Exhibit 10.1
EXECUTION COPY
FIVE-YEAR CREDIT AGREEMENT
Dated as of October 17, 2005
Among
MICHIGAN CONSOLIDATED GAS COMPANY,
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
and
BARCLAYS BANK PLC, CITIBANK, N.A.,
as Co-Syndication Agent as Co-Syndication Agent
and
BNP PARIBAS, THE BANK OF NOVA SCOTIA,
as Co-Documentation Agent as Co-Documentation Agent
================================================================================
X.X. XXXXXX SECURITIES INC., BARCLAYS CAPITAL, the investment
banking division of Barclays Bank PLC,
as Co-Lead Arrangers and Joint Book Runners
================================================================================
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..............................................................13
SECTION 1.03. Accounting Terms.........................................................................13
ARTICLE II: AMOUNTS AND TERMS OF THE REVOLVING CREDIT ADVANCES..................................................13
SECTION 2.01. Commitment...............................................................................13
SECTION 2.02. Making the Revolving Credit Advances.....................................................14
SECTION 2.03. Fees.....................................................................................15
SECTION 2.04. Termination or Reduction of the Commitments; Increase of the Commitments.................15
SECTION 2.05. Repayment of Revolving Credit Advances...................................................16
SECTION 2.06. Interest on Revolving Credit Advances....................................................16
SECTION 2.07. Interest Rate Determination..............................................................17
SECTION 2.08. Optional Conversion of Revolving Credit Advances.........................................18
SECTION 2.09. Prepayments of Revolving Credit Advances.................................................19
SECTION 2.10. Increased Costs..........................................................................19
SECTION 2.11. Illegality...............................................................................20
SECTION 2.12. Payments and Computations................................................................20
SECTION 2.13. Taxes....................................................................................21
SECTION 2.14. Sharing of Payments, Etc.................................................................23
SECTION 2.15. Use of Proceeds..........................................................................24
SECTION 2.16. Reserved.................................................................................24
SECTION 2.17. Noteless Agreement; Evidence of Indebtedness.............................................24
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SECTION 2.18. Extension of Termination Date............................................................25
ARTICLE III: CONDITIONS TO EFFECTIVENESS AND LENDING............................................................25
SECTION 3.01. Conditions Precedent to Effectiveness of this Agreement..................................25
SECTION 3.02. Conditions Precedent to Each Borrowing...................................................26
SECTION 3.03. Determinations Under Section 3.01........................................................27
ARTICLE IV: REPRESENTATIONS AND WARRANTIES......................................................................27
SECTION 4.01. Representations and Warranties of the Borrower...........................................27
ARTICLE V: COVENANTS OF THE BORROWER............................................................................29
SECTION 5.01. Affirmative Covenants....................................................................29
SECTION 5.02. Negative Covenants.......................................................................32
ARTICLE VI: EVENTS OF DEFAULT...................................................................................33
SECTION 6.01. Events of Default........................................................................33
ARTICLE VII: THE AGENT..........................................................................................35
SECTION 7.01. Authorization and Action.................................................................35
SECTION 7.02. Agent's Reliance, Etc....................................................................36
SECTION 7.03. JPMorgan and Affiliates..................................................................36
SECTION 7.04. Lender Credit Decision...................................................................36
SECTION 7.05. Indemnification..........................................................................37
SECTION 7.06. Successor Agent..........................................................................37
SECTION 7.07. Co-Syndication Agents and Co-Documentation Agents........................................37
ARTICLE VIII: MISCELLANEOUS.....................................................................................37
SECTION 8.01. Amendments, Etc..........................................................................38
SECTION 8.02. Notices, Etc.............................................................................38
SECTION 8.03. No Waiver; Remedies......................................................................40
SECTION 8.04. Costs and Expenses.......................................................................40
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SECTION 8.05. Right of Set-off.........................................................................41
SECTION 8.06. Binding Effect...........................................................................42
SECTION 8.07. Assignments, Designations and Participations.............................................42
SECTION 8.08. Confidentiality..........................................................................46
SECTION 8.09. Governing Law............................................................................46
SECTION 8.10. Execution in Counterparts; Integration...................................................46
SECTION 8.11. Jurisdiction, Etc........................................................................46
SECTION 8.12. Waiver of Jury Trial.....................................................................47
SECTION 8.13. USA Patriot Act Notification.............................................................47
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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-1 - Form of Opinion of General Counsel to the Borrower
Exhibit E-2 - Form of Opinion of Hunton & Xxxxxxxx LLP
Exhibit F - Form of Compliance Certificate
Exhibit G - Form of Lender Supplement
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This FIVE-YEAR
CREDIT AGREEMENT (this "Agreement") dated as of October 17,
2005 is entered into among MICHIGAN CONSOLIDATED GAS COMPANY, a Michigan
corporation (the "Borrower"), the banks, financial institutions and other
institutional lenders (the "Initial Lenders") listed on the signature pages
hereof, and JPMORGAN CHASE BANK, N.A. ("JPMorgan"), as Administrative Agent (the
"Agent"), and BARCLAYS BANK PLC and CITIBANK, N.A., as Co-Syndication Agents 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 25% 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 JPMorgan with its office at 0000 Xxxxxx 00xx Xxxxx, Xxxxxxx, XX
00000, ABA/Routing No." 021 000 021, Account Name: Loan Processing DP,
Account No.: 000 000 0000, Attention: Xxxxxx Xxxx.
"Agents" means the Agent and each Co-Syndication Agent,
collectively.
"Amended and Restated Five-Year Agreement" means that certain Second
Amended and Restated Five-Year
Credit Agreement dated as of October 17,
2005, by and among the Borrower, the lenders party thereto, JPMorgan
(successor by merger to Bank One, NA (Main Office Chicago)), as
Administrative Agent, and Barclays Bank PLC and Citibank, N.A., as
Co-Syndication Agents, as the same may be amended, restated, supplemented
or otherwise modified from time to time.
"Amended and Restated DTE
Credit Agreement" means that certain
Second Amended and Restated Five-Year
Credit Agreement dated as of October
17, 2005,
1
among DTE Energy, the lenders party thereto, Citibank, N.A., as
Administrative Agent, and Barclays Bank PLC and JPMorgan, as
Co-Syndication Agents, as the same may be amended, restated, supplemented
or otherwise modified from time to time.
"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 as at December 31, 2004, and the related Consolidated statements
of income and cash flows of the Borrower for the fiscal year then ended,
accompanied by the opinion thereon of the Borrower's independent public
accountants.
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
highest of:
(a) the rate of interest per annum publicly announced from
time to time by JPMorgan as its prime rate in effect at its
principal office in
New York City, with each change therein
effective from and including the date such change is publicly
announced as being effective;
(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 JPMorgan 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
2
publication shall be suspended or terminated, on the basis of
quotations for such rates received by JPMorgan from three
New York
certificate of deposit dealers of recognized standing selected by
JPMorgan, 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 JPMorgan 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 JPMorgan for determining the then current annual
assessment payable by JPMorgan to the Federal Deposit Insurance
Corporation (or any successor) for insuring U.S. dollar deposits of
JPMorgan in the United States; or
(c) 1/2 of 1% 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 Consolidated Net Worth plus
Consolidated Debt.
"Commitment" means, for each Lender, the obligation of such Lender
to make Loans to the Borrower in an aggregate amount not exceeding the
amount set forth opposite such Lender's name on Schedule I 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 modified from time to time pursuant to the
terms hereof.
"Confidential Information" means information that the Borrower
furnishes to the Agent or any Lender 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.
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"Consolidated Net Worth" means, as of any date of determination, the
consolidated total stockholders' equity (including capital stock,
additional paid-in capital and retained earnings) of the Borrower and its
Subsidiaries determined in accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to a conversion
of Revolving Credit Advances of one Type into Revolving Credit Advances of
the other Type pursuant to Section 2.07 or 2.08.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services (other
than trade payables not overdue by more than 60 days incurred in the
ordinary course of such Person's business), (c) all obligations of such
Person evidenced by notes, bonds, debentures or other similar instruments,
(d) all obligations of such Person created or arising under any
conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of
the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (e) all obligations of
such Person as lessee under leases that have been or should be, in
accordance with GAAP, recorded as capital leases, (f) all obligations,
contingent or otherwise, of such Person in respect of acceptances, letters
of credit or similar extensions of credit, (g) all obligations of such
Person in respect of Hedge Agreements, (h) all Debt of others referred to
in clauses (a) through (g) above or clause (i) below guaranteed directly
or indirectly in any manner by such Person, or in effect guaranteed
directly or indirectly by such Person through an agreement (1) to pay or
purchase such Debt or to advance or supply funds for the 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.
"DECO" means The Detroit Edison Company, a Michigan corporation
wholly owned by DTE Energy.
"DECO
Credit Agreement" means that certain Five-Year
Credit
Agreement dated as of October 17, 2005, by and among DECO, the lenders
party thereto, Barclays Bank PLC, as Administrative Agent, and Citibank,
N.A. and JPMorgan, as Co-Syndication Agents, as the same may be amended,
restated, supplemented or otherwise modified from time to time.
4
"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 4.01(f).
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
to which it became a Lender, or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the Agent.
"DTE Energy" means DTE Energy Company, a Michigan corporation.
"DTE
Credit Agreement" means that certain Five-Year
Credit Agreement
dated as of October 17, 2005, by and among DTE Energy, the lenders party
thereto, Citibank, N.A., as Administrative Agent, and Barclays Bank PLC
and JPMorgan, as Co-Syndication Agents, as the same may be amended,
restated, supplemented or otherwise modified from time to time.
"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 $500,000,000; (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 $500,000,000; (v) a
commercial bank organized under the laws of any other country that is a
member of the Organization for Economic Cooperation and Development or has
concluded special lending arrangements with the International Monetary
Fund associated with its General Arrangements to Borrow, or a political
subdivision of any such country, and having a combined capital and surplus
of at least $500,000,000, 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 $500,000,000; and (viii) any
other Person approved by the Agent and, so long as no Event of Default
shall be continuing, the Borrower, such approval not to be unreasonably
withheld or delayed by either party; provided, however, that neither the
Borrower nor an Affiliate of the Borrower shall qualify as an Eligible
Assignee.
"Enterprises" means DTE Enterprises, Inc., a Michigan corporation
wholly owned by DTE Energy.
5
"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 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 or natural resources,
including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the Borrower's controlled group, or under common
control with the Borrower, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC, or (ii) the requirements of subsection (1) of Section
4043(b) of ERISA (without regard to subsection (2) of such Section) are
met with 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
6
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 rate
appearing on Page 3750 of Moneyline Telerate, Inc. ("Service") (or on any
successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Agent after consultation with the Borrower from time to time for purposes
of providing quotations of interest rates applicable to U.S. dollar
deposits in the London interbank market) at approximately 11:00 A.M.
(London time) two Business Days prior to the commencement of such Interest
Period, as the rate for U.S. dollar deposits with a maturity comparable to
such Interest Period, or in the event that such rate is not available at
such time for any reason, 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, 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
7
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.
"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" means generally accepted accounting principles in the United
States of America.
"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.
"Identified Reports on Form 8-K" means those certain reports of the
Borrower on Form 8-K filed or furnished with the Securities and Exchange
Commission on February 11, March 10, April 27, April 28, May 2, May 3, May
10, June 14, June 16, July 28, July 29, and September 27, 2005.
"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
8
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 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.
"Junior Subordinated Debt" means (a) subordinated junior deferrable
interest debentures of the Borrower, (b) the related preferred securities,
if applicable, of Subsidiaries of the Borrower and (c) the related
subordinated guarantees, if applicable, of the Borrower, 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 or
properties 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 or
properties of the Borrower
9
and its Subsidiaries taken as a whole, or (b) the ability of the Borrower
to perform its obligations under any Loan Document to which it is a party.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Xxxxx'x Rating" is defined in the Pricing Schedule.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate
is making or accruing an obligation to make contributions, or has within
any of the preceding five plan years made or accrued an obligation to make
contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or 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.
"1935 Act" means the Public Utility Holding Company Act of 1935, as
amended.
"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 to which a creditor has recourse.
"Note" has the meaning specified in Section 2.17.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Obligations" means all unpaid principal of and accrued and unpaid
interest on Revolving Credit Advances, all accrued and unpaid fees and all
expenses, reimbursements, indemnities and other obligations of the
Borrower to the Lenders or to any Lender, the Agent or any indemnified
party arising under the Loan Documents.
"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.
10
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets
owned by such Person.
"Receivables Purchase Documents" means those documents entered into
in connection with any series of receivables purchase or sale agreements
generally consistent with terms contained in comparable structured finance
transactions pursuant to which the Borrower or any of its Subsidiaries, in
their respective capacities as sellers or transferors of any receivables,
sell or transfer to SPCs all of their respective rights, title and
interest in and to certain receivables for further sale or transfer to
other purchasers of or investors in such assets (and the other documents,
instruments and agreements executed in connection therewith), as any such
agreements may be amended, restated, supplemented or otherwise modified
from time to time, or any replacement or substitution therefor.
"Receivables Purchase Facility" means any securitization facility
made available to the Borrower or any of its Subsidiaries, pursuant to
which receivables of the Borrower or any of its Subsidiaries are
transferred to one or more SPCs, and thereafter to certain investors,
pursuant to the terms and conditions of the Receivables Purchase
Documents.
"Reference Banks" means Citibank, N.A., Barclays Bank PLC, JPMorgan
and their respective successors.
"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 the Lenders, or, if no such principal
amount is then outstanding, Lenders having more than fifty percent (50%)
of the Commitments.
"Revolving Credit Advance" means an advance by a Lender to the
Borrower as part of a Borrowing, and refers to a Base Rate Advance or a
Eurodollar Rate Advance (each of which shall be a "Type" of Revolving
Credit Advance).
"S&P" means Standard & Poor's Ratings Services, a division of the
XxXxxx-Xxxx Companies, Inc.
"S&P Rating" is defined in the Pricing Schedule.
"SEC Reports" means the following reports and financial statements:
(i) the Borrower's Annual Report on Form 10-K, as amended by
Form 10-K/A, for the year ended December 31, 2004, as filed with or
sent to the Securities and Exchange Commission, including therein
the Audited Statements of the Borrower; and
(ii) the Borrower's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 2005 and June 30, 2005, including therein
the Unaudited Statements of the Borrower, and the Borrower's
Identified Reports on Form 8-K.
11
"Service" has the meaning specified in the definition of "Eurodollar
Rate".
"Significant Subsidiary" means any Subsidiary of the Borrower (A) the
total assets (after intercompany eliminations) of which exceed 30% of the
total assets of the Borrower and its Subsidiaries or (B) the net worth of
which exceeds 30% of the Consolidated Net Worth, 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.
"SPC" means any special purpose entity established for the purpose of
purchasing receivables in connection with a receivables securitization
transaction permitted under the terms of this Agreement.
"SPV" has the meaning specified in Section 8.07(h).
"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.
"Terminating Agreements" means (a) that certain Three-Year
Credit
Agreement dated as of October 24, 2003, by and among DTE Energy, the
lenders party thereto, Citibank, N.A., as Administrative Agent, and X.X.
Xxxxxx Securities Inc. (successor to Banc One Capital Markets, Inc.) and
Barclays Bank PLC, as Co-Syndication Agents, (b) that certain Two-Year
Agreement dated as of May 7, 2004, by and among DTE Energy, the lenders
party thereto, Barclays Bank PLC, as Administrative Agent, and Barclays
Bank PLC and Citigroup Global Markets Inc., as Co-Syndication Agents, (c)
that certain Three-Year Credit Agreement dated as of October 24, 2003, by
and among DECO, the lenders party thereto, Barclays Bank PLC, as
Administrative Agent, and X.X. Xxxxxx Securities Inc. (successor to Banc
One Capital Markets, Inc.) and Citigroup Global Markets Inc., as
Co-Syndication Agents, and (d) that certain Three-Year Credit Agreement
dated as of October 24, 2003, by and among the Borrower, the lenders party
thereto, JPMorgan (successor by merger to Bank One, NA (Main
Office-Chicago)), as Administrative Agent, and Barclays Bank PLC and
Citigroup Global Markets Inc., as Co-
12
Syndication Agents, in each case, as the same has been amended, restated,
supplemented or otherwise modified from time to time.
"Termination Date" means the earlier of (a) October 15, 2010, as it
may be extended pursuant to Section 2.18, and (b) the date of termination
in whole of the Commitments pursuant to Section 2.04 or 6.01.
"Unaudited Statements" means the unaudited condensed Consolidated
balance sheets of the Borrower as at June 30, 2005, and the related
condensed Consolidated statements of income and cash flows of the Borrower
for the six-month period then ended.
"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. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided that, if the
Borrower notifies the Agent that the Borrower requests an amendment to any
provision hereof to eliminate the effect of any change occurring after the date
hereof in GAAP or in the application thereof on the operation of such provision
(or if the Agent notifies the Borrower that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith.
ARTICLE II:
AMOUNTS AND TERMS OF THE REVOLVING CREDIT ADVANCES
SECTION 2.01. Commitment. Each Lender severally agrees, on the terms and
conditions hereinafter set forth, to make Revolving Credit Advances to the
Borrower from time to time on any Business Day during the period from the
Effective Date until the Termination Date in an aggregate amount not to exceed
at any time outstanding 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
13
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 signed by a Financial Officer 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, (iv) in the case of a Borrowing
consisting of Eurodollar Rate Advances, initial Interest Period for each such
Revolving Credit Advance and (v) wire transfer instructions. 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 as specified in the Notice of Borrowing.
(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 Amended and Restated Five-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 Bo rrowing
specifies isto 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 (excluding loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Revolving Credit Advance to be made by such Lender as part of such Borrowing
when such Revolving Credit Advance, as a result of such failure, is not made on
such date.
(d) Unless the Agent shall have received notice from a Lender
prior to the time 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
14
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 Obligations 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 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 on any day the aggregate outstanding
principal amount of (i) all Revolving Credit Advances hereunder and (ii) all
"Revolving Credit Advances" under (and as defined in) the Amended and Restated
Five-Year Agreement exceeds fifty percent (50%) of the aggregate amount of (x)
all Commitments hereunder and (y) all "Commitments" under (and as defined in)
the Amended and Restated Five-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 principal 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 Termination Date.
SECTION 2.04. Termination or Reduction of the Commitments; Increase of the
Commitments. (a) The Commitments shall be automatically terminated on the
Termination Date.
15
(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.
(c) At any time prior to the Termination Date the Borrower may, on
the terms set forth below, request that the Commitments hereunder be increased
by an aggregate amount up to $250,000,000; provided, however, that (i) an
increase in the Commitments hereunder may only be made at a time when no Default
shall have occurred and be continuing and (ii) in no event shall the aggregate
Commitments hereunder exceed $431,250,000, minus the aggregate amount of any
increases in the "Commitments" under (and as defined in) the DTE Credit
Agreement and the DECO Credit Agreement pursuant to Section 2.04(c) of each
thereof. In the event of such a requested increase in the Commitments, any
Lender or other financial institution which the Borrower and the Agent invite to
become a Lender or to increase its Commitment may set the amount of its
Commitment at a level agreed to by the Borrower and the Agent. In the event that
the Borrower and one or more of the Lenders (or other financial institutions)
shall agree upon such an increase in the Commitments (i) the Borrower, the Agent
and each Lender or other financial institution increasing its Commitment or
extending a new Commitment shall enter into a supplement to this Agreement
(each, a "Lender Supplement") substantially in the form of Exhibit G setting
forth, among other things, the amount of the increased Commitment of such Lender
or the new Commitment of such other financial institution, as applicable, and
(ii) the Borrower shall furnish, if requested, new or amended restated Notes, as
applicable, to each financial institution that is extending a new Commitment and
each Lender that is increasing its Commitment. No such Lender Supplement shall
require the approval or consent of any Lender whose Commitment is not being
increased. Upon the execution and delivery of such Lender Supplements as
provided above and the occurrence of the "Effective Date" specified therein, and
upon satisfaction of such other conditions as the Agent may reasonably specify
upon the request of the financial institutions that are extending new
Commitments and the Lenders that are increasing their Commitments (including,
without limitation, the Agent administering the reallocation of outstanding
Revolving Credit Advances ratably among the Lenders after giving effect to each
such increase in the Commitments, and the delivery of certificates, evidence of
corporate authority and legal opinions on behalf of the Borrower), this
Agreement shall be deemed to be amended accordingly.
SECTION 2.05. Repayment of Revolving Credit Advances. The Borrower shall
repay to the Agent for the ratable account of the Lenders on the Termination
Date the aggregate principal amount of the Revolving Credit Advances then
outstanding and all other unpaid Obligations. In addition, the Borrower shall
make all payments required to be made under Section 2.18 to each Lender that
does not consent to an extension of the Termination Date.
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:
16
(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) If applicable, each
Reference Bank agrees to furnish to the Agent timely information for the purpose
of determining each Eurodollar Rate. If any one or more of the Reference Banks
shall not furnish such timely information to the Agent for the purpose of
determining any such interest rate, the Agent shall determine such interest rate
on the basis of timely information furnished by the remaining Reference Banks.
The Agent shall give prompt notice to the Borrower and the Lenders of the
applicable interest rate determined by the Agent for purposes of Section
2.06(a)(i) or (ii), and the rate, if any, furnished by each Reference Bank for
the purpose of determining the interest rate under Section 2.06(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the Required
Lenders notify the Agent that the Eurodollar Rate for any Interest Period for
such Eurodollar Rate Advances will not adequately reflect the cost to such
Required Lenders of making, funding or maintaining their respective Eurodollar
Rate Advances for such Interest Period, the Agent shall forthwith so notify the
Borrower and the Lenders, whereupon (i) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance, and (ii) the obligation of the Lenders to
make, or to Convert Revolving
17
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 the Service is not available or a rate does not timely appear
on the Service and 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 Advance is then a Base Rate Advance, will
continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurodollar Rate
Advances or to Convert Revolving Credit Advances into Eurodollar
Rate Advances shall be suspended until the Agent shall notify the
Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION 2.08. Optional Conversion of Revolving Credit Advances. The
Borrower may on any Business Day, upon notice given to the Agent not later than
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).
18
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 outstanding principal amount of all
Revolving Credit Advances plus all interest thereon and all other amounts
payable hereunder or under the Notes, in the event that any Person or two or
more Persons acting in concert (other than DTE Energy or any of its
Subsidiaries) shall have acquired beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934), directly or indirectly, of Voting Stock of the Borrower
(or other securities convertible into such Voting Stock) representing 30% or
more of the combined voting power of all Voting Stock of the Borrower.
SECTION 2.10. Increased Costs. (a) If, due to either (i) the introduction
of or any change in or in the interpretation of any law or regulation or (ii)
the compliance with any guideline or request from any central bank or other
governmental authority (whether or not having the force of law), there shall be
any increase in the cost to any Lender of agreeing to make or making, funding or
maintaining Eurodollar Rate Advances (excluding for purposes of this Section
2.10 any such increased costs resulting from taxes (as to which Section 2.13
shall govern), 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
19
of such demand to the Agent), the Borrower shall pay to the Agent for the
account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or such corporation in
the light of such circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the existence of such
Lender's commitment to lend hereunder. A certificate as to such amounts
submitted to the Borrower and the Agent by such Lender shall be conclusive and
binding for all purposes, absent manifest error.
(c) In the event that a Lender demands payment from the Borrower for
amounts owing pursuant to subsection (a) or (b) of this Section 2.10, the
Borrower may, upon payment of such amounts and subject to the requirements of
Sections 8.04 and 8.07, substitute for such Lender another financial
institution, which financial institution shall be an Eligible Assignee and shall
assume the Commitments of such Lender and purchase the Revolving Credit Advances
held by such Lender in accordance with Section 8.07, provided, however, that (i)
no Default shall have occurred and be continuing, (ii) the Borrower shall have
satisfied all of its obligations in connection with the Loan Documents with
respect to such Lender, and (iii) if such assignee is not a Lender, (A) such
assignee is acceptable to the Agent and (B) the Borrower shall have paid the
Agent a $3,000 administrative fee.
SECTION 2.11. Illegality. Notwithstanding any other provision of this
Agreement, if any Lender shall notify the Agent that the introduction of or any
change in or in the interpretation of any law or regulation makes it unlawful,
or any central bank or other governmental authority asserts that it is unlawful,
for any Lender or its Eurodollar Lending Office to perform its obligations
hereunder to make Eurodollar Rate Advances or to fund or maintain Eurodollar
Rate Advances hereunder, (i) each Eurodollar Rate Advance will automatically,
upon such demand, Convert into a Base Rate Advance or a Revolving Credit Advance
that bears interest at the rate set forth in Section 2.06(a)(i), as the case may
be, and (ii) the obligation of the Lenders to make Eurodollar Rate Advances or
to Convert Revolving Credit Advances into Eurodollar Rate Advances shall be
suspended until the Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 2.12. Payments and Computations. (a) The Borrower shall make each
payment hereunder and under the Notes not later than 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 other than
deductions on account of taxes. 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.
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(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 (other than
such computations of the Base Rate that are based on the Federal Funds 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 the Facility Fees and the Utilization Fee shall be
made by the Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest, Facility Fees or the
Utilization Fee are payable. Each determination by the Agent of an interest rate
hereunder shall be conclusive and binding for all purposes, absent manifest
error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest, Facility Fee or the
Utilization Fee, as the case may be; provided, however, that, if such extension
would cause payment of interest on or principal of Eurodollar Rate Advances to
be made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(e) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Lenders hereunder that the
Borrower will not make such payment in full, the Agent may assume that the
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the Agent,
each Lender shall repay to the Agent forthwith on demand such amount distributed
to such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Agent, at the Federal Funds Rate.
SECTION 2.13. Taxes. (a) Subject to the exclusions set forth below in this
Section 2.13(a) and, if applicable, compliance with Section 2.13(e), 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, any and all present or future taxes, levies,
imposts, deductions, charges or withholdings imposed on its income, and
franchise taxes imposed on it in lieu of income taxes, (i) 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 (ii), in the case of each
Lender, 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").
Notwithstanding the above, 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, the
21
Borrower will so deduct and (i) the sum payable shall be increased as may be
necessary so that after making all such deductions on account of Taxes
(including deductions on account of Taxes 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) 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 this Agreement or the Notes (hereinafter
referred to as "Other Taxes").
(c) Without duplication of the Borrower's payment obligations on
account of Taxes or Other Taxes pursuant to Sections 2.13(a) and (b), the
Borrower shall indemnify each Lender and the Agent for the full amount of Taxes
or Other Taxes (including, without limitation, any Taxes imposed by any
jurisdiction on amounts payable under this Section 2.13) imposed on or paid by
such Lender or the Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto.
This indemnification shall be made within 30 days from the date such Lender or
the Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Agent, at its address referred to in Section 8.02,
the original or a certified copy of a receipt evidencing payment thereof. In the
case of any payment hereunder or under the Notes by or on behalf of the Borrower
through an account or branch outside the United States or by or on behalf of the
Borrower by a payor that is not a United States person, if the Borrower
determines that no Taxes are payable in respect thereof, the Borrower shall
furnish, or shall cause such payor to furnish, to the Agent, at such address, an
opinion of counsel acceptable to the Agent stating that such payment is exempt
from Taxes. For purposes of this subsection (d) and subsection (e), the terms
"United States" and "United States person" shall have the meanings specified in
Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender and on the date of the Assignment
and Acceptance pursuant to which it becomes a Lender in the case of each other
Lender, and from time to time thereafter as requested in writing by the Borrower
(but only so long as such Lender remains lawfully able to do so), shall provide
each of the Agent and the Borrower with two original Internal Revenue Service
Form W-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
United States withholding tax on payments pursuant to this Agreement or the
Notes. 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
22
form or document such confidential information; however, such a Lender will not
be entitled to any payment or indemnification on account of any Taxes imposed by
the United States.
(f) Notwithstanding any provision to the contrary in this Agreement,
the Borrower will not be obligated to make payments on account of or indemnify
the Lenders or the Agents for any present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
or any present or future stamp or other documentary taxes or property taxes,
charges or similar levies that are neither Taxes nor Other Taxes.
(g) 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.
(h) In the event that a Lender demands payment from the Borrower for
amounts owing pursuant to subsection (a) or (b) of this Section 2.13, the
Borrower may, upon payment of such amounts and subject to the requirements of
Sections 8.04 and 8.07, substitute for such Lender another financial
institution, which financial institution shall be an Eligible Assignee and shall
assume the Commitments of such Lender and purchase the Revolving Credit Advances
held by such Lender in accordance with Section 8.07, provided, however, that (i)
no Default shall have occurred and be continuing, (ii) the Borrower shall have
satisfied all of its obligations in connection with the Loan Documents with
respect to such Lender, and (iii) if such assignee is not a Lender, (A) such
assignee is acceptable to the Agent and (B) the Borrower shall have paid the
Agent a $3,000 administrative fee.
(i) Notwithstanding any provision to the contrary in this Agreement,
in the event that a Lender that is not an Initial Lender and who purchased its
interest in this Agreement without the consent of the Borrower pursuant to
Section 8.07(a), seeks (i) payment of additional amounts pursuant to Section
2.13(a), (ii) payment of Other Taxes pursuant to Section 2.13(b), or (iii)
indemnification for Taxes or Other Taxes pursuant to Section 2.13(c), the amount
of any such payment or indemnification will be no greater than what it would
have been had the Initial Lender not transferred, assigned or sold its interest
in this Agreement.
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 of
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
23
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. Reserved.
SECTION 2.17. Noteless Agreement; Evidence of Indebtedness.
(a) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Revolving Credit Advance made by such Lender from
time to time, including the amounts of principal and interest payable and paid
to such Lender from time to time hereunder.
(b) The Agent shall also maintain accounts in which it will record
(i) the date and the amount of each Revolving Credit Advance made hereunder and
the Interest Period, if any, applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder, (iii) the effective date and amount of each
Assignment and Acceptance delivered to and accepted by it and the parties
thereto pursuant to Section 8.07, (iv) the amount of any sum received by the
Agent hereunder from the Borrower and each Lender's share thereof, and (v) all
other appropriate debits and credits as provided in this Agreement, including,
without limitation, all fees, charges, expenses and interest.
(c) The entries maintained in the accounts maintained pursuant to
clauses (a) and (b) above shall be prima facie evidence of the existence and
amounts of the obligations hereunder and under the Notes therein recorded;
provided, however, that the failure of the Agent or any Lender to maintain such
accounts or any error therein shall not in any manner affect the obligation of
the Borrower to repay such obligations in accordance with their terms.
(d) Any Lender may request that its Revolving Credit Advances be
evidenced by a promissory note representing its Revolving Credit Advances
substantially in the form of Exhibit A (each, a "Note"). In such event, the
Borrower shall prepare, execute and deliver to such Lender such Note payable to
the order of such Lender. Thereafter, the Revolving Credit Advances evidenced by
each such Note and interest thereon shall at all times (including after any
assignment pursuant to Section 8.07) be represented by one or more Notes payable
to the order of the payee named therein or any assignee pursuant to Section
8.07, except to the extent that any such Lender or assignee subsequently returns
any such Note for cancellation and requests that
24
such Revolving Credit Advances once again be evidenced as described in clauses
(a) and (b) above.
SECTION 2.18. Extension of Termination Date. No earlier than sixty (60)
days and no later than thirty (30) days prior to the Termination Date then in
effect, the Borrower shall have the option to request an extension of the
Termination Date for an additional one-year period; provided that no more than
two (2) of such one-year extensions shall be permitted hereunder. Any election
by a Lender to extend its Commitment will be at such Lender's sole discretion.
Subject to the Agent's receipt of written consents to such extension from the
Required Lenders, and so long as no Default has occurred and is continuing, the
Termination Date shall be extended for an additional one-year period for each
consenting Lender; provided that each non-consenting Lender shall be required
only to complete its Commitment up to the previously effective Termination Date
(without giving effect to such extension). All Obligations and other amounts
payable hereunder to such non-consenting Lender shall become due and payable by
the Borrower on the previously effective Termination Date (without giving effect
to such extension) and the aggregate Commitments shall be reduced by the total
Commitments of all non-consenting Lenders expiring on such previously effective
Termination Date (without giving effect to such extension); provided, however,
that the Borrower may in accordance with Section 8.07 substitute for such
non-consenting Lenders one or more Eligible Assignees (including, without
limitation, any existing Lenders) which shall assume the Commitments of such
non-consenting Lenders and purchase the outstanding Revolving Credit Advances
held by such non-consenting Lenders. If the consenting Lenders and any new
Lenders are willing to commit amounts that, in the aggregate, exceed the
Commitments of the non-consenting Lenders, the Borrower and the Agent shall
allocate the Commitments of the non-consenting Lenders among such consenting
Lenders and new Lenders.
ARTICLE III:
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of this Agreement.
This Agreement shall become effective on and as of the date hereof (the
"Effective Date"), provided that the following conditions precedent have been
satisfied on such date:
(a) There shall have occurred no Material Adverse Change since
December 31, 2004, except as shall have been disclosed or contemplated in the
SEC Reports.
(b) 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.
(c) All governmental and third party consents, authorizations 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 Agents that restrains,
prevents or imposes materially adverse conditions upon the transactions
contemplated by the Loan Documents.
25
(d) The Borrower shall have notified each Lender and the Agent in
writing as to the proposed Effective Date.
(e) 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.
(f) On the Effective Date, the following statements shall be true
and the Agent shall have received for the account of each Lender a certificate,
substantially in the form of Exhibit D hereto, signed on behalf of the Borrower
by a duly authorized Financial Officer of the Borrower, dated the Effective
Date, stating, among other things, that:
(i) The representations and warranties contained in Section
4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes
a Default.
(g) 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) Favorable opinion letters of X. X. Xxxxxx, the General
Counsel of the Borrower and Hunton & Xxxxxxxx LLP, counsel to the
Borrower, substantially in the form of Exhibits E-1 and E-2,
respectively, hereto and as to such other matters as any Lender
through the Agent may reasonably request.
(v) Evidence satisfactory to the Agent that (x) all loans and
letters of credit (other than the letters of credit, if any,
identified on Schedule II to the DTE Credit Agreement or Schedule II
to the Amended and Restated DTE Credit Agreement) outstanding and
other fees and amounts owed to the lenders or agents under the
Terminating Agreements have been paid in full and (y) the
Terminating Agreements have been terminated.
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
26
to the conditions precedent that the Effective Date shall have occurred and on
the date of such Borrowing: (a) the following statements shall be true (and each
of the giving of the applicable Notice of Borrowing and the acceptance by the
Borrower of the proceeds of such Borrowing shall constitute a representation and
warranty by the Borrower that on the date of such Borrowing such statements are
true):
(i) the representations and warranties contained in Section
4.01 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; provided,
that such condition shall not apply to (x) the last sentence of
Section 4.01(e), (y) Section 4.01(f) or (z) from and after the
repeal of the 1935 Act on February 8, 2006, Section 4.01(o),
(ii) after giving effect to the application of the proceeds of
all Borrowings on such date (together with any other resources of
the Borrower applied together therewith), 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
(iii) the Borrower has not received notice from the Agent on
or prior to the date of such Borrowing that a mandatory prepayment
is required under Section 2.09(b) (other than any such notice that
has been withdrawn in writing by the Agent);
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
27
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 consent, 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 any Loan Document to which it is a party.
(d) This Agreement has been, and each of the Notes when delivered
hereunder will have been, duly executed and delivered by the Borrower. This
Agreement is, and each of the Notes when delivered hereunder will be, the legal,
valid and binding obligation of the Borrower enforceable against the Borrower in
accordance with their respective terms, subject to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors rights generally.
(e) The Audited Statements of the Borrower and the Unaudited
Statements of the Borrower, copies of each of which have been furnished to each
Lender, fairly present, subject in the case of Unaudited Statements to normal
year-end audit adjustments, the Consolidated financial condition, results of
operations and cash flows of the relevant Persons and entities, as at the dates
and for the periods therein indicated, all in accordance with generally accepted
accounting principles consistently applied as in effect on the date of such
Audited Statements or Unaudited Statements, as applicable. Since December 31,
2004, there has been no Material Adverse Change, except as shall have been
disclosed or contemplated in the SEC Reports.
(f) There is no pending or threatened action, suit, investigation,
litigation or proceeding, including, without limitation, any Environmental
Action, affecting the Borrower or any of its Significant Subsidiaries 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 has 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 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
material 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.
28
(i) Schedule B (Actuarial Information) to the most recent annual
report (Form 5500 Series) for each Plan, copies of which have been filed with
the Internal Revenue Service, is complete and accurate and fairly presents the
funding status of such Plan, and since the date of such Schedule B there has
been no material adverse change in such funding status.
(j) Neither the Borrower nor any ERISA Affiliate has incurred or is
reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan.
(k) Neither the Borrower nor any ERISA Affiliate has been notified
by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or has been terminated, within the meaning of Title IV of ERISA,
and no such Multiemployer Plan is reasonably expected to be in reorganization or
to be terminated, within the meaning of Title IV of ERISA.
(l) Except as set forth in the financial statements referred to in
subsection (e) above, the Borrower and its Subsidiaries have no material
liability with respect to "expected post retirement benefit obligations" within
the meaning of Statement of Financial Accounting Standards No. 106.
(m) The Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve System),
and no proceeds of any Revolving Credit Advance will be used to purchase or
carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock; and after applying the proceeds of each
Revolving Credit Advance hereunder, margin stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve System)
constitutes less than twenty-five percent (25%) of the value of those assets of
the Borrower and its Subsidiaries which are subject to any limitation on sale or
pledge, or any other restriction hereunder.
(n) Neither the Borrower nor any of its Subsidiaries is, or after
the making of any Revolving Credit Advance or the application of the proceeds or
repayment thereof, or the consummation of any of the other transactions
contemplated hereby, will be, an "investment company", or an "affiliated person"
of, or "promoter" or "principal underwriter" for, an "investment company"
(within the meaning of the Investment Company Act of 1940, as amended).
(o) The Borrower is a "public utility company" and a "subsidiary
company" of MichCon Holdings, Inc., which is a "holding company" and a
"subsidiary company" of Enterprises, which is a "holding company" and a
"subsidiary company" of DTE Energy, which is a "holding company" as such terms
are defined in the 1935 Act, and such "holding companies" and the Borrower are
currently exempt from the provisions of the 1935 Act (except Section 9 thereof).
ARTICLE V:
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Revolving Credit
Advance shall remain unpaid or any Lender shall have any Commitment hereunder,
the Borrower will:
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(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply with all applicable laws, rules, regulations and orders,
such compliance to include, without limitation, compliance with ERISA and
Environmental Laws, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent, all
taxes, assessments and governmental charges or levies imposed upon it or upon
its property that, if not paid, could be reasonably expected to result in a
Material Adverse Effect; provided, however, that neither the Borrower nor any of
its Subsidiaries shall be required to pay or discharge any such tax, assessment,
charge or claim that is being contested in good faith and by proper proceedings
and as to which appropriate reserves are being maintained, unless and until any
Lien resulting therefrom attaches to its property and becomes enforceable
against its other creditors.
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar properties
(including customary self-insurance) in the same general areas in which the
Borrower or such Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve and maintain
its corporate existence, rights (charter and statutory) and franchises;
provided, however, that the Borrower shall not be required to preserve any right
or franchise if the Board of Directors of the Borrower or such Subsidiary shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Borrower and that the loss thereof is not disadvantageous in
any material respect to the Borrower and its Subsidiaries taken as a whole or
the ability of the Borrower to meet its obligations hereunder.
(e) Visitation Rights. At any reasonable time and from time to time,
permit the Agent or any of the Lenders or any agents or representatives thereof,
to examine and make copies of and abstracts from the records and books of
account of, and visit the properties of, the Borrower and any of its Significant
Subsidiaries, and to discuss the affairs, finances and accounts of the Borrower
and any of its 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:
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(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, Consolidated
financial statements, including the notes thereto, of the Borrower
and its Consolidated Subsidiaries for such fiscal year, containing
the Consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such fiscal year and the 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 any other independent public
accounting firms which (x) as of the date of this Agreement is one
of the "big four" accounting firms or (y) is reasonably acceptable
to the Required Lenders;
(iii) together with the financial statements required under
clauses (i) or (ii) above, a compliance certificate in substantially
the form of Exhibit F signed by a Financial Officer of the Borrower
showing the then-current information and calculations necessary to
determine 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) 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 (it being understood and agreed
that the Borrower and any of its Subsidiaries shall only be required
to prepare and file such reports and registration statements to the
extent provided by applicable law); and
(vi) such other information respecting the Borrower or any of
its Subsidiaries as any Lender through the Agent may from time to
time reasonably request.
Information required to be delivered pursuant to clauses (i), (ii) or (v)
above shall be deemed to have been delivered on the date on which the Borrower
has posted such information on the Internet at xxx.xxxxxxxxx.xxx (or any
successor or replacement website thereof), which website includes an option to
subscribe to a free service alerting subscribers by email of new Securities and
Exchange Commission filings at xxxx://xxx.xxxxxxxxx-
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xx.xxx/xxxxx/xx_xxxx.xxxxx?xxxxxxxXXX&xxxxxxx0000, or at xxx.xxx.xxx or at
another website identified in a notice to the Lenders and accessible by the
Lenders without charge.
SECTION 5.02. Negative Covenants. At all times on and after the Effective
Date so long as any Revolving Credit Advance shall remain unpaid or any Lender
shall have any Commitment hereunder, the Borrower will not:
(a) Liens, Etc. Create, incur, or suffer to exist any Lien in, of or
on the Property of the Borrower or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges or
levies on its Property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are being
contested in good faith and by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside
on its books;
(ii) Liens imposed by law, such as carriers', warehousemen's
and mechanics' liens and other similar liens arising in the ordinary
course of business which secure payment of obligations not more than
sixty (60) days past due or which are being contested in good faith
by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books;
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or
other social security or retirement benefits, or similar
legislation;
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature
generally existing with respect to properties of a similar character
and which do not in any material way affect the marketability of the
same or interfere with the use thereof in the business of the
Borrower or its Subsidiaries;
(v) Liens described in the SEC Reports;
(vi) Liens pursuant to the Borrower's Indenture of Mortgage
and Deed of Trust, dated as of March 1, 1944, as restated as of July
15, 1989, as supplemented, as described therein;
(vii) Liens pursuant to the Borrower's Senior Indenture, dated
as of June 1, 1998, as supplemented, as described therein, in
connection with the issuance of debt securities secured by mortgage
bonds; and
(viii) Liens, including, without limitation, Liens arising in
connection with a Receivables Purchase Facility, securing Debt of
the Borrower (other than Debt of the Borrower owed to any
Subsidiary) and/or securing Debt of the Borrower's Subsidiaries
(other than Debt of any Subsidiary owed to the Borrower or any other
Subsidiary), in an aggregate outstanding amount not to exceed ten
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percent (10%) of the consolidated assets of the Borrower and its
Subsidiaries at any time.
(b) Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to, any Person, or permit any Significant
Subsidiary to do so, except that (i) any Significant Subsidiary may merge or
consolidate with or into any other Significant Subsidiary, (ii) any Significant
Subsidiary may merge into or dispose of assets to the Borrower, and (iii) the
Borrower may merge or consolidate with (a) DECO, so long as the Borrower shall
be the surviving entity or DECO shall expressly assume the obligations under
this Agreement or (b) any other Person so long as the Borrower shall be the
surviving entity and has, after giving effect to such merger or consolidation,
senior unsecured Debt outstanding rated at least BBB- by S&P and Baa3 by
Xxxxx'x; provided, in each case, that no Default shall have occurred and be
continuing at the time of such proposed transaction or would result therefrom.
(c) Change in Nature of Business. Make, or permit any of its
Significant Subsidiaries to make, any material change in the nature of its
business as carried on the date hereof, other than as disclosed or contemplated
in the SEC Reports.
(d) Accounting Changes. Make or permit any change in accounting
policies or reporting practices, except as required or permitted by generally
accepted accounting principles; or permit any of its Subsidiaries to make or
permit any change in accounting policies or reporting practices if, as a result
of such change, the Borrower shall fail to maintain a system of accounting
established and administered in accordance with 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 30 days after written
notice thereof shall have been given to the Borrower by the Agent or any Lender;
or
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(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 $50,000,000 in the aggregate (but
excluding Debt outstanding hereunder and Nonrecourse Debt) of the Borrower or
such Significant Subsidiary (as the case may be), when the same becomes due and
payable (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such Debt;
or any other event shall occur or condition shall exist under any agreement or
instrument relating to any such Debt and shall continue after the applicable
grace period, if any, specified in such agreement or instrument, if the effect
of such event or condition is to accelerate, or to permit the acceleration of,
the maturity of such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid or redeemed (other than by a regularly
scheduled required prepayment or redemption), purchased or defeased, or an offer
to prepay, redeem, purchase or defease such Debt shall be required to be made,
in each case prior to the stated maturity thereof; or
(e) The Borrower or any of its Significant Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general assignment for
the benefit of creditors; or any proceeding shall be instituted by or against
the Borrower or any of its Significant Subsidiaries seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for it or for any
substantial part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it), either such proceeding shall
remain undismissed or unstayed for a period of 60 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 $50,000,000 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 30 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) (i) any Person or "group" (within the meaning of Section 13(d)
or 14(d) of the Securities Exchange Act of 1934, as amended) shall either (A)
acquire beneficial ownership of more than 25% of any outstanding class of common
stock of DTE Energy having ordinary voting power in the election of directors of
DTE Energy, or (B) obtain the power (whether or not exercised) to elect a
majority of DTE Energy's directors, or (ii) DTE Energy shall at any time cease
to hold directly or indirectly 100% of the Voting Stock of the Borrower; or
(h) 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
34
of $50,000,000 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
(i) The Borrower and its Subsidiaries, on a Consolidated basis,
shall, as of the last day of any fiscal quarter of the Borrower, have 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 (excluding all Nonrecourse Debt) in excess of .65:1; or
(j) 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; or
(k) Any "Event of Default" shall have occurred and be continuing
under (and as defined in) the Amended and Restated Five-Year Agreement;
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
35
that is contrary to this Agreement or applicable law. The Agent agrees to give
to each Lender prompt notice of each notice given to it by the Borrower pursuant
to the terms of this Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with this Agreement,
except for its or their own gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, the Agent: (i) may treat the
payee in respect of any Revolving Credit Advance as the owner thereof until the
Agent receives and accepts an Assignment and Acceptance entered into by the
Lender that is the payee in respect of such Revolving Credit Advance, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 8.07;
(ii) may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii) makes
no warranty or representation to any Lender and shall not be responsible to any
Lender for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement; (iv) shall not have any duty
to ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of this Agreement on the part of the Borrower or
to inspect the property (including the books and records) of the Borrower; (v)
shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, any Loan Document or any other
instrument or document furnished pursuant hereto; and (vi) shall incur no
liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier,
telegram or telex) believed by it to be genuine and signed or sent by the proper
party or parties.
SECTION 7.03. JPMorgan and Affiliates. With respect to its Commitment, the
Revolving Credit Advances made by it and any Note issued to it, JPMorgan 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 JPMorgan in its
individual capacity. JPMorgan 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 JPMorgan 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.
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SECTION 7.05. Indemnification. The Lenders agree to indemnify the Agent
(to the extent not reimbursed by the Borrower), ratably according to the
respective principal amounts of their respective Revolving Credit Advances (or
if no Revolving Credit Advances are at the time outstanding or if any Revolving
Credit Advances are owing to Persons that are not Lenders, ratably according to
the respective amounts of their Commitments), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the Agent in any way relating to or
arising out of any Loan Document or any action taken or omitted by the Agent
under any Loan Document, provided that no Lender shall be liable for any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the Agent's
gross negligence or willful misconduct. Without limitation of the foregoing,
each Lender agrees to reimburse the Agent promptly upon demand for its ratable
share of any out-of-pocket expenses (including reasonable 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 $500,000,000. 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.
SECTION 7.07. Co-Syndication Agents and Co-Documentation Agents. None of
the Lenders identified in this Agreement as a Co-Syndication Agent or a
Co-Documentation Agent shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such. Without limiting the foregoing, none of such Lenders shall have
or be deemed to have a fiduciary relationship with any Lender. Each Lender
hereby makes the same acknowledgments with respect to such Lenders as it makes
with respect to the Agent in Section 7.04.
ARTICLE VIII:
MISCELLANEOUS
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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 affected thereby, 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) 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, (f) alter the manner in which payments
or prepayments of principal, interest or other amounts hereunder shall be
applied or shared as among the Lenders or Types of Revolving Credit Advances, or
(g) 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; and provided further that no amendments,
consents or waivers are required to effectuate the increases in Commitments
pursuant to Section 2.04(c) except as provided in such Section.
SECTION 8.02. Notices, Etc.
(a) All notices and other communications provided for
hereunder shall be in writing or confirmed in writing (including telecopier
communication) and mailed, telecopied or delivered, if to the Borrower, at its
address at 0000 0xx Xxxxxx, Xxxxxxx, XX 00000, Attention: Treasurer; if to any
Lender, at its Domestic Lending Office; and if to the Agent, at its address at
0000 Xxxxxx 00xx Xxxxx, Xxxxxxx, XX 00000, Attention: Xxxxxx Xxxx; 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 or telecopied, be effective when deposited in the mails or telecopied,
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.
(b) (i) Except as otherwise provided in Section 5.01(h), the
Borrower shall provide to the Agent all information, documents and other
materials that such Person is obligated to furnish to the Agent pursuant to this
Agreement and the other Loan Documents, including, without limitation, all
notices, requests, financial statements, financial and other reports,
certificates and other information materials, but excluding any such
communication that (i) relates to a Notice of Borrowing or other request for a
new, or a conversion of an existing, Borrowing or other extension of credit
(including any election of an interest rate or Interest Period relating
thereto), (ii) relates to the payment of any principal or other amount due
38
hereunder prior to the scheduled date therefor, (iii) provides notice of any
Default or Event of Default hereunder or (iv) is required to be delivered to
satisfy any condition precedent to the effectiveness of this Agreement and/or
any Borrowing or other extension of credit hereunder (all such non-excluded
communications being referred to herein collectively as "Communications"), by
transmitting the Communications in an electronic/soft medium in a format
acceptable to the Agent to such electronic mail address as the Agent shall
identify to the Borrower. In addition, the Borrower shall continue to provide
the Communications to the Agent in the manner specified in this Agreement but
only to the extent requested by the Agent. The Borrower further agrees that the
Agent may make the Communications available to the Lenders by posting the
Communications on Intralinks, or a substantially similar electronic transmission
system mutually agreeable to the Agent and the Borrower (the "Platform").
Nothing in this Section 8.02(b) shall prejudice the right of the Agent to give
any notice or other communication pursuant hereto or to any other Loan Document
in any other manner specified herein or therein.
(ii) The Agent agrees that the receipt of the
Communications by the Agent at its e-mail address set forth in
clause (i) above shall constitute effective delivery of the
Communications to the Agent for purposes of each Loan
Document. The Borrower agrees that e-mail notice to it (at the
address provided pursuant to the next sentence and deemed
delivered as provided in subclause (iii) below) specifying
that Communications have been posted to the Platform shall
constitute effective delivery of such Communications to such
Person under the Loan Documents. The Borrower agrees (A) to
notify the Agent in writing (including by electronic
communication) from time to time to ensure that the Agent has
on record an effective e-mail address for such Person to which
the foregoing notices may be sent by electronic transmission
and (B) that the foregoing notices may be sent to such e-mail
address.
(iii) Each party hereto agrees that any electronic
communication referred to in this clause (b) shall be deemed
delivered upon the posting of a record of such Communication
as "sent" in the e-mail system of the sending party or, in the
case of any such Communication to the Agent, upon the posting
of a record of such Communication as "received" in the e-mail
system of the Agent; provided, however, that if such
Communication is received by the Agent after the normal
business hours of the Agent, such Communication shall be
deemed delivered at the opening of business on the next
Business Day for the Agent; provided, further, that in the
event that the Agent's e-mail system shall be unavailable for
receipt of any Communication, Borrower may deliver such
Communication to the Agent in a manner mutually agreeable to
the Agent and the Borrower.
(iv) The Borrower acknowledges and agrees that the
distribution of the Communications and other material through
an electronic medium is not necessarily secure and that there
are confidentiality and other risks associated with such
distribution. THE BORROWER FURTHER ACKNOWLEDGES AND AGREES AS
FOLLOWS: (A) THE PLATFORM IS PROVIDED "AS IS" AND "AS
AVAILABLE"; (B) JPMORGAN DOES NOT WARRANT THE ACCURACY OR
COMPLETENESS OF THE COMMUNICATIONS, OR THE
39
ADEQUACY OF THE PLATFORM AND EXPRESSLY DISCLAIMS LIABILITY
FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS; AND (C) NO
WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM
VIRUSES OR OTHER CODE DEFECTS, IS MADE BY JPMORGAN IN
CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM.
(v) This clause (b) shall terminate on the date that
neither JPMorgan nor any of its Affiliates is the Agent under
this Agreement.
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
the 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 the Loan Documents 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 Loan Documents, any of the transactions contemplated
herein or therein or the actual or proposed use of the proceeds of the Revolving
Credit Advances or (ii) the actual or alleged presence of Hazardous Materials on
any property of the Borrower or any of its Subsidiaries or any Environmental
Action relating in any way to the Borrower or any of its Subsidiaries, in each
case whether or not such investigation, litigation or proceeding is brought
40
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;
provided that upon receipt of notice of any such matter by a representative of
the Agent or any Lender, as applicable, having primary responsibility for the
relationship between the Borrower and the Agent or such Lender, as applicable,
the Agent or such Lender, as applicable, shall promptly notify the Borrower to
the extent permitted by applicable law. The Borrower shall have no liability for
any settlement effected without its prior written consent, which consent shall
not be unreasonably withheld or delayed. 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 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
41
Lender and its Affiliates under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off) that such
Lender and its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become effective
(other than Section 2.01, which shall only become effective upon satisfaction of
the conditions precedent set forth in Section 3.01) when it shall have been
executed by the Borrower and the Agent and when the Agent shall have been
notified by each Initial Lender that such Initial Lender has executed it and
thereafter shall be binding upon and inure to the benefit of the Borrower, the
Agent and each Lender and their respective successors and assigns, except that
the Borrower shall not have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Lenders to any Person.
SECTION 8.07. Assignments, Designations and Participations. (a) Each
Lender may (i) with the prior consent of the Agent (which consent shall not be
unreasonably withheld and which consent shall not be required in the event of an
assignment or grant pursuant to Sections 8.07(g) or (h)) and (ii) for so long as
no Default has occurred and is continuing, with the consent of the Borrower
(which consent shall not be unreasonably withheld and which consent shall not be
required in the event of an assignment or grant pursuant to Sections 8.07(g) or
(h)), 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 (A) 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 (if any) under the Amended and Restated
Five-Year Agreement (including, without limitation, all or a portion of its
"Commitment", "Revolving Credit Advances" owed to it and any "Note" or "Notes"
held by it under (and as each such term is defined in) the Amended and Restated
Five-Year Agreement), (B) 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, (C) each such assignment
shall be to an Eligible Assignee, and (D) 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, (1) 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 (2) 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).
42
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with, this
Agreement or any other instrument or document furnished pursuant hereto; (ii)
such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under this
Agreement or any other instrument or document furnished pursuant hereto; (iii)
such assignee confirms that it has received a copy of this Agreement, together
with copies of the financial statements referred to in Section 4.01 and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance; (iv)
such assignee will, independently and without reliance upon the Agent, such
assigning Lender or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement; (v) such assignee
confirms that it is an Eligible Assignee; (vi) such assignee appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Note or Notes subject to such assignment, the Agent
shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower. Within five Business Days
after the Borrower's receipt of such 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
43
Register as a Lender hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks
or other entities (other than the Borrower or any of its Affiliates) in or to
all or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Revolving Credit
Advances owing to it and any Note or Notes held by it); provided, however, that
(i) such Lender's obligations under this Agreement (including, without
limitation, its Commitment to the Borrower hereunder) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) such Lender shall remain the owner of
such Revolving Credit Advances for all purposes of this Agreement, (iv) the
Borrower, the Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of this Agreement or any Note, or any consent to any departure by the
Borrower therefrom, except to the extent that such amendment, waiver or consent
would (A) reduce the principal of, or interest on, the Revolving Credit Advances
or any fees or other amounts payable hereunder, or (B) increase the Commitments,
in each case to the extent subject to such participation, or postpone any date
fixed for any payment of principal of, or interest on, the Revolving Credit
Advances or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation. Each participant shall be entitled to the
benefits and subject to the exclusions, in each case, as if it were a Lender, 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 (i) such participant complies with
the requirements of Section 2.13(e) and (ii) 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 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.
(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
44
and the Borrower, the option to provide to the Borrower all or any part of any
Revolving Credit Advance that such Designating Lender would otherwise be
obligated to make to the Borrower pursuant to this Agreement; provided that (i)
nothing herein shall constitute a commitment by any SPV to make any Revolving
Credit Advance, (ii) if an SPV elects not to exercise such option or otherwise
fails to provide all or any part of such Revolving Credit Advance, the
Designating Lender shall be obligated to make such Revolving Credit Advance
pursuant to the terms hereof, (iii) the Designating Lender shall remain liable
for any indemnity or other payment obligation with respect to its Commitment
hereunder and (iv) no SPV or Designating Lender shall be entitled to receive any
greater amount under this Agreement than the Designating Lender would have been
entitled to receive had the Designating Lender not otherwise granted such SPV
the option to provide any Revolving Credit Advance to the Borrower. The making
of a Revolving Credit Advance by an SPV hereunder shall utilize the Commitment
of the Designating Lender to the same extent, and as if, such Revolving Credit
Advance were made by such Designating Lender.
(i) Each party hereto hereby acknowledges and agrees that no
SPV shall have the rights of a Lender hereunder, such rights being retained by
the applicable Designating Lender. Accordingly, and without limiting the
foregoing, each party hereby further acknowledges and agrees that no SPV shall
have any voting rights hereunder and that the voting rights attributable to any
Revolving Credit Advance made by an SPV shall be exercised only by the relevant
Designating Lender and that each Designating Lender shall serve as the
administrative agent and attorney-in-fact for its SPV and shall on behalf of its
SPV receive any and all payments made for the benefit of such SPV and take all
actions hereunder to the extent, if any, such SPV shall have any rights
hereunder. No additional Note shall be required to evidence the Revolving Credit
Advances or portion thereof made by an SPV; and the related Designating Lender
shall be deemed to hold its Note or Notes, if any, as administrative agent for
such SPV to the extent of the Revolving Credit Advances or portion thereof
funded by such SPV. In addition, any payments for the account of any SPV shall
be paid to its Designating Lender as administrative agent for such SPV.
(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
45
any way relating to or arising as a consequence of any such forbearance or delay
in the initiation of any such proceeding against its SPV.
(k) In addition, notwithstanding anything to the contrary
contained in subsection 8.07(h), (i), (j) or (k) or otherwise in this Agreement,
any SPV may (i) at any time and without paying any processing fee therefor,
assign or participate all or a portion of its interest in any Revolving Credit
Advances to the Designating Lender or to any financial institutions providing
liquidity and/or credit support to or for the account of such SPV to support the
funding or maintenance of Revolving Credit Advances and (ii) disclose on a
confidential basis any non-public information relating to its Revolving Credit
Advances to any rating agency, commercial paper dealer or provider of any
surety, guarantee or credit or liquidity enhancements to such SPV. Subsection
8.07(h), (i), (j) or (k) may not be amended without the written consent of any
Designating Lender affected thereby.
SECTION 8.08. Confidentiality. Neither the Agent nor any Lender shall
disclose any Confidential Information to any other Person without the consent of
the Borrower, other than (a) to the Agent's or such Lender's Affiliates and
their officers, directors, employees, agents and advisors and, as contemplated
by Section 8.07(f), to actual or prospective assignees and participants, and
then only on a confidential basis, (b) as required by any law, rule or
regulation or judicial process, (c) to any rating agency when required by it,
provided that, prior to any such disclosure, such rating agency shall undertake
to preserve the confidentiality of any Confidential Information relating to the
Borrower received by it from the Agent or such Lender, (d) as requested or
required by any state, federal or foreign authority or examiner regulating
banks, other financial institutions or banking, (e) in connection with the
exercise of any remedies hereunder or any suit, action or proceeding relating to
this Agreement or the enforcement of rights hereunder and (f) 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.
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; Integration. 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. This Agreement and any separate letter agreement
with respect to fees payable to the Agent or confidential information (the
latter of which shall apply solely to information provided prior to the date
hereof) constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof.
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
46
this Agreement or the Notes, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent permitted by law,
in such federal court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law. Nothing in this Agreement shall affect any right that any party may
otherwise have to bring any action or proceeding relating to this Agreement or
the Notes in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the Notes
in any New York State or federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
SECTION 8.12. Waiver of Jury Trial. Each of the Borrower, the Agent and
the Lenders hereby irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to this Agreement or the Notes or the actions of the
Agent or any Lender in the negotiation, administration, performance or
enforcement thereof.
SECTION 8.13. USA Patriot Act Notification. The following notification
is provided to the Borrower pursuant to Section 326 of the USA Patriot Act of
2001, 31 U.S.C. Section 5318:
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To help the
government fight the funding of terrorism and money laundering activities,
Federal law requires all financial institutions to obtain, verify, and record
information that identifies each person or entity that opens an account,
including any deposit account, treasury management account, loan, other
extension of credit, or other financial services product. What this means for
the Borrower: When the Borrower opens an account, the Agent and the Lenders will
ask for the Borrower's name, tax identification number, business address, and
other information that will allow the Agent and the Lenders to identify the
Borrower. The Agent and the Lenders may also ask to see the Borrower's legal
organizational documents or other identifying documents.
REMAINDER OF PAGE INTENTIONALLY BLANK
47
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
MICHIGAN CONSOLIDATED GAS
COMPANY
By
------------------------
Name:
Title:
Borrower's FEIN: 00-0000000
Signature Page to
Michigan Consolidated Gas Company Five-Year Credit Agreement
Lenders
JPMORGAN CHASE BANK, N.A., as
Administrative Agent and as a Lender
By
------------------------
Name:
Title:
BARCLAYS BANK PLC, as Co-Syndication
Agent and as a Lender
By
------------------------
Name:
Title:
CITIBANK, N.A., as Co-Syndication Agent
and as a Lender
By
------------------------
Name:
Title:
Signature Page to
Michigan Consolidated Gas Company Five-Year Credit Agreement
BNP PARIBAS, as Co-Documentation Agent
and as a Lender
By
------------------------
Name:
Title:
By
------------------------
Name:
Title:
Signature Page to
Michigan Consolidated Gas Company Five-Year Credit Agreement
THE BANK OF NOVA SCOTIA, as
Co-Documentation Agent and as a
Lender
By
------------------------
Name:
Title:
By
------------------------
Name:
Title:
Signature Page to
Michigan Consolidated Gas Company Five-Year Credit Agreement
BANK OF AMERICA, N.A., as a Lender
By
------------------------
Name:
Title:
Signature Page to
Michigan Consolidated Gas Company Five-Year Credit Agreement
COMERICA BANK, as a Lender
By
------------------------
Name:
Title:
Signature Page to
Michigan Consolidated Gas Company Five-Year Credit Agreement
KEYBANK NATIONAL ASSOCIATION, as a
Lender
By
------------------------
Name:
Title:
Signature Page to
Michigan Consolidated Gas Company Five-Year Credit Agreement
THE ROYAL BANK OF SCOTLAND plc,
as a Lender
By
------------------------
Name:
Title:
Signature Page to
Michigan Consolidated Gas Company Five-Year Credit Agreement
UBS LOAN FINANCE LLC, as a Lender
By
------------------------
Name:
Title:
By
------------------------
Name:
Title:
Signature Page to
Michigan Consolidated Gas Company Five-Year Credit Agreement
WACHOVIA BANK, N.A., as a Lender
By
------------------------
Name:
Title:
Signature Page to
Michigan Consolidated Gas Company Five-Year Credit Agreement
THE BANK OF NEW YORK, as a Lender
By
------------------------
Name:
Title:
Signature Page to
Michigan Consolidated Gas Company Five-Year Credit Agreement
UNION BANK OF CALIFORNIA, N.A.,
as a Lender
By
------------------------
Name:
Title:
Signature Page to
Michigan Consolidated Gas Company Five-Year Credit Agreement
CREDIT SUISSE, CAYMAN ISLANDS BRANCH,
as a Lender
By
------------------------
Name:
Title:
By
------------------------
Name:
Title:
Signature Page to
Michigan Consolidated Gas Company Five-Year Credit Agreement
DEUTSCHE BANK AG NEW YORK BRANCH,
as a Lender
By
------------------------
Name:
Title:
By
------------------------
Name:
Title:
Signature Page to
Michigan Consolidated Gas Company Five-Year Credit Agreement
FIFTH THIRD BANK, A MICHIGAN
BANKING CORPORATION, as a
Lender
By
------------------------
Name:
Title:
Signature Page to
Michigan Consolidated Gas Company Five-Year Credit Agreement
UFJ BANK LIMITED, as a Lender
By
------------------------
Name:
Title:
Signature Page to
Michigan Consolidated Gas Company Five-Year Credit Agreement
MELLON BANK, N.A., as a Lender
By
------------------------
Name:
Title:
Signature Page to
Michigan Consolidated Gas Company Five-Year Credit Agreement
LASALLE BANK MIDWEST NATIONAL
ASSOCIATION, as a Lender
By
------------------------
Name:
Title:
Signature Page to
Michigan Consolidated Gas Company Five-Year Credit Agreement
MIZUHO CORPORATE BANK, LTD., as a Lender
By
------------------------
Name:
Title:
Signature Page to
Michigan Consolidated Gas Company Five-Year Credit Agreement
XXXXXX XXXXXXX BANK, as a Lender
By
------------------------
Name:
Title:
Signature Page to
Michigan Consolidated Gas Company Five-Year Credit Agreement
THE NORTHERN TRUST COMPANY, as a Lender
By
------------------------
Name:
Title:
Signature Page to
Michigan Consolidated Gas Company Five-Year Credit Agreement
SCHEDULE I
MICHIGAN CONSOLIDATED GAS COMPANY
APPLICABLE LENDING OFFICES
NAME OF INITIAL LENDER DOMESTIC LENDING OFFICE EURODOLLAR LENDING OFFICE COMMITMENT
--------------------------------- --------------------------------- ------------------------------- -------------------
JPMorgan Chase Bank, N.A. 0000 Xxxxxx, 00xx Xxxxx Same as Domestic Lending $ 15,367,038.00
Xxxxxxx, XX 00000 Office
Attention: Xxxxxx Xxxx
Telephone: (000)-000-0000
Facsimile: (000)-000-0000
--------------------------------- --------------------------------- ------------------------------- -------------------
Barclays Bank PLC 000 Xxxx Xxxxxx Same as Domestic Lending $ 15,367,038.00
Xxx Xxxx, XX 00000 Office
Attention: Xxxxxx Xxxxxx/
Xxxxx Xxxxxx
Telecopier: (000) 000-0000
--------------------------------- --------------------------------- ------------------------------- -------------------
Citibank, N.A. 000 Xxxxxxxxx Xx., 000 Xxxxxxxxx St., $ 15,367,038.00
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
--------------------------------- --------------------------------- ------------------------------- -------------------
BNP Paribas 000 Xxxxxxx Xxxxxx Same as Domestic Lending $ 10,398,056.00
Xxx Xxxx, XX 00000 Office
Attention: Xxxxxxxxxx Xxxxxxx
Telecopier: (000) 000-0000
--------------------------------- --------------------------------- ------------------------------- -------------------
The Bank of Nova Scotia 1 Liberty Plaza Same as Domestic Lending $ 10,398,056.00
Xxx Xxxx, XX 00000 Office
Attention: Xxxxxx Xx / Xxxxxx
Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
--------------------------------- --------------------------------- ------------------------------- -------------------
Bank of America, N.A. 000 Xxxx Xxxxxx Same as Domestic Lending $ 10,972,973.00
Xxxxxx, XX 00000 Office
Attention: Xxxxxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
--------------------------------- --------------------------------- ------------------------------- -------------------
Comerica Bank 000 Xxxxxxxx Xxx XX 0000 Same as Domestic Lending $ 10,398,056.00
Xxxxxxx, XX 00000 Office
Attention: Xxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
--------------------------------- --------------------------------- ------------------------------- -------------------
KeyBank National Association Mailcode: OH-01-27-0623 Same as Domestic Lending $ 10,398,056.00
000 Xxxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
--------------------------------- --------------------------------- ------------------------------- -------------------
The Royal Bank of Scotland, plc 000 Xxxx Xxxxxx Same as Domestic Lending $ 10,398,056.00
N.Y., NY 10178 Office
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
--------------------------------- --------------------------------- ------------------------------- -------------------
NAME OF INITIAL LENDER DOMESTIC LENDING OFFICE EURODOLLAR LENDING OFFICE COMMITMENT
--------------------------------- --------------------------------- ------------------------------- -------------------
UBS Loan Finance LLC 000 Xxxxxxxxxx Xxxxxxxxx Same as Domestic Lending $ 10,398,056.00
Xxxxxxxx, XX 00000 Office
Attention: Xxxxxx Xxxxx
Telecopier: (000) 000-0000
--------------------------------- --------------------------------- ------------------------------- -------------------
Wachovia Bank, N.A. 000 X. Xxxxxxx Xxxxxx Same as Domestic Lending $ 9,797,297.00
0xx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: XxXxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
--------------------------------- --------------------------------- ------------------------------- -------------------
The Bank of Xxx Xxxx Xxx Xxxx Xxxxxx Same as Domestic Lending $ 9,201,819.00
Xxx Xxxx, XX 00000 Office
Attention: Xxxxxxx Xxxxxxx,
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
--------------------------------- --------------------------------- ------------------------------- -------------------
Union Bank of California, N.A. Energy Capital Services Same as Domestic Lending $ 8,281,637.00
000 Xxxxx Xxxxxxx Xx., Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx, VP
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
--------------------------------- --------------------------------- ------------------------------- -------------------
Credit Suisse, Xxxxxx Xxxxxxx 00 Xxxxxxx Xxxxxx Same as Domestic Lending $ 6,441,273.00
Branch Xxx Xxxx, XX 00000 Office
Attention: Xxxxx Xx
Telecopier: (000) 000-0000
--------------------------------- --------------------------------- ------------------------------- -------------------
Deutsche Bank AG New York Branch 00 Xxxx Xxxxxx, 00xx Xxxxx Same as Domestic Lending $ 6,441,274.00
Xxx Xxxx, XX 00000 Office
Attention: Xxxxxx Xxxxx
Telecopier: (000) 000-0000
--------------------------------- --------------------------------- ------------------------------- -------------------
Fifth Third Bank, a Michigan c/o Madisonville Operations Same as Domestic Lending $ 5,521,092.00
Banking Xxxxxxxxxxx Xxxxxx Xxxxxx
XX 0X0X0X
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxxx
Telecopier: (000) 000-0000
--------------------------------- --------------------------------- ------------------------------- -------------------
UFJ Bank Limited 00 Xxxx 00xx Xxxxxx Same as Domestic Lending $ 4,600,911.00
Xxx Xxxx, XX 00000 Office
Attention: Xx. Xxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
--------------------------------- --------------------------------- ------------------------------- -------------------
Mellon Bank, N.A. 3 Mellon Center - Room 1203 Same as Domestic Lending $ 3,680,727.00
Xxxxxxxxxx, XX 00000 Office
Attention: Xxxxx Xxxxx
Telecopier: (000) 000-0000
--------------------------------- --------------------------------- ------------------------------- -------------------
LaSalle Bank Midwest N.A. 0000 X. Xxx Xxxxxx Xxxx Same as Domestic Lending $ 2,300,455.00
MO900-290 Xxxxxx
Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopier: (000) 000-0000
--------------------------------- --------------------------------- ------------------------------- -------------------
NAME OF INITIAL LENDER DOMESTIC LENDING OFFICE EURODOLLAR LENDING OFFICE COMMITMENT
--------------------------------- --------------------------------- ------------------------------- -------------------
Mizuho Corporate Bank, Ltd. 1800 Plaza Ten Same as Domestic Lending $ 2,300,455.00
Xxxxxx Xxxx, XX 00000 Office
Attention: Xxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
--------------------------------- --------------------------------- ------------------------------- -------------------
Xxxxxx Xxxxxxx Bank 0000 Xxxx Xxxx Xxxxxxxxx Same as Domestic Lending $ 2,300,455.00
Xxxxx 000 X Xxxxxx
Xxxx Xxxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telecopier: (000) 000-0000
--------------------------------- --------------------------------- ------------------------------- -------------------
The Northern Trust Company 00 Xxxxx XxXxxxx Xxxxxx Same as Domestic Lending $ 920,182.00
Xxxxxxx, XX 00000 Office
Attention: Xxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
--------------------------------- --------------------------------- ------------------------------- -------------------
TOTAL $ 181,250,000.00
--------------------------------- --------------------------------- ------------------------------- -------------------
PRICING SCHEDULE
LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V LEVEL VI
STATUS STATUS STATUS STATUS STATUS STATUS
--------------------- ------------ -------------- -------------- -------------- -------------- ---------------
Applicable
Percentage 0.090% 0.100% 0.125% 0.150% 0.200% 0.250%
--------------------- ------------ -------------- -------------- -------------- -------------- ---------------
Applicable Margin
(Eurodollar Rate) 0.210% 0.350% 0.425% 0.500% 0.800% 1.000%
--------------------- ------------ -------------- -------------- -------------- -------------- ---------------
Applicable
Utilization Fee 0.100% 0.100% 0.100% 0.100% 0.100% 0.100%
--------------------- ------------ -------------- -------------- -------------- -------------- ---------------
Applicable Margin
(Base Rate) 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
--------------------- ------------ -------------- -------------- -------------- -------------- ---------------
For the purposes of this Schedule, the following terms have the
following meanings, subject to the final paragraph of this Schedule:
"Level I Status" exists at any date if, on such date, the Borrower's
Xxxxx'x Rating is A3 or better or the Borrower's S&P Rating is A- or better.
"Level II Status" exists at any date if, on such date, (i) the
Borrower has not qualified for Level I Status and (ii) the Borrower's Xxxxx'x
Rating is Baa1 or better or the Borrower's S&P Rating is BBB+ or better.
"Level III Status" exists at any date if, on such date, (i) the
Borrower has not qualified for Level I Status or Level II Status and (ii) the
Borrower's Xxxxx'x Rating is Baa2 or better or the Borrower's S&P Rating is BBB
or better.
"Level IV Status" exists at any date if, on such date, (i) the
Borrower has not qualified for Level I Status, Level II Status or Level III
Status and (ii) the Borrower's Xxxxx'x Rating is Baa3 or better or the
Borrower's S&P Rating is BBB- or better.
"Level V Status" exists at any date if, on such date, (i) the
Borrower has not qualified for Level I Status, Level II Status, Level III Status
or Level IV Status and (ii) the Borrower's Xxxxx'x Rating is Ba1 or better or
the Borrower's S&P Rating is BB+ or better.
"Level VI Status" exists at any date if, on such date, the Borrower
has not qualified for Level I Status, Level II Status, Level III Status, Level
IV Status or Level V Status.
"Xxxxx'x Rating" means, at any time, the rating that is one level
below the rating issued by Xxxxx'x and then in effect with respect to the
Borrower's senior secured long-term debt securities without third-party credit
enhancement.
"S&P Rating" means, at any time, the rating that is one level below
the rating issued by S&P and then in effect with respect to the Borrower's
senior secured long-term debt securities without third-party credit enhancement.
"Status" means Level I Status, Level II Status, Level III Status,
Level IV Status, Level V Status or Level VI Status.
The Applicable Margin, Applicable Utilization Fee and Applicable
Percentage shall be determined in accordance with the foregoing table based on
the Borrower's Status as determined from its then-current Xxxxx'x and S&P
Ratings. The credit rating in effect on any date for the purposes of this
Schedule is that in effect at the close of business on such date. If at any time
the Borrower does not have both a Xxxxx'x Rating and an S&P Rating, Level VI
Status shall exist; provided, however, that if the credit rating system of
Xxxxx'x or S&P shall change, or if either such rating agency shall cease to be
in the business of rating corporate debt obligations, the Borrower and the
Lenders shall negotiate in good faith to amend this Schedule to reflect such
changed rating system or the unavailability of ratings from such rating agency
and, pending the effectiveness of any such amendment, the applicable Status for
the Borrower shall be the Borrower's Status most recently in effect prior to
such change or cessation.
Except as specifically provided above in this Schedule, in the event
that a split occurs between the two ratings, then the rating corresponding to
the higher of the two ratings shall apply. However, if the split is greater than
one level, then the pricing shall be based upon the rating one level above the
lower of the two ratings.
EXHIBIT A - FORM OF NOTE
U.S.$_______________ Dated: _______________, 200_
FOR VALUE RECEIVED, the undersigned, MICHIGAN CONSOLIDATED GAS
COMPANY, a Michigan corporation (the "Borrower"), HEREBY PROMISES TO PAY to the
order of _________________________ (the "Lender") for the account of its
Applicable Lending Office on the Termination Date (each as defined in the Credit
Agreement referred to below), the principal sum of U.S.$[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
Five-Year Credit Agreement dated as of October 17, 2005 (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 JPMorgan Chase Bank, N.A., as Agent for the Lender
and such other lenders outstanding on the 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 JPMorgan Chase Bank, N.A., as Agent, at 0000 Xxxxxx
00xx Xxxxx, Xxxxxxx, XX 00000, ABA/Routing No. 021 000 021, Account Name: Loan
Processing DP, Account No.: 000 000 0000, Attention: Xxxxxx Xxxx, 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.
MICHIGAN CONSOLIDATED GAS
COMPANY
By ______________________
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
DATE AMOUNT OF AMOUNT OF PRINCIPAL UNPAID NOTATION
ADVANCE PAID OR PREPAID PRINCIPAL MADE BY
BALANCE
------------ ------------------ --------------------- -------------- ------------------
------------ ------------------ --------------------- -------------- ------------------
------------ ------------------ --------------------- -------------- ------------------
------------ ------------------ --------------------- -------------- ------------------
EXHIBIT B - FORM OF NOTICE OF BORROWING
JPMorgan Chase Bank, N.A., as Agent for
the Lenders parties to the Credit Agreement referred to below
0000 Xxxxxx 00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxx
[Date]
Ladies and Gentlemen:
The undersigned, MICHIGAN CONSOLIDATED GAS COMPANY, refers to the
Five-Year Credit Agreement dated as of October 17, 2005 (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 JPMorgan Chase Bank, N.A., as Agent for said Lenders, and hereby
gives you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement
that the undersigned hereby requests a Borrowing under the Credit Agreement, and
in that connection sets forth below the information relating to such Borrowing
(the "Proposed Borrowing") as required by Section 2.02(a) of the Credit
Agreement:
(i) The Business Day of the Proposed Borrowing is _______________,
____.
(ii) The Type of Advances comprising the Proposed Borrowing is [Base
Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is
$_______________.
[(iv) The initial Interest Period for each Eurodollar Rate Advance
made as part of the Proposed Borrowing is _____ month[s].]
(v) [Wire transfer instructions].
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:
(i) 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; provided, that, the foregoing
certification shall not apply to the representations and warranties set
forth in (x) the last sentence of Section 4.01(e) of the Credit Agreement,
(y) Section 4.01(f) of the Credit Agreement and (z) from and after the
repeal of the 1935 Act on February 8, 2006, Section 4.01(o) of the Credit
Agreement;
(ii) after giving effect to the application of the proceeds of all
Borrowings on such date (together with any other resources of the Borrower
applied together therewith), 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; and
(iii) the Borrower has not received notice from the Agent on or
prior to the date of such Proposed Borrowing that a mandatory prepayment
is required under Section 2.09(b) of the Credit Agreement (other than any
such notice that has been withdrawn in writing by the Agent).
Very truly yours,
MICHIGAN CONSOLIDATED GAS COMPANY
By ______________________
Title: [Financial Officer]
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Five-Year Credit Agreement dated as of
October 17, 2005 (as amended or modified from time to time, the "Five-Year
Credit Agreement") and to the Second Amended and Restated Five-Year Credit
Agreement dated as of October 17, 2005 (as amended or modified from time to
time, the "Amended and Restated Five-Year Credit Agreement", and together with
the Five-Year Credit Agreement, the "Credit Agreements") each among Michigan
Consolidated Gas Company, a Michigan corporation (the "Borrower"), the Lenders
(as defined in each of the Credit Agreements) and JPMorgan Chase Bank, 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 Five-Year Credit Agreement as
of the date hereof (if any) equal to the percentage interest specified on
Schedule 1 hereto of all outstanding rights and obligations under the Five-Year
Credit Agreement, and (b) an interest in and to the Assignor's rights and
obligations under the Amended and Restated Five-Year Credit Agreement as of the
date hereof (if any) equal to the percentage interest specified on Schedule 1
hereto of all outstanding rights and obligations under the Amended and Restated
Five-Year Credit Agreement. After giving effect to such sale and assignment, the
Assignee's Commitment and the amount of the Revolving Credit Advances owing to
the Assignee under each of the Credit Agreements 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 either of the Credit
Agreements or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of either 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 either 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, as applicable, 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, as applicable; (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 applicable, 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, as applicable,
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, as applicable, 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, as applicable.
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, as applicable, and the Notes in respect of the interest assigned
hereby (including, without limitation, all payments of principal, interest,
Facility Fees and the Utilization Fee with respect thereto) to the Assignee. The
Assignor and Assignee shall make all appropriate adjustments in payments under
each of the Credit Agreements, as applicable, 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
Five-Year 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): $
Amended and Restated
Five-Year 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(2): $
[NAME OF ASSIGNOR], as Assignor
By ________________________________
Title:
Dated:
[NAME OF ASSIGNEE], as Assignee
By ________________________________
Title:
Dated:
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
----------
(1) This date should be no earlier than five Business Days after the delivery of
this Assignment and Acceptance to the Agent.
(2) This date should be no earlier than five Business Days after the delivery of
this Assignment and Acceptance to the Agent.
Accepted [and Approved](3) this
day of
__________________________, as Agent
By ________________________________
Title:
[Approved this [ ] day of ________
MICHIGAN CONSOLIDATED GAS COMPANY
By ________________________________
Title: ](4)
----------
(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 BY BORROWER
DTE ENERGY COMPANY
THE DETROIT EDISON COMPANY
MICHIGAN CONSOLIDATED GAS COMPANY
OFFICER'S CERTIFICATE
I, X. X. Xxxxxx, 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
Five-Year Credit Agreement, dated as of October 17, 2005, among DTE, the
financial institutions from time to time parties thereto as "Lenders" and
Citibank, N.A. ("Citibank"), as agent for said Lenders, (ii) the Five-Year
Credit Agreement, dated as of October 17, 2005, among DECO, the financial
institutions from time to time parties thereto as "Lenders" and Barclays Bank
PLC ("Barclays"), as agent for said Lenders, (iii) the Five-Year Credit
Agreement, dated as of October 17, 2005, among MichCon, the financial
institutions from time to time parties thereto as "Lenders" and JPMorgan Chase
Bank, N.A. ("JPMorgan"), as agent for said Lenders (the "MichCon Credit
Agreement"), (iv) the Second Amended and Restated Five-Year Credit Agreement,
dated as of October 17, 2005, among DTE, the financial institutions from time to
time parties thereto as "Lenders" and Citibank, as agent for said Lenders (the
"Amended and Restated DTE Credit Agreement"), (v) the Second Amended and
Restated Five-Year Credit Agreement, dated as of October 17, 2005, among DECO,
the financial institutions from time to time parties thereto as "Lenders" and
Barclays, as agent for said Lenders (the "Amended and Restated DECO Credit
Agreement"), and (vi) the Second Amended and Restated Five-Year Credit
Agreement, dated as of October 17, 2005, among MichCon, the financial
institutions from time to time parties thereto as "Lenders" and JPMorgan, as
agent for said Lenders (the "Amended and Restated MichCon Credit Agreement", and
together with the DTE Credit Agreement, the DECO Credit Agreement, the MichCon
Credit Agreement, the Amended and Restated DTE Credit Agreement, and the Amended
and Restated DECO Credit Agreement, the "Credit Agreements"), that the terms
defined in the Credit Agreements are used herein as therein defined and,
further, that:
1. The Effective Date shall be October 17, 2005.
2. The representations and warranties contained in Section 4.01 of each
of the Credit Agreements are true and correct on and as of the date
hereof.
3. No event has occurred and is continuing that constitutes a Default.
4. As of the date hereof, there are no loans or letters of credit
(other than the letters of credit, if any, identified on Schedule II
to the DTE Credit Agreement or Schedule II to the Amended and
Restated DTE Credit Agreement) outstanding under the Terminating
Agreements and all fees and amounts owed to the lender or agents
thereunder have been paid in full.
Dated as of the _____ day of __________, 2005.
DTE ENERGY COMPANY
THE DETROIT EDISON COMPANY
MICHIGAN CONSOLIDATED GAS COMPANY
By _____________________
Name: X. X. Xxxxxx
Title: Assistant Treasurer
EXHIBIT E-1 - FORM OF
OPINION OF GENERAL COUNSEL TO THE BORROWER
October 17, 2005
To each of the Lenders party to the
Credit Agreements defined below
DTE Energy Company
The Detroit Edison Company
Michigan Consolidated Gas Company
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(g)(iv) of
each of (i) the Five-Year Credit Agreement, dated as of October 17, 2005, among
DTE Energy Company ("DTE"), the Lenders party thereto, Citibank, N.A.
("Citibank"), as Administrative Agent, and Barclays Bank PLC ("Barclays") and
JPMorgan Chase Bank, N.A. ("JPMorgan"), as Co-Syndication Agents (the "DTE
Credit Agreement"), (ii) the Five-Year Credit Agreement, dated as of October 17,
2005, among The Detroit Edison Company ("DECO"), the Lenders party thereto,
Barclays, as Administrative Agent, and Citibank and JPMorgan, as Co-Syndication
Agents (the "DECO Credit Agreement"), (iii) the Five-Year Credit Agreement,
dated as of October 17, 2005, among Michigan Consolidated Gas Company
("MichCon"), the Lenders party thereto, JPMorgan, as Administrative Agent, and
Barclays and Citibank, as Co-Syndication Agents (the "MichCon Credit
Agreement"), (iv) the Second Amended and Restated Five-Year Credit Agreement,
dated as of October 17, 2005, among DTE, the Lenders party thereto, Citibank, as
Administrative Agent, and Barclays and JPMorgan, as Co-Syndication Agents (the
"Amended and Restated DTE Credit Agreement"), (v) the Second Amended and
Restated Five-Year Credit Agreement, dated as of October 17, 2005, among DECO,
the Lenders party thereto, Barclays, as Administrative Agent, and Citibank and
JPMorgan, as Co-Syndication Agents (the "Amended and Restated DECO Credit
Agreement"), and (vi) the Second Amended and Restated Five-Year Credit
Agreement, dated as of October 17, 2005, among MichCon, the Lenders party
thereto, JPMorgan, as Administrative Agent, and Barclays and Citibank, as
Co-Syndication Agents (the "Amended and Restated MichCon Credit Agreement", and
together with the DTE Credit Agreement, the DECO Credit Agreement, the MichCon
Credit Agreement, the Amended and Restated DTE Credit Agreement, and the Amended
and Restated DECO Credit Agreement, the "Credit Agreements"). Terms defined in
each Credit Agreement are used herein as therein defined.
I am the Associate General Counsel of DTE, and the Vice President
and General Counsel of both DECO and MichCon, and have acted as counsel for each
of the Borrowers in connection with the preparation, execution and delivery of
the Loan Documents.
In that connection, I, in conjunction with the members of my staff,
have examined:
(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 Bylaws of each of the Borrowers and all amendments thereto
(the "Bylaws").
(v) Certificates from the State of Michigan attesting to the
continued corporate existence and good standing of each of the Borrowers.
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 I 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 Borrower of the
Loan Documents to which it is party, and the consummation of the transactions
contemplated thereby, are within such Borrower's corporate powers, have been
duly authorized by all necessary corporate action, and do not contravene (i) the
Charters or the Bylaws of such Borrower or (ii) any law, rule or regulation
applicable to such Borrower, or (iii) any contractual restriction binding on or
affecting such Borrower.
3. No consent, 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, recordation,
filing or performance by each Borrower of the Loan Documents to which it is a
party, except in the case of DECO, the order of the Federal Energy Regulatory
Commission, which has been obtained.
4. Each respective Credit Agreement has been, and each of the
respective Notes when delivered will have been, duly executed and delivered on
behalf of the Borrower thereto.
5. Except as may have been disclosed to you in the SEC Reports, to
the best of my knowledge (after due inquiry) there are no pending or overtly
threatened actions or proceedings affecting any Borrower or any of its
respective Significant 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,
or enforceability of any Loan Documents to which such Borrower is a party 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, fraudulent
conveyance, reorganization, moratorium or laws 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.
I am a member of the Bar of the State of Michigan, and do not
express any opinion concerning any law other than the law of the State of
Michigan and the federal laws of the United States of America.
This opinion letter is rendered to you in connection with the
above-described transaction. This opinion letter may not be relied upon by you
for any other purpose, or relied upon by any other person or entity without my
prior written consent (provided, that this opinion letter may be furnished to
and relied upon by a subsequent assignee of, or participant under, the Credit
Agreements and a Note, if any, solely for the purpose of such assignment or
participation, subject to the assumptions, limitations and qualifications, set
forth herein, without any prior written consent). I undertake no duty to inform
you or any assignee or participant of events occurring subsequent to the date
hereof.
Very truly yours,
EXHIBIT E-2 - FORM OF
OPINION OF HUNTON & XXXXXXXX LLP
October 17, 2005
To each of the Lenders party to the
Credit Agreements defined below
DTE Energy Company
The Detroit Edison Company
Michigan Consolidated Gas Company
Ladies and Gentlemen:
This opinion is delivered to you pursuant to Section 3.01(g)(iv) of
each of (i) the Five-Year Credit Agreement, dated as of October 17, 2005, among
DTE Energy Company ("DTE"), the financial institutions from time to time parties
thereto as "Lenders" and Citibank, N.A. ("Citibank"), as Agent for said Lenders
(the "DTE Credit Agreement"), (ii) the Five-Year Credit Agreement, dated as of
October 17, 2005, among The Detroit Edison Company ("DECO"), the financial
institutions parties thereto as "Lenders" and Barclays Bank PLC ("Barclays"), as
agent for said Lenders (the "DECO Credit Agreement"), (iii) the Five-Year Credit
Agreement, dated as of October 17, 2005, among Michigan Consolidated Gas Company
("MichCon", and together with DTE and DECO, the "Borrowers"), the financial
institutions parties thereto as "Lenders" and JPMorgan Chase Bank, N.A.
("JPMorgan"), as agent for said Lenders (the "MichCon Credit Agreement"), (iv)
the Second Amended and Restated Five-Year Credit Agreement, dated as of October
17, 2005, among DTE, the financial institutions from time to time parties
thereto as "Lenders" and Citibank, as agent for said Lenders (the "Amended and
Restated DTE Credit Agreement"), (v) the Second Amended and Restated Five-Year
Credit Agreement, dated as of October 17, 2005, among DECO, the financial
institutions from time to time parties thereto as "Lenders" and Barclays, as
agent for said Lenders (the "Amended and Restated DECO Credit Agreement"), and
(vi) the Second Amended and Restated Five-Year Credit Agreement, dated as of
October 17, 2005, among MichCon, the financial institutions from time to time
parties thereto as "Lenders" and JPMorgan, as agent for said Lenders (the
"Amended and Restated MichCon Credit Agreement", and together with the DTE
Credit Agreement, the DECO Credit Agreement, the MichCon Credit Agreement, the
Amended and Restated DTE Credit Agreement, and the Amended and Restated DECO
Credit Agreement, the "Credit Agreements"). Terms used herein which are defined
in each Credit Agreement shall have the respective meanings set forth in each
Credit Agreement, unless otherwise defined herein.
We have acted as special counsel to the Borrowers in connection with
the preparation, execution and delivery of the Credit Agreements.
In connection with this opinion we have examined a copy of each
Credit Agreement signed by each of the parties thereto. We have also examined
the originals, or
duplicates or certified or conformed copies, of such records, agreements,
instruments and other documents and have made such other investigations as we
have deemed relevant and necessary in connection with the opinions expressed
herein. As to questions of fact material to this opinion, we have relied upon
certificates of public officials and of officers and representatives of the
Borrowers. In addition, we have examined, and have relied as to matters of fact
upon, the representations made in the Credit Agreements.
In rendering the opinions set forth below, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as duplicates or certified
or conformed copies, and the authenticity of the originals of such latter
documents. We have assumed without independent investigation that (a) the Loan
Documents have been duly authorized, executed and delivered by the Borrowers,
(b) the Borrowers have been duly incorporated and are validly existing and in
good standing under the laws of their jurisdictions of incorporation and have
the corporate power and authority to execute, deliver and perform their
obligations under the Loan Documents, (c) the execution, delivery and
performance of the Loan Documents by each Borrower party thereto (i) have been
duly authorized by all necessary corporate action on their part, (ii) do not
contravene their certificates of incorporation or by-laws or, except as opined
upon in paragraph 2 below, violate, or require any consent not obtained under,
any applicable law or regulation or any order, writ, injunction or decree of any
court or other governmental authority binding upon any of them and (iii) do not
violate, or require any consent not obtained under, any contractual obligation
applicable to or binding upon any of them, and (d) the Credit Agreements
constitute the valid and legally binding obligation of the applicable Agent and
the applicable Lenders.
Based upon and subject to the foregoing, and subject to the
assumptions, qualifications and comments set forth herein, we are of the opinion
that:
1. Each of the Credit Agreements is the legal, valid and binding
obligation of the Borrower party thereto, enforceable against such Borrower in
accordance with its respective terms. Each of the respective Notes issued on the
date hereof, if any, is the legal, valid and binding obligation of the issuing
Borrower, enforceable against such Borrower in accordance with its terms.
2. The execution, delivery and performance by each of the Borrowers of the
Loan Documents to which it is a party will not violate any Federal or New York
statute or any rule or regulation issued pursuant to any Federal or New York
statute.
Our opinion in paragraph 1 above is subject to (i) the effect of any
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or laws affecting creditors' rights generally, (ii) general equitable
principles (regardless of whether enforcement is sought in a proceeding in
equity or at law) and (iii) an implied covenant of good faith and fair dealing.
We express no opinion with respect to: (a) the effect of any
provision of the Loan Documents that is intended (i) to establish any standard
as the measure of the performance by any party thereto of such party's
obligations of good faith, diligence, fair dealing, reasonableness
or care or (ii) to permit modification thereof only by means of an agreement in
writing signed by the parties thereto; (b) the effect of any provision of the
Loan Documents insofar as it provides that any Person purchasing a participation
from a Lender or other Person may exercise set-off or similar rights with
respect to such participation or that any Lender or other Person may exercise
set-off or similar rights other than in accordance with applicable law; (c) the
effect of any provision of the Loan Documents imposing penalties or forfeitures;
(d) the effect of any provision of the Loan Documents relating to
indemnification or exculpation in connection with violations of any securities
laws or relating to indemnification, contribution or exculpation in connection
with willful, reckless or criminal acts or gross negligence of the indemnified
or exculpated Person or the Person receiving contribution; (e) any provision of
the Loan Documents which purports to provide for a waiver by the Borrowers of
any immunity, defense or right which may be available to the Borrowers; and (f)
any provision of the Loan Documents which purports to establish an evidentiary
standard for determinations by any Person.
In connection with the provisions of the Credit Agreements whereby
the Borrowers submit to the jurisdiction of the courts of the United States of
America located in the State of New York, we note the limitations of 28 U.S.C.
Sections 1331 and 1332 on subject matter jurisdiction of the Federal courts. In
connection with the provisions of the Credit Agreements that relate to forum
selection (including, without limitation, any waiver of any objection to venue
or any objection that a court is an inconvenient forum), we note that under
NYCPLR Section 510, a New York State court may have discretion to transfer the
place of trial, and under 28 U.S.C. Section 1404(a), a United States District
Court has discretion to transfer an action from one Federal court to another.
We are members of the Bar of the State of New York, and we do not
express any opinion concerning any law other than Federal law and the law of the
State of New York.
This opinion letter is rendered to you in connection with the
above-described transactions. This opinion letter may not be relied upon by you
for any other purpose, or relied upon by any other person or entity without our
prior written consent (provided, that this opinion Letter may be furnished to
and relied upon by a subsequent assignee of, or participant under, the Credit
Agreements and a Note, if any, solely for the purpose of such assignment or
participation, subject to the assumptions, limitations and qualifications set
forth herein without our prior written consent). This opinion letter speaks only
as of its date, there is no assurance that it will be correct as of any date
after its date, and we undertake no duty to inform you or any assignee or
participant of events occurring subsequent to the date hereof.
Very truly yours,
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
Five-Year Credit Agreement, dated as of October 17, 2005 (as amended or modified
from time to time, the "Agreement") among Michigan Consolidated Gas Company, a
Michigan corporation (the "Borrower"), the lenders parties thereto, and JPMorgan
Chase Bank, 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 _______,
____.
MICHIGAN CONSOLIDATED GAS COMPANY
By _________________________________
Name:
Title:
SCHEDULE 1 TO COMPLIANCE CERTIFICATE
Compliance as of _________, ____ with
Provisions of Section 5.01(h) of
the Agreement
FINANCIAL COVENANT
Ratio of Consolidated Debt to Capitalization (Section 6.01(i)).
(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 (excluding all Nonrecourse Debt): $________________
(C) State whether the ratio of (A)(v) to (B) was not greater than .65:1: YES/NO
EXHIBIT G - FORM OF
LENDER SUPPLEMENT
LENDER SUPPLEMENT
Dated ____________ ____, 20___
Reference is made to that certain Five-Year Credit Agreement, dated as of
October 17, 2005 (as amended or modified from time to time, the "Credit
Agreement") among Michigan Consolidated Gas Company, a Michigan corporation (the
"Borrower"), the lenders parties thereto (the "Lenders"), and JPMorgan Chase
Bank, N.A., as Agent for the Lenders (the "Agent"). Unless otherwise defined
herein, capitalized terms used in this Lender Supplement have the meanings
ascribed thereto in the Credit Agreement.
Pursuant to Section 2.4(c) of the Credit Agreement, the Borrower has
requested an increase in the aggregate Commitments from $______________ to
$_____________. Such increase in the aggregate Commitments is to become
effective on the date (the "Effective Date") which is the later of (i)
____________ ____, 20___ and (ii) the date on which the conditions set forth in
Section 2.04(c) in respect of such increase have been satisfied. In connection
with such requested increase in the aggregate Commitments, the Borrower, the
Agent and _________________ (the "Accepting Bank") hereby agree as follows:
1. Effective as of the Effective Date, [the Accepting Bank shall become a
party to the Credit Agreement as a Lender and shall have all of the rights and
obligations of a Lender thereunder and shall thereupon have a Commitment under
and for purposes of the Credit Agreement in an amount equal to the] [the
Commitment of the Accepting Bank under the Credit Agreement shall be increased
from $_____________ to the] amount set forth opposite the Accepting Bank's name
on the signature page hereof.
[2. The Accepting Bank hereby (a) represents and warrants that (i) it has
full power and authority, and has taken all action necessary, to execute and
deliver this Lender Supplement and to consummate the transactions contemplated
hereby and to become a Lender under the Credit Agreement, (ii) it satisfies the
requirements, if any, specified in the Credit Agreement that are required to be
satisfied by it in order to acquire an interest thereunder and become a Lender,
(iii) from and after the Effective Date, it shall be bound by the provisions of
the Credit Agreement as a Lender thereunder and, to the extent of its interest
thereunder, shall have the obligations of a Lender thereunder, (iv) it has
received a copy of the Credit Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 4.01 thereof, as applicable,
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Lender Supplement and to
purchase an interest under the Credit Agreement on the basis of which it has
made such analysis and decision independently and without reliance on the Agent
or any other Lender, and (v) attaches any U.S. Internal Revenue Service forms
required under Section 2.13 of each of the Credit Agreements; and (b) agrees
that (i) it will, independently and without reliance on 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 the Loan
Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.](5)
[3.] The Borrower hereby represents and warrants that as of the date
hereof and as of the Effective Date, (a) all representations and warranties of
the Borrower contained in Section 4.01 of the Credit Agreement shall be true and
correct in all material respects as though made on such date; provided, that,
the foregoing representation and warranty shall not apply to the representations
and warranties set forth in (x) the last sentence of Section 4.01(e) of the
Credit Agreement, (y) Section 4.01(f) of the Credit Agreement and (z) from and
after the repeal of the 1935 Act on February 8, 2006, Section 4.01(o) of the
Credit Agreement; and (b) no event shall have occurred and then be continuing
which constitutes a Default.
[4.] THIS LENDER SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[5.] This Lender Supplement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Lender Supplement
to be executed by their respective officers thereunto duly authorized, as of the
date first above written.
MICHIGAN CONSOLIDATED GAS COMPANY, as the
Borrower
By:
-------------------------------
Title:
-----------------------------
Consented to and Accepted:
JPMORGAN CHASE BANK, N.A.,
as Agent
By:
-------------------------------
Title:
-----------------------------------
COMMITMENT ACCEPTING BANK
---------- --------------
$ [BANK]
By:
----------------------------
Title:
-------------------------
----------
(5) To be included only in a Lender Supplement for a new Lender.
