interest or other
charge of encumbrance, upon or with respect to any voting common stock of DECO
from time to time owned by Parent or any
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capital stock of Subsidiary from time to time owned by Parent, provided,
however, that any restriction on the payment of dividends by DECO or Subsidiary
contained in any subordinated debt instrument, preferred stock or preference
stock of DECO or Subsidiary shall not constitute a lien, security interest or
other charge or encumbrance.
3. Liquidity Provision. If, during the term of this
Agreement, Subsidiary is unable to make timely payment of interest, principal
or premium, if any, on any Debt owing to any Lender by Subsidiary, Parent
promptly shall provide to Subsidiary, at its request, such funds (in the form
of cash or liquid assets) in an amount sufficient to permit Subsidiary to make
timely payment in respect of such Debt as equity or as a loan, as Parent shall
determine in its sole discretion. If such funds are advanced to Subsidiary as
a loan, such loan shall be on such terms and conditions, including maturity and
rate of interest, as Parent and Subsidiary shall agree. Notwithstanding the
foregoing, any such loan shall be subordinated to any and all Debt of
Subsidiary owing to any Lender to the extent and in the manner set forth in
Section 7 below. Each of the parties hereto acknowledges that Parent's
obligations hereunder do not constitute a guarantee by Parent of Debt of the
Subsidiary.
4. Waivers. Parent hereby waives any failure or delay
on the part of Subsidiary in asserting or enforcing any of its rights or in
making any claims or demands hereunder. Subsidiary or any Lender may at any
time, without Parent's consent, without notice to Parent and without affecting
or impairing Subsidiary's or such Lender's rights or Parent's obligations
hereunder, do any of the following with respect to any Debt: (a) make changes
modifications, amendments or alterations, by operation of law or otherwise,
including, without limitation, any increase in the principal amount of such
Debt or the rate of interest payable thereon or any changes in the method of
calculating the rate of interest payable thereon, (b) grant renewals and
extensions and extensions of time, for payment or otherwise, (c) accept new or
additional documents, instruments or agreements relating to or in substitution
of said Debt, or (d) otherwise handle the enforcement of their respective
rights and remedies in accordance with their business judgment.
5. Amendment; Suspension. This Agreement may be amended
or terminated at any time by written amendment or agreement signed by both
parties; provided, however, that except as set forth in the next succeeding
sentence, no amendment to the Agreement which adversely affects the rights of
Subsidiary or any Lender and no termination of this Agreement shall be
effective as to Subsidiary or any Lender until such time as all Debt owing to
such Lender by Subsidiary on the date of such amendment or termination shall
have been paid in full unless such Lender shall consent in writing to the
contrary. Notwithstanding the foregoing, Parent's obligations under this
Agreement shall be suspended and shall be of no force and effect as to the
parties hereto and as to all Lenders if and for so long as Subsidiary shall
have (i) a long-term debt rating of not less than "A-" from Standard & Poor's
Corporation or its successor ("S&P) or a long-term debt rating of not less than
"A2" from Moody's Investors Service or its successor ("Moody's") or (ii) a
short-term debt rating of not less that "A-2" from S&P or a short-term debt
rating of not less than "Prime-2" from Moody's. For purposes of this Section
5, ratings shall be based upon unsecured non-credit enhanced debt of
Subsidiary.
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6. Rights of Lender. Subsidiary hereby assigns and
pledges to the Lenders, for the ratable benefit of each Lender, Subsidiary's
rights under Sections 1, 2, 3 and 4 of this Agreement, and, if Subsidiary fails
or refuses to take timely action to enforce its rights under Section 1, 2, 3 or
4 of this Agreement, any Lender may enforce such rights on behalf of Subsidiary
directly against Parent. Parent hereby consents to such assignment and pledge.
This assignment and pledge secures all obligations of Subsidiary under the
Credit Agreement and the Notes (as defined in the Credit Agreement).
Subsidiary and Parent agree, for the benefit of the Lenders, to execute and
deliver all further instruments and documents, and take all further action,
that Lenders may request in order to perfect and protect any security interest
purported to be granted hereby or to enable the Lenders to enforce their rights
and remedies hereunder.
7. Subordination. All loans made by Parent to
Subsidiary pursuant to Section 3 hereof (the "Subordinated Loans") shall be
subordinate and junior in right of payment to the prior payment in full of all
Debt from time to time outstanding owing to any Lender, to the extent and in
the manner provided below:
(a) Unless and until all Debt owing to the Lenders shall
have been paid in full,
(i) Parent will not sell, assign or otherwise
transfer any claim against Subsidiary in respect of any
Subordinated Loan unless such transfer is made expressly
subject to this Agreement and the transferee shall execute an
instrument whereby the transferee agrees to be bound by the
provisions of this Section 7;
(ii) Subsidiary will not make, and Parent will not
demand, accept or receive, any direct or indirect payment (in
cash, property, by set-off or otherwise) of or on account of
any Subordinated Loan, and no such payment shall be due,
except that nothing contained in this Section 7(a) shall
prevent Subsidiary from making, or Parent from accepting and
receiving, any payment on account of Subordinated Loans, if
there is not then in existence a default by Subsidiary under
the Credit Agreement or the Notes (as defined in the Credit
Agreement) or a default by Parent under this Agreement.
(b) In the event of (x) any insolvency, bankruptcy,
receivership, liquidation, reorganization, readjustment, composition
or other similar proceeding relative to Subsidiary or its creditors of
its property, or (y) any proceeding for the voluntary liquidation,
dissolution or other winding up of subsidiary, whether or not
involving
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insolvency or bankruptcy proceedings, or (z) any assignment for the
benefit of creditors or other marshalling of the assets of Subsidiary,
then and in any such event:
(i) all Debt owing to the Lenders shall be paid
in full before any payment or distribution of any character
(whether in cash, securities or other property) shall be made
in respect of any Subordinated Loans;
(ii) any payment or distribution of any character
(whether in cash, securities or other property) which would
otherwise (but for the provisions of this Section 7) be
payable or deliverable in respect of any Subordinated Loan
shall be paid or delivered directly to the Lenders until all
Debt owing to the Lenders shall have been paid in full;
(iii) Parent irrevocably authorizes and empowers
the Lenders to demand, sue for, collect and receive any such
payment or distribution and to receipt therefor and to file
all such claims and take all such other action, in the name of
Parent or the Lenders or otherwise, as the Lenders may
determine to be necessary or appropriate for the enforcement
of the provisions of this Section 7 (Parent hereby agreeing to
execute and deliver to the Lenders such further instruments
confirming such authorization and such powers of attorney,
proofs of claim, assignments of claim and other instruments as
may be requested by the Lenders in order to enable them to
enforce any and all claims with respect to any Subordinated
Loans); and
(iv) in case any payment or distribution shall,
despite the foregoing provisions, be paid or delivered to
Parent before all Debt owing to the Lenders shall have been
paid in full, such payment or distribution shall be held in
trust for, and shall be paid and delivered to, the Lenders
until all Debt owing to the Lenders shall have been paid in
full.
(c) Until all Debt shall be paid in full, Parent hereby
defers all rights of subrogation in respect of any payment of Debt
made by Parent. Upon payments in full of Debt owing to Lenders,
Parent shall be subrogated to the rights of Lenders to receive any
further payment or distributions in respect of Debt, provided,
however, that nothing in this Section 7(c) will prohibit the Parent
from receiving any payments permitted under Section 7(a)(ii).
8. Notices. Any notice, instruction, request, consent,
demand or other communication required or contemplated by this Agreement shall
be in writing, shall be given or made by United States first class mail, telex,
facsimile transmission or hand delivery, addressed as follows:
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If to Parent: 2000 Second Avenue
Detroit, Michigan 48226-1279
Attention: Assistant Treasurer-Banking
If to Subsidiary: 2000 Second Avenue
Detroit, Michigan 48226-1279
Attention: Assistant Treasurer
9. Successors. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and is also intended
for the benefit of Lenders, and, notwithstanding that such Lenders are not
parties hereto, each Lender shall be entitled to the full benefits of this
Agreement and to enforce the covenants and agreements contained herein as set
forth in Section 6. This Agreement is not intended for the benefit of any
person other than Lenders and shall not confer or be deemed to confer upon any
such person any benefits, rights or remedies hereunder.
10. Governing Law. This Agreement shall be governed by
the laws of the State of New York.
DTE ENERGY COMPANY
By
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Name:
Title:
DTE CAPITAL CORPORATION
By
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Name:
Title: